Northwest Ecosystem Alliance v. Rey

• Decision Date: 01 August 2005
• Docket Number: No. C04-844P.,C04-844P.
• Parties: NORTHWEST ECOSYSTEM ALLIANCE, et al., Plaintiffs, v. Mark E. REY, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

380 F.Supp.2d 1175

NORTHWEST ECOSYSTEM ALLIANCE, et al., Plaintiffs, v. Mark E. REY, et al., Defendants.

No. C04-844P.

United States District Court, W.D. Washington, at Seattle.

August 1, 2005.

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Corrie Johnson Yackulic, Schroeter Goldmark & Bender, Seattle, WA, Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Stephanie M. Parent, Pacific Environmental Center, Portland, OR, for Plaintiffs.

Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Paul D. Barker, Jr., U.S. Department of Justice, Washington, DC, Scott W. Horngren, Haglund Kirtley Kelley & Horngren, Portland, OR, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION AND DENYING DEFENDANTS' MOTION

PECHMAN, District Judge.

This matter comes before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 40 & 58). Having reviewed the pleadings, the administrative record, and the additional supporting materials and having heard oral argument by the parties, the Court hereby GRANTS in part and DENIES in part Plaintiffs' motion and DENIES Defendants' motion. Defendants failed to comply with the National Environmental Procedure Act ("NEPA"), 42 U.S.C. § 4321 et seq., in preparing the 2004 Final Supplemental Environmental Impact Statement to Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines ("2004 SEIS"). Defendants failed to analyze potential impacts to Survey and Manage species if they are not added to or are removed from the Forest Service's and BLM's respective programs for special status species. Defendants failed to provide a thorough analysis of their assumption that the late-successional reserves would adequately protect species that the Survey and Manage standard was introduced to protect, particularly in light of their previous positions in earlier environmental impact statements. Lastly, the Survey and Manage standard was deemed a hindrance to hazardous fuel treatments, which served as part of the justification for eliminating the standard. However, Defendants failed to disclose and analyze flaws in their methodology for calculating the acreage in need of hazardous fuel treatments. Part of the cost analysis was similarly flawed because it relied on the acreage in need of hazardous fuel treatments in calculating the cost of the Survey and Manage standard.

The Court does not reach Plaintiffs' claims under the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601 et seq., and the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701. Pending further compliance by the Agencies with NEPA, there is no need to address the merits of Plaintiffs' NFMA and FLPMA claims.

The Court denies without prejudice Plaintiffs' request for an injunction. Further briefing on this issue is necessary. The Court will not enter a final judgment until it has ordered the appropriate injunctive relief.

BACKGROUND

A coalition of environmental and conservation groups have filed suit against the Departments of Agriculture and Interior (collectively "the Agencies") challenging actions taken by the Agencies in 2004 to eliminate from the Northwest Forest Plan a particular set of standards and guidelines, called the "Survey and Manage" standard, used to protect certain rare and uncommon species in forested land in Washington, Oregon, and northern California. The current controversy originates with the controversy that began in the early 1990s over the spotted owl and logging in old growth forests in these three states.

In Seattle Audubon Soc'y v. Evans, 771 F.Supp. 1081 (W.D.Wash.1991), aff'd 952 F.2d 297 (9th Cir.1991), the honorable William L. Dwyer enjoined the Forest Service from selling logging rights until it adopted standards and guidelines to ensure the viability of the owl. In response, the Forest Service prepared an environmental impact statement ("EIS") and issued a Record of Decision ("ROD") adopting the Forest Service's preferred alternative from the EIS. In Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1473 (W.D.Wash.1992), aff'd sub nom. Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir.1993), Judge Dwyer rejected the Forest Service's EIS and the ROD because the Forest Service had not complied with NEPA.

In 1993, President Clinton created an interagency, interdisciplinary team called the Forest Ecosystem Management Assessment Team ("FEMAT") to address the issues raised in the on-going spotted owl litigation. He directed the FEMAT to adopt an ecosystem management approach. The FEMAT evaluated and identified ten alternative management options for the forested land at issue; it recommended Option 9. (Forest Ecosystem Management: An Ecological, Economic, and Social Assessment ("the FEMAT report")).¹ In 1994, the Departments of Agriculture and Interior prepared a supplemental environmental impact statement ("SEIS") to assess these ten alternatives; they identified Alternative 9 (which was based on Option 9 in the FEMAT report) as the preferred alternative. In 1994, the Secretaries issued a ROD adopting Alternative 9, which became known as the Northwest Forest Plan ("the Plan"). In 1994, Judge Dwyer upheld the legality of the Plan. Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir.1996).

The purpose of the Plan is two-fold: first to protect the long-term health of the forest ecosystem, and second to provide a sustainable supply of timber and other forest products. (94 ROD 25-26).² The Plan covers 24.5 million acres of Forest Service and Bureau of Land Management ("BLM") land in Washington, Oregon, and northern California that is within the range of the northern spotted owl. There are three categories of land under the Plan: 1) "Reserves" which is made up of Congressionally Reserved Areas, Late-Successional Reserves ("LSRs"), Administratively Withdrawn Areas, and Riparian Reserves, 2) "Matrix" where most timber cutting occurs, and 3) Adaptive Management Areas ("AMAs") for the development and testing of new management approaches. The Reserves are designed to protect late-successional and old-growth habitat and manage previously disturbed forests so that they may become late-successional forests. (94 ROD 8).

Of the 24.5 million acres of land under the Plan, the Reserves make up approximately 19 million (78%), the Matrix makes up 4 million (16%), and the AMAs make up 1.5 million (6%). Of the total 24.5 million acres, approximately 8 million acres are late-successional and old-growth³ ("LSOG") forests. Of this 8 million, approximately 6.9 million (86%) is in the Reserves and 1.1 million (14%) is in the Matrix and AMAs.

When the Agencies were preparing the SEIS based on the FEMAT report, public comments prompted them to conduct additional evaluations of certain species associated with LSOG forests. As a result of these evaluations, the Agencies added certain mitigation measures, also called standards and guidelines, "to increase protection of habitat for species whose habitat assessments were relatively low under Alternative 9 [based on Option 9 from the FEMAT report]." (94 SEIS B-143). These measures were adopted in the 1994 ROD, thus becoming part of the Plan. There were four primary mitigation measures: 1) manage known sites of certain species; 2) conduct surveys prior to ground-disturbing activities; 3) conduct extensive surveys to find high priority sites for hard-to-find species; and 4) conduct general regional surveys to gain information about poorly known species. (94 SEIS B-143 to 144). Grouped together, these are known as the "Survey and Manage" standards and guidelines. Approximately 400 species, which included both vertebrates and non-vertebrates, were listed under the Survey and Manage standard. (94 SEIS B-150-162; 94 ROD C4-5).

In 2000, the Agencies prepared a SEIS to evaluate the Survey and Manage standard. The Agencies sought to evaluate their previous six years of experience in administering the Survey and Manage standard and to respond both to unforeseen problems that had developed since its implementation and additional information learned about the species, which together left the Agencies "unable to fully meet the original purpose and need" of the Plan. (00 SEIS 9-10). The 2001 ROD amended certain provisions of the Survey and Manage standard to streamline its implementation. (01 ROD 8).

In 2001, timber industry groups challenged the 2001 ROD alleging that timber producing land had been transferred to permanent reserves in violation of various substantive environmental statutes governing management of forest land. Environmental groups also challenged the 2001 ROD. The cases were consolidated (before an Oregon district court). The Agencies and the timber industry entered a settlement agreement requiring the Agencies to consider in a new SEIS completely eliminating the Survey and Manage standard and instead rely on specific programs run by the BLM and Forest Service to protect certain species. Douglas Timber Operators v. Rey, No. 01-6378-AA (D.Or.). (04 SEIS2 180; 04 SEIS 5, 20-21). The environmental groups dismissed their lawsuit pending the new SEIS.

The Agencies prepared a SEIS in January, 2004. The 2004 SEIS examined three alternatives: 1) retaining the Survey and Manage standard (the no-action alternative), 2) eliminating it, and 3) retaining but modifying it to remove the uncommon species category, eliminating the pre-disturbance survey requirement for young forest stands, and changing the review process for excepting known sites from management. (04 SEIS 24). Eliminating the Survey and Manage standard was the preferred alternative. In March, 2004, the Agencies issued a Record of Decision to Remove or Modify the Survey and Manage Mitigation Measure Standards and Guidelines ("2004 ROD") adopting the preferred alternative identified in the 2004 SEIS.

The...