Cascadia Wildlands Project v. U.S. Forest Service
| Decision Date | 12 August 2005 |
| Docket Number | No. Civ. 05-76-JE.,Civ. 05-76-JE. |
| Citation | 386 F.Supp.2d 1149 |
| Court | U.S. District Court — District of Oregon |
| Parties | CASCADIA WILDLANDS PROJECT, an Oregon nonprofit corporation, Oregon Natural Resources Council Fund, an Oregon nonprofit corporation, League of Wilderness Defenders — Blue Mountains Biodiversity Project, an Oregon nonprofit corporation, and the Sierra Club, a California nonprofit corporation, Plaintiffs, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, and Leslie Weldon, in her official capacity as Dechutes National Forest Supervisor, Defendants. |
Chris Winter, Ralph O. Bloemers, James D. Brown, Cascade Resources Advocacy Group, Susan Jane Brown, Portland, OR, for Plaintiffs.
Karin J. Immergut, United States Attorney, District of Oregon, Jeffrey K. Handy, Assistant United States Attorney, Portland, OR, Kelly A. Johnson, Acting Assistant Attorney General, Barclay T. Samford, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, for Defendants.
The Honorable John Jelderks, United States Magistrate Judge, filed Findings and Recommendation on July 13, 2005. Plaintiffs filed timely objections to the Findings and Recommendation. When either party objects to any portion of a magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate's report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The matter is before this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).
This court has, therefore, given de novo review of the rulings of Magistrate Judge Jelderks. I decline to make a determination of whether to adopt the finding that any claim based upon the superseded 1982 regulations of alleged failure to comply with requirements to monitor MIS by obtaining quantitative population data is now moot because the 2005 regulations should be applied retroactively. I decline to make this determination because I agree with and adopt the finding that the Forest Service's determination that the Eyerly Project complied with the 1982 regulations was not arbitrary or capricious or contrary to law. Thus, I grant summary judgment against plaintiffs' first claim under NFMA.
I also acknowledge plaintiffs' objection that the Findings and Recommendation fails to address their argument that the administrative record does not support the finding that reliance on DecAID complies with the scientific integrity requirement of NEPA. I have considered this argument myself and conclude that NEPA is not violated in this respect.
Accordingly, this court ADOPTS the remaining portions of the Findings and Recommendation of Magistrate Judge Jelderks dated July 13, 2005 in its entirety.
IT IS HEREBY ORDERED that Plaintiffs' Motion to Strike the Declaration of Kim Mellen and alternative Motion for an Evidentiary Hearing (# 33) is denied, Plaintiffs' Motion for Summary Judgment (# 16) is denied, and Defendants' Motion for Summary Judgment (# 20) is granted. The Temporary Restraining Order I entered on August 3, 2005 is lifted immediately. This action is dismissed with prejudice.
Plaintiffs Cascadia Wildlands Project, the Natural Resources Council Fund, the League of Wilderness Defenders — Blue Mountains Biodiversity Project, and the Sierra Club bring this action against the United States Forest Service (Forest Service) and Leslie Weldon, Deschutes National Forest Supervisor. Plaintiffs seek administrative review, pursuant to the Administrative Procedure Act (APA) 5 U.S.C. §§ 701-706, of defendants' decision to authorize commercial salvage logging as part of the Eyerly Fire Salvage Logging Project (Eyerly Project) on the Deschutes National Forest in the Sisters Ranger District. Plaintiffs seek injunctive and declaratory relief.
The parties have filed cross motions for summary judgment. Also pending are plaintiffs' motion to strike the declaration of Kim Mellen, and alternative motion for an evidentiary hearing concerning that motion.
I deny the motion to strike Ms. Mellen's declaration and alternative motion for an evidentiary hearing. Defendants' motion for summary judgment should be granted, and plaintiffs' motion for summary judgment should be denied.
On July 9, 2002, lightning started a fire on the north side of the Metolius arm of lake Billy Chinook in the Warm Springs Reservation. The fire, which was named the Eyerly Fire, spread into the Sisters Ranger District of the Deschutes National Forest on July 11, 2002, and covered 23,134 acres before it was contained on July 26, 2002. The Fire burned 17,786 acres within the Deschutes National Forest.
Much of the Eyerly Fire burned within Late Successional Reserves (LSR), the Metolius Wildlife/Primitive Management Area, and the Old Growth Management Area of the Deschutes National Forest Land and Resource Management Plan (LRMP).
In its effort to suppress the Eyerly Fire, the Forest Service opened closed roads, developed other roads, and established safety zones, helispots, and portable fire retardant plants. Approximately 406,551 gallons of fire retardant were dumped on the fire, and a concentrated retardant spill into Street Creek occurred on July 22, 2002. Much of the approximately 84 miles of firelines established during the fire was built by bulldozer.
The Forest Service developed a fire salvage management project for the area in the National Forest covered by the Eyerly Fire. The project, referred to by the parties as the "Eyerly Project," listed the following five post-fire management goals: (1) recovering the economic value of the trees that were killed by or expected to die as a result of the Fire; (2) reducing future fuel loading to be consistent with management direction; (3) accelerating the re-establishment of upland forest vegetation; (4) reducing the public safety hazard posed by dead trees along major roads and in campgrounds; and (5) designating substitute old growth areas for the old growth areas that were destroyed by the fire.
On December 5, 2003, the Forest Service issued a Draft Environmental Impact Statement (DEIS) for the Eyerly Project Area. The Forest Service issued a Final Environmental Impact Statement (FEIS) for the area on July 2, 2004. The FEIS considered a "no-action alternative" and two "action alternatives," in detail, and identified Alternative 2 as the environmentally-preferred alternative. On August 2, 2004, defendant Weldon signed a Record of Decision (ROD) adopting Alternative 2.
The Eyerly Project, which reflects Alternative 2, specifies the following activities:
1. Salvage Harvest: The Eyerly Project includes plans for harvesting dead and dying trees on approximately 3,420 acres and harvesting only dead trees on 1,426 acres within the Metolius Late Successional Reserve (LSR).
2. Hazard Tree Removal: Dead or dying trees that pose a hazard to human life and property are to be removed within two campgrounds and along the haul routes to be used for the salvage operations.
3. Road Work: The Project includes plans for construction of 2.1 miles of temporary roads which are to decommissioned following salvage operations, reconstruction of 33.4 miles of existing roads, and decommissioning of 3.8 miles of existing roads.
4. Fuels Treatment: The Project includes plans for removal of fuel, including slash generated during salvage harvesting, to reduce the amount of fuel available for future fires.
5. Reforestation: Under the Project, 3,918 acres in which the fire damage was particularly severe would be reforested to provide habitat for wildlife.
6. Old Growth: The Project provides for replacement of two old growth habitat areas which were destroyed by the Eyerly Fire with newly designated old growth management areas.
On January 5, 2005, the Forest Service promulgated new regulations to replace regulations that were previously set out at 36 C.F.R. Part 219.
The FEIS for the Eyerly Project includes an evaluation of the Project's impact on the viability of 15 Management Indicator Species (MIS) of birds and four MIS species of mammals. The parties disagree as to whether the FEIS includes an adequate discussion of the viability of the 15 bird MIS populations, and whether the Forest Service properly evaluated population viability, but agree that the Forest Service identified seven "primary cavity excavator" (PCE) birds as MIS which occupied habitat in the Project Area. They also agree that the FEIS compares the amount of PCE snag habitat for each PCE species under all three of the specified alternatives, but disagree as to the method the Forest Service employed to project available PCE snag habitat. The Forest Service asserts that it "projected available PCE snag habitat based on a district-wide photo database, physical stand exams, burn intensity from post-fire satellite change detection, and district-wide snag inventory data." Plaintiffs contend that the Forest Service in fact "relied primarily upon DecAID [The Decayed Wood Advisory for Managing Snags, Partially Dead Trees, and Down Wood for Biodiversity in Forests of Washington and Oregon] to determine available snag density and also to predict future snag densities across the landscape."
The Forest Service concluded that the levels of snag retention in the Eyerly Project area meet or exceed the requirements set out in the forest plan, and that the proposed salvage harvest in the Metolius Late Successional Reserve set out in the Project is consistent with the Northwest Forest Plan. The inter-agency Regional Ecosystem Office (REO) also reviewed the Eyerly Project, and found that it was ...
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