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Bark v. Northrop

United States District Court, D. Oregon, Portland Division

March 31, 2018

BARK, an Oregon non-profit corporation, FRIENDS OF MOUNT HOOD, an Oregon non-profit corporation, NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon non-profit corporation, and SIERRA CLUB, a California non-profit corporation, Plaintiffs,
v.
LISA NORTHROP, Acting Forest Supervisor of the Mt. Hood National Forest, BILL WESTBROOK, Zigzag District Ranger, KENT CONNAUGHTON, Regional Forester for Region 6, and the UNITED STA TES FOREST SERVICE, a federal Agency; WILLIAM STELLE, Regional Director of the West Coast Region, and the NATIONAL MARINE FISHERIES SERVICE, Defendants, RLK AND COMPANY, an Oregon corporation, Defendant-Intervenor.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiffs filed suit under the Administrative Procedures Act ("APA"), alleging violations of the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Endangered Species Act ("ESA") by defendants United States Forest Service ("the Forest Service") and National Marine Fisheries Service ("NMFS")- Plaintiffs' claims arise from the Forest Service's approval of the Timberline Ski Area Mountain Bike Trails and Skills Park ("the Project") and NMFS' issuance of a Biological Opinion ("BiOp") and Incidental Take Statement ("ITS") regarding the Project's effects on Lower Columbia River ("LCR") Steelhead. Plaintiffs ask that the court set aside the federal agencies' decisions and enjoin the Forest Service from implementing the Project until the agencies comply with NEPA, NFMA, and the ESA. The Forest Service and NFMS deny plaintiffs' claims and maintain that their decisions are supported by the record and entitled to deference.

         Previously, I denied plaintiffs' Motion for Summary Judgment and granted defendant and defendant-intervenor, RLK's, Cross Motions for Summary Judgment, (doc. 192) However, I stayed consideration of the parties' motions with respect to plaintiffs' NEPA claim regarding supplemental analysis as well as their ESA claims.

         Plaintiffs now move for Summary Judgment on these remaining claims (doc. 215) and Partial Reconsideration of my previous order regarding their NFMA claim, (doc. 216.) Defendants and RLK have also filed Cross Motions for Summary Judgment on these claims remaining claims, (docs. 218 and 219). For the reasons set forth herein, Plaintiff Motion for Summary Judgment and Motion for Partial Reconsideration are DENIED, and defendants and RLK's Cross Motions for Summary Judgment are GRANTED.

         BACKGROUND

         This case arises out of RLK's desire to offer lift-accessed, downhill mountain biking on bike trails served by the Jeff Flood chairlift at the Timberline Lodge And Ski Area ("Timberline") during summer months. AR 11215. After RLK submitted initial plans for the Project, the Forest Service undertook varied activities to study and modify the Project that are set out in greater detail in my previous Order and Opinion, (doc 192)

         Relevant to the present motions is that on November 19, 2012, the Forest Service released its final Environmental Assessment ("EA") and issued a Finding of No. Significant Impact ("FONSI") and a Decision Notice ("DN") approving the Project. AR 27732-28084, 28085-108. Plaintiffs appealed the DN. AR 28153-74. The Appeal Reviewing Officer recommended that the appeal be denied, and the Regional Forester denied the appeal. AR 29284-89, 29290-29322.

         As approved, the Project is a chairlift-assisted mountain biking development with seventeen miles of bike trails and a small skills park within an area designated for managed recreation. See AR 27736-27739, 27946, 28084. The Project also includes 2.1 miles of restoration projects. AR 27754, 27762-63. Yearly operations for the bike trail and skills park would begin when snowmelt allows for trail maintenance, generally mid-to-late July, and would cease in the fall or when "soil moisture and the resulting impacts to trail conditions are determined to be sufficient" to dictate cessation of operations. AR 27765. Similarly, construction and/or operation of the Project would cease if more than one-inch of rain falls within a 24-hour time period, or the flow of the nearby Bull Run River exceeds 200 cubic feet per second. AR 27771.

         On May 16, 2013, plaintiffs filed their first complaint seeking judicial review of the Forest Service's decision to approve the Project. Subsequently, the parties agreed that the Forest Service would not proceed with construction of the bike trails and the skills park until the court resolved plaintiffs' claims through cross-motions for summary judgment. The parties also agreed that certain restoration activities of the Project could proceed.

         In July and August 2013, the Xerces Society for Invertebrate Conservation ("Xerces") surveyed meadows on Mt. Hood and located the Western bumblebee, a sensitive species, in the Project area. FS 2ndSupp 272, 282, 887.[1] The Forest Service's wildlife biologist "reviewed] the found locations and considered] this information in regards to the analysis" of the Project. FS 2ndSupp 887. In December 2013, the Forest Service prepared a New Information Review ("NIR") regarding the bumblebee. FS 2ndSupp 886-922. The Forest Service determined that the Project "may impact individual [bees] or habitat, but will not likely contribute to a trend towards Federal listing or loss of viability of the population or species." FS 2ndSupp 887. The Forest Service nonetheless adopted additional project design criteria "PDC proposed by the wildlife biologist to alleviate several concerns raised by Xerces. See FS 2ndSupp 887-88, 894-96.

         On December 23, 2013, plaintiffs provided notice of their intent to sue NFMS for ESA violations involving the LCR Steelhead. FS 2ndSupp 317-27; NMFS 133-43. On March 14, 2014, plaintiffs filed a First Amended Complaint ("FAC") and added claims alleging that defendants failed to perform supplemental NEPA analysis for the Western bumblebee and failed to engage in formal consultation with NMFS with respect to the LCR steelhead.

         On March 27, 2014, the Forest Service and NMFS initiated formal consultation on the LCR steelhead. FS 2ndSupp 3861-63. On August 5, 2014, NMFS issued a BiOp concluding that the Project was not likely to jeopardize the continued existence of the LCR steelhead or adversely modify its critical habitat. NMFS 727, 773. However, NMFS found that the Project was likely to adversely affect individual LCR steelhead. NMFS 769-70. NMFS thus mandated terms and conditions for the Project, including sediment control measures, design features to minimize sediment delivery during operations, and pollution and erosion control measures. NMFS 776-80. These terms and conditions largely mirror the Project's PDC included in the EA. Due to the adverse impacts to individual steelhead and specific habitat, NMFS issued an ITS authorizing the "take" of steelhead incidental to the Project. NMFS 773.

         On September 18, 2014, the Forest Service issued a New Information Report ("NIR") and concluded that NMFS's discussion of the Project's effects on LCR steelhead was consistent with the effects considered and disclosed in the EA. Thus, the Forest Service found that supplemental NEPA analysis was not required. FS 2ndSupp 4243-44, 4248-53.

         In late 2014, RLK submitted its 2014 Timberline Lodge Bike Park Project Annual Monitoring Report to the Forest Service, FS 2ndSupp 4368-461. According to the report, the majority of the restoration work associated with the Project and included in the DN/FONSI was completed successfully during 2013 and 2014. The Forest Service then issued the "Phase 2 of the Restoration Activities associated with Timberline Ski Area Mountain Bike Trails and Skills Park Progress Report" prepared by a Forest Service fisheries biologist. FS 2ndSupp 4462-64.

         On November 20, 2014, plaintiffs filed a Second Amended Complaint alleging that the Forest Service must conduct supplemental NEPA analysis regarding the Project's effects on the LCR steelhead (as well as the Western bumblebee), and that the BiOp and ITS are arbitrary and capricious in violation of the ESA. The parties then proceeded with motions for summary judgment pursuant to a stipulated briefing schedule.

         After hearing oral argument on the motions, defendants informed me that the Forest Service and NMFS reinitiated consultation after discovering that the riparian disturbance take surrogate identified in the BiOp had been exceeded. Specifically, ground-disturbing activities related to the Project's restoration measures apparently caused ground disturbance of 1.58 acres, which is .04 acres greater than the disturbance area surrogate specified in the BiOp. I held that the renewed consultation raised the specter that NMFS would issue a new or revised BiOp, thus rendering moot plaintiffs' ESA claims and providing additional information to consider in the context of plaintiffs' NEPA supplementation claims. Therefore, I stayed consideration of plaintiffs' supplemental NEPA and ESA claims. On March 25, 2016, I entered an Opinion and Order granting Summary Judgment in favor of defendant regarding plaintiffs NEPA and NFMA claims, (doc. 192)

         On August 4, 2016, NMFS issued a new BiOp analyzing the effects of the Project on LCR steelhead and its critical habitat. NMFS 2AR 1634-708. NMFS again concluded that the Project was not likely to jeopardize the continued existence of the LCR steelhead or result in the destruction or adverse modification of its critical habitat. NMFS 2AR 1634. In December 2016, after inviting public comments on the analysis and its tentative findings, the Forest service determined that the 2016 BiOp did not constitute significant new information requiring supplemental NEPA of the 2012 EA. 4th SUPP AR 6058-63. Regarding the Western bumblebee, new surveys of bee locations were taken in 2015 and 2016. 4th Supp AR 2738; 5017-20, 5021-22. On October 13, 2016, the Forest Service provided the survey data to the public and invited comment on its tentative findings. 4th SUPP AR 5023-5029. On December 14, 2016, the Forest Service determined that NEPA supplementation was not required regarding the Western bumblebee.

         On January 26, 2017, plaintiffs filed their Third Amended Complaint ("TAC"). The parties then entered a joint briefing schedule for the present motions, The Court heard oral argument on October 16, 2017. Thus, I now turn to the remaining claims in the TAC.

         STANDARD OF REVIEW

         A federal agency's compliance with NEPA is reviewed under the APA. 5 U.S.C. § 706. Plaintiffs also seek review of their ESA claim under the APA. The APA allows a final agency action to 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)). 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 ...


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