Conservation Congress et al v. United States Forest Service, No. 2:2007cv02764 - Document 73 (E.D. Cal. 2010)

Court Description: ORDER granting 61 Motion for relief from judgment signed by Senior Judge Lawrence K. Karlton on 9/14/10. (Kaminski, H)
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Conservation Congress et al v. United States Forest Service Doc. 73 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CONSERVATION CONGRESS and KLAMATH FOREST ALLIANCE, 11 NO. CIV. S-07-2764 LKK/KJM 12 13 Plaintiffs, v. O R D E R 14 UNITED STATES FOREST SERVICE, 15 Defendant. / 16 17 Plaintiffs Conservation Congress and Klamath Forest Alliance 18 have challenged the United States Forest Service’s proposed Pilgrim 19 Vegetation 20 Forest. 21 parties’ cross motions for summary judgment. 22 v. U.S. Forest Serv., 555 F. Supp. 2d 1093 (E.D. Cal. 2008). After 23 granting plaintiffs’ motion in part, the court “enjoin[ed] the 24 Pilgrim project and remand[ed] the matter to the agency for further 25 action consistent with [that] order.” 26 Management Project in the Shasta-Trinity National In an order filed May 13, 2008, the court resolved the Conservation Cong. Id. at 1110. The Forest Service moves for relief from that order. The 1 1 court resolves the matter on the papers and after oral argument. 2 For the reasons stated below, the Forest Service’s motion is 3 granted and the injunction is dissolved. I. Background 4 5 The 6 follows. 7 scope of the proposal has not changed. 8 court previously described the Pilgrim proposal as Neither party disputes that characterization, and the The Pilgrim project lies northeast of the community of McCloud, California. In recent years, the project area has experienced significant tree mortality from insect attacks in overcrowded portions of the forest and from root disease in ponderosa pine. AR[1] 521. According to defendant, the basic design of the Pilgrim Project contains four components. Id. First, the project will thin forest stands that are overcrowded and in which trees face over-competition for water and nutrients. Id. Second, the project will remove dead and dying trees from certain stands in order to control the spread of disease and infestation and allow the stands to regenerate. Id. Third, in connection with this sanitation harvest, the project will remove smaller, dense understory trees that act as fuel ladders to reduce the likelihood of catastrophic fires. AR 521-22. Fourth, the project will also remove overtopping conifers to allow oak and aspen stands currently being lost due to over-competition to reestablish themselves. AR 522. 9 10 11 12 13 14 15 16 17 18 19 20 The vegetation management treatments will take place on approximately 3,800 acres. AR 166. Specifically, the project will, among other 21 22 23 24 25 26 1 The court previously cited to the administrative record as “AR.” In the present motion, the Forest Service has submitted a supplemental administrative record containing documents considered or produced by the agency after judgment was entered. The court refers to the prior record as the “Administrative Record” or “AR” and to the new record as the “Supplemental Administrative Record” or “SAR.” 2 1 8 things, undertake the following: commercial thinning and sanitation harvest on 3,100 acres of assertedly overstocked coniferous stands, regeneration treatment in 415 acres of diseased and insect-infested stands and replanting with conifer seedlings, and restoration of 275 acres of dry meadows by removal of encroaching conifer trees. AR 155. With respect to the regeneration treatment on the 415 acres, the otherwise applicable standard of retaining 15% of the largest green trees (the “15% GTR” standard) will not be met on 255 acres, because defendant maintains that there are not enough disease-free trees to meet the standard. Id. 9 Conservation Cong., 555 F. Supp. 2d at 1097 (footnotes omitted). 2 3 4 5 6 7 10 Pursuant to the Forest Service’s obligations under the 11 National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f (“NEPA”) 12 and the National Forest Management Act, 16 U.S.C. § 1600 et seq. 13 (“NFMA”), the Forest Service prepared an Environmental Impact 14 Statement (“EIS”) for the Pilgrim project.2 15 “to estimate the effects of [the proposed project] on fish and 16 wildlife populations.” 17 1101. 18 proxy” approach in an attempting to meet this obligation. 19 than estimate effects on all species directly, the Forest Service 20 identified five “assemblages” of multiple species, and selected an 21 individual species that would serve as the proxy for the health of 22 each assemblage. The EIS was required Conservation Cong., 555 F. Supp. 2d at The court interpreted the EIS as having used a “proxy-onRather This species was referred to as the “management 23 24 25 26 2 Available at project_content.php?project=4254 (click “Final Environmental Impact Statement [includes appendices and maps]”) (last visited Sept. 5, 2010). 3 1 indicator species” or “MIS.” Then, rather than predict the effects 2 the project would have on indicator species directly, the Forest 3 Service used habitat as a proxy for the indicator species’ health. 4 The court held that this analysis was inadequate with respect 5 to mule deer, the species used to represent the “open and early 6 seral” 7 nuthatch, the species used to represent the “late seral” and “snag 8 and down log” assemblages. Id. at 1103-04. For these species, the 9 Forest Service had not shown “an accurate and reliable correlation 10 between habitat health and species health,” so it was inappropriate 11 to use the former as a proxy for the latter. 12 court therefore enjoined the project and remanded to the Forest 13 Service. 14 On and “multi-habitat” remand, the Forest assemblages, Service and the red-breasted Id. at 1101-04. completed a The supplemental 15 environmental impact statement (“SEIS”).3 16 moves for relief from that injunction under Fed. R. Civ. P. 17 60(b)(5). 18 additional data and analysis demonstrating that habitat is an 19 appropriate 20 populations. 21 statutes, regulations, and forest plans permit the Forest Service 22 to monitor habitat directly, dispensing with the proxy-on-proxy 23 approach. The Forest Service now The Forest Service contends that the SEIS provides proxy for mule deer and red-breasted nuthatch The Forest Service also contends that the governing Plaintiffs oppose this motion. 24 3 25 26 Available at http://www.fs.f nepa/ project_content.php?project=4254 (click “Final Supplemental Environmental Impact Statement - January 2010") (last visited Sept. 5, 2010). 4 II. Standard 1 2 A. Standard for a Fed. R. Civ. P. 60 Motion for Relief from a 3 Judgment 4 Fed. R. Civ. P. 60(b)(5) provides that a party may obtain 5 relief from a court order when “the judgment has been satisfied, 6 released, or discharged . . . or applying it prospectively is no 7 longer equitable.” See Rufo v. Inmates of the Suffolk County Jail, 8 502 U.S. 367 (1992). 9 burden of proving that a significant change of circumstances The party seeking the modification bears the 10 warrants the modification of the prior order. Id.; Bellevue Manor 11 Associates v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999). 12 In this situation, the proposed modification must be tailored to 13 the changed circumstance. 14 Alternatively, the modification may be made if the party seeking 15 it shows that “enforcement of the decree without modification would 16 be detrimental to the public interest.” 17 B. Bellevue Manor, 165 F.3d at 1255. Rufo, 502 U.S. at 384. Standard for Review of Agency Action under 5 U.S.C. § 706(2) 18 In reviewing whether the SEIS has satisfied the prior order 19 and renders prospective application thereof inequitable, the court 20 again applies the standard for review of agency action contained 21 in the Administrative Procedure Act (“APA”). 22 The APA authorizes the court to set aside agency action that 23 is “arbitrary, capricious, an abuse of discretion, or otherwise not 24 in accordance with the law.” 25 decision is arbitrary or capricious where the agency “relied on 26 factors Congress did not intend it to consider, entirely failed to 5 U.S.C. § 706(2)(A). 5 An agency 1 consider 2 explanation that runs counter to the evidence before the agency or 3 is so implausible that it could not be ascribed to a difference in 4 view or the product of agency expertise.” Lands Council v. McNair, 5 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quotations omitted). 6 The agency “must articulate a rational connection between the facts 7 found and the conclusions reached.” 8 Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006) (citing Midwater 9 Trawlers Co-op v. Envtl. Def. Ctr., 282 F.3d 710, 716 (9th Cir. 10 an important aspect of the problem, or offered an Earth Island Inst. v. U.S. 2002)). 11 This standard is especially appropriate when reviewing factual 12 determinations that implicate an agency’s scientific expertise. 13 Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, BLM, 273 F.3d 14 1229, 1236 (9th Cir. 2001). 15 however, a court must intervene when the agency’s determination is 16 counter to the evidence or otherwise unsupported. 17 Sierra Club v. U.S. Envtl. Prot. Agency, 346 F.3d 955, 962 (9th 18 Cir. 2003), amended by 352 F.3d 1187 (9th Cir. 2003) (rejecting 19 agency’s factual conclusion about cause of air quality exceedance). 20 III. Analysis 21 A. Even for scientific questions, See, e.g., Statutory and Regulatory Background 22 NFMA imposes various substantive obligations on the Forest 23 Service, including the obligation to “provide for diversity of 24 plant 25 capability of the specific land area in order to meet overall 26 multiple-use objectives.” and animal communities based on the suitability 16 U.S.C. § 1604(g)(3)(B). 6 and 1 NFMA sets forth two levels of “procedures” to be used in 2 meeting this obligation. Lands Council, 537 F.3d at 988. The 3 Forest Service must develop general plans for land management and 4 ensure that individual projects comply with the statute and plans.4 5 1. Forest Plans 6 At the more general level, the Forest Service adopts Land and 7 Resource Management Plans. “These plans operate like zoning 8 ordinances, defining broadly the uses allowed in various forest 9 regions, setting goals and limits on various uses . . . but [the 10 plans] do not directly compel specific actions.” Citizens for 11 Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th 12 Cir. 2003). 13 Northwest Forest Plan, which pertains solely to the northern 14 spotted owl and spans many national forests. 15 held that the Pilgrim project EIS’s discussion of the northern 16 spotted owl was adequate, and plaintiffs present no arguments 17 relating to the northern spotted owl in opposition to the present 18 motion. 19 here. 20 Resource Management Plan, referred to hereinafter as the “Shasta Two such plans cover the Pilgrim project. One is the The court previously Accordingly, the Northwest Forest Plan is not at issue The second is the Shasta-Trinity National Forest Land and 21 22 23 4 24 25 26 A third and more general level of procedures is NFMA’s requirement that the Forest Service promulgate regulations implementing NFMA. Citizens for Better Forestry v. U.S. Dep’t of Agric., 632 F. Supp. 2d 968, 970 (N.D. Cal. 2009) (citing Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 965 (9th Cir. 2003)). 7 1 Forest Plan.”5 2 The Shasta Forest Plan directs the Forest Service to perform 3 extensive periodic “monitoring,” including monitoring of various 4 wildlife characteristics. 5 types of wildlife monitoring, including “validation” monitoring, 6 which is conducted every ten years “to determine if changes are 7 needed in management practices . . . to provide adequate protection 8 to wildlife,” Shasta Forest Plan at 5-16, AR 4306; 9 monitoring” which reports every five years on the “management 10 indicator assemblages,” id.; and various types of “implementation 11 monitoring” on various timeframes, including monitoring to “ensure 12 that management requirements and standards and guidelines are being 13 met or exceeded with on-the-ground activities,” Shasta Forest Plan 14 at 5-15, AR 4305.6 The monitoring plan calls for various “effectiveness 15 2. Project-Level Studies 16 NFMA also mandates management of national forests at the 17 “project” level. 18 (9th 19 cooperative agreements, and other instruments for occupancy.” 20 Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, Cir. 2009). Ecology Center v. Castaneda, 562 F.3d 986, 990 “Projects” include “permits, contracts, 21 5 22 23 24 Available at FSE_DOCUMENTS/fsm9_008103.pdf, Internet/FSE_DOCUMENTS/fsm9_008111.pdf, and (last accessed Sept. 6, 2010). 6 25 26 The court reiterates its previous characterization of this monitoring plan as “rather inscrutable.” Conservation Cong., 555 F. Supp. 2d at 1099. 8 1 757 (9th Cir. 1996) (“Inland Empire”) (quoting 36 C.F.R. § 2 219.10(e)). 3 comply with NFMA’s statutory requirements, NFMA’s implementing 4 regulations, and the forest plan or plans encompassing the project 5 site. 6 Forest Service uses NEPA’s EIS process to determine whether a 7 proposed project will satisfy these requirements. 8 88 F.3d at 757. In an EIS, the acting federal agency must describe 9 a reasonable range of alternatives for action, the predicted 10 environmental consequences of each, and the reasons underlying the 11 agency’s selection of one action over the others. 12 applicable NFMA regulations, the Forest Service’s assessment must 13 be based on the “best available science.” 14 at 990 (citing 36 C.F.R. § 219.35(a) (2001); 69 Fed. Reg. 58,057 15 (Sept. 29, 2004)).7 Under this scheme, individual project proposals must 16 U.S.C. § 1604(i), Lands Council, 537 F.3d at 989. The Inland Empire, Under the Ecology Ctr., 562 F.3d 16 17 18 19 20 21 22 23 24 25 26 7 The court previously did not decide whether 1982 or 2000 version of the regulations governed. Conservation Cong., 555 F. Supp. 2d at 1098. The Ninth Circuit has subsequently explained that the 2000 regulation’s “best available science” requirement governs, such that the superceded requirements of the 1982 regulation apply “only to the extent [that] they were incorporated into the [applicable] Forest Plan.” Ecology Ctr., 562 F.3d at 99091. Here, plaintiffs argue that the Forest Service is also bound by the 1982 regulation, because the Shasta Forest Plan must have implicitly incorporated it. Absent such a incorporation, plaintiffs argue, “the court would have to find that the [Shasta Forest Plan] was out of compliance with the governing Forest Plan regulations for 15 years.” Pls.’ Opp’n at 8. Plaintiffs are incorrect. Projects and management are governed by statute, regulations, and the applicable forest plan. Lands Council, 537 F.3d at 989. Thus, the court need not assume that the plan implicitly but completely restated all obligations as they stood at the time the plan was adopted. 9 1 Much confusion in this case stems from plaintiffs’ conflation 2 of monitoring with prediction. Monitoring looks to conditions as 3 they currently exist. The Forest Service may determine the present 4 status of wildlife by directly surveying wildlife populations, or 5 by using a heuristic such as proxy-on-proxy monitoring. 6 on the other hand, is necessarily a prediction, albeit one that is 7 informed by past monitoring. 8 that the EIS’s analysis of the proposal’s effects “must be informed 9 by” monitoring data) (emphasis added). The EIS, See SEIS L-26, SAR 1102 (explaining Because the project here 10 is essentially a modification of habitat, the EIS must predict the 11 ways in which the anticipated changes to habitat will change 12 wildlife populations and viability. 13 simple proxy-on-proxy methodology, predicting that changes in 14 species health will mirror the changes in habitat. 15 88 F.3d 754, 761-63. Alternatively, factors other than habitat may 16 be incorporated into the prediction. 17 v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1066 (9th Cir. 2004) 18 (prediction prepared pursuant to the Endangered Species Act used 19 habitat as a proxy, but also “[took] into account non-habitat 20 factors, including competition from other species, forest insects, 21 and 22 monitoring, the Forest Service may not predict the project’s 23 effects solely by referring to future habitat if the relationship 24 between habitat and species population is unexplained. 25 Ecosystems Council v. Tidwell, 599 F.3d 926, 936 (9th Cir. 2010) 26 (rejecting use of proxy-on-proxy to predict project’s effects where disease.”). Indeed, as with 10 One way to do so is to use a Inland Empire, Gifford Pinchot Task Force use of proxy-on-proxy for Native 1 MIS had previously declined despite preservation of habitat and the 2 Forest Service failed to “adequately discuss” this fact). 3 The court understands plaintiffs to argue that because of 4 uncertainty as to the relationship between habitat trends and 5 population trends, it is impossible to make an informed prediction 6 of the project’s effects absent a direct survey of the present 7 populations of the MISs. 8 nonetheless 9 plaintiffs further demand, “monitoring information . . . of the logically See Tidwell, 599 F.3d at 933. impossible to provide 10 effects of the sale on the relevant MIS.” 11 B. in the It is EIS, as Compl. ¶ 31. The Supplemental EIS’s Analysis of the Pilgrim Project 12 At issue here is whether the SEIS appropriately evaluated the 13 likely impacts of the proposed action and demonstrated that the 14 action will comply with the Forest Service’s obligation to “provide 15 for diversity of plant and animal communities.” 16 1604(g)(3)(B). 17 16 U.S.C. § The SEIS adopts a five-step process for “analyzing project 18 effects to management indicator assemblages.” 19 These steps are 20 1. Identifying which management indicator assemblages have habitat that would be either directly or indirectly affected by the project alternatives; these assemblages are potentially affected by the project. 21 22 23 2. Disclosing the LRMP forest-level or bioregional-level monitoring requirements for this subset of forest management indicator assemblages. 24 25 SEIS L-4, SAR 1077. //// //// 26 11 1 3. Analyzing project-level effects on management indicator assemblage habitats or habitat components for this subset. 2 3 4. Discussing the forest scale habitat trends and/or the bioregional population trends of representative species for this subset. 4 5 5. Relating project-level impacts management indicator assemblage habitat habitat at the forest scale and/or population trends of representative species the affected assemblages at the forest bioregional scale. 6 7 on to to of or 8 9 Id. Beginning with step one, “management indicator assemblage” is 10 a term defined in the Shasta Forest Plan. Shasta Forest Plan 3-24, 11 AR 4109. 12 vegetative communities or key habitat components.” 13 names nine such “wildlife assemblages,” which are named after 14 certain habitat characteristics. 15 summary 16 assemblage together with a non-exhaustive list of vertebrates 17 represented by the assemblage.8 18 Forest Service’s determination as to which assemblages will be 19 affected by the Pilgrim project. 20 motion are the “multi-habitat,” “snag and down log,” “late seral,” The assemblages are “groups of wildlife associated with of the habitat Id. Id. The plan The plan provides a brief characteristics associated with each Plaintiffs do not challenge the The four at issue in the present 21 22 23 8 24 25 26 In adopting the Shasta Forest Plan, the Forest Service listed the specific individual species associated with each assemblage, including individual species suggested for use as indicators for the broader assemblage. Pls.’ Opp’n Ex. B (Chapter III of the final EIS for the Shasta Forest Plan, explicitly incorporated into the plan at 3-14, AR 4109). 12 1 2 and “openings and early seral wildlife assemblage[s].”9 In the second step, the SEIS discussed Shasta Forest Plan’s 3 monitoring plan. In the present motion, the parties’ argument 4 concerning this plan and the SEIS’s summary thereof solely pertain 5 to whether the Forest Service could have predicted impacts on 6 wildlife using methods other than the one actually used here. That 7 question is not properly before the court. 8 The third and fourth steps in the SEIS’s analysis describe the 9 proposed project and the effects the project will have on habitat, 10 including the degree to which the project will shift habitat from 11 one assemblage type to another. 12 designated for “regeneration harvest” will be transformed from 13 “late seral” and “snag and down logs” habitat types to “open and 14 early seral” habitat. 15 challenge this aspect of the SEIS. 16 Rittenhouse, 305 F.3d 957, 967 (9th Cir. 2002) (rejecting use of 17 proxy-on-proxy analysis where the Forest Service has inaccurately 18 categorized and tallied habitat). For example, areas of the project SEIS L-17, SAR 1093. Plaintiffs do not C.f. Idaho Sporting Cong. v. 19 Finally, the fifth step “analyze[s] the habitat components of 20 each management indicator assemblage within the context of an 21 example species.” SEIS L-20, SAR 1096. These species are the mule 22 deer, red-breasted nuthatch and white-breasted nuthatch. For each, 23 9 24 25 26 A fifth assemblage, for “hardwoods,” will also be affected by the Pilgrim project. The court previously found the Forest Service’s analysis of this assemblage, as represented by the whitebreasted nuthatch, to be adequate. Conservation Cong., 555 F. Supp. 2d at 1104. Plaintiffs do not raise any arguments pertaining to the hardwood assemblage here. 13 1 the 2 characteristics used by the species, the effects the proposed 3 action 4 characteristics 5 relating to habitat, trends in habitat, and trends in species 6 abundance. Based on this information, the SEIS reached conclusions 7 regarding 8 species. 9 SEIS summarized and Thus, the the the various important project’s the Forest current condition alternatives to the likely Service would species, effects predicted on of the have habitat on habitat cumulative effects the three changes to example habitat, 10 predicted the effect that those changes would have on three species 11 identified as representatives of the various assemblages, and used 12 this analysis to inform its prediction of the effects the project 13 would have on the collections of species represented by the 14 assemblages. 15 uncanny resemblance to the proxy-on-proxy method. Nonetheless, the 16 Forest Service argues that it did not engage in proxy-on-proxy 17 analysis. It argues that the SEIS’s analysis of effects on species 18 did not simply assume that ‘x acres of habitat = y numbers of 19 species,’ instead incorporating some additional information. 20 Forest Service argued that it therefore analyzed impacts on habitat 21 components and that it separately analyzed impacts on species. 22 See, e.g., Def.’s Reply at 1. 23 an apparently similar analysis as proxy-on-proxy, the label is 24 unimportant. 25 The question is whether the relationship between habitat and 26 species health was such that the Forest Service’s use of habitat This method of analysis bears, at the very least, an The While the Ninth Circuit has labeled See Gifford Pinchot Task Force, 378 F.3d at 1066. 14 1 in this case was proper. 2 the additional analysis and information presented in the SEIS, the 3 court concludes that it was.10 4 1. Mule Deer 5 The prior As the court explains below, in light of EIS observed that mule deer populations were 6 generally in decline. Conservation Cong., 555 F. Supp. 2d at 1103 7 (citing AR 494). 8 the decline to loss of habitat, but the EIS also acknowledged that 9 others, including organizations discussed by plaintiffs, attributed It described various authorities that attributed 10 this decline to an increase in predation. 11 concluded that “‘[c]urrently, the available data is not sufficient 12 to conclude the causes of the decline [in mule deer abundance].’” 13 Id. (quoting AR 494). 14 was not possible to determine whether the past decline in deer 15 abundance were caused by the decrease in habitat, the prior EIS had 16 not shown that habitat was sufficiently correlated with species 17 health to support the use of proxy-on-proxy analysis in predicting 18 the project’s effects on assemblages represented by mule deer. Id. 19 at 1103-04. 20 21 The initial EIS Because the Forest Service stated that it In the SEIS, the Forest Service provides additional discussion of the relationship between mule deer abundance and habitat. The 22 23 24 25 26 10 The Forest Service further argues that, contrary to what was done here, “[i]t would have been wholly appropriate . . . if the Forest Service had ended its analysis with consideration of potential Project effects on [assemblage] habitat, alone.” Def.’s Mem. at 11. Because that counterfactual hypothetical is not before the court, any discussion of said approach would be an advisory opinion. 15 1 SEIS explains that “open and early seral” habitat within the Shasta 2 Trinity National Forest is decreasing, largely by growing into 3 “late seral” habitat, and that mule deer populations are also 4 decreasing, both in two geographic monitoring areas overlapping the 5 project area and statewide. 6 the previous EIS stated that the cause of the population decline 7 was unknown, the SEIS quotes studies by the California Department 8 of Fish and Game concluding that the long-term statewide decline 9 in deer abundance is “due largely to long-term declines in habitat SEIS 16–20, SAR 1039, 1043. Whereas 10 quality.” SEIS 18, L-28, L-30, SAR 1041, 1104, 1106. 11 explains the relationship between habitat and deer abundance as 12 being dominated by the availability of forage, SEIS 18, SAR 1041, 13 although the SEIS acknowledged the need for cover habitat as well, 14 SEIS L-20, SAR 1096. 15 The SEIS also specifically rejects the The SEIS hypothesis that 16 pressure from predators is the primary cause of mule deer decline. 17 The SEIS acknowledges that the Mule Deer Foundation takes a 18 contrary view, and that one study in the Sierra Nevada, which 19 apparently considered deer generally, found that slightly over half 20 (50.5%) of fawns succumbed to predators in their first year. 21 21, SAR 1044. 22 made 23 including poor maternal nutrition and lactation. 24 1041. 25 concluded that although multi-state studies indicated that mountain 26 lions were the primary predator, those studies “suggest[ed] that SEIS The SEIS took the view, however, that fawns were vulnerable to predators because of “resource stress,” SEIS 18, SAR Similarly, the California Department of Fish and Game 16 1 mountain lion predation did not regulate . . . deer populations.” 2 SEIS L-31, SAR 1107 (quotation omitted). For this reason, the SEIS 3 concludes that predation is in part a symptom of the underlying 4 habitat pressures. Id. 5 The Forest Service acknowledges that the issue is complex. 6 Plaintiffs take issue with the Forest Service’s statement in its 7 brief that the Forest Service “believes . . . that habitat loss, 8 rather than predation, is the more likely cause of the deer’s 9 population decline.” Def.’s brief at 12. This statement does not 10 demonstrate a concession that the data is too inadequate to support 11 a useful prediction.11 12 Finally, as noted above, the SEIS does not use acres of 13 habitat as an unadorned proxy for predicted deer populations. The 14 SEIS instead looks to particular habitat characteristics. The SEIS 15 acknowledges that the present ratio of forage to cover habitat 16 would ordinarily be “excellent” and that the project will shift 17 this ratio to favor forage. The SEIS further states, however, that 18 a countervailing trend in the project area is the transformation 19 of forage to cover through growth of the forest and that the poor 20 quality of forage habitat in the project area may limit the utility 21 of presently available forage. SEIS L-21, L-26, SAR 1097, 1102. 22 11 23 24 25 26 The court’s prior decision rested on the Forest Service’s statement that the available data were insufficient to support a conclusion, and the Forest Service has predictably responded by stating that the data are in fact sufficient. The court is wary of inviting agencies to overstate their confidence, claiming certainty when there is doubt. As explained in the body of this order, plaintiffs have not demonstrated that this is what occurred here. 17 1 The SEIS went on to conclude that “[n]either cover nor forage 2 quantity are limiting factors in this area. 3 water availability are limiting factors and are unlikely to change 4 given the project’s implementation.” SEIS L-23, SAR 1099 (emphases 5 in original). 6 were limited by forage and that the project would increase the 7 acreage 8 significantly benefit mule deer. 9 concluded that the project would not meaningfully alter trends in 10 of Forage quality and Thus, the SEIS concluded that although mule deer forage habitat, mule deer population. this increase was unlikely SEIS L-32, SAR 1108. to The SEIS Id. 11 Plaintiffs have not challenged (or even acknowledged) the 12 Forest Service’s findings regarding the interplay of habitat and 13 predation or the importance of water and forage quality rather than 14 mere acreage of forest habitat. Accordingly, the court cannot find 15 that the Forest Service’s findings regarding the project’s effects 16 on mule deer were arbitrary or capricious. 17 2. Red-Breasted Nuthatch 18 The SEIS, like the EIS, discusses the red-breasted nuthatch 19 to illustrate effects on “snag and down log” and “late seral” 20 assemblages. 21 these habitat types had been increasing. Conservation Cong., 555 22 F. Supp. 2d at 1104 (citing AR 505, 511). Red-breasted nuthatches 23 populations, however, revealed conflicting trends. In the project 24 area, there was a statistically insignificant increase. 25 locations, there had been insignificant decreases as well as a 26 significant increase. In the prior order, the court observed that both of In nearby Range wide, there was a statistically 18 1 significant increase 2 acknowledged that in light of these results, “‘it is hard to 3 conclude that there is any significant relationship between forest 4 wide increases in late seral assemblage habitat type and population 5 trends for the red-breasted nuthatch.’” 6 Accordingly, 7 inappropriate. the in court population. found Id. The EIS itself Id. (quoting AR 505). proxy-on-proxy analysis to be Id. 8 As with mule deer, the Forest Service now retreats from its 9 earlier statement of uncertainty regarding observed trends in 10 habitat and red-breasted nuthatch population. 11 deer, however, the Forest Service has itself collected additional 12 data in order to clarify the issue, including two years of direct 13 surveys of red-breasted nuthatch populations within the project 14 area. 15 nuthatches’ 16 meaningful change in population between the two years. 17 Tidwell, 599 F.3d at 933. SAR 1501-44. ongoing Unlike with mule These surveys demonstrated red-breasted presence in the project area, with no Id., c.f. 18 The Forest Service has also explained its earlier statement 19 that it was difficult to find a correlation between changes in 20 local 21 population. 22 observations are unreliable, such that the Forest Service concludes 23 that local habitat is correlated with actual changes in population. 24 The Forest Service bases this conclusion on the statements that 25 data over broader geographic scales is much more reliable, given 26 the transitory nature of the birds, that this data indicates an habitat and direct observations of changes in local In essence, the Forest Service argues that the 19 1 increase in population, and that there is not evidence of factors 2 that would cause local population trends to differ from the broader 3 trends. 4 SEIS 32, 42-43, SAR 1054, 1065-66. Although a pre-requisite to proxy-on-proxy analysis (or 5 similar methods) is a correlation between habitat and population, 6 the agency need not demonstrate this correlation specifically using 7 studies 8 generally does not require “on the ground” analysis to validate 9 modeling predictions. conducted in the project area. More broadly, NFMA Lands Council, 537 F.3d at 994 (overruling 10 Ecology Ctr. v. Austin, 430 F.3d 1057 (9th Cir. 205) and narrowly 11 construing Lands Council v. Forester of Region One of the U.S. 12 Forest Serv., 395 F.3d 1019, 1036 (9th Cir. 2005). Of course, even 13 when there is a generally recognized relationship, there can be 14 reason to believe that the general relationship is inapplicable to 15 a specific site, such that reliance on the general relationship is 16 inappropriate. 17 order is not inconsistent with the Ninth Circuit’s subsequent 18 decisions in Lands Council and Tidwell. 19 the Forest Service’s own statement that trends in local habitat and 20 observations of population were not “significant[ly] relat[ed],” 21 AR 505, rather than the lack of location-specific data per se. The 22 Forest Service has since explained that, despite some trends in 23 local 24 increasing, such that habitat remains correlated with actual 25 population. 26 Tidwell, 599 F.3d at 931-36. observation, it believes that This court’s prior The prior order rested on local populations Plaintiffs identify no specific fault with the above. 20 are They 1 simply note the difficulties inherent in securing population data 2 for mobile species such as red-breasted nuthatches, re-assert that 3 local observation data do not correlate with local changes in 4 habitat, and suggest that for some other indicator species it might 5 be possible to correlate local observations of population with 6 habitat (or, presumably, demonstrate that habitat and populations 7 were not correlated). 8 Forest Service must use the “best available” science, which will 9 sometimes still be imperfect. These arguments are unpersuasive. The Here, although the red-breasted 10 nuthatch does not lend itself to collection of location-specific 11 population data, plaintiffs have not demonstrated that any superior 12 species was available. 13 argument that either the northern spotted owl or black bear would 14 have been a better indicator species, notwithstanding the fact the 15 Shasta Forest Plan recommends these species but not the red- 16 breasted nuthatch for monitoring. Conservation Cong., 555 F. Supp. 17 2d at 1105, 1105 n.11; Pls.’ Opp’n, Ex. A, at 12. The court previously rejected plaintiffs’ 18 Having clarified the analysis of past monitoring data, the 19 SEIS predicts impacts on red-nuthatches, and thus on the “snag and 20 down log” and “late seral” wildlife assemblages in a manner similar 21 to the treatment of mule deer. 22 habitats of both types through thinning, but in these areas the 23 habitat will continue to provide the habitat characteristics relied 24 on by nuthatches, including “soft snags,” in excess of levels 25 mandated by the Shasta Forest Plan. 26 The project will convert some areas of late seral and snag and down 21 The project will affect some SEIS 28, 35, SAR 1051, 1058. 1 log habitat to open and early seral habitat, removing from those 2 areas soft snags and other habitat characteristics used by red- 3 breasted nuthatches for nesting. 4 these areas will nonetheless provide forage likely to be used by 5 the species and that this change is not of a magnitude that will 6 not harm the species. 7 analysis, 8 characteristic limiting red-breasted nuthatch populations in the 9 project areas is a characteristic that will not be altered by the the SEIS Id. Id. The SEIS concludes that In a final parallel to the mule deer concludes that the particular habitat 10 project, the availability of water. SEIS 29, 35, 45; SAR 1052, 11 1058, 1068. For these reasons, the SEIS concludes that the project 12 “will not alter or contribute to existing forest-wide habitat or 13 population trends for the red-breasted nuthatch.” 14 1126. 15 challenge this analysis. SEIS L-50; SAR Other than the arguments discussed above, plaintiffs do not 16 For these reasons, the court holds that the Forest Service’s 17 findings regarding the project’s effects on the red-breasted 18 nuthatch and associated wildlife assemblages were neither arbitrary 19 nor capricious. 20 C. 21 Best Available Science Finally, plaintiffs argue that the SEIS did not use the best 22 available science. This argument was not presented in plaintiffs’ 23 complaint or litigated in the prior motions, presumably because 24 plaintiffs contended that the original EIS was not subject to this 25 requirement, whereas all parties agree that the SEIS is. 26 court’s prior order did not decide whether the Forest Service’s use 22 The 1 of habitat in the EIS constituted best available science, although 2 the court rejected plaintiffs’ arguments that certain species would 3 provide better indicators than the species selected by the Forest 4 Service. 5 1105 n.11. Conservation Cong., 555 F. Supp. 2d at 1099 n.4, 1105, 6 The Forest Service has explained the reasons for its decision 7 to use habitat to monitor and predict effects for forest management 8 on species, and has concluded that method reflects the best 9 available science. AR 3111, SAR 1013. The justifications for use 10 of habitat data include the lack of fluctuation over short time 11 scales, credibility, amenability to remote sensing, and importance 12 of habitat in informing the Forest Service’s management of habitat 13 itself. 14 method of analysis is “outdated or flawed.” 15 Castaneda, 574 F.3d 652, 659 (9th Cir. 2009) (citing Trollers Ass’n 16 v. Gutierrez, 452 F.3d 1104, 1120 (9th Cir. 2006)). 17 Service relied on a range of scientific studies, a scientific 18 method previously upheld by the Ninth Circuit, and explained the 19 reasons 20 demonstrated, in light of the deference owed to the agency, that 21 any better science is available. 22 concludes that the Forest Service relied on the best available 23 science. for Plaintiffs have not demonstrated that this choosing this method. Ecology Ctr. v. Plaintiffs The Forest have not For these reasons, the court Id. IV. Conclusion 24 25 26 AR 3111. For the reasons stated above, the court ORDERS as follows: //// 23 1 2 1. Defendant’s motion for relief from judgment (Dkt. No. 61) is GRANTED. 3 IT IS SO ORDERED. 4 DATED: September 14, 2010. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24