Friends of Clearwater v. Probert
| Decision Date | 24 June 2022 |
| Docket Number | 3:21-cv-00189-CWD |
| Parties | FRIENDS OF THE CLEARWATER, Plaintiff, v. CHERYL F. PROBERT, in her official capacity as Forest Supervisor of the Nez Perce-Clearwater National Forests; and U.S. FOREST SERVICE, Defendants, and AMERICAN FOREST RESOURCE COUNCIL, Defendant-Intervenor. |
| Court | U.S. District Court — District of Idaho |
Before the Court are cross motions for summary judgment in this environmental case, and Defendants' related motion to strike. (Dkt. 27, 29, 30, 42.) The matters have been fully briefed and are ripe for the Court's consideration. The Court held a hearing by video on June 3, 2022, and took the motions under advisement. For the reasons more fully explained below, the Court will grant in part and deny in part the motions of the parties.
On April 28, 2021, Friends of the Clearwater (“FOC”) filed the complaint in this matter challenging the United States Forest Service's actions and decisions made in relation to its approval of two forest health projects located within the Nez Perce -Clearwater National Forest. (Dkt. 1.) The complaint was later amended on July 23, 2021. (Dkt. 12.) American Forest Resource Council was permitted to intervene on behalf of the Forest Service. (Dkt. 24.)
FOC claims the Forest Service's decisions and actions violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.; National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq.; National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; and Endangered Species Act (“ESA”), 16 U.S.C § 1531 et. seq. The Forest Service counters that its decisions and proposed actions fully comply with the applicable standards and requirements of all of these environmental statutes.
The two projects involve extensive timber harvest and other activities in adjacent areas of the Nez Perce - Clearwater National Forest. The Forest Service lodged the extensive administrative records with the Court on August 17, 2021. (Dkt. 15, 33.)[1] FOC filed its motion for summary judgment on October 1, 2021, and the Forest Service and Intervenor filed their cross motions on November 9, 2021.
The End of the World Project (“EOW”) encompasses a project area of approximately 49,565 acres within the Salmon River Ranger District of the Nez Perce -Clearwater National Forest and lies entirely within the Wildland Urban Interface (WUI). . It is located approximately six miles south of Grangeville, Idaho. The Governor of Idaho selected EOW as a Priority Landscape Treatment Area under the Farm Bill (USDA-FS 2014/2016). A_000003.[2] Areas selected under the Farm Bill are considered to have “forest health and fuel hazard conditions outside of historic or desired conditions and are where private lands and structures are located,” and the decision to create these areas was prompted in response to the “increasingly devastating fires around the country..” A_000003. The Forest Service issued a Decision Notice and Finding of No Significant Impact (DN/FONSI) for the EOW project in January of 2021, after completing an environmental assessment (EA) in October of 2019.
The Forest Service identified a need to: reduce the risk or extent of, or increase resilience to, insect or disease infestation; reduce wildfire risk to the local communities and surrounding federal lands; restore forest vegetation, dry meadows, and grasslands to a healthy condition; and improve water quality and aquatic habitats. A_000003. The EOW project therefore includes timber harvesting, prescribed burning permanent and temporary road construction, system road reconstruction, and watershed improvement activities to meet the identified needs. A_000003-04. These project activities are, according to the Forest Service required to maintain forest health and promote resilient ecosystems by managing towards more characteristic landscape level vegetation patterns, structure, patch size, fuel loading and species composition, and are designed to create conditions that will moderate fire behavior such that fire fighters will have more options. A_000003.
Specific project activities involve pre-commercial thinning of 1,098 acres; intermediate harvest of 17,099 acres; and regeneration harvest of 1,720 acres. A_000063. The Forest Service intends also to remove hazard trees in campgrounds and disbursed camping areas (51 acres); conduct dry meadow/range maintenance (82 acres); create a fuel break on FS Road 221; conduct prescribed landscape burning on 7,891 acres; treat invasive plant species; improve range conditions; conduct trail restoration or reconstruction; decommission roads; replace culverts; improve cross drains; and complete stream crossing hardening. A_000063. The proposed action includes 12 harvest units that create openings exceeding 40 acres in size. A_000065. The EA for EOW contains a more detailed description of proposed project activities. A_000070-75. In the discussion of the economic impact of the project, the Forest Service indicated that proposed commercial harvest activities are indirectly related, in that such activities would help meet the purpose and need of the project by generating funding to accomplish restorative projects. A_000078.
The Hungry Ridge (HR) project is also located in the Nez Perce - Clearwater National Forest, within the Salmon River Ranger District. B_000003. The approximately 30,000-acre project area is in the Mill Creek and Johns Creek watersheds, tributaries to the South Fork of the Clearwater River, and located approximately 17 miles southeast of Grangeville, Idaho. B_000006. The Forest Service completed a Final Environmental Impact Statement (FEIS) in September of 2020. B000342. The Forest Service indicated in the FEIS and the Final Record of Decision (ROD), dated March 24, 2021, that the overall purpose of the Hungry Ridge Restoration project is to manage forest vegetation to restore natural disturbance patterns; improve long-term resilience at the stand and landscape levels; reduce the potential risk to private property and structures; improve watershed conditions; and maintain/improve habitat structure, function, and diversity. Timber outputs from the proposed action would be used to offset treatment costs, support the economic structure of local communities, and provide for regional and national needs. B_000348, B_000005.
Specifically, the Forest Service intends to restore a more diverse and resilient forest structure; reduce the potential wildfire risk to private property and structures; improve wildlife habitat and watershed health; and sustain community stability by providing merchantable timber. B_000348-49.[3] The project activities include commercial timber harvest on approximately 7,144 acres using intermediate and regeneration harvest, as well as prescribed burning on approximately 12,372 acres to treat natural fuels and activity residual fuels from timber harvest operations.
FOC challenges the Forest Service's DN/FONSI and EA for EOW, and the ROD and FEIS for HR, requesting that the Court declare them arbitrary, capricious, and abuse of discretion, and otherwise not in accordance with the NFMA, NEPA, ESA, or the APA. FOC asks the Court to reverse, remand, vacate, and set aside both agency decisions, and to enjoin the projects until the Forest Service completes Section 7 consultation pursuant to the ESA for grizzly bear.
In the context of agency review, “[s]ummary judgment...serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the.. .standard of review ” under the Administrative Procedure Act. Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006). Due to the Court's limited review under the Administrative Procedure Act, the summary judgment standard of Rule 56(a) does not apply when motions for summary judgment are determined in agency review cases. See Fulbright v. McHugh, 67 F.Supp.3d 81, 89 (D.D.C. 2014). Therefore, the Court “is not required to resolve any facts in a review of an administrative proceeding.” Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). Rather, the Court's purpose “is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id.[4]
The Forest Service's DN/FONSI and EA for EOW, and ROD and EIS for HR, are final agency actions reviewable under the APA, 5 U.S.C. § 551 et. seq. Friends of the Clearwater challenges the two agency actions under the APA as violating the requirements of the NFMA, NEPA, and ESA.
Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). An agency action must be upheld under the APA unless it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Friends of Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir. 1986). Judicial review under this standard is to be “searching and careful,” but remains “narrow,” and the Court should not substitute its judgment for that of the agency. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993).
The Court may reverse the agency's decision as arbitrary and capricious “only if the agency relied on factors Congress did not intend it...
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