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

Decision Date16 February 2017
Docket NumberNo. 2:13–cv–01977–JAM–DB,2:13–cv–01977–JAM–DB
Citation235 F.Supp.3d 1189
Parties CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, United States Fish and Wildlife Service, Defendants, and Trinity River Lumber Company, Defendant Intervenor.
CourtU.S. District Court — Eastern District of California

Stuart N. Wilcox, PHV, Stuart N. Wilcox, Attorney at Law, Pro Hac Vice, Denver, CO, Steven Sugarman, PHV, Law Office of Steven Sugarman, Pro Hac Vice, James Jay Tutchton, Tutchton Law Office Environmental Law Clinic, Centennial, CO, for Plaintiff.

Paul David Barker, Jr., Andrea Gelatt, Govt, Trent S.W. Crable, Tyler Burgess, Govt, United States Department of Justice, Washington, DC, for Defendants.

Dennis L. Porter, Law Offices of Dennis L. Porter, Sacramento, CA, Lawson E. Fite, PHV, Pro Hac Vice, Scott W. Horngren, PHV, American Forest Resource Council, Pro Hac Vice, Portland, OR, for Intervenor Defendant.

ORDER RE PLAINTIFF'S MOTION AND DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

And yesterday the bird of night did sit Even at noon-day upon the marketplace Hooting and shrieking.

William Shakespeare, Julius Caesar , act 1, sc. 2.

This litigation concerns the continuing viability of the revered Northern spotted owl ("NSO") and whether it may soon portend its own demise at the hands of its protector, the federal government. The United States Forest Service ("USFS") plans to execute the Smokey Project ("Project"), a proposal to administer fuel and vegetative treatments intended to further habitat and fire management goals in the Mendocino National Forest ("MNF") and contribute to the MNF's timber production goals. The USFS engaged with interested parties as it developed the Project, leading to its decision to adopt the proposal. Conservation Congress ("Plaintiff") participated throughout that process, advocating for the NSO and its old-growth habitat. It now challenges the USFS's final decisions, as well as the Fish and Wildlife Service's ("FWS"; collectively "Defendants") contributions to the end result. As described below, the Court agrees that the USFS failed to meet some of its statutory obligations.

I. FACTUAL BACKGROUND

The USFS began scoping for the Smokey Project ("Project") in December 2009. See FS–3643. Plaintiff submitted its first set of comments the following March and continued communicating with the USFS over the next year. USFS Administrative Record ("FS")–3627, 3599–3626, FS–3585. In July 2010, the USFS released the Draft Environmental Assessment and opened the 30–day Objection Period. FS–1727, 1645. The Administrative Record indicates that the USFS and Plaintiff had a conference call concerning the project, followed by Plaintiff's submission of its first written Objections in August, which were followed by an in person Objection Resolution meeting. FS–1636, 1557, 1546.

The USFS also consulted with the FWS about the Project's impacts on endangered and threatened species. From Fall 2009 to early 2011, the agencies conferred over whether or not the Project would adversely affect the NSO. See Fish and Wildlife Service Administrative Record ("FWS")–1–107; FS–18874–94. This determination dictates whether a formal—and more extensive—consultation between the agencies is required pursuant to the Endangered Species Act. See infra Part III.D. The FWS concluded that the Project "may affect, [and is] likely to adversely affect" the NSO (a "MALAA" determination), FWS–1162–64, while the USFS maintained that a "may affect, not likely to adversely affect" determination—which would not require formal consultation—was appropriate for the Project, FS–18882–86; 50 C.F.R. § 402.14. Due to this disagreement, the agencies elevated the Project to a Level 2 team for review. FWS–87. The USFS prepared and submitted a Final Biological Assessment ("BA") for the FWS to review and requested formal consultation on July 5, 2011. FS–18680, 18872; 50 C.F.R. § 402.14(c)(5). By the time the USFS sent over the BA, the agency had also concluded that an MALAA finding for the NSO was appropriate due to the Project's potential impact on prey species. FS–18872.

While the Project was still under review, field examinations revealed a root disease infection that required Project modification. FS–18857. The USFS decided to apply borax to tree stumps in order to prevent the spread of the disease. FS–3580. The agency reopened scoping for the Project in February 2012 to address three substantive changes to the Project, including the use of borax and the change in the USFS's determination that the Project warranted a MALAA finding. FS–3580. Plaintiff submitted its second set of scoping comments at the end of February, which "incorporate[d] by reference [its] original comments as well as [its] original Objection comments (attached)." FS–3545.

The FWS transmitted its Biological Opinion ("BiOp") to the USFS on March 15, 2012. FS–18680. The BiOp concludes that the Project is not likely to jeopardize the continued existence of the NSO rangewide or within the recovery unit. FS–18787. It based this conclusion on the fact that no NSO habitat loss was expected and habitat functionality would be maintained. FS–18788. The expected impacts—degradation of some habitat and harassment/mortality in two home ranges—were expected to be short term, returning back to normal within two to three years post-implementation. FS–18788. It also concluded that the Project is not likely to result in adverse modification of the NSO critical habitat, and that habitat degradation was not expected to impede the recovery function of critical habitat rangewide or within the province. FS–18788–89. An Incidental Take Statement ("ITS") accompanied the BiOp. The ITS, under "Terms and Conditions," imposed a Limited Operating Period ("LOP") from February 1st to September 15th in certain units in accordance with recent, protocol-level survey results. FS–18792. This LOP supplemented the conservation measures already pleaded in the BA, which the USFS must implement. FS–18696. Additionally, the ITS imposes "Monitoring Requirements" that require the agency to document the progress of the action and its effects on the NSO to the FWS in the form of annual monitoring reports containing a minimum of the following information: "progress/status of the proposed project, amount and type of habitat removed or modified, northern spotted owl survey results, and any changes to project implementation not discussed in the biological assessment." FS–18792–93.

The USFS sent out copies of the Draft Final EA and Appendices mid–June 2012 and opened up the second 30–day Objection Period. FS–1365–1436. Plaintiff submitted additional objections. FS–1346, 1291. On August 29th and 30th the USFS published the Final Environmental Assessment and the Decision Notice. FS–10, 19. In its final form, the Project will treat approximately 6400 acres and will include fuel treatments through implementation of Strategically Placed Land Area Treatments across the landscape, timber harvest in matrix lands, and improvement of plantations, meadows, hardwood and late successional habitat. FS–21, 23. The Decision Notice concluded that the Project's actions will not have a significant effect on the quality of the human environment, thus the agency would not be preparing an environmental impact statement. FS–12. The Forest Supervisor decided to implement the proposed Project, which incorporates the terms and conditions of the ITS. FS–11.

On December 4, 2012, the FWS published a final, revised rule designating critical habitat for the NSO ("2012 Critical Habitat Rule"). FS–19091. Because the rule affected most of the Project, USFS issued a Supplemental Biological Assessment. The Supplemental BA concluded that the new finding with respect to NSO critical habitat is MALAA due to short-term adverse effects to NSO nesting/roosting and foraging habitat. FS–19089, 19139. The USFS reinitiated consultation with the FWS on that basis. FS–19089. In the resulting 2014 BiOp, the FWS concluded that the Project is not likely to jeopardize the NSO nor adversely modify or destroy its designated critical habitat. FS–18996.

The USFS reinitiated consultation yet again, in January 2015, after surveyors discovered NSOs in a new location in the Project area. FS–19387. This led to the designation of two new activity centers. FS–19348. The agency sent the FWS its Second Supplemental BA at the end of May 2015 and the FWS issued its BiOp, with the same jeopardy and adverse modification determination, on July 24, 2015. FS–19243–79. On November 30, 2015, the USFS published a Supplemental Information Report, summarizing the agency's "analysis supporting [its] determination that there is no need for supplemental NEPA analysis arising from the new circumstances and information related to the Project." FS–1.

While consultation on the Project was ongoing, the FWS published the Revised Recovery Plan for the Northern Spotted Owl ("2011 RRP"). FS–4230. "Recovery plans describe reasonable actions and criteria that are considered necessary to recover listed species." FS–4231. The 2011 RRP came out June 28, 2011—one day after USFS biologists signed off on the Project's BA—and replaced the 2008 version of the plan. FS–4231. The 2011 RRP is frequently referenced in agency documents and is central to some of Plaintiff's claims.

II. PROCEDURAL BACKGROUND

Plaintiff filed its Complaint against the USFS and FWS over the Project on September 23, 2013, alleging violations of the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), and the Administrative Procedure Act ("APA"). ECF No. 1. The case was twice stayed as the USFS reinitiated consultation with the FWS at the end of 2013 and again in 2015. ECF Nos. 15 & 53. The second stay terminated with the completion of consultation in July 2015 and Plaintiff filed its Second Amended Complaint, the operative complaint in this...

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