Pacific Coast Federation v. Nat. Marine Fisheries

• Decision Date: 30 March 2007
• Docket Number: No. C04-1299RSM.,C04-1299RSM.
• Citation: 482 F.Supp.2d 1248
• Parties: PACIFIC COAST FEDERATION OF FISHERMENS'S ASSOCIATIONS, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, and American Forest Resource Council, an Oregon nonprofit corporation, et al., Defendant-Intervenors.
• Court: U.S. District Court — Western District of Washington

482 F.Supp.2d 1248

PACIFIC COAST FEDERATION OF FISHERMENS'S ASSOCIATIONS, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, and American Forest Resource Council, an Oregon nonprofit corporation, et al., Defendant-Intervenors.

No. C04-1299RSM.

United States District Court, W.D. Washington, at Seattle.

March 30, 2007.

COPYRIGHT MATERIAL OMITTED

Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle, WA, for Plaintiffs.

Jean E. Williams, Wells D. Burgess, U.S. Department of Justice, Washington, DC, for Defendants.

Scott W. Horngren, Haglund Kirtley Kelley & Horngren, Portland, OR, for Defendant-Intervenors.

ORDER ADOPTING IN PART, AND DECLINING TO ADOPT IN PART, THE REPORT AND RECOMMENDATION

MARTINEZ, District Judge.

This matter is now before the Court for consideration of the Report and Recommendation filed by the Honorable Mary Alice Theiler, United States Magistrate Judge, on March 28, 2006. Dkt. #86. The Court has reviewed the Report `'and Recommendation, the parties' objections and responses, and the balance of the file, and now finds and rules as follows:

(1) The thorough and well — reasoned Report and Recommendation is approved and adopted, except as to the conclusions in section F.1, regarding plaintiffs' challenge under the National Environmental Policy Act ("NEPA"), and all of section F.2, in which the Magistrate Judge concluded that the Final Supplemental Environmental Impact Statement ("FSEIS") did not fail to disclose dissenting opinions. For the reasons set forth in paragraph (2) below, the Court finds that the FSEIS failed to meet NEPA standards for assessing significant aquatic habitat impacts, and for the disclosure of dissenting scientists' views.

(2) NEPA Challenges to FSEIS

(a) Standard of Review

The National Environmental Policy Act imposes procedural, rather than substantive, requirements. Marsh v. Oregon Natural Resources Council 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Pursuant to NEPA, federal agencies must prepare an environmental impact statement ("EIS") for "major Federal action [] significantly affecting the environment." 42 U.S.C. § 4332(2)(c). The Court reviews an agency's compliance with NEPA under the Administrative Procedure Act ("APA"). Id. The Court applies a "rule of reason" standard to determine whether the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Center for Biological Diversity v. USFS, 349 F.3d 1157, 1166 (9th Cir.2003) (internal citations omitted). This standard is essentially applied in the same manner as the arbitrary and capricious standard. Id. Judicial review consists of ensuring that an agency has taken a "hard look" at the environmental effects of the proposed action. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).

NEPA has two stated objectives. "First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal citations omitted). In considering a NEPA challenge, the court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action." Laguna Greenbelt, Inc., v. U.S. Department of Transportation, 42 F.3d 517, 523 (9th Cir.1994) (quoting Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987)). Under the "rule of reason," the court determines `"whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences' by making `a pragmatic judgment whether the [EIS's] form, content and preparation foster both informed decision-making and informed public participation.'" Id., quoting Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). In interpreting NEPA, the court gives substantial deference to the regulations issued by the Council on Environmental Quality ("CEQ"), and both NEPA and the regulations are to be strictly interpreted. Center for Biological Diversity, 349 F.3d at 1166. "Grudging, pro forma, compliance will not do." California v. Block, 690 F.2d 753, 769 (9th Cir.1982).

Because amendment to the Aquatic Conservation Strategy ("ACS") is a "federal action significantly affecting the environment," the Forest Service (FS) and Bureau of Land Management (BLM) were required to comply with NEPA and to prepare an Environmental Impact Statement. 42 U.S.C. § 4332(2)(C). The agencies released their FSEIS in October 2003. As in the 1994 FSEIS, the 2003 FSEIS contained viewpoints of a collection of respected scientists who were part of the government's Forest Ecosystem Management Assessment Team ("FEMAT").

Plaintiffs' complaint alleges NEPA violations under three categories: (1) the FSEIS failed to assess the significant aquatic habitat impacts of the amendment; (2) the FSEIS failed to disclose and discuss dissenting views of respected scientists; and (3) the FSEIS failed to provide a candid, objective assessment of reasonable alternatives. The Court shall address arguments (1) and (2), which correspond to sections F.1 and F.2 in the Report and Recommendation. The Court adopts without alteration section F.3 of the Report and Recommendation, addressing argument (3), the assessment of reasonable alternatives.

(b) Assessment of Significant Aquatic Habitat Impact

The Court fully adopts, without restating, the discussion set forth in the Report and Recommendation at pages 29 to 34, line 16, regarding the NEPA requirement that an EIS must disclose any indirect effects, and consider "every significant aspect of the environmental impact of a proposed action...." Kern v. Bureau of Land Management, 284 F.3d 1062, 1066 (9th Cir.2002). In concluding that section, the Magistrate Judge noted that the federal defendants'"blithe assertion that the amendments to the ACS impose no fundamental changes is troublesome." Nevertheless, she concluded,

it is not clear to the undersigned in what respects the 1994 FSEIS did not adequately address impacts, cumulative or otherwise, on the programmatic level even in light of the amendments to the ACS. Nor is it clear that subsequent site-specific consultations will not adequately assess such impacts. Without such a showing, it cannot be said that the 2003 FSEIS arbitrarily and capriciously tiered to the extensive assessment in the 1994 FSEIS.

Report and Recommendation, p. 35. Plaintiffs' objections have persuaded the Court that this conclusion must be revised.

The 2003 FSEIS states, with respect to the environmental consequences of the proposed ACS amendment,

The proposed amendment has the potential to affect agency success implementing the timber sale program envisioned under the Northwest Forest Plan. Timber sales are needed to achieve the socio-economic and ecosystem management goals of the Northwest Forest Plan. The degree to which current PSQs¹ may be attained is the primary indicator for agency success in this regard.

As discussed under Affected Environment, the agencies have not been able to achieve the level of timber sales predicted for the Northwest Forest Plan. The Northwest Forest Plan assumed that 90 percent of the early decades PSQ would come from late-successional and old-growth forest, much of it through regeneration harvest. However, given the court interpretations of the ACS in the PCFFA litigation, the PSQ cannot'' be sustained, because few timber sales can be designed to avoid all disturbance to aquatic and/or riparian components.

For instance, timber harvest removes canopy and exposes some land to accelerated erosion. Road work associated with the timber sales may result in short-term sedimentation. In the PCFFF litigation, the court considered these types of effects incompatible with achieving ACS objectives.

2003 FSEIS, pp. 49-50 (emphasis added).

With these two sentences, the FSEIS describes the habitat-degrading effects of the activities that were not allowed under the previous ACS, but could go forward under the amended ACS. Both FEMAT and the NFP contemplate that projects must be consistent with ACS objectives. Previously, to meet ACS objectives, the Forest Service needed to ensure that road densities and the total amount of a watershed in clearcut condition would not alter runoff and erosion patterns to the detriment of water quality and fish survival. Because the ACS amendment eliminates this requirement, the impacts of that change must be fully assessed. As stated recently by this Court, where an agency has previously made a policy choice to conform to a particular standard, and now seeks to amend that standard, "the Agencies have an obligation under NEPA to disclose and explain on what basis they deemed the standard necessary before but assume it is not now." Northwest Ecosystem Alliance v. Rey, 380 F.Supp.2d 1175, 1192 (W.D.Wash.2005). Under this reasoning, the 2003 FSEIS assessment of the impact of the ACS amendment is inadequate and fails to conform to NEPA standards.

(c) Disclosure of Dissenting Views

Regulations governing the adequacy of an EIS require that opposing scientific views be disclosed and discussed at appropriate points. The relevant regulation specify that in a draft EIS, the agency "shall make every effort to disclose and discuss at appropriate points ... all major points of view on the environmental impacts of the proposed action". 40 C.F.R. § 1502.9(a). Then, in the final EIS, the agency "shall discuss at appropriate points ... any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised." 40 C.F.R. § 1502.9(b).

"NEPA requires that...