Decker v. United States Forest Serv.

• Citation: 780 F.Supp.2d 1170
• Decision Date: 31 January 2011
• Docket Number: Civil Action No. 09–cv–02675–PAB–CBS.
• Parties: Melissa DECKER and Michael Heaphy, Plaintiffs,v.UNITED STATES FOREST SERVICE, Rick Cables, Regional Forester, United States Forest Service, Scott Fitzwilliams, Supervisor for the White River National Forest, and David Neely, District Ranger, Holy Cross Ranger District, Defendants.
• Court: U.S. District Court — District of Colorado

780 F.Supp.2d 1170

Melissa DECKER and Michael Heaphy, Plaintiffs,

v.UNITED STATES FOREST SERVICE, Rick Cables, Regional Forester, United States Forest Service, Scott Fitzwilliams, Supervisor for the White River National Forest, and David Neely, District Ranger, Holy Cross Ranger District, Defendants.

Civil Action No. 09–cv–02675–PAB–CBS.

United States District Court, D. Colorado.

Jan. 31, 2011.

Michael J. Heaphy, Michael J. Heaphy, Vail, CO, for Plaintiffs.Jamie L. Mendelson, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on plaintiffs' second amended complaint [Docket No. 53] and plaintiffs' opening brief [Docket No. 72] challenging defendants' actions in implementing and approving the Upper Eagle River Beetle Salvage Project. Plaintiffs' claims are fully briefed and the matter is ripe for disposition. Plaintiffs' claims arise under the federal Administrative Procedures Act (“APA”), the Healthy Forests Restoration Act (“HFRA”), and the National Environmental Policy Act (“NEPA”). The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

I. BACKGROUND

This action concerns plaintiffs' challenge to the proposed timber salvage project of the United States Forest Service (“the Forest Service”) within the Holy Cross Ranger District of the White River National Forest. The project, called the Upper Eagle River Beetle Salvage Project (“the project”), is a response to the mountain pine beetle infestation in northwest Colorado. The Forest Service proposed to remove and salvage approximately 1,763 acres of beetle-infested lodgepole pine stands. Pursuant to the project, 256 acres will be clearcut (removing all the trees in a stand), 1,490 acres will be “clearcut with leave trees” (leaving pockets of aspen, spruce and fir trees) and 27 acres will be “seed tree removal cut” (removing seed trees that would compete with regeneration). The project is intended to accelerate the regeneration of the forest stands killed by pine beetles, to reduce hazardous fuel loads by removing dead and dying trees, to provide clear areas for fire suppression in the event of a wildfire, and to protect public safety by removing dead trees that will eventually fall on roads and trails. The primary method the project will use to remove these dead and dying trees is clearcutting. The Forest Service intends to capture some of the economic value of the removed trees through commercial contracts. The project covers an area divided into four geographical “pods”: (1) Indian Creek pod; (2) West Grouse pod; (3) Tigiwon pod; and (4) Yoder pod. Each of these pods is divided into treatment areas or “units.”

The Forest Service proposed the project as an “authorized hazardous fuel reduction project” under the authority of the HFRA. HFRA was enacted in 2003 to “reduce wildfire risk to communities, municipal water supplies, and other at-risk federal land” by “[a]s soon as practicable” implementing “authorized hazardous fuel reduction projects.” 16 U.S.C. §§ 6501(1), 6512(a). The statute defines “authorized hazardous fuel reduction projects” as “the measures and methods described in the definition of ‘appropriate tools' contained in the glossary of the Implementation Plan, on Federal land.” 16 U.S.C. § 6511(2). HFRA, in turn, defines the Implementation Plan as “the Implementation Plan for the Comprehensive Strategy for a Collaborative Approach for Reducing Wildland Fire Risks to Communities and the Environment, dated May 2002, developed pursuant to the conference report to accompany the Department of the Interior and Related Agencies Appropriations Act, 2001 (House Report No. 106–64 and subsequent revisions).” 16 U.S.C. § 6511. The glossary of the most recent Implementation Plan defines “appropriate tools” as: “Methods for retaking hazardous fuels including prescribed fire, wildland fire use, and various mechanical methods such as crushing, tractor and hand piling, tree removal (to produce commercial or pre-commercial products), and pruning. They are selected on a site-specific case and are ecologically appropriate and cost effective.” R. at D02842.

HFRA establishes an expedited administrative review process for authorized hazardous fuel reduction projects that does not use the full notice, comment, and appeal procedures applicable to most agency actions under 36 C.F.R. § 215 et seq. See 16 U.S.C. § 6515(a)(1); 36 C.F.R. § 218.3. Under HFRA, only an abbreviated objection process is necessary. See 36 C.F.R. § 218.1. Individuals and organizations can submit written comments to the proposed hazardous fuel reduction project during a public comment period while the Forest Service prepares an Environmental Assessment (“EA”) or Environmental Impact Statement (“EIS”) for the project. 36 C.F.R. § 218.7. This comment period allows the public to comment on a draft EA or EIS and occurs during “scoping” or the initial evaluation of the project. Id. Only individuals who submit written comments may file objections to the final EA or EIS during a thirty-day objection period. Id. A reviewing officer then responds to these objections and issues a Record of Decision (“ROD”) or Decision Notice (“DN”). 36 C.F.R. § 218.13. This objection process is the sole means the public may use to challenge such a project. 36 C.F.R. § 218.1.

The public comment period for the project began in June 2007, after the Forest Service notified the public of the project in an initial scoping notice. Plaintiffs, residents of the nearby town of Minturn, submitted comments during this period. Plaintiffs' comments argued, among other things, that the project was not an “authorized hazardous fuel reduction project” under the HFRA, and that the Forest Service was required by law to complete an economic analysis and a full EIS for the project. In November 2007, the Forest Service issued an EA for the project and thereafter plaintiffs submitted objections, again arguing that the project was not authorized under the HFRA, that it was not cost effective and that an EIS was necessary. The Forest Service published a revised EA in March 2008 and plaintiffs again submitted objections, to which the Forest Service responded in writing. After the close of the objection period, the Forest Service issued a finding of no significant impact (“FONSI”) and Decision Notice approving the project.

After approving the project, the Forest Service intended to implement the project through timber sale contracts for each of the four pods. The Forest Service initially awarded timber sale contracts for the entirety of the Yoder, Indian Creek, Tigiwon and West Grouse pods, but Units 101, 113 and 114 were removed from the West Grouse pod contract because the Forest Service determined that timber would have to be removed from these units using helicopter logging instead of traditional logging methods. Helicopter logging uses helicopters instead of ground-based machinery to transport cut trees off of the forest floor and is considerably more expensive. In June 2009, the Forest Service completed a Supplemental Information Report (“SIR”) assessing helicopter logging in these units and determining that it did not constitute a significant change so as to require supplementing the DN or FONSI. Subsequently, in September 2009, the Forest Service entered into a stewardship contract for the helicopter logging of Units 101, 113 and 114. Stewardship contracts allow the Forest Service to apply the value of the timber removed to offset the cost of the services provided in removing the timber. In June 2009, the Yoder pod contractor began logging in the Yoder pod pursuant to the project and logging in this pod is now complete. In November 2009, the stewardship contractor began logging in Unit 101 of the West Grouse pod.

On November 13, 2009, plaintiffs filed the original complaint in this case, challenging the Forest Service's implementation of the project in Unit 101 and seeking declaratory and injunctive relief. The plaintiffs argued that the logging in Unit 101 materially diverged from the proposed action articulated in the EA. The Court conducted an evidentiary hearing on plaintiffs' request for a preliminary injunction and issued an order on December 16, 2009 enjoining the Forest Service from (1) “carrying out logging activities in Unit 101 north of the West Grouse Creek hiking trial or west of the junction between the West Grouse Creek hiking trial and the Grouse Lake hiking trial, unless or until it properly analyses this change of unit boundaries through supplementation of the Environmental Assessment” and (2) from “engaging in helicopter yarding in Unit 101 unless and until it properly analyses this change through supplementation of the Environmental Assessment.” Docket No. 20 at 2. The Court also required that “any further analysis of the logging activities within Unit 101 must take into account the economics of the project.” Id. This preliminary injunction expired on February 14, 2010. Docket No. 70.

In response to the Court's order, the Forest Service issued a supplemental scoping notice on February 26, 2010, indicating that changed circumstances and new information required a supplemental assessment of the project. Plaintiffs submitted comments in response to the scoping notice to the Forest Service on March 15, 2010. In April 2010, the Forest Service issued a Supplemental Environmental Assessment (“Supplemental EA”). Plaintiffs submitted objections to the Supplemental EA on May 14, 2010, to which the Forest Service responded on June 14, 2010. The Forest Service ultimately issued a new Decision Notice on June 20, 2010. The Decision Notice authorized the project as set forth in the Supplemental EA and made another finding of no significant impact. Plaintiffs then filed their Second Amended Complaint challenging the new Decision Notice.

II. STANDARD OF REVIEW

Pursuant to the APA, the Court will set aside a final agency action only if it...