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Lands Council v. Cottrell

July 2, 2010

THE LANDS COUNCIL, PLAINTIFF,
v.
JANE COTTRELL, ACTING REGIONAL FORESTER OF REGION ONE OF THE U.S. FOREST SERVICE; RANOTTA MCNAIR, SUPERVISOR OF THE IDAHO PANHANDLE NATIONAL FOREST; AND UNITED STATES FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF AGRICULTURE; DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court are Plaintiff's Motion for Summary Judgment (Docket No. 24) and Defendants' Motion for Summary Judgment (Docket No. 27).*fn1 Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Report and Recommendation:

I. SUMMARY OF RECOMMENDATION

The undersigned finds that Defendants violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601, et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., in authorizing the Bussel 484 Project by failing to ensure the viability of old growth forest dependent, sensitive, and management indicator species. Accordingly, the undersigned recommends that the district judge: (1) set aside the decision authorizing the Bussel 484 Project and remand to the agency and (2) enjoin any logging authorized under the Project unless and until the agency has conducted an analysis of species viability in the Project Area that satisfies NFMA and NEPA standards.

II. BACKGROUND AND PROCEDURAL HISTORY

This is a civil action seeking review of a decision by the Unites States Forest Service approving the Bussel 484 Project ("Project") in the St. Joe Ranger District of the Idaho Panhandle National Forest ("IPNF"). Second Amended Complaint, ¶ 2 (Docket No. 17).

A. The Parties

Plaintiff, the Lands Council, is a nonprofit corporation dedicated to the long-term community and biological stability of the Greater Columbia River Ecosystem. Id. at ¶ 15. Plaintiff's members and staff use and enjoy the IPNF, including the area in which the Project will take place. Id. at ¶ 10. Defendants include: (1) Jane Cottrell, Acting Regional Forester for the Northern Region of the Forest Service; (2) Ranotta K. McNair, the Forest Supervisor for the IPNF; and (3) the USFS, an administrative agency within the Department of Agriculture (collectively referred to hereinafter as "Forest Service") entrusted with management of the national forests.

B. The Project Area

The Bussel 484 Project Area is located within the Bussel Creek Watershed, a tributary of Marble Creek, and is located eight miles northeast of Clarkia, Idaho, Shoshone County in the IPNF. (AR 3:1). The Project Area covers 14,646 acres, 83% of which is Forest Service land. Id. The remaining 2,454 acres are privately owned. Id.

The Project Area is composed of subalpine fir, spruce, western red cedar, western hemlock, and grand fir forests located entirely within the IPNF's Old Growth Management Unit ("OGMU") Eight. See Second Amended Complaint, ¶ 29 (Docket No. 17); (AR 2:163). Both parties agree that the quality of old growth habitat in the Project Area has degraded over time due to fire and past logging activity. (AR 2:147-48); See First Amended Complaint, ¶¶ 29-34 (Docket No. 17).*fn2

C. Project Development

From the outset, beginning in August 2003, the Forest Service involved interest groups, individuals, tribes, and agencies in the development of the Project. (AR 3:30, 2:7).*fn3 Early on in the process, the purpose and need for the Project were identified as follows: (1) maintain or improve resilience of the vegetative resources to disturbances such as insects, disease, and fire; (2) provide wood products for local communities; (3) work toward full support of designated beneficial uses in the Bussel Creek Watershed; and (4) manage access to provide for multiple uses. (AR 2:4-5, AR 3:1-2).

In April 2005, the Forest Service issued a scoping notice and also published in the Federal Register a notice of intent to prepare an environmental impact statement. (AR 3:30, AR 2:7).After several years of work, study, and collaboration, a draft environmental impact statement ("DEIS"), was made available for public comment on the IPNF website on February 21, 2008. (AR 3:30, AR 144). A related Notice of Availability appeared in the Federal Register on March 7, 2008. (AR 3:30, AR 156).

The DEIS identifies three possible alternative actions in the Project Area: Alternative A: no action, Alternative B: proposed logging and related road construction activities, and Alternative C: logging with no road construction. (AR 1:3). In May 2008, the Forest Service issued a final environmental impact statement ("FEIS") (AR:2) and a Record of Decision ("ROD") (AR:3) approving Modified Alternative B, the commercial logging and road construction project -- the Bussel 484 Project.

Modified Alternative B involves the harvest of approximately 2,137 acres using a variety of silvicultural prescriptions (1,486 acres of commercial thin, 521 acres of group shelterwood, 53 acres of seedtree, and 78 acres of clearcut with reserves). (AR 3:5). The ROD indicates that Alternative B was selected, in part, because "it best meets the need to improve vegetative conditions through reducing stand density, changing species composition, and promoting larger trees in the future." (AR 3:27). By reducing stand density, the Forest Service intends to "decrease the competition for water, nutrients, and sunlight in stands and promote increased growth and yield." (AR 3:27). The goal is to remove the smaller trees and focus growth on the larger diameter, more vigorous trees. (AR 3:28).

To facilitate the harvest activities, Modified Alternative B also involves road construction. The road activity authorized by the Project includes: (1) constructing 4.5 miles of system road and .5 miles of temporary road; (2) improving or reconstructing 5.4 miles of existing road; and (3) removing 10.7 miles of existing roads and placing 20.2 miles of existing roads into "long term storage."*fn4 (AR 3:4).

The ROD provides that the Project will not harvest any timber or construct any roads within old growth stands. (AR 3:14, 45). However, it is undisputed that the Project will have an effect on the habitat of old growth dependent species. The FEIS states that the Project will eliminate the following habitat: (1) one of eight home ranges modeled for the pileated woodpecker (AR 2:272); (2) three of 19 nesting stands modeled for the goshawk (AR 2:275); (3) 100 acres of habitat modeled for the threatened Canada lynx (AR 2:279); (4) and 256 acres of habitat modeled for the fisher and marten (AR 2:288). Nevertheless, evaluating the over-all impact of the Project on wildlife habitat, the Forest Service determined that the Project would not contribute towards federal listing or loss of viability for any of the wildlife species in the Project Area. (AR 2:292).*fn5

With regard to cumulative impacts, both the DEIS and FEIS identify "fire and fuels" as having an environmental effect on the Project Area. (AR 1:82-88), (AR 2:129-42). The DEIS analyzes the effect of fire under the general direction of Forest Plan. (AR 1:82). The FEIS analyzes the effect of fire under the now-withdrawn forest-wide, 2008 IPNF Fire Management Plan ("2008 Fire Plan"). (AR 129). Consistent with the 2008 Fire Plan, the logging aspect of the Project is intended to mimic the effects of fires of low to moderate intensity. (AR 2:141-42, AR 3:39-40). However, fire itself will be suppressed throughout the Project Area. (AR 2:61) ("Consistent with current policy, efforts will be made to suppress all fires which occur in the project area.").

D. Procedural History

Plaintiff filed an administrative appeal of the decision approving Modified Alternative B, and the Forest Service denied the appeal on July 31, 2008, constituting the final administrative action in this matter. On April 9, 2009, Plaintiff filed the instant action arguing that the Project violates NFMA, NEPA, and the Administrative Procedures Act ("APA"). Plaintiff seeks injunctive and declaratory relief arguing that the Project, if implemented, will eliminate habitat for old growth dependent, sensitive, threatened, and management indicator species, including the pileated woodpecker, goshawk, Canada lynx, fisher, and marten. Plaintiff's Memorandum in Support of Motion for Summary Judgment, p. 2 (Docket No. 25).

Plaintiff also asserts claims related to a proposed action, the 2008 Fire Plan. On March 18, 2008, the Forest Service implemented a Fire Plan for the IPNF. (AR 1037). At one time, Plaintiff claimed that approval of the 2008 Fire Plan violated NEPA and the Endangered Species Act. First Amended Complaint (Docket No 11). However, when the Forest Service later withdrew the 2008 Fire Plan, Plaintiff withdrew these claims. See Docket No. 16. Nonetheless, Plaintiff continues to contend that the Project EIS is flawed, in part, because the analysis of the cumulative environmental impacts of fire and fire management is based on the implementation of the now-withdrawn 2008 Fire Plan. Second Amended Complaint (Docket No. 17).

E. Status of Project Implementation

Two timber sales authorized as part of the Project, the Bussel Peak and Tole Booth sales, have been awarded. Plaintiff represents that logging activity in the Project area may begin as soon as August 1, 2010. See Second Declaration of Jeff Juel, ¶ 8 (Docket No. 47-1).

III. STANDARD OF REVIEW

The APA provides the authority for judicial review of agency decisions under NFMA and NEPA. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006). The APA states, in relevant part, that a reviewing court "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be -- arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The arbitrary and capricious standard is deferential and an agency action will be reversed as arbitrary and capricious "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009) (quotations and citations omitted).

Nevertheless, the Court must review the administrative action to ensure that the agency has "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). In reviewing that explanation, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (quoting Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)).

IV. DISCUSSION AND HOLDINGS

Plaintiff claims that the Forest Service violated NFMA by failing to ensure viability of old growth dependent, sensitive, and management indicator species ("MIS") in the Project Area. Because no such species have recently been seen in the Project Area, Plaintiff alleges that the Forest Plan's old growth standards are either invalid or not being met. Plaintiff's NEPA claims include allegations that the Forest Service: (1) failed to ensure the scientific integrity of the Forest Plan old growth standard; (2) failed to assess the cumulative impacts of the IPNF fire management policy; (3) improperly tiered the Project EIS to the now-withdrawn Fire Plan; and (4) failed to prepare a supplemental EIS when the Fire Plan was withdrawn.

In addition to opposing Plaintiff's substantive claims, the Forest Service also contends that Plaintiff's claims should be dismissed because they are not ripe, are not properly pleaded, and are barred under the doctrine of collateral estoppel.

A. Plaintiff's Claims are Properly Before the Court

The Court has jurisdiction to consider Plaintiff's claims, all of which are ripe, properly pleaded, and not otherwise barred under the doctrine of collateral estoppel.

1. Ripeness

Claims regarding a Forest Plan are not ripe for challenge without site-specific action. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732 (1998). Before then, the alleged harm is speculative. Id. Once a site-specific action takes place, the Forest Plan is subject to challenge but only if the Forest Plan "plays a causal role" with respect to the challenged action. Id. Further, only those aspects of the Forest Plan that are related to the challenged action are properly subject to the suit. Id.

The Forest Service contends that Plaintiff's allegations concerning the Forest Plan's old growth standards are not ripe, because the Project will not harvest any old growth. In making this argument, Plaintiff relies upon the following language from Lands Council v. Powell, 395 F.3d 1019 (2005) ("Lands Council I"):

[B]ecause no old growth forest is to be harvested under the selected alternative, we reject the contention that the Project will be impermissible if, thereafter, the 'allocated old growth' within the Forest is less than the Forest Plan requirement. If that requirement would not be met after this Project, then it must be that the requirement is not met now, for the proposed timber harvest cuts no old growth. If we were to accept the Lands Council's argument on this score, it would prevent any project from taking place. We do not think this is a sensible reading of the NFMA. Because no old growth forest is to be harvested under the Project, we hold that it cannot be said that the Project itself violates the IPNF Plan's requirement to maintain ten percent of the forest acreage as old growth forest.

Id. at 1036.

However, while Plaintiff in Lands Council I was not permitted to challenge whether the site-specific action would impact the ten-percent old growth rule, Plaintiff was permitted to challenge the old growth forest analysis as it relates to the population and viability of species that require old growth habitat. Id. (determining that Forest Service violated NFMA by failing to monitor population trends).

Here, Plaintiff does not challenge the Project on the basis that it will preclude the Forest Service from meeting old growth standards. Instead, Plaintiff challenges the Project on the basis that the Forest Service failed to adequately address the Project's effect on the MIS and other old growth dependent and sensitive species in the Project Area. The old growth standards are at issue because the Forest Service relied upon the old growth standards as a proxy to ensure that it is meeting its species viability and monitoring requirements. Moreover, regardless of whether the Project will actually harvest old growth, it is undisputed that the Project will eliminate some habitat for the old growth dependent species in the Project Area. In short, Plaintiff's claims are ripe because the old growth standards at issue are being challenged in the context of a species viability claim that does not depend on the harvesting of old growth.

2. Sufficiency of Pleading

The Forest Service argues that the Court should not entertain arguments regarding the validity of the Forest Plan in the context of a challenge to a site-specific Project if the Forest Plan is not the subject of any claim in the Complaint. Defendants' Opposition to Plaintiff's Motion for Summary Judgment, p. 2 (Docket No. 35).

The Court finds that Plaintiff's NFMA claim sets forth a direct and appropriate challenge to the Forest Plan old growth standards. In the Second Amended Complaint, Plaintiff alleges that the habitat in the Project Area has degraded significantly over time and that the Forest Service's analyses of old growth and species viability are flawed. Second Amended Complaint, ¶¶ 39-43, ¶¶ 55-81, ¶¶ 97-100, and ¶¶ 123-43. (Docket No. 17). In addition, Plaintiff alleges that there are "responsible opposing scientific viewpoints" challenging the old growth standards. Id. at ¶¶ 137-43. The old growth standards and species viability requirements stem from the Forest Plan.

In addition, in the Second Claim for Relief, the NFMA violation claim, Plaintiff further states "[t]he inadequacy of the Forest's old growth standard is illustrated by the lack of old growth dependent and management indicator species found in the Project area" and "without a valid and implemented old growth standard, the Forest Service also violates the Forest Plan's more general mandate to ensure the viability of old growth dependent and management indicator species on the Forest." Id. at ¶¶ 116, 166 (Docket No. 17). Moreover, an NFMA violation occurs either when the site-specific action is inconsistent with the Forest Plan's standards or the Forest Plan's standards are invalid, see Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 966 (9th Cir. 2002).

Based on the allegations and the NFMA claim in the Second Amended Complaint, the Court is satisfied that Plaintiff's pleading is sufficient. It is clear that Plaintiff is challenging the old growth standards on the basis that they are an inadequate tool to gauge species viability.

3. Collateral Estoppel

The Forest Service argues that Plaintiff is collaterally estopped from bringing the Forest Plan claims because this federal district court has already determined that the IPNF old growth standards are valid, the Forest Inventory and Analysis ("FIA") database and the Timber Stand Management Record system ("TMRS") are reliable, and the habitat-as-proxy approach meets the Forest Service's requirements for maintaining species viability and monitoring MIS population trends. Defendants' Opposition to Plaintiff's Summary Judgment, p. 5 (Docket No. 35). "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, the decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995).

"[C]ollateral estoppel applies only where . . . : (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding." Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000).

In the previous lawsuit, Plaintiff challenged the Mission Brush Project on the IPNF on the basis that the Forest Plan's old growth standards were not being met and the proxy on proxy approach to species viability is unreliable and insufficient to satisfy NFMA's requirements. Lands Council v. McNair, 2009 WL 3199641 (D. Idaho Sept. 30, 2009) ("Mission Brush"). More specifically, with regard to the Forest Plan's old growth standards, Plaintiff challenged the Forest Service's finding that the IPNF, as a whole, met Standard 10(b), requiring ten percent old growth throughout the IPNF forested land. Id. at * 5. Judge Lodge upheld the agency's finding because it was based on two separate, independent and reliable tools to monitor old growth in the IPNF: the FIA and TMRS databases. Id. at *6-7. Judge Lodge also determined that the "the use of habitat as a proxy in the Mission Brush case was not arbitrary and capricious," because both:

(1) the underlying methodologies for determining the quantity and quality of habitat necessary to sustain the viability of native species and (2) the methodology used for measuring habitat were reasonably reliable. Id. at *13-14.

While these same issues are raised herein with regard to the Bussel 484 Project, collateral estoppel does not apply, fundamentally because the cases concern two different, site-specific projects. See Idaho Sporting Congress v. Rittenhouse, 305 F.3d at 965 (holding res judicata did not apply where challenges concerned different timber sales). First, the old growth standards are potentially subject to the challenge of more recent research, as well as site-specific information concerning the well-being of the species in the project area.*fn6 Second, the percentage of old growth is not an immutable constant but changes over time, as does the information in the FIA and TMRS databases, which is updated to reflect site-specific surveys. Third, the validity of the habitat-as-proxy approach, which depends on the reliability of the old growth standards and the methodology for measuring old growth standards, must be determined on a case-by-case and site-specific basis. Accordingly, collateral estoppel does not bar Plaintiff from bringing any of the claims alleged in the instant lawsuit.*fn7

B. Plaintiff's NFMA Challenges

Plaintiff argues that the Forest Service violated NFMA by failing to consider the Project's impact on species viability as required under the IPNF Forest Plan. The Forest Service responds that it met its statutory obligations to ensure species viability and monitor the MIS by relying upon the Forest Plan's old growth standards.

1. Legal Framework

NFMA's legal framework consists of three central components: (1) the statute; (2) the Forest Service implementing regulations; and (3) the Forest Plans implementing the regulatory and statutory directives that govern site-specific actions at the forest level.

a. General Statutory Framework

The Forest Service manages the national forests under "a number of interconnected congressional directives." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir. 1992). The general administrative philosophy of the Forest Service is expressed in the Multiple-Use Sustained Yield Act ("MUSYA") of 1960, 16 U.S.C.A. ยงยง 528-531, which requires a careful balancing of often competing resources, ...


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