Lands Council et al v. United States Forest Service, No. 2:2012cv00619 - Document 43 (E.D. Wash. 2014)
Court Description: ORDER Denying 22 the Plaintiffs' Motion for Summary Judgment and Granting 28 and 31 the Defendants' Motions for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (PL, Case Administrator)
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Lands Council et al v. United States Forest Service Doc. 43 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 6 THE LANDS COUNCIL, HELLS CANYON PRESERVATION COUNCIL, and LEAGUE OF WILDERNESS DEFENDERS -- BLUE MOUNTAINS BIODIVERSITY PROJECT, CV-12-619-FVS-1 7 Plaintiffs, 8 9 v. 10 11 UNITED STATES FOREST SERVICE, Defendant, 12 13 14 15 and ORDER DENYING THE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING THE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ASOTIN COUNTY, a political subdivision of the State of Washington, and AMERICAN FOREST RESOURCE COUNCIL, 16 Defendants/Intervenors 17 18 19 20 21 22 23 24 25 26 THIS MATTER came before the Court on December 18, 2013, based upon the parties’ cross motions for summary judgment. argued for the plaintiffs. States Forest Service. Sean T. Malone Julia S. Thrower argued for the United Scott W. Horngren argued for Asotin County and the American Forest Resource Council. For the reasons set forth below, the plaintiffs' motion is denied and the defendants' respective motions are granted. BACKGROUND The Blue Mountains are located in the northeast corner of the Order - 1 Dockets.Justia.com 1 State of Oregon and, to some extent, in the southeast corner of the 2 State of Washington. 3 In order to survive, vegetation must be able to withstand hot, dry 4 summers. 5 Mountains is the dry upland forest. 6 forest was dominated by large, old ponderosa pine trees. 7 The climate in the Blue Mountains is demanding. One of the vegetation groups that exists within the Blue At one time, the dry upland Ponderosa pine trees were important in life and in death. 8 dying, some of them remained standing. 9 “snag.” After A “standing dead tree” is a (Glossary to Final Environmental Impact Statement at 18 (AR- 10 29364).) 11 is 20 inches or more. 12 species of birds. 13 are grouped together under the heading “primary cavity excavators.” 14 As the name suggests, “[p]rimary cavity excavators create holes for 15 nesting or roosting in live, dead or decaying trees.” 16 Environmental Impact Statement at 3-121 (AR-29268).) 17 A large snag is one whose diameter at breast height (“DBH”) Large snags provide habitat for a number of Some of the species -- woodpeckers, for example -- (Final Large, old ponderosa pine trees no longer dominate the dry upland 18 forests. 19 attributable to logging; some of it is attributable to fire 20 suppression. 21 have changed. 22 birds that depended upon the conditions that once existed. 23 Their decline has been dramatic. Some of the decline is In any event, conditions within the dry upland forest The changes have been detrimental to those species of A significant part of the Blue Mountains is located within the 24 Umatilla National Forest. 25 into ranger districts. 26 Within the Pomeroy Ranger District, there is a 21,000-acre area that Order - 2 The Umatilla National Forest is divided One of them is the Pomeroy Ranger District. 1 the United States Forest Service refers to as “the South George 2 project planning area.” 3 Asotin County, Washington. 4 Most of the planning area is situated within Forests within the South George project planning area are 5 declining in health. 6 disease, and fire. 7 County. 8 located just to the west of Asotin County. 9 reminder of the devastation that such phenomena cause. 10 They have become susceptible to insects, Forest fires are a sensitive subject in Asotin In 2005 and 2006, major fires occurred on land that is The fires were a painful (Declaration of Brian Shinn (ECF No. 12) at 2.) 11 After studying the South George planning area, the Forest Service 12 published a Draft Environmental Impact Statement for a proposed “South 13 George Vegetation and Fuels Management Project.” 14 received comments from federal and state agencies, environmental 15 organizations, members of the timber industry, and concerned citizens. 16 During July of 2012, the Forest Service published a Final 17 Environmental Impact Statement (“FEIS”), which analyzed a number of 18 potential courses of action. 19 issued the “Record of Decision for the South George Vegetation and 20 Fuels Management Project.” 21 Project is to use environmentally responsible silvicultural techniques 22 in order to restore forests within the Project area to their 23 historical range of variability. 24 The Forest Service On July 17, 2012, the Forest Service Stated very broadly, the purpose of the The term “silviculture” is defined as “[t]he practice of 25 manipulating the establishment, composition, structure, growth, and 26 rate of succession of forests to accomplish specific objectives.” Order - 3 1 (Glossary at 17 (AR-29363).) Here, the Forest Service has decided to 2 (1) harvest timber on approximately 3,900 acres of land, (2) remove 3 trees that are likely to fall on roads, (3) burn approximately 3,000 4 acres of land, and (4) thin approximately 25 acres of forest that is 5 located within a Riparian Habitat Conservation Area. 6 those actions is to begin the process of restoring the forests in 7 question to their historical range of variability (“HRV”). 8 e.g., FEIS at S-3, (AR-29060)). 9 Statement, the term HRV “refers to the range of conditions and The purpose of (See, In the Final Environmental Impact 10 processes that are likely to have occurred prior to settlement of the 11 project area by people of European descent (approximately the mid 12 1800s), which would have varied within certain limits over time.” 13 (Glossary at 11 (AR-29357).) 14 As noted above, one of the areas that will be affected by the 15 Project lies within a Riparian Habitat Conservation Area. 16 definition of a “riparian area” is fairly concrete. 17 is simply “an area along a watercourse.” 18 definition of a Riparian Habitat Conservation Area (“RHCA”) is fairly 19 abstract. 20 RHCA includes “[p]ortions of watershed where riparian-dependent 21 resources receive emphasis, and management activities are subject to 22 specific standards and guidelines.” 23 The A riparian area Id. at 16 (AR-29362).) The For purposes of the Final Environmental Impact Statement, a Id. On December 10, 2012, three environmental organizations filed an 24 action seeking to enjoin the Project. 25 Council. 26 is the League of Wilderness Defenders -- Blue Mountains Biodiversity Order - 4 One of them is The Lands A second is the Hells Canyon Preservation Council. A third 1 Project. They allege the Forest Service’s decision to proceed with 2 the Project violates both the National Forest Management Act, 16 3 U.S.C. §§ 1600-1687, and the National Environmental Policy Act, 42 4 U.S.C. §§ 4321-4370. 5 National Forest Management Act nor the National Environmental Policy 6 Act provides a private cause of action. 7 Institute v. United States Forest Service, 697 F.3d 1010, 1013 (9th 8 Cir.2012). 9 an agency decision under the Administrative Procedure Act, 5 U.S.C. § As the plaintiffs acknowledge, neither the See, e.g., Earth Island Nevertheless, the plaintiffs may obtain judicial review of 10 551-706. 11 action pursuant to 28 U.S.C. § 1331. 12 This Court has jurisdiction over the subject matter of the On April 25, 2013, both Asotin County and the American Forest 13 Resource Council received permission to intervene as defendants. 14 explained above, the proposed Project will take place on land that is 15 located in Asotin County. 16 proposed Project is necessary to prevent forest fires and that it will 17 provide jobs for a sparsely populated county whose residents 18 desperately need work. 19 is an organization that represents wood products companies throughout 20 the western United States. 21 purchase timber. 22 its member companies will lose an important source of timber. 23 As The county commissioners argue that the The American Forest Resource Council (“AFRC”) Several companies that belong to the AFRC If the proposed Project is enjoined, says the AFRC, The parties have filed cross motions for summary judgment. The 24 Rule 56 standard is well established. 25 judgment if the movant shows that there is no genuine dispute as to 26 any material fact and the movant is entitled to judgment as a matter Order - 5 "The court shall grant summary 1 of law." 2 thing: Fed.R.Civ.P. 56(a). The moving parties agree about one There is no genuine issue of material fact. 3 STANDARD OF REVIEW 4 The Court must set aside the Forest Service’s decision to proceed 5 with the South George Vegetation and Fuels Management Project if the 6 decision was “arbitrary, capricious, an abuse of discretion, or 7 otherwise not in accordance with law[.]” 8 However, review under the arbitrary and capricious standard is narrow. 9 Earth Island Institute, 697 F.3d at 1014 (internal punctuation and 10 11 12 13 14 15 citation omitted). 5 U.S.C. § 706(2)(A). The Ninth Circuit has explained: "An agency action is arbitrary and capricious if the agency . . . relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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." 16 See, e.g., Confederated Tribes of the Umatilla Indian Reservation v. 17 BPA, 342 F.3d 924, 928 (9th Cir.2003) (quoting Motor Vehicle Mfrs. 18 Ass'n v. State Farm, 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 19 (1983) (hereinafter "Confederated Tribes"). 20 INTRODUCTION TO THE PLAINTIFFS’ ALLEGATIONS 21 A. National Forest Management Act 22 The National Forest Management Act “provides both procedural and 23 substantive requirements. Procedurally, it requires the Forest 24 Service to develop and maintain forest resource management plans.” 25 Ecology Center v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009) 26 (citation omitted). Order - 6 A forest plan “is a broad, long-term planning 1 document for an administrative unit of the National Forest System. 2 forest plan establishes goals and objectives for management of forest 3 resources.” 4 U.S.C. § 1604(g)(1)-(3)). 5 the Umatilla National Forest Land and Resources Management Plan. 6 Hereinafter, it will be referred to as either "the Umatilla National 7 Forest Plan" or, simply, "the Plan." 9 Earth Island Institute, 697 F.3d at 1014 (citing 16 In this case, the relevant forest plan is The Forest Service adopted the Plan in 1990. 8 A Forest Plan at __ (AR-5051).) (Umatilla National A forest plan can be, and frequently 10 is, amended by the Forest Service. 11 is no exception. The Umatilla National Forest Plan It was amended twice during 1995. The first of the two 1995 amendments was Forest Plan Amendment 12 13 #10. (FEIS at 1-10, 1-11 (AR-29092, AR-29093).) It has a daunting 14 title: 15 Impact, Environmental Assessment, for the Interim Strategies for 16 Managing Anadromous Fish-producing Watersheds in Eastern Oregon and 17 Washington, Idaho, and Portions of California.” 18 parties rarely use the formal title of Amendment #10. 19 typically refer to it as “PACFISH.” 20 AR-29093).) 21 Hereafter, Amendment #10 will sometimes be referred to as the “Interim 22 Strategies for Managing Anadromous Fish-producing Watersheds,” and 23 sometimes it will be referred to as “PACFISH.” 24 in greater detail below, PACFISH provides “protection for fish 25 habitat, particularly regarding activities within riparian areas.” 26 (Id. at 1-11 (AR-29093).) “Decision Notice/Decision Record, Finding of No Significant Order - 7 (AR-9001.) The Instead, they (FEIS at 1-10, 1-11 (AR-29092, This order generally follows the parties' practice. As will be explained 1 The other amendment that occurred in 1995 is Amendment #11. It’s 2 title is equally daunting: 3 Continuation of Interim Management Direction Establishing Riparian, 4 Ecosystem and Wildlife Standards for Timber Sales.” 5 again, the parties rarely use the formal title of Amendment #11. 6 Instead, they typically refer to it as the “Eastside Screens.” 7 at 1-11 (AR-29093).) 8 sales in the Umatilla National Forest. 9 “Decision Notice for the Revised (AR-9486.) Once (FEIS The Eastside Screens impose limits upon timber The Forest Service is satisfied the South George Vegetation and 10 Fuels Management Project is consistent with the Umatilla National 11 Forest Plan. 12 inconsistent with the Plan in two material respects. 13 they allege the Forest Service has failed to demonstrate the Project 14 preserves enough snag habitat in dry upland forest in order to ensure 15 the viability of primary cavity excavators. 16 plaintiffs allege the Forest Service has failed to demonstrate it is 17 appropriate to remove trees from land that is located within a 18 Riparian Habitat Conservation Area. The plaintiffs disagree. They claim the Project is To begin with, In addition, the 19 1. Snag Habitat 20 The Final Environmental Impact Statement includes an analysis of 21 snag habitat. Snag habitat varies among vegetation groups. 22 average, there are more large snags per acre is moist upland forest 23 (mixed conifer trees) than in dry upland forest (ponderosa pine 24 trees). 25 large snags per acre in moist upland forest and 1.1 large snags per 26 acre in dry upland forest. Order - 8 The Project area is no exception. On On average, there are 3 (FEIS at 3-122, Table 3-69 (AR-29269)). 1 The plaintiffs are concerned about the lack of large snag habitat 2 in dry upland forest. 3 upland forest in the Project area. 4 logged. 5 Forest Service intends to retain three large snags per acre in those 6 parts of the dry upland forest that are to be logged. 7 (AR-29269)). 8 9 There are approximately 2,950 acres of dry Of those acres, 926 will be (Logging will also take place in moist upland forest.) The (FEIS at 3-122 The plaintiffs question whether three large snags per acre is adequate to maintain the viability of primary cavity excavators in the 10 Project area. Even if it is, the plaintiffs submit the Forest 11 Services faces a problem. 12 per acre in dry upland forest in the Project area. 13 case, say the plaintiffs, the Forest Service cannot accomplish its 14 objective of retaining three large snags per acre. 15 opinion, this means there will not be enough large snag habitat to 16 maintain the population of primary cavity excavators in dry upland 17 forest. On average, there are only 1.1 large snags That being the In the plaintiffs’ 18 2. Tree Removal in Riparian Habitat Conservation Area 19 George Creek flows through the Project area. An unnamed stream 20 flows into George Creek. 21 some trees from 25 acres of forest that lie along the unnamed 22 tributary. 23 forest fire. 24 in question are located in a Riparian Habitat Conservation Area 25 (“RHCA”). 26 will be recalled, the term “PACFISH” refers to one of the 1995 Order - 9 The Forest Service has decided to remove The purpose of the tree removal is to reduce the risk of The plaintiffs object to the tree removal. The 25 acres Removal of trees within a RHCA is governed by PACFISH. As 1 amendments to the Umatilla National Forest Plan. (“Interim Strategies 2 for Managing Anadromous Fish-producing Watersheds,” Appendix C, (AR- 3 9001).) 4 Management” in a RHCA. 5 argue the proposed tree removal does not satisfy the relevant 6 requirements. PACFISH establishes “Standards and Guidelines” for “Timber (Id. at C-910 (AR-9139).) The plaintiffs 7 B. National Environmental Policy Act 8 The Forest Service had a duty, under the National Environmental 9 Policy Act, to take a “hard look” at the environmental consequences of 10 the South George Vegetation and Fuels Management Project. See Native 11 Ecosystems Council v. United States Forest Service, 428 F.3d 1233, 12 1240 (9th Cir.2005). 13 an inventory of potential wilderness areas that exist within the 14 Project area. 15 identify the boundaries for potential wilderness areas. 16 make the identification of wilderness boundaries easier, the Forest 17 Service decided to exclude from potential wilderness areas all land 18 that is located within 300 feet of a road. 19 by imposing a 300-foot buffer along roads, the Forest Service 20 arbitrarily excluded land from potential wilderness areas that is 21 suitable for inclusion in them. Among other things, the Forest Service completed As part of the process, the Forest Service had to In order to The plaintiffs argue that, 22 1982 RULE 23 One of the principal issues in this case is whether the South 24 George Vegetation and Fuels Management Project is consistent with the 25 Umatilla National Forest Plan. 26 Service and the defendant intervenors say “Yes.” Order - 10 The plaintiffs say “No.” The Forest Why have they 1 reached different conclusions? 2 with respect to what the Plan requires of the Forest Service. 3 In part, it is because they disagree The plaintiffs submit the Plan incorporates a set of regulations 4 that have come to be known as “the 1982 rule.” 5 summarized the 1982 rule in Earth Island Institute v. United States 6 Forest Service: 7 8 9 10 11 12 13 14 15 16 17 The Ninth Circuit Under NFMA, the Secretary [of Agriculture] was required to promulgate regulations that set out guidelines and standards to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area . . . .” 16 U.S.C. § 1604(g)(3)(B). Accordingly, in 1982 the Forest Service issued planning regulations (known as the 1982 rule) to implement NFMA's viability requirements. The 1982 rule “require[d] the Forest Service to identify and monitor management indicator species (‘MIS’) and direct[ed] that ‘fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species.’” [Ecology Center v. Castaneda, 574 F.3d 652, 657 (9th Cir.2009)] (quoting 47 Fed. Reg. 43,048 (Sept. 30, 1982)); see also 36 C.F.R. § 219.19 (1982). 18 Earth Island Institute, 697 F.3d at 1013-14 (emphasis added).1 Does 19 the 1982 rule apply in this case? The answer to that question depends 20 upon whether the requirements of the 1982 rule were incorporated into 21 the Umatilla National Forest Plan. See id. 22 It is appropriate, then, to turn to the text of the Plan. It is 23 divided into chapters. Within Chapter 2, there is a section that is 24 25 26 1 The 1982 Rule was set forth in a prior version of 36 C.F.R. pt. 219. See, e.g., Earth Island Institute v. Carlton, 626 F.3d 462, 476 (9th Cir.2010). Order - 11 1 entitled “Wildlife.” 2 addresses “Indicator Species.” 3 citation to § 219.19 (i.e., “the 1982 rule”): 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Within that section, there is a subsection that And within that subsection, there is a Seven fish and wildlife indicator species were selected to represent animals associated with the major habitat types on the Forest. The habitat requirements of the selected indicator species are presumed to represent those of a larger group of wildlife species. Habitat conditions for management indicator species, as well as for all other wildlife species on the Forest, will be managed to maintain viable populations (36 CFR 219.19). (Umatilla National Forest Plan at 2-9 (AR-5078).) (Emphasis added.) Not only does the Plan cite 36 C.F.R. § 219.19, say the plaintiffs, but also there are provisions in Chapter Four of the Plan that indicate the 1982 rule applies to the South George Vegetation and Fuels Management Project. Chapter Four of the Umatilla National Forest Plan is entitled “Forest Management Direction.” of sections. Chapter Four is divided into a number One of the sections in Chapter Four is entitled “Forest- Wide Standards and Guidelines.” One of the subsections in “Forest- Wide Standards and Guidelines” addresses “Wildlife Habitat.” And one of the subsections within “Wildlife Habitat” addresses “Dead and Down Tree Habitat.” The plaintiffs place great weight upon the first sentence of paragraph 2, which is located on page 4-57. It states in part, “Unless specified in management area direction, as a minimum, provide the required numbers and sizes of hard snags throughout the Forest to maintain primary cavity excavators at 40 percent of their potential population throughout their present range.” Order - 12 (Umatilla 1 2 National Forest Plan at 4-57 (AR-5171).) The preceding quotation is located in a section of Chapter Four 3 that is entitled “Forest-Wide Standards and Guidelines.” The 4 following section in Chapter Four is entitled “Management Areas.” 5 “Introduction” to that section states in part, “Management Areas 6 provide the multiple-use direction for managing specific areas of 7 land.” (Id. at 4-94 (AR-5208).) 8 Areas. Id. 9 and Fuels Management Project provides that logging will take place in The Table 4-23 lists 25 Management As the plaintiffs point out, the South George Vegetation 10 a number of Management Areas that are listed in Table 4-23. 11 areas include A6, C1, C3, C3A, C4, and C5. 12 review the Plan’s discussion of Management Area C3, which addresses 13 “Big Game Winter Range.” 14 tree habitat will be managed to provide or maintain 60 percent of the 15 potential population level for all primary cavity excavators as 16 described in Wildlife Habitats in Managed Forests (Thomas and others 17 1979).” 18 Affected It is instructive to The Plan provides in part, “Dead and down 4-153 (AR-5267). As explained above, the Umatilla National Forest Plan was amended 19 in 1995. 20 Screens) “directs the Forest Service to use [the] best available 21 science to maintain snags and green replacement trees greater than 21 22 inches diameter at breast height (‘dbh’) at 100 percent potential 23 population levels of primary cavity excavators.” 24 Response (ECF No. 31) at 9.) 25 defendants’ concession. 26 management areas within [the] South George Project, including A6, C1, Order - 13 The defendants concede Amendment # 11 (i.e., the Eastside (Memorandum in The plaintiffs seize upon the The plaintiffs maintain, “[F]or those 1 C3, C3A, C4, and C5 . . ., the South George Project must demonstrate 2 that sufficient large snags are provided to maintain viable 3 populations of primary cavity excavators in ponderosa pine habitat.” 4 (Combined Response-Reply to Federal Defendants’ Combined Motion (ECF 5 No. 34) at 4.) 6 We see, then, that the plaintiffs are relying upon provisions in 7 both Chapter 2 and Chapter 4 of the Umatilla National Forest Plan. 8 they point out, the 1982 rule is cited in Chapter 2. 9 As various sections in Chapter 4 emphasize the importance of retaining Moreover, 10 snag habitat in maintaining populations of primary cavity excavators. 11 The plaintiffs argue that, when read together, the provisions from 12 Chapters 2 and 4 indicate that the Plan incorporates the 1982 rule. 13 The Forest Service seems to concede the Plan incorporates the 14 1982 rule at the planning level. 15 incorporates the 1982 rule at the planning level does not mean the 16 Forest Service must demonstrate a site-specific project complies with 17 the 1982 rule’s viability requirements. 18 697 F.3d at 1014 n.1. 19 Ninth Circuit ruled a forest plan incorporated certain elements of the 20 1982 rule, but only at the planning level, not at the project level. 21 Id. at 1014. 22 However, the fact a forest plan See Earth Island Institute, In Earth Island Institute, for example, the That is the position of the Forest Service in this case. The Forest Service also relies upon the text of the 1982 rule. 23 One section provides in pertinent part, “that ‘[f]ish and wildlife 24 habitat shall be managed to maintain viable populations of existing . 25 . . species in the planning area.’” 26 at 1015 (quoting 36 C.F.R. § 219.19 (1982)). Order - 14 Earth Island Institute, 697 F.3d It is important to 1 observe, says the Forest Service, that the 1982 rule does not state 2 that wildlife habitat shall be managed in such a manner so as to 3 maintain viable populations of existing species in the project area. 4 Rather, in those instances in which it has been incorporated into a 5 forest plan, the 1982 rule imposes a viability requirement with 6 respect to “the planning area.” 7 by a separate section. 8 Forest System covered by a regional guide or forest plan.’” 9 Environmental Congress v. Bosworth, 439 F.3d 1184, 1190 (10th The term “planning area” is defined The term means “‘[t]he area of the National Utah 10 Cir.2006) (quoting 36 C.F.R. 219.3). 11 Service, the 1982 viability requirement applies to forest-wide plans, 12 not to site-specific projects. 13 Thus, according to the Forest The Forest Service argues its interpretation of the Plan is 14 supported by the Plan’s text. 15 quotes from the subsection concerning “Dead and Down Tree Habitat.” 16 As observed above, paragraph 2 states in part, “Unless specified in 17 management area direction, as a minimum, provide the required numbers 18 and sizes of hard snags throughout the Forest to maintain primary 19 cavity excavators at 40 percent of their potential population 20 throughout their present range.” 21 weight upon the highlighted language in the preceding provision. 22 phrase refers to “hard snags throughout the Forest.” 23 the Forest Service to maintain primary cavity excavators throughout 40 24 percent of “their present range.” 25 Service, those phrases indicate the provision applies at the planning 26 level, not the project level. Order - 15 Like the plaintiffs, the Forest Service The Forest Service places great One Another requires In the opinion of the Forest 1 Having set forth the parties’ competing interpretations of the 2 Plan, the Court must determine which of the two is the more 3 persuasive. 4 the Plan cites 36 C.F.R. § 219.19. 5 reasonable to conclude the drafters of the Plan intended to draw upon 6 the 1982 rule to some extent. 7 argue the Plan incorporates the 1982 rule at the project level. 8 cite provisions in Chapters 2 and 4 of the plan. 9 provisions cited by the plaintiffs contain mandatory language. The plaintiffs’ interpretation is supported by the fact Given the citation, it seems But to what extent? The plaintiffs They Admittedly, the Does 10 that mean they should be read as binding agency regulations? 11 necessarily. 12 mandatory language does not transform an otherwise suggestive set of 13 guidelines into binding agency regulations.” 14 660 (internal punctuation and citation omitted). 15 In order to demonstrate the Plan incorporates the 1982 viability 16 requirements at the project level, the plaintiffs must be able to 17 identify clear language to that effect. 18 Institute, 697 F.3d at 1014 (“In [Earth Island Institute v. Carlton, 19 626 F.3d 462 (9th Cir.2010)], . . . we determined that a forest plan . 20 . . did not ‘clearly’ incorporate the [1982] viability requirements, 21 because it did not ‘contain[ ] specific provisions regarding wildlife 22 viability.’”). 23 passages they cite expressly requires the Forest Service to comply 24 with the 1982 rule at the project level. Indeed, many of the passages 25 seem to contemplate forest-wide polices. At most, the plaintiffs have 26 demonstrated the Plan is ambiguous with respect to whether the 1982 Order - 16 Not “The presence of a few, isolated provision cast in Castaneda, 574 F.3d at More is required. See, e.g., Earth Island The plaintiffs have not done so. Not one of the 1 rule is incorporated at the planning level or the project level. 2 Assuming some ambiguity exists, who is best qualified to determine 3 what the plan means? 4 reviewing court should defer to the Forest Service’s interpretation of 5 a forest plan unless its interpretation is plainly inconsistent with 6 the plan’s terms. 7 (internal punctuation and citation omitted). 8 exists in this case. 9 interpretation controls. The Ninth Circuit has answered that question. A See Earth Island Institute, 697 F.3d at 1013 No clear inconsistency Consequently, the Forest Service’s The Plan does not incorporate the 1982 rule 10 at the project level. It follows that the Forest Service is not 11 obligated to demonstrate the Project retains enough large snag habitat 12 in dry upland forest in the project area in order to maintain the 13 viability of primary cavity excavators. 14 must demonstrate enough snag habitat exists across the Umatilla 15 National Forest as a whole in order to maintain the viability of 16 primary cavity excavators. Rather, the Forest Service 17 SNAG HABITAT 18 The plaintiffs submit the Project fails to maintain adequate 19 habitat for primary cavity excavators in dry upland forests. 20 plaintiffs begin with the text of the Umatilla National Forest Plan. 21 As they read it, the Forest Service must preserve enough habitat to 22 ensure 100 percent population levels of primary cavity excavators. 23 Next, the plaintiffs turn to the Final Environmental Impact Statement. 24 The Forest Service has determined that, on average, it is necessary to 25 retain three large snags per acre in dry upland forest. 26 there are only 1.1 large snags per acre, on average, in the dry Order - 17 The However, 1 forests that are located within the project area, and there are only 2 2.02 large snags per acre, on average, in the dry upland forests 3 across the Umatilla National Forest as a whole. 4 than 3 large snags per acre in dry upland forests in either the 5 project area or across the forest as a whole, the plaintiffs argue the 6 Forest Service cannot fulfill its obligation to preserve enough 7 habitat for primary cavity excavators. 8 9 Since there are fewer The defendants submit the plaintiffs have misinterpreted the FEIS. As the defendants point out, the entire Project affects 3,900 10 acres of land, which is less than one percent of the forested land 11 that is located within the Umatilla National Forest. 12 upland forest, commercial logging will take place on 926 acres of 13 land. 14 snags on those 926 acres. 15 fact “‘a proposed project involves some disturbance to the forest does 16 not prohibit the Forest Service from assuming that maintaining a 17 sufficient amount of suitable habitat will maintain a species' 18 viability.’” 19 McNair, 537 F.3d 981, 997 (9th Cir.2008) (en banc)). 20 defendants observe, any diminution of snag habitat on the 926 acres in 21 question will be offset by the presence of snag habitat across the 22 forest as a whole. 23 similar to reference values (Mason and Countryman 2010). 24 indicate that overall available snag habitat is contributing to viable 25 populations of primary cavity excavators.” 26 Finally, the Forest Service insists it is taking steps to preserve Within dry In the near term, logging likely will result in fewer large Order - 18 That is a matter of concern. However, the Castenada, 574 F.3d at 663 (quoting Lands Council v. As the The FEIS states, “Forest wide, snag densities are This would 3-121 (AR-29268). 1 2 3 4 5 6 7 8 9 10 adequate snag habitat. They include: -- studying the manner in which snags are forming in the forest; -- leaving dense stands of trees in certain locations; -- retaining existing snags where possible; -- leaving large diameter trees in place; -- leaving at least 16 trees per acre; -- leaving smaller diameter snags; and -- refraining from piling slash against snags when burning land in order to protect existing snags. (Memorandum in Reply (ECF No. 36) at 8-9.) Given the record as a whole, the plaintiffs’ allegation of 11 inadequate snag habitat is unjustified. Forests within the Project 12 area are unhealthy. 13 Service has established a legitimate goal: 14 to conditions that existed before settlers began arriving during the 15 middle of the nineteenth century. 16 process of restoration will affect snag habitat. 17 has designed the Project in a manner that, in the opinion of the 18 Forest Service, will limit the disruption. 19 Service has assessed the amount of dry-forest snag habitat that exists 20 in the Project area and across the Umatilla National Forest as a 21 whole. 22 snag habitat exists to maintain the population of primary cavity 23 excavators. 24 Service’s assessment of the data is unreasonable. Remedial action is appropriate. The Forest Restore unhealthy forests The Forest Service is aware the The Forest Service Beyond that, the Forest The data complied by the Forest Service indicates adequate The plaintiffs have failed to demonstrate that the Forest 25 TREE REMOVAL IN RIPARIAN HABITAT CONSERVATION AREA 26 The Forest Service is proposing to remove a certain number of Order - 19 1 trees from 25 acres of forest that is located in a Riparian Habitat 2 Conservation Area. 3 trees. 4 provisions that, as explained above, are now commonly referred to as 5 “PACFISH.” 6 Forest Plan in 1995 via Amendment #10. 7 runs of anadromous fish. 8 fresh water, migrate to the ocean, mature there, and return to fresh 9 water to reproduce[.]” 10 11 Special procedures will be used to remove the (FEIS at 2-17 (AR-29116).) Tree removal is governed by The PACFISH provisions were added to the Umatilla National Their function is to protect “Anadromous fish” are “[f]ish that hatch in (Glossary at 2 (AR-29348).) Salmon and steelhead are familiar examples of anadromous fish. The Forest Service interprets the Umatilla National Forest Plan 12 as authorizing removal of trees from a RHCA as long as removal 13 satisfies the requirements of the relevant PACFISH standard. 14 Different types of activities are governed by different standards. 15 For example, there are separate standards for timber harvest, road 16 design, grazing, recreation, and forest fire prevention. 17 Strategies for Managing Anadromous Fish-producing Watersheds,” 18 Appendix C, at C-10 to C-18 (AR-9139 to AR-9146).) 19 argue the proposed tree removal is a type of timber management and, 20 thus, is governed by a timber management standard, viz., TM-1. 21 at C-10 (AR-9139).) 22 removal is consistent with either subsection (a) or subsection (b) of 23 TM-1: 24 25 26 (“Interim The plaintiffs (Id. If so, the Forest Service must demonstrate a. Where catastrophic events such as fire, flooding, volcanic, wind, or insect damage result in degraded riparian conditions, allow salvage and fuelwood cutting in Riparian Habitat Conservation Areas only where present and future Order - 20 woody debris needs are met, where cutting would not retard or prevent attainment of other Riparian Management Objectives, and where adverse effects on listed anadromous fish can be avoided. For watersheds with listed salmon or designated critical habitat, complete Watershed Analysis prior to salvage cutting in RHCAs. b. Apply silvicultural practices for Riparian Habitat Conservation Areas to acquire desired vegetation characteristics where needed to attain Riparian Management Objectives. Apply silvicultural practices in a manner that does not retard attainment of Riparian Management Objectives and that avoids adverse effects on listed anadromous fish. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Id. The plaintiffs have analyzed the tree removal that the Forest Service is proposing. According to them, the proposed removal does not satisfy the requirements of either subsection “a” or “b.” Consequently, they insist removal is prohibited by PACFISH. The defendants argue TM-1 is inapplicable because the purpose of the tree removal is not timber management. Rather, as the defendants see it, the trees are being removed in order to reduce the risk of a crown fire occurring along the stream. spreads across the tops of trees.) (A crown fire is a fire that In the defendants’ opinion, the relevant PACFISH standard is FM-1, which governs “Fire/Fuels Management.” FM-1 states: Design fuel treatment and fire suppression strategies, practices, and actions so as not to prevent attainment of Riparian Management Objectives, and to minimize disturbance of riparian ground cover and vegetation. Strategies should recognize the role of fire in ecosystem function and identify those instances where fire suppression or fuel management actions could perpetuate or be damaging to longterm ecosystem function, listed anadromous fish, or Order - 21 1 designated critical habitat. 2 (“Interim Strategies for Managing Anadromous Fish-producing 3 Watersheds,” Appendix C, at C-15 (AR-9144).) 4 The plaintiffs allege FM-1 played no meaningful part in the 5 Forest Service’s decision to remove trees from the RHCA. Had FM-1 6 played a meaningful part, say the plaintiffs, it would have been cited 7 in the Final Environmental Impact Statement; but it was not cited 8 therein, a point the defendants concede. 9 the clearest explanation of the basis of the Forest Service's decision According to the plaintiffs, 10 to remove trees from the RHCA is contained in “Appendix C” to the 11 FEIS. 12 Eastside Screens. 13 refers to provisions that were added to the Umatilla National Forest 14 Plan via Amendment #11. 15 of trees from a RHCA is consistent with the Eastside Screens as long 16 as removal satisfies the provisions of PACFISH. 17 C-3 (AR-29448).) 18 which the Forest Service may authorize timber harvest activities in a 19 RHCA: 20 21 22 23 24 25 26 Appendix C addresses whether the Project is consistent with the As will be recalled, the term “Eastside Screens” Appendix C states, in part, that the removal (FEIS, Appendix C, at As a general rule, there are only two situations in 1. For catastrophic events such as fire, flooding, volcanic, wind or insect damage (when salvage harvest and fuelwood cutting is then allowed if compatible with riparian management objectives); and 2. When applying silvicultural practices to control stocking, reestablish and culture stands, and acquire desired vegetation characteristics in a manner that also meets riparian management objectives. (FEIS, Appendix C, at C-3 (AR-29448).) Order - 22 The Forest Service considered 1 the extent to which the Project’s proposed silvicultural actions would 2 affect RHCAs. 3 regard: . . . None of the silvicultural proposed actions (intermediate cutting, regeneration cutting, planting) will occur in any of the riparian habitat conservation areas established by PACFISH (FP amendment # 10). Special Exception: one specific RHCA location (Red Hill portion of the project area) comprising 24 acres is proposed for treatment (improvement cutting, noncommercial thinning, prescribed fire) as a case study or prototype to examine whether limited RHCA treatments are warranted or advisable in the future (Hanger 2009). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Forest Service made the following finding in that Id. The plaintiffs argue the above-quoted passage undermines the defendants’ present reliance upon FM-1. In the plaintiffs’ opinion, the Forest Service recognized the applicability of TM-1 when it prepared the FEIS. Nevertheless, as the plaintiffs’ view the record, the Forest Service decided it could unilaterally set aside the requirements of TM-1 in order to conduct a “case study” which would allow it to determine whether certain types of remedial action would be beneficial. helpful. The plaintiffs concede such a case study could be However, they deny the Forest Service has authority to unilaterally set aside the requirements of TM-1 in order to conduct such a study. In their opinion, the Forest Service must follow established procedure. If the Forest Service wants to modify the requirements of TM-1, say the plaintiffs, it must pursue an amendment of the Plan that authorizes it to conduct the study in question. It is true, as the plaintiffs allege and the defendants concede, Order - 23 1 that the FEIS does not cite RHCA standard FM-1 by name. 2 nothing in the FEIS suggests trees will be removed from the RHCA as 3 part of a timber management program. 4 reading of the FEIS indicates the purpose of tree removal is to reduce 5 the risk of fire. 6 illustrative: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 However, To the contrary, a balanced The following statement in the FEIS is No harvest will take place in RHCAs which are described below as they apply to this project except for two fuels treatments areas in RHCAs identified as RHCA units 1 and 2. Mechanical thinning will be used on approximately 25 acres to remove co-dominant conifers to reduce probability of crown fire initiation. (FEIS at 2-19 (AR-29118).) Looking at the FEIS as a whole, the Forest Service’s perspective is reasonably clear. The Forest Service never intended to remove trees from the RHCA as part of a timber management program. To the contrary, the Forest decided to remove the trees as a form of Fire/Fuels Management. This accurately characterizes the Forest Service's position even though the Forest Service did not cite FM-1 in the FEIS. Thus, contrary to the plaintiffs, the Forest Service’s reliance upon FM-1 at this juncture in the proceedings does not constitute an after-the-fact attempt to shore up its decision by invoking a new rationale. The Forest Service maintains it has authority under the Umatilla National Forest Plan to remove trees from a RHCA; provided, of course, the project is consistent with the provisions of the relevant PACFISH standard. The plaintiffs deny that FM-1 is the relevant standard and that the Forest Service relied upon FM-1 in designing the Project, but Order - 24 1 they concede the Forest Service is authorized to remove trees from a 2 RHCA without violating the Umatilla National Forest Plan as long as 3 the Forest Service complies with the relevant PACFISH standard. 4 explained above, the Forest Service’s decision to remove trees from 5 the RHCA is not an aspect of timber management. 6 an effort to reduce the risk of a crown fire along a stream in the 7 RHCA. 8 must satisfy. 9 As Rather, it is part of Consequently, FM-1 is the PACFISH standard the Forest Service The first sentence of FM-1 states, “Design fuel treatment and 10 fire suppression strategies, practices, and actions so as not to 11 prevent attainment of Riparian Management Objectives, and to minimize 12 disturbance of riparian ground cover and vegetation.” 13 Strategies for Managing Anadromous Fish-producing Watersheds,” 14 Appendix C, at C-15 (AR-9144).) 15 the term “Riparian Management Objectives.” 16 measures of stream and stream-side conditions that define good 17 anadromous fish habitat, and serve as indicators against which 18 attainment, or progress toward attainment, of the goals will be 19 measured.” 20 Management Objectives (“RMOs”) for streams in a Riparian Habitat 21 Conservation Area. 22 stream, viz., pool frequency, water temperatures, large woody debris, 23 bank stability, lower bank angle, and width/depth ratio. 24 Strategies for Managing Anadromous Fish-producing Watersheds,” 25 Appendix C, at C-6 (AR-9135).) 26 (Emphasis added.) (Glossary at 16 (AR-29362).) (“Interim The FEIS defines They are “[q]uantifiable PACFISH establishes Riparian The RMOs address critical attributes of a typical (“Interim The plaintiffs are concerned about the temperature of water in Order - 25 1 George Creek. They allege that removing trees from the area that 2 borders the unnamed tributary of George Creek will reduce shade and 3 that this will, in turn, increase the water temperature of the 4 tributary. 5 into George Creek, thereby increasing the temperature of George Creek 6 to the detriment of anadromous fish. 7 the Forest Service has considered. 8 29169)). 9 temperature increase in the tributary. The plaintiffs fear the tributary will feed warmer water This is a serious concern, one (FEIS at 3-21, 3-22 (AR-29168, AR- The Forest Service is taking steps to limit the risk of a For example, aquatic 10 specialists will be present when trees are marked for removal. 11 Overstory trees will be protected, and bank-and-channel stabilizing 12 trees will remain uncut. 13 Furthermore, the Forest Service has assessed the risk that warmer 14 water will flow into George Creek from the tributary and affect 15 anadromous fish. 16 subterranean flows occur between the project site and steelhead 17 habitat.” 18 may limit the risk that warm water will flow into George Creek. 19 is at least one other mitigating circumstance. 20 risk will occur during the middle of summer when the sun beats down on 21 the area. 22 tributary makes up about one quarter of the flow of George Creek at 23 the confluence of the two streams. 24 the totality of the circumstances, the Forest Service determined “it 25 is unlikely that there would be a measurable water temperature 26 increase in George Creek from the RHCA fuels treatment[.]” Order - 26 (Id. at 2-19, Table 2-5 (AR-29118)). As the Forest Service notes, a “[d]ry channel and (FEIS, Appendix K, at K-213 (AR-29771).) This circumstance There The period of greatest However, during the middle of the summer, water from the (FEIS at 3-22 (AR-29169).) Id. Given 1 The plaintiffs are not so sanguine. It will be many years, they 2 note, before trees along the unnamed tributary grow to the point they 3 provide as much shade as existing trees currently provide. 4 meantime, the temperature of the water in the unnamed tributary can be 5 expected to increase. 6 water enter George Creek? 7 point out, the temperature of George Creek already is above the 8 Riparian Management Objective for water temperature. 9 increase in temperature will impede the attainment of the relevant RMO In the How much will the water warm, and will warmer The plaintiffs are concerned. As they Even a small 10 for George Creek. 11 PACFISH, but, according to the plaintiffs, there is no exception for 12 de minimis violations. 13 Goodman, 505 F.3d 884, 895 (9th Cir.2007) (“Whether the acreage at 14 issue is relatively large or small is irrelevant to this 15 inquiry-relevant law contains no de minimis exceptions.”). 16 This may not constitute an egregious violation of Cf. Oregon Natural Resources Council Fund v. The plaintiffs’ concerns about water temperature are not 17 frivolous. 18 the Forest Service has accumulated. 19 the only ones who are paying attention to water temperature. 20 Forest Service is equally attentive. 21 is aware that removing trees along the tributary will reduce shade and 22 potentially increase the temperature of the tributary. 23 Service has taken steps to limit the risk. 24 Service is aware that the tributary flows into George Creek. 25 Forest Service has assessed the risk that warmer water will flow from 26 the tributary into George Creek. Order - 27 They reflect a careful review of the scientific data that However, the plaintiffs are not The For example, the Forest Service The Forest Similarly, the Forest The As explained above, the Forest 1 Service cites several circumstances that, in its opinion, limit the 2 risk. 3 Both the plaintiffs and the Forest Service want to attain the 4 Riparian Management Objectives for George Creek. However, they 5 disagree as to the best method for doing so. 6 concluded that removing trees from the RHCA is necessary. 7 that conclusion, the Forest Service engaged in a thoughtful analysis 8 of a substantial body of scientific data. 9 high level of technical expertise. The Forest Service has In reaching The analysis required a Where “analysis of scientific data 10 requires a high level of technical expertise, courts must defer to the 11 informed discretion of the responsible federal agencies.” 12 Island Institute, 697 F.3d at 1020 (internal punctuation and citation 13 omitted). 14 there is no risk-free path forward. 15 trees could increase water temperatures and possibly damage anadromous 16 fish, it is also true that leaving the area as it is would increase 17 the risk of a crown fire spreading through the tops of trees that are 18 located along the tributary. 19 consider the costs associated with forest fire in determining whether 20 the risks associated with tree removal are warranted. 21 Service decided the balance of risks weighs in favor of tree removal; 22 that, in the long run, removing trees is more likely to attain RMOs 23 than leaving the area as it is. 24 the Forest Service’s decision. 25 Service violated the law. 26 Forest Service has developed a common sense solution to a complex Order - 28 Earth Deference is especially warranted in this situation because While it is true that removing The Forest Service is entitled to The Forest Reasonable people can disagree with However, that does not mean the Forest To the contrary, the record reflects the 1 problem. The Forest Service’s solution is not risk free, but, then 2 again, neither are the alternatives. 3 POTENTIAL WILDERNESS AREAS 4 The plaintiffs concede the Forest Service considered the 5 existence of potential wilderness areas in assessing the environmental 6 consequences of the proposed Project. 7 allege the Forest Service violated the National Environmental Policy 8 Act by arbitrarily refusing to include any land that is located within 9 300 feet of a road. Nevertheless, the plaintiffs (FEIS, Appendix H, at H-3 (AR-29499).) The 10 Forest Service made that decision because some areas within 300 feet 11 of a road show signs of logging, e.g., stumps or skid trails or clear 12 cuts. 13 inclusion in wilderness areas. 14 that some areas within 300 feet of a road do show signs of logging. 15 Nevertheless, there are large swaths of steppe-shrublands along roads 16 that do not show such signs. 17 located within 300 feet of a road, say the plaintiffs, the Forest 18 Service arbitrarily failed to consider an important part of the 19 problem of wilderness preservation. 20 The Forest Service decided such areas are not suitable for See id. The plaintiffs acknowledge By refusing to include any land that is The defendants deny the Forest Service arbitrarily ignored 21 steppe-shrublands. 22 Environmental Impact Statement sets forth the methodology that the 23 Forest Service employed in analyzing potential wilderness area. 24 (FEIS, Appendix H, at H-1 to H-10 (AR-29497 to AR-29506).) 25 Service used the procedures that are contained in the Forest Service 26 Handbook (“FSH”). Order - 29 As they point out, Appendix H to the Final (FEIS, Appendix H, at H-1 (AR-29497).) The Forest The FSH 1 says that, in establishing boundaries for potential wilderness, it is 2 appropriate to “use semi-permanent human-made features that are 3 locatable on the map and on the ground.” 4 (citing FSH 1909.12, at 71).) 5 Consequently, in the defendants’ opinion, the Forest Service did not 6 act arbitrarily in drawing a boundary that parallels existing roads. 7 Nor, in the defendants’ opinion, did the Forest Service act 8 arbitrarily in excluding all land within 300 feet of existing roads 9 whether or not the land shows signs of logging. (Id. at H-4 (AR-29500) A road is one such feature. The Forest Service 10 expressly recognized that “stumps are not present along every mile of 11 forest road[.]” 12 the Forest Service chose a 300-foot buffer because, in its judgment, 13 the buffer would make it easier to identify potential wilderness 14 areas. 15 (FEIS, Appendix H, at H-3 (AR-29499).) Nevertheless, The plaintiffs do not think the Forest Service needed to use an 16 arbitrary 300-foot buffer in order to exclude land that shows signs of 17 logging. 18 They submit, by way of illustration, that Forest Service employees 19 could have examined maps and aerial photographs, and, if questions 20 remained about a particular stretch of road, the employees could have 21 visited the area. 22 Forest Service could have excluded areas that show signs of logging 23 without also excluding vast swathes of steppe-shrublands. 24 According to the plaintiffs, less arbitrary methods exist. By using such a process, say the plaintiffs, the The plaintiffs’ criticism of the 300-foot zone is unpersuasive. 25 To begin with, one must consider the costs associated with the method 26 of boundary identification proposed by the plaintiffs. Order - 30 It seems 1 likely their method would be more time consuming. 2 not think the burden will be oppressive, but the burden will not fall 3 on them. 4 entitled to great deference in deciding how to allocate its employees’ 5 time. 6 It will fall of the Forest Service. The plaintiffs do The Forest Service is There is a second reason the plaintiffs’ criticism is 7 unpersuasive. As will be recalled, they complain the 300-foot zone 8 will result in the arbitrary exclusion of steppe-shrublands from 9 potential wilderness area. The record is otherwise. An environmental 10 group named Oregon Wild asked the Forest Service to consider 11 designating a 3,970-acre polygon within the South George project 12 planning area as potential wilderness area. 13 map that, interestingly, did not exclude land within 300 feet of 14 roads. 15 examined Oregon Wild’s proposal and determined it did not meet the 16 relevant criteria. 17 decision was arbitrary. 18 meet the relevant criteria, what other area would? 19 there some area within the Project area that would qualify as 20 potential wilderness area if only the Forest Service included steppe- 21 shrublands that lie within 300 feet of a road? 22 area, the plaintiffs have not identified it. Oregon Wild submitted a (FEIS, Appendix I, Map I-OW-1 (AR-29528).) The Forest Service The plaintiffs do not allege the Forest Service’s If the area proposed by Oregon Wild did not In other words, is If there is such an 23 SUMMARY OF ANALYSIS 24 The Forest Service has decided to proceed with the South George 25 Vegetation and Fuels Management Project. 26 components. Order - 31 The Project has a number of Timber will be commercially harvested on approximately 1 3,900 acres of land. In addition, the Forest Service will remove 2 trees that are likely to fall on roads, burn approximately 3,000 acres 3 of land, and thin approximately 25 acres of forest that is located in 4 a Riparian Habitat Conservation. 5 violates both the National Forest Management Act and the National 6 Environmental Policy Act. 7 Administrative Procedure Act, to consider the plaintiffs' allegations. 8 However, review is narrow. 9 (internal punctuation and citation omitted). The plaintiffs allege the Project The Court has authority, under the Earth Island Institute, 697 F.3d at 1014 The Court may not enjoin 10 any part of the Project unless the plaintiffs prove the Forest Service 11 behaved in a manner that is "arbitrary, capricious, an abuse of 12 discretion, or otherwise not in accordance with law[.]” 13 706(2)(A). 5 U.S.C. § 14 A. Snag Habitat 15 The plaintiffs allege the Umatilla National Forest Plan 16 incorporates the 1982 rule at the project level. 17 say the plaintiffs, the Forest Service must demonstrate there is 18 enough snag habitat in dry upland forest in the Project area in order 19 to maintain the population of primary cavity excavators. 20 plaintiffs argue that, since there are fewer than 3 large snags per 21 acre, on average, in dry upland forests in the Project area or, for 22 that matter, across the Umatilla National Forest as a whole, the 23 Forest Service cannot fulfill its obligation to preserve enough 24 habitat for primary cavity excavators. 25 are contradicted by the record. 26 the 1982 rule’s viability requirements at the project level. Order - 32 That being the case, The The plaintiffs’ allegations First, the Plan does not incorporate To the 1 contrary, the Plan incorporates them at the national forest planning 2 level. 3 under the National Forest Management Act by demonstrating there is 4 enough snag habitat in dry upland forest across the Umatilla National 5 Forest in order to maintain the population of primary cavity 6 excavators. 7 significance of the Forest Service’s decision to retain three large 8 snags per acre on the 926 acres of dry upland forest that will be 9 subject to commercial logging. As a result, the Forest Service may satisfy its obligations Second, the plaintiffs have misinterpreted the Retaining three snags per acre will 10 promote habitat for primary cavity excavators, but the Forest Service 11 has determined it is unnecessary to have three large snags per acre on 12 the 926 acres in question in order to maintain the population of 13 primary cavity excavators. 14 there is adequate habitat across the national forest as a whole. 15 plaintiffs have failed to establish this determination "is so 16 implausible that it could not be ascribed to a difference in view or 17 the product of agency expertise." Confederated Tribes, 342 F.3d at 18 928 (internal citation omitted). Thus, the Forest Service's decision 19 to harvest timber in dry upland forest is consistent with the Umatilla 20 National Forest Plan and the National Forest Management Act. 21 B. Tree Removal in a Riparian Habitat Conservation Area 22 The plaintiffs allege the Forest Service’s decision to remove In the opinion of the Forest Service, The 23 trees from a Riparian Habitat Conservation Area is a form of timber 24 management. 25 designed this part of the project in order to reduce the risk of a 26 crown fire spreading through the tops of trees that are growing near Order - 33 The plaintiffs are incorrect. The Forest Service 1 an unnamed tributary to George Creek. Although the FEIS does not cite 2 FM-1 by name, a balanced reading of the FEIS reveals that this part of 3 the project addresses fire/fuels management rather than timber 4 management. 5 should be evaluated under FM-1. 6 removing trees in the RHCA will expose more of the stream to sunlight 7 and this will, in turn, lead to an increase in temperature of the 8 water in the stream. 9 designed the project in a manner calculated to reduce the risk of an Consequently, the removal of trees along the tributary The plaintiffs are concerned that The Forest Service considered this issue and 10 increase in water temperature. Moreover, the Forest Service assessed 11 the risk that warmer water will flow from the unnamed stream into 12 George Creek and injure anadromous fish. 13 determined that the removal of trees along the tributary is unlikely 14 to produce a measurable increase in the temperature of George Creek. 15 The Forest Service’s determination is entitled to deference. 16 e.g., Earth Island Institute, 697 F.3d at 1020 ("'[b]ecause analysis 17 of scientific data requires a high level of technical expertise, 18 courts must defer to the informed discretion of the responsible 19 federal agencies'” (quoting Earth Island Inst. v. U.S. Forest Serv., 20 351 F.3d 1291, 1301 (9th Cir.2003))). 21 a thoughtful critique of the Forest Services’ analysis of the relevant 22 data. 23 Service's analysis "runs counter to the evidence." 24 Tribes, 342 F.3d at 928 (internal citation omitted). 25 the trees in place poses risks of its own. The area in question is 26 becoming increasingly vulnerable to fire. Undoubtedly, a fire would The Forest Service See, The plaintiffs have engaged in Nevertheless, they have failed to demonstrate the Forest Order - 34 Confederated Finally, leaving 1 retard the attainment of Riparian Management Objectives. By contrast, 2 taking environmentally responsible steps to avoid a fire will help 3 attain RMOs. 4 not violate either the Eastside Screens or PACFISH, which is to say 5 removal does not violate the National Forest Management Act. It follows that removal of the trees from the RHCA does 6 C. Potential Wilderness Areas 7 The plaintiffs allege the Forest Service’s decision to exclude 8 all land that is located within 300 feet of a road from potential 9 wilderness areas, whether or not the land shows signs of logging, will 10 result in the arbitrary exclusion of steppe-shrublands from potential 11 wilderness areas in violation of National Environmental Policy Act. 12 The plaintiffs think there is a better way to identify the boundaries 13 of potential wilderness areas. 14 examine maps and, when maps do not provide adequate guidance, 15 personally inspect the area in question. 16 not unreasonable. 17 resources, the Forest Service might adopt it; but, the fact remains 18 the Forest Service’s resources are limited. 19 steps to conserve them. 20 Forest Service Handbook. 21 features, such as roads, to establish boundaries. 22 did that. 23 of boundary identification was not arbitrary. 24 not violate NEPA. 25 Service ignore the presence of steppe-shrublands in the Project area. 26 They figured significantly in the proposal that Oregon Wild submitted Order - 35 They suggest Forest Service employees The plaintiffs’ proposal is Indeed, if the Forest Service had greater It must take reasonable Here, the Forest Service relied upon the The FSH recommends using semi-permanent The Forest Service Consequently, its reliance upon an easy-to-administer rule The 300-foot zone does Nor, contrary to the plaintiffs, did the Forest 1 to the Forest Service. 2 did not exclude land that is located within 300 feet of roads. 3 Forest Service considered Oregon Wild's proposal, concluding it did 4 not satisfy the relevant criteria for potential wilderness area. 5 Forest Service's response to Oregon Wild's proposal is characteristic 6 of its overall approach to potential wilderness area. 7 Service took a hard look at the issue. 8 obligations under NEPA. 9 10 11 12 13 14 15 As observed earlier, Oregon Wild's proposal The The Forest In doing so, it fulfilled its IT IS HEREBY ORDERED: 1. The plaintiffs’ motion for summary judgment (ECF No. 22) is denied. 2. The defendant intervenors’ motion for summary judgment (ECF No. 28) is granted. 3. The United States Forest Service’s motion for summary judgment (ECF No. 31) is granted. 16 4. The plaintiffs’ complaint is dismissed with prejudice. 17 IT IS SO ORDERED. The District Court Executive is hereby 18 directed to file this order, enter judgment accordingly, furnish 19 copies to counsel, and close the case. 20 The DATED this 6th day of January, 2014. 21 s/ Fred Van Sickle Fred Van Sickle Senior United States District Judge 22 23 24 25 26 Order - 36
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