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League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton

United States District Court, D. Oregon

December 9, 2014

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, et al., Plaintiffs,
v.
KENT P. CONNAUGHTON, et al., Defendants, and BAKER COUNTY, a political subdivision of the State of Oregon, et al., Defendant-Intervenors.

Tom C. Buchele EARTHRISE LAW CENTER, Portland, OR, Attorney for Plaintiff League of Wilderness Defenders/Blue Mountain Biodiversity Project.

Jennifer R. Schemm, Attorney at Law, La Grande, OR, Attorney for Plaintiff Hells Canyon Preservation Council.

Sam Hirsch, Beverly F. Li, U.S. DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division Washington, D.C. Attorneys for Federal Defendants Kent P. Connaughton, United States Forest Service, United States Fish and Wildlife Service, and Gary Miller

Scott W. Horngren, AMERICAN FOREST RESOURCE COUNCIL, Portland, OR, Caroline Lobdell, WESTERN RESOURCES LEGAL CENTER, Portland, OR, Attorneys for Defendant-Intervenors.

OPINION & ORDER

MARCO A. HERNNDEZ, District Judge.

In this environmental case, Plaintiffs The League of Wilderness Defenders/Blue Mountain Diversity Project and the Hells Canyon Preservation Council (collectively, "Plaintiffs") challenge the Record of Decision (ROD) and underlying final Environmental Impact Statement (EIS) issued by Defendant the United States Forest Service approving the Snow Basin Vegetation Management Project ("Project"), which would allow a certain amount of commercial logging of large trees and old forests in the Project area. Kent P. Connaughton is also named as a defendant in his official capacity as Regional Forester in the Pacific Northwest Region of the Forest Service.[1] On March 14, 2013, the Court granted the motion to intervene by Baker County, Union County, Boise Cascade Wood Products, American Forest Resource Council, Chary Mires, and Oregon Small Woodlands Association (collectively, "Intervenors").

In July of 2013, this Court denied Plaintiffs' motion for preliminary injunction that sought to block the Project's plan for commercial logging activities. On appeal, the Ninth Circuit affirmed that decision in large part but reversed on a narrow issue by finding that Plaintiffs were entitled to an injunction based on the inadequacy of the Project's final EIS regarding elk habitat. See League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 767 (9th Cir. 2014). The Ninth Circuit remanded to this Court with instructions to "enter a preliminary injunction sufficient to protect the status quo while the [Forest Service] completes a supplemental environmental impact statement." Id . On August 7, 2014, this Court issued a preliminary injunction blocking all logging activities in the Project's two commercial logging sales, pending a decision on the merits.[2]

Following the Ninth Circuit decision, Plaintiffs dropped a number of their claims. Two claims remain. The remaining claims, Claim 1, counts 3, 4, 6, and 8-11; and Claim 2; allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. §§ 1601 et seq.

Now before the Court are cross-motions for summary judgment filed by Plaintiffs, Defendants, and Intervenors. For the reasons explained below, the Court grants summary judgment to Plaintiffs on Claim 1, counts 3, 4, 9, 10, 11; and Claim 2. The Court grants summary judgment to Defendants and Defendant-Intervenors on Claim 1, counts 6 and 8.

BACKGROUND

Since 2008, the Forest Service has been developing a plan for logging in the Project area, a nearly 29, 000 acre portion of the Wallowa Whitman National Forest (WWNF) in northeastern Oregon. The Forest Service issued a draft EIS in March 2011 and a final EIS and ROD in March 2012. Admin. Rec. (AR) 7854; 12135; 12820. The Project has three purposes: (1) "Manage forest composition, structure, and density toward the historic range of variability across the landscape and improve sustainability"; (2) "Maintain and increase landscape resilience to reduce the risk of uncharacteristic disturbance, including the risk of high severity, stand replacing fires, insect outbreaks, and disease, " and; (3) "Provide a supply of forest products for the public to utilize, and provide a supply of materials to local markets." AR 12827-28. Historic range of variability (HRV) refers to "the natural fluctuation of components of healthy ecosystems over time." AR 12570.[3] The intent of the Project is to "reestablish and retain resilience of forest ecosystems across the [Project] landscape." AR 12827.

The Forest Service seeks to accomplish the Project's goals through approximately 11, 000 acres of commercial logging, using a combination of intermediate thinning and overstory removal, and approximately 9, 000 acres of non-commercial thinning. The ROD also authorizes fuels treatments[4], including prescribed fires and machine and hand piling and burning, on approximately 19, 000 acres, most of which would occur after commercial harvest activities. The Project calls for removing trees along approximately 225 miles of system haul roads, constructing approximately 9 miles of temporary roads, and reconstructing approximately 39 miles of existing roads to support timber log hauling. Road maintenance will be performed on approximately 224 miles of roads and replace an existing bridge.

The resilience of the forest in the Project area "is at risk due to past fire suppression and logging activities, " which have caused "considerable changes in species composition, structure, and densities" over the last several decades. AR 12827. The ROD states that the desired condition for the Project area is "a mosaic landscape that has a distribution of forested species compositions, structural stages, tree diameters, and relative densities within the natural (historic) range of variability for these sites." AR 12828. In order to achieve the desired condition, the ROD calls for the removal of some trees, primarily grand fir, that are 21 inches or larger in diameter at breast height (DBH).[5] Large mistle-toe infected trees would also be removed to promote the growth and health of desirable understory tree species. Old trees (defined as 150 years or more) of all species would be retained.

In order to implement the Project, the Forest Service seeks to amend the "Eastside Screens." The Eastside Screens, a region-wide WWNF Plan amendment adopted in the early 1990s, are a set of interim riparian, ecosystem, and wildlife standards for timber sales applicable to public lands east of the Cascade Mountains. The Screens prohibit logging late and old seral and/or structural (LOS) trees 21 inches DBH or greater until a long-term strategy for protection and restoration is developed. In essence, the Screens prohibit the harvest of old-growth trees.

The Forest Service proposes to amend the Eastside Screens in two ways. First, the Forest Service seeks a Project area exception to the WWNF Plan in order to allow logging of LOS trees in Project areas that are below the HRV. AR 12830. The ROD states that this amendment is needed to "change multi-story stands dominated by large grand fir trees to single story stands dominated by large early-seral ponderosa pine and western larch trees." Id . The amendment would help "maintain declining desired tree species, such as ponderosa pine and western larch, by reducing competition with over represented large grand fir." Id . The second amendment allows logging of "a limited amount of grand fir of any size from all units and logging of trees 21 inches diameter at breast height (DBH) and greater, where there is excessive mistletoe infestation impeding development of healthy conditions in Douglas-fir or where large trees of other species are affecting the health and vigor of aspen stands." AR 12831. The ROD states that this amendment is needed "to remove conifers within harvest treatment stands based on the greatest benefit to residual tree survival and stand sustainability rather than based on conifer diameter." Id.

Plaintiffs submitted comments during the public comment period for the draft EIS. AR 8866, 8459. Once the ROD and final EIS were issued, Plaintiffs submitted administrative appeals. AR 14744, 15250. Now, Plaintiffs challenge the ROD and its underlying final EIS in this Court by bringing the following claims which allege violations of NEPA[6]

1) Failure to disclose and analyze in the final EIS the cumulative impacts of prior timber sale projects across the WWNF and failure to properly consider and analyze the impacts of reasonably foreseeable future sales and plan amendments in similarly situated areas of the WWNF, (Claim 1, Count 3);
2) Failure to prepare a supplemental EIS and instead preparing the final EIS relying on a Travel Management Plan that had been withdrawn, (Claim 1, Count 4);
3) Failure to take a "hard look" at whether the Project's proposed logging within old forests and logging of big trees will achieve the Project's purpose and need; and failure to consider a reasonable range of alternatives, (Claim 1, Counts 6, 8);
4) Failure to include documents critical to the Forest Service's analysis in the final EIS and failure to prepare a new or supplemental draft EIS for the Project, in light of significant reworking of its analysis, (Claim 1, Counts 9, 10); and
5) Failure to ensure the scientific integrity of the discussions and analyses pertaining to logging large trees and old forests, (Claim 1, Count 11).

In addition, Plaintiffs bring the following claim under NFMA:

1) Improper use of site-specific amendments to the Forest Plan, (Claim 2).

Plaintiffs seek declaratory and injunctive relief as follows: (1) declare that Defendants violated NEPA and NFMA in all the ways that Plaintiffs allege; (2) vacate and set aside the final EIS and ROD for the Project; (3) enjoin the Forest Service from implementing the ROD until Defendants comply with NEPA and NFMA; (4) declare that the Forest Service's failure to prepare a supplemental EIS violated NEPA and the APA, and order the Forest Service to prepare a supplemental EIS; (5) enjoin Defendants from taking any further actions towards proceeding with the Project until they have complied with NEPA; and, (6) award Plaintiffs their reasonable costs, litigation expenses and attorney fees associated with this litigation pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq.

STANDARDS

I. Standards of Review

A. Summary Judgment

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).

If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. The Administrative Procedure Act

All of the claims in this case are governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706(APA). Under the APA, a federal court "shall... hold unlawful and set aside agency action, findings, and conclusions found to be [:] (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] without observance of procedures required by law [.]" 5 U.S.C. § 706(2).

Under this standard,

an "agency must examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law. Id.

Organized Village of Kake v. U.S. Dep't of Agric., 746 F.3d 870, 974 (9th Cir. 2014).

In deciding whether the agency's action complied with the APA, the court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal quotation marks omitted). The court's "inquiry must be thorough, " but "the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency." Id . (internal quotation marks omitted). "Where the agency has relied on relevant evidence such that a reasonable mind might accept as adequate to support a conclusion, its decision is supported by substantial evidence." Id . (internal quotation marks and brackets omitted). "Even if the evidence is susceptible of more than one rational interpretation, the court must uphold the agency's findings." Id . (internal quotation marks omitted). The Ninth Circuit has 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 & Cnty. of S.F. 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)).

II. Substantive Standards

A. National Environmental Policy Act

NEPA has two principal aims. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97 (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 accomplish the "hard look" requirement, NEPA requires all agencies to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must include:

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id.

The EIS serves two important purposes: "[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts, " and it "guarantees that the relevant information will be made available to the larger [public] audience." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). An agency takes the requisite "hard look" at environmental consequences when its EIS contains all the items listed in 42 U.S.C. § 4332(2)(C) and includes "a full and fair discussion of environmental impacts." Lands Council v. McNair, 537 F.3d 981, 1001 (9th Cir. 2008) (en banc), overruled in part on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

After the agency has taken this "hard look, " it is free to decide that other values outweigh any environmental costs it has identified. See Robertson, 490 U.S. at 350-51 ("NEPA merely prohibits uninformed-rather than unwise-agency action."). Courts will not "substitute [their] judgment for that of the agency concerning the wisdom or prudence of a proposed action." City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1150 (9th Cir. 1997) (quotation omitted). A court reviews a federal agency's compliance with NEPA under the APA's arbitrary and capricious standard. Lands Council v. McNair, 537 F.3d at 987.

B. National Forest Management Act

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 v. Dombeck, 304 F.3d 886, 898 (9th Cir. 2002). 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, also known as a 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. Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 851 (9th Cir. 2013) ("the NFMA prohibits site-specific activities that are inconsistent with the governing Forest Plan"); see also Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1062 (9th Cir.2002) ("[s]pecific projects... must be analyzed by the Forest Service and the analysis must show that each project is consistent with the plan"). The Forest Service's "interpretation and implementation of its own forest plan is entitled to substantial deference." Great Old Broads, 709 F.3d at 850 (9th Cir. 2013) (internal quotation marks omitted).

DISCUSSION

I. NEPA ...


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