Or. Wild v. United States Forest Serv.
| Docket Number | 1:22-cv-01007-MC |
| Decision Date | 04 August 2023 |
| Parties | OREGON WILD and WILDEARTH GUARDIANS, Plaintiffs, v. UNITED STATES FOREST SERVICE, MICHAEL RAMSEY, JEANNETTE WILSON, RANDY MOORE, and THOMAS VILSACK, Defendants. |
| Court | U.S. District Court — District of Oregon |
Plaintiffs Oregon Wild and WildEarth Guardians bring this action for declaratory and injunctive relief against Defendant the U.S Forest Service and Defendants Michael Ramsey, Jeannette Wilson, Randy Moore, and Thomas Vilsack in their official capacities. Plaintiffs allege that Defendants violated the Administrative Procedure Act (“APA”) and the National Environmental Policy Act (“NEPA”) in approving three commercial logging projects in the Fremont-Winema National Forest under a categorical exclusion known as CE-6. Compl. ¶ 1-2, ECF No. 1. Plaintiffs contend that the three projects, which authorize between 3,000 and 16,000 acres of commercial tree thinning, do not qualify for the exclusion. Additionally, Plaintiffs challenge the validity of CE-6 itself as applied to commercial logging operations. Id. ¶ 2.
Plaintiffs ask the Court to vacate the projects' approvals of commercial logging operations, declare such operations beyond the scope of CE-6, and remand to the agency for a full analysis of the projects' environmental impacts consistent with NEPA. Id. ¶ 7. Alternatively Plaintiffs ask the Court to hold unlawful and set aside CE-6 as applied to commercial logging operations. Id. Plaintiffs and Defendants filed Motions for Summary Judgment on the claims in this case. ECF Nos. 16, 24. Because Defendants did not violate the APA or NEPA, and because Plaintiffs' challenge of CE-6 is time-barred Plaintiffs' Motion for Summary Judgment (ECF No. 16) is DENIED and Defendants' Cross-Motion for Summary Judgment (ECF No. 24) is GRANTED.[1]
NEPA “requires that federal agencies perform environmental analysis before taking any ‘major Federal actions significantly affecting the quality of the human environment.'” Env't Prot. Info. Ctr. v Carlson (“EPIC”), 968 F.3d 985, 987 (9th Cir. 2020) (quoting Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1094 (9th Cir. 2013)). Rather than dictating particular substantive results, NEPA establishes only procedural requirements to ensure that an agency carefully considers “detailed information concerning significant environmental impacts” in reaching its decision. Id. at 988 (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 23 (2008). An agency can comply with NEPA in three ways: by preparing an Environmental Impact Statement (“EIS”), by preparing an Environmental Assessment (“EA”), or through a categorical exclusion (“CE”). Id.
An EIS is required for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). If the significance of the effects of a proposed action is unknown, the agency instead prepares an EA to determine the effects of the proposed action. 40 C.F.R. § 1508.9.[2] The use of a CE is permitted for “actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect.” EPIC, 968 F.3d at 988 (quoting 40 C.F.R. § 1508.4). An agency does not have to prepare an EIS or EA for actions that fall under a CE. Id.
In December 2021 and May 2022, the Forest Service approved the South Warner Project, Baby Bear Project, and Bear Wallow Project (“the Projects”) located in the Fremont-Winema National Forest under CE-6. SWAR 12097-111; BWAR 2897-2919. The purpose of the South Warner Project, which encompasses 69,567 acres, is wildlife habitat restoration. SWAR 12097. The Forest Service identified several species in the project area that would benefit from certain restoration activities, such as maintaining old trees and developing larger trees for bald eagles to nest, providing open habitat preferred by woodpeckers, improving riparian area conditions for yellow rail and western pond turtle to breed and nest, and promoting biodiversity and ecosystem function to improve foraging habitat and benefit monarch butterflies and other pollinators. Id. The Forest Service also expressed concern about the overpopulation of conifer trees in the area, creating negative impacts on other tree species and their habitats due to increased competition for resources, as well as the area's high risk for severe wildfires due to decades of fire suppression. Id. To achieve the Forest Service's goal of habitat restoration and address concerns regarding conifer overcrowding and wildfire risk, the Forest Service proposed a number of activities, including small tree thinning, prescribed burning, juniper cutting, meadow enhancement, stream restoration, and commercial sale of merchantable forest products. SWAR 12099-104. Of the 69,567 acres involved in South Warner, Defendants authorized 16,000 acres of commercial tree thinning. SWAR 12100.
The purpose of the Baby Bear Project, which encompasses 4,774 acres, is to improve forest stand conditions and wildlife habitat. BWAR 2897-98. The Forest Service found that the Baby Bear area has more than a sustainable amount of conifer trees, primarily lodgepole pine. BWAR 2897. Encroachment of the lodgepole pine stands “has resulted in an overcrowded stand, making this stand type highly susceptible to insect and disease as well as wildfire.” Id. The Forest Service also identified concerns with fuel loading and wildlife habitats in the area. The primary species of concern is the mule deer, with known migration routes through the Baby Bear area. Id. Conifer trees have encroached meadow and riparian habitat areas, reducing plant diversity and forage availability. Id. These areas are important to mule deer, as well as elk, bear, bobcat, bats, and pollinator species. Id. The Forest Service cited to local research and wildlife habitat modeling showing that a large portion of the mule deer summer range in the area have “low predicted mule deer use.” Id. The research suggested reducing canopy cover by 40% and creating a forest edge to provide a more suitable habitat for the mule deer. BWAR 2897-98. To improve wildlife habitat and increase forest resilience, the Baby Bear Project proposed tree thinning and prescribed burning. BWAR 2898. For the overpopulated lodgepole pine stands specifically, the project's targeted thinning densities were set to reduce the risk of mountain pine beetle outbreaks and remove trees heavily infected with dwarf mistletoe. BWAR 2898-99. Of Baby Bear's 4,774 acres, the Forest Service authorized up to 3,000 acres of commercial thinning. BWAR 2898.
The Bear Wallow Project area is directly north of the Baby Bear Project area, with Baby Bear's northern border meeting a portion of Bear Wallow's southern border. BBAR 0035. The two projects have similar purposes and proposed activities. The Bear Wallow Project encompasses 17,200 acres, with an aim to improve forest stand conditions and wildlife habitat. BWAR 2908-09. Similar to Baby Bear, the Bear Wallow area has more conifer trees, primarily lodgepole pine, than ecologically sustainable. BWAR 2908. Conifer encroachment has left lodgepole pine stands highly susceptible to insect, disease, and wildfire. Id. The entire area is also high-risk for severe wildfires due to decades of consistent fire suppression. Id. Also like the Baby Bear area, mule deer are a primary species of concern here. Mule deer have known migration routes through the Bear Wallow area, but local research suggests that a large portion of the project area has low predicted mule deer use. BWAR 2909. Additionally, aspen stands in this area and meadow and riparian habitats have been encroached by conifer trees, in turn reducing plant diversity and forage availability. Id. As the Forest Service explained, “[a]spen stands are considered biodiversity hotspots.” BWAR 2910. They are important for foraging and reproducing for several species, including elk, mule deer, bear, bobcat, bats, pollinators, migratory birds, raptors, woodpeckers, and many cavity-nesting birds. BWAR 2908-10. To improve wildlife habitat conditions and increase forest resilience, the Forest Service proposed thinning and prescribed burning. BWAR 2909. Along with thinning of overpopulated lodgepole pine stands, the Bear Wallow Project would remove encroaching conifers among aspen stands to increase aspen regeneration and plant diversity for certain wildlife species. BWAR 2910-11. Of the 17,200 acres involved in Bear Wallow, the Forest Service authorized up to 10,000 acres of commercial thinning. BWAR 2909.
The Forest Service issued scoping notices for each project and Plaintiffs responded with comments, raising concerns regarding the scale of the projects and the Forest Services' authority to rely on a categorical exclusion for such large projects. SWAR 3643-46, 3656-3759, 40574127; BBAR 127, 139-78, 684-98; BWAR 1998, 2395-2420, 2821-34. The Forest Service reviewed public comments and ultimately approved the Projects under CE-6. Because the Forest Service approved the Projects under a...
To continue reading
Request your trial