Klamath-Siskiyou Wildlands v. U.S. Forest Service

• Decision Date: 15 October 2004
• Docket Number: No. CIV.S.03-1334FCDDAD.,CIV.S.03-1334FCDDAD.
• Citation: 373 F.Supp.2d 1069
• Court: U.S. District Court — Eastern District of California
• Parties: KLAMATH-SISKIYOU WILDLANDS CENTER, Environmental Protection and Information Center, and Klamath Forest Alliance, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

373 F.Supp.2d 1069

KLAMATH-SISKIYOU WILDLANDS CENTER, Environmental Protection and Information Center, and Klamath Forest Alliance, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

No. CIV.S.03-1334FCDDAD.

United States District Court, E.D. California.

October 15, 2004.

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COPYRIGHT MATERIAL OMITTED

Sharon Eileen Duggan, Berkeley, CA, Marianne Dugan, Pro Hac Vice, Facaros and Dugan, Eugene, OR, for Plaintiffs.

MEMORANDUM AND ORDER

DAMRELL, District Judge.

This matter is before the court on cross motions for summary judgment filed by plaintiffs, Klamath-Siskiyou Wildlands Center, Environmental Protection and Information Center, and Klamath Forest Alliance (collectively "plaintiffs") and defendant, United States Forest Service, ("Forest Service").¹ The court heard oral argument from parties' counsel on July 16, 2004.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Beaver Creek Project

The present controversy surrounds the Beaver Creek Project ("the Project"), a timber harvest/watershed improvement project located in the Beaver Creek Watershed, which lies within the Scotts River Ranger District of the Klamath National Forest, approximately fifteen miles northwest of Yreka, California.

The Klamath National Forest encompasses approximately 1,700,000 acres of federal lands in Northern California and Southern Oregon. Within the Klamath National Forest, the 69,600-acre Beaver Creek Watershed drains, through Beaver Creek and a number of other tributaries, into the nearby Klamath River. The Beaver Creek Watershed is a checkerboard of public (approximately 64%) and private land, much of which has been heavily impacted by logging, grazing, and road construction. (See Beaver Creek Ecosystem Analysis 1996 at 1; AR 2751.) The 11,362-acre Beaver Creek Project area ("project area") lies in the eastern portion of the Beaver Creek Watershed.

As outlined, the project would harvest 5,940,000 board feet of lumber from 1,354 acres in harvest units scattered throughout the project area, generating $ 541,000.00 for associated watershed improvement projects. (EA at 19; AR 378.) Specifically, the project entails:

Timber Harvest

• Timber harvest on 975 acres ("harvest area"). Methods of harvest include Commercial Thinning² on 808 acres, including 477 acres of Northern Spotted Owl Critical Habitat ("Spotted Owl CH") and nine acres of geologically-defined Riparian Reserves; Green Tree Retention³ on 77 acres; Group Selection⁴ on six acres; Salvage and Sanitation⁵ on 83 acres, including 44 acres of Spotted Owl CH; and Overstory Removal⁶ on one acre. Pre-commercial thinning⁷ will occur on ten acres within the harvest area and 379 acres outside of the harvest area, including 15 acres of Spotted Owl CH and 79 acres of designated Riparian Reserves.

• Harvested timber would be removed through a combination of traditional Tractor systems (500 acres), and Skyline Cable systems (475 acres) in primarily steep-sloped areas. (EA at 2; AR 361.)

• After harvest, 74 acres will be reforested. Gopher baiting will occur on 46 acres to protect newly planted trees.

Fire Suppression

• Fire suppression activities involve burning of accumulated fuels through a variety of methods, including Underburn (674 acres, including 255 acres of Spotted Owl CH); Tractor Pile and Burn (247 acres); Hand Pile and Burn (10 acres); and Broadcast Burn of slash (38 acres).

Road-Related Activities

• Four temporary spur roads (total .24 miles) would be constructed for access to timber harvest. Newly reconstructed roads would be decommissioned after harvest.

• 3.85 miles of existing non-Forest System roads would be reopened for access to timber harvest areas. Reopened roads would be decommissioned after timber harvest.

• Approximately four miles of roads would be decommissioned.

• Road improvement activities would occur on twelve roads.

• Road closure, both seasonal and year-round, would occur on three roads.

• One non-system road would be added to the National Forest System. (EA at 1-3; AR 360-362.)

2. Regulatory Framework

Forest planning decisions are impacted by several overlapping statutory and regulatory regimes.

National Environmental Policy Act

The National Environmental Policy Act, 42 U.S.C. § 4321, et seq., ("NEPA"), was enacted by Congress in 1969 to "declare a national policy which will encourage productive and enjoyable harmony between man and his environment; promote efforts which will prevent or eliminate damage to the environment ... [and] to enrich the understanding of the ecological systems and natural resources important to the nation...." 42 U.S.C. § 4321. Despite this ambitious declaration of purpose, NEPA has been interpreted as essentially procedural. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998)("noting that the purpose of NEPA is to `ensure a process, not to ensure any result.'") The NEPA process is designed to "ensure that the agency ... will have detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Blue Mountains, 161 F.3d at 1212.

National Forest Management Act

The National Forest Management Act of 1976, 16 U.S.C. § 1604, et seq., ("NFMA"), requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 90 Stat. 2949, as renumbered and amended, 16 U.S.C. § 1604(a). As of 1998, the System included 155 national forests, 20 national grasslands, 8 land utilization projects, and other lands that together occupy nearly 300,000 square miles of land located in 44 States, Puerto Rico, and the Virgin Islands. § 1609(a); 36 C.F.R. § 200.1(c)(2) (1997); Office of the Federal Register, United States Government Manual 135 (1997/1998). The Forest Service, which manages the System, develops land and resource management plans pursuant to NFMA, and uses these forest plans to "guide all natural resource management activities," including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 36 C.F.R. § 219.1(b); 16 U.S.C. § 1604(e)(1). In developing forest plans, the Service must take both environmental and commercial goals into account. See, e.g., 16 U.S.C. § 1604(g); 36 C.F.R. § 219.1(a) (1997).

Forest planning occurs at two levels: forest and project. At the forest level, the Forest Service develops a Forest Plan, which is a broad, long-term programmatic planning document for an entire National Forest. Each Forest Plan includes goals and objectives for individual units of the forest and provides standards and guidelines for management of forest resources. Consistent with its obligations under the NFMA, in 1995, the Forest Service adopted the Klamath National Forest Land and Resource Management Plan ("KLRMP"), which provides standards and guidelines for project level planning within the Klamath National Forest. Because the project lies within the Klamath National Forest, it must be consistent with the KLRMP.

Northwest Forest Plan

Established in 1994 amid the controversy surrounding the northern spotted owl, the Northwest Forest Plan (NFP) was developed to provide an integrated, comprehensive approach to ecosystem management, intergovernmental and public collaboration, and rural community economic assistance for federal forests in western Oregon, Washington, and northern California. The NFP covers nearly 24.5 million acres of federal lands. The NFP amended the planning documents for 19 national forests and seven BLM districts, including the KLRMP for the Klamath National Forest.

The NFP allotted lands to various reserves and management categories and established standards and guidelines for activities on those lands. The core of the conservation component of the NFP is an extensive system of reserves, which comprise 78% of the planning area. This includes 8.8 million acres of lands which were congressionally or administratively withdrawn. Another 7.4 million acres were designated late successional reserves (old growth forests) and 2.6 million acres were designated as riparian reserves. With some exceptions, these lands are essentially off-limits for timber harvest. The remaining 5.5 million acres, or 22% of the total area, are designated as "adaptive management areas" or "Matrix" lands. These areas are available for timber harvest

In addition to the specific forest management requirements described above, the NFP contains an Aquatic Conservation Strategy ("ACS") which sets objectives to "restore and maintain the ecological health of watersheds and aquatic ecosystems" on federal lands. (ROD at B-9, AR 3680.)

In summary, to proceed, the project must be analyzed in accordance with NEPA and consistent with the NFMA, KLRMP, NFP and ACS.

3. History of the Beaver Creek Project

The Forest Service formally initiated planning for the project on November 19, 1998. In conjunction with its analysis of project effects, and in compliance with Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., the Forest Service conducted biological assessments of project impacts on endangered, threatened, proposed, or sensitive wildlife and anadromous fish species potentially impacted by the project.⁸ Specifically, the Forest Service evaluated impacts to four threatened species, the Northern Spotted Owl ("NSO"), Bald Eagle, and Canada Lynx, as well as the Southern Oregon / Northern California Coasts Coho Salmon Evolutionary Significant Unit ("SONCC Coho Salmon"). (Beaver Creek Biological Assessment/Biological Evaluation for Wildlife Species ("Wildlife BA/BE") at 1, AR 1397; Beaver Creek Biological Assessment/Biological Evaluation for Anadromous Fish Species ("Fish BA/BE") at 1, AR 977.) In addition, multiple Sensitive Species were identified as potentially impacted by the project, including the Peregrine...