Ctr. for Biological Diversity v. U.S. Forest Serv.

• Decision Date: 22 January 2013
• Docket Number: No. 12-CV-8088-PCT-PGR,12-CV-8088-PCT-PGR
• Citation: Ctr. for Biological Diversity v. U.S. Forest Serv., No. 12-CV-8088-PCT-PGR (D. Ariz. Jan 22, 2013)
• Parties: Center for Biological Diversity, et al., Plaintiff, v. United States Forest Service, Defendant.
• Court: U.S. District Court — District of Arizona

Center for Biological Diversity, et al., Plaintiff,

v.United States Forest Service, Defendant.

No. 12-CV-8088-PCT-PGR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

DATED: January 22, 2013

ORDER

Before the Court are the parties' cross motions for summary judgment.(Docs. 27, 33.)Plaintiffs are the Center for Biological Diversity and the Sierra Club.¹Their amended complaint, filed June 21, 2012, challenges the Forest Service's decision to authorize a "vegetation management" project (the "Jacob-Ryan" project) in the Kaibab National Forest.(Doc. 16.)Plaintiffs allege that the Forest Service has implemented a change in the management of the northern goshawk without complying with the procedural requirements of the National Forest Management Act and the National Environmental Policy Act.

Plaintiffs filed a motion for summary judgment on August 18, 2012.(Doc. 27.)The Forest Service filed its summary judgment motion on September 13, 2012.(Doc. 33.)The Court held oral argument on December 18, 2012.

For the reasons set forth herein, the Court will grant summary judgment in favor of the Forest Service.

I.BACKGROUND

A.Forest Plan

The Forest Plans in the Southwest Region, including the plan for the Kaibab National Forest, were developed in the mid to late 1980s.(AR 8419.)²Due to concern over the impacts of logging on the viability of the goshawk, a "sensitive species," the Forest Service created a scientific committee to review the goshawk's habitat needs.In 1992, the committee issued its report, "Management Recommendations for the Northern Goshawk in the Southwestern United States."

The Recommendations identified three components of goshawk habitat: the nest area, the post-fledgling family area, and the foraging area.(AR 183-84.)The Recommendations then set forth the desired conditions for goshawk habitat in terms of forest age classes, or "vegetation structural stages"("VSS").VSS is "a forest description based on the tree diameter distribution within a stand."(AR 187.)VSS 1 refers to "grass/forb/shrub,"VSS 2 to "seedling-sapling,"VSS 3 to "young forest,"VSS 4 to "mid-aged forest,"VSS 5 to "mature forest," and VSS 6 to "old forest."(Id.)For post fledgling and foraging areas, the following conditions are recommended: 10% VSS 1, 10% VSS 2, 20% VSS 3, 20% VSS 4, 20% VSS 5, and 20% VSS 6.(Id.)Thus 40% of the forest is recommended to be comprised of VSS 5 and 6, meaning "mature" and "old growth" forests.(Id.)

The 1992 Management Recommendations set forth the recommended minimum canopy cover within VSS 4, 5, 6.³(Id.)Canopy cover within VSS 4, 5, and 6, in ponderosa pine forests, is recommended to be at least 50% in post-fledgling family areas and at least 40% in foraging areas.(AR 187.)

In 1992, the Forest Service began preparing an environmental impact statement ("EIS") to consider increased protections for the goshawk and Mexican spotted owl in the Southwest Region.The EIS was completed in 1995, and the Record of Decision issued in 1996.The Record of Decision amended all Forest Plans in the Southwest Region, including the Kaibab Forest Plan, to include new standards and guidelines for the protection of goshawks.(AR 8686, 8696, 8768.)The 1996Amendment largely adopted the 1992 Management Recommendations for goshawks, including incorporating the same guidelines for VSS 1-6 distribution and for canopy cover percentages within VSS 4-6.(AR 3709-10.)The 1996Amendment directs the Forest Service to refer to the 1992 Management Recommendations for scientific information on goshawk ecology and management "which provide the basis for the management guidelines."(AR 3708.)

B. Jacob-Ryan Project

The Jacob-Ryan project is located in the north-central portion of the Kaibab Plateau on the North Kaibab Ranger District.(AR 7430.)The area within the Jacob-Ryan project boundary is considered goshawk habitat in its entirety.(AR 7653.)

The stated purpose of the Jacob-Ryan Project is "to improve habitat for northern goshawks and their prey species."(AR 7647.)The Project will also "reduce the risk of destructive crown fires in the project area."(Id.)

To achieve these objectives the Project thins and regenerates groups of ponderosa pine, and conducts prescribed burning operations.(Id.)Specifically, the Project would log 4,529 acres in goshawk nest areas, 6,293 acres in "even-aged" goshawk post-fledgling and foraging areas, and 14,475 acres in "uneven-aged" post-fledgling and foraging areas.(AR 7426.)The Forest Service is applying the canopy cover requirements of the 1996 Plan Amendment at the "group" scale for the Jacob-Ryan logging project, instead of the larger "stand" scale.(See, e.g., AR 7430.)

In January 2012, the Forest Service issued the Environmental Assessment (" EA") and Decision Notice/Finding of No Significant Impact with respect to the Jacob-RyanProject.(AR 7405, 7648.)

Plaintiffs submitted comments on the Project (AR 384, 6486), and filed an administrative appeal on February 22, 2012.(AR 7686.)The Forest Service denied the appeal on April 3, 2012.(AR 8217.)

II.STANDARD OF REVIEW

The National Forest Management Act ("NFMA") requires the Forest Service to develop and maintain forest resource management plans.16 U.S.C. § 1604(a).After a forest plan is developed, all subsequent agency action must comply with NFMA and the governing forest plan.Id.;seeLands Council v. McNair (Lands Council II), 537 F.3d 981, 989(9th Cir.2008)(en banc).The Forest Service is entitled to deference with respect to its interpretation of its own Forest Plans, unless the interpretation "is plainly inconsistent with [a Forest Plan]."Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960(9th Cir.2005);seeEarth Island Institute v. U.S. Forest Service, 697 F.3d 1010, 1013(9th Cir.2012).

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., contains procedural requirements designed to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public.Inland Empire Pub. Lands Council v. United States Forest Service, 88 F.3d 754, 758(9th Cir.1996)."In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results."Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063(9th Cir.2002).The agency must only take a "hard look" at its proposed action.Id. at 1070.

"Because NFMAandNEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMAandNEPA are reviewed under the Administrative Procedure Act('APA')."Native Ecosystems Council v. United States Forest Service, 428 F.3d 1233, 1238(9th Cir.2005)."Under the APA, [a court] may set aside an agency decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"Id.(quoting5 U.S.C. § 706(2)(A)).

"Review under the arbitrary and capricious standard 'is narrow, and we do notsubstitute our judgment for that of the agency.'"Lands Council II, 537 F.3d at 987.Therefore, an agency's decision can be set aside

only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id.(internal quotation marks omitted).

Courts may resolve APA challenges by summary judgment.SeeNw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472(9th Cir.1994).Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(a).

III.DISCUSSION

A. NFMA Claim

At issue is the Forest Service's decision to measure VSS distribution and canopy cover at the smaller group, as opposed to the larger stand, level for uneven-aged stands.Plaintiffs argue that this represents a change in management direction that is inconsistent with the Forest Plan.According to Plaintiffs, measurements taken at the group level will result in more open space, to the detriment of the goshawk population.Plaintiffs argue that this constitutes a "significant" change in the Forest Plan, requiring an amendment pursuant to the NFMA's procedural requirements.See16 U.S.C. § 1604(f)(4).

1.VSS, canopy cover, and interspace

In order to evaluate Plaintiffs' argument it is necessary to understand the terms "group,""stand," and "site" as they appear in the administrative record.

The 1988 Forest Plan provides that, "Distribution of habitat structures (tree size and age classes, tree groups of different densities, snags, dead and down woody material, etc.) should be evaluated at the ecosystem management area level, at the mid-scale such as drainage, and at the small scale of site."(AR 34.)The Forest Plan does not include a glossary definition for "site," but refers to "tree group" and "site" as the same type of unit, which itcharacterizes as "[t]he most specific scale at which resource operations and improvements are planned and executed," and describes as "ten to less than one acre" in size.(AR 13.)The Forest Plan glossary offers the following definition of "stand": "An aggregation of trees or other growth occupying a specific area and sufficiently uniform in composition (species), age arrangement, and condition as to be distinguishable from the forest or other growth on adjoining areas."(AR 157.)

The 1992 Management Recommendations define "stand" as "[a]n area of trees possessing sufficient uniformity (species composition, age, and physical features) to be distinguishable from trees on adjacent areas."(AR 266.)The document also states that VSS is a "forest description based on the tree diameter in a stand."(AR 187.)

The 1995 Environmental Impact Statement ("EIS") prepared for the 1996Amendment defin...