Alliance for the Wild Rockies v. U.S. Forest Serv.
| Decision Date | 01 December 2020 |
| Docket Number | No. 2:19-cv-00350-SMJ,2:19-cv-00350-SMJ |
| Citation | 504 F.Supp.3d 1162 |
| Court | U.S. District Court — District of Washington |
| Parties | ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. UNITED STATES FOREST SERVICE, Vicki Christiansen, Chief of the Forest Service, Kristin Bail, Forest Supervisor for the Okanogan-Wenatchee National Forest Service, Glenn Casamassa, Regional Forester for Region 6 for the U.S. Forest Service, and United States Fish and Wildlife Service, Defendants. |
Claudia M. Newman, Zachary Knox Griefen, David A. Bricklin, Bricklin & Newman LLP, Seattle, WA, Kristine M. Akland, Akland Law Firm PLLC, Missoula, MT, for Plaintiff.
John T. Drake, U.S. Attorney's Office, Spokane, WA, Vanessa Ruth Waldref, US Department of Justice, Washington, DC, for Defendant United States Forest Service.
Vanessa Ruth Waldref, US Department of Justice, Washington, DC, for Defendants Vicki Christiansen, Kristin Bail, Glenn Casamassa, United States Fish and Wildlife Service.
ORDER GRANTING GOVERNMENT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The Mission Restoration Project ("Mission Project" or "Project") encompasses about 50,200 acres of federal lands in the Methow Valley near Twisp, Washington. The Project primarily involves the Libby Creek and Buttermilk Creek drainage basins but also comprises a small portion of the Twisp River watershed. Over the past couple centuries, historical forest management practices like fire suppression, road building, and livestock grazing have led to a deterioration in hydrologic function, aquatic habit, wildlife habitat, soil productivity, and vegetation composition, among other things. When combined with the continuing impacts of climate change, these past management practices have created hazardous forest conditions—from an increased risk for extreme wildfires to reduced instream flows. The Mission Project aims to restore the Libby and Buttermilk Creek landscapes to be more resilient to wildfire and climate change.
Plaintiff Alliance for the Wild Rockies ("Alliance") moves for summary judgment, challenging the Project on three grounds. First, it claims the Project is inconsistent with the Okanogan National Forest Land and Resource Management Plan, which violates the National Forest Management Act, 16 U.S.C. § 1600, et seq. It next argues the United States Forest Service's failure to prepare an environmental impact statement violates the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. Finally, it insists that the Forest Plan and the Mission Project violate the Endangered Species Act, 16 U.S.C. § 1531, et seq. Defendants United States Forest Service, Vicki Christiansen, Kristin Bail, and Glenn Casamassa ("Forest Service"), as well as United States Fish and Wildlife Service ("FWS") (collectively, "Defendants") disagree and cross-move for summary judgment.
For the reasons discussed below, this Court grants Defendants' cross-motion for summary judgment and denies Alliance's motion for summary judgment.
The National Forest Management Act of 1976 ("NMFA") requires the Secretary of Agriculture ("Secretary") "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System" ("NFS"). 16 U.S.C. § 1604. The Secretary has promulgated several regulations which set out the planning requirements for developing, amending, and revising land management plans for NFS units. See generally 36 C.F.R. §§ 219.1 – 219.19.
In 1989, the Forest Service issued the Okanogan National Forest Land and Resource Management Plan and Final Environmental Impact Statement ("Forest Plan"). AR 00003.
Plans ... guide management of NFS lands so that they are ecologically sustainable and contribute to social and economic sustainability; consist of ecosystems and watersheds with ecological integrity and diverse plant and animal communities; and have the capacity to provide people and communities with ecosystem services and multiple uses that provide a range of social, economic, and ecological benefits for the present and into the future.
36 C.F.R. § 219.1(c). Still, "[a] plan may be amended at any time." 36 C.F.R. § 219.13(a). And "[p]lan amendments may be broad or narrow, depending on the need for change, and should be used to keep plans current and help units adapt to new information or changing conditions." Id.
In 2012, the Forest Service issued the Okanogan-Wenatchee National Forest Restoration Strategy ("Restoration Strategy"), a rigorous strategy for restoring the sustainability and resiliency of forested ecosystems on the Okanogan-Wenatchee National Forest ("OWNF"). AR 16786. Many peer-reviewed scientific studies have shown that the OWNF is at risk for abnormally large and severe wildfires and insect outbreaks. U.S. Forest Service, The Okanogan-Wenatchee National Forest Restoration Strategy: Adaptive Ecosystem Management to Restore Landscape Resiliency (2012), https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5340103.pdf. The Restoration Strategy thus developed a framework for integrated landscape evaluation and project development to help facilitate restoration of at-risk federal lands. Id.
Several interested stakeholders subsequently identified the Mission Project as an at-risk area requiring restoration within the OWNF. In particular, a diverse group of local stakeholders called the North Central Washington Forest Health Collaborative ("Forest Collaborative") partnered with the Forest Service during its early evaluation and project development phase. See AR 12325. The Forest Collaborative developed two documents in the National Environmental Policy Act ("NEPA") pre-scoping phase, which the Forest Service used to develop the proposed action: (1) the Mission Landscape Prescription and Treatment Recommendations and (2) the Mission Aquatics Assessment Report. U.S. Forest Service, Mission Restoration Project Pre-Scoping , (Apr. 18, 2016), https://www.fs.usda.gov/project/?project=49201. The first report provided direction and targets for addressing deteriorating conditions and restoring more resilient landscapes in the Libby and Buttermilk watersheds; the second report provided a compilation of existing aquatics data and information for those watersheds. See id.
NEPA requires federal agencies to incorporate environmental considerations into their planning and decision-making through a systematic interdisciplinary approach. 42 U.S.C. § 4332. All federal agencies must prepare detailed statements assessing environmental impacts and alternatives to major federal actions significantly affecting the environment. Id. The President's Council on Environmental Quality ("CEQ"), which oversees NEPA, calls these statements Environmental Impact Statements ("EIS") and Environmental Assessments ("EA"). E.g. , 40 C.F.R. § 1501.3. CEQ has promulgated many regulations implementing NEPA's procedural provisions. See generally 40 C.F.R. §§ 1500–1508 (2018).1
In the spring of 2016, the Forest Service progressed to NEPA's scoping phase, proposing aquatic, soil, and vegetation restoration activities in the Mission Project area. AR 08560–08567. The Forest Service issued the Mission Project scoping letter, inviting interested citizens and stakeholders to participate by providing comments. Id. It also conducted government-to-government consultations with the Confederated Tribes of the Colville Reservation and the Confederated Tribes and Bands of the Yakama Nation ("Yakama Nation"). AR 16794. All said, it received and responded to over 900 scoping comments while developing its preliminary EA. AR 15785–16674; AR 16675–77.
The Forest Service made its preliminary EA for the Mission Project available for review in January 2017. AR 12447–869. That document proposed an amendment to the Forest Plan yet failed to assess how the amendment related to NFS land management planning regulations. AR 14745 (citing 36 C.F.R. 219.8 – 219.11 ). The Forest Service thus found the preliminary EA inadequate because the analyses for the Forest Plan amendments disregarded specific land management planning regulations. Id. It published a revised preliminary EA in June 2017, which provided the required regulatory analysis, but made no other substantive changes to the Mission Project. Id. ; see also AR 13369–814.
The revised preliminary EA addressed the purpose and need for the Mission Project, alternatives considered but eliminated from detailed study, alternatives developed and a comparison of those alternatives, Forest Plan amendments, design criteria, mitigation measures, and monitoring. AR 13369–814. It also detailed existing Project area conditions and any environmental consequences to water resources, soils, vegetation, fire and fuels, wildlife, transportation, botany, range, invasive species, recreation and scenic resources, air quality, economics, and other required disclosures. Id. The revised preliminary EA further listed agencies and persons consulted, including tribes, local governments, and individuals. Id. The Forest Service invited public comment and objections on the revised preliminary EA before issuing its final EA. Id.
Apart from its obligations under NFMA and NEPA, the Endangered Species Act ("ESA") requires the Forest Service (and other federal action agencies) to ensure that the actions it authorizes, funds, or carries out do not jeopardize the existence of any species listed under the ESA or destroy or adversely modify designated critical habitat of any listed species. See 16 U.S.C. § 1536(a)(2). To that end, Section 7 of the ESA obliged the Forest Service to consult with the National Oceanic and Atmosphere Administration's ("NOAA") National Marine Fisheries Service ("Fisheries") for marine species and FWS for terrestrial and freshwater species. See id. ; see also § 1536(c)(1) (). The Forest...
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