United States District Court, D. Oregon, Portland Division
BARK, CASCADIA WILDLANDS, OREGON WILD, and WILDEARTH GUARDIANS, Plaintiffs,
UNITED STATES FOREST SERVICE, Defendant, and HIGH CASCADE INC., Intervenor-Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
Bark, Cascadia Wildlands, Oregon Wild, and WildEarth
Guardians (collectively “Bark”) oppose the United
States Forest Service's (USFS) authorization of forest
thinning on the southeastern slope of the Mount Hood National
Forest (MHNF). Bark claims that the USFS violated the
National Environmental Policy Act (NEPA), the National Forest
Management Act (NFMA), and the Travel Management Rule (TMR)
in authorizing the Crystal Clear Restoration (CCR) Project.
High Cascade Inc. was awarded the Ahoy Stewardship Contract
to implement a portion of the CCR Project and has intervened
as a defendant.
challenges the CCR Project under three main theories. First,
that the USFS's Environmental Assessment (EA) for the CCR
Project was arbitrary and capricious because it violated the
procedural requirements of NEPA. Second, Bark claims that the
CCR Project violates the NFMA because it is not consistent
with the MHNF Plan or the Northwest Forest Plan (NWFP).
Third, Bark challenges the CCR Project on the theory that the
USFS failed to comply with the Travel Management Rule (TMR)
by electing not to develop a “minimum road
system” as part of the Project.
parties moved for summary judgment on Bark's claims. Oral
argument was held on April 19, 2019, and the parties'
motions were taken under advisement. After supplemental
briefing, I granted the USFS's and High Cascade's
motions for summary judgment [29, 30] and denied Bark's
Motion for Summary Judgment . Order . Bark then
appealed and filed a Motion for an Injunction Pending Appeal
. After oral argument, I denied Bark's motion for an
injunction in a written opinion and order on June 3, 2019.
Order . This opinion establishes the basis for my Order
 on the parties' motions for summary judgment.
USFS undertook the CCR Project in order to “provide
forest products from specific locations . . . where there is
a need to improve stand conditions, reduce the risk of
high-intensity wildfires, and promote safe fire suppression
activities.” AR 20779. The USFS also stated that
thinning would help the remaining trees resist
“stand-replacing events” such as disease and
insect infestation. AR 21768. The Ahoy Stewardship Contract
was awarded to High Cascade to implement a portion of the CCR
Project-it will receive timber in exchange for executing the
Project's “prescriptions, ” which include
clearing brush and ladder fuels in addition to thinning.
opposes the CCR Project because it believes that the
USFS's objective is to produce timber rather than to
address the risk of wildfire. Pls.' Br.  at 1. The
Project is expected to yield double the normal annual timber
volume produced by the MHNF. Id. at 2. The CCR
Project will affect 11, 742 acres and Bark alleges that 2,
970 acres are in “mature, old-growth forests.”
Id. at 16. The Project includes 358 acres in the
White River Late Successional Reserve (LSR), which is 34, 500
acres large. Def.'s Br.  at 32. The remaining 11, 384
acres of the Project are on land designated for timber
harvest (“Matrix” land). Def.'s Reply. 
at 5. The CCR Project will also impact areas that can be used
by the Northern Spotted Owl (NSO), a threatened species. One
thousand fifty-nine acres of NSO “suitable nesting,
roosting, and foraging habitat” will be downgraded to
dispersal habitat. Def.'s Br.  at 19. Another 859
acres of NSO dispersal habitat will be removed. Id.
USFS approved the CCR Project after issuing an EA in which
the proposed action and a “no action” alternative
were considered. The USFS approved the CCR Project with a
Finding of No. Significant Impact (FONSI) and a Decision
Notice, both issued on June 27, 2018. AR 21071-82.
court's authority to review the actions of the Forest
Service concerning the CCR Project derives from the
Administrative Procedures Act, 5 U.S.C. § 706. The scope
of judicial review under § 706 is narrow: a court must
uphold an agency's action unless it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” § 706(2)(A).
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, 1156
(9th Cir. 2006)), overruled on other grounds by Am.
Trucking Ass'ns Inc. v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009). If the agency
“considered the relevant factors and articulated a
rational connection between the facts found and the choice
made, ” a court must uphold the agency's action.
Balt. Gas & Elec. Co. v. Nat. 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.
a court must be “at its most deferential” when
reviewing scientific judgments and technical analyses within
the agency's expertise. Balt. Gas & Elec.
Co., 462 U.S. at 103. It should not “act as a
panel of scientists that instructs the Forest Service . . .,
chooses among scientific studies . . ., and orders the agency
to explain every possible scientific uncertainty.”
Lands Council, 537 F.3d at 988. A 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,
462 F.3d 1, 12 (D.C. Cir. 2006)). “When 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. Nat. Res. Council, 490 U.S. 360, 378
National Environmental Policy Act
has two principal aims. First, NEPA requires government
agencies to “consider every significant aspect of the
environmental impact of a proposed action.” Balt.
Gas & Elec. Co., 462 U.S. at 97 (quoting Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc., 435 U.S. 519, 553 (1978)). Second, NEPA guarantees
that relevant information about a proposed action is
available to the public. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989). “NEPA
is a procedural statute that does not ‘mandate
particular results, but simply provides the necessary process
to ensure 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 (9th Cir. 2004) (quoting Neighbors of Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir.
2002)). 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).
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 639-40 (citing Nat'l Parks & Conservation
Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir.
2001)). “Even though an EA need not ‘conform to
all the requirements of an EIS,' it must be
‘sufficient to establish the reasonableness of th[e]
decision' not to prepare an EIS.” Ctr. for
Biological Diversity v. Nat'l Highway Traffic Safety
Admin., 538 F.3d 1172, 1215 (9th Cir. 2008) (quoting
Found. for N. Am. Wild Sheep v. U.S. Dep't of
Agr., 681 F.2d 1172, 1178 (9th Cir. 1982)). An EA is
“a concise public document” that serves to:
(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 a statement when one is
40 C.F.R. § 1508.9(a)(1)-(3).
EA must include ‘brief discussions' of the need for
the proposal, of reasonable alternatives, and of the
anticipated environmental impacts.” Hapner v.
Tidwell, 621 F.3d 1239, 1244 (9th Cir. 2010) (citing 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. FERC, 572
F.3d 1003, 1016 (9th Cir. 2009) (quoting LaFlamme v.
FERC, 852 F.2d 389, 397 (9th Cir. 1988)). Whether or not
a project's effect will be “significant”
requires consideration of “context” and
“intensity.” 40 C.F.R. § 1508.27. Context
refers to the setting in which intensity is analyzed and
intensity is defined as the severity of the proposed
action's impact, as measured by ten nonexclusive factors.
§ 1508.27(a), (b)(1)-(10). A court may find a
substantial risk of a significant effect based on just one of
these factors. Ocean Advocates v. U.S. Army Corps of
Eng'rs, 402 F.3d 846, 865 (9th Cir. 2004).
spends little time discussing the context of the CCR Project.
This is unsurprising, as few courts addressing context go
beyond a recitation of the regulatory definition. But see
Anderson v. Evans, 371 F.3d 475, 490 (9th Cir. 2004).
The regulatory definition states that the context of an
action can be “society as a whole (human, national),
the affected region, the affected interests, and the
locality. . . . [I]n the case of a site-specific action,
significance would usually depend upon the effects in the
locale rather than in the world as a whole.” 40 C.F.R.
§ 1508.27(a). Neither this regulation nor subsequent
caselaw provides much further illumination.
states that the significance of site-specific projects
depends on “effects in the locale, ” but it does
not articulate the boundaries of the relevant locale for
several of the intensity factors, leaving me to determine
whether the locale is the entire MHNF, the Project area, or
particular stands of trees. Pls.' Br.  at 9. The USFS
provides some useful information about the Project area that
suggests the relevant context in this case is the MHNF. The
USFS highlights the fact that thinning will take place on
only one percent of the MHNF. Def's Br.  at 13. The
USFS also states that ninety-seven percent of the CCR Project
will take place on Matrix lands, which are designated for
timber production under the NWFP. Finally, the USFS argues
that I must consider the effects of the CCR Project in the
context of a forest that has departed from its natural
conditions due to human intervention. Def.'s Reply 
context for evaluating the intensity factors to determine
whether the CCR Project may have a significant effect is the
“the locale, ” which I understand to extend at
least as far as the boundaries of the MHNF for some of the
intensity factors. The USFS's characterization of the
Project area is a useful baseline for measuring the effects
of the Project when evaluating the intensity factors.
argues that the CCR Project involves five intensity factors:
(1) highly controversial and uncertain environmental effects,
(2) an adverse effect on a threatened species and its
critical habitat, (3) the potential for a cumulatively
significant impact, (4) adverse effects on ecologically
critical areas, and (5) the violation of other legal
requirements. Pls.' Br.  at 10-20.
Highly Controversial and Uncertain ...