Forestkeeper v. La Price

• Decision Date: 15 September 2017
• Docket Number: CASE NO. 1:16–CV–0759 AWI JLT
• Citation: 270 F.Supp.3d 1182
• Court: U.S. District Court — Eastern District of California
• Parties: Sequoia FORESTKEEPER, Plaintiff v. Eric LA PRICE, in his official capacity as District Ranger for the Western Divide Ranger District of the Sequoia National Forest, et al., Defendants, and Sierra Forest Products, a California Corporation, Intervenor–Defendant

270 F.Supp.3d 1182

Sequoia FORESTKEEPER, Plaintiff

v. Eric LA PRICE, in his official capacity as District Ranger for the Western Divide Ranger District of the Sequoia National Forest, et al., Defendants,andSierra Forest Products, a California Corporation, Intervenor–Defendant

CASE NO. 1:16–CV–0759 AWI JLT

United States District Court, E.D. California.

Signed September 15, 2017

Rachel S. Doughty, Greenfire Law, Berkeley, CA, Rene Peter Voss, Rene P. Voss, Attorney at Law, San Anselmo, CA, for Plaintiff.

Joseph Frueh, United States Attorney's Office, Sacramento, CA, for Defendants.

Lawson E. Fite, PHV, Portland, OR, Thomas C. Brodersen, Williams, Brodersen & Pritchett LLP, Visalia, CA, for Intervenor–Defendant.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT; PLAINTIFF'S MOTION TO ADMIT EXTRA–RECORD EVIDENCE; DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S EXTRA–RECORD EVIDENCE; AND PLAINTIFF'S MOTION TO STRIKE THE DECLARATION OF JEFFREY R. CORDES

Anthony W. Ishii, SENIOR DISTRICT JUDGE

This is a National Environmental Policy Act ("NEPA") and National Forest Management Act ("NFMA") case filed by Plaintiff Sequoia Forest Keeper ("SF Keeper" or "Plaintiff") against the United States Forest Service ("Forest Service") and various Forest Service employees in their official capacities (collectively, "Defendants") to halt the Frog Timber sale Project ("Frog Project" or "Frog"). Sierra Forest Products ("SF Products"), the corporation with the contract to carry out the Frog Project, is an Intervenor–Defendant. SF Keeper has brought a civil action for declaratory and injunctive relief, which stems from Defendants' ongoing actions related to the Frog Project, permitting commercial logging and other activities in what SF Keeper maintains is core habitat for the Pacific Fisher ("Fisher") in the Greenhorn Mountains of the Sequoia National Forest. Fishers are a mammalian species that have been classified as a "sensitive species."

SF Keeper maintains, inter alia , that the Forest Service has failed to adequately analyze the impacts of the planned logging practices on the Fisher. SF Keeper argues that Defendants' Supplemental Information Report ("SIR") dated April 12, 2017 is insufficient and that at a minimum, Defendants should have prepared a rigorous supplement to the 2013 Environmental Assessment¹ or prepared an Environmental Impact Statement ("EIS") due to "significant changes" since 2013. Defendants maintain, inter alia , that the SIR is sufficient and that the Frog Project would have only minimal, short-term effects on individual Fishers, if any, and will ensure that habitat in the area can better withstand drought, fires, and insects in the future. This in turn would benefit the Fishers in the long term by protecting their habitat from potentially extreme destruction on a vast scale. Defendants, SF Products and SF Keeper have filed cross motions for summary judgment. For the reasons that follow, Defendants' and SF Products' motions for summary judgment will be granted.

I. CROSS–MOTIONS FOR SUMMARY JUDGMENT

PROCEDURAL BACKGROUND

The complaint commencing this action was filed on June 1, 2016, and sought a declaration that Defendants had violated NEPA with respect to both the Frog and Rancheria Projects, that the Forest Service be required to "supplement their NEPA analyses and submit Environmental Impact Statements for both Projects and that the Forest Service be enjoined from further activity until the EIS's are complete. Doc. No. 1. On July 7, 2016, SF Keeper filed a motion for preliminary injunction, permanent injunction and summary judgment. Doc. No. 8. On July 31, 2016, SF Keeper filed a notice of withdrawal of its motion for preliminary injunction in light of the Forest Service's decision to halt the Projects. Doc. No. 17. The motions for permanent injunction and partial summary judgment remained. On September 22, 2016, this Court denied SF Keeper's motion for partial summary judgment and injunctive relief without prejudice. Doc. No. 24. On January 5, 2017, this Court granted SF Products' motion to intervene.

On April 20, 2017, Defendants filed a notice of determination to prepare a supplemental environmental analysis of the Rancheria Forest Restoration Project. Doc. No. 42. Thereafter, on May 9, 2017, SF Keeper filed a First Amended Complaint dropping the Rancheria Project and focusing only on the Frog Project. Doc. No. 46. SF Keeper seeks a declaration that Defendants have violated NEPA and the NFMA, and an order that Defendants must supplement the Frog NEPA analysis in a supplemental Environmental Assessment or an EIS before they can authorize any further implementation of the Frog Project. Id. The parties then filed cross-motions for summary judgment, which are now before this Court.

FACTUAL BACKGROUND ²

1. The Fisher and its Habitat

The Fisher is a forest-dwelling mammal in a family that includes weasels, mink, martens, and otters. They are about the size of a large house-cat and are light brown to dark blackish-brown. 74 Fed. Reg. 22710, 22714 (April 18, 2016). PSMFO 1.³ Fisher occurrence is consistently associated with low- to mid-elevation coniferous and mixed conifer and hardwood forests with characteristics of late-successional forests (large-diameter trees, coarse downed wood, and singular features of large snags, tree cavities, or deformed trees). Id. PSMFO 2.⁴ Fishers are associated with moderate to dense forest canopy. The most consistent predictor of Fisher occurrence at large spatial scales was moderate to high amounts of contiguous canopy cover rather than specific habitat type. Research has suggested that inadequate canopy cover limits Fisher distribution across forest types and ecoregions. F00282. PSUMF 3. The greatest risk to Fisher habitat loss comes from uncharacteristically [severe] wildfires. SF_16; F_227. DSUMF 169.⁵

2. Fisher Population Numbers and Sensitive Species Designation

The Southern Sierra Nevada native population of Fishers is small and is geographically separated from the remainder of the Fishers in the west coast States. 74 Fed. Reg. at 22716. PSMFO 4.⁶ Estimates for the Southern Sierra Nevada population range from a low of 100 to a high of 500 individuals, with a recent 2016 estimate of 256 female Fishers based on available habitat, and other estimates from 2011 of 125–250 adult Fishers to fewer than 300 adult Fishers and 276–359 Fishers, including juveniles and adults. Id. PSMFO 5.⁷ Fishers have been listed by the Forest Service as a sensitive species since 1984. F00270. PSUMF 8.

The Forest Service defines "sensitive species" as those plant and animal species identified by a Regional Forester for which population viability is a concern as evidenced by significant current or predicted downward trend in numbers or density. SF1508 (Forest Service Manual 2670.5) PSUMF 9. In 2004, the U.S. Fish and Wildlife Service ("US Fish and Wildlife Service" or "USFWS") determined that Fishers warranted federal protection under the Endangered Species Act ("ESA"). 69 Fed. Reg. 18,770 (Apr. 3, 2004), and ten years later proposed a rule to list Fishers as "threatened" under the ESA. 79 Fed. Reg. 60,419 (Oct. 7, 2014). PSUMF 10. Recently, US Fish and Wildlife Service withdrew its listing proposal. 81 Fed. Reg. 22,710 (Apr. 18, 2016). PSUMF 11.

3. Timber Project Geographic Locations

The Frog and Rancheria Project areas are located in Tulare and Kern Counties in the Greenhorn Mountains of the Sequoia National Forest, just north and south of the community of Alta Sierra, California. F00033; SF0047 (showing the projects in relationship to other Forest Service projects in the Greenhorn Mountains). PSUMF 6. The "Core 2" area for Fisher conservation, which includes the Greenhorn Mountains, has the highest recorded Fisher occupancy rates, highest predicted average habitat quality, and highest genetic diversity of Fishers in the Southern Sierra Nevada Assessment Area. SF0158. PSUMF 7.

4. Proposed Benefits of the Frog Project

When trees grow closely together, they compete for limited water, sunlight, and nutrients, which causes reduced growth and canopy development. F_40, 75, 155. DSUMF 61. As initially proposed, Frog would thin trees on 1,620 acres of the Sequoia National Forest in an area 25 miles southeast of Porterville, California, and far outside of the Giant Sequoia National Monument. F_9. DSMFO 62.⁸ The Frog project area contains dense, overcrowded trees characterized by stagnant growth, low diversity, high potential mortality from insects and drought, and high fire risk. F_34. DSMFO 63.⁹ The Forest Service has determined that current fuel loads in the project area pose a high risk of catastrophic loss of property, natural resources, and possibly even life. SF_21. DSUMF 167.¹⁰ By implementing Frog, surface fuels would decrease 40 to 80 percent, thereby limiting the size and severity of wildfires in the project area. SF_21. DSUMF 168.¹¹ By thinning stands in the Frog project area, the Forest Service seeks to promote the growth of healthy, diverse trees and complex forest structures that would benefit wildlife and withstand insects, drought, and fires. The Forest Service also seeks to remove hazard trees that pose a risk to public safety along roads, trails, and other improvements in the area. F_39–40. DSUMF 64.

5. Initial Approval of the Frog Project by the Forest Service

Pursuant to NEPA, 42 U.S.C. § 4332, the Forest Service analyzed Frog in an Environmental Assessment, responded to public comments, and approved the project in 2001 with a Finding of No Significant Impact ("FONSI"). F_9, 45. DSUMF 65. The Forest Service issued its original decision to proceed with the Frog Project on February 5, 2001, supported by the 2000 Frog Environmental Assessment. F02402. PSUMF 13. The McNally Fire burned across 150,000 acres, including portions of the project area. Frog was thus modified to include salvage harvest on 190 acres of fire-damaged trees. In addition, because the McNally Fire changed the distribution of spotted owl, 180 acres...