Sierra Nevada Forest Protection Campaign v. Rey

• Decision Date: 01 August 2008
• Docket Number: No. 2:05-cv-00205-MCE-GGH.,2:05-cv-00205-MCE-GGH.
• Court: U.S. District Court — Eastern District of California
• Parties: SIERRA NEVADA FOREST PROTETION CAMPAIGN, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, and the Wilderness Society, non-profit organizations, Plaintiffs, v. Mark REY, in his official capacity as Under Secretary of Agriculture, Dale Bosworth, in his official capacity as Chief of the United States Forest Service, Jack Blackwell, in his official capacity as Regional Forester, Region 5, United States Forest Service, and James M. Pena, in his official capacity as Forest Supervisor, Plumas National Forest, Defendants. and Tuolumne County Alliance for Resources & Environment, et al.; California Ski Industry Ass'n'; Quincy Library Group, et al.; and California Cattlemen's Ass'n, Defendants-Intervenors.

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573 F.Supp.2d 1316

SIERRA NEVADA FOREST PROTETION CAMPAIGN, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, and the Wilderness Society, non-profit organizations, Plaintiffs, v. Mark REY, in his official capacity as Under Secretary of Agriculture, Dale Bosworth, in his official capacity as Chief of the United States Forest Service, Jack Blackwell, in his official capacity as Regional Forester, Region 5, United States Forest Service, and James M. Pena, in his official capacity as Forest Supervisor, Plumas National Forest, Defendants. and Tuolumne County Alliance for Resources & Environment, et al.; California Ski Industry Ass'n'; Quincy Library Group, et al.; and California Cattlemen's Ass'n, Defendants-Intervenors.

No. 2:05-cv-00205-MCE-GGH.

United States District Court, E.D. California.

August 1, 2008.

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Gregory Cahill Loarie, Michael Ramsey Sherwood, Earthjustice Legal Defense Fund Incorporated, Oakland, CA, Patrick Gallagher, Sierra Club Environmental Law Program, San Francisco, CA, David Brian Edelson, Law Office of David Edelson, Berkeley, CA, for Plaintiffs.

Barclay Thomas Samford, United States Dept. of Justice, Denver, CO, Brian C. Toth, Cynthia Sue Huber, U.S. Department of Justice, Washington, DC, David Taylor Shelledy, U.S. Attorney's Office, Sacramento, CA, Michael Bruce Jackson, Attorney at Law, Quincy, CA, for Defendants.

J. Michael Klise, PHV, Thomas R. Lundquist, PHV, Crowell & Moring LLP, Washington, DC, Steven P. Rice, Crowell & Moring LLP, Irvine, CA, Adam Strachan, Brian A. Kelly, Duane Morris LLP, San Francisco, CA, William James Thomas, Jr., Best Best and Krieger LLP, Sacramento, CA, for Defendants-Intervenors.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, Jr., District Judge.

The Plaintiffs in this case, a group of environmental organizations, challenge the 2004 Sierra Nevada Forest Plan Amendment ("SNFPA"), commonly known as the 2004 Framework, along with Basin, a sitespecific forest management project promulgated following adoption of the 2004 Framework. Defendants are sued in their official capacities as representatives of the United States Forest Service ("Forest Service"). Plaintiffs contend that both the 2004 Framework and the Basin Plan, as promulgated by the Forest Service, run counter to the provisions of the National Forest Management Act ("NFMA") and the National Environmental Policy Act of 1969 ("NEPA"). Presently before the Court are cross-motions for summary judgment filed on behalf of both the Plaintiffs and Defendants.

FACTUAL BACKGROUND

The Sierra Nevada contains some 11.5 million acres of National Forest Service land with eleven National Forests and encompasses "dozens of complex ecosystems each with numerous, inter-connected social, economic and ecological components." SNFPA 1920. In the late 1980s, the Forest Service began developing a comprehensive strategy for managing the myriad resources found within the region. In 1995, the Regional Forester for the Pacific Southwest Region of the Forest Service issued a draft Environmental Impact Statement ("EIS") outlining its management proposal. SNFPA 229.¹ After extensive public participation and the preparation of a Final EIS responding to public concerns, the Regional Forester issued, in 2001, a Record of Decision ("ROD") which adopted management objectives in five major areas: old forest ecosystems; aquatic, riparian, and meadow ecosystems; fire and fuels; noxious weeds; and hardwood ecosystems on the lower westside of the Sierras. Id. at 231-35.

Among the thorniest issues confronted by the ROD was striking the appropriate balance between balancing the excessive fuel buildups occasioned by decades of fire repression and conserving key habitat for wildlife species dependent on old forest environments. The 2001 ROD included a network of "old forest emphasis areas" across about 40 percent of all national forest land in the Sierra Nevada that was designed to provide a contiguous network of old forest ecosystems conducive to species preferring such habitat like the California Spotted Owl, the American Marten and the Pacific Fisher. SNFPA 236. Aside from other areas slated for specific treatment (like a limited "urban wildland intermix" designed to create a buffer between developed areas and the forest), the 2001 Framework specified a "general forest" land allocation intended to increase the density of large old trees and the continuity and distribution of old forests across the landscape. SNFPA 236-37.

In order to protect old forest conditions within its specific areas of emphasis, the 2001 Framework generally prohibited logging that would remove trees over 12 inches in diameter or logging that would reduce canopy cover by more than 10 percent. SNFPA 328. Even within the "general forest" areas, the 2001 Framework prohibited logging of trees over 20 inches in diameter. SNFPA 336. It was only within the intermix zones that no canopy restrictions were imposed and logging of trees up to 30 inches was permitted. SNFPA 333, 315.

Although the Forest Service ultimately affirmed adoption of the 2001 ROD despite receipt of approximately 200 administrative appeals, it nonetheless directed the Regional Forester to conduct an additional review with respect to specific concerns like wildfire risk and the Forest Service's responsibilities under the Herger-Feinstein Quincy Library Group Forest Recovery Act ("HFQLG Act"), a congressional mandate which established a Pilot Program for fire suppression through a combination of fire breaks, group selection logging and individual logging. SNFPA 1918. A management review team was assembled by the Regional Forester for this purpose.

In March 2003, the team concluded that the 2001 ROD's "cautious approach" to active fuels management had limited its effectiveness in many treatment areas. The management review team further found that revisions to vegetation management rules would decrease flammable fuels while protecting critical wildlife habitat by guarding against the risk of stand-replacing wildfire. See SNFPA 1918, 1926. Moreover, with respect to the California Spotted Owl ("CASPO" or "owl"), the team felt that the 2001 ROD had unnecessarily "took a worst case approach to estimating effects" on the owl. SNFPA 1968.² In addition to citing recent research indicating that habitat losses resulting from fuel treatments were less than previously believed, the team further found that the 2001 ROD's extensive reliance on maintaining extensive canopy cover was impracticable to implement.

Following receipt of the team's findings, the Regional Forester ordered that management strategy alternatives in addition to those considered in the 2001 FEIS be considered. A draft supplemental environmental impact statement ("DSEIS") was thereafter released to the public in January 2004. While the same five areas of concern were targeted in the DSEIS as in its 2001 predecessor, in 2004 a new action alternative was identified (Alternative S2), in addition to the alternative selected by the 2001 Framework (Alternative S1) and the seven alternatives that had previously been considered before adoption of the 2001 Framework (Alternatives F2-F8).³ Following the public comment period after dissemination of the DSEIS, the SEIS in final form also included response to various issues raised, including comments by the United States Fish and Wildlife Service, by the United States Environmental Protection Agency, by California resources protection agencies, and by the Science Consistency Review ("SCR") team.⁴

By adopting the SEIS on January 21, 2004, the Regional Forester replaced the 2001 ROD with its 2004 successor and amended the forest plans for all eleven national forests situated in the Sierra Nevada. SNFPA 2987-3061. The 2004 ROD reasoned that the 2001 Framework "prescribed technical solutions that do not produce needed results, or offered methods we often dare not attempt in the current Sierra Nevada." SNFPA 2995. The 2004 Framework reasoned that the methods as adopted in 2001 fail to reverse the damage, and growing threat, of catastrophic fires quickly enough. Id.

The Chief of the Forestry Service ultimately affirmed the 2004 ROD,⁵ with the direction that details of the ROD's adaptive management be submitted to him within six months. SNFPA 3997-4305. The Regional Forester submitted that supplemental information to the Chief on March 31, 2005.

Through the present lawsuit, Plaintiffs allege that the 2004 Framework as ultimately adopted runs afoul of both the NFMA and NEPA on a programmatic basis. Specifically, Plaintiffs contend that the 2004 Framework violates the NFMA both because it fails to maintain viable populations of CASPOs as well as Pacific Fishers and American Martens, small forest carnivores that, like the owls, prefer old-growth forest habitats. Moreover, Plaintiffs also argue that the 2004 Framework runs afoul of NEPA because it was adopted without either adequate disclosure of its significant environmental impacts or consideration of reasonable alternatives to the selected approach.

In addition to their general challenge to the 2004 Framework, Plaintiffs also target a site-specific plan adopted following the 2004 ROD, the Basin Group Selection Project ("Basin Project"). That Basin Project area is located within the Plumas National Forest ("PNF") and encompasses some 38,893 acres south and west of Bucks Lake and north of the Middle Fork of the Feather River. BASIN 3665.⁶ The Project incorporates vegetation treatments designed to fulfill the management direction of the PNF's Land and Resource Management Plan ("LRMP"), as amended by the HFQLG Act. BASIN 3666. The Basin Project envisions groups selection logging on 1,215 acres (in 800 one-to-two acre plots) and individual tree selection on another 80 acres, in which high-risk or crowded trees may be...