Ctr. For Sierra Nev. Conservation v. U.S. Forest Serv., NO. CIV. S-09-2523 LKK/JFM

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLAWRENCES K. KARLTON
Decision Date26 May 2011
Docket NumberNO. CIV. S-09-2523 LKK/JFM


NO. CIV. S-09-2523 LKK/JFM


DATED: May 26, 2011.


In 2008, the United States Forest Service adopted a "Public Wheeled Motorized Travel Management Decision" for the Eldorado National Forest ("Travel Management Decision" and "ENF"). This decision designates specific roads and trails within the forest as open to public motor vehicle use and correspondingly prohibits cross-country motorized travel. Plaintiffs, three non-profit organizations dedicated to their perception of environmental protection, challenge the Travel Management Decision. Although plaintiffs invoke a variety of statutes and legal theories, their general position is that the decision leaves too many routes open to vehicle use. Four groups representing the interests of

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recreational vehicle users have intervened as defendants.

The parties have filed cross motions for summary judgment. The court resolves these motions on the administrative record, the parties' briefing, and after oral argument. For the reasons stated below, each motion is granted in part. The Forest Service violated its obligation under section 7(a)(2) of the Endangered Species Act to consult with the Fish and Wildlife Service, and the decision designates routes through meadows in apparent violation of provisions of the governing forest plan, thereby violating the National Forest Management Act.


A. The Eldorado National Forest

The Eldorado National Forest lies west of Lake Tahoe and east of Sacramento, in the Sierra Nevada mountain range. The ENF contains over 789,994 acres of diverse topography, soil types, vegetation, and habitat types.

Plaintiffs assert that the ENF "provides habitat for numerous endangered, threatened, and sensitive wildlife species, species of concern, and management indicator species." Pls.' Br. 7 (Dkt. 52-1). The only particular species at issue in this order is the California red-legged frog, Rana aurora draytonii, as plaintiffs have not provided arguments regarding any other species.

B. The National Environmental Policy Act

Plaintiffs' arguments turn on three statutes. The first is the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The Forest Service's approval of the challenged Travel Management

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Decision was a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Accordingly, the NEPA required the Forest Service to prepare an Environmental Impact Statement ("EIS") for the project. The Ninth Circuit recently summarized the structure and purpose of this requirement:

In NEPA, Congress declared as a national policy "creat[ing] and maintain[ing] conditions under which man and nature can exist in productive harmony." [42 U.S.C.] § 4331(a). NEPA's purpose is realized not through substantive mandates but through the creation of a democratic decisionmaking structure that, although strictly procedural, is almost certain to affect the agency's substantive decisions. . . . [B]y requiring agencies to take a "hard look" at how the choices before them affect the environment, and then to place their data and conclusions before the public, NEPA relies upon democratic processes to ensure . . . that the most intelligent, optimally beneficial decision will ultimately be made.

Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1099-1100 (9th Cir. 2010) (some internal citations, quotations, and modifications omitted).

NEPA specifies various information that must be included in an EIS. The "heart" of the EIS is an examination of reasonable alternatives to the proposed action. Id. at 1100 (citing 40 U.S.C. § 4332(C); 40 C.F.R. § 1502.14). "[T]he agency must '[r]igorously explore and objectively evaluate all reasonable alternatives,' and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." Id. (quoting 40 C.F.R. § 1502.14).

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C. The National Forest Management Act and the Multiple-Use Sustained-Yield Act

The second statute plaintiffs invoke is the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1614. NFMA, together with the Multiple-Use Sustained-Yield Act ("MUYSA"), 16 U.S.C. §§ 528-531, provides the primary guidance to the management of the National Forests. Substantively, MUYSA directs the Forest Service to administer the national forests "for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. NFMA adds "wilderness" as an additional purpose, reflecting the passage of the Wilderness Act of 1964. 16 U.S.C. §§ 1604(e), 1311 et seq.

The Forest Service applies NFMA through several layers of management. At a broad level, NFMA requires the Forest Service to develop a forest plan for each forest.1 Once a forest plan is adopted, individual management actions within that forest must comply with the plan. 16 U.S.C § 1604(i); Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008) (en banc). The Forest Service evaluates a proposed project's compliance with the applicable forest plan during the NEPA process. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996). NFMA therefore injects a substantive component into the NEPA's otherwise procedural requirements. In addition to the standard NEPA documents, the Forest service must prepare a "Biological

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Evaluation" for proposed actions "to determine their potential effect on sensitive species." Forest Service Manual ("FSM") 2670.32 ¶ 2. This document discusses species protected under the Endangered Species Act and those species the Forest Service has itself designated as sensitive.

The Forest Service has promulgated a forest plan for the Eldorado National Forest. Discussion of this plan is complicated by the fact that the plan is not codified in a single document. In 1989, the Forest Service adopted what was then a comprehensive forest plan for the Eldorado National Forest. Admin. Record ("AR") 3396. In 2004, the Forest Service promulgated the Sierra Nevada Forest Plan Amendments ("SNFPA"), which amended the forest plans for eleven national forests in the Sierra Nevada region, including Eldorado National Forest. AR 10,938.2 The SNFPA did not supersede or modify any pertinent provisions of the ENF Forest Plan, but the SNFPA did add various supplemental provisions. For convenience, the court refers to the provisions adopted in 1989 as the "ENF Forest Plan" and to the provisions added by the SNFPA in 2004 as the "Sierra Nevada Forest Plan." See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1296 (9th Cir. 2003) (adopting similar terminology). The court recognizes, however, that this terminology is technically inaccurate, in that both are aspects of a single forest plan.

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D. The Endangered Species Act

Yet another statute at issue in this case is the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq. The ESA "reflects 'a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies.'" Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018 (9th Cir. 2009) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978)). The ESA protects species that have been "listed" as "threatened" or "endangered." ESA § 4(c), 16 U.S.C. § 1533(c); 50 C.F.R. § 402.01. In this case, plaintiffs' arguments pertain to a single listed species, the California red-legged frog, which is listed as "threatened." 61 Fed. Reg. 25813 (May 23, 1996).

Federal agencies must ensure that their actions "[are] not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of" habitat that has been designated as critical to the species. ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). The ESA provides a framework for cooperation between agencies to achieve this goal. The Fish and Wildlife Service ("FWS") has primary expertise regarding and authority over the California red-legged frog, and over non-marine species generally. FWS is referred to as a "Service" under the ESA. Other federal agencies, including the Forest Service, must satisfy their section 7 obligations "in consultation with and with the assistance of" FWS. Id. In this process, the Forest Service is referred to as the "action agency."

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The ESA and implementing regulations provide a procedural framework for consultation regarding proposed actions. In this case, the Forest Service was first required to prepare a Biological Assessment. ESA § 7(c)(1), 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. The Biological Assessment determines, inter alia, whether the proposed action "may affect" listed species. 50 C.F.R. § 402.14. If the action agency determines that the action "may affect" listed species, the agency must consult with the appropriate Service. ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a); see also Cal. ex rel. Lockyer, 575 F.3d at 1018 ("consultation is required whenever a federal action 'may affect listed species.'"). Consultation may be formal or informal. 50 C.F.R. § 402.13(a). During informal consultation, FWS determines whether the proposed action is "not likely to adversely affect" the...

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