N. Cascades Conservation Council v. United States Forest Serv.
| Decision Date | 28 May 2021 |
| Docket Number | 2:20-cv-01321-RAJ-BAT |
| Parties | NORTH CASCADES CONSERVATION COUNCIL, KATHY JOHNSON, Plaintiffs, v. UNITED STATES FOREST SERVICE, VICKIE CHRISTIANSEN, Chief of the Forest Service; JAMIE KINGSBURY, Former Forest Supervisor for Mount-Baker Snoqualmie National Forest; JODY WEIL, Current Forest Supervisor for Mount-Baker Snoqualmie National Forest; PETER FORBES, Former District Ranger for Darrington Ranger District; ERIN ULOTH, Former Acting District Ranger for Darrington Ranger District; GRETCHEN SMITH, Current District Ranger Darrington Ranger District; PHYLLIS REED, Project Lead for Darrington Ranger District, Defendants, and HAMPTON LUMBER MILLS-WASHINGTON, INC., a Washington corporation, HAMPTON TREE FARMS, LLC, an Oregon limited liability corporation, and SKAGIT LOG AND CONSTRUCTION, INC., a Washington corporation, Defendant-Intervenors. |
| Court | U.S. District Court — Western District of Washington |
REPORT AND RECOMMENDATION
Plaintiffs North Cascades Conservation Council (“N3C”) and Kathy Johnson move the court for summary judgment on claims associated with the National Forest Management Act (NFMA), 16 U.S.C. § 1600, et seq, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Dkt. 32 (Plaintiffs' Revised Motion for Summary Judgment).[1] Plaintiffs seek vacatur of the Forest Service's Final Decision Notice (“DN”) and Finding of No. Significant Impact (“FONSI”) for the South Fork Stillaguamish Vegetation Project (“the Project”) (AR 20268-20318), and to enjoin the Forest Service from proceeding with the Project.
Plaintiffs assert that the Forest Service's decision to proceed with the Project was “arbitrary and capricious” and should be set aside because (1) the Project violates the NFMA in that it does not conform to certain aspects of the 1994 Northwest Forest Plan for the Mt. Baker-Snoqualmie National Forest, as amended; and (2) the Project violates the NEPA in that there are deficiencies in the Forest Service's Environmental Assessment (“EA”) and FONSI.[2]
The Forest Service lodged the Administrative Record (AR) on November 13, 2020 (Dkt. 7) and the Supplemental AR (Supp. AR) on March 22, 2021. Dkt. 28. By agreement of the parties, no cross-motion will be filed by the Forest Service. The parties have stipulated that if Plaintiffs' motion for summary judgment is denied, summary judgment should automatically be entered in favor of the Forest Service pursuant to Fed.R.Civ.P. 56(f)(1). See Dkt. 24, ¶ 1; and see Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc) (“Because this is a record review case, we may direct that summary judgment be granted to either party based upon our review of the administrative record.”) Additionally, pursuant to the stipulation of the parties, this Court is not required to “[afford] plaintiffs any additional notice or opportunity to respond as provided in the Rule” before entering summary judgment in favor of the Forest Service. Id.
The undersigned has determined that the Forest Service's DN and FONSI for the Project (AR 20268-20318) was not arbitrary and capricious. Thus, it is recommended that Plaintiff's motion for summary judgment (Dkt. 32) be denied and that the Court enter summary judgment in favor of the Forest Service.
Plaintiffs filed their complaint on September 3, 2020, over a year after the Forest Service issued the DN and FONSI. Dkt. 1. Plaintiff N3C is a non-profit environmental organization established in 1957, with 400 members dedicated to protecting the North Cascades ecosystems for its inherent natural values and for the scientific and recreational opportunities it provides to N3C members and the public at large. N3C submitted a formal objection to the Project in accordance with the administrative exhaustion requirements of 36 C.F.R. Part 218. See N3C Objection, Dkt. 7-40, AR 19575-19602 (Nov 7, 2017). On several occasions in December 2017, N3C participated in meetings with the Forest Service to resolve its objections to the Project. See Objection Meeting Notes, Dkt. 7-40, AR 19603-19604 (Dec. 15, 2017); AR 19605-19607, (Dec. 17, 2017); AR 19608-19614 (Dec. 19, 2017).
Plaintiff Kathy Johnson, a member of N3C, hikes, birdwatches, gathers mushrooms, berries, and medicinal plants, and enjoys the serenity and beauty of the forest in the South Fork Stillaguamish area. Ms. Johnson submitted comments about the Project on behalf of the Pilchuck Audubon Society and N3C. See, e.g., Dkt. 7-40, AR 19576; AR 19603-19604.
Intervenors Hampton and Skagit Log hold three contracts associated with implementation of the Project: Bonanza Thin DxP Timber Sale, Mallardy Thin DxP Stewardship Contract, and Green Grouse Stewardship Contract. Dkt. 16, Price Decl. ¶¶ 18, 25; Dkt. 17, Declaration of Lincoln Torgerson, ¶ 4. Together, these contracts will produce about 19.5 million board feet (MMBF), which was the Forest's entire timber sale volume for Fiscal Year 2020. Mallardy Thin and Green Grouse are “stewardship” contracts pursuant to 16 U.S.C. § 6591c, whereby contractors remove material that is both commercially valuable and not valuable. The value of the timber is then offset against payments otherwise due for forest restoration work. 16 U.S.C. § 6591c(d)(4)(A); see also AR 19123 ( that the total amount of non-commercial acres that will be treated would be determined by the funds generated by the commercial thinning).
Congress enacted authority for these contracts to “achieve land management goals for the national forests and the public lands that meet local and rural community needs.” 16 U.S.C. § 6591c(b). In addition to commercial and non-commercial thinning, the contracts include fish passage improvements and culvert replacements, road rehabilitation for access to recreation areas, weed abatement, and work to reduce sedimentation risk. Dkt. 16, Price Decl. ¶¶ 20, 27-28; Dkt. 17, Torgerson Decl. ¶¶ 4, 6, 10. The commercial timber volume from the project will help support Hampton's mill operations in Darrington and other regional mills. Dkt. 16, Price Decl. ¶ 17; Dkt. 17, Torgerson Decl. ¶ 5. Hampton's Darrington mill employs about 170 people in a rural community of 1, 400 people and the community's vitality is directly tied to that mill. Dkt. 16, Price Decl. ¶¶ 8-9. The activities under the Project will also provide employment for workers with Hampton, Skagit Log, and their sub-contractors. See Dkt. 17, Torgerson Decl. ¶ 3 (). These family-wage jobs are an essential element of the economy in rural Skagit and Snohomish Counties. The project will also provide work for three small contracting companies in Snohomish and Skagit Counties, which collectively employ about 95 people in total. Dkt. 16, Price Decl. ¶¶ 21, 29.
Hampton performed some road maintenance work at the end of September 2020. Dkt. 16, Price Decl. ¶ 20. However, further ground-disturbing activities for all three sales cannot commence until July 1, 2021. Dkt. 26 (Stipulation at 2) (“the Forest Service has agreed that it should voluntarily delay ground disturbing activities in support of the Project that is the subject of this lawsuit until July 1, 2021”).
The Project is in the Darrington Ranger District on the Mt. Baker-Snoqualmie National Forest, in Snohomish County. AR 19101. The principal purpose of the Project is set forth in the DN:
The SF Stillaguamish area was logged extensively from the 1940s through the early 1980s. Today, it is important to take action to ensure that this forest stays healthy and is able to support a range of old-growth dependent plants and animals. This is the central focus of this project's “purpose and need.”
AR 20268. The need for the Project stems from the consequences of past logging which occurred during a less environmentally enlightened age of forest management. The EA notes that:
Past timber harvesting crossed both upland slopes, riparian areas and streams, and while there was some pre-commercial thinning, much of the current [second growth] stands have high tree densities, little diversity of understory, and limited stand structure in canopy height. See USDA Forest Service 1995, pp. 3-25. The high stocking levels and homogenous stand conditions limit the development of stand structure for old forest associated species.
AR 19106. The case for active forest management under these circumstances to improve forest conditions, is well-documented in the available literature, as recounted in the EA. AR 19106-19107. “The preponderance of the best available scientific evidence demonstrates thinning in dense managed stands can enhance conditions favorable for developing old growth upland and riparian forest characteristics and increasing habitat diversity.” Id. Thus, among the most important purposes of the proposed treatment is to provide desired levels of habitat for species associated with old growth forests, including the Northern spotted owl, the marbled murrelet, and other species of concern within the SF Stillaguamish watershed. AR 19103. It is anticipated that the Project will accomplish these goals by:
Thin[ning] previously harvested stands that are currently 20 to 80 year second growth stands of age within the SF of the Stillaguamish River drainage. The goals of the stand treatments are to promote old forest characteristics with large diameter trees, stands with multiple layers of canopy, and the retention of down wood and snag components. The proposed thinning also has the goals of enhancing species diversity, maintaining a high rate of growth on dominant trees, developing desired vegetation stocking and diversity in Riparian Reserves, and promoting desired growth and stand...
To continue reading
Request your trial