United States District Court, D. Oregon, Portland Division
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,
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
Aiken United States District Judge
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.
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.
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.
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)
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
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.
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.
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. 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.
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.
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.
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
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
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.
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)
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
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.
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