Alliance for the Wild Rockies v. Pena

• Decision Date: 02 October 2018
• Docket Number: NO: 2:16-CV-294-RMP,: 2:16-CV-294-RMP
• Court: U.S. District Court — District of Washington
• Parties: ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. JIM PENA, in his official capacity as Regional Forester of Region Six U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the United States; and RODNEY SMOLDON, in his official capacity as Supervisor of the Colville National Forest, Defendants.

ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. JIM PENA, in his official capacity

as Regional Forester of Region Six U.S. Forest Service;

UNITED STATES FOREST SERVICE,

an agency of the United States; and RODNEY SMOLDON,

in his official capacity as Supervisor

of the Colville National Forest, Defendants.

NO: 2:16-CV-294-RMP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

October 2, 2018

ORDER GRANTING DEFENDANTS' AND INTERVENING DEFENDANTS' CROSS MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Alliance, challenged the U.S. Forest Service's decision to approve the North Fork Mill Creek A to Z Project ("A to Z Project"), a restoration, logging, and timber sale venture in the Colville National Forest. The U.S. Forest Service contracted with a private entity, Vaagen Brothers, to perform the work. Vaagen Brothers was the only bidder for the contract. As part of the contract, Vaagen Brothers contracted with Cramer Fish Services to perform an environmental assessment of the project. After reviewing the extensive briefing in this matter, and considering the arguments and law, the Court concludes that the bidding process that the U.S. Forest service used was open and fair, with no conflict of interest among the parties. The Court further concludes that Defendants were not arbitrary and capricious in their environmental analysis of the A to Z Project. Therefore, the Court finds in favor of Defendants and dismisses all of Alliance's claims with prejudice.

BACKGROUND

Before the Court are Plaintiff's Motion for Summary Judgment, ECF Nos. 103 & 104¹; a Cross Motion for Summary Judgment, ECF No. 106, by Defendants Jim Pena, Rodney Smoldon, and the United States Forest Service (collectively, "Forest Service Defendants"); and a Cross Motion for Summary Judgment, ECF No. 111, by Intervening Defendants Northeast Washington Forestry Coalition, Pend Oreille County, and Stevens County (collectively, "County Defendants"). The Court heard oral argument on August 22, 2018. Brian A. Ertz and Richard A. Poulin appeared on behalf of Plaintiff Alliance for the Wild Rockies. Rudolf J. Verschoor and Vanessa R. Waldref appeared on behalf of the Forest ServiceDefendants. Lawson Emmett Fite appeared on behalf of the intervening County Defendants.

Plaintiff Alliance for the Wild Rockies ("Alliance") sued the Forest Service Defendants under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., to challenge the Forest Service's decision to approve the North Fork Mill Creek A to Z Project ("A to Z Project"), a restoration, logging, and timber sale venture in the Colville National Forest. See ECF No. 100. Alliance alleges violations of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq. Id.

Specifically, Alliance challenges the Forest Service Defendants' June 13, 2016, Decision Notice and Finding of No Significant Impact ("DN/FONSI") approving the A to Z Project Environmental Assessment. ECF No. 104. The A to Z Project is a proposed project in the Colville National Forest, which is managed in accordance with the Colville National Forest Land and Resource Management Plan ("Forest Plan"). AR 120866. To achieve desired future conditions identified in the Forest Plan, the Forest Service works within the parameters of the Forest Plan to engage in forest restoration, funded through commercial timber harvesting and supporting rural community needs. See ECF No. 106 at 2 (citing AR 120875-79; Section 347 of the Omnibus Consolidated Appropriations Act of FY 1999, as amended by Sec. 323 of P.L. 108-7).

The Forest Service awarded a stewardship contract to Vaagen Brothers Lumber to perform the A to Z Project. AR 124267. As part of the stewardship contract, Vaagen Brothers provided funding for the NEPA-required Environmental Analysis ("EA") of the project. AR 124214. Consistent with the instructions in the A to Z Project Contract requiring the contractor to hire a third party to perform the NEPA work, Vaagen Brothers proposed using Cramer Fish Services ("Cramer") as an independent contractor to complete the NEPA analysis, and the Forest Service approved Cramer's preparation of the A to Z Project EA. See ECF No. 87-5 at 3. Cramer assured the Forest Service that no potential conflicts of interest clouded its creation of the A to Z Project EA. Id.; see also AR 024095-96 (describing the steps taken to prevent a conflict of interest between Cramer and Vaagen Brothers).

On September 6, 2016, Alliance petitioned the Court for a Preliminary Injunction to halt all action on the A to Z Project. ECF No. 12. After receiving briefing from all parties and hearing oral argument, the Court denied Alliance's Motion for Preliminary Injunction. ECF No. 58. The Court also denied Alliance's motion seeking a stay and injunction pending appeal. See ECF No. 70. The Ninth Circuit Court of Appeals affirmed the Court's denial of a preliminary injunction. See Alliance for the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017); ECF No. 92.

The Court has subject matter jurisdiction over this matter pursuant to 28U.S.C. § 1331 as a civil action arising under the laws of the United States because Alliance alleges violations of the National Forest Management Act ("NFMA") and the National Environmental Policy Act ("NEPA"). See 28 U.S.C. § 1331.

DISCUSSION

Legal Standard for Summary Judgment

When parties file cross-motions for summary judgment, the Court considers each motion on its own merits. See Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). A court may grant summary judgment where "there is no genuine dispute as to any material fact" of a party's prima facie case, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). Because Alliance's claims arise under the APA, resolution of its claims "does not require fact finding on behalf of [the] court." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). The court may direct that summary judgment be granted to either party based upon de novo review of the administrative record. See Or. Nat. Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1109 (9th Cir. 2010).

Statutory Schemes

The National Forest Management Act, 16 U.S.C. § 1600 et seq., requires the Forest Service to create and maintain land and resource management plans for each national forest. 16 U.S.C. § 1604(a). Among other requirements, forest plans must"provide for diversity of plant and animal communities" as well as "insure that timber will be harvested from National Forest System lands only where . . . protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat." Id. § 1604(g)(3)(B) & (E)(iii). "After a forest plan is developed, all subsequent agency action . . . must comply with NFMA and the governing forest plan." Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).

The National Environmental Policy Act, 42 U.S.C. § 4321 et seq., "is a procedural statute intended to ensure environmentally informed decision-making by federal agencies." Tillamook Cty. v. U.S. Army Corp. of Eng'rs, 288 F.3d 1140, 1143 (9th Cir. 2002). NEPA requires agencies to take a "hard look" at the environmental effects of proposed agency actions. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). However, the statute does not mandate particular results. Tillamook Cty., 288 F.3d at 1143.

NEPA's regulations require the agency proposing the action to prepare an Environmental Assessment ("EA") which "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1). The EA "[s]hall include brief discussions of the need for the proposal, of alternatives asrequired by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." Id. § 1508.9(b). "If, in light of the EA, the agency determines that its action will significantly affect the environment, then an [environmental impact statement] must be prepared; if not, then the agency issues a [finding of no significant impact]." Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).

Standard of Review Under the Administrative Procedure Act

The Administrative Procedure Act ("APA") governs over NEPA and NFMA claims. Ecology Ctr., 574 F.3d at 656. Under the APA, agency action must be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or if it is "unsupported by substantial evidence." 5 U.S.C. § 706(2)(A) and (E). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." De La Fuente v. Fed. Deposit Ins. Corp., 332 F.3d 1208, 1220 (9th Cir. 2003) (citation omitted). In determining whether an agency decision is arbitrary and capricious, the United States Supreme Court ruled that

[r]eview under the arbitrary and capricious standard is deferential; we will not vacate an agency's decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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. We will, however, uphold a decision of less than idealclarity

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