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Western Watershed Project v. United States Forest Service

January 29, 2011

WESTERN WATERSHED PROJECT, PLAINTIFF,
v.
UNITED STATES FOREST SERVICE, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION

INTRODUCTION

The Court has before it cross motions for summary judgment. The Court heard oral argument, and took the motions under advisement. For the reasons set forth below, the Court will grant the motion filed by the Forest Service and deny the motion filed by WWP.

LITIGATION BACKGROUND

The Court set forth much of the factual background of this litigation in a prior decision, and will not repeat that in detail here. See WWP v. U.S., CV-05-189-E-BLW (Memorandum Decision, Dkt. 47). In that decision, the Court found that the Forest Service violated NFMA, NEPA, and the Sawtooth National Recreation Act (SNRA) in preparing the North Sheep Environmental Impact Statement (NSEIS). The NSEIS was prepared to evaluate the Proposed Action of allowing certain levels of grazing on four allotments -- known as the North Sheep allotments -- within the Sawtooth National Forest and the Sawtooth National Recreation Area.

The Court found that the Forest Service violated these statutes because (1) it ignored Forest Plan capability findings in setting grazing conditions; (2) it failed to conduct an analysis in the Forest Plan of the capability of rangelands to provide habitat for Management Indicator Species (MIS) sage-grouse and pileated woodpecker; and (3) it failed to fully explain the Adaptive Management Strategy and its protocols. The Court found in favor of the Forest Service on issues involving Bighorn Sheep, the Sheep Driveway, and Q Fever.

To address these shortcomings in the NSEIS and Forest Plan, the Forest Service prepared two environmental reports. The first -- a supplement to the Forest Plan -- contained a capability analysis for the MIS pileated woodpecker and sage-grouse. The second -- a supplement to the NSEIS entitled "Final Supplement to the North Sheep Final Environmental Impact Statement" (SEIS) -- addressed the Court's concerns with the NSEIS.

WWP has filed this lawsuit challenging both the SEIS and the supplement to the Forest Plan, alleging that they fail to answer the Court's concerns.

STANDARD OF REVIEW

The Court's review of NFMA challenges is governed by the Administrative Procedures Act (APA) because NFMA contains no express provision for judicial review. See Native Ecosystems Council v. United States, 418 F.3d 953, 961 (9th Cir. 2005). Under the APA, the Court may set aside agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Although this standard is a "narrow one," the Court is required to "engage in a substantial inquiry[,] . . . a thorough, probing, in-depth review." Native Ecosystems, 418 F.3d at 961. To have not acted in an arbitrary and capricious manner, the agency must present a "rational connection between the facts found and the conclusions made." Id.

Agencies are entitled to deference to their interpretation of their own regulations, including Forest Plans. Id. However, an agency's interpretation "does not control where . . . it is plainly inconsistent with the regulation at issue." Id. Moreover, an agency's position "that is contrary to the clear language of a Forest Plan is not entitled to deference." Id. at 962.

The Court's review of NEPA challenges is also governed by the APA. In reviewing the adequacy of an Environmental Impact Statement (EIS) under NEPA, the Court applies the "rule of reason" standard, which "requires a pragmatic judgment whether the EIS's form, content, and preparation foster both informed decision-making and informed public participation." Id. at 961. The Court must ensure that the agency has taken a "hard look" at the potential environmental consequences of the proposed action. Id.

Capability & Suitability

In preparing the NSEIS, the Forest Service estimated what areas of the forest were capable of sustaining grazing based on five characteristics of the land at that time:

(1) accessability to livestock, (2) forage production, (3) slope, (4) soil stability, and (5) distance to water. Three of the North Sheep allotments had 15% or less of their land found capable, and one allotment had 25%.

The NSEIS did not discuss these capability figures or take them into account in setting specific grazing conditions on the four allotments. The Forest Service made maps of the capable lands, but only used them internally and did not display or discuss them in the NSEIS. While the Forest Service was proposing to graze 30% of the North-Fork Boulder allotment, only 15% of that allotment contained capable ground. NS07005. Likewise, the Forest Service proposed to graze 29% of the Smiley Creek allotment while only 13% of the allotment contained capable ground. Id.

What did these figures mean? On their face, they meant the Forest Service was grazing the allotments beyond their capacity to support grazing. Perhaps there was some other explanation, but the Forest Service provided none in the NSEIS. See Memorandum Decision Dkt. 47, supra. The Court found that this lack of explanation in the NSEIS violated NFMA and NEPA. The Court did not hold that lands found not capable were off-limits to grazing. See Memorandum Decision Dkt. 47 at 15 ("lands identified as incapable are not forever off-limits to grazing").*fn1 Even if land was "found incapable at the forest plan level, it may still be grazed if site-specific studies show actual conditions support grazing. Conversely, land found capable may become off-limits if warranted by later site-specific studies." Id. at 16. The Court found that "the Forest Service may rely more heavily on the site-specific studies than the capability figures in setting grazing levels for specific allotments". Id. at 12.

The SEIS answered the Court's concerns first by including maps of both "capable" and "suitable" lands, that were missing from the NSEIS. SA10063-64. Moreover, it discusses site-specific studies -- referred to as Range Analysis or REA -- and concludes that they added another 7,400 acres of land that could actually support grazing. SA10006-07. While the REA data is at least 10 years old, the Forest Service concludes that it "remains very accurate and is a better description of capable rangelands that what was described in the Forest Plan level model." SA10006. The Forest Service used the REA data to calculate the number of acres that are suitable for grazing in each of the four allotments. SA10065. These suitable acres were compared with the acres on which grazing was authorized. Id. For each allotment, the acres authorized for grazing are less than the acres deemed able to support grazing under the site-specific REA studies. Id. The Forest Service concluded that "[t]hese levels of grazing use are within allotment specific tentative grazing capacities for [the proposed alternative]." Id.

This conclusion -- based on the evaluation of site-specific studies -- answers the Court's concern that the original NSEIS appeared to be authorizing grazing well in excess of the capacity of the allotments to sustain grazing. The SEIS shows that the authorized ...


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