Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., : 2:16-CV-0293-TOR
| Decision Date | 11 July 2017 |
| Docket Number | NO: 2:16-CV-0293-TOR,: 2:16-CV-0293-TOR |
| Court | U.S. District Court — District of Washington |
| Parties | FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, and UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants. |
BEFORE THE COURT are Plaintiff Forest Service Employees for Environment Ethics' Motion for Summary Judgment (ECF No. 14) and Motion for Judicial Notice (ECF No. 17); Defendants United States Forest Service and the United States Department of Agriculture's Cross-Motion for Summary Judgment (ECF No. 22); and Lake Wenatchee Fire & Rescue's Motion for Leave to File Amicus Curiae Brief (ECF No. 26). The motions were submitted for consideration without oral argument. The Court has reviewed the motions and the record, and is fully informed.
For the reasons discussed below, Defendants' Motion for Summary Judgment (ECF No. 22) is GRANTED and Plaintiff's Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff's Motion for Judicial Notice (ECF No. 17) is DENIED AS MOOT, as the untimely submitted documents are immaterial to the Order. Lake Wenatchee Fire & Rescue's Motion for Leave to File Amicus Curiae Brief (ECF No. 26) is DENIED.
The instant suit arises out of the Forest Service's attempt to stop the "Wolverine Fire." The Wolverine Fire was ignited by lightning on June 29, 2015, on a ridgetop in the Chelan Ranger District of the Okanogan-Wenatchee National Forest, in Chelan County, Washington. ECF No. 23 at 2, ¶ 1. The conditions were such that fighting the fire directly was not feasible, and firefighters were withdrawn from the area due to risk of injury. ECF No. 23 at 2, ¶¶ 2-3. The firequickly grew in severity and complexity—by August 16, 2015 the fire was approximately 40,500 acres in size (over 63 square miles), and then grew to 62,000 acres (nearly 100 square miles) by August 27, 2015. ECF No. 23 at 4, ¶¶ 13, 18.
The Forest Service first two attempts to contain the fire were unsuccessful, as the fire escaped both containment lines on August 1 and August 17, 2015. ECF No. 23 at 3-4, ¶¶ 10, 14. From August 17 through August 31, 2015, the fire spread south at a rate of one to three miles per day. ECF No. 23 at 4, ¶ 15. By the end of August, the Incident Management Team assigned to the fire, after considering the lack of natural barriers, extreme fuel loading, absence of adequate safety zones, and severity of the fire, decided a Community Protection Line (CPL) was necessary in order to protect life, property, and resources. ECF No. 23 at 4, ¶ 20.
On August 30, 2015 the Forest Service began constructing the CPL, describing the CPL as an approximately 20-mile long contingency line consisting of a roughly 300 foot wide thinning of vegetation to "allow safe and efficient firefighting with a good chance of stopping forward spread of the fire." See ECF No. 23 at 5, ¶¶ 22-24. The CPL project was near completion when the Forest Service halted construction after rain showers slowed the fire. See ECF No. 23 at 6, ¶¶ 29-33.
Plaintiff Forest Service Employees for Environmental Ethics initiated this suit against Defendants United States Forest Service and United States Departmentof Agriculture on August 16, 2016—well after the construction of the CPL—complaining that the CPL was constructed without complying with the National Environmental Protection Act (NEPA). The parties filed cross-motions for summary judgment on this issue, and these motions are now before the Court.
A movant is entitled to summary judgment if "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). A fact is "material" if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the "burden of establishing the nonexistence of a 'genuine issue.'" Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). "This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party." Id.
Only admissible evidence may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). Per Rule 56(c), the parties must support assertions by: "citing to particular parts of the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, orthat an adverse party cannot produce admissible evidence to support the fact." The nonmoving party may not defeat a properly supported motion with mere allegations or denials in the pleadings, Liberty Lobby, 477 U.S. at 248, or by providing a mere "scintilla of evidence[,]" id. at 252.
Although courts generally must view the facts and justifiable inferences in favor of the nonmoving party, id., courts have more leeway when the case will not be sent to a jury:
[W]here the ultimate fact in dispute is destined for decision by the court rather than by a jury, there is no reason why the court and the parties should go through the motions of a trial if the court will eventually end up deciding on the same record. However, just as the procedural shortcut must not be disfavored, courts must not rush to dispose summarily of cases—especially novel, complex, or otherwise difficult cases of public importance—unless it is clear that more complete factual development could not possibly alter the outcome and that the credibility of the witnesses' statements or testimony is not at issue.
TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th Cir. 1990).
DISCUSSION
Plaintiff's Motion for Summary Judgment (ECF No. 14) seeks redress under the Administrative Procedures Act (APA). Plaintiff asserts: (1) Defendants violated the procedural requirements of the National Environmental Policy Act (NEPA) in constructing the CPL, reasoning NEPA does not have a "waiver" for emergency actions and the Forest Service did not seek "alternative arrangements"as is required for emergency actions; and (2) even if 36 C.F.R. § 220.4(b)—the regulation purporting to allow the Forest Service to take emergency actions—satisfies the "alternative arrangement" requirement under NEPA, the Forest Service did not follow the procedural requirements of said regulation. ECF No. 14 at 2-3. Plaintiff does not raise any specific complaint about the propriety of the CPL otherwise, such as whether the decision to construct the CPL was arbitrary.2
As discussed below, the Forest Service satisfied NEPA, which allows for "alternative arrangements" in cases of emergencies, because 36 C.F.R. § 220.4(b) fulfills the "alternative arrangement" requirement and the Forest Service complied with the required procedures. Accordingly, Defendants are entitled to summary judgment.
Plaintiff's argument that Defendants violated the procedural requirements of NEPA in constructing the CPL is two-fold: (1) Plaintiff argues there is no exception for emergencies; and (2) even if there is an exception, the Forest Servicefailed to pursue "alternative arrangements" as required by regulation. Plaintiff's arguments fail.
NEPA requires all agencies of the Federal Government to consider the environmental impact and file public reports relaying such before taking major federal actions significantly affecting the quality of the human environment "to the fullest extent possible[.]" 42 U.S.C. § 4332.
When the Government conducts an activity, "NEPA itself does not mandate particular results." Instead, NEPA imposes only procedural requirements to "ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts."
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) (internal citations omitted; bracket in original). According to the Supreme Court:
NEPA has twin aims. First, it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action." Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it required only that the agency take a "hard look" at the environmental consequences before taking a major action. The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.
Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983) (internal citations omitted).
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Plaintiff argues: "Just as NEPA contains no national security exception, it also does not waive 'emergency' federal action[s]." ECF No. 14 at 11-12 (citing San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1035 (9th Cir. 2006)). However, even if not characterized as a waiver, NEPA allows an agency to make alternative arrangements in emergency situations without complying with the ordinary, burdensome reporting requirements.
"The Council of Environmental Quality (CEQ), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004). Pertinent to this case, CEQ promulgated the following regulation allowing for agencies to make alternative arrangements when facing an emergency:
Where emergency...
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