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Wildlands v. United States Forest Serv.

United States District Court, D. Oregon

March 21, 2013

CASCADIA WILDLANDS and OREGON WILD, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, an administrative agency of the United States Department of Agriculture, Defendant,
v.
FRERES LUMBER COMPANY, INC., an Oregon corporation, and SENECA SAWMILL COMPANY, an Oregon corporation. Defendant-Intervenors

For plaintiffs: Susan Jane M. Brown, Western Environmental Law Center, Portland, Oregon; John R. Mellgren, Western Environmental Law Center, Eugene, Oregon.

For defendant: S. Amanda Marshall, United States Attorney, Sean E. Martin, Assistant United States Attorney, Portland, Oregon.

For defendant-intervenors: Scott W. Horngren, American Forest Resource Council, Portland, Oregon.

OPINION

Ann Aiken, United States District Judge.

Page 1272

OPINION AND ORDER

Plaintiffs Cascadia Wildlands and Oregon Wild move for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant United States Forest Service (" Forest Service" ) and defendant-intervenors Freres Lumber Company, Inc. (" Freres" ) and

Page 1273

Seneca Sawmill Company (" Seneca" )[1] each filed cross-motions for summary judgment. For the reasons set forth below, the parties' motions are granted in part and denied in part.

BACKGROUND

This case involves a challenge to the Forest Service's authorization of the Goose Project (" Project" ) located in the McKenzie Ranger District of the Willamette National Forest (" WNF" ) near the community of McKenzie Bridge. Administrative Record (" AR" ) 13433. This region falls under the purview of the Northwest Forest Plan (" NFP" ), which coordinates federal efforts to balance environmental concerns with the need for sustainable forest products within the range of the northern spotted owl.[2] See Supplemental Record (" SAR" ) 001-083. The NFP developed a number of Standards and Guidelines (" SG" ), directing the agencies' enactment of the NFP by allocating lands for various uses and providing outcome objectives.[3] See SAR 084-237. Included in the SG is the Aquatic Conservation Strategy (" ACS" ), which " was developed to restore and maintain the ecological health of watersheds and aquatic ecosystems contained within them on public lands." SAR 109.

Working within this framework, the Forest Service developed the Goose Project. The Forest Service's stated purpose for the Project is threefold: " 1) Actively manage stands to improve stand conditions, diversity, density, and structure, 2) Reduce hazardous fuel levels in the McKenzie Bridge Wildland-Urban Interface (" WUI" ), and 3) Provide for a sustainable supply of timber products within the Goose Project boundary." AR 13435.

To these ends, the Project would permit commercial harvest of approximately 2,100 acres of public lands in the WNF through commercial thinning (1,255 acres), early seral wildlife thinning (195 acres), skip and gap creation (598 acres), dominant tree and sugar pine release (11 acres), and regeneration harvest treatments (41 acres).[4] AR 13438. In addition, the Project authorizes noncommercial hazardous fuels reduction treatments[5] of approximately

Page 1274

668 acres through noncommercial thinning and natural fuels underburning in the WUI. AR 13437.

At issue with the Project are the loss and downgrade of habitat for the northern spotted owl, regeneration harvests within Riparian Reserves, the loss of potential wilderness from the Lookout Mountain Potential Wilderness Area (" PWA" ), and the extent of road construction. Specifically, the Project authorizes 454 acres of removal or downgrade of northern spotted owl habitat. AR 15286. In Riparian Reserves, it includes 362 acres of commercial thinning and an additional 582 acres slated for fuels treatment.[6] AR 13478. Also included in the proposed Project are 365 acres of fire-regenerated stands more than 80 years old. AR 15237. The Project authorizes one mile of permanent road construction, eight miles of temporary road construction, and 43 miles of road maintenance. AR 15236. Additionally, the project would result in 680 acres of PWA lost through harvest and fuels reduction and 569 acres lost through fragmentation. AR 13518. In total, the Lookout Mountain PWA would lose 1,249 acres of its 9,684 acres of potential wilderness. Id.

On June 2, 2009, the Forest Service conducted a public field trip in an effort to gather public opinion on potential forest management activities. AR 2404. In August 2009, the Forest Service prepared a Biological Assessment (" BA" ) to analyze the effects of various proposed federal actions on the northern spotted owl and its habitat. AR 2664-2780. Further, the Forest Service formally consulted with the Fish and Wildlife Service (" FWS" ) in September 2009 to analyze specific effects of the Project on the spotted owl. AR 4822. The resulting Biological Opinion (" BiOp" ), issued by the FWS, determined that while the Project would likely adversely affect specific owls, the Project would not further threaten the species' continued existence. AR 4934-36.

On October 1, 2009, the Forest Service listed the Project in the Schedule of Proposed Actions. AR 15234. The Forest Service mailed postcards to the public on November 16, 2009, requesting scoping comments on the project by December 7, 2009. Id.

On June 23, 2010, the Forest Service published an Environmental Assessment (" EA" ) of the Goose Project. The EA included references to both the BiOp and the BA. See, e.g., AR 13554, 13555. Following a review of the comments received in response to the EA, the Forest Service issued a Decision Notice and Finding of No Significant Impact (" FONSI" ) on September 13, 2010. AR 15232-86. The decision approved the Project with only minor modifications.[7]

In November 2010, plaintiffs challenged the Project via administrative protest. AR 15435-42. On December 16, 2010, the Forest Service responded to these protests

Page 1275

and denied plaintiffs' appeal. AR 15456-64.

After exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that both the 2010 EA and FONSI violate the National Environmental Policy Act (" NEPA" ). Plaintiffs maintain that the EA failed to disclose environmental information and consequences of the Goose Project on both the northern spotted owl habitat and the affected Riparian Reserves. Plaintiffs further contend that the proposed actions trigger NEPA's requirement that the Forest Service prepare an Environmental Impact Statement (" EIS" ).

STANDARD OF REVIEW

A federal agency's compliance with NEPA is reviewed under the Administrative Procedure Act (" APA" ). 5 U.S.C. § 706. Under the APA, a final agency action may be set aside if, after reviewing the administrative record, the court determines that the agency's action was " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)). A decision is not arbitrary or capricious if the federal agency articulated a rational connection between the facts found and the choice made. Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir. 2004); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (courts examine " whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment" ).

Review under this standard is narrow, and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1988). Nevertheless, while this standard is deferential, the court must " engage in a substantial inquiry, . . . a thorough, probing, in-depth review." Native Ecosys. Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal quotations omitted).

DISCUSSION

Plaintiffs assert that the Forest Service's authorization of the Goose Project violated NEPA's procedural requirements by failing to disclose consequences of the Project and by failing to prepare an EIS for the Project. Initially, plaintiffs argued that the Forest Service violated NEPA in four ways; however, as both parties now concede that a recent ruling from the Ninth Circuit Court of Appeals foreclosed two of those arguments, this Court will not address them here. See Pls.' Reply Mem. in Supp. of Mot. Summ. J. 15, Def.'s Mem. in Supp. of Mot. Summ. 26; Earth Island Inst. v. U.S. Forest Serv., 697 ...


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