Conservation Cong. v. U.S. Forest Serv.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Citation377 F.Supp.3d 1039
Docket NumberNo. 2:13-cv-01922-TLN-DMC,2:13-cv-01922-TLN-DMC
Decision Date27 March 2019

377 F.Supp.3d 1039


No. 2:13-cv-01922-TLN-DMC

United States District Court, E.D. California.

Signed March 27, 2019
Filed March 28, 2019

377 F.Supp.3d 1042

Elisabeth A. Holmes, Pro Hac Vice, Blue River Law, P.C., Sean T. Malone, Pro Hac Vice, Sean T. Malone, Attorney at Law, Eugene, OR, Rachel Marie Fazio, John Muir Project, Big Bear City, CA, for Plaintiff.

Philip A. Scarborough, Office of the United States Attorney Eastern District of California, Sacramento, CA, for Defendants.


Troy L. Nunley, United States District Judge

This matter is before the Court pursuant to Plaintiff Conservation Congress's ("Plaintiff") Amended Motion for Summary Judgment (ECF No. 76 ), and Defendants United States Forest Service and United States Fish and Wildlife Service's ("Defendants") Cross Motion for Summary Judgment (ECF No. 79 ). For the reasons set forth below, the Court GRANTS Defendants' cross motion for summary judgment (ECF No. 79 ) and DENIES Plaintiff's amended motion for summary judgment (ECF No. 76 ).


A. National Environmental Policy Act

The National Environmental Policy Act (hereinafter "NEPA") "is a purely procedural statute." Neighbors of Cuddy Mountain v. Alexander , 303 F.3d 1059, 1070 (9th Cir. 2002). NEPA does not dictate particular results or require that agencies elevate environmental impacts over other concerns. Instead, NEPA provides a process to ensure that agencies take a "hard look" at the environmental consequences of their actions. Id. NEPA serves the dual purpose of informing agency decision-makers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to the public. Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

As part of the required "hard look," NEPA and its implementing regulations require federal agencies to prepare a "detailed statement" concerning "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The statement must consider the impact of the proposed action, any adverse environmental effects, alternatives to the proposed action, the relationship between short-term uses and the "maintenance and enhancement of long-term productivity," and any irreversible commitments of resources which would result from implementing the action. Id. This statement may take the form of an environmental assessment (hereinafter "EA"), or a more thorough environmental impact statement (hereinafter "EIS"), which includes a longer public comment period. 40 C.F.R. §§ 1508.9, 1508.11.

In determining whether to prepare an EIS, the agency shall determine: (1) whether the proposed project normally requires an EIS; or (2) if the project is categorically excluded from the preparation of both an EA and an EIS because the action does not individually or cumulatively have a significant effect on the human environment. Id. §§ 1501.4, 1508.4. In

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making this determination, absent a categorical exclusion of an EA and an EIS, the agency shall prepare an EA to determine whether an additional EIS is needed. Id. § 1501.4(c). An EA "[s]hall include brief discussions of the need for the proposal, of alternatives as required by [NEPA] 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 the agency concludes based on the EA that no additional EIS is required, the agency must prepare a "finding of no significant impact" ("FONSI"). Id. § 1501.4(e).

The agency must also consider the "cumulative impact" of a proposed project, which the federal regulations define as the result of "the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions ..." Id. § 1508.7. Cumulative impacts may result from "individually minor but collectively significant actions taking place over a period of time." Id. In determining whether a project will have a "significant" impact on the environment, an agency must consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts."Id. § 1508.27(b)(7); see Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1214 (9th Cir. 1998).

B. Administrative Procedure Act

Agency compliance with NEPA is reviewed under the Administrative Procedure Act (hereinafter "APA"). 5 U.S.C. §§ 701 – 06 ; Grand Canyon Trust v. U.S. Bureau of Reclamation , 691 F.3d 1008, 1016 (9th Cir. 2012). Review is generally limited to the administrative record that was before the agency at the time of its decision. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv. , 100 F.3d 1443, 1450 (9th Cir. 1996). A court may set aside an agency action only if it determines that the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard of review is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007) (quotation and citation omitted).

Courts must uphold a reasonable agency action "even if the administrative record contains evidence for and against its decision." Modesto Irrigation Dist. v. Gutierrez , 619 F.3d 1024, 1036 (9th Cir. 2010) (quotation and citation omitted). "The court's task is not to make its own judgment," because "Congress has delegated that responsibility to the [agency]." River Runners for Wilderness v. Martin , 593 F.3d 1064, 1070 (9th Cir. 2010). Instead, "[t]he court's responsibility is narrower: to determine whether the [agency's action] comports with the requirements of the APA...." Id. The Ninth Circuit has held that "[t]he [agency's] action ... need only be a reasonable, not the best or most reasonable, decision." Id. (quotation and citations omitted).

The APA does not allow a reviewing court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts. Id. This is especially true in the context of management of Forest Service lands, because Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands. See United States v. New Mexico , 438 U.S. 696, 716 n.23, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978).

C. Endangered Species Act

The purpose of the Endangered Species Act (hereinafter "ESA") is to "provide a means whereby the ecosystems upon

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which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species...." 16 U.S.C. § 1531(b). Section 7(a)(2) of the ESA requires that each federal agency must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of the designated critical habitat of the listed species. Id. § 1536(a)(2).

Accordingly, Section 7(a)(2) and its implementing regulations set out a consultation process for determining the impacts of the proposed agency action. See 50 C.F.R. § 402.02. First, the agency contemplating the action must request information from the appropriate federal wildlife service regarding "whether any species which is listed or proposed to be listed may be present in the area of such proposed action." 16 U.S.C. § 1536(c)(1). If the agency determines that the listed species may be present in the affected area, the agency preparing to act must produce a Biological Assessment (hereinafter "BA") in accordance with NEPA "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." Id.

D. National Forest Management Act ("NFMA")

The National Forest Management Act (hereinafter "NFMA") requires the Forest Service to create a comprehensive management plan for each national forest, and prohibits any site-specific activities that are inconsistent with the applicable plan. See 16 U.S.C. §§ 1604(a) and (e) ; Inland Empire Pub. Lands Council v. U.S. Forest Serv. , 88 F.3d 754, 757 (9th Cir. 1996).


On September 16, 2013, Plaintiff filed a complaint for declaratory and injunctive relief. (ECF No. 1.) Plaintiff brings six causes of action alleging Defendants violated NEPA, the NFMA, the APA, and the ESA when they approved the Bagley Hazard Tree Abatement Project (hereinafter "the Project"). (ECF No. 1.) The Project was put in place in response to the August 2012, Bagley Fire in the Shasta-Trinity National...

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