Sierra Forest Legacy v. U.S. Forest Service

• Decision Date: 27 August 2009
• Docket Number: No. C-08-4240 SC.,C-08-4240 SC.
• Citation: 652 F.Supp.2d 1065
• Parties: SIERRA FOREST LEGACY, Center for Biological Diversity, Sierra Club, and Defenders of Wildlife, Plaintiffs, v. UNITED STATES FOREST SERVICE; Abigail Kimball, in her official capacity as Chief of the Forest Service; Charles Myers, in his official capacity as Associate Deputy Chief of the Forest Service; Randy Moore, in his official capacity as Regional Forester, Region 5, U.S. Forest Service; Beth Pendleton, in her official capacity as Deputy Regional Forester, Region 5, U.S. Forest Service, Defendants.
• Court: U.S. District Court — Northern District of California

652 F.Supp.2d 1065

SIERRA FOREST LEGACY, Center for Biological Diversity, Sierra Club, and Defenders of Wildlife, Plaintiffs, v. UNITED STATES FOREST SERVICE; Abigail Kimball, in her official capacity as Chief of the Forest Service; Charles Myers, in his official capacity as Associate Deputy Chief of the Forest Service; Randy Moore, in his official capacity as Regional Forester, Region 5, U.S. Forest Service; Beth Pendleton, in her official capacity as Deputy Regional Forester, Region 5, U.S. Forest Service, Defendants.

No. C-08-4240 SC.

United States District Court, N.D. California.

August 27, 2009.

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David Edelson, The Wilderness Society, San Francisco, CA, Erin Marie Tobin, Gregory C. Loarie, Michael Ramsey Sherwood, Earthjustice, Oakland, CA, for Plaintiffs.

Andrew A. Smith, United States Department of Justice c/o United States Attorneys Office, Albuquerque, NM, for Defendants.

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

SAMUEL CONTI, District Judge.

I. INTRODUCTION

This litigation arises out of an amendment to the land and resource management plans for the Sierra Nevada national forests, adopted by the United States Forest Service ("Forest Service"). See Compl., Docket No. 1. Plaintiffs Sierra Forest Legacy, Center for Biological Diversity, Sierra Club, and Defenders of Wildlife (collectively "Plaintiffs") have filed a Motion for Summary Judgment and Memorandum in Support of their Motion. Docket Nos. 31, 32 ("Pls.' MSJ"). Defendants, including the Forest Service, filed their own Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment. Docket Nos. 33, 34 ("Defs.' MSJ"). Each side submitted a Reply. Docket Nos. 37 ("Pls.' Reply"), 40 ("Defs.' Reply").¹

Having reviewed the parties' submissions, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment.

II. STATUTORY FRAMEWORK

The Forest Service, an agency within the United States Department of Agriculture, is responsible for the management of National Forests and grasslands. The Forest Service promulgates regulations in a three-tier system, pursuant to the Forest and Rangeland Renewable Resources Planning Act of 1974 and the National Forest Management Act ("NFMA"). See Citizens for Better Forestry v. United States Dep't of Agric., 341 F.3d 961, 965 (9th Cir.2003) ("Citizens I") (citing 16 U.S.C. §§ 1601-1687). At the highest level, the Secretary of Agriculture promulgates national regulations, which govern the development of the regional and local forest management plans and require compliance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Id. (citing 16 U.S.C. § 1604(g)). The second tier comprises "land and resource management plans" ("LRMPs" or "forest plans"), governing the management of forest regions. Id. at 966. Finally, there are "site-specific" plans, designed to implement specific, on-the-ground actions that are consistent with the national regulations and the LRMPs. Id. The determination at issue in this suit, described in Part III, infra, relates to the second tier and affects the LRMPs.

Prior to taking any "major Federal action[ ] significantly affecting the quality of the human environment," a federal agency must prepare an Environmental Assessment ("EA"). 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. §§ 1501.4(a), 1508.9; West v. Sec'y of the Dep't of Transp., 206 F.3d 920, 927 (9th Cir.2000). If the agency concludes that "substantial questions are raised as to whether the project may cause significant degradation of some human environmental factor," then the agency must prepare an Environmental Impact Statement ("EIS"). West, 206 F.3d at 927 (citation omitted). Alternatively, the agency may simply opt to prepare an EIS, thereby eliminating the need for an EA. 40 C.F.R. § 1501.3.

In addition to these requirements under NEPA, federal agencies must comply with the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Prior to any agency action, including the promulgation of new regulations, the agency must determine whether the proposed action "may affect" any endangered or threatened species, or adversely affects the critical habitats of such species. 50 C.F.R. § 402.14(a). If the agency so finds, then the agency must consult with either the Fish & Wildlife Service ("FWS") or the National Marine Fisheries Service ("NMFS") (collectively, "Wildlife Services"). See 16 U.S.C. § 1536(a)(2)-(4); 50 C.F.R. § 402.14; Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir.2006).² If the Wildlife Services advise the agency that endangered or threatened species may be present at the site of the proposed action, the agency must prepare a "Biological Assessment" ("BA") describing those species and the possible effects on them. Id. § 1536(c); see also Citizens I, 341 F.3d at 967 n. 3. The BA may be conducted as part of the agency's NEPA-compliant EIS or EA. 16 U.S.C. § 1536(c); see also 50 C.F.R. § 402.12. If the agency consults with the Secretary informally and concludes that no threatened or endangered species or habitat will be affected, it need not engage in formal consultation. 50 C.F.R. § 402.14(b).

III. FACTUAL BACKGROUND

There are ten National Forests in the Sierra Nevada mountain range. AR at 6181.³ These forests are managed by the Forest Service pursuant to the NFMA, 16 U.S.C. § 1601 et seq. The NFMA requires that the Forest Service adopt a plan for each national forest unit in order to, among other things, "provide for diversity of plant and animal communities . . . ." 16 U.S.C. § 1604(g)(3)(B). The Forest Service has adopted forest plans for each of the forests in the Sierra Nevada. AR at 1-508. Pursuant to the 1982 implementing regulation to the NFMA, the plan for each forest establishes monitoring and evaluation requirements to provide a basis for periodically evaluating the effects of the Forest Service's management practices. See 1982 Regs. § 219.12(k).⁴ To this end, the Forest Service has tracked the population and habitat of "management indicator species" ("MIS"), which serve as "bellwether" species, and whose population fluctuations were believed to indicate the effects of various forest management activities on particular habitats. See AR at 6186.

Prior to the amendment that is the subject of this litigation, discussed in detail below, the Forest Service monitored a total of sixty MIS in the Sierra Nevada. See AR at 6211-12, 6214-15. Each MIS was selected by individual National Forests according to criteria that were set at the regional level. Id. at 6211-12. For each MIS, individual National Forests adopted detailed monitoring protocols, management objectives, and specific thresholds that would trigger the reconsideration of management actions or the adoption of mitigation measures. Id. For example, under the Eldorado National Forest Land and Resource Management Plan, "further action" would be triggered if monitoring revealed a twenty-five percent change in black bear populations over a five-year period. Id. at 74-75.

According to the Forest Service, the MIS monitoring system encountered numerous problems in practice. See id. at 6188. The fact that each National Forest used different lists made it difficult to standardize or coordinate monitoring efforts. Id. at 6190. Most MIS were selected before 1992, and over the following years the Forest Service discovered that many of these species were difficult or expensive to monitor, or were not strongly linked to habitats that were affected by the Forest Service's management activities. Id. The Forest Service also encountered "unexpected MIS monitoring and analysis obligations stated in recent judicial decisions." Id. at 6189. The Forest Service faced "dozens" of adverse judicial decisions, most notably Earth Island Inst. v. United States, 442 F.3d 1147 (9th Cir.2006) ("Earth Island"), in which courts interpreted the Forest Service's regulatory regime to require "extensive MIS population monitoring data and analysis prior to the issuance of project decisions implementing" Forest Service projects. AR at 6189. These cases enjoined various projects after concluding that the Forest Service had failed to perform adequate MIS monitoring and analysis. See, e.g., Earth Island, 442 F.3d 1147 (reversing denial of preliminary injunction of fire restoration project); Sierra Nevada Forest Prot. Campaign v. Tippin, No. 06-351, 2006 WL 2583036 (E.D.Cai. Sept. 6, 2006) (enjoining logging project); Sierra Club v. Eubanks, 335 F.Supp.2d 1070 (E.D.Cal.2004) (same).

In December of 2007, the Forest Service, through the authority of the Regional Forester, adopted an amendment to the MIS monitoring scheme for the forests in the Sierra Nevada (the "MIS Amendment"). Id. at 6160-77. The MIS Amendment reduced the number of terrestrial habitats that are monitored, and cut the total number of MIS to twelve (in addition to aquatic macroinvertebrates to represent rivers, lakes, and streams). Id. at 6161-62. Certain habitats (such as caves and cliffs) were not represented by any MIS, because the Forest Service concluded that these habitats were "not affected by, or only minimally affected by, management actions currently of concern ...." Id. at 6236. The MIS amendment did not set new habitat objectives, and did not set new population thresholds and objectives, as had previously existed in individual forest plans, because it determined that they were not required and could be prepared at a later date. See id. at 6423, 6429. Finally, the MIS Amendment stated:

Complete fulfillment of the plan-level monitoring program outlined in this decision and through the forthcoming monitoring implementation package is not a precondition to project approval and implementation .... Therefore, if the Forest Service ... is unable to fully achieve...