League of Wilderness Defenders/Blue Mountains Biodiversity Project v. U.S. Forest Serv.

• Decision Date: 10 August 2012
• Docket Number: Case No. 3:10–CV–01397–SI.
• Citation: 883 F.Supp.2d 979
• Parties: LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, Plaintiff, v. UNITED STATES FOREST SERVICE and Kent Connaughton, Regional Forester, Pacific Northwest Region of the U.S. Forest Service, in his official capacity, Defendants.
• Court: U.S. District Court — District of Oregon

883 F.Supp.2d 979

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, Plaintiff,

v.UNITED STATES FOREST SERVICE and Kent Connaughton, Regional Forester, Pacific Northwest Region of the U.S. Forest Service, in his official capacity, Defendants.

Case No. 3:10–CV–01397–SI.

United States District Court, D. Oregon.

Aug. 10, 2012.

R. Scott Jerger, Field & Jerger, LLP, Thomas Charles Buchele, Portland, OR, for Plaintiff.

Jason Alan Hill, Brian M. Collins, Kent E. Hanson, Stephen J. Odell, United

States Attorney's Office, Portland, OR, for Defendants.

AMENDED OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

The League of Wilderness Defenders/Blue Mountains Biodiversity Project (“LOWD” or “Plaintiff”) challenges the decision of the U.S. Forest Service and its Regional Forester for the Pacific Northwest Region (collectively, “Forest Service” or “Defendant”) to increase the use of herbicides in controlling invasive plant species in the Wallowa–Whitman National Forest.¹ The Wallowa–Whitman National Forest comprises 2.3 million acres in the northeast corner of Oregon and the western edge of Idaho—an area larger than the states of Delaware and Rhode Island combined. LOWD argues that the Forest Service, in approving an Invasive Plants Treatment Project for the Wallowa–Whitman National Forest (the “Project”), did not comply with three federal statutes: the National Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”); the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”); and the Clean Water Act, 33 U.S.C. § 1251 et seq. It seeks declaratory and injunctive relief. The parties have cross-moved for summary judgment. For the reasons stated below, the court GRANTS IN PART each party's motion for summary judgment and DENIES IN PART each party's motion.

In 2005, the Regional Forester for the Pacific Northwest Region of the U.S. Forest Service (also known as Region Six) approved a new management direction on preventing and managing invasive plants. Notably, the new regional management direction approved an updated list of ten herbicides for use within Region Six. To reflect this new regional direction, the Wallowa–Whitman National Forest amended its local management plan. As required by NEPA, the Forest Service first prepared an Environmental Impact Statement (“EIS”). After revising the EIS based on comments from stakeholders such as LOWD, the Forest Service issued a Final Environmental Impact Statement (the “Project FEIS”) in March 2010, which recommended increasing the use of herbicides to control invasive plants and allowing the use of all ten of the herbicides approved at the regional level. The Forest Supervisor of the Wallowa–Whitman National Forest approved this recommended approach in a Record of Decision (the “Project ROD”) in April 2010.

LOWD appealed that decision within the agency without success. LOWD now seeks judicial review before this court. The court's review of an agency's compliance with NFMA, NEPA, and the Clean Water Act is limited by the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc); Great Basin Mine Watch v. Hankins, 456 F.3d 955, 961 (9th Cir.2006). Under the relevant APA standard, this court may set aside the agency's decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review underthe arbitrary and capricious standard ‘is narrow, and [we do] not substitute [our] judgment for that of the agency.’ ” McNair, 537 F.3d at 987 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)) (alterations in original). As directed by the Ninth Circuit in McNair, this court must defer to the agency's technical expertise, as long as there is no clear error of judgment. See id. at 993–94.

LOWD makes three principal arguments. First, LOWD argues that the Project does not comply with the local forest management plan and that the Forest Service did not adequately analyze the Project's compliance with NFMA. I conclude that the Forest Service's explanation of its modeling data was reasonable and that the modeling data did not contradict the Forest Service's conclusion that the Project will comply with the local forest management plan. I also conclude that the Forest Service adequately analyzed the Project's compliance with NFMA and that it did so at an appropriate scale.

Second, LOWD argues that the Project FEIS and Project ROD do not satisfy the requirements of NEPA. I conclude that the Forest Service's statement of purpose and need for the Project was not arbitrary or capricious. In particular, I accept the Forest Supervisor's decision that the Project should focus primarily on the treatment of existing infestations of invasive plants rather than on prevention of future infestations. I also conclude that the Forest Service evaluated a reasonable range of alternative actions. I agree with LOWD, however, that the Forest Service did not adequately evaluate the cumulative impacts that the Project might have when considered in conjunction with other actions. As a result, I hold that the Project ROD was arbitrary and capricious under the APA.

Third and finally, LOWD argues that the Forest Service should have discussed the significant possibility that it would need to obtain permits in order for the Project to comply with the Clean Water Act. LOWD acknowledges that the Forest Service did not need permits in order to comply with the Clean Water Act at the time the Project ROD and FEIS were adopted. Instead, LOWD argues that NEPA requires the Forest Service to discuss a reasonably foreseeable need to obtain permits. I conclude that it was not arbitrary or capricious under NEPA for the Forest Service not to discuss a likely change in law that would require it to obtain permits.

BACKGROUND

I. National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) “declares a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). It achieves this purpose by forcing agency deliberation. Id. at 350, 109 S.Ct. 1835. NEPA does not “mandate particular results” for agency decisionmaking, but “simply prescribes the necessary process.” Id.; see also McNair, 537 F.3d at 1000.

The heart of NEPA is the requirement that, before any “major Federal action [ ] significantly affecting the quality of the human environment,” the responsible official must prepare “a detailed statement” that includes:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C). This environmental impact statement (“EIS”) serves two important purposes: “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts,” and it “guarantees that the relevant information will be made available to the larger [public] audience.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835. Under Ninth Circuit precedent, an agency has taken the requisite “hard look” at environmental consequences when its EIS contains all the items listed in 42 U.S.C. § 4332(2)(C) and includes “a full and fair discussion of environmental impacts.” McNair, 537 F.3d at 1001. After the agency has taken this “hard look,” however, it is free to decide that other values outweigh any environmental costs it has identified. See Robertson, 490 U.S. at 350–51, 109 S.Ct. 1835 (“NEPA merely prohibits uninformed—rather than unwise—agency action.”). Courts will not “substitute [their] judgment for that of the agency concerning the wisdom or prudence of a proposed action.” City of Carmel–by–the–Sea v. U.S. Dep't. of Transp., 123 F.3d 1142, 1150 (9th Cir.1997) (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987)) (quotation marks omitted).

Private individuals who can establish standing may challenge the adequacy of an agency's NEPA process under the APA.² An agency's decision is arbitrary or capricious in violation of the APA “if the agency relied on factors Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an explanation ‘that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” McNair, 537 F.3d at 987 (quoting Earth Island Inst., 442 F.3d at 1156).

II. National Forest Management Act

The National Forest Management Act (“NFMA”) requires the Forest Service to develop “land and resource management plans” for units of the National Forest System. 16 U.S.C. § 1604(a). Among other considerations, these plans must “provide for multiple use and sustained yield of the products and services obtained [from National Forest System lands] in accordance with the Multiple–Use Sustained–Yield Act of 1960, and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” Id. § 1604(e)(1).³ As the Ninth Circuit has explained, “NFMA is explicit that wildlife viability is not the Forest Service's only consideration when developing site-specific plans.” McNair, 537 F.3d at 990. After a land and resource management plan is adopted for a particular forest, all subsequent actions ( e.g., “[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National...