United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
OWEN M. PANNER, District Judge.
This matter comes before the Court on cross motions for summary judgment filed by Plaintiff Oregon Wild (#12) and Defendant United States Forest Service ("the Forest Service") (#15). Plaintiff's Motion for Summary Judgment (#12) is DENIED. The Forest Service's Cross-Motion for Summary Judgment (#15) is GRANTED.
I. The Bybee Project
Plaintiff challenges the Forest Service's authorization of the Bybee Vegetation Management Project ("the Bybee Project") located in the High Cascades Ranger District of the Rogue River-Siskiyou National Forest in Jackson County, Oregon. Administrative Record ("AR") 7214. The Bybee Project is a forest treatment project aimed at 1) improving stand conditions, diversity, density, and structure to increase forest resiliency and overall forest health; 2) providing for a sustainable supply of timber products; and 3) reducing the risk to forest resources from high intensity fire. AR 7222, 11584.
The Bybee Project planning area covers approximately 16, 215 acres within the national forest. AR 7221. The project area is adjacent to Crater Lake National Park and Oregon Highway 230, also known as the Rogue-Umpqua Scenic Byway. AR 7222. Both the National Park and Oregon Highway 230 present serious fire risks. AR 7223. The heightened risk of fire stems from human activity, differing fire use standards between the National Park Service and the Forest Service, and the accumulation of fine fuels in the project areas along the park boundary and the highway. AR 7223.
More than half of the project planning area has previously been used for timber harvest. AR 7221. 34% of the project area contains overstocked timber stands. AR 7223.
The Forest Service solicited and received public comments on the Bybee Project proposal beginning in April 2010. AR 7230. In January 2013, the Forest Service issued an Environmental Assessment ("EA") for the Bybee Project. AR 7214-509. Plaintiff, along with a number of other interested parties, submitted comments to the Forest Service. AR 8294-376. On September 17, 2013, the Forest Service issued a Decision Notice and Finding of No Significant Impact ("FONSI") for the Bybee Project. AR XXXXX-XXX. In response to public comments, the Forest Service adopted a modified alternative to its initial proposed action. AR 11585-91. The modified alternative adopted by the Forest Service scaled back the original Bybee Project proposal in a number of areas. Id.
As approved, the Bybee Project permits commercial timber harvest of 2, 021 acres on 45 units; 487 acres of precommerical thinning on 14 units; 236 acres of non-commercial thinning on parts of 27 units and 467 acres of natural fuels reduction treatments on 15 units. AR 11585. The project also includes the construction of 7.9 miles of temporary roads, largely on existing non-system road templates, as well as decommissioning 5.4 miles of existing roads. Id . Decommissioning the temporary and existing roads will reduce the road density of the project area to a "low watershed risk category." AR 7315. The Bybee Project also includes post-harvest treatments, including soil restoration "to loosen detrimentally compacted soils (from previous management activity) [and] improve root growth, thereby increasing stand resiliency and health." AR 11586.
Plaintiff, as well as several timber industry parties, appealed the Forest Service's decision on the Bybee Project. AR XXXXX-XXX; 11965-73; 11974-77. The Forest Service denied the appeals in December 2013. AR 11980-12009. Plaintiff filed this action on June 18, 2014 (#1).
II. The Gray Wolf
A number of Plaintiff's claims relate to the appearance of endangered gray wolves in the High Cascades Ranger District in the months following the Forest Service's final decision on Plaintiff's administrative appeal. In western Oregon, the grey wolf is listed as "endangered" under the Endangered Species Act. Mellgren Decl. Ex. A, at 2. A male wolf, known as OR-7, left his original pack in northeastern Oregon and has been tracked over several years by radio collar. Id . In 2011, OR-7 traveled through southern Oregon and into California before returning to Oregon and settling in the High Cascades Ranger District of the Rogue River-Siskiyou National Forest. Id . In May 2014, the U.S. Fish & Wildlife Service ("USFWS") informed the Forest Service that OR-7 had found a mate and produced a litter of at least two pups. Id . Because no wolves were known to be present in the Bybee Project area during the project planning and comment periods, neither the Forest Service or Plaintiff discussed the wolves at the administrative stages of this case.
As of October 2014, the batteries on OR-7's radio collar were failing and so the state and federal agencies are only able to track his location intermittently. Id . The Oregon Department of Fish & Wildlife planned to capture and collar one of the wolves. Id . The precise location of the wolves' den is being withheld by the state and federal agencies to protect the endangered wolves, but it is located more than 15 air miles from the Bybee Project area. Id. at 3. OR-7 has not been tracked within 15 miles of the Bybee Project area and all known locations for the wolves were 15 or more miles from the project area. Id. at 2-3.
On October 10, 2014, after consultation with experts from USFWS, the Forest Service issued a New Information Review. The Forest Service concluded that the appearance of the gray wolves "does not constitute significant new information relevant to environmental concerns regarding the Bybee project, and... does not have a bearing on the authorized Bybee decision or its impacts." Id", at 3. The Forest Service determined that no supplemental environmental analysis was necessary. Id
I. Summary Judgment Standards Do Not Apply
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). Qlenhouse 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 & Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997)(quoting Occidental Eng'q Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985)). As I have previously noted, I consider "summary judgment" to be only a convenient label for the judicial review of challenged agency actions. Oregon Wild v. Connauqhton, No. 1:12-cv-2244-PA, 2014 WL 357084, at *1 (D. Or. Jan. 31, 2014).
II. Judicial Review under the APA
Under the APA, the court determines whether the agency's decisions was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Before a court may overturn an agency decision under the APA's deferential standard of review,
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. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (citations omitted), abrogated in part on other grounds by Califano v. Sander, 430 U.S. 99, 105 (1977). This court presumes the agency acted properly and affirms the agency when "a reasonable basis exists for its decision.'" Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)(quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)(citations omitted)).
Review is limited to the question of whether the agency took a "hard look" at the proposed action as required by a strict reading of procedural requirements. Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1005 (9th Cir. 2011)(quotation marks omitted). Courts defer to any agency decision that is "fully informed and well-considered, " but must not overlook a "clear error of judgment." Id . (quotation marks omitted). A court's deference when reviewing an agency's decision "is highest when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise." League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010).
Plaintiff contends the Forest Service violated the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA").
Plaintiff alleges that the Forest Service violated NEPA by failing to prepare an Environmental Impact Statement ("EIS") for the Bybee Project and also by failing to supplement the Bybee Project Environmental Assessment ("EA") to account for the appearance of endangered gray wolves in the area.
A. Failure to Prepare an EIS
NEPA is a procedural statute that does not mandate particular results, but rather sets forth a review process to "ensure that federal agencies take a hard look at the environmental consequences of the proposed action." Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir. 2007). NEPA requires agencies considering "major Federal actions significantly affecting the quality of the human environment" to prepare an Environmental Impact Statement ("EIS"). 42 U.S.C. § 4332(C). To determine whether an EIS is required, an agency may first prepare a less extensive Environmental Assessment ("EA"). 40 C.F.R. § 1501.4(b). If the EA finds that the proposed action will significantly affect the environment, the agency must prepare an EIS. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013). If the proposed action is found to have no significant effect, the agency may issue a Finding of No Significant Impact ("FONSI"), "accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant." Sierra Club, 510 F.3d at 1018 (quotation marks and citation omitted).
In determining whether the potential effects are significant, agencies and courts evaluate "both context and intensity." 40 C.F.R. § 1508.27. In assessing intensity or "severity of impact, " courts and agencies look at ten factors described in the federal regulation. 40 C.F.R. § 1508.27(b). A court may find a substantial effect based on just one of the "intensity" factors. Ocean Advocates v. U.S. Army Corps of Enq'rs, 402 F.3d 846, 865 (9th Cir. 2004). Even if no single factor justifies an EIS, the factors may require an EIS when considered cumulatively. Cascadia Wildlands v. U.S. Forest Serv., 937 F.Supp.2d 1271, 1283-84 (D. Or. 2013).
In this case, Plaintiff challenges the Forest Service's Bybee decision based on four of the § 1508.27(b) factors: 1) the unique characteristics of the geographic area (§ 1508.27(b) (3)); 2) the degree to which the action represents a precedent for future actions (§ 1508.27(b) (6)); 3) the degree to which the action may affect an endangered species or its critical habitat (§ ...