Earth Island Inst. v. Elliott
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Opinion
Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
I. INTRODUCTION
Earth Island Institute and Sequoia ForestKeeper ("Plaintiffs") brought this suit *1162against Defendant Kevin Elliott, in his official capacity as Forest Supervisor of the Sequoia National Forest, and the United States Forest Service ("USFS") (together, "Federal Defendants"), challenging the decision to authorize a logging operation along approximately 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument, without preparing an Environmental Assessment ("EA") for the project. Plaintiffs argue that the decision violates the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 39, 41, and 42. Plaintiffs also have moved for expedited consideration of the cross-motions for summary judgment and for leave to file an amended complaint. ECF Nos. 46 and 48. For the following reasons, Plaintiffs' motion to amend the complaint is GRANTED, Plaintiffs' motion for summary judgment is DENIED, Federal Defendants' motion for summary judgment is GRANTED, Defendant-Intervenor's motion for summary judgment is GRANTED, and Plaintiffs' motion for expedited consideration is DENIED AS MOOT.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a USFS fire salvage restoration project proposed and approved by the USFS to treat a strip of land along an area of roadways affected by the Cedar Fire. The Cedar Fire began on August 16, 2016 and burned over 29,000 acres of mixed conifer and white fir forest, most of which was in the Sequoia National Forest. BR 168.1 The USFS is working to abate the hazards associated with this burned area of forest, including through the "Bull Run" project, which is planned to involve felling dead and dying trees along 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument. This project would treat up to 3,500 of the 29,000 acres in the Cedar Fire burn area. ECF No. 22-1, Declaration of Kevin B. Elliott ¶ 7.
Much of the USFS's reasoning regarding regulatory issues related to the Bull Run project is set forth in a Revised Decision Memo, which outlines the proposed project as one designed to "mitigate the hazards to public safety posed by the dead and dying trees along approximately 50.2 miles of road in the project area," which consists of approximately 3,500 acres on the border of Tulare and Kern Counties, roughly 30 miles southeast of Porterville, CA. BR 1. The project will abate hazard trees within 300 feet of each side of the road.2 Hazard trees will be identified using Forest Service guidelines and will be felled if they "could potentially strike within the road's clearing width, or could roll or slide into the clearing after they fall." Id. at 2. Dead, dying, or damaged trees unlikely to fall into the road will not be felled unless they present a hazard to workers, and the memo is clear that the project "is not authorizing a 'clearcut' within 300 feet of road edges." Id. at 3. See also BR 208 (standing dead trees within the 300-foot buffer of the road "incapable of hitting the road prism would be left standing"). Felled trees will be removed if they "represent an *1163obstruction to use and maintenance within the road's clearing width," if leaving the tree in place will increase fuel loading, or if removal is needed for the reforestation process. Id. Felled logs may be chipped or burned, and logs "considered to have commercial value may be sold as saw timber, cull logs, firewood, chips, posts, and poles," and branches and limbs may also be sold. Id. Some logs "will be left in place for habitat" and to meet the standard under the 2004 Sierra Nevada Forest Plan Amendment for down woody material retention. Id. Finally, the project will include activities to restore organic ground cover and to reforest the habitat, including planting seedlings, scattering seeds, and increasing organic ground cover by scattering limbs, branches, and chips. Id.
Pursuant to NEPA,
The USFS also determined that there were no extraordinary circumstances related to the project that would trigger further review through an EIS or EA pursuant to NEPA. Before approving a project under an agency-adopted CE, an agency must examine whether a particular project presents "extraordinary circumstances in which a normally excluded action may have a significant environmental effect."
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Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
I. INTRODUCTION
Earth Island Institute and Sequoia ForestKeeper ("Plaintiffs") brought this suit *1162against Defendant Kevin Elliott, in his official capacity as Forest Supervisor of the Sequoia National Forest, and the United States Forest Service ("USFS") (together, "Federal Defendants"), challenging the decision to authorize a logging operation along approximately 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument, without preparing an Environmental Assessment ("EA") for the project. Plaintiffs argue that the decision violates the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 39, 41, and 42. Plaintiffs also have moved for expedited consideration of the cross-motions for summary judgment and for leave to file an amended complaint. ECF Nos. 46 and 48. For the following reasons, Plaintiffs' motion to amend the complaint is GRANTED, Plaintiffs' motion for summary judgment is DENIED, Federal Defendants' motion for summary judgment is GRANTED, Defendant-Intervenor's motion for summary judgment is GRANTED, and Plaintiffs' motion for expedited consideration is DENIED AS MOOT.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a USFS fire salvage restoration project proposed and approved by the USFS to treat a strip of land along an area of roadways affected by the Cedar Fire. The Cedar Fire began on August 16, 2016 and burned over 29,000 acres of mixed conifer and white fir forest, most of which was in the Sequoia National Forest. BR 168.1 The USFS is working to abate the hazards associated with this burned area of forest, including through the "Bull Run" project, which is planned to involve felling dead and dying trees along 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument. This project would treat up to 3,500 of the 29,000 acres in the Cedar Fire burn area. ECF No. 22-1, Declaration of Kevin B. Elliott ¶ 7.
Much of the USFS's reasoning regarding regulatory issues related to the Bull Run project is set forth in a Revised Decision Memo, which outlines the proposed project as one designed to "mitigate the hazards to public safety posed by the dead and dying trees along approximately 50.2 miles of road in the project area," which consists of approximately 3,500 acres on the border of Tulare and Kern Counties, roughly 30 miles southeast of Porterville, CA. BR 1. The project will abate hazard trees within 300 feet of each side of the road.2 Hazard trees will be identified using Forest Service guidelines and will be felled if they "could potentially strike within the road's clearing width, or could roll or slide into the clearing after they fall." Id. at 2. Dead, dying, or damaged trees unlikely to fall into the road will not be felled unless they present a hazard to workers, and the memo is clear that the project "is not authorizing a 'clearcut' within 300 feet of road edges." Id. at 3. See also BR 208 (standing dead trees within the 300-foot buffer of the road "incapable of hitting the road prism would be left standing"). Felled trees will be removed if they "represent an *1163obstruction to use and maintenance within the road's clearing width," if leaving the tree in place will increase fuel loading, or if removal is needed for the reforestation process. Id. Felled logs may be chipped or burned, and logs "considered to have commercial value may be sold as saw timber, cull logs, firewood, chips, posts, and poles," and branches and limbs may also be sold. Id. Some logs "will be left in place for habitat" and to meet the standard under the 2004 Sierra Nevada Forest Plan Amendment for down woody material retention. Id. Finally, the project will include activities to restore organic ground cover and to reforest the habitat, including planting seedlings, scattering seeds, and increasing organic ground cover by scattering limbs, branches, and chips. Id.
Pursuant to NEPA,
The USFS also determined that there were no extraordinary circumstances related to the project that would trigger further review through an EIS or EA pursuant to NEPA. Before approving a project under an agency-adopted CE, an agency must examine whether a particular project presents "extraordinary circumstances in which a normally excluded action may have a significant environmental effect."
The Pacific fisher is a "sensitive species"3 but is not endangered or threatened.
*11644 BR 161. There are "no [fisher] den sites in the project analysis area," BR 204, and research in the Sierra National Forest has shown that fishers do not use "high severity burn areas" at least in the immediate aftermath of a fire, though there is "some evidence of limited foraging occurring along the burn edge." BR 210. Fishers appear to favor "landscapes with more contiguous, unfrequented forests and less human activity" and are negatively associated with road density. BR 203. Fisher are forest-interior species, and habitat near roads represents "represent lower habitat quality due to disturbance related influences, habitat fragmentation, edge effects and collisions." BR 210. The existence of roads has already affected the canopy cover in the area, BR 208, and the project "focuses its efforts to encompass areas of highest burn severity where low canopy cover and structural attributes needed for resting and denning activity are no longer present." BR 210. The BE determined that the fire reduced "large woody debris" in many areas and that the project's features to retain large woody debris would increase high-quality habitat to "improve complexity and structure at the forest floor" and promote a diversity of prey for the fisher. BR 209-10. "Dead or dying trees can provide resting and denning habitat for fisher." BR 210. While acknowledging that the removal of some hazard trees "could remove a den or rest tree for the fisher," the project would retain over 200,000 conifer-dominated snags greater than 15 inches DBH5 in the project area, a figure that includes snags in untreated areas "as well as an average of four snags per acre retained in treated areas according to the design criteria." BR 210.
In addition to the comments they submitted during the comment period, BR 385, Plaintiffs submitted supplemental comments concerning the potential effects on fisher habitat connectivity, BR 320. Plaintiffs argued that the Bull Run project is similar to the Rancheria project, where the USFS ordered a supplemental NEPA analysis in light of concerns about "habitat fragmentation and loss of connectivity caused by the Cedar Fire." BR 323. They contended that the USFS undertook no supplemental analysis to ensure that the fisher population in the Southern Greenhorn Mountains was not isolated in the wake of the fire.
Like the Pacific fisher, the CSO is sensitive but not endangered or threatened. BR 161. Also like the Pacific fisher, the CSO is a forest-interior species that is less likely to nest near roads. BR 210. The USFS undertook an analysis of the potential effects on the CSO, examining metrics including total available habitat and acres treated; estimated changes in structural characteristics of the habitat, such as canopy, snags, and large woody debris; disturbance effects; and the number of acres treated of certain habitat types and changes in percentage of relative habitat. BR 207. Field surveys conducted in the last three years identified *1165four CSO territories near the project area. Two of the four CSO territories near the project area have minimal overlap with the planned area, BR 182-83, a third has likely been abandoned, BR 184-85, 212, and the fourth6 will have a monitor on site for any felling during the project, and if nesting owls are present, the project will be subject to a limited operating period, BR 166. Like the Pacific fisher, CSOs nest away from roads, and CSO habitat near roads is lower quality. BR 210. Accordingly, the USFS found that the Bull Run project would have limited disturbance effects and be unlikely to result in significant losses of live foliage and canopy, strong habit factors for CSO. BR 212.
With respect to CSO, Plaintiffs submitted during the comment period an evaluation prepared by Chad Hanson, Ph.D., a member of Plaintiff Earth Island Institute, that included supplemental comments and summaries of additional studies, which he believed to show that even low levels of post-fire logging within 1,500 meters of territory centers show "severe adverse impacts" on CSO occupancy. Pls.' MSJ at 23 (quoting BR 312).
The USFS issued the initial Decision Memo, BR 14, on August 30, 2017. The Decision Memo stated that the project was categorically excluded from further NEPA review under the CE for timber stand and/or wildlife improvement activities and the CE for post-fire rehabilitation activities. BR 17-17. Plaintiffs filed suit on September 29, 2017, contending that the Bull Run project violated NEPA by relying on CEs rather than preparing an EA or EIS and by failing to explain why the Bull Run project will not have significant effects on species in the area. ECF No. 1. On October 4, 2017, the USFS issued a Revised Decision Memo, which added the road-maintenance CE to the list of CEs the USFS intended to rely on. Plaintiffs moved for a preliminary injunction on October 9, 2017, ECF No. 10, which the Court denied in a written order dated November 17, 2017, ECF No. 29.
III. LEGAL STANDARD
A. NEPA
NEPA requires that federal agencies prepare "a detailed statement by the responsible official on ... the environmental impact" of any federal actions "significantly affecting the quality of the human environment."
*1166B. APA
The APA's,
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
* * *
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [and/or]
(D) without observance of procedure required by law[.]
* * *
A reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe ,
Courts should defer to the agency on matters within the agency's expertise unless the agency completely failed to address a factor that was essential to making an informed decision. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. ,
In conducting an APA review, the court must determine whether the agency's decision is "founded on a rational connection between the facts found and the choices made ... and whether [the agency] has committed a clear error of judgment." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife ,273 F.3d 1229 , 1243 (9th Cir. 2001). "The [agency's] action ... need only be a reasonable, not the best or most reasonable, decision." Nat'l Wildlife Fed'n v. Burford ,871 F.2d 849 , 855 (9th Cir. 1989).
River Runners ,
*1167Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. ,
But "the deference accorded an agency's scientific or technical expertise is not unlimited." Brower v. Evans ,
Courts must uphold a reasonable agency action "even if the administrative record contains evidence for and against its decision." Modesto Irrigation Dist. v. Gutierrez ,
C. Summary Judgment
Under the APA, the district court's review of an agency's decision is usually limited to the administrative record.
IV. ANALYSIS
A. Motion For Leave To File Amended Or Supplemental Complaint
Before proceeding to the merits of the parties' claims, the Court must first resolve *1168an issue concerning the scope of the claims presented. Federal Defendants argued for the first time in their reply brief that the Complaint does not address the road-maintenance CE, which was added to the Revised Decision Memo after the Complaint was filed but before Plaintiffs moved for a preliminary injunction. Fed. Def. Reply at 2 (citing Complaint ¶ 79). Plaintiffs, "in an abundance of caution simply to make sure that the pleadings conform to the issues already argued by the parties in briefing," Reply in Support of Mot. to Amend Complaint at 1, moved to amend or supplement the complaint to add reference to the USFS's addition of the road-maintenance CE to the decision memo. See ECF No. 48-1, ¶¶ 38 (adding two sentences to reflect the addition of CE-4 to the Revised Decision Memo), 79 (adding text of CE-4), and 89 (adding reference to CE-4). Defendants opposed Plaintiffs' motion. Defendants first argue that Plaintiffs' reliance on Federal Rule of Civil Procedure 15(b)(2), which allows amendment of the pleadings for issues tried by consent, is misplaced because the rule only applies during or after trial, and no such trial has taken place here. Second, they argue that permitting Plaintiffs to file an amended complaint after the period provided in the scheduling order requires a showing of good cause under Rule 16(b)(4), which Plaintiffs did not address in their motion.
"Where plaintiffs fail to raise a claim properly in their pleadings, if they raised it in their motion for summary judgment, they should be allowed to incorporate it by amendment under Fed. R. Civ. P. 15(b)." Desertrain v. City of Los Angeles ,
Desertrain involved a constitutional challenge to a city ordinance prohibiting the use of vehicles as living quarters. The plaintiffs challenged the ordinance under the U.S. and California Constitutions and various state and federal statutes. The complaint alleged that the challenged ordinance violated due process but did not allege that it was unconstitutionally vague. After the close of discovery and shortly *1169before the filing of cross-motions for summary judgment, plaintiffs' counsel informed defense counsel that they planned to challenge the ordinance of vagueness grounds, and the parties subsequently briefed the issue in their cross-motions for summary judgment. The district court declined to address the vagueness challenge because it was absent from the operative complaint. The Ninth Circuit held that the court should have construed the vagueness argument as a motion to amend the complaint and that the refusal to consider the merits of the vagueness claim was an abuse of discretion. In so doing, it cited both Federal Rule of Civil Procedure 15(a) and 15(b). Today, Rule 15(a) applies to "Amendments Before Trial," while Rule 15(b) applies to "Amendments During and After Trial." The Ninth Circuit quoted cases8 that cited Rule 15(b) prior to the 2007 amendments to Rule 15. Nat. Res. Def. Council v. Pruitt , No. 16-CV-02184-JST,
Turning to the five factors, the Court finds that Plaintiffs have met their burden of demonstrating the propriety of the motion to amend. First, there is no evidence of bad faith. Second, the delay appears to have been the product of an oversight, and one that the Plaintiffs were not alone in failing to catch. Though the operative complaint did not mention CE-4, all parties litigated it at the preliminary injunction stage and again in the summary judgment briefing. There is no undue delay in raising the issue, and there will be no undue delay in litigating it. Third, there is no prejudice to Defendants. The operative complaint alleges that Federal Defendants failed to abide by NEPA because *1170none of the categorical exclusions the USFS identified exempts the action from further NEPA review and that the USFS has failed to explain that the potential effects on certain species will be insignificant. After the USFS issued the Revised Decision Memo on October 4, 2017, the parties litigated the motion for a preliminary injunction, filed October 9, 2017, as if CE-4 were part of the complaint and fully briefed the cross-motions for summary judgment again as if CE-4 were part of the complaint until mentioning in two sentences in the Federal Defendants' reply brief that the central issue in the litigation was not actually among the CEs mentioned in the complaint. Where Defendants "had ample notice ... and the issue did not require further discovery," then the parties "fully argued" the issue in their summary judgment briefing, any claim of prejudice rings hollow. Desertrain ,
Accordingly, the five factors weigh in favor of Plaintiffs' being permitted to file the amended complaint.10
Defendants further argue that the motion to amend should be denied because Plaintiffs have failed to demonstrate that the "good cause" required to adjust a scheduling order under Rule 16(b).11 Under that standard, "when a party seeks to amend a pleading after the pretrial scheduling order's deadline for amending the pleadings has expired, the moving party must satisfy the 'good cause' standard of Federal Rule of Civil Procedure 16(b)(4), which provides that '[a] schedule may be modified only for good cause and with the judge's consent,' rather than the liberal standard of Federal Rule of Civil Procedure 15(a)." Neidermeyer v. Caldwell ,
Defendants cite a number of cases in which courts declined to find that a plaintiff had satisfied the "good cause" standard under Rule 16(b) despite the liberal standard under Rule 15. In none of the cases cited, however, were the circumstances at all akin to the ones presented here. In Johnson , despite defendant's answer to the complaint and interrogatory responses disclaiming ownership of the resort at issue, *1171and letter from defense counsel explicitly stating that the plaintiff had named the wrong defendant and offering to stipulate to substitution of the proper party, all within the period to amend the complaint, the plaintiff failed to move within the time set forth in the scheduling order to file an amended pleading.
Here, Plaintiffs are not belatedly seeking to amend the complaint to add a new theory. Instead, the theory remains that the USFS did not identify a viable CE to avoid further NEPA review and that it incorrectly concluded that the project did not present any extraordinary circumstances. Unlike the cases Defendants cite, permitting the amended complaint will not upset an imminent trial date, require the reopening of discovery, or otherwise disrupt the orderly proceeding of the case. Once Federal Defendants pointed out that the operative Complaint did not cite one of the CEs at issue, Plaintiffs promptly sought to amend the Complaint to bring it into conformance with the issues the parties have briefed both in the present motion and in prior rounds of motions practice. Plaintiffs have thus demonstrated good cause.
B. Standing
To establish standing, a plaintiff must demonstrate, "at an irreducible minimum," (1) that he personally suffered some actual or threatened injury (injury in fact); (2) that the injury can be traced to the challenged conduct of the defendant (causation); and (3) that the injury is likely to be redressed by a favorable judicial decision (redressability). Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc. ,
*1172participation in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc. ,
In support of its motion for a preliminary injunction, Plaintiffs submitted declarations from two members who have visited the Bull Run project area in the past and intend to do so in the future. See ECF No. 10-5, Declaration of Ara Marderosian ¶¶ 7-12; ECF No. 10-4, Declaration of Dr. Chad Hanson ¶¶ 7-11. The Court found that Plaintiffs established that they had standing to bring this suit. Defendants do not challenge that finding or present facts that would suggest that Plaintiffs no longer have standing.
Accordingly, the Court finds, as it did in its order on the motion for a preliminary injunction, that Plaintiffs have satisfactorily demonstrated that they have standing.
C. Mountain Yellow-Legged Frog And Spear Creek
Federal Defendants argue that Plaintiffs have abandoned two of the claims raised in the Complaint and in the motion for a preliminary injunction that are absent from Plaintiffs' summary judgment papers: that the USFS failed to explain why the project's effects on the mountain yellow-legged frog are insignificant and that USFS improperly segmented the Spear Creek project from the Bull Run project. Plaintiffs do not dispute that these claims are no longer active. No party briefed those issues in the cross-motions for summary judgment, and the Court does not consider them in this order.
D. Application Of The Road Maintenance Categorical Exclusion
The CEs provide in relevant part that "[a] proposed action may be categorically excluded from further analysis and documentation in an EIS or EA only if there are no extraordinary circumstances related to the proposed action and if" the action falls within one of the categories listed in § 220.6(d) and (e).
(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;
(ii) Grading a road and clearing the roadside of brush without the use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
Section 220(e) lists categories of actions "for which a project or case file and decision memo are required."
(6) Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction. Examples include, but are not limited to:
*1173(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand;
(iii) Prescribed burning to control understory hardwoods in stands of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve plant vigor.
[...]
(11) Post-fire rehabilitation activities, not to exceed 4,200 acres (such as tree planting, fence replacement, habitat restoration, heritage site restoration, repair of roads and trails, and repair of damage to minor facilities such as campgrounds), to repair or improve lands unlikely to recover to a management approved condition from wildland fire damage, or to repair or replace minor facilities damaged by fire. Such activities:
(i) Shall be conducted consistent with Agency and Departmental procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the construction of new permanent roads or other new permanent infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
[...]
(13) Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than ½ mile of temporary road construction. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include, but are not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees, and
(ii) Harvest of fire-damaged trees.
Generally, "[a]n agency's determination that a particular action falls within one of its categorical exclusions is reviewed under the arbitrary and capricious standard." Alaska Ctr. for Env't v. U.S. Forest Service ,
Plaintiffs do not raise an objection to the use of CEs for the project's reforestation activities under CE-6 and CE-11. They take aim at the use of the road-maintenance CE for a timber sale. The crux of the dispute between the parties is whether the removal and commercial sale of hazard trees along 52.1 miles of road may properly be classified as "road maintenance." Among other things, Plaintiffs contend that CE-13 (quoted above) limits the acreage of any salvage operation the USFS may cover under a CE (and therefore exempt from normal NEPA requirements).
Plaintiffs principally rely on a 2008 case from the Central District of California, Los Padres Forestwatch v. U.S. Forest Service , No. CV-08-845-GW (MANx) (C.D. Cal. July 3, 2008), ECF No. 10-12, the only case that squarely addresses Plaintiffs' contention that CE-13 limits the acreage *1174of salvage operations USFS may cover under a CE. The Los Padres decision, which is unpublished, rejected a plan similar to the one at issue here, where the USFS sought to rely on the road-maintenance CE for a project that included commercial salvage of dead trees near roads.
The Los Padres court found unreasonable USFS's conclusion that the commercial salvage of dead trees along roadsides fell under the road maintenance CE rather than the salvage CE, reasoning that the salvage CE limited the number of acres that could be treated through salvage operations under a CE. ECF No. 10-12, Los Padres slip opinion, at 15-19. The district court was unpersuaded by the USFS's argument that CE-13 did not apply to maintenance along roadsides because the major environmental effect occurred when roads went in, such that salvage activities near roadsides had different potential environmental effects than salvage away from roadsides. The court emphasized that the salvage CE has no restrictions concerning the type of land (roadside v. non-roadside) but does contain two other types of restrictions: (1) that no more than 250 acres be affected and (2) that there be "no more than ½ mile of temporary road construction."
However, other district-court opinions both predating and postdating Los Padres upheld the use of the road-maintenance CE in similar circumstances. In Native Ecosystems Council v. Krueger , No. CV 13-167-M-DLC,
Here, the Forest Service determined the Project fell within the categorical exclusion for "[r]epair and maintenance of roads." 36 C.F.R. 220.6(d)(4). The Project authorizes removal of trees within 150 feet of roads "based on ... consideration of whether the tree is expected to fall onto the roadway or cause another tree to fall into the roadway." A-1:1-2, 6. The Decision Memo explains that "the purpose of this hazard tree removal proposal is to provide for safety of road users and maintenance of the roads within the Millie Fire perimeter." Id. at 1. Contrary to Plaintiffs' assertion, the Project does not authorize a free-for-all of commercial logging on hundreds of acres of land, but allows only removal of "hazard tree[s]" within 150 feet of roads based on specific considerations in order to alleviate a situation in which "sliding, falling and rolling trees landing in the roadway [will] create [ ] snag hazards and roadway blockages." Id. To minimize potential impacts, mechanized equipment will be required to stay on the roads and all tree removal activities will be done by hand felling. Id. at 19.
The Forest Service reasonably concluded that the Project fell within the categorical exclusion for road maintenance. See Forest Conservation Council v. USFS ,2003 WL 23281957 (D. Ariz. July 9, 2003)aff'd110 F. App'x 26 (9th Cir. 2004) (holding that "removal of dead *1175trees within 150 feet of fences is generally within the scope of the repair and maintenance of roads, trails, and landline boundaries"). Under the circumstances, removing hazard trees within 150 feet of these roads is consistent with the categorical exclusion for road maintenance.
Native Ecosystems Council ,
The district court in Forest Conservation Council v. U.S. Forest Serv. , No. CV-03-0054-PCT-FJM,
The application of these three categorical exclusions to the roads and trails decision is not immediately obvious. Removing dead trees within 500 feet of the boundaries of administrative sites can generally be said to relate to administrative sites. But the examples given (e.g., mowing lawns, replacing roofs) are far more modest than removing dead trees within a 500 foot swath. Similarly, removing dead trees within 200 feet of roads and 100 feet of trails relates generally to the repair and maintenance of roads and trails. Again though, the examples given are far more modest than the action proposed here (grading a road, pruning vegetation). And, removing dead trees within 500 feet of recreation sites generally relates to the repair and maintenance of recreation sites and facilities. But again, the examples given are far more narrow (applying insecticides and repaving a parking lot). If we were deciding this issue de novo , we might have concluded that the action proposed by the roads and trails decision, while within the general description of the categorical exclusions, is far more expansive than the examples given and thus the exclusions would not apply. But we are not reviewing this de novo . We must give the agency's interpretation controlling weight unless it is plainly erroneous or inconsistent with the terms used in the categorical exclusion. We cannot say that the agency's interpretation here is inconsistent with the terms used in the categorical exclusion. There is rough comparability. For example, the major environmental impact occurred when the roads went in. We thus cannot say that the agency's interpretation is plainly erroneous.
The Court is persuaded that this project to maintain safe roadways can proceed under the road-maintenance CE. By its terms, the CE involves road maintenance, and abating hazard trees that may fall on a road fits within the general scope of the CE. In addition, the Forest Service Handbook itself states that removal of roadside hazard trees can fall under the road-maintenance CE. BR 709 ("Road maintenance includes mitigating danger tree hazards that threaten safe use of the forest transportation system."); BR 710 (stating that "[s]trategies utilizing the sale of forest products, including commercial timber sales and land stewardship contracts, may be employed to mitigate danger tree hazards along" roads; BR 711 ("Road maintenance, including mitigation of danger tree hazards, may be subject to a categorical exclusion from analysis and documentation in an environmental assessment or environmental impact statement under certain circumstances (36 CPR 220.6(d)(4); FSH 1909.15, sec. 31.12, para. 4).").
An agency's interpretation of its own regulations is entitled to deference. See Pub. Lands for the People, Inc. v. U.S. Dep't of Agric. ,
1. Agency Deference
Plaintiffs argue that any deference an agency is due dissolves when the agency's invocation of a CE is merely a post hoc rationalization rather than the product of considered agency action. Courts do not grant deference to agency interpretations "if there is reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." California Pub. Utilities Comm'n v. Fed. Energy Regulatory Comm'n ,
Because the CE that Federal Defendants predominantly rely on is one that was absent from the initial Decision Memo and appeared in the Revised Decision Memo only after Plaintiffs filed their Complaint, Plaintiffs conclude that the Federal Defendants' decision to rely on CE-4 to *1177avoid further NEPA review is not entitled to the deference normally accorded agency interpretations of their categorical exclusions. The road-maintenance CE, however, did not appear for the first time in the Revised Decision Memo. In a letter to the project file dated January 19, 2017, District Ranger Eric La Price wrote that he had consulted the Forest Leadership Team that day and that Forest Supervisor Kevin Elliott agreed with his proposal to use CEs for the project. Noting that the felled hazard trees would "present a fire hazard along the road corridors" and prevent reforestation efforts, he stated that "excess logs would be chipped, piled and burned or sold to remove them from the area." BR 273. He identified road maintenance and timber stand as appropriate CEs for the proposed project, BR 273, writing that "[t]he actions we are proposing are routine in nature and the effects are well known. With a reasonable degree of certainty, I do not foresee any reasonable potential for significant individual or cumulative effects." BR 274. He noted that if the USFS identified anything during the scoping or analysis that would present an extraordinary circumstance, he "would upgrade the analysis as appropriate."
In response to an email from an officer in EPA's Enforcement Division, NEPA Section, Mr. La Price wrote on February 14, 2017, that while the USFS was in the process of determining the appropriate level of analysis, "based on the activities proposed and anticipated effects, we are leaning towards the use of a categorical exclusion." BR 474. In an email the following day responding to an inquiry whether the USFS intended to do an EA,13 Mr. La Price declined to speculate about "what may come up in this round of scoping and how it may affect how we perform our analysis or under which authority we may use. We will make a decision on the level of analysis at the appropriate time. If we decide to use a CE, we will clearly identify the category." BR 471. On February 17, 2017, Irina Ford, a Forest Planner, wrote to Mr. La Price and others that "Bull Run Creek is one of the two priority watersheds" in Sequoia National Forest and suggested that the timber-stand CE might be used to restore the watershed. BR 265. In the Project Initiation Letter issued four days later, on February 21, 2017, Mr. La Price identified that the twin goals of the project were "to mitigate the hazard to public safety posed by the dead and dying trees along roads in the Cedar Fire area and to perform reforestation work in the area," BR 267, and wrote that "[b]ased on the current issues and anticipated effects, the Responsible Official has decided we will begin analyzing this proposal as one that can be excluded from documentation" through use of a CE. BR 268. In a Project Initiation Input Request Form also dated February 21, 2017, the USFS identified the timber stand or wildlife habitat improvement CE in the entry for the level of NEPA review (CE-6). BR 257. Though it identified the Forest Service Handbook's command to keep roadways safe for passage, including through "identification and mitigation of danger trees,"14 and discussed the potential harm to roads or danger to travelers if the hazard trees were not removed, it did not cite the road-maintenance CE. BR 258. The cited section of the Forest Service Handbook states that removal of roadside hazard trees can fall *1178under the road-maintenance CE. BR 709 ("Road maintenance includes mitigating danger tree hazards that threaten safe use of the forest transportation system."); BR 711 ("Road maintenance, including mitigation of danger tree hazards, may be subject to a categorical exclusion from analysis and documentation in an environmental assessment or environmental impact statement under certain circumstances (36 CPR 220.6(d)(4); FSH 1909.15, sec. 31.12, para. 4).").
In addition to discussions of the use of the road-maintenance CE during project scoping, Federal Defendants also point out that the USFS has repeatedly relied on the road-maintenance CE for projects like this one over many years, which is why it has been the subject of a number of lawsuits. See Forest Conservation Council v. U.S. Forest Serv. , No. 03-54,
The decision to rely on the road-maintenance CE is therefore unlike the cases on which Plaintiffs rely to argue that the USFS decision is undeserving of deference. Unlike those cases, the agency here did consider and eventually decide to rely on the CE at issue. See Bowen v. Georgetown Univ. Hosp. ,
The USFS issued the Revised Decision Memo months before the project was to begin and more than nine months after the agency first raised the possibility that it might rely on that CE. This is not a case of an agency's counsel raising in the context of a lawsuit a justification in the first instance. Instead, the agency itself relied on the CE in a Revised Decision Memo after the Plaintiffs filed their Complaint. As Defendants point out, the USFS did not need to issue any decision memo to invoke CE-4.
2. Use Of A "Minor" CE
Plaintiffs next argue that the road-maintenance CE is among the CEs under the *1179(d) subheading, which in their view covers "actions so minor that they do not even need a Decision Memo" and are thus inappropriate to read as having the " 'broad' scope as argued by the agency here." Pls.' Reply at 2-3. Plaintiffs quote agency regulations stating that "[w]hile some Forest Service categorical exclusions of limited scope do not require a decision memo or project record, a majority of the Forest Service's categories do require preparation of a decision memo and a supporting record."
Federal Defendants respond that the road-maintenance CE is "limited" only in that activities along roads is a category circumscribed by the requirement that they take place along pre-existing roads, and thus "present fewer impacts than freestanding timber-harvest, fuels-reduction, and other activities in
3. Data Collected To Craft CE And Past Agency Practice
Plaintiffs argue that the data the USFS relied on to craft the CE and past agency practice both confirm that the USFS should have prepared an EA or EIS for this project instead of relying on a CE.
In creating CEs relating to timber harvest,
Plaintiffs argue that the inclusion of roadside maintenance projects in the set of studies used to craft the timber CEs means that the USFS intended that roadside salvage projects must fall under those CEs, not others, like the road-maintenance CE: "If the agency believed that roadside hazard salvage projects had lesser impacts than other salvage projects, it would not have included them in the data set since they would have improperly skewed the resulting acreage number, making it larger than it should have been." Pls.' MSJ at 14. As this Court held in the Preliminary Injunction Order, "[t]he fact that USFS cast a wide net to expand its sample size for determining an appropriate acreage limitation for CE-13 does not change the legal analysis herein that concludes that nothing precludes USFS from applying an overlapping CE to a project that might, if smaller in size, also qualify under CE-13." ECF No. 29 at 15 n.5. See also
Plaintiffs also rely on two roadside hazard projects for which the USFS elected not to rely on the road-maintenance CE as further evidence that reliance on that CE here is contrary to agency practice. They first point to the Lucas Creek Project, a project in Sequoia National Forest that would "remove hazard trees along roads and properties adjoining the Breckenridge Subdivision" and "also reduce fuels build-up to protect the community and the Lucas Creek upper and middle watershed from high-intensity fire." ECF No. 24-4. The project planned to treat 250 acres of land and invoked the salvage CE.
4. Commercial Component Of Project
Plaintiffs argue that the commercial nature of the project brings it outside the scope of ordinary road maintenance. Defendants respond that the Forest Service Handbook expressly states that road maintenance includes mitigation of tree hazards. BR 709 ("Road maintenance includes mitigating danger tree hazards that threaten safe use of the forest transportation system."); BR 711 ("Road maintenance, including mitigation of danger tree hazards, may be subject to a categorical exclusion from analysis and documentation in an environmental assessment or environmental impact statement under certain circumstances (36 CPR 220.6(d)(4); FSH 1909.15, sec. 31.12, para. 4)."). In reply, Plaintiffs respond that they "have always acknowledged" that the road-maintenance CE includes mitigation of danger tree hazards but that it is the commercial timber sale aspect of the project that nudges this plan outside the scope of the CE. Pls.' Reply at 9 n.3. This is so, they argue, because the project involves more than "incidental tree felling to maintain a road,"
The text of the road-maintenance CE contains no such requirement that felled trees be left in place. In addition, the *1182Forest Service Handbook, which, as Plaintiffs concede, discusses hazard-tree mitigation as part of road maintenance, itself contemplates that removed hazard trees might be subject to a commercial sale. See BR 710 (stating that "[s]trategies utilizing the sale of forest products, including commercial timber sales and land stewardship contracts, may be employed to mitigate danger tree hazards along" roads but noting that removal of high-priority danger hazard trees should not be delayed "to accommodate commercial removal of trees"); BR 711 ("Where strategies utilizing the sale of forest products are being employed to mitigate danger tree hazards before they become high priority, include in the project file an estimate by a qualified person of the month and year when high priority hazards are likely to occur.... All available methods for mitigation of danger tree hazards should be considered and applied as appropriate to local situations. These methods include but are not limited to commercial timber sales ...."). When it adopted the rehabilitation CE,
Federal Defendants further object that imposing an extratextual leave-in-place limitation would carry interpretive problems. If the commercial nature of the removal is the problem, it would seem to exempt service contracts that did not involve subsequent sale of the timber. It is unclear if Plaintiffs' proposed interpretation would permit branches of hazard trees to be removed and sold under a commercial contract. Moreover, Plaintiffs advocate for a leave-in-place requirement while requesting that the USFS be allowed "to move the trees to an area near where the tree is felled, within the project area, so they do not otherwise create a hazard, such as moving or rolling into the road" until it has complied with NEPA. Pls.' Opp. at 18. How far can a tree be moved before it is removed? Does chipping or burning a tree count as removal? How many of a tree's branches can be removed before running afoul of the leave-in-place requirement? The fuzzy boundaries inherent in Plaintiffs' interpretation of the road-maintenance CE highlight the practical difficulties resulting from this interpretation.
Even when invoking a categorical exclusion, an agency may address "extraordinary circumstances in which a normally excluded action may have a significant environmental effect."
*1183Federal Defendants argue that there is no textual basis why Plaintiffs' concerns about the environmental effects associated with salvage logging could not be addressed through an EA or EIS where appropriate. Even reliance on a CE permits the USFS to examine an action further if there may be a significant environmental effect, and that, not imposition of an extratextual requirement that there be no commercial aspect to the roadside safety project, is the proper way to address Plaintiffs' concerns about potential environmental effects resulting from the presence of heavy equipment and the possibility of tree skidding. The Court agrees.
Federal Defendants' invocation of the road-maintenance CE to ensure that roads remain safe is not plainly erroneous or inconsistent with the terms used in the regulation.
E. Finding Of No "Extraordinary Circumstances"
Application of a categorical exclusion is not an exemption from NEPA; rather, it is a form of NEPA compliance, albeit one that requires less than where an environmental impact statement or an environmental assessment is necessary." Ctr. for Biological Diversity v. Salazar ,
"When an agency decides to proceed with an action in the absence of an EA or EIS, the agency must adequately explain its decision." Alaska Ctr. ,
1. Pacific Fisher
Plaintiffs contend that the USFS failed to explain why the potential adverse *1184effects on the Pacific fisher are insignificant because it did not address habitat fragmentation and connectivity issues arising from the Cedar Fire. Plaintiffs complain that the BE was finalized on March 24, 2017, and that on April 12, 2017, the USFS issued a revised BE for the Rancheria Project, because it had determined that the Cedar Fire (located to the south of the Rancheria Project area) may have caused significant effects on the fisher, based on the habitat fragmentation and loss of connectivity. Pls.' MSJ at 19. Plaintiff Sequoia ForestKeeper submitted supplemental comments for the Bull Run project, raising concerns that the loss of habitat connectivity resulting from the Cedar Fire, in combination with the Bull Run and Spear Creek projects, could result in significant effects on the fisher population. The supplemental comments included a declaration from Dr. Chad Hanson, which raised concerns that the project might sever the fisher population south of the Cedar Fire area from the population in the project area. BR 323-24 (quoting BR 370-71). Isolating the already small population could restrict the gene pools of the subpopulations, "leading to increased inbreeding and poorer genetic health of the population." BR 324 (quoting BR 371). Plaintiffs claim that the USFS did not address these concerns.
As the Court explained in the Preliminary Injunction Order, the USFS ordered supplemental NEPA analysis for the Rancheria Project because the biological evaluation for that project had been completed in 2013, prior to the Cedar Fire, and the significant change in circumstances resulting from the fire warranted an updated analysis. See ECF No. 22-9, Rancheria Supplemental Information Report, at 10 ("The habitat fragmentation and loss of connectivity caused by the effects of the Cedar Fire was not considered in the 2013 Fisher BE. This change in conditions may be significant and alter the conclusions made in the original determination for this project."). The Bull Run BE, by contrast, already considered the effects of the Cedar Fire. See BR 208 ("[T]his project is limited in its scope and its distribution across the landscape, and is not anticipated to dramatically contribute to further declines in habitat quality beyond what has already occurred with the 2016 Cedar Fire.").
The BE addressed a number of threats faced by the southern Sierra Nevada population of fishers. BE 201-04. This includes the threat of habitat fragmentation or loss of connectivity: "Habitat connectivity is a key to maintaining fisher within a landscape. Activities that result in habitat fragmentation or population isolation pose a risk to the persistence of fishers. Timber harvest, fuels reduction treatments, road presence and construction, and recreational activities may result in the loss of habitat connectivity resulting in a negative impact on fisher distribution and abundance." BR 203. The BE identified fuel reduction activities, effects of wildfire, land development, recreation, and roads as factors that could fragment, modify, or destroy fisher land. BR 201.
The BE stated that the mere presence of roads alone can result in habitat fragmentation and discussed studies concluding that fishers "favored landscapes with more contiguous, unfrequented forests and less human activity." BR 203. One study of sample units in the central and Southern Sierra Nevada region found that "fishers were negatively associated with road density."
Plaintiffs object that though the BE discussed habit connectivity and loss of fragmentation, it "is of a different kind from what is required." Pls.' MSJ at 21. They argue that the BE noted that while the existence of roads alone can result in the loss of habit connectivity, it does not address "the removal of most of the dead trees up to 300 feet from either side of the roads" and that the studies cited at BR 203 "discuss the effects of road density and vehicular traffic" rather than habitat connectivity or fragmentation from logging . Pls.' MSJ at 21. They further argue that the BE discussed the effects of existing roads and that the fire already degraded "many of the structural attributes of fisher habitat" but provides no insight into the further effects that the logging project will have.
Plaintiffs argue in reply that the BE acknowledges a potential shift in travel patterns lasting seven to ten years, which is "a long time, especially considering a fisher's 10-year lifespan." Pls.' Reply at 18. The BE's discussion of the potential shift in travel patterns was in a section addressing the effects of the fire itself:
Habitat quality was greatly reduced for the California spotted owl, goshawk, bat species and the fisher from its existing condition due to stand replacing fire effects. These impacts resulted in increased tree mortality, decreased canopy cover, loss of multi-storied stand conditions, decreased levels of large down woody debris, shrub and herbaceous cover, and increased habitat fragmentation. Based on an analysis of suitable habitat pre and post fire, there has been an estimated 56 to 57% decrease in its availability across the landscape depending on the species considered.
Current estimates of suitable habitat remaining by species are as follows: spotted owl 6,145 acres, northern goshawk 6,869 acres, bat species 6,231 acres, and fisher at 7,021 acres (Table 3). Habitat distribution and configuration may result in some shifts in travel patterns particularly for ground based species such as the fisher over the short term (7-10 years).
BR 208. The BE concluded in the same section that the project "is not anticipated to dramatically contribute to further declines in habitat quality beyond what has already occurred with the 2016 Cedar Fire."
Plaintiffs further argue that the BE does not address the stress from other projects in the area or the additional stress of tree mortality resulting from drought conditions or insects. These conditions were noted in the BE. See BR 168-69 ("This [habitat analysis] captured changes in habitat availability and its distribution due to an ongoing multi-year drought (2014-2016) and heightened insect activity resulting in high levels of tree mortality. The Cedar Fire began in August of 2016 and further greatly altered stand conditions and habitat availability."). Federal Defendants also point to a line from a paper submitted in Plaintiffs' supplemental comments in May 201719 that noted that while "[t]here is no available research or direct observations concerning how massive changes in tree cover due to drought and insect mortality ... may affect fisher habitat use or population processes[,] ... it is probable that maintaining[ ] and increasing the resilience of the remaining patches of large living conifers will be important to providing for the long-term persistence of the fisher population." BR 378. Removing excess fuel and thereby reducing the risk of fire to remaining healthy trees serves the fisher's long-term interest.
"Where there is substantial evidence in the record that exceptions to the categorical exclusion may apply, the agency must at the very least explain why the action does not fall within one of the exceptions." Norton ,
2. California Spotted Owl
Federal Defendants summarize the USFS's examination of the effects of the Bull Run project on the CSO as "a detailed, quantitative analysis" that "used multiple metrics, such as (1) total available habitat and acres treated; (2) estimated changes in important structural characteristics, such as canopy, snags, and large woody debris; (3) disturbance effects; (4) acres treated in suitable CWHR Forest Types, and change in relative percent of suitable habitat at the PAC scale, within a 0.727-mile radius, and within a 1.5 mile radius." Fed. Defs.' MSJ at 16 (citing BR 207, Table 8). The USFS also discussed scientific research relating to wildfire and post fire logging. BR 188-90.
Plaintiffs argue that the USFS failed to explain why adverse effects on the CSO are insignificant. They argue that they do not ask the Court to resolve any scientific disagreements but instead argue that the USFS "has simply failed to consider or analyze Plaintiffs' legitimate concerns regarding the potential loss of occupancy based on scientific studies they presented to the" USFS. Pls.' MSJ at 22. In particular, Plaintiffs argue that the USFS failed *1187to address an evaluation prepared by Chad Hanson, a member of Plaintiff Earth Island Institute, that included supplemental comments and summaries of additional studies that he concluded "shows severe adverse impacts on California spotted owl occupancy from post-fire logging within a 1,500-meter radius of territory centers-even at levels that may seem relatively low to some (5-25%)." Pls.' MSJ at 23 (quoting BR 312). The owls living at TUL003620 continue to occupy their territory, and Plaintiffs argue that the USFS did not address "what will happen to the owls after roughly 20% of their territory is logged."
Defendants respond that Dr. Hanson's letter is not peer-reviewed, does not explain what type of post-fire logging he examined (i.e., whether it represents low-quality habitat near roads or wider salvage efforts), and treats 5-25% as a single imprecise category that potentially blurs the effects of different treatment levels. In any case, the USFS cited other published studies finding "no statistically significant effects of wildfire or salvage logging on California spotted owls in the mountains of southern California." BR. 190.
The parties disagree about the importance of CSO territory TUL0036. Federal Defendants emphasize that of the four CSO territories in the entirety of the project area, "only two have minor overlap with the roads, and the third has negligible habitat and is likely abandoned." Fed. Defs.' Reply at 7 (citing BR 184-85, 212-13). The fourth territory, TUL0036, includes segments of only three roads, and there is no nest within these roadside hazard removal zones. BR 183, 180, 185. Federal Defendants emphasize the BE's conclusions of little effect on the CSO's habitat in the area. BR 208 ("Treated roadways are not anticipated to be rendered unusable and will continue to provide for foraging and dis[pe]rsal activities to occur."); id. 212 ("As such, their removal is not anticipated to result in substantial losses of live foliage that contributes to overhead canopy, which is one of the strongest habitat factors selected for by the owl."); id. ("The road corridor itself previously impacted the habitat and undergoes regular maintenance making it already a lower quality habitat (foraging and dispersal)."). Federal Defendants also highlight the mitigation efforts associated with the project to protect CSO habitat: "that higher levels of large woody debris be retained," that a wildlife monitor be on site for any felling in the protected activity center ("PAC"), and that a limited operating period be enforced if nesting owls are determined to be present in the area "in order to eliminate disturbance effects during peak times of the reproductive cycle."21 BR 212, 166. They also argue that the Bull Run project will not log the entirety of the approximately 20% of TUL0036 that overlaps with the project area; only snags that could reach the road will be felled. Plaintiffs respond that they have not asserted that only clear-cut operations cause occupancy loss and that *1188mitigations are irrelevant because "[o]nce occupancy is lost, these mitigations no longer make a difference." Pls.' Reply at 16.
The USFS did address the potential loss of CSO habitat. Plaintiffs attempt to reframe the issue as a failure to address "Plaintiffs' legitimate concerns with regard to the owls' loss of occupancy," Pls.' Reply at 16, but failure to credit their expert's work while relying on other published studies is not the same as a wholesale failure to address an issue. "Though the Forest Service did not perform the point-by-point type of counter-argument to experts that Plaintiffs appear to desire, our precedent makes clear that an agency 'need not respond to every single scientific study or comment.' " Earth Island Inst. v. U.S. Forest Serv. ,
The USFS took a hard look at Bull Run's potential effects on CSO and determined that the potential effects on the species were insignificant. The USFS "consider[ed] the proper factors and ma[de] a factual determination on whether the impacts are significant or not," a decision that "implicates substantial agency expertise and is entitled to deference." Alaska Ctr. ,
V. CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's request to amend the Complaint is GRANTED ;
2. Plaintiffs' motion for summary judgment is DENIED ;
3. Defendant's motion for summary judgment is GRANTED ;
4. Defendant-Intervenor's motion for summary judgment is GRANTED ;
5. Plaintiffs' request for expedited consideration is DENIED AS MOOT .
IT IS SO ORDERED.
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