United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
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.
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
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. 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.
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. §
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
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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
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).
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,
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.
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.
also filed a Notice of Supplement Authority (Dkt. 25), which
Plaintiffs object to (Dkt. 26), asserting the cases are
inapposite and/or irrelevant.
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).
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
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). 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).
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).
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
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)).
Motions for Summary Judgment
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
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.
Gravel Pit Expansion (Claim One)
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.
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
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
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.
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).
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). 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
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
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.
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