Bark v. Bureau of Land Mgmt.

• Decision Date: 19 February 2014
• Docket Number: No. 3:12–cv–01656–AC.,3:12–cv–01656–AC.
• Court: U.S. District Court — District of Oregon
• Parties: BARK, Plaintiff, v. BUREAU OF LAND MANAGEMENT, Defendant.

998 F.Supp.2d 981

BARK, Plaintiff,

v.BUREAU OF LAND MANAGEMENT, Defendant.

No. 3:12–cv–01656–AC.

United States District Court,

D. Oregon.

Feb. 19, 2014.

Brenna B. Bell, Bark, Portland, OR, for Plaintiff.

Brian M. Collins, U.S. Department of Justice, Washington, DC, for Defendant.

ORDER

BROWN, District Judge.

Magistrate Judge John V. Acosta issued Findings and Recommendation (# 53) on December 18, 2013, in which he recommends the Court deny Plaintiff's Motion (# 18) for Summary Judgment, grant Defendant's Cross–Motion (# 30) for Summary Judgment, and enter a judgment dismissing this matter with prejudice. Plaintiff filed timely Objections to the Findings and Recommendation The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.2009); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) ( en banc ).

In Plaintiff's Objections Plaintiff reiterates the arguments contained in Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment, Response in Opposition (to Defendant's Cross–Motion for Summary Judgment) and Reply in Support of Plaintiff's Motion for Summary Judgment, and stated at oral argument. This Court has carefully considered Plaintiff's Objections and concludes they do not provide a basis to modify the Findings and Recommendation.

The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation.

CONCLUSION

The Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation (# 53), DENIES Plaintiff's Motion (# 18) for Summary Judgment, GRANTS Defendant's Cross–Motion (# 30) for Summary Judgment, and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

ACOSTA, United States Magistrate Judge:

Introduction

Plaintiff Bark (“Bark”) filed this action against the Bureau of Land Management (“BLM”) challenging BLM's decision to approve the Airstrip Timber Sale which allows the commercial thinning of just over 200 acres of BLM forest located in Clackamas County, Oregon (the “Sale”). Bark alleges BLM failed to follow the guidelines of the Salem Resource Management Plan adopted by BLM in 1995 (the “Salem Plan”) with regard to snag retention or special status species and, consequently, violated the Federal Land Policy Management Act (43 U.S.C. §§ 1701–1787)(“FLPMA”), Bark also alleges the environmental assessment relied on by BLM did not adequately address the direct or cumulative impacts of the Sale in violation of the National Environmental Policy Act (42 U.S.C. §§ 4321–4370)(“NEPA”). Both sides filed motions for summary judgment addressing all of the claims alleged in the complaint.

The court finds that the Sale complies with the Salem guidelines for the retention of snags and consideration of the effect of the Sale on special status species as required by FLPMA, and that BLM took the requisite “hard look” at the direct and cumulative impacts of the Sale in the manner required by NEPA. Accordingly, BLM's decision to approve the Sale was not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law. Bark's motion for summary judgment should be denied and BLM's motion for summary judgment should be granted,

Preliminary Procedural Matter

On August 28, 2013, Bark filed a Notice of Supplemental Authority informing the court that it had recently received new information from BLM which may bear on the pending summary judgment motions. The new information was a copy of a clarification of the snag, coarse wood, and green tree retention requirements in the Salem Plan which redefined the term “timber harvest” to apply only to regeneration harvests, or clear cuts, and not to the commercial thinning proposed in the Sale. The court requested briefing from both parties on whether the clarification should be considered and, if so, what effect the clarification would have on Bark's claims and the pending motions for summary judgment.

The parties agree that the clarification was not part of the record before the BLM at the time the relevant decision was made and, therefore, should not be considered by the court in its review of that decision. This is consistent with the Administrative Procedure Act, which is applicable to the court's review of BLM's decision, and case law construing the act. See5 U.S.C. § 706 (when reviewing agency actions, “the court shall review the whole record or those parts of it cited by a party”); Oregon Natural Desert Ass'n v. McDaniel, 282 F.R.D. 533, 536 (D.Or.2012) (“A court must base its review of a final agency action under the Administrative Procedure Act based on the ‘whole record’ ... which consists of ‘everything that was before the agency pertaining to the merits of its decision.’ ”); Stout v. U.S. Forest Serv., 869 F.Supp.2d 1271, 1276 (D.Or.2012) (the scope of review of an agency action “is limited to the administrative record before the Forest Service at the time the challenged decision was made.”) Additionally, BLM offered evidence that on September 10, 2013, the clarification was withdrawn. Accordingly, the court will not consider the clarification but will limit its review to the administrative record lodged by BLM with the court on March 8, 2013.

Background

The Sale contemplates the commercial thinning of 201 acres of naturally regrown second-growth forest and the clearing of six acres of vegetation within existing road right-of-ways on land owned by BLM in the North Fork Clackamas River and Lower Clackamas River watersheds (the “Land”) (Administrative Record (“AR”) at 308). Specifically, the Land is described as scattered lands located within the boundaries of T. 4 S., R. 5 E., sections 7 and 18, W.M. in Clackamas County, Oregon (the “Project Area”), (AR at 308,) The Project Area encompasses nearly 800 acres of BLM land. (AR at 666, 826.) The Sale would affect only twenty-seven percent of the Project Area, leaving the remaining seventy-three percent in its current condition, (AR at 322.)

The Land falls within the boundaries of, and is governed by, the comprehensive Northwest Forest Plan (“Northwest Plan”) implemented by the federal government in 1994 primarily to protect the then-threatened northern spotted owl. (AR at 637.) The Land is also, and more specifically, located within the Salem District and is governed by the Salem Plan, (AR at 637.)

The stated purpose of the Sale is to ensure that the Lands are managed in accordance with the Salem Plan which requires that the Land be managed to produce a sustainable supply of lumber and other commodities while providing quality habitat for organisms and species, (AR at 635, 12305.) BLM determined that the Lands are overstocked or will soon grow into overstocked conditions and, consequently, need thinning to maintain timber productivity and develop complex stand structure for desired habitats, including the development of large diameter snags. (AR at 635–37.) As a result of the Sale, ten percent or less of existing snags in all sizes over fifteen inches “may need to be felled for safety, road construction, skid roads, cable corridors or would fall incident to logging operations.” (AR at 830). Two large snags (diameters of approximately sixty inches) will definitely be lost due to road construction. (AR at 697.) The vast majority of the felled snags will be left on the forest floor as coarse woody debris (“CWD”). (AR at 339.)

I. The Land

The Land is composed of four distinct units. Unit 7A is a two-layered stand with a dominant understory consisting primarily of sixty year-old Douglas fir. (AR at 815.) The overstory is ninety year-old Douglas fir located in scatter clumps. (AR at 815.) The stand age ranges from forty-eight to one hundred sixty-nine years and the canopy cover is sixty-one percent. (AR at 815.) While no records or ground evidence of past management exist, the lack of snags and old-growth stumps indicate that fire was a recurrent event that prevented stands from becoming established within this unit. (AR at 815.) Unit 7B is a uniform even-age stand of sixty-four year-old Douglas fir with a stand age range from forty-five to seventy-eight years and a canopy cover of sixty-five percent. (AR at 815.) There are very few snags or down logs present in this unit. (AR at 815.) Units 18A and 18B are uniform even-age stands of sixty-eight year old Douglas fir with some scattered residual large diameter trees along the northern boundary. (AR at 815.) Fews snags are present but down wood may be found throughout these units. (AR at 815.) The young managed stands found in Units 7B, 11A and 11B represent the conditions found in a large portion of the Project Area. (AR at 815.)

The Project Area is surrounded primarily by private industrial forest lands with recent clearcuts, young plantations, and recreation areas. (AR at 663–64.) The United States Forest Service (the “Forest Service”) manages a section immediately east of Units 18A and 18B. (AR at 664.) The Forest Service recently completed two timber sales in the area which involve commercial thinning and effect 2,557 acres. (AR at 666.) The Sale is the only activity contemplated in the area by BLM. (AR at 666.) Neither BLM or the Forest Service contemplate any future timber sales within the area and, based on the age of the plantations on the privately-owned land, no activity is expected on that land for the next twenty years. (AR at 666.)

II. Airstrip Wildlife Report—2011

BLM commissioned a Wildlife Report (“Report”) to analyze the likely effects of the Sale on special status species in the Project Area. (AR at 809.) The Report is based on visits to the Project Area...