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Bark v. Northrop

United States District Court, D. Oregon

April 11, 2014

BARK, Plaintiff,
LISA NORTHROP, Forest Supervisor, of the Mt. Hood National Forest, and U.S. FOREST SERVICE, a federal agency, Defendants, and INTERFOR, U.S., Inc., Defendant-Intervenor.

David H. Becker, Law Office of David H. Becker, LLC, Portland, OR, Brenna B. Bell, Bark, Portland, OR, Attorneys for Plaintiff.

Beverly F. Li, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, Attorney for Defendants.

Robert L. Molinelli, Scott W. Horngren, American Forest Resource Council, Portland, OR, Attorneys for Defendant-Intervenor.


MARCO A. HERNNDEZ, District Judge.

Plaintiff Bark, a non-profit organization, brings this action against Defendants U.S. Forest Service and Lisa Northrop, forest supervisor of the Mt. Hood National Forest (collectively "Forest Service"). Plaintiff claims that the Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) in approving the Jazz Thinning project in the Mt. Hood National Forest. Interfor, U.S., Inc. has intervened as a defendant.

Plaintiff claims that the Forest Service's environmental assessment (EA) violates NFMA. Specifically, Plaintiff contends that the EA improperly exempts compliance with soil protection standards, does not comply with Aquatic Conservation Strategy (ACS) objectives, and does not comply with the Best Management Practices (BMP) of the Mt. Hood Forest Plan. Plaintiff further claims that the EA violates NEPA because the EA does not adequately evaluate the impacts of rebuilding decommissioned roads, soil productivity, or the spread of invasive species. Additionally, Plaintiff asserts that the Forest Service violated NEPA by failing to consider a sufficient number of alternatives and failing to prepare and environmental impact statement (EIS).

Plaintiff moved for summary judgment, and the Forest Service and Interfor cross-moved. Oral argument on the motions was held on March 7, 2014. In reviewing the Forest Service's actions, I find that the Forest Service has not violated NFMA or NEPA. Therefore, Plaintiff's motion [51] is denied, Defendants' motion [57] is granted, and Defendant-Intervenor's motion [60] is granted.


In March 2013, the Forest Service issued a Decision Notice and a Finding of No Significant Impact (FONSI) for the Jazz Thinning project. Revised Admin. R. (AR) 21246-21264.[1] The Jazz project area is located in the Collawash Watershed, a tributary of the Clackamas River, in the Mt. Hood National Forest. AR 20951, 21246. The Forest Service proposed thinning approximately 2, 053 acres of plantations that are between 30 and 60 years old.[2] AR 20967. The average tree size in the plantations is one foot in diameter. AR 21246. These plantations primarily originated after clearcut harvesting. AR 21247. The trees were planted closely together with the understanding that over time, density management practices would give the trees sufficient space to grow. AR 21248.

The purpose of the Jazz project is to increase the health and growth of trees, enhance the diversity within the plantations, and provide timber to the local economy. AR 21001. The project involves variable density thinning methods to create skips, gaps, heavy thins, and snags. Id . The project requires repairing 67 miles of road, constructing 11.5 miles of temporary roads on existing road alignments, and construction of 0.4 miles of new temporary roads. AR 21250. The temporary roads would be decommissioned upon completion of the project. AR 21001.

In April 2013, Bark appealed the EA and Decision Notice to the Regional Forester. AR 21538. One month later, the Regional Forester affirmed the EA and Decision Notice and denied Bark's appeal. AR 21634. Bark filed this lawsuit soon after in July 2013. In September 2013, the Forest Service awarded Interfor the Bass and Drum stewardship contracts to implement the Jazz project. AR 21668-22133. Interfor was allowed to intervene in this matter as a defendant. Dec. 12, 2013 Order [45].


I. Standard of Review

The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. The legal standards for summary judgment motions are "inconsistent with the standards for judicial review of agency action" under the Administrative Procedure Act (APA). Olenhouse v. Commodity Credit Corp. , 42 F.3d 1560, 1579 (10th Cir. 1994). Nonetheless, the Ninth Circuit endorsed summary judgment motions as "an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.'" City & County of San Francisco v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 770 (9th Cir. 1985)). I consider "summary judgment" to be only a convenient label for the judicial review of challenged agency actions.

This court's authority to review the actions of the Forest Service concerning the Jazz project derives from the APA, 5 U.S.C. § 706. The scope of judicial review under § 706 is narrow, and a court must uphold an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at § 706(2)(A).

An agency's decision is arbitrary and capricious "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, ' or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting Earth Island Inst. v. U.S. Forest Serv. , 442 F.3d 1147, 1157 (9th Cir. 2006)). If the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made, " the court must uphold the agency's action. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc. , 462 U.S. 87, 105 (1983); see also City of Sausalito v. O'Neill , 386 F.3d 1186, 1206 (9th Cir. 2004).

Moreover, the court generally must be "at its most deferential" when reviewing scientific judgments and technical analyses within the agency's expertise. See Balt. Gas & Elec. Co. , 462 U.S. at 103. It should not "act as a panel of scientists that instructs the [agency]..., chooses among scientific studies..., and orders the agency to explain every possible scientific uncertainty." Lands Council , 537 F.3d at 988. The court should also "conduct a particularly deferential review' of an agency's predictive judgments about areas that are within the agency's field of discretion and expertise... as long as they are reasonable.'" Id. at 993 (quoting Earthlink, Inc. v. FCC , 373 U.S.App. D.C. 202, 462 F.3d 1, 12 (D.C. Cir. 2006)). And "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. at 1000 (quoting Marsh v. Or. Natural Res. Council , 490 U.S. 360, 378 (1989)).

II. Substantive Standards

The governing law in this case includes the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321-4370f, and the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq.

A. National Environmental Policy Act

NEPA has two principal aims. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). First, NEPA requires government agencies to "consider every significant aspect of the environmental impact of a proposed action." Id . (internal quotation marks omitted). "Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts." Citizens Committee to Save Our Canyons v. United States Forest Service , 297 F.3d 1012, 1021 (10th Cir. 2002).

"NEPA is a procedural statute that does not mandate particular results but simply provides the necessary process to insure that federal agencies take a hard look at the environmental consequences of their actions.'" High Sierra Hikers Ass'n v. Blackwell , 390 F.3d 630, 639-40 (9th Cir. 2004) (internal citation omitted). To comply with NEPA, federal agencies must prepare an Environmental Impact Statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

A federal agency initially "may prepare an Environmental Assessment (EA) to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS." High Sierra Hikers Ass'n , 390 F.3d at 630, 639-40. An EA is "a concise public document" that should:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact;
(2) Aid an agency's compliance with [NEPA] when no environmental impact statement is necessary;
(3) Facilitate preparation of [an EIS] when one is necessary.

40 C.F.R. § 1508.9(a)(1-3).

"An EA must include brief discussions' of the need for the [federal action], of reasonable alternatives, and of the anticipated environmental impacts." Hapner v. Tidwell , 621 F.3d 1239, 1244 (9th Cir. 2010). See also 40 C.F.R. § 1508.9(b). An agency must then prepare an EIS "if substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor." Cal. Trout v. F.E.R.C. , 572 F.3d 1003, 1016 (9th Cir. 2009). An EA need not meet all the requirements of an EIS, but "it must be sufficient to establish the reasonableness of th[e] decision' not to prepare an EIS." Ctr. for Biological Diversity v. Nat'l Hwy Traffic Safety Admin. , 538 F.3d 1172, 1215 (9th Cir. 2008) (internal citations omitted).

B. National Forest Management Act

NFMA requires the Forest Service to create a comprehensive Land Resources Management Plan, also known as a Forest Plan, for each national forest. Lands Council, 395 F.3d at 1033. NFMA prohibits any site-specific activities that are inconsistent with the Forest Plan. Id . Unlike NEPA, which is purely procedural, NFMA also imposes substantive constraints on management of forest lands, such as a requirement to insure biological diversity. Native Ecosystems Council, 304 F.3d at 898.

The NFMA and its implementing regulations subject forest management to two stages of administrative decision making. At the first stage, the Forest Service is required to develop a Land and Resource Management Plan ("LRMP" or "Forest Plan"), which sets forth a broad, long-term planning document for an entire national forest. At the second stage, the Forest Service must approve or deny individual, site-specific projects. These individual projects must be consistent with the Forest Plan. Inland Empire Pub. Lands Council v. U.S. Forest Serv. , 88 F.3d 754, 757 (9th Cir. 1996).


Plaintiff raises several challenges under both NFMA and NEPA.


There are two forest plans involved in this case-the Northwest Forest Plan and the Mt. Hood Forest Plan (aka the Forest Plan). AR 20960. Plaintiff raises three NFMA-based arguments concerning the Forest Service's EA and Decision Notice for the Jazz project. Plaintiff argues that the Decision Notice does not comply with (1) the Mt. Hood Forest Plan's soil protection standards, (2) the Northwest Forest Plan's Aquatic Conservation Strategy (ACS) objectives, and (3) the Best Management Practices (BMP) of the Mt. Hood Forest Plan.

A. Soil Protection Standards

The Forest Service approved exceptions to several Forest Plan standards and guidelines. AR 21262. Plaintiff argues that the exceptions are not supported by facts, and therefore are arbitrary and capricious. Pl.'s MSJ 10. The exceptions concern two different subjects-low risk earthflows and soil productivity.

1. Low Risk Earthflows

With respect to low risk earthflows, there is an overall standard, FW-17, and four substandards, FW-18 through 20. The overall standard states that "possibilities of reactivating or accelerating movement shall be minimized." AR 1455. The Forest Service approved exceptions to sub-standards FW-18 and FW-20. AR 21262.

[FW-18] The combined cumulated detrimental impacts, occurring from both past and planned activities, of detrimental soil compaction, puddling, displacement, erosion or severely burned soil should not exceed 8 percent of the activity area.
[FW-20] Ground machine yarding of logs should not occur.

AR 1455. Plaintiff challenges these two exceptions, arguing that the Forest Service "does not provide adequate information that ensures management activities on designated earthflows will not reactivate or accelerate movement." Pl.'s MSJ 11. Plaintiff further argues that the EA does address "the effects of road building on earthflow stability." Id. at 12.

Plaintiff's concern over reactivating or accelerating movement of earthflows and the effects of road building has been adequately addressed by the EA. In the EA, an analysis was performed to study the project's impact on the hydrologic recovery of earthflows. AR 21081-85. The Aggregate Recovery Percentage (ARP) Index was used to determine compliance with Forest Plan standards and guidelines. AR 21082. The Jazz project would affect parts of 12 different earthflows. AR 21083. The current conditions of these 12 earthflows are designated as hydrologically recovered.[3] Id . At the recommendation of a slope stability specialist, all unstable and potentially unstable areas were examined and eliminated from the project. AR 21080, 21085. The Forest Service predicts that the project is not likely to cause the acceleration of movement of earthflows. AR 21083. Additionally, the slope stability specialist found that the construction of new temporary roads "would have no perceptible effect on slope stability." AR 21081. The new and existing roads would be decommissioned after the project, resulting in a net beneficial effect on slope stability. Id.

Plaintiff further argues that exceptions to sub-standards FW-18 and 20 should not have been granted because soil compaction rates in the project area "already exceed the 8% maximum compaction allowed by the Forest Plan, with compaction rates from 9-25% throughout the project area. Pl.'s MSJ 11. The FW-18 sub-standard states that soil compaction "should not exceed 8 percent[.]" I disagree with Plaintiff that the 8% may never be exceeded. Unlike the overall standard FW-17 which uses "shall, " FW-18 and FW-20 use the more permissive "should" to describe prohibitions. Additionally, according to the Forest Plan, "case by case exceptions [to "should" standards] are ...

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