1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KLAMATH-SISKIYOU WILDLANDS CENTER; ENVIRONMENTAL 12 PROTECTION INFORMATION No. 2:18-cv-02785-TLN-DMC CENTER; and KLAMATH FOREST 13 ALLIANCE, 14 ORDER Plaintiffs, 15 v. 16 PATRICIA A. GRANTHAM, Klamath 17 National Forest Supervisor, and UNITED STATES FOREST SERVICE, 18 Defendants, 19 and 20 AMERICAN FOREST RESOURCE 21 COUNCIL, an Oregon non-profit corporation, 22 Intervenor Defendant. 23
24 25 This matter is before the Court on three motions for summary judgment: (1) Klamath- 26 Siskiyou Wildlands Center’s, Environmental Protection Information Center’s, and Klamath 27 Forest Alliance’s (collectively, “Plaintiffs”) Motion for Summary Judgment (ECF No. 88); (2) 28 Patricia A. Grantham’s and the United States Forest Service’s (collectively, “Federal 1 Defendants”) Cross-Motion for Summary Judgment (ECF No. 91); and (3) American Forest 2 Resource Council’s (“Intervenor Defendant”) Cross-Motion for Summary Judgment (ECF No. 3 92).1 For the reasons set forth below, the Court hereby GRANTS Federal Defendants’ and 4 Intervenor Defendant’s cross-motions and DENIES Plaintiffs’ motion. 5 I. FACTUAL AND PROCEDURAL BACKGROUND 6 A. Seiad-Horse Risk Reduction Project 7 Plaintiffs brought this action to challenge a post-wildfire logging and restoration project 8 developed by Federal Defendants on the Klamath National Forest. (ECF No. 1 at 2–3, 12.) In 9 2017, the Abney fire began in southern Oregon before burning south, crossing the Oregon- 10 California border, and burning approximately 10,800 acres in the Klamath National Forest. 11 SHAR_A_0015.2 Much of the National Forest area affected by the Abney fire burned at high 12 severity, killing nearly all the trees in the fire’s path. Id. This severely burned area included 13 portions of the National Forest designated as a late-successional reserve — a land use designation 14 prioritizing conservation due to the presence of old-growth forest and old-growth forest 15 dependent wildlife. Id.; see SHAR_I_04400 (land allocations); see generally Oregon Nat. Res. 16 Council Fund v. Brong, 492 F.3d 1120, 1125–26 (9th Cir. 2007) (discussing the land- 17 management structure of the Northwest Forest Plan). 18 In the aftermath of the fire, Federal Defendants developed the Seiad-Horse Risk 19 Reduction Project (the “Project”) to “reduce safety hazards along roads and in concentrated 20 stands,3 reduce fuels adjacent to private property, reduce the risk of future large-scale high 21 severity fire losses of late successional habitat, and place large woody debris in streams for fish 22 1 The Court will refer to Federal Defendants and Intervenor Defendant collectively as 23 “Defendants.”
24 2 These citations refer to the administrative record filed with the Court on March 25, 2019. (See ECF No. 59.) Citations to the administrative record will adopt the pagination used by the 25 record. 26 3 “Stands” are groupings of trees of similar size, species, and stocking. See generally 27 Cascadia Wildlands v. Bureau of Land Mgmt., No. 6:12-cv-00095-AA, 2012 WL 6738275 (D. Ore. Dec. 21, 2012) (adjudicating a challenge to a BLM method of calculating the age of stands 28 under the Northwest Forest Plan). 1 and wildlife habitat restoration.” SHAR_A_00009. The project area encompasses nearly 11,000 2 acres of National Forest land located within the Seiad Creek-Klamath River and Horse Creek- 3 Klamath river watersheds, including portions of the Johnny O’Neil late successional reserve. Id. 4 at 00009, 00054, 00158. Of several project alternatives proposed and considered, on September 5 28, 2018, Federal Defendants adopted “Alternative 2,” which called for removing fire-killed and 6 damaged trees along roads, reducing fuels adjacent to private property, salvage harvesting fire- 7 killed and dying trees,4 planting new trees, conducting low-intensity burning, developing 8 fuelbreaks, and creating fish habitat. Id. at 00157. Since the Project was adopted, all hazard tree 9 removal and post-fire salvage harvest authorized by the Project has either been completed or 10 terminated. (ECF No. 91-2 ¶¶ 2–4; ECF No. 92-2 ¶¶ 2–5.)5 11 B. Statutory and Regulatory Framework 12 The National Forest Management Act (“Forest Act”) requires the United States Forest 13 Service to develop and comply with forest plans for each unit of the National Forest System. 16 14 U.S.C. § 1604(a), (i). “These plans operate like zoning ordinances, defining broadly the uses 15 allowed in various forest regions, setting goals and limits on various uses (from logging to road 16 construction), but do not directly compel specific actions . . . .” Citizens for Better Forestry v. 17 U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). The Forest Service developed the 18 Klamath National Forest Land and Resource Management Plan to govern agency actions on the 19 Klamath National Forest. See SHAR_I_04106–04387. Regionally, the Northwest Forest Plan 20 provides guidance for agency action on federal land throughout the range of the northern spotted 21 owl — that is, Washington, Oregon, and Northern California. See SHAR_I_04388–04540. The 22 4 “Salvage” is the removal of trees following a “stand-replacing event such as those caused 23 by wind, fires, insect infestations, volcanic eruptions, or diseases.” SHAR_I_04450.
24 5 Plaintiffs do not object to the declaration of Defendant Patricia Grantham or the second declaration of Cade Crawford or provide evidence creating a genuine dispute as to whether more 25 logging may occur under the Project. The third declaration of George Sexton does not create a genuine dispute because it does not contain evidence the unlogged trees within the authorized 26 units may be logged without a new agency decision. (See ECF No. 93-1 ¶¶ 15–16; ECF No. 91-2 27 ¶¶ 2–4.) In addition, Mr. Sexton’s declaration only provides evidence of the Project’s status on October 9, 2019. (ECF No. 93-1 ¶ 15.) Federal Defendants provide evidence the last logging 28 activities were concluded in March 2020. (ECF No. 91-2 ¶ 3.) 1 Aquatic Conservation Strategy is a component of the Northwest Forest Plan. See 2 SHAR_I_04412–37. The Klamath Forest Plan incorporates “[d]irection from the [Northwest 3 Forest Plan] for management of habitat for late-successional and old growth forest related 4 species.” SHAR_I_04121. Forest plans are implemented through site-specific projects. Native 5 Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). The Forest Service’s failure 6 to comply with the provisions of a forest plan is a violation of the Forest Act. Native Ecosystems 7 Council v. U.S. Forest Serv., 418 F.3d 953, 961 (9th Cir. 2005). 8 The National Environmental Policy Act (“Environmental Policy Act”) imposes procedural 9 requirements on federal agencies to consider the environmental impacts of their actions. 42 10 U.S.C. §§ 4321, 4331. The purpose of the Environmental Policy Act is to ensure federal agencies 11 take a “hard look” at the consequences of their actions on the environment. Robertson v. Methow 12 Valley Citizens Council, 490 U.S. 332, 350–51 (1989). It does not dictate the substantive results 13 of agency decision making. Id. at 350. Under the Environmental Policy Act, agencies must 14 prepare an environmental impact statement when a major federal action may significantly affect 15 the quality of the environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4(a)(1). 16 C. Procedural History 17 Plaintiffs filed this action on October 16, 2018, alleging the portions of the Project 18 authorizing hazard tree removal and salvage logging did not comply with the Northwest Forest 19 Plan and alleging Federal Defendants violated the Environmental Policy Act by failing to prepare 20 an environmental impact statement before implementing the project. (ECF No. 1; ECF No. 88 at 21 9.) On December 5, 2018, the Court permitted Intervenor Defendant to intervene as a matter of 22 right pursuant to Federal Rule of Civil Procedure 24(a)(2). (ECF No. 37.) After a hearing on 23 January 10, 2019, the Court granted Plaintiffs’ motion for a preliminary injunction on January 25, 24 2019, restraining Federal Defendants from implementing the logging portions of the Project. 25 (ECF No. 52.) On May 31, 2019, the Court stayed the injunction pending Defendants’ 26 interlocutory appeal of the Court’s January 25, 2019 Order. (ECF No. 74.) The Ninth Circuit 27 Court of Appeals reversed the grant of the preliminary injunction on November 22, 2019. (ECF 28 No. 82.) 1 Pursuant to the Court’s December 9, 2019 Order, Plaintiffs filed their instant motion on 2 February 26, 2020. (ECF No. 87.) Pursuant to the Court’s March 25, 2020 Order, Defendants 3 filed their instant cross-motions and oppositions to Plaintiffs’ motion on April 10, 2020. (ECF 4 Nos. 91, 92.) Plaintiffs replied on May 8, 2020. (ECF No. 93.) Defendants replied on May 29, 5 2020. (ECF Nos. 94, 95.) 6 II. STANDARD OF LAW 7 Challenges to agency action under the Forest Act and Environmental Policy Act are 8 governed by the Administrative Procedure Act (“APA”). Earth Island Inst. v. U.S. Forest Serv., 9 697 F.3d 1010, 1013 (9th Cir. 2012). Under the APA, a court should only set aside agency action 10 if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 11 U.S.C. § 706(2)(A). To determine whether the agency has made a “clear error of judgment” that 12 would render its action “arbitrary and capricious” the court must review the administrative record 13 the agency created to support its conclusions. Lands Council v. McNair, 537 F.3d 981, 993 (9th 14 Cir. 2008) (en banc), overruled on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 15 U.S. 7 (2008). An agency may not “rel[y] on factors which Congress has not intended it to 16 consider, entirely fail[] to consider an important aspect of the problem, offer[] an explanation for 17 its decision that runs counter to the evidence before the agency, or [offer an explanation that] is so 18 implausible that it could not be ascribed to a difference in view or the product of agency 19 expertise.” Id. (quoting Motor Vehicle Mfrs. Assn., Inc. v. State Farm Mut. Auto Ins. Co. (“State 20 Farm”), 463 U.S. 29, 43 (1983). The standard is deferential, especially where a court is 21 reviewing an agency’s predictive judgments about areas within the agency’s field of expertise. 22 Id. Further, while a court may not supply a rationale where an agency fails to do so, it should 23 “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” 24 State Farm, 463 U.S. at 43. 25 Absent the errors in reasoning described above, the Forest Service’s determination that a 26 particular project is consistent with the relevant plan “is accorded substantial deference” by a 27 reviewing court. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). 28 Further, the Forest Service’s interpretation of a provision of its own forest plan is entitled to Auer 1 deference where the provision being interpreted is ambiguous. Native Ecosystems Council v. 2 Marten, 883 F.3d 783, 793 (9th Cir. 2018) (referring to the deference afforded to agency 3 interpretations of their own regulations articulated in Auer v. Robbins, 519 U.S. 452 (1997) and 4 further defined in Kisor v. Wilkie, 139 S. Ct. 2400 (2019)). 5 “[S]ummary judgment is an appropriate mechanism for deciding the legal question of 6 whether the agency could reasonably have found the facts as it did.” Occidental Eng’g Co. v. 7 INS, 753 F.2d 766, 770 (9th Cir. 1985). Review is generally “limited to the administrative record 8 on which the agency based the challenged decision.” Fence Creek Cattle Co. v. U.S. Forest 9 Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). 10 III. ANALYSIS 11 Plaintiffs argue the Project violates: (1) the Forest Act because the Project does not 12 comply with the Aquatic Conservation Strategy or Northwest Forest Plan; and (2) the 13 Environmental Policy Act because the Federal Defendants did not prepare an environmental 14 impact statement. (ECF No. 88 at 12–29.) In their combined cross-motions and opposition briefs 15 to Plaintiffs’ motion, Federal Defendants and Intervenor Defendant argue: (1) Plaintiffs claims 16 are moot because the challenged portions of the Project have been completed; (2) Plaintiffs do not 17 have standing to challenge the ongoing roadside hazard removal; and (3) the Project complied 18 with the Aquatic Conservation Strategy, Northwest Forest Plan, and Environmental Policy Act. 19 (ECF Nos. 91, 92.) The Court will first determine whether it has jurisdiction over Plaintiffs’ 20 claims before addressing each claim in turn. 21 A. Jurisdiction 22 i. Mootness 23 Defendants argue Plaintiffs’ action is moot because the logging activities Plaintiffs 24 challenge are complete or have been terminated. As such, there is no controversy for the Court to 25 resolve, and it can provide no effective relief. (ECF No. 91-1 at 12–13; ECF No. 92-1 at 11–14.) 26 In opposition, Plaintiffs argue: (1) their action is still live because there remain noncommercial 27 28 1 aspects of the project yet to be implemented; (2) Federal Defendants have not completed snag6 2 removal on 612 acres authorized under the plan; (3) the Court may order remedial and 3 prospective injunctive relief; and (4) Plaintiffs’ request for declaratory relief remains active. 4 (ECF No. 93 at 7–10.) In reply, Federal Defendants argue: (1) Plaintiffs may not expand their 5 challenge to include the noncommercial portions of the Project to evade mootness after expressly 6 limiting it to the salvage logging and roadside hazard treatment elements; (2) Defendant Patricia 7 Grantham’s declaration establishes the 612 unlogged acres authorized under the Project will not 8 be logged, and, if they are, such action would require a separate authorization; (3) remedial and 9 prospective relief is inappropriate under the APA; and (4) Plaintiffs’ claim for declaratory relief 10 does not establish a live controversy. (ECF No. 94 at 6–10.) Intervenor Defendant makes similar 11 arguments. (See ECF No. 95 at 6–10.) 12 Federal courts do not have jurisdiction “to give opinions upon moot questions or abstract 13 propositions, or to declare principles or rules of law which cannot affect the matter in issue in the 14 case before [them].” Church of Scientology v. U.S., 506 U.S. 9, 12 (1992) (citation omitted). In 15 deciding whether a case is moot in the context of a challenge to a federal agency’s action 16 managing federal land “the question is not whether the precise relief sought at the time the 17 application for an injunction was filed is still available. The question is whether there can be any 18 effective relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244–45 (9th Cir. 1988). The 19 party challenging the Court’s jurisdiction bears the burden of demonstrating the absence of any 20 relief. S. Or. Barter Fair v. Jackson Cnty., 372 F.3d 1128, 1134 (9th Cir. 2004). The burden is 21 heavy, especially so in environmental actions. Cantrell v. City of Long Beach, 241 F.3d 674, 678 22 (9th Cir. 2001) (referring to challenges to agency decision-making under the Environmental 23 Policy Act). 24 Plaintiffs’ Environmental Policy Act claim is not moot because the Court could order 25 Federal Defendants to issue an environmental impact statement at any time. See Wild Wilderness 26 v. Allen, 871 F.3d 719, 725 (9th Cir. 2017); West v. Sec’y of Dep’t of Transp., 206 F.3d 920, 925 27 6 “Snags” are standing dead trees. See generally Brong, 492 F.3d 1120 (adjudicating a 28 challenge to a BLM logging project’s compliance with the Northwest Forest Plan). 1 (9th Cir. 2000). 2 Although judicial review under the APA is traditionally limited, see Camp v. Pitts, 411 3 U.S. 138, 143 (1973) (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)), the Ninth Circuit has 4 reasoned that inadequate agency reasoning in a limited portion of an environmental management 5 decision can affect an agency’s subsequent actions. See, e.g., Oregon Nat. Res. Council v. U.S. 6 Bureau of Land Mgmt., 470 F.3d 818, 821 (9th Cir. 2006) (“[T]he absence of [proper reasoning] 7 affected, or at least could have affected, not only the logging decision but also the post-logging 8 mitigation decision. The absence of the appropriate ‘hard look’ analysis thus has present 9 consequences.”). Thus, where remedial action or mitigation measures are ongoing or possible, 10 even where the challenged action has been completed, federal courts retain jurisdiction. See id 11 (citing Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1157–58 (9th Cir. 2006), Neighbors 12 of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1066 (9th Cir. 2002)); see also Northwest Envtl. 13 Def. Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988) (“The fact that the alleged violation has 14 itself ceased is not sufficient to render a case moot. As long as effective relief may still be 15 available to counteract the effects of the violation, the controversy remains live and present.”). 16 So long as the complaint makes “a broad request for such other relief as the court deemed 17 appropriate” and some effective relief exists, a court retains jurisdiction. Neighbors of Cuddy 18 Mountain, 303 F.3d at 1066 (discussing Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 19 1012 (9th Cir. 1989)). 20 Here, Plaintiffs request the type of broad relief distinguished in Headwaters and discussed 21 in Neighbors of Cuddy Mountain. In addition to declaratory relief, an injunction, and costs, 22 Plaintiffs included in their Complaint a request for “such other and further relief as the Court 23 deems just and equitable.” (ECF No. 1 at 20.) Further, as in Neighbors of Cuddy Mountain, 24 remedies for the alleged harm of the timber sale remain available. 25 Although of course the logged trees cannot be brought back, the court . . . might order other measures to help mitigate the damage caused 26 by the sale. For instance, it could order [Federal Defendants] to study the sale’s impacts on species viability, and, if necessary, to mitigate 27 those impacts in both the area of the sale and elsewhere in the forest. If warranted, it might order [Federal Defendants] to adjust future 28 timber plans to compensate for this allegedly unlawful one. Or, the 1 remedy could take the form of a more direct species population intervention, such as monitoring the birds’ population trends and 2 developing, if necessary, artificial habitats for their recovery.
3 4 Neighbors of Cuddy Mountain, 303 F.3d at 1066 (citation omitted). 5 The Court sees no difference between binding precedent such as Neighbors of Cuddy 6 Mountain and Plaintiffs’ action, and Defendants make no effort to distinguish such cases. 7 Therefore, the Court finds the case is not moot. 8 ii. Standing 9 Intervenor Defendant argues Plaintiffs do not have standing to challenge roadside hazard 10 removal ongoing at the time the parties submitted briefing because Plaintiffs do not specifically 11 allege any harm from that element of the Project. (ECF No. 92-1 at 13–14.) Plaintiffs submit the 12 declarations of George Sexton, the Conservation Director for Plaintiff Klamath-Siskiyou 13 Wildlands Center; Kimberly Baker, a Public Land Advocate for Plaintiff Environmental 14 Protection Information Center; and Luke Ruediger, a landowner near the Klamath National Forest 15 and the Conservation Director for Plaintiff Klamath Forest Alliance’s Siskiyou Field Office, to 16 establish standing. (ECF Nos. 88-2, 88-3, 88-4; ECF No. 93 at 12 n.5.) Plaintiffs do not provide 17 any argument on this issue.7 18 Plaintiffs must demonstrate standing to invoke federal jurisdiction. Lujan v. Defenders of 19 Wildlife, 504 U.S. 555, 561 (1992). Such a showing requires: (1) an injury in fact — “an invasion 20 of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, 21 not conjectural or hypothetical”; (2) causation; and (3) a likelihood the injury will be redressed by 22
23 7 Both Plaintiffs and Federal Defendants briefly address standing in footnotes. (ECF No. 91-1 at 12 n.2; ECF No. 93 at 12 n.5.) “A footnote is the wrong place for substantive arguments 24 on the merits of a motion.” First Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F. Supp. 2d 929, 935 (N.D. Cal. 2008); cf. Foti v. McHugh, 247 Fed. Appx. 899, 901 n.2 (9th Cir. 25 2007) (holding a party waived an argument presented “[i]n a footnote to their counseled . . . brief”); Hilao v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996) (“The summary mention of 26 an issue in a footnote, without reasoning in support of the appellant’s argument, is insufficient to 27 raise the issue on appeal.”). The Court’s jurisdiction is not a tangential issue to be relegated to a footnote without substantive argument. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 28 (1992) (referring to standing as an “irreducible constitutional minimum”). 1 a favorable decision. Id. at 560–61 (citations and internal quotation marks omitted). Intervenor 2 Defendant challenges only the first element. (ECF No. 92-1 at 13–14.) “A plaintiff must 3 demonstrate standing for each claim he or she seeks to press and for each form of relief sought.” 4 Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). 5 Mr. Sexton states in his declaration he enjoys visiting “naturally recovering post-fire 6 forests” on the Klamath National Forest, including the Project area. (ECF No. 88-2 ¶¶ 13–15.) 7 Specifically, Mr. Sexton states he enjoys and values the “unique plant community” present in the 8 Project area. (Id. at ¶¶ 27–29.) Further, he writes articles for newspapers and newsletters about 9 such visits. (Id. at ¶ 23.) Ms. Baker states in her declaration she “obtain[s] personal and 10 professional enjoyment and fulfillment when visiting naturally recovering fire-affected forests 11 and watersheds on the Klamath National Forest that have not been impacted by industrial 12 logging,” including the “yarding and hauling of trees.” (ECF No. 88-3 ¶ 9.) Mr. Ruediger states 13 in his declaration he lives only five miles from the Project, writes and blogs about the area, and 14 leads educational hikes within the Project area. (ECF No. 88-4 ¶¶ 1, 11, 12.) Thus, Plaintiffs’ 15 declarants have financial, recreational, and aesthetic interests in the ecological health of the 16 Project area. Plaintiffs allege the roadside hazard treatments as well as the risk reduction salvage 17 will unlawfully worsen the ecological health of the Project area in several ways. (ECF No. 1 ¶¶ 18 80, 83, 85, 93–100, 117, 122.) Therefore, to the extent Plaintiffs allege the hazard clearing 19 element of the Project contributes to a less healthy ecosystem within the Klamath National Forest, 20 Plaintiffs’ declarants adequately demonstrate cognizable injury. 21 B. National Forest Management Act Claims 22 i. Compliance with the Aquatic Conservation Strategy 23 Plaintiffs argue the Project will increase sedimentation in the streams within the watershed 24 area contrary to Objectives 4, 5, and 6 of the Aquatic Conservation Strategy, a provision of the 25 Northwest Forest Plan, and therefore is a violation of the Forest Act. (ECF No. 88 at 12–17.) In 26 opposition, Defendants argue the Project complies with the Aquatic Conservation Strategy. 27 Federal Defendants argue the Project complies because Defendant Forest Service found its 28 cumulative effects would help restore the biological and physical processes and improve the 1 conditions of the watersheds within the Project area. (ECF No. 91-1 at 13–18.) Intervenor 2 Defendant argues Defendant Forest Service considered the short-term effects of the project and 3 the agency’s interpretation of the Aquatic Conservation Strategy warrants deference; and the 4 Aquatic Conservation Strategy does not prohibit projects whose impacts fall outside the range of 5 natural variation. (ECF No. 92-1 at 14–19.) 6 In reply, Plaintiffs claim Federal Defendants provide no authority for their conclusion the 7 Aquatic Conservation Strategy permits short-term detrimental effects in pursuit of long-term 8 compliance and argue the Project impermissibly relies on mitigation or planned restoration as a 9 substitute for preventing habitat degradation. (ECF No. 93 at 12–15.) Federal Defendants argue 10 the plain text of the Aquatic Conservation Strategy permits those projects that will either maintain 11 water quality or lead to improved quality in the long term, the project will improve the area 12 watersheds in the long term, and the latter contention merits deference. (ECF No. 94 at 11–14.) 13 Finally, Intervenor Defendant argues the Court must defer to Defendant Forest Service’s 14 judgments that the Project would only cause minor, temporary increases in sediment and that such 15 transitory increases comply with the Aquatic Conservation Strategy. (ECF No. 95 at 12–14.) 16 The Aquatic Conservation Strategy “provide[s] guidance for situations not specifically 17 covered by the standards and guidelines [in the Northwest Forest Plan].” SHAR_I_04404. This 18 “clarification” is accomplished through the Aquatic Conservation Strategy “Objectives.” Id. To 19 conclude a project complies with the objectives, “the [agency] analysis must include a description 20 of the existing condition, a description of the range of natural variability of the important physical 21 and biological components of a given watershed, and how the proposed project . . . maintains the 22 existing condition or moves it within the range of natural variability.” Id. at 04413. Actions that 23 do not maintain the existing condition or lead to improved conditions in the long term should not 24 be implemented. Id. The Aquatic Conservation Strategy permits some logging. Id. at 04411 25 (“Direct silvicultural management is appropriate following disturbances such as extensive, high- 26 severity fires.”). However, an agency may not use mitigation or restoration as a substitute for 27 preventing habitat degradation. Id. at 04474. Plaintiffs specifically argue the Project does not 28 comply with the objectives relating to water quality, sediment, and in-stream flows and uses the 1 ongoing restoration of “legacy treatment sites” to restore or mitigate degradation caused by the 2 Project. (ECF No. 88 at 12–17.)8 3 The parties dispute whether the Aquatic Conservation Strategy permits short-term 4 degradation of water quality in pursuit of long-term restoration. (ECF No. 88 at 15 (citing 5 SHAR_A_00098 (describing Project-related increased sediment delivery in the short term)); ECF 6 No. 91-1 at 15 (listing cases); ECF No. 92-1 at 15–16.) Although agency analysis that does not 7 properly account for short-term, localized effects — in addition to long-term impacts — is 8 arbitrary and capricious, Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries 9 Serv., 265 F.3d 1028, 1036–37 (9th Cir. 2001), Plaintiffs have not provided any authority holding 10 short-term negative consequences of agency action necessarily violate the Aquatic Conservation 11 Strategy. Rather, several district courts have held the “or” in “maintain the existing condition or 12 lead to improved conditions in the long term,” SHAR_I_04413 (emphasis added), is disjunctive 13 — that is, it permits an agency to do either. See Bark v. Northrop, 2016 WL 1181672, at *16–17 14 (D. Or. 2016) (“[T]he fact that the Project may cause short-term sediment impacts does not mean 15 that the Project will cause ‘degradation.’ If that was the case, no agency action near Riparian 16 Reserves would ever be allowed.”); Conservation Cong. v. George, No. 14-cv-1979-THE, 2015 17 WL 2157274, at *12 (N.D. Cal. May 7, 2015) (upholding project with minor, short-term negative 18 effects); Klamath-Siskiyou Wildlands Ctr. v. Grantham, No. 2:10-cv-02350-GEB-CMK, 2010 19 WL 3858640, at *5 (E.D. Cal. Oct. 8, 2010), aff’d, 424 Fed. Appx. 635 (9th Cir. 2011) (same); 20 Bark v. U.S. Bureau of Land Mgmt., 643 F. Supp. 2d 1214, 1234–35 (D. Or. 2009) (“Thus, 21 ‘evidence . . . that a project will result in some degradation does not, standing alone, constitute 22
23 8 In full, the relevant objectives read as follows: “4. Maintain and restore water quality necessary to support healthy riparian, aquatic, and wetland ecosystems. Water quality must 24 remain within the range that maintains the biological, physical, and chemical integrity of the system and benefits survival, growth, reproduction, and migration of individuals composing 25 aquatic and riparian communities. 5. Maintain and restore the sediment regime under which aquatic ecosystems evolved. Elements of the sediment regime include the timing, volume, rate, 26 and character of sediment input, storage, and transport. 6. Maintain and restore in-stream flows 27 sufficient to create and sustain riparian, aquatic, and wetland habitats and to retain patterns of sediment, nutrient, and wood routing. The timing, magnitude, duration, and spatial distribution of 28 peak, high, and low flows must be protected.” SHAR_I_04414. 1 [Aquatic Conservation Strategy] noncompliance.’”) (quoting Pac. Coast Fed’n of Fishermen’s 2 Ass’ns v. Nat’l Marine Fisheries Serv., 71 F. Supp. 2d 1063, 1070 (W.D. Wa. 1999), aff’d in part 3 and vacated in part, 265 F.3d 1028 (9th Cir. 2001)). 4 However, the same provision of the Aquatic Conservation Strategy may be read to require 5 both maintenance of current conditions and improved conditions in the long term — that is, “or” 6 could be read conjunctively. Although the disjunctive use of “or” is the more typical, here, in a 7 guidance document the purpose of which is to “maintain and restore ecosystem health,” the 8 conjunctive use is plausible. SHAR_I_04412; see U.S. v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 9 1979) (interpreting “or” in a statute). On the other hand, as the Oregon district court in Bark v. 10 Northrop reasoned, such a stringent interpretation would hobble all agency activity near streams 11 and rivers. 2016 WL 1181672, at *16–17. In the face of such ambiguity, the Court must defer to 12 Defendant Forest Service’s “fair and considered judgment” so long as it is not a “convenient 13 litigating position” or “post hoc rationalizatio[n].” Kisor, 139 S. Ct. at 2417 (quoting Christopher 14 v. SmtihKline Beecham Corp., 567 U.S. 142, 155 (2012)); see also Native Ecosystems Council v. 15 Weldon, 697 F.3d 1043 (9th Cir. 2012) (“While [the Forest Act] requires that the proposed site- 16 specific actions be consistent with the governing Forest Plan, the Forest Service’s interpretation 17 and implementation of its own forest plan is entitled to substantial deference.”). 18 In analyzing the alternatives, Defendant Forest Service clearly read the Aquatic 19 Conservation Strategy to permit short-term negative impacts in pursuit of long-term 20 improvements. For example, Appendix C to the environmental assessment published on 21 September 28, 2018, explained the Project would comply with the Aquatic Conservation 22 Strategy: 23 because: (1) while water temperature may be increased in the short term at the site scale, stream shading will be improved by riparian 24 planting in the long term; and (2) while turbidity will be increased in the short term and at the site scale during legacy sediment site 25 treatment and large wood placement it will be improved drastically by these treatments in the long term. 26 27 SHAR_A_00148; see also id. at 00119, 00146–49; SHAR_B_00027, 00060–62. Therefore, the 28 Court will defer to Defendant Forest Service’s interpretation of its own forest plan. See Oregon 1 Nat. Desert Ass’n v. U.S. Forest Serv., 957 F.3d 1024, 1035 (9th Cir. 2020) (“[O]ur circuit’s 2 caselaw establishes that we give the Forest Service ample latitude in ensuring the consistency of 3 its actions with Forest Plans.”). 4 The Aquatic Conservation Strategy provides agencies a second level of discretion in 5 addition to permitting short-term negative impacts. Actions may be considered to “maintain the 6 existing condition” so long as they do not move the conditions of the watershed outside “the 7 range of natural variability of its important physical and biological components.” 8 SHAR_I_04413. However, the agency must articulate the current condition of the watershed, its 9 natural fluctuation, and describe how its proposed actions fall within that range. Id. Defendant 10 Forest Service generally described the current condition of the watershed in Appendix C to the 11 environmental assessment and did so in detail elsewhere, in relevant part: 12 All streams in the project area are listed as impaired under section 303(d) of the Clean Water Act, which means that current conditions 13 do not meet water quality standards and streams are not supporting their beneficial uses. The 303(d) list identified stream temperature 14 and sediment as the pollutants causing impairment. One cause of impairment on National Forest System lands has been attributed to 15 legacy sediment sites from past management including historic mining, road building, and silviculture. 16 SHAR_A_00148; see also id at 00146; id at 00085–90 (detailed discussion of modeling results of 17 no action alternative). Similarly, Defendant Forest Service notes the range of natural variation in 18 its analysis of Aquatic Conservation Strategy compliance and elsewhere, in relevant part: 19 Historically, in the range of natural variability, before European 20 contact water temperature and turbidity would fluctuate in response to wildfires, landslide events, and other stochastic events. Wildfires 21 would reduce shading to streams until canopy cover over streams recovered. Landslide events would widen and shallow stream 22 channels, and remove riparian vegetation shading streams, resulting in greater rate of stream heating and cooling. Landslide events would 23 cause acute bouts of turbidity that would generally be short in duration. 24 25 Id at 00147; see also id. at 00142–44, 00145–47, 00148, 00149, 00150–51; id. at 00091–92 (“The 26 natural range of variability for watersheds in the Seiad-Horse Project include increased erosion 27 due to wildfire, and high intensity storm events. Post fire soils are more susceptible to wind 28 erosion, rain events, abrupt snowmelt (rain on snow), and even dry ravel caused by gravity.”). 1 Finally, Defendant Forest Service describes how the environmental consequences of Alternative 2 2 (the alternative ultimately adopted) fall within the range of natural variability of the Seiad-Horse 3 watersheds for water quality, sedimentation, and stream flows. Id. at 00091–92 (sediment); id at 4 00119 (water quality for fauna and sediment); id at 00149 (in-stream flows); SHAR_B_00061–62 5 (water quality for fauna).9 6 Therefore, Defendant Forest Service adequately explained how the Project complied with 7 Aquatic Conservation Strategy objectives 4, 5, and 6. Federal Defendants’ expert judgment that 8 the Project complies with the Aquatic Conservation Strategy is entitled to deference so long as it 9 is adequately explained. See SHAR_A_00167 (explaining compliance); Oregon Nat. Desert 10 Ass’n, 957 F.3d at 1035; League of Wilderness Defenders Blue Mountains Biodiversity Project v. 11 Allen, 615 F.3d 1122, 1134 (9th Cir. 2010) (deferring to the Forest Service’s determination of 12 how best to fulfill Northwest Forest Plan objectives). Therefore, the Project complied with the 13 Aquatic Conservation Strategy and the Forest Act. Accordingly, the Court does not reach 14 Plaintiffs’ argument regarding the impermissible use of restoration and mitigation as an 15 alternative for avoiding habitat degradation. 16 ii. Snag Retention under the Northwest Forest Plan 17 Plaintiffs argue the Project does not comply with the Northwest Forest Plan’s guidelines 18 on snag retention because the Project removed snags likely to persist before late-successional 19 conditions developed. (ECF No. 88 at 17–20.) In opposition, Defendants argue the Northwest 20 Forest Plan does not prohibit the removal of large diameter snags from late successional reserves 21 and the Project complied with the guidance of the applicable forest plans. (ECF No. 91-1 at 18–
22 9 The Court recognizes it reached the opposite conclusion in its May 31, 2019 Order 23 granting a stay of the preliminary injunction. (ECF No. 74 at 5.) However, upon review of the administrative record, and with the benefit of the extensive briefing on the instant motions, the 24 Court recognizes Defendant Forest Service’s failure to include the words “range of natural variability” in the appropriately titled section of the analysis is not dispositive of compliance with 25 the Aquatic Conservation Strategy. (But see id.) Further, the portions quoted in the Court’s prior Order clearly support each other. For example, the historical fluctuations in shading described as 26 the range of natural variation support an inference of short-term loss of stream shading caused by 27 the Project which falls within that natural range. (See id); SHAR_A_00147–48. Although the analysis is “of less than ideal clarity,” the Court can follow Defendant Forest Service’s reasoning. 28 State Farm, 463 U.S. at 43. 1 23; ECF No. 92-1 at 19–28.) In addition, Intervenor Defendant argues Brong, on which 2 Plaintiffs’ argument relies, has been substantially undermined such that it is no longer controlling. 3 (ECF No. 92-1 at 21–23.) 4 In reply, Plaintiff argues the Project impermissibly retained only some snags, a subset of 5 those likely to persist until new large snags can form. (ECF No. 93 at 15–20.) Federal 6 Defendants argue the Northwest Forest Plan explicitly encourages active forest management to 7 reduce wildfire hazard, including salvage logging, and the Project retained an appropriate number 8 of snags. (ECF No. 94 at 15–17.) Intervenor Defendant makes similar arguments. (ECF No. 95 9 at 12–15.) 10 The Klamath Forest Plan and the Northwest Forest Plan provide guidelines for salvage 11 within late successional reserves. SHAR_I_02293, 04450–53. The Northwest Forest Plan 12 explicitly encourages silvicultural activities aimed at reducing the risk of future stand-replacing 13 events, including salvage. Id. at 04449–51; id. at SHAR_I_04450 (“Salvage guidelines are 14 intended to prevent negative effects on late-successional habitat, while permitting some 15 commercial wood volume removal. In some cases, salvage operations may actually facilitate 16 habitat recovery. . . . [S]alvage may help reduce the risk of future stand-replacing disturbances.”). 17 However, both plans provide guidance specific to salvage projects, limiting agency discretion in 18 developing such operations. Forest-wide, the Klamath National Forest Plan advises agencies to 19 measure snag retention over a hundred-acre area while “[p]rovid[ing] for an average of 5 snags 20 per acre,” not necessarily equally distributed, “[r]etain[ing] snags . . . in clumps when possible,” 21 and “[r]etain[ing] snags with the largest [diameter at breast height] as they tend to last longer and 22 make the best wildlife habitat.” SHAR_I_02236. Guidelines specific to late successional 23 reserves provide additional guidance. “Snags provide a variety of habitat benefits for a variety of 24 wildlife species associated with late-successional forests. Accordingly, following stand-replacing 25 disturbance, management should focus on retaining snags that are likely to persist until late- 26 successional conditions have developed and the new stand is again producing large snags.” 27 SHAR_I_02293. Salvage that does not meet this and other guidelines is permitted when 28 “essential to reduce the future risk of fire . . . damage to late-successional forest conditions.” Id. 1 The late-successional reserve specific guidelines in the Klamath Forest Plan are drawn from the 2 Northwest Forest Plan. SHAR_I_04450–53. 3 Plaintiffs rely on Oregon Nat. Res. Council Fund. v. Brong for the proposition that any 4 logging of snags likely to stand until the forest produces new snags is a violation of the Northwest 5 Forest Plan’s guidance to focus on retaining such snags. (ECF No. 88 at 17–18.) This reading of 6 Brong is inconsistent with the guidance in aforementioned forest plans and recent Ninth Circuit 7 precedent. First, as just summarized, the Northwest Forest Plan and the Klamath Forest Plan 8 permit logging in late successional reserves and the removal of snags. SHAR_I_02236, 04449– 9 53. The Ninth Circuit recognized this in Brong itself. “[U]nder certain limited circumstances, 10 salvage can occur in [late successional reserves] . . . .” Brong, 492 F.3d at 1130; see also id at 11 1129 n.13 (“[W]e do not divine an express limitation on removing large snags.”) (internal 12 quotation marks omitted). Further, the guidance advises agencies merely to focus on a specific 13 class of snags — those likely to remain standing until new snags form. SHAR_I_02293. Neither 14 forest plan contains mandatory language requiring the retention of all such snags. See Cascadia 15 Wildlands Project v. Goodman, 393 F. Supp. 2d 1041, 1049 (D. Or. 2004) (“The court does not 16 read the guidelines to require the Service to retain all snags likely to persist until the return of 17 late-successional conditions and natural large snag recruitment.”). 18 More importantly, the Ninth Circuit has upheld projects proposing salvage logging in late 19 successional reserves under the Northwest Forest Plan after Brong was decided. See, e.g., Allen, 20 615 F.3d at 1131 (“Far from conflicting with the protection of [late successional reserves], 21 carefully controlled logging is a tool expressly authorized by the [Northwest Forest Plan] for 22 long-term [late successional reserve] maintenance.”); Karuk Tribe v. Steele, 671 Fed. Appx. 507, 23 509 (9th Cir. 2016) (distinguishing Brong). In Steele, the Ninth Circuit explained the Brong court 24 “affirmed the entry of an injunction to prevent snag removal by means of clear cutting on a large 25 scale and undertaken for governmental profit.” 671 Fed. Appx. at 509. However, so long as the 26 agency’s “motives are to prevent the danger of future fires, not economic gain, and the 27 government has gone to pains to avoid the risks of large-scale clear cutting envisioned in Brong” 28 salvage could be permissible under the Northwest Forest Plan. Id.; see also Brong, 492 F.3d at 1 1127 (concluding BLM’s balancing environmental concerns and economic factors equally was 2 inconsistent with the Northwest Forest Plan and, therefore, not entitled to deference). 3 Here, Federal Defendants’ motives were primarily environmental rather than economic. 4 The environmental assessment begins by proposing the Project to “reduce safety hazards along 5 roads and in concentrated stands, reduce fuels adjacent to private property, reduce the risk of 6 future large-scale high severity fire losses of late successional habitat,” and create fish habitat. 7 SHAR_A_00009. All the “needs” identified in the environmental assessment relate to safety, 8 fuels reduction, or habitat restoration. Id. at 00009–10. In the Decision Notice, Defendant 9 Patricia Grantham expresses concern about the impact of increased severity fires on the Klamath 10 National Forest absent risk reduction. 11 Part of my consideration is the understanding of what will happen should risk reduction treatments not be undertaken. Analysis shows 12 that about 60 percent of the project area will be subject to high fire intensity in the future under this scenario, a marked expansion of the 13 high severity impacts created by 2017’s Abney Fire. This is attributed to trees killed by the Abney Fire, left unabated, weakening 14 and falling to the ground over time, mixing with re-sprouting shrubs, hardwoods, grasses and small naturally reseeded trees, to create a 15 fuel load that will reburn at high severity when fire returns. The resultant high severity burn will not only remove any slowly 16 reestablishing forest, but has the high potential to convert the area to a non-forested brush field condition for a long term period. This 17 scenario does not contribute to meeting the objectives of the [late successional reserve]. Adopting a no action and no treatment 18 approach has serious implications regarding the health and sustainability of [late successional reserve] lands into the future. 19 20 SHAR_A_00159. Any consideration of economic factors was related to the feasibility of the 21 Project, as the Decision Notice acknowledges. Id. at 00162 (“To be clear, the desire to implement 22 while the dead and dying trees still have some economic value is not motivated by a need for 23 profit; it is the difference between the agency needing to use scarce public funds to pay for hazard 24 trees to be cut and removed and fuels to be reduced versus the possibility that the same dead and 25 dying trees could be purchased, cut, and removed as part of an economically viable timber sale to 26 achieve the purpose and need for the project.”). Federal Defendants did not impermissibly 27 “substitute economic interests for the paramount goal of preserving late-successional 28 ecosystems.” Brong, 492 F.3d at 1129 n.13; see also Allen, 615 F.3d at 1126 n.1; Siskiyou Reg’l 1 Educ. Project v. Goodman, 219 Fed. Appx. 692, 695 (9th Cir. 2007) (“The fact that there may be 2 some incidental economic benefit from the recovery project’s sale of burned trees is not contrary 3 to and does not overshadow the [Northwest Forest Plan’s] primary goals of forest protection and 4 restoration.”).10 5 The Project does not resemble the type of clear cutting prohibited by Brong. There, the 6 Ninth Circuit took issue with BLM’s attempt to comply with the snag retention guidelines by 7 averaging the number of snags to be retained over the entire project area (approximately 1,000 8 acres) and only retaining snags outside the areas where logging would take place. 492 F.3d at 9 1129. In contrast, here, the Project measured snag retention based on only 100-acre units rather 10 than the entire project area. SHAR_A_00018. In other words, the Project’s snag retention 11 modeling was 100 times more detailed than that prohibited in Brong. Id.; 492 F.3d at 1129. 12 Further, the Project retained all snags in riparian reserves and created “designated snag retention 13 areas” to ensure retained snags were grouped together, as required by the forest plan. Id.; 14 SHAR_I_02236. Individual snags within harvest areas were retained if they had high quality 15 habitat characteristics or were very large and likely to persist until the next stand produced large 16 snags. SHAR_A_00018. The result, according to Defendant Forest Service’s models, was an 17 “average number of snags equal to or greater than 12 inches in diameter at breast height [of] 18 1,369 snags per 100 acres” or, in other words, approximately “14 conifer snags ranging in size 19 from 12 to over 46 inches in diameter at breast height” per acre. SHAR_B_00944. Therefore, 20 despite Plaintiffs’ contention to the contrary, this case does not involve the “exact same situation 21 as Brong.” (ECF No. 88 at 19.)11 22 Other than their reliance on Brong, Plaintiffs provide no other explanation as to why the 23
24 10 The Court’s analysis of this issue in its January 25, 2019 Order granting Plaintiffs’ motion for preliminary injunction assumed any consideration of economic practicalities ran afoul of 25 Brong. (See ECF No. 52 at 11–12.) As discussed here, Brong does not create such a stringent 26 limitation on agency reasoning and none exists in the Northwest Forest Plan or Klamath Forest Plan. 27 11 Accordingly, the Court does not need to consider whether Brong is irreconcilable with 28 Allen and Oregon Nat. Desert Ass’n as Defendants contend. 1 reasoning just described is arbitrary and capricious, and the Court sees none. Further, assuming 2 for the sake of argument the foregoing analysis is incorrect, Plaintiffs do not attempt to explain 3 why the Project does not fall within the exception to the forest plan guidelines on salvage. 4 SHAR_I_02293 (salvage that does not meet the guidelines is permitted when “essential to reduce 5 the future risk of fire . . . damage to late-successional forest conditions.”); SHAR_A_00159 6 (explaining the fire risks to the reserve without salvage). Accordingly, Federal Defendants’ 7 conclusion the snag retention complies with the applicable forest plans is subject to deference. 8 SHAR_A_00167 (explaining compliance); SHAR_I_00946–47 (same); see Oregon Nat. Desert 9 Ass’n, 957 F.3d at 1035; Allen, 615 F.3d at 1134. 10 iii. Habitat Suitability under the Northwest Forest Plan 11 Plaintiffs’ last Forest Act argument is that the Project does not comply with the Northwest 12 Forest Plan’s guidance on maintaining habitat suitability. (ECF No. 88 at 20–23.) Specifically, 13 Plaintiffs argue: (1) the Project will diminish habitat suitability for species such as the fisher, 14 marten, goshawk, wolverine, great gray owl, and northern spotted owl; and (2) the forest-wide 15 snag retention guidelines do not apply to these species. (Id.) In their cross-motion, Federal 16 Defendants argue: (1) the Project exceeds the numerical minimum standards in the Klamath 17 Forest Plan, which are designed to benefit the species Plaintiffs’ care about; (2) “habitat 18 suitability” means “late successional forest habitat,” which the Project does not remove or alter; 19 and (3) reading the Northwest Forest Plan to forbid any degradation of any aspect of any species’ 20 habitat would preclude any salvage harvest, despite the forest plan’s explicit allowance for such 21 harvests. (ECF No. 91 at 19–25.) Intervenor Defendant notes Defendant Forest Service 22 estimated the impacts of the Project on northern spotted owl habitat would be insignificant. (ECF 23 No. 92-1 at 26–28.) In reply, Plaintiffs contend Federal Defendants’ argument that the snag 24 retention numbers established for woodpeckers ensure quality environment for all other species is 25 simply wrong or at least is unsupported and that the Project worsened wildlife habitat conditions. 26 (ECF No. 93 at 15–20.) Defendants reiterate the arguments from their cross-motions. (ECF No. 27 94 at 17 –19; ECF No. 95 at 14.) 28 In addition to the guidelines outlined in Section III.B.ii, above, the Northwest Forest Plan 1 directs agencies to preserve habitat suitability in conducting salvage operations: 2 Salvage guidelines are intended to prevent negative effects on late- successional habitat, while permitting some commercial wood 3 volume removal. In some cases, salvage operations may actually facilitate habitat recovery. For example, . . . salvage may help reduce 4 the risk of future stand-replacing disturbances. While priority should be given to salvage in areas where it will have a positive effect on 5 late-successional forest habitat, salvage operations should not diminish habitat suitability now or in the future. 6 SHAR_I_04450. Plaintiffs argue the Project “diminish[ed] habitat suitability” and therefore did 7 not comply with the forest plan guidelines and the Forest Act. The glaring problem with this 8 argument is that no party provides the Court a definition of “diminish” or “habitat suitability” 9 supported by the administrative record. Plaintiffs contend “’habitat suitability’ is a term of art” 10 the forest plans use to describe the need to retain sufficient wildlife habitat during salvage. (ECF 11 No. 88 at 20 (citing SHAR_I_04451–52).) The cited portion of the record does not support 12 Plaintiffs’ assertion. The closest the Northwest Forest Plan gets to defining “habitat suitability” 13 within the citation provided by Plaintiffs is as follows: 14 Because Late-Successional Reserves have been established to 15 provide high quality habitat for species associated with late- successional forest conditions, management following a stand- 16 replacing event should be designed to accelerate or not impede the development of those conditions. The rate of development of this 17 habitat will vary among provinces and forest types and will be influenced by a complex interaction of stand-level factors that 18 include site productivity, population dynamics of live trees and snags, and decay rates of coarse woody debris. Because there is 19 much to learn about the development of species associated with these forests and their habitat, it seems prudent to only allow removal of 20 conservative quantities of salvage material from Late-Successional Reserves and retain management opportunities until the process is 21 better understood. 22 SHAR_I_04451. This does not provide a clear standard by which the Court may review Federal 23 Defendants’ compliance with the forest plans and does not even mention the phrase “habitat 24 suitability.” In the specific guidelines for snag retention that follow, the Northwest Forest Plan 25 notes the importance of snags to wildlife but does not provide any further definition. See id. at 26 04451–52. 27 Federal Defendants’ definition of “habitat suitability” is similarly unavailing. Federal 28 1 Defendants argue “habitat suitability” refers only to late successional or old-growth habitat. 2 (ECF No. 91-1 at 23–24.) Therefore, Federal Defendants reason, since the Abney fire burned 3 away all the old-growth habitat in the Project area and the Project only removed dead or dying 4 trees, the Project did not diminish habitat suitability. (Id.) However, the instruction not to 5 diminish habitat suitability in the Northwest Forest Plan refers to salvage operations, which only 6 remove dead trees (not old growth) and take place in areas where entire stands have been 7 destroyed. See SHAR_I_04450–51. Presumably, salvage after stand-replacing events would 8 rarely if ever impact old-growth forests, rendering the guidance at issue here nonsensical if the 9 Court were to employ Federal Defendants’ definition of “habitat suitability.” 10 Further, no party attempts to define “diminish.” The definition of “diminish” is important 11 because the forest plans and the administrative record use several terms to describe agency 12 impacts to habitat, each with their own meaning, including “degrade” and “degradation,” 13 “downgrade,” and “removal.” See SHAR_B_00934 (defining “degrade”); id. at 01086 (defining 14 “downgrade” and “removal”); see also Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 15 1052 (9th Cir. 2013) (defining all three). Thus, “diminish” could plausibly mean reduced quality 16 (i.e., “degrade” or “downgrade”) or reduced quantity (i.e., “removal”). Given the Northwest 17 Forest Plan’s acknowledgement that permissible management to reduce fire risks “may reduce the 18 quality of habitat for late-successional organisms,” the quantity definition seems correct. 19 SHAR_I_04411; see Allen, 615 F.3d at 1133. 20 Regardless, the snag retention standards articulated in the Klamath Forest Plan are 21 intended to provide sufficient snags for many wildlife species — not simply the “primary cavity- 22 association species” listed — and the Court sees no reason to question Defendant Forest Service’s 23 expert determination. As the Court noted, the Klamath Forest Plan developed species 24 assemblages to measure the need for certain habitat elements. (ECF No. 52 at 11–12; ECF No. 25 74 at 6–7.) The Klamath Forest Plan describes these “management indicator species” as 26 representative of the habitat needs for a certain element (here, snags) of all wildlife species. 27 SHAR_I_04158 (“Monitoring several species, with similar or overlapping habitat needs, will 28 provide a better reflection of the range of responses by all wildlife species associated with a given 1 habitat or habitat element.”). The “multi-species assemblage” chosen to represent wildlife needs 2 for snags were seven species of birds, mostly woodpeckers. Id. at 04159. The Klamath Forest 3 Plan directs the Forest Service to use the “snag association assemblage” of birds to “assess . . . 4 project-level impacts to habitat conditions.” Id. at 04210; see also SHAR_B_00942 (“The 5 Species Associations identified in the Forest Plan under the Management Indicator Species 6 sections was developed to represent habitats or features important for many plant and animal 7 species. Snags are an important feature so a series of Snag Associated Species were identified to 8 represent the snag feature in different but sometimes overlapping habitat types as a measure of 9 potential effects of passive and active land management.”). The forest plan provides a table with 10 the type, size, and density of snags averaged over 100 acres necessary to support the snag 11 association assemblage and, therefore, other wildlife. Id. 12 The Project provides more snags for wildlife than is required by the Klamath Forest Plan. 13 SHAR_B_00944–47. Even so, Defendant Forest Service extensively evaluated the impact of the 14 Project on each of the species Plaintiffs express concern for, ultimately concluding the Project 15 complied with the relevant forest plans. See SHAR_A_00120–21 (northern spotted owl); id. at 16 00125–27 (northern goshawk, great gray owl, wolverine, fisher); SHAR_B_01058 (goshawk); id. 17 at 01059 (fisher, martin, wolverine); id. at 01063, 01066 (great gray owl); id. at 01082–89 18 (northern spotted owl); see also SHAR_G_00269 (“Treatment in these areas would remove . . . 19 non habitat.”). 20 “In sum, the record shows that [Federal Defendants] have ensured compliance with the 21 [Northwest Forest Plan], basing the . . . [P]roject on a thorough consideration of the relevant 22 factors.” Siskiyou Reg’l Educ. Project v. Goodman, 219 Fed. Appx. at 696 (citing Citizens to 23 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)); Ocean Advocates v. U.S. Army 24 Corps of Eng’rs, 402 F.3d 846, 859 (9th Cir. 2005)). To the extent the Project adversely affected 25 any wildlife, Federal Defendants’ balancing of the competing objectives of fire prevention and 26 habitat preservation is reasonable, especially in light of the indefinite standard to which Plaintiffs 27 seek to hold Federal Defendants. See id.; Cascadia Wildland Project v. Goodman, 393 F. Supp. 28 2d at 1049–50. Plaintiffs fail to convince the Court it should not defer to Federal Defendants’ 1 expert determination the Project left an appropriate number of snags to provide for the habitat 2 needs of wildlife. See SHAR_A_00167 (explaining compliance); Oregon Nat. Desert Ass’n, 957 3 F.3d at 1035; Allen, 615 F.3d at 1134.12 Therefore, Federal Defendants did not violate the Forest 4 Act by implementing the Project. 5 C. National Environmental Policy Act Claim 6 Plaintiffs argue Federal Defendants violated the Environmental Policy Act because they 7 did not produce an environmental impact statement. (ECF No. 88 at 23–29.) In their cross- 8 motions, Defendants argue an environmental impact statement was not required under the 9 Environmental Policy Act because Federal Defendants reasonably determined the Project would 10 not have a significant impact. (ECF No. 91-1 at 25–31; ECF No. 92-1 at 28–32.) In reply, all 11 three parties reiterate the arguments from their cross-motions. (See ECF No. 93 at 20–21; ECF 12 No. 94 at 19–20; ECF No. 95 at 15.) 13 The Environmental Policy Act requires federal agencies to prepare an environmental 14 impact statement when it proposes a major federal action that may significantly affect the quality 15 of the environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4(a)(1). To determine whether a 16 proposed project is “significant[],” an agency must examine the content and intensity of the 17 project. 40 C.F.R. § 1508.27; Wild Wilderness v. Allen, 871 F.3d 719, 729 (9th Cir. 2017). 18 Plaintiffs argue the following regulatory factors indicate an environmental impact statement was 19 necessary: (1) the unique characteristics of the geographic area, such as proximity to ecologically 20 critical areas; (2) the cumulative significance of the proposed project and other actions; (3) 21 whether the action threatens a violation of law. (ECF No. 88 at 23–24 (citing 40 C.F.R. §§ 22 1508.27(b)(3), (b)(7), (b)(10)).) A single factor may trigger the need for an environmental impact 23 statement, Ocean Advocates, 361 F.3d at 1124–25, but merely limited negative effects of a 24 project on one of the factors does not necessarily mean the factor favors an environmental impact 25 statement, Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005). 26 12 The Court’s prior Orders reaching the opposite conclusion did so without the current 27 briefing and as such, did not understand the role of the management indicator species as a measurement tool for the habitat needs of all wildlife. (See ECF No. 52 at 11–12; ECF No. 74 at 28 6–7.) 1 If an agency determines a proposed project does not require an environmental impact 2 statement, it must issue a “finding of no significant impact.” 40 C.F.R. § 1501.4(e). The finding 3 must explain why an environmental impact statement is not necessary. 40 C.F.R. § 1508.13. 4 Federal Defendants issued a finding of no significant impact along with the final environmental 5 assessment on September 28, 2018. SHAR_A_00109–28. 6 Plaintiffs’ arguments as to factors 2 and 3 are derivative of its Forest Act claims. (See 7 ECF No. 88 at 28–29; ECF No. 93 at 20–21.) Accordingly, as the Court has already determined 8 those claims fail, it finds factors 2 and 3 weigh in Federal Defendants’ favor. See generally 9 SHAR_A_00116–18 (explaining why the cumulative impacts are not significant); id. at 00122–28 10 (explaining why the Project does not threaten a violation of law). 11 Plaintiffs contend the proximity of the Project to the Johnny O’Neil Late-Successional 12 Reserve, Essential Habitat Connectivity area, Kangaroo Inventoried Roadless Area, and Pacific 13 Crest Trail necessitate an environmental impact statement. (ECF No. 88 at 24–28.) Plaintiffs’ 14 argument regarding the Johnny O’Neil Late-Successional Reserve is the same as its arguments for 15 violations of the Forest Act, which the Court has already rejected in Sections III.B.ii–iii. (Id. at 16 24.) 17 Plaintiffs argue, and the environmental assessment acknowledges, the Project area 18 contains portions of the Essential Habitat Connectivity area identified by the California Essential 19 Habitat Connectivity Project in 2010. SHAR_A_00103; (ECF No. 88 at 24–26.) However, the 20 environmental analysis explains both the California Essential Habitat Connectivity Project and a 21 study conducted in 2011 designated the area important to wildlife connectivity over a large scale 22 and did not “provide the detail needed to determine the change in connectivity at a smaller scale” 23 such as that of the Project. SHAR_A_00103. The environmental analysis instead used “habitat 24 connectivity for the fisher, marten, and wolverine as analysis indicators because these species, 25 and the resulting analysis, are more sensitive to the possible effects resulting from the proposed 26 actions.” Id. The analysis concluded the Project would reduce the habitat connectivity levels for 27 three watersheds. Id. at 00104; SHAR_B_01051. However, the existing conditions in those 28 watersheds were “already very close to the lower habitat connectivity level and the actions in [the 1 Project] simply tip these habitat connectivity levels” from one level to the next. 2 SHAR_A_00104; SHAR_B_01059. Therefore, Defendant Forest Service concluded the change 3 in connectivity would be small and insignificant and the Project would result in improved habitat 4 connectivity relatively quickly. SHAR_A_00104; SHAR_B_01059. Although Plaintiffs 5 vehemently disagree with Defendant Forest Service’s analysis (see ECF No. 88 at 26), the Court 6 must defer to the reasoned scientific conclusions of expert agencies. See Bark v. Northrop, 607 7 Fed. Appx. 652, 655 (9th Cir. 2015). 8 Plaintiffs next argue the roadside hazard removal along the two miles of Forest Road 9 47N80 that travels through the Kangaroo Inventoried Roadless Area necessitates an 10 environmental impact statement. (ECF No. 88 at 26–28.) The Klamath Forest Plan requires 11 Defendant Forest Service to maintain roads used for trailhead access to accommodate recreation 12 users, and Forest Road 47N80 is regularly used to access the Pacific Crest Trail and Seiad Creek 13 Trail. SHAR_A_00099. Thus, “[r]oad maintenance is clearly appropriate” and does not 14 “significantly impact roadless character.” Id. Plaintiffs’ citations to Lands Council v. Martin, 15 Smith v. U.S. Forest Serv., and Cascadia Wildlands v. U.S. Forest Serv., are inapposite because 16 each discuss the impact of logging on the “roadless character” of areas without roads. See Lands 17 Council v. Martin, 529 F.3d 1219, 1230–32 (9th Cir. 2008); Smith v. U.S. Forest Serv., 33 F.3d 18 1072, 1078 (9th Cir. 1994); Cascadia Wildlands v. U.S. Forest Serv., 937 F. Supp. 2d 1271, 1281 19 (D. Or. 2013). Here, the only salvage will take place along a small section of the already- 20 established road, and the Project will not create any new roads in the area. SHAR_A_00099– 21 00100. Therefore, it is unclear how this action will in any way alter the area’s roadless character. 22 See Umpqua Watersheds v. U.S., 725 F. Supp. 2d 1232, 1241–42 (D. Or. 2010) (holding Forest 23 Service reasonably concluded no environmental impact statement was required where no new 24 roads were built). Accordingly, Federal Defendants’ determination that the impact of the hazard 25 removal on the Kangaroo Inventoried Roadless Area is insignificant is reasonable. 26 Lastly, Plaintiffs argue the logging activities disrupt the view from the Pacific Crest Trail 27 and this fact was not discussed in the finding of no significant impact. (ECF No. 88 at 28.) To 28 the contrary, Federal Defendants developed an alternative to examine views from the Pacific 1 | Crest Trail in detail. SHAR_A_00105-09, 00113. As a result, “[t]he [P]roject was designed to 2 | minimize potential unnatural appearances to meet the retention visual quality objective until 3 || vegetive regrowth in three to ten years and to mitigate scenic effects of potential hazard tree 4 | removal in the area adjacent to the Pacific Crest Trail... .” Jd. at 00113. The discussion of the 5 || Project’s impact on the view from the Pacific Crest Trail and the adaptation of the Project to 6 | mitigate the significance of that impact is sufficient for the purposes of the Environmental Policy 7 | Act. See Klamath-Siskiyou Wildlands Center v. Grantham, No. 2:10-CV-02350-GEB-CMK, 8 | 2010 WL 4137351, at *5 (E.D. Cal. Oct. 19, 2010) (environmental impact statement not required 9 | where “the Project’s Environmental Assessment analyzed the anticipated effects on scenery and 10 | recreation, and found neither would be significantly affected.”). 11 None of the challenged factors weigh in Plaintiffs’ favor. Therefore, the Court finds 12 | Federal Defendants did not violate the Environmental Policy Act by issuing a finding of no 13 || significant impact rather than an environmental impact statement. 14 IV. CONCLUSION 15 For the foregoing reasons, the Court hereby GRANTS Federal Defendants’ and Intervenor 16 | Defendant’s Cross-Motions for Summary Judgment (ECF Nos. 91, 92) and DENIES Plaintiffs’ 17 | Motion for Summary Judgment (ECF No. 88). The Clerk of Court is directed to enter judgment 18 || in favor of Defendants and Intervenor Defendant and close the case. 19 IT IS SO ORDERED. 20 | DATED: February 7, 2022 21 hy /) 22 “ ! | / fb 23 Troy L. Nuhlep ] 24 United States District Judge 25 26 27 28 27