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Friends of Rapid River v. Probert

United States District Court, D. Idaho

December 6, 2019

FRIENDS OF THE RAPID RIVER, et al., Plaintiffs,
v.
CHERYL PROBERT, et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE, CHIEF U.S. DISTRICT COURT JUDGE

         I. INTRODUCTION

         Pending before the Court is Plaintiffs Friends of the Rapid River and Friends of the Clearwater's (collectively “Plaintiffs”) Motion for Summary Judgment (Dkt. 16), as well as Defendants Cheryl Probert and Victoria Christiansen's (collectively “Defendants” or the “Forest Service”) Motion for Summary Judgment (Dkt. 18). Plaintiffs have also filed a Motion to Supplement Extra-Record Evidence. Dkt. 20.

         The Court held oral argument on July 9, 2019, and took the motions under advisement. For the reasons outlined below, the Court finds good cause to GRANT Defendants' Motion for Summary Judgment, DENY Plaintiffs' Motion for Summary Judgment, and DENY Plaintiffs' Motion to Supplement Extra-Record Evidence.

         II. BACKGROUND

         A. Factual Background

         The United States Forest Service (“Forest Service”) is an agency under the United States Department of Agriculture and is responsible for managing the 4 million-acre Nez Perce-Clearwater National Forests located in north-central Idaho.[1] One of the Forest Service's objectives is to sustain the health, diversity, and productivity of the forests it manages. This can take many forms, but one form, pertinent to the present case, is the Forest Service's authority to implement projects designed to reduce the risk of insect or disease infestation and increase the resilience of forest land to future catastrophic wildfires.

         On February 7, 2014, President Barack Obama signed The Agricultural Act of 2014 (the “2014 Farm Bill”), an amendment to the Healthy Forests Restoration Act (“HFRA”) of 2003. Most projects under HFRA must comply with the review requirements of the National Environmental Policy Act (“NEPA”) in that the Forest Service must prepare certain reports and assessments, allow a period of public comment, and investigate reasonable alternatives to the proposed projects. 16 U.S.C. § 6514(b).

         That said, the purpose of HFRA is to prioritize projects intended to address the threats to forest health posed by catastrophic wildfire, disease, and insect infestation. See, e.g., H.R. REP. No. 108-96, pt. 1, at 3 (2003). Recognizing the “extraordinarily lengthy procedural and documentation requirements that federal land managers face” as an obstacle to completing urgent forest health work, Congress included in HFRA numerous procedures designed to reduce the burden of NEPA analyses. Id. These include expedited NEPA procedures for specified hazardous fuel reduction projects, 16 U.S.C. § 6514, and a categorical exclusion from NEPA for specified silvicultural treatments, id. § 6554(d). In short, there are limited and specific exceptions to the general requirements that HFRA projects comply with the review requirements of NEPA.

         For context, a brief history of NEPA is helpful. Congress enacted NEPA, 42 U.S.C. §§ 4321-4370m-12, to establish a process for federal agencies to consider the environmental impacts of major federal actions. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 558 (1978). NEPA imposes procedural, rather than substantive requirements, and it is “well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012). Regulations promulgated by the Council on Environmental Quality (“CEQ”), 40 C.F.R. §§ 1500-1508, provide guidance for implementation of NEPA and are entitled to substantial deference. Robertson, 490 U.S. at 355.

         Forest Service actions that directly affect the physical environment are generally subject to NEPA and-pursuant to regulations promulgated by the Forest Service and CEQ-are analyzed in either an environmental impact statement (“EIS”), an environmental assessment (“EA”), unless it falls under a categorical exclusion (“CE”). See 40 C.F.R. §§ 1500.1-1508.28; 36 C.F.R. § 220.6. CEs are classes of actions that “do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency . . . .” 40 C.F.R. § 1508.4.

         Under NEPA, federal agencies must prepare an EIS for “major Federal actions significantly affecting the quality of the human environment . . . .” 42 U.S.C. § 4332(2)(C). To determine whether an action requires an EIS, the agency may prepare an EA, which is a “concise” analysis that may result in a finding of no significant impact (“FONSI”). 40 C.F.R. § 1501.4(b). “If the agency concludes there is no significant effect associated with the proposed project, it may issue a FONSI in lieu of preparing an EIS.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006).

         Notably, NEPA does not apply to federal actions that Congress has explicitly exempted from the statute's requirements. See, e.g., 36 C.F.R. § 220.4(a)(4) (indicating that proposed actions are not subject to NEPA when they are “statutorily exempt”). For example, Section 602 of the 2014 Farm Bill provides that state governors may designate certain treatment areas for immediate consideration in order to address insect or disease threats.

         This 2014 Farm Bill CE for forest resilience projects specifically legislates an exemption from the environmental analysis and public involvement requirements of NEPA for insect or disease infestation reduction projects up to 3, 000 acres in size in designated areas. In other words, if the projects falls within specified parameters, the Forest Service is not required to produce a detailed environmental impact statement under NEPA. 16 U.S.C. § 6591b.

         The 2014 Farm Bill CE authorizes the Forest Service to first designate landscape-scale treatment areas where there is declining forest health from insect or disease infestation, and then it conditionally permits the Forest Service to undertake treatment projects of up to 3, 000 acres in size in these designated areas. To qualify for the legislative exemption, such projects must “maximize[] the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands[2] that are resilient to insects and disease” and, “consider[] the best available scientific information to maintain or restore the ecological integrity, including maintaining or restoring structure, function, composition, and connectivity.” 16 U.S.C. § 6591b(b)(1)(A)-(B).

         In 2014, the Governor of Idaho wrote a letter asking the Secretary of Agriculture to designate certain landscape-scale treatment areas within the National Forest System lands in Idaho that were at high risk of insect and disease mortality. The Governor identified more than 1.8 million acres for priority treatment, and observed that multiple agencies, organizations, and citizens contributed to this collaborative effort to propose treatment areas. As a result, the Chief of the Forest Service designated these areas as “landscape-scale insect and disease areas” prioritized for treatments under HFRA. Portions of the Nez Perce-Clearwater National Forest, such as the Windy-Shingle Project area, were included in these designations.

         The Forest Service identified the need to reduce the risk of insect and disease infestation as well as reduce the threat of wildfire to the local communities and surrounding federal land in the Windy-Shingle Project (the “Project”) area. Consequently, the Forest Service initiated the Project in September 2016, to address forest health and hazardous fuel concerns. According to the Forest Service, the authorized treatments projects it plans to undertake in the 2, 709 acres of the 24, 000-acre Project area will move the area toward desired plant/tree stand conditions and help create a healthier and more resilient landscape.

         In an October 2017 Decision Memorandum (the “Decision”) approving the Project, the Forest Service authorized timber harvest on 2, 510 acres, all of which are located in areas designated by the Forest Service as areas suitable for timber management. The authorized timber harvest consists of 1, 304 acres of intermediate harvest and 1, 206 acres of regeneration harvest. Intermediate harvest, or thinning, will remove smaller trees that are diseased or dead and focus on areas where the growth of western larch or ponderosa pine can be enhanced or maintained. Regeneration harvest will create a new age class of preferred and more resilient species, with the exception of single or patches of trees left as shelterwood or seed trees in certain treatment areas.

         In addition to timber harvest, the Project authorizes fuel treatments to reduce hazardous fuel loads. The Forest Service's Windy-Shingle Project Decision (the “Decision Memorandum”) authorizes a fuel break of approximately twenty-nine acres adjacent to private land. This fuel break is intended to slow advancing fires and provide firefighters with improved access and safety in the event of a wildfire. The Decision Memorandum also authorizes prescribed burning on approximately 126 acres to consume surface fuels and ladder fuels (firefighting terms for live or dead vegetation that allows a fire to “climb” up from the forest floor to the canopy) without impacting the canopy. Finally, the Forest Service will apply rehabilitation treatments to one forty-four-acre unit consisting of noncommercial-sized Grand fir and Douglas fir pole timber infested with mistletoe. These stands will be clear-cut, burned, and replanted with Western larch.

         In the present case, Plaintiffs challenge the Forest Service's Decision to implement the Windy-Shingle Project on the Nez Perce National Forest pursuant to the 2014 Farm Bill categorical exclusion. Plaintiffs allege that, in approving this project, the Forest Service has not stayed within their statutory scope or complied with their own governing forest plan.

         B. Procedural Background

         Plaintiffs filed the instant Complaint on October 23, 2018, requesting that the Court issue a declaratory judgment finding that the Windy-Shingle Project was not authorized pursuant to law and to enjoin its implementation. Plaintiffs' identify three claims for relief: 1) The Decision violates the Healthy Forest Restoration Act (specifically, that the McClinery gravel-pit expansion violates HFRA); 2) The Decision violates the National Forest Management Act (“NFMA”) and HFRA (specifically, the protection of “old-growth” trees); and 3) The Decision violates NEPA, the NFMA, and HFRA (specifically, the Forest Service's failure to supplement its analysis after the Rattlesnake Creek fire).

         Plaintiffs have standing to bring these specific claims because their members would otherwise have standing to sue in their own right. Additionally, the interests at stake are germane to each organization's purpose, and neither the claims asserted, nor the relief requested, require the participation of individual members in the lawsuit. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 181 (2000). “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702; see also Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 882 (1990).

         As an administrative agency review lawsuit, discovery in this case was limited to the administrative record. Following this limited “discovery, ” the parties filed cross-motions for Summary Judgment. Dkts. 16, 18.

         Plaintiffs subsequently filed a Motion to Supplement Extra-Record Evidence in an effort to provide certain material to the Court in aid of its decision. Dkt. 20. Defendants oppose the supplemental motion. Dkt. 23.

         Defendants also filed a Notice of Supplement Authority (Dkt. 25), which Plaintiffs object to (Dkt. 26), asserting the cases are inapposite and/or irrelevant.[3]

         III. LEGAL STANDARD

         In the context of agency review, “[s]ummary judgment . . . serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006). Because of the court's limited review under the APA, the summary judgment standard of Rule 56(a) does not apply when motions for summary judgment are sought in agency review cases. See Fulbright v. McHugh, 67 F.Supp.3d 81, 89 (D.D.C. 2014).

         A court's review of an agency's compliance with the NFMA, NEPA, and HFRA is governed by the Administrative Procedure Act (“APA”). Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (“Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act.” (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005)); see also Native Ecosystems Council v. Erickson, 330 F.Supp.3d 1218, 1228 (D. Mont. 2018) (“Because HFRA includes no private right of action, agency actions under HFRA are [] reviewed under the APA.”).

         In this context, the Court's role “is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). Under the APA, agency action must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).[4] A court also applies the APA standard to an agency action alleged to be “in excess of statutory jurisdiction, authority, or limitations[.]” 5 U.S.C. § 706(2)(C).

         “[T]his standard is highly deferential, presuming that agency action to be valid.” Cal. Wilderness Coal. v. U.S. Dep't of Energy, 631 F.3d 1072, 1084 (9th Cir. 2011) (quoting Nw. Ecosystem All. v. FWS, 475 F.3d 1136, 1140 (9th Cir. 2007)); see also River Runners for Wilderness v. Martin, 593 F.3d 1064, 1067 (9th Cir. 2010). The Court must “not substitute [its] judgment for that of the agency.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quotation omitted), abrogated on other grounds by Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008). “The agency's action need only be a reasonable, not the best or most reasonable, decision.” River Runners, 593 F.3d at 1067 (internal quotations omitted).

         Thus, the Court may not overturn an agency decision “because it disagrees with the decision or with the agency's conclusions about environmental impacts.” Id. at 1070. It must “affirm[] the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem All., 475 F.3d at 1140. For an action to be upheld, the agency need only articulate a “rational connection between the fact found and choices made.” Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

         The Court is to be “most deferential” when, as here, “the agency is making predictions, within its [area of] special expertise, at the frontiers of science.” Lands Council, 537 F.3d at 993 (quotations and citation omitted); accord Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). When examining an agency's “scientific determinations . . . a reviewing court must generally be at its most deferential.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).

         IV. ANALYSIS

         A. Motions for Summary Judgment

         In their Motion for Summary Judgment, Plaintiffs assert that the Forest Service exceeded its statutory authority as applied to their first two causes of action: 1) by approving the expansion of the McClinery Pit; and 2) by failing to comply with the governing forest plan maintaining old-growth trees. Plaintiffs did not request summary judgment on their third cause of action and, in fact, conceded that claim at oral argument.

         Defendants' Motion for Summary Judgment argues the inverse of Plaintiffs' contentions. Said differently, the parties move for summary judgment on the same issues. Accordingly, the Court will address the motions for summary judgment simultaneously as to each of the disputed topics.

         1. Gravel Pit Expansion (Claim One)

         As part of its Decision Memorandum approving the Windy-Shingle Project, the Forest Service included a proposal to expand an existing gravel pit in the affected area- the McClinery gravel pit-by three acres. Plaintiffs claim the Forest Service is exceeding their authority with this proposal.

         The Forest Service originally developed the McClinery gravel pit in 1990 as part of the Shingle Forks Timber Sale. The Forest Service has historically used the McClinery pit as a source of aggregate for the formation and resurfacing of roads in the area. In the Decision Memorandum for the Windy-Shingle Project, the Forest Service authorized-as part of its efforts to implement the necessary forest restoration and fuel management treatments-the maintenance, repair, and reconstruction of certain existing roads, and the construction of 3.9 miles of temporary roads that the Forest Service will decommission within three years after Project completion.

         The Forest Service argues that the McClinery pit is necessary because Forest Service roads in the Project area are not paved; instead, these roads require gravel resurfacing and grading and the McClinery pit provides the Forest Service with a local source of materials for this type of road maintenance. The Forest Service explains that it does not intend to construct any new permanent roads and that about 5.6 miles of currently existing roads in the Project area will be decommissioned at the end of the Project, along with the 3.9 miles of temporary roads constructed just for these project objectives. The Forest Service plans to reserve topsoil at the pit and to reseed the area following implementation.

         The Forest Service's purported intentions aside, Plaintiffs assert that the expansion of the McClinery pit is not authorized under HFRA. The congressional CE under which Idaho's governor designated the Project area for priority treatment is limited to a “forest resilience project” which permits “authorized hazardous fuel reduction projects” 16 U.S.C. § 6591a(d)(3), not gravel pit projects.

         “Authorized hazardous fuel reduction projects” is a statutory term defined by HFRA itself to include only those “measures and methods described in the definition of ‘appropriate tools' contained in the glossary of the Implementation Plan . . . .” 16 U.S.C. § 6511(2)(A). HFRA further defines “Implementation Plan” as follows:

The term “Implementation Plan” means the Implementation Plan for the Comprehensive Strategy for a Collaborative Approach for Reducing Wildland Fire Risks to Communities and the Environment, dated May 2002, developed pursuant to the conference report to accompany the Department of the Interior and Related Agencies Appropriations Act, 2001 (House Report No. 106-64) (and subsequent revisions).

16 U.S.C. § 6511(11). In turn, “appropriate tools” for an “authorized hazardous fuel reduction project” refers to methods for reducing hazardous fuels, such as “prescribed fire, wildland fire use, and various mechanical methods such as crushing, tractor and hand piling, thinning (to produce commercial or pre-commercial produces), and pruning.” See Implementation Plan, p. 18 (glossary).[5]

         Plaintiffs claim that the construction or expansion of a gravel pit is not a method for “reducing hazardous fuels” and, furthermore, that the expansion of the McClinery gravel pit exceeds the scope of this project by the Forest Service's own admission: “During analysis, expansion was determined to be necessary to support this and future projects in the area.” AR 08191 (Decision Memorandum).[6] Plaintiffs assert that this last phrase is a smoking gun and reveals the Forest Service's true intentions: it wants to expand the gravel pit for future projects, but didn't want to perform any environmental analysis under NEPA, so the agency threw it in with the Windy-Shingle Project.

         Additionally, Plaintiffs contend that the express statutory language, as well as the 2014 Farm Bill itself, does not mention or provide authority for an activity like gravel pit expansion. “The doctrine of expression unius est exclusio alterius as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 885 (9th Cir. 2005). Here, Congress has expressly authorized limited projects to land of a certain size, type, and in certain locations, as well as specifying “appropriate tools” for such “authorized hazardous fuel reduction projects.” Importantly, within the 2014 Farm Bill, Congress placed limits on the activity of road construction. When utilizing the 2014 Farm Bill's authority to exempt a project from NEPA review, an agency may not construct permanent roads and must decommission any temporary roads within three years of project completion. 16 U.S.C § 6591b(c)(3). These are the only activities Congress has expressly provided for outside of using “appropriate tools” to reduce “hazardous fuels.”

         At the outset, the Forest Service rejects the assertion that it buried this expansion in the Windy-Shingle Project to get it approved. Furthermore, the Forest Service notes that HFRA allows the Forest Service to “carry out necessary maintenance and repairs on existing permanent roads.” 16 U.S.C. § 6591b(c)(3)(A)(ii). In their view, Plaintiffs are unnecessarily narrowing the exception by claiming that any action must directly reduce hazardous fuels. Contrary to this assertion, Defendants posture that the repair of roads is inherent in projects like this and of necessity must be allowed. The Forest Service describes that even under Plaintiffs “Congressional limits” argument, its expansion and maintenance is within compliance because it is not constructing new roads and plans to decommission all temporary roads within the proscribed timeframes. Finally, the Forest Service makes clear that the Forest Service Handbook requires the use of “economically available materials” for road aggregate surfacing material and that the McClinery pit provides a local source of aggregate, which translates into lower costs and eliminates the need for longer gravel haul distances. Forest Service Handbook 7709.56, ch. 47.2.6. Though somewhat unrelated, the Forest Service also claims that under the public notice requirements of HFRA, it provided the public with an opportunity to comment on this issue and because no opposition was raised at that time, Plaintiffs are being myopic in their analysis and just trying to thwart the project by any means possible.

         In response to the Forest Service's explanation, Plaintiffs assert that “maintenance and repair”-as found in HFRA-does not include an “open-pit mine” that is “sometimes used in the activity of maintaining roads” and that Defendants are attempting to “bootstrap mining activities within a national forest.” Dkt. 19, at 2-3. Plaintiffs argue that while the phrase “maintenance and repair” is never defined in HFRA, it is not ambiguous nor open to interpretation, and “cannot reasonably encompass” the activities contemplated for by the Forest Service. Id. at 4. Plaintiffs assert that were the Court to accept this “one thing leads to another” definition, it would result in the inevitable finding that anything remotely related to roads (such as culverts, bridges, and, importantly, harvesting the materials needed for such builds) is included in the definition of “maintenance and repair.” Plaintiffs also ...


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