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Bark v. United States Forest Service

United States District Court, D. Oregon, Portland Division

June 18, 2019

BARK, CASCADIA WILDLANDS, OREGON WILD, and WILDEARTH GUARDIANS, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, Defendant, and HIGH CASCADE INC., Intervenor-Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         Bark 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.

         All 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 [18]. Order [44]. Bark then appealed and filed a Motion for an Injunction Pending Appeal [46]. After oral argument, I denied Bark's motion for an injunction in a written opinion and order on June 3, 2019. Order [63]. This opinion establishes the basis for my Order [44] on the parties' motions for summary judgment.

         BACKGROUND

         The 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.

         Bark 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. [18] 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. [29] at 32. The remaining 11, 384 acres of the Project are on land designated for timber harvest (“Matrix” land). Def.'s Reply. [35] 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. [29] at 19. Another 859 acres of NSO dispersal habitat will be removed. Id.

         The 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.

         STANDARD OF REVIEW

         This 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).

         An 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. 2004).

         Moreover, 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 (1989)).

         DISCUSSION

         I. National Environmental Policy Act

         NEPA 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).

         A 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 necessary.

40 C.F.R. § 1508.9(a)(1)-(3).

         “An 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).

         A. Significant Effects

         1. Context

         Bark 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.

         Bark 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. [18] 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. [29] 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 [35] at 7.

         The 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.

         2. Intensity

         Bark 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. [18] at 10-20.

         a. Highly Controversial and Uncertain ...


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