1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jun 21, 2023 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 KETTLE RANGE CONSERVATION 10 GROUP, No. 2:21-CV-00161-SAB 11 Plaintiff, 12 v. ORDER GRANTING 13 U.S. FOREST SERVICE; GLENN PLAINTIFF’S MOTION FOR 14 CASAMASSA, Pacific Northwest SUMMARY JUDGMENT 15 Regional Forester, U.S. Forest Service; 16 RODNEY SMOLDON, Forest Supervisor, 17 Colville National Forest; and TRAVIS 18 FLETCHER, District Ranger, Republic 19 Ranger District, U.S. Forest Service, 20 Defendants. 21 Before the Court are Plaintiff’s Motion for Summary Judgment, 22 ECF No. 48, Plaintiff’s Motion for Leave to File Extra Record Evidence, 23 ECF No. 46, and Defendants’ Motion for Summary Judgment, ECF No. 54. The 24 Court heard oral argument on the motions on February 9, 2023, in Spokane, 25 Washington. Plaintiff is represented by Claire Loebs Davis. Defendants are 26 represented by Paul Gerald Freeborne and John Martin. Having reviewed the 27 parties’ briefing, applicable law, and administrative record, the Court grants 28 summary judgment in Plaintiff’s favor. 1 BACKGROUND 2 Plaintiff is an environmental organization challenging the U.S. Forest 3 Service’s (hereinafter “the agency”) adoption of a forest management plan for the 4 Colville National Forest in 2019. The Colville National Forest consists of 1.1 5 million acres of National Forest System land in northeastern Washington. Plaintiff 6 also challenges a restoration and logging project in the Colville National Forest, 7 known as the Sanpoil Project. 8 A. Colville Forest Plan 9 In 1994, Congress assembled a scientific panel to assess the condition of 10 old-growth forests in eastern Washington and Oregon. The panel determined that 11 the country’s old-growth forests had been transformed, and if logging rates 12 continued, old-growth stands would soon occupy less than 10% of the forests. The 13 panel found that only 1% of the Colville National Forest consisted of old-growth 14 stands protected from logging. The panel recommended adoption of a standard 15 referred to as Eastside Screens. 16 In 1995, the agency adopted Eastside Screens to protect the remaining old- 17 growth habitat in the Colville National Forest. Eastside Screens limited certain 18 timber sales and prohibited the cutting of trees greater than 21-inches in diameter 19 at breast height (DBH). This is known as the 21-inch rule. Eastside Screens also 20 required a historical range of variability analysis to compare current stand structure 21 to historical conditions. 22 In 2003, the agency began the process of reviewing and revising the forest 23 plan for the Colville National Forest. On October 21, 2019, the agency issued a 24 final Record of Decision (ROD) for the 2019 Forest Plan. As part of the 25 environmental review process, the agency considered six alternatives. The agency 26 ultimately selected a forest management plan called Alternative P, which will open 27 63% of the Colville National Forest to logging. It is estimated to produce up to 62 28 1 million board feet of timber. Alternative P also eliminates Eastside Screens and the 2 21-inch rule. 3 B. Sanpoil Project 4 The Sanpoil Project is a proposed action issued under the 2019 Forest Plan. 5 The Sanpoil Project authorizes timber harvests in 8,410 acres and prescribed burns 6 in another 19,129 acres, requires the construction of 3.7 miles of temporary roads 7 and improvements to roughly 8 miles of non-system roads, and opens 10,585 8 additional acres to grazing. The Sanpoil Project is estimated to generate 50 million 9 board feet of timber. The Sanpoil Project area is in the southern part of the 10 Republic Ranger District, which is part of the Colville National Forest. 11 The agency released a draft Environmental Assessment (EA) for the Sanpoil 12 Project on February 6, 2019, and a final EA on May 27, 2020. The agency issued 13 the ROD for the Sanpoil Project on December 11, 2020, and found the Sanpoil 14 Project would not have a significant impact on the environment. Therefore, the 15 agency did not prepare an environmental impact statement (EIS). 16 DISCUSSION 17 Plaintiff moves for summary judgment to vacate and remand the RODs for 18 the 2019 Forest Plan and the Sanpoil Project. Plaintiff argues the agency violated 19 the Administrative Procedure Act (APA), National Environmental Policy Act 20 (NEPA), and National Forest Management Act (NFMA). 21 Under the APA, a federal court shall hold unlawful and set aside agency 22 action, findings, and conclusions found to be arbitrary and capricious or without 23 observance of procedures required by law. 5 U.S.C. § 706(2). An agency’s action 24 is arbitrary and capricious if (1) the agency fails to consider an important aspect of 25 a problem, (2) the agency offers an explanation for the decision that is contrary to 26 the evidence, (3) the agency’s decision is so implausible that it could not be 27 ascribed to a difference in view or be the product of agency expertise, or (4) the 28 agency’s decision is contrary to the governing law. Motor Vehicle Mfrs. Ass’n of 1 United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An 2 agency must examine the relevant data and articulate a satisfactory explanation for 3 its action. Id. Courts resolve APA actions on summary judgment because there are 4 no triable factual disputes. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 5 2005). The NFMA and NEPA use the APA’s standard of review. San Luis & 6 Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 7 A. Scope of Review 8 Plaintiff moves the Court to supplement the administrative record with the 9 Eastside Screens Report. Plaintiff claims the Eastside Screens Report is essential to 10 considering the merits of the case. This Court agrees. 11 Cases involving challenges to final agency actions under the APA generally 12 involve a review of only the administrative record. Citizens to Preserve Overton 13 Park v. Volpe, 401 U.S. 402, 420 (1971); Powell, 395 F.3d at 1029. However, the 14 Ninth Circuit recognizes four exceptions to the rule: 15 (1) if admission [of supplemental information] is necessary to determine whether the agency has considered all relevant factors and has explained its 16 decision, (2) if the agency has relied on documents not in the record, 17 (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency 18 bad faith. 19 Id. at 1030 (“These limited exceptions operate to identify and plug holes in the 20 administrative record.”); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 21 F.3d 1443, 1450 (9th Cir. 1996). 22 The Court will consider the Eastside Screens Report. The new guideline for 23 old-growth management in the 2019 Forest Plan was a substantial departure from 24 prior management policy. The Eastside Screens Report was cited in public 25 objections to the plan and is necessary to understand whether the agency 26 considered and responded to these public comments under the NEPA. It is 27 necessary to determine whether the agency conducted informed decision making, 28 1 considered all relevant factors, and adequately explained its decision before 2 adopting the 2019 Forest Plan. Federal Defendants also contended at oral argument 3 that the Eastside Screens Report supports the agency’s decision—specifically, 4 arguing that the report is outdated and based on crude science. As the agency relied 5 on documents in this case that are not in the record to justify its decision, the Court 6 concludes it is appropriate to review those documents. 7 B. Ripeness and Exhaustion of Administrative Remedies 8 The agency contends Plaintiff’s claims are not ripe for review and Plaintiff 9 did not exhaust its administrative remedies. The Court rejects both arguments. 10 1. Ripeness 11 Ripeness serves to prevent the courts from entangling themselves in abstract 12 disagreements over administrative policies, and to protect the agencies from 13 judicial interference until an administrative decision has been formalized and its 14 effects felt in a concrete way by the challenging parties. Ohio Forestry Ass’n, Inc. 15 v. Sierra Club, 523 U.S. 726, 732–33 (1998). To determine whether an issue is 16 ripe, courts should consider the fitness of the issue for judicial decision, such as 17 whether (1) the legal challenge is to a site-specific action that implements or is 18 consistent with the policy or practice to be challenged, and (2) there is any 19 hardship to the parties from withholding consideration of the issues. Id. at 733–35. 20 This case is ripe for judicial review. The agency formalized the 2019 Forest 21 Plan and Sanpoil Project through APA procedures, and Plaintiff’s challenges 22 became ripe when the agency issued RODs for both agency actions. This case is fit 23 for judicial decision because the Sanpoil Project is a site-specific action governed 24 by the 2019 Forest Plan. There is also a risk of prejudice to Plaintiff in delaying 25 review, as the Sanpoil Project is scheduled to commence this year. 26 2. Exhaustion of Administrative Remedies 27 Section 6912(e) of Title 7 of the United States Code requires a party to 28 exhaust administrative remedies before it brings an action against a federal agency. 1 The issues to be challenged must be raised to the agency first. See 5 U.S.C. § 704; 2 see also 36 C.F.R. Part 215 (establishing agency appeal procedures). Exhaustion 3 arguments are considered on a case-by-case basis. Great Basin Mine Watch v. 4 Hankins, 456 F.3d 955, 968 (9th Cir. 2006). For challenges under the NFMA, the 5 Ninth Circuit has stated that claims raised at the administrative appeal and in the 6 federal complaint must be so similar that the district court can ascertain that the 7 agency was on notice of, and had an opportunity to consider and decide, the same 8 claims raised in federal court. Native Ecosystems Council v. Dombeck, 304 F.3d 9 886, 899 (9th Cir. 2002). 10 Plaintiff submitted objections to the Forest Plan throughout the 11 environmental review and public comment process. On September 23, 2011, 12 Plaintiff objected to the agency’s proposed guidance for large and old trees and 13 potential removal of Eastside Screens. On July 5, 2016, Plaintiff lodged a response 14 to the draft EIS, objecting to the proposed management plan and arguing it should 15 include a standard like Eastside Screens. Plaintiff presented detailed objections in a 16 letter dated November 5, 2018, arguing the draft EIS violated the NFMA by failing 17 to ensure wildlife viability, diversity, and connectivity. In addition, on November 18 6, 2018, Plaintiff submitted comments contending the EIS failed to comply with 19 the NFMA and adequately protect large and old trees; in those comments, Plaintiff 20 again objected to the agency’s decision to eliminate Eastside Screens. 21 Plaintiff exhausted its administrative remedies. Plaintiff placed the agency 22 on notice of its claims thoroughly and consistently during the public comment 23 process. The record demonstrates Plaintiff’s arguments regarding elimination of 24 Eastside Screens, and the agency’s purported failure to satisfy the requirements of 25 the NFMA, were raised with the agency first. The agency had an opportunity to 26 consider and decide those claims prior to this action. They come as no surprise to 27 the agency, and the issues are now properly before the Court. 28 1 Challenges to 2019 Forest Plan 2 1. National Forest Management Act 3 Plaintiff contends the agency violated the NFMA, because the agency failed 4 to explain how the 2019 Forest Plan maintains the viability of old-growth- 5 dependent species. The Court agrees. 6 The NFMA requires the agency to develop regulations to “provide for 7 diversity of plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B). The 8 implementing regulation mandates that fish and wildlife habitat shall be managed 9 to maintain viable populations of existing native and desired non-native vertebrate 10 species.1 36 C.F.R. § 219.19 (1982). It provides that diversity shall be considered 11 throughout the planning process and inventories shall include quantitative data 12 making possible the evaluation of diversity in terms of its prior and present 13 condition. Id. § 219.26 (1982). 14 Forest plans should designate management indicator species whose 15 population changes are believed to indicate the effects of management activities. 16 Id. § 219.19(a), (a)(1) (1982). The agency must estimate the effects of changes in 17 vegetation type, timber age classes, community composition, rotation age, and 18 year-long suitability of habitat related to mobility of management indicator species, 19 and adequately evaluate planning alternatives in terms of both amount and quality 20 of habitat and of animal population trends. Id. § 219.19(a)(1), (2) (1982). 21
22 1 The revised 1982 regulations are applicable. See 36 U.S.C. 219.19 et seq. 23 (1982). The Forest Service adopted NFMA planning regulations in 1982. 47 Fed. 24 Reg. 43,026–43,052 (Sept. 30, 1982). The agency revised these regulations in 25 2012, but included transitional provisions allowing it to apply the 1982 regulations 26 to plans initiated before 2012. 36 C.F.R. § 219.17(b)(3). The Forest Service elected 27 to apply the 1982 regulations to the 2019 Forest Plan, except that it developed the 28 2019 Forest Plan’s monitoring requirements under the 2012 regulations. 1 Courts afford agencies the highest-level of deference in their scientific 2 conclusions, League of Wilderness Defs. Blue Mountains Biodiversity Project v. 3 Allen, 615 F.3d 1122, 1130 (9th Cir. 2010), and independently review the record to 4 determine whether the agency has made a reasoned decision based on its 5 evaluation of the evidence, Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 6 1301 (9th Cir. 2003) (Earth Island I). The Ninth Circuit has approved the use of 7 habitat proxies in place of direct population monitoring for management indicator 8 species. Earth Island Inst. v. U.S. Forest. Serv., 442 F.3d 1174, 1175 (9th Cir. 9 2006) (Earth Island II), abrogated on other grounds by Winter v. Nat. Res. Def. 10 Council, 555 U.S. 7 (2008). The agency can meet the species viability 11 requirements of the NFMA by preserving habitat, but only where both the agency’s 12 knowledge of what quality and quantity of habitat is necessary to support the 13 species and the agency’s method for measuring the existing amount of that habitat 14 are reasonably reliable and accurate. See Native Ecosystems Council v. U.S. Forest 15 Serv., 428 F.3d 1233, 1250 (9th Cir. 2005). The agency is required to support its 16 conclusions that a project meets the requirement of the NFMA with studies that the 17 agency, in its expertise, deems reliable. The agency must also explain the 18 conclusions it has drawn from its chosen methodology, and the reasons it considers 19 the underlying evidence to be reliable. See The Lands Council v. McNair, 537 F.3d 20 981, 994 (9th Cir. 2008). 21 In this case, the agency erred by failing to demonstrate that its data and 22 methodology reliably and accurately supported its conclusions about the viability 23 of old-growth dependent species under each planning alternative, and depicted the 24 amount and quality of habitat. 25 The agency assessed how the six forest planning alternatives would impact 26 the viability of wildlife. The agency analyzed four surrogate species that rely on 27 old-growth habitat—the (1) northern goshawk, (2) pileated woodpecker, 28 (3) American marten, and (4) white-headed woodpecker. The agency did not 1 monitor the species directly, but instead, utilized old-growth habitat as a proxy to 2 monitor their viability. FP 108667; FP 107840. The agency used LiDAR to show 3 late-structure tree data, claiming it could constitute a forest-wide old growth 4 survey. FP 107840. LiDAR is a remote sensing method that uses a pulsed laser to 5 measure ranges and generate three-dimensional information about the shape of the 6 Earth and its surface characteristics. FP 111371. 7 In assessing each alternative’s contribution to the viability of the surrogate 8 species, the EIS concluded that Alternative P provided “High” viability outcomes 9 for the old-growth-dependent species. FP 108680 (Table 183). The EIS 10 incorporated graphs that depict the amount of habitat that will be available over 11 time for the four surrogate species. FP 103356–57. The graphs illustrated that, for 12 all species but the white-headed woodpecker, Alternative P provides worse habitat 13 outcomes. Id. In contrast, the data illustrated the No Action alternative provides 14 more habitat than the selected alternative for three of the surrogate species. Id. The 15 EIS also concluded that the No Action alternative “creates the most late structure 16 of any alternative,” FP 108317, while Alternative P produces the third most late 17 forest structure, FP 108332; FP 108312 (Table 30). 18 However, the EIS concluded that the No Action alternative would not 19 improve the viability outcomes for the surrogate species dependent on old-growth 20 habitat. FP 108687. It found: 21 Overall, alternative P would provide greater protection for LSOF (late successional old forest) habitats than no action, the proposed action and 22 alternatives B, O, and R . . . [and] would improve the viability outcomes for 23 surrogate species that are dependent on LSOF habitats. 24 FP 108687. In its discussion, the agency did not reference its data or explain why 25 Alternative P was chosen considering that data. The agency did not explain how 26 the No Action alternative was projected to create poor outcomes for the surrogate 27 28 1 species based on its effects on habitat, yet its own figures indicated that the No 2 Action alternative produces the most habitat. FP 108687. 3 The agency relies on Appendix B of the associated Wildlife Report to 4 support its claim that Alternative P is superior for old-growth species. FP 103354 5 (Table 14). The Appendix includes a table summarizing the viability outcomes for 6 each alternative. It assigns current and historical viability outcomes for the 7 surrogate species through letter grades. Neither the EIS nor the Wildlife Report 8 describe how the agency came to these scores for each species and action 9 alternative. The agency did not define its methodology for assessing the letter 10 grades, such as what factors it considered and the weight they were given. The 11 grades assigned to each planning alternative lack explanation. 12 The agency failed to explain how its own data supports its conclusions about 13 what alternatives provide the most old-growth habitat for surrogate species. 14 Instead, the agency offered an explanation for its decision that is contrary to the 15 record evidence, in violation of the APA. 16 The NFMA and its implementing regulations require the agency to maintain 17 the viability of diverse wildlife. 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19 18 (1982). Here, the agency did not ensure that the 2019 Forest Plan would maintain 19 viable populations for species dependent on old-growth habitat. It is impossible to 20 assess the accuracy of the agency’s conclusions without a transparent methodology 21 and explanation of how its data supported those conclusions. 22 The agency also did not provide a meaningful assessment of the amount and 23 quality of old-growth habitat, as required by 36 C.F.R. § 219.19(a)(2) (1982). The 24 agency claimed it used LiDAR structure data to perform a forest-wide old growth 25 survey, but it did not explain how the data meets its requirement to describe the 26 effect of its planning alternatives on both the amount and quality of old-growth 27 habitat. In response to public comments on the issue, the record referred to the 28 agency’s evaluation of viability in the Wildlife Report, which does not discuss the 1 amount and quality of habitat and population trends in reaching conclusions about 2 how the planning alternatives would affect species viability. For the foregoing 3 reasons, the agency acted arbitrarily and capriciously when it offered explanations 4 that ran counter to the evidence before the agency and failed to satisfy the 5 requirements of the NFMA. 6 2. National Environmental Policy Act 7 Plaintiff claims the agency violated other requirements of the NEPA. 8 Plaintiff primarily argues that the agency erred when it failed to consider the 9 impact of eliminating Eastside Screens. 10 The NEPA mandates that agencies take a hard look at the environmental 11 consequences of an action. Robertson v. Methow Valley Citizens Council, 490 U.S. 12 332, 350 (1989). The statute’s hard look obligation must involve a discussion of 13 adverse impacts that does not improperly minimize negative side effects. N. Alaska 14 Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006). Agencies are 15 required to respond to all responsible opposing views at appropriate points in the 16 draft and final EIS, 40 C.F.R. § 1502.9, and they must respond explicitly and 17 directly to conflicting views, Earth Island II, 442 F.3d at 1172–73. An agency 18 must address public criticisms of the scientific bases that the final EIS relies upon. 19 See Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1167 (9th 20 Cir. 2003). 21 The 2019 Forest Plan adopted a whole landscape approach, which the 22 agency claims will provide flexibility in responding to climate change impacts. 23 FP 108306. The 2019 Forest Plan replaced Eastside Screens and the 21-inch rule, 24 but still encouraged retention and emphasis of recruitment of individual large trees. 25 Large trees may be removed or destroyed for several reasons, including: 26 • Where trees need to be removed for public health or safety (such as, but not limited to, danger/hazard trees along roads or in developed or administrative 27 sites), 28 1 • Where trees need to be removed to facilitate management of emergency 2 situations such as wildfire response, • Where trees need to be removed to meet, promote, or maintain desired 3 conditions for structural stages, 4 • Where trees need to be removed to control or limit the spread of insect infestation or disease, 5 • Where trees need to be removed where strategically critical to reinforce, 6 facilitate, or improve effectiveness of fuel reduction in wildland-urban interfaces, and 7 • Where trees need to be removed to promote special plant habitats (such as, 8 but not limited to, aspen, cottonwood, whitebark pine). 9 FP 109776–77. The 2019 Forest Plan did not designate a minimum amount of old- 10 growth habitat for preservation. It also provided that, while individual projects 11 should generally be consistent with the forest plan’s guidelines, projects may 12 deviate by showing how the action would be as effective in contributing to the 13 maintenance or attainment of relevant desired conditions and objectives. 14 FP 109905. 15 Plaintiff submitted objections to the draft EIS, claiming the 2019 Forest 16 Plan’s approach to managing old-growth habitats was ambiguous, and its 17 exceptions too flexible to ensure preservation of old-growth forest and species 18 viability on the project-level. Plaintiff argued the 2019 Forest Plan should maintain 19 the 21-inch rule. 20 The agency responded that it believed maintaining the 21-inch rule would 21 reduce the ability to attain the desired future condition of having most vegetation 22 types in late structure, FP 109253, and science now supports a more ecologically 23 based approach to management of old-growth trees, FP 107839. The agency did 24 not provide citations or a response to the specific studies submitted in Plaintiff’s 25 objection, including the Eastside Screens Report. The ROD for the 2019 Forest 26 Plan explained that the agency’s motivation for eliminating the 21-inch rule was to 27 provide adequate management flexibility to respond to emerging resource issues. 28 1 FP 113689. In response to public objections, the agency stated the approach will 2 provide flexible strategies to better integrate old forest conservation goals with 3 other land management objectives—and specifically, to avoid numerous site- 4 specific forest plan amendments to permit individual projects to log trees greater 5 than or equal to 21 inches DBH. FP 107839–40. 6 The agency’s cursory rejection of the science was insufficient to satisfy the 7 requirements of the NEPA. Plaintiff’s public comments raised the initial scientific 8 rationale for adoption of the bright-line rule, as articulated in the Eastside Screens 9 Report. The Eastside Screens Report was not included in the administrative record, 10 and the agency continues to oppose its consideration upon judicial review. Its 11 absence demonstrates that the agency failed consider the scientific rationale for 12 adopting the 21-inch rule before deciding to discard it. The agency did not respond 13 to viewpoints that directly challenged the scientific basis upon which the final EIS 14 rests—and indeed, that was central to it. Ctr. for Biological Diversity, 349 F.3d at 15 1167. In doing so, the agency violated the NEPA. The absence of the Eastside 16 Screens Report also demonstrates that the agency did not consider an important 17 aspect of the issue, as required by the APA. Motor Vehicle Mfrs. Ass’n., 463 U.S. 18 at 43. 19 The agency found that Alternative P would provide for the retention and 20 restoration of late-successional forest structure, but the agency did not consider 21 negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of 22 the exceptions in the new guideline. The NEPA requires the agency to discuss and 23 not improperly minimize negative effects of a proposed action. N. Alaska Envtl. 24 Ctr., 457 F.3d at 975. In this case, the EIS did not assess how often the new 25 guideline’s exceptions will be invoked and how the exceptions may impact the 26 agency’s conclusions about the environmental effects and species viability. The 27 agency acted arbitrarily and capriciously when it failed to meaningfully 28 1 acknowledge and discuss any adverse effects of rescinding the 21-inch rule, in 2 violation of the NEPA and the APA. 3 Challenges to Sanpoil Project 4 Plaintiff brings three challenges to the agency’s approval of the Sanpoil 5 Project. Plaintiff contends the agency violated the NEPA and NFMA when it failed 6 to (1) analyze the environmental impacts of the Sanpoil Project, (2) maintain 7 species viability, and (3) develop an EIS. 8 1. Impacts Analysis 9 The NEPA’s hard look requirement directs agencies to consider all 10 foreseeable direct and indirect impacts. Idaho Sporting Cong. v. Rittenhouse, 305 11 F.3d 957, 973 (9th Cir. 2002). The NEPA regulation requires agencies to assess the 12 direct and indirect effects, as well as the cumulative impact, of their actions on the 13 environment. 40 C.F.R. §§ 1502.16, 1508.25(c). A “cumulative impact” of an 14 action is defined as 15 the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable 16 future actions regardless of what agency (Federal or non-Federal) or person 17 undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a 18 period of time. 19 Id. § 1508.7. A cumulative impacts analysis must be more than perfunctory; it must 20 provide a useful analysis of the cumulative impacts of past, present, and future 21 projects. Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993–94 (9th Cir. 22 2004). 23 The agency is permitted to exercise its discretion and incorporate the 24 expected impact of such a project into the environmental baseline against which 25 the incremental impact of a proposed project is measured. Cascadia Wildlands v. 26 Bureau of Indians Affs., 801 F.3d 1105, 1112 (9th Cir. 2015). With respect to past 27 actions specifically, the agency is not required to exhaustively list and analyze all 28 1 individual past actions or consider the individual effects of those actions to 2 determine the present effects. 36 C.F.R. § 220.4(f). Rather, the agency must 3 determine what information regarding past actions is useful and relevant to the 4 required analysis of cumulative effects. The statutory minima of the NEPA is met 5 where the underlying data base includes approved projects and pending proposals. 6 Cascadia Wildlands, 801 F.3d at 1113. The agency is required to provide a clear 7 explanation of its analysis to enable informed public comment on the project. Id. at 8 1112. 9 In the EA, the agency purported to provide an analysis and description of the 10 identifiable present effects of past actions, to the extent that they are relevant and 11 useful in analyzing effects. AR 06061. The agency also elected to aggregate past 12 projects into an environmental baseline to assess the Sanpoil Project’s impact. The 13 agency catalogued the projects it considered. AR 06061–68 (Appendix A, Tables 14 14 and 15). 15 The agency did not adequately analyze the cumulative impacts of the 16 Sanpoil Project, because it did not discuss past projects’ aggregate effects. The 17 NEPA permits the agency’s environmental baseline approach and provides that an 18 agency need not list and analyze individual past actions. While the agency claims it 19 established an environmental baseline to analyze effects, the EA did not discuss or 20 demonstrate how it aggregated the cumulative impacts of the noted projects, only 21 citing to its catalogue of projects and ultimate perfunctory conclusions. Cascadia 22 Wildlands, 801 F.3d at 1111. The agency did not provide a serious analysis on 23 cumulative impacts from the Sanpoil Project. 24 Related to this issue, Plaintiff claims the agency erred when it did not 25 specify the degree to which the Sanpoil Project will permit removal of trees greater 26 than or equal to 21 inches DBH to meet desired conditions. The 2019 Forest Plan 27 states it prioritizes retention of old growth trees but will destroy and remove trees 28 under flexible exceptions. The agency found in the EIS that there was no threat to 1 species viability based on the assumption the new management approach would 2 better protect old-growth trees. 3 This conclusion was contrary to the evidence. The Sanpoil Project EA did 4 not specify the frequency of which the new guideline’s exceptions would be 5 invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth 6 trees. The agency is not required to catalogue specific trees that will be removed, 7 but in this case, the agency was required to provide site-specific details at the 8 project planning stage to provide a sufficient picture of the Sanpoil Project’s 9 cumulative effects. See WildEarth Guardians, 920 F.3d at 1257. Without 10 sufficiently specific information about site impacts, the Sanpoil Project’s impact to 11 old-growth trees and their dependent species is speculative. 12 The agency states the following in its internal guidance on compliance with 13 the NEPA: “If the Agency does not know where or when an activity will occur or 14 if it will occur at all[,] then the effects of that action cannot be meaningfully 15 evaluated.” See U.S. FOREST SERVICE, FOREST SERVICE HANDBOOK, FSH 16 1909.15.01(1). That is the case here. In failing to consider the cumulative and site- 17 specific effects of the Sanpoil Project, the agency did not comply with the NEPA. 18 2. Viability 19 Plaintiff avers the agency failed to ensure that the Sanpoil Project will 20 maintain species viability, as the agency failed to adequately assess the Sanpoil 21 Project’s impacts on (1) gray wolves and wolverine, (2) sensitive bat species, and 22 (3) sensitive bird and invertebrate species. The same legal standards noted above 23 regarding effects analyses under the NEPA and species viability under the NFMA 24 apply. 25 a. Gray Wolves and Wolverine 26 The agency concluded that the Sanpoil Project “may impact” individual 27 wolves but is not likely to lead to loss of viability. AR 06046. The agency’s 28 analysis of the Sanpoil Project’s effects on gray wolves is contained in two 1 sentences that relate to impacts on big game. Id. Otherwise, the agency referred to 2 its grizzly bear analysis in its assessment of direct and cumulative impacts on the 3 wolf habitat and population. Id.; see also AR 06308. The agency also found the 4 Sanpoil Project is not likely to jeopardize the existence of wolverines, and 5 therefore, would not lead to loss of species viability. AR 06044; AR 06298. The 6 agency again referred to its grizzly bear analysis for its consideration of the 7 adequacy of wolverine habitat. AR 06297. The EA did not explicitly discuss or 8 examine any negative direct effects to wolverine. 9 In this case, the agency erred when it failed to analyze the Sanpoil Project’s 10 effects on the gray wolf population. The agency’s cursory reference to its effects 11 analysis on grizzly bears does not constitute an adequate hard look under the 12 NEPA, because the agency did not provide an adequate justification for tying the 13 analyses together. The agency claims that reference to its grizzly bear assessment 14 is appropriate because both species, at least in part, prey on big game. However, 15 the agency did not determine that the species’ diets were identical and did not 16 consider or acknowledge any differences between the species that may alter the 17 agency’s analyses and conclusions regarding viability. 18 The agency also erred when it failed to meaningfully assess the Sanpoil 19 Project’s impact on wolverine. The agency repeated its error by citing the grizzly 20 bear assessment to determine whether there were impacts to wolverine habitat and 21 population. The agency did not acknowledge whether there were any negative 22 direct effects to wolverine from the Sanpoil Project, instead providing only a brief 23 conclusion of viability. By failing to analyze the Sanpoil Project’s specific impacts 24 on the gray wolf and wolverine populations, the agency did not comply with the 25 NEPA’s hard look requirement and NFMA’s related mandate that the agency 26 maintain species viability. 27 28 1 b. Bat Species 2 The agency concluded the Sanpoil Project was not likely to lead to a loss of 3 viability of sensitive bat species, including the little brown bat, Townsend’s big- 4 eared bat, and pallid bat. AR 06046. The agency stated that it was unable to do a 5 viability assessment for the Townsend’s big-eared bat or the pallid bat due to a 6 lack of knowledge to adequately map habitat. AR 06259-60 (Table 1). It found the 7 Sanpoil Project could decrease roosting sites for bats. AR 06264. The agency 8 specifically noted that the highest conservation priority for the Townsend’s bat is 9 to reduce human disturbance and destruction of roost sites. AR 06264; AR 06310. 10 The agency’s analysis on the viability of sensitive bat species was deficient. 11 The agency reasoned that the Sanpoil Project was not likely to lead to a loss of 12 viability of sensitive bat species, because activities would either be far enough 13 removed from known bat roost sites to have no effect on species or would be timed 14 to avoid periods that the sites would be occupied. AR 06046. The agency need not 15 have a complete census of where bats live in the forest; however, it is unclear how 16 the agency can ensure that the Sanpoil Project activities will not affect bat viability 17 by avoiding roosting sites, when it admits it does not have sufficient information 18 about those sites to map the species’ habitat. The agency’s conclusion that the 19 Sanpoil Project would not lead to a loss of viability for bat species depends on the 20 agency’s ability to avoid bat roosting sites, which it admits it is unable to locate. 21 The record indicates the agency did not make a reasoned decision on viability 22 based on the evidence it had. Earth Island I, 351 F.3d at 1301. In failing to provide 23 a reasoned explanation of the conclusions it drew from the data available, the 24 agency violated the NEPA and NFMA. The Lands Council v. McNair, 537 F.3d 25 981, 994 (9th Cir. 2008). 26 c. Bird and Invertebrate Species 27 The agency studied the impacts of the Sanpoil Project on the Northern 28 goshawk, an old-growth-dependent species. The agency noted that the cumulative 1 effects area for the goshawk is the entire Colville National Forest, AR 06305, and 2 that commercial logging has the greatest potential to reduce goshawk nesting and 3 foraging habitat, AR 6304. The agency estimated that the Sanpoil Project will 4 reduce potential goshawk habitat by nearly 5,000 acres, or 17% of the habitat in 5 the Sanpoil Project area. AR 06304. Nonetheless, the agency concluded the 6 Sanpoil Project would not lead to a loss of viability for the species. AR 06305. 7 The agency erred by not including a meaningful discussion of logging 8 projects that, in conjunction with the Sanpoil Project, would impact the Northern 9 goshawk habitat and population. The agency determined that commercial logging 10 has the greatest potential to impact goshawk habitat. The agency found that other 11 vegetation restoration projects would contribute to effects on the goshawk, 12 AR06045 (Table 11), but the agency considered only a handful of approved and 13 proposed projects in its effects assessment. AR 06305; AR 06317–22. The NEPA 14 requires the agency to consider the cumulative environmental effects of past, 15 present, and reasonably foreseeable future actions. See 40 C.F.R. § 1508.1. The 16 Sanpoil Project itself is estimated to dramatically reduce forest-wide habitat, yet 17 the agency declined to meaningfully consider a number of present and future 18 logging and restoration projects that will have a cumulative impact on the Northern 19 goshawk. 20 As to sensitive invertebrates, the agency also concluded that direct and 21 cumulative impacts of the Sanpoil Project would not lead to a loss of viability. The 22 EA determined that less mobile sensitive invertebrates could be killed, that food 23 plants could be damaged, and the increase in grazing has the potential to remove 24 forage and host plants and alter the integrity of meadows and riparian habitats. AR 25 06046 (Table 11). One noted invertebrate species is the Western bumblebee. 26 The agency further erred by failing to support its conclusions regarding the 27 viability of the Western bumblebee. While the agency concluded the Sanpoil 28 Project would not impact viability, the agency did not consider any specific effects 1 of the Sanpoil Project on the Western bumblebee. The agency’s conclusion lacked 2 adequate explanation and reasoning and is insufficient to meet the mandates of the 3 NEPA and NFMA. 4 3. Development of an EIS 5 The agency concluded the Sanpoil Project would not have significant effects 6 on the quality of the human environment, and therefore, an EIS need not be 7 prepared under the NEPA. AR 06784–95. 8 Before undertaking any major federal action significantly affecting the 9 quality of the human environment, the NEPA requires an agency to prepare a 10 detailed EIS. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. To decide whether an 11 EIS is necessary, an agency must first prepare a shorter, less comprehensive 12 document called an EA. Id. § 1508.9. An EA must briefly provide sufficient 13 evidence and analysis for determining whether to prepare an environmental impact 14 statement. Id.; see also Weldon, 697 F.3d at 1053. If the EA concludes the 15 proposed action will not have a significant effect on the environment, an EIS is not 16 necessary, and the agency may issue a “Finding of No Significant Impact” and 17 proceed with the action. 40 C.F.R. § 1508.13. 18 In determining whether a project has a significant effect on the environment, 19 and thus warrants creation of an EIS, agencies must evaluate both the context and 20 intensity of an action to determine the significance of its impact. 40 C.F.R. 21 § 1508.27(a), (b) (2005). Context refers to the significance of the action with 22 regard to society as a whole, the affected region, the affected interests, and the 23 locality. Id. § 1508.27(a). To assess an action’s intensity, the agency should 24 analyze beneficial and adverse factors, unique characteristics of the geographic 25 areas, the degree to which the effects are likely to be highly controversial, highly 26 uncertain or unknown risks, and the degree to which the action may establish a 27 precedent for future actions with significant effects. Id. § 1508.27(b)(1)–(7). The 28 agency must also consider whether an action is related to other actions with 1 individually insignificant but cumulatively significant impacts, among other things. 2 Id. § 1508.27(b)(7). Courts have found that the presence of any one of these 3 factors, or a combination of multiple factors, may warrant a significant impact to 4 the environment, necessitating an EIS. Ctr. for Biological Diversity v. Nat’l Hwy. 5 Safety Admin., 538 F.3d 1172, 1220 (9th Cir. 2008). 6 Considering the context and intensity of the Sanpoil Project, the agency was 7 required to develop an EIS. The Sanpoil Project creates uncertain risks to old- 8 growth forests and the wildlife dependent on them. The action is significant 9 considering the context and history of the Colville National Forest. In addition, the 10 Sanpoil Project sets a precedent for future actions that utilize the new old-growth 11 guideline, each of which may be individually insignificant, but create a 12 cumulatively significant impact when applying the new guideline. 13 The lack of quantified or detailed information about the Sanpoil Project’s 14 impacts in this respect creates substantial questions about whether the action will 15 have a cumulatively significant environmental impact. Bark v. U.S. Forest Serv., 16 958 F.3d 865, 873 (9th Cir. 2020). The Sanpoil Project is also highly controversial 17 due to the same questions about its size and nature and effect of the action on old- 18 growth dependent species. See id. at 869–70. The record indicates the effects on 19 balance are likely to be “significant”—and at the very least, those effects and risks 20 are unknown, mandating an EIS. 21 CONCLUSION 22 The NEPA mandates that federal agencies consider the environmental 23 impacts of their decisions. The NFMA requires that the agency maintain the 24 viability of diverse species in National Forests. In approving the 2019 Forest Plan 25 and Sanpoil Project, the agency failed to meaningfully consider the effects of 26 eliminating Eastside Screens and the 21-inch rule, and its cumulative effect on old- 27 growth trees and species dependent on them in the Colville National Forest. 28 1 The agency is empowered by Congress to alter forest management policy, and it is not the role of this Court to select an appropriate action on behalf of the 3|| agency. However, any decision of the agency must be within the confines of the substantive and procedural mandates of the NFMA and NEPA. For the reasons 5|| expressed above, the agency’s actions were arbitrary and capricious under the APA. The relevant portions of the 2019 Forest Plan and Sanpoil Project are vacated and remanded to the agency. 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff's Motion for Leave to File Extra Record Evidence, ECF No. 46, is GRANTED. The Eastside Screens Report, ECF No. 47-1, is ACCEPTED into the record. 12 2. Plaintiff's Motion for Summary Judgment, ECF No. 48, is 13|| GRANTED, and Defendants’ Motion for Summary Judgment, ECF No. 54, is DENIED. 15 3. The parties are directed to meet and confer and notify the Court withi thirty (30) days regarding what the next steps should be for this case, if any. 17 4. The Clerk of Court is directed to ENTER JUDGMENT against 18|| Defendants and in favor of Plaintiff. 19 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this Order and provide copies to counsel. 21 DATED this 21st day of June 2023. 22 23 24 Sfuleyll Festa bya Ee 27 Stanley A. Bastian 28 Chief United States District Judge
ARNER CRANTING DT AINTIEE’S MOTION BOAR CIIVINIARYV