Cascadia Wildlands v. United States Bureau of Land Mgmt.

Docket Number6:20-cv-01395-MK
Decision Date13 September 2021
PartiesCASCADIA WILDLANDS, an Oregon non-profit corporation; and OREGON WILD, an Oregon non-profit corporation, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, an administrative agency of the United States Department of Interior, Defendant; SENECA SAWMILL COMPANY, an Oregon corporation; Intervenor-Defendant.
CourtU.S. District Court — District of Oregon

FINDINGS AND RECOMMENDATION

MUSTAFA T. KASUBHAI, United States Magistrate Judge

Cascadia Wildlands and Oregon Wild (Plaintiffs) filed this lawsuit pursuant to the Federal Land Management Policy Act (“FLMPA”) 43 U.S.C. §§ 302 et seq., the National Environmental Policy Act (“NEPA”) 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (“APA”) 5 U.S.C. §§ 701 et seq., challenging Defendant Bureau of Land Management's (“BLM” or the “Agency”) May 2020 decision to authorize the Thurston Hills Non-Motorized Trails and Forest Management Project (the “Project”). This lawsuit comes on the heels of a previous suit involving the same parties and an earlier iteration of the Project in which United States District Judge Michael McShane granted Plaintiffs' motion for summary judgment for violating both FLMPA and NEPA and rather than vacate the Agency's decision altogether remanded the matter to BLM on two narrow grounds. Cascadia Wildlands v. Bureau of Land Mgmt., 410 F.Supp.3d. 1146 (D. Or. 2019) (Cascadia I). On remand, BLM purported to cure the deficiencies identified in Judge McShane's Opinion and Order, and after following the relevant notice and comment framework, ultimately approved the current iteration of the Project. Plaintiffs, BLM, and Intervenor-Defendant Seneca Sawmill Company (“Seneca”[1]) filed crossmotions for summary judgment. See ECF Nos. 10, 26, 28. The Court heard oral argument in late January 2021, at which BLM and Seneca requested leave to file supplemental briefing on the issue of the scope of the appropriate remedy-i.e., whether to vacate BLM's decision to authorize the Project entirely or whether to remand this matter back to BLM on a more limited basis. ECF No. 34. The parties submitted supplemental briefing on the issue and the Court now issues this final Findings and Recommendation (“F&R”), which contains the Court's recommended disposition as to the merits as we well as the appropriate remedy. As explained in more detail below, Plaintiffs' motion should be GRANTED in part and DENIED in part; BLM's motion should be GRANTED in part and DENIED in part; Seneca's motion should be GRANTED in part and DENIED in part. The underlying Project should be REMANDED to BLM and the Project should be VACATED.

BACKGROUND

The parties are familiar with the statutory and regulatory frameworks that govern the claims at issue as well as the prior lawsuit concerning the Project. However, the Court recounts the following summary for purposes of providing context.

Statutory and Regulatory Framework

The land at issue in this lawsuit is located on land subject to the Oregon and California Lands Act of 1937 (“O&C Act). 43 U.S.C. § 2601 (transferred from 43 U.S.C. § 1181a); Pub. L. No. 75-405, 75th Cong., ch 876, 50 Stat. 874 (Aug. 28, 1937). In enacting the O&C Act, Congress instructed agencies, such as BLM, to manage land subject to the Act:

for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the [principle] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational [facilities].

43 U.S.C. § 2601; see also Rivers v. Bureau of Land Mgmt., No. 6:16-cv-01598-JR, 2018 WL 6735090, at *17 (D. Or. Oct. 12, 2018), adopted 2019 WL 1232835 (D. Or. Mar. 15, 2019), aff'd sub nom. 815 Fed.Appx. 107 (9th Cir. 2020). In most contexts, courts have “held the O&C Act is a ‘primary' or ‘dominant' use statute for sustained-yield timber production.” Rivers, 2018 WL 6735090, at *17. However, O&C Act lands remain “subject to duties imposed by other, later- enacted statutes, such as NEPA.” Id. at *17 n.20.

The Project encompasses a timber harvest, the Pedal Power Timber Sale, and a new non motorized trail system for mountain biking and hiking. AR 03591. Under the 2016 Northwestern and Coastal Oregon Record of Decisions and Resource Management Plan (“RMP”), AR 004572, BLM identified and designated numerous recreation areas, including various Recreation Management Areas (“RMAs”), including Extensive Recreation Management Areas (“ERMAs”), see AR 16390.

As relevant here, BLM designated the land adjacent to the Willamalane Parks and Recreation District (“WPRD”) Thurston Hills Natural Area as the 1, 058-acre Willamalane NonMotorized Trails Extensive Recreation Management Area (Willamalane ERMA or “ERMA”). AR 03595-96, 16387-89 (Willamalane ERMA Planning Framework); 17076 (RMP directing BLM to develop and maintain partnerships with recreation-based organizations to leverage resources for planning, implementing, and monitoring RMAs).

“As part of this RMP, the BLM has designated portions of the landscape as either SRMAs or ERMAs. Within each of these designated areas, the BLM has established recreation and visitor service objectives and identified supporting management actions and allowable uses.” AR 17239. Each Recreation Management Area has individualized planning frameworks, AR 16846-980, and the RMP requires that the BLM manage each “in accordance with their planning frameworks.” AR 17076. As Judge McShane previously observed. “The Willamalane ERMA was intended for recreational development consistent with the Willamalane Parks and Recreation District's goals to preserve views, enhance wildlife habitat and sensitive areas, and provide recreation opportunities.” Cascadia I, 410 F.Supp.3d at 1151.

Pursuant to the Willamalane ERMA, the BLM is also required to establish a Recreation Management Zone (“RMZ”) for all designated trails in the ERMA. AR 16389. RMZs are subdivisions of the broader Recreation Management Areas which “further delineate specific recreation opportunities or [] ensure recreation and visitor services are managed commensurate with the management of other resources and resource uses.” AR 17239.

Under the Willamalane ERMA, timber harvest within the RMZ is only allowed to “protect/maintain recreation setting characteristics and/or achieve recreation objectives.” AR 16389. Within the broader Willamalane ERMA, BLM is to allow fuel treatments or other vegetation modifications only “if compatible with meeting recreation objectives, not interfering with recreation opportunities, and maintaining setting characteristics.” Id.

Plaintiffs' First Lawsuit

In March 2017, BLM issued its public “scoping” notice for the Thurston Hills Project. AR 01539-41; 01338-41 (maps and description of types of potential fuels reduction treatments). Plaintiffs submitted comments urging the Agency not to employ aggressive commercial logging for fuels reduction and to avoid regeneration logging. AR 01244-46. In April 2018, BLM issued its first Thurston Hills Non-Motorized Trails and Forest Management Project Environmental Assessment (“EA”) and subsequently issued a revised EA in May 2018. AR 04311.

After BLM denied Plaintiffs' protest, Plaintiffs filed suit. AR 15681-707; see also Cascadia I, 410 F.Supp.3d. at 1150. Specifically, Plaintiffs alleged that BLM violated: (1) FLMPA by arbitrarily and capriciously authorizing regeneration harvesting in the Willamalane Non-Motorized Trails Extensive Recreation Management Area, failing to evaluate the proposed logging's effects on visitor experience, and failing to designate an RMZ; and (2) NEPA by failing to take the requisite “hard look” at the proposed action's potential environmental impacts stating an unreasonably narrow purpose and need, and failing to consider reasonable and feasible alternatives. Cascadia I, 410 F.Supp.3d. at 1150.

United States District Judge Michael McShane granted Plaintiffs' motion for summary judgement regarding BLM's failure to designate a Recreation Management Zone because “allowing logging and then establishing [an RMZ] at some unspecified later date . . . seems to defeat the Zone's very purpose.” Id. at 1156. Judge McShane explained that he would therefore “require[] BLM to designate trails and establish a Recreation Management Zone before logging begins to ensure adequate protection in the buffer area.” Id. Ultimately, Judge McShane's specific instructions to BLM on remand were to “designate and preserve a Recreation Management Zone prior to harvest.” Id. at 1161.

As to Plaintiffs' NEPA claim, Judge McShane also found for Plaintiffs regarding BLM's failure to take the requisite “hard look” at the Thurston Hills Project's fire risk, and thereby deprived the public of meaningful participation, instructing BLM:

to issue a new environmental assessment that adequately discloses and analyzes the likely increase of fire hazard to adjacent communities, make it available for public review and comment[.]

Id. at 1161. The court found that BLM's failure to include “crucial information” from its Fuels Specialist Report in its EA deprived the public of a meaningful opportunity to participate. Id. at 1158.

Finally Judge McShane granted BLM's and Seneca's cross-motion on all other matters, including Plaintiffs' remaining NEPA claims finding: (1) “BLM took a hard look at regeneration logging's potential impact on recreational experiences in the Willamalane ERMA, ” Id. at 1159; and (2) that “BLM adequately analyzed reasonable alternatives and explained why Plaintiffs' preferred thinning alternative would not achieve the Project's...

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