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

• Citation: 409 F.Supp.3d 861
• Decision Date: 17 September 2019
• Docket Number: No. 2:18-cv-02404-JAM-CKD,2:18-cv-02404-JAM-CKD
• Parties: CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

409 F.Supp.3d 861

CONSERVATION CONGRESS, Plaintiff,
v.
UNITED STATES FOREST SERVICE, Defendant.

No. 2:18-cv-02404-JAM-CKD

United States District Court, E.D. California.

Signed September 17, 2019
Filed September 18, 2019

409 F.Supp.3d 868

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

Hayley Carpenter, United States Department of Justice, Washington, DC, Kelli L. Taylor, GOVT, U.S. Attorney's Office, Sacramento, CA, for Defendant.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Conservation Congress sued Defendant United States Forest Service ("the Forest Service") after the Forest Service approved the Cove Fire Salvage and Restoration Project (the "Project"). Presently before the Court are cross-motions for summary judgment, a request for judicial notice, and two motions to strike. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Request for Judicial Notice, GRANTS Defendant's Motion to Strike, GRANTS Plaintiff's Motion to Strike, DENIES Plaintiff's Motion for Summary Judgment, and GRANTS Defendant's Motion for Summary Judgment.¹

II. STATUTORY AND FACTUAL BACKGROUND

A. National Environmental Policy Act

The National Environmental Policy Act (NEPA) "is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions." Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citing 42 U.S.C. §§ 4321, 4331 ). NEPA requires that federal agencies take a "hard look" at the environmental consequences of their proposed actions and then inform the public about the agency's decision-making process. Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002).

While agencies must carefully consider significant environmental impacts

409 F.Supp.3d 869

through the NEPA process, they are "not required to do the impractical." Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992–93 (9th Cir. 2004) (internal citations, alterations, and quotation marks omitted). "Although an agency's actions under NEPA are subject to careful judicial scrutiny, courts must also be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency." Id. at 993.

B. National Forest Management Act

The National Forest Management Act (NFMA) "charges the Forest Service with the management of national forest land, including planning for the protection and use of the land and its natural resources." All. for the Wild Rockies v. United States Forest Serv., 907 F.3d 1105, 1109 (9th Cir. 2018). The Forest Service develops land and resource management plans ("forest plans"), 16 U.S.C. § 1604, that summarize the "broad, long-term plans and objectives for the entire forest." Weldon, 697 F.3d at 1056. Forest plans include guidelines to help achieve the NFMA's goals, including consideration of both economic and environmental concerns, preservation of diversity in plant and animal communities, and research on the effects of forest management. 16 U.S.C. § 1604(g)(3).

"After a forest plan is approved, the Forest Service implements the forest plan when approving or denying site-specific projects." Weldon, 697 F.3d at 1056. Courts must defer to the Forest Service's reasonable interpretation of its own guidelines, overturning the agency's decision only if it is plainly erroneous or inconsistent with the forest plan. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1098 (9th Cir. 2003). "A project is consistent if it conforms to the applicable ‘components’ of the forest plan, including the standards, guidelines, and desired conditions that are set forth in the forest plan and that collectively establish the details of forest management." All. for the Wild Rockies, 907 F.3d at 1109–10. Although a forest plan's "standards" require strict adherence, the Forest Service may deviate from the plan's "guidelines" if the agency documents the rationale for the deviation. Id.

C. The Modoc Land and Resource Management Plan

The Forest Service adopted the Modoc National Forest Land and Resource Management Plan ("Modoc LRMP") in 1991, Admin. R. ("AR") 10331–10402, which governs management of the Modoc National Forest. In 2004, the Forest Service incorporated the Sierra Nevada Forest Plan Amendment (SNFPA)'s management direction, AR 10119–94, into the existing Modoc LRMP, AR 10136. The changes adopted in SNFPA do not apply to certain plans and projects, including the Big Valley Federal Sustained Yield Unit ("the Big Valley Unit"). Id.

The Big Valley Unit aims to "provide the maximum feasible permanent support to the Big Valley community from the timber industry" by employing local residents to harvest timber and manufacturing timber products within the unit. AR 10329–30.

D. The Cove Fire Salvage and Restoration Project

In July 2017, the Cove Fire burned over 30,000 acres of grass, brush, and timberlands. AR 1. Over half of the National Forest Service lands impacted by the fire experienced high to very high burn severity. AR 45. Following the Cove Fire, the Forest Service designed and implemented the Project to recover the economic value of killed or damaged trees; reduce safety

409 F.Supp.3d 870

hazards along roads; improve the forest's ability to withstand future wildfires; and accelerate habitat development in areas deforested by the fire. AR 46. All Project activities are within the boundaries of the Cove Fire, in the Big Valley Ranger District of the Modoc National Forest and within the Big Valley Unit. AR 43. Although the Project is exempt from the SNFPA because it is within the Big Valley Unit, the Project incorporated goals from the SNFPA in addition to the Standards and Guidelines from the Modoc LRMP.

The Forest Service issued a Decision Notice and Finding of No Significant Impact ("FONSI") on July 12, 2018. AR 1–9. Based on review of the record, including the Environmental Assessment, AR 35–122, and public comments, AR 10584–10643, the Forest Service decided to implement the Project. AR 2. The Forest Service approved the Project under an Emergency Situation Determination ("ESD"), AR 10–11, which allows project implementation without being subject to the predecisional objection process. 36 C.F.R. § 218.21(d). As of March 2019, 67% of the sawlog volume authorized for removal under the Project had been scaled and hauled to mills. Def.'s Status Report, ECF No. 69.

E. Procedural Posture

Conservation Congress filed suit on August 31, 2018. Compl., ECF No. 1. A month later, the organization filed a Motion for Preliminary Injunction, ECF No. 11, to enjoin the Project's implementation. Following the Court's denial of the Motion for a Preliminary Injunction, ECF No. 26, Conservation Congress appealed and sought an injunction pending appeal, ECF No. 28. The Court denied an injunction pending appeal, ECF No. 43, and granted Conservation Congress's motion to amend the complaint, ECF No. 47. The Ninth Circuit affirmed the Court's denial of a preliminary injunction on May 21, 2019. Mem. Order, ECF No. 80.

Conservation Congress filed its First Amended Complaint, containing nine claims, on December 19, 2018. Am. Compl., ECF No. 48. In April 2019, Conservation Congress filed its Motion for Summary Judgment, Pl.'s Mot. Summ. J., ECF No. 75; Pl.'s Mem. in Supp. of Mot. Summ. J. ("Pl.'s Mem."), ECF No. 75-1, and a Request for Judicial Notice, Req. Judicial Notice ("RJN"), ECF No. 74. The Forest Service filed its Motion for Summary Judgment on May 31, 2019, Def.'s Mot. Summ. J, ECF No. 82; Def.'s Mem. in Supp. of Mot. Summ. J. ("Def.'s Mem."), ECF No. 82-1; moved to strike portions of Conservation Congress's declarations, Def.'s Mot. Strike, ECF No. 83; and opposed the request for judicial notice, RJN Opp., ECF No. 85. Conservation Congress then moved to strike portions of a declaration filed by the Forest Service, Pl.'s Mot. Strike, ECF No. 87, in response to the Forest Service's opposition to its Request for Judicial Notice.

III. STANDARD OF REVIEW

Courts review alleged violations of the NFMA and NEPA under the Administrative Procedure Act (APA). All. for the Wild Rockies, 907 F.3d at 1112. The APA directs reviewing courts to "hold unlawful and set aside agency action, findings, and conclusions found to be...arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

Judicial review under the "arbitrary and capricious" standard is narrow and deferential. Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A court may not "substitute its judgment for that of the agency."

409 F.Supp.3d 871

Id. "This deference is highest when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise." League Of Wilderness Defs. Blue...