TROY L. NUNLEY, District Judge.
The matter is before the Court on Cross-Motions for Summary Judgment by Plaintiff Conservation Congress ("Plaintiff") (ECF No. 52), Defendants U.S. Forest Service and U.S. Fish and Wildlife Service ("Defendants") (ECF No. 68), and Defendant Intervenors Franklin Logging, Inc. and Scott Timber Co. ("Defendant Intervenors") (ECF No. 62). At issue is Defendants' planning, consultation, and implementation of the Algoma Vegetation Management Project occurring within the Shasta-Trinity National Forest. The primary concern is the Project's effect on the Northern Spotted Owl, a species occupying the Algoma Project area and listed as "threatened" under the Endangered Species Act. Plaintiff's First Supplemental Complaint (ECF No. 33), upon which the parties move for summary judgment, contains six causes of action which assert violations under the Endangered Species Act, the National Forest Management Act, and the National Environmental Policy Act. For the reasons discussed below, the Court grants summary judgment in favor of Defendants and Defendant Intervenors, and denies Plaintiff's Motion for Summary Judgment.
The purpose of the Endangered Species Act ("ESA") is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species ...." 16 U.S.C. §1531(b). Pursuant to its delegated authority from the Secretary of the Interior, the U.S. Fish and Wildlife Service ("FWS") is required to list as either threatened or endangered any species facing extinction due to any one, or any combination of, the following five factors: (1) the present or threatened destruction, modification, or curtailment of the species' habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors effecting the species' continued existence. 16 U.S.C. § 1533(a)(1)(A)-(E).
In order to encourage recovery of listed species, section 4(f) of the ESA requires the FWS to "develop and implement [recovery] plans for the conservation and survival of [all listed] endangered species and threatened species ... unless [it] finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f). Also to encourage recovery, the ESA requires the Secretary of the Interior to designate "critical habitat" for all listed species.
Section 7(a)(2) of the ESA requires that each federal agency must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of the designated critical habitat of the listed species. 16 U.S.C. § 1536(a)(2). Accordingly, Section 7(a)(2) and its implementing regulations set out a consultation process for determining the impacts of the proposed agency action. See 50 C.F.R. § 402.02. First, the agency contemplating the action (in this case the U.S. Forest Service, hereinafter "Forest Service") must request information from the appropriate federal wildlife service (in this case the FWS) regarding "whether any species which is listed or proposed to be listed may be present in the area of such proposed action." 16 U.S.C. § 1536(c)(1). If the FWS determines that listed species may be present in the affected area, the agency preparing to act must produce a "biological assessment" in accordance with the National Environmental Policy Act "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." Id. If the biological assessment concludes that listed species are in fact likely to be adversely affected, the agency ordinarily must enter "formal consultation" with the wildlife service. See Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985). Formal consultation requires the wildlife service to produce a "biological opinion" that evaluates the nature and extent of the proposed action's effect on the listed species and that, if necessary, posits reasonable and prudent alternatives to the proposed action. 16 U.S.C. § 1536(b)(3)(A).
The National Forest Management Act ("NFMA") requires the U.S. Forest Service to create a comprehensive management plan for each national forest, and prohibits any site-specific activities that are inconsistent with the applicable plan. See 16 U.S.C. §§ 1604(a) and (e); Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996). In this case, the project area is almost entirely within the Algoma Late Successional Reserve (hereinafter "LSR"), as designated by the Northwest Forest Plan (hereinafter the "NFP") and Shasta-Trinity National Forest Land and Resource Management Plan (hereinafter the "LRMP"). (AAR 227.) Objectives for the LSR are to protect and enhance conditions of late-successional and old-growth forest ecosystems. (AAR 227.)
The National Environmental Policy Act ("NEPA") has twin aims: first, it requires federal agencies "to consider every significant aspect of the environmental impact of a proposed action," and second, "it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision making process." Kern v. BLM, 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas & Electric Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983)). NEPA requires federal agencies to take a "hard look" at the environmental effects of their proposed action, even after the proposal has received initial approval. Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 374 (1989). The required "hard look" includes considering all foreseeable direct and indirect impacts, requires the agency to undertake a thorough environmental analysis before concluding that no significant impact exists, and involves a discussion of adverse impacts that does not improperly minimize negative side effects. See Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005); Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006).
NEPA and its implementing regulations also require federal agencies to prepare an environmental impact statement ("EIS") for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); see 40 C.F.R. § 1508.11. The primary purpose of an EIS "is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government." 40 C.F.R. § 1502.1.
The Fish and Wildlife Service listed the Northern Spotted Owl ("NSO") as a threatened species under the ESA in 1990, "because of widespread loss of spotted owl habitat across the spotted owl's range and the inadequacy of existing regulatory mechanisms to conserve the spotted owl." (AR 16089.) Historically, the NSO has ranged in structurally complex forests, commonly referred to as "old growth" forests, including the Late Successional Reserve that encompasses the Algoma Project. (See ECF No. 33 ¶¶ 55, 73.) In 1992, the FWS initially designated critical habitat for the NSO. 57 Fed. Reg. 1796 (1992). In 2008, the FWS revised its critical habitat designation for the NSO, reducing by approximately one-third the amount of land in northern California that it considered critical habitat for the NSO, but continuing the Algoma Project area as Northern Spotted Owl critical habitat. 73 Fed. Reg. 47326 (2008). In December 2012, the FWS revised its critical habitat designation for the NSO, increasing the amount of protected habitat similar to the 1992 levels. 77 Fed. Reg. 71876 (2012). On January 3, 2013, the revised critical habitat designation became effective. (AAR 22916.) In 2008, the FWS issued an ESA Recovery Plan for the NSO, and in 2011 issued a final revised Recovery Plan (the "2011 Recovery Plan"). 73 Fed. Reg. 29471 (2008); 76 Fed. Reg. 38575 (2011).
The management project at issue in this case, the Algoma Vegetation Management Project (the "Project"), occurs within the Shasta-Trinity National Forest and is subject to the Northwest Forest Plan and the Shasta-Trinity National Forest Land and Resource Management Plan. (AAR 227.) The Project is almost entirely contained with the Algoma Late Successional Reserve, and the majority of the project area is within critical habitat for the NSO.
(AAR-22917-18.) Plaintiff contends in addition that a primary purpose of the Project is to provide for commercial timber harvest. (ECF No. 52 at 20-21, 30.) Defendants dispute this characterization. (ECF No. 69 at 2.)
In May, 2009, the Forest Service submitted a biological assessment (the "2009 BA") to the FWS, requesting formal consultation regarding the proposed Project and its effects on the NSO. (AR 1-30.) In July 2009, the FWS issued a biological opinion (the "2009 BiOp"), determining that the Project was not likely to jeopardize the continued existence or adversely modify designated critical habitat for the NSO. (AR 31.) In November 2011, the Forest Service disclosed information about recent surveys detecting an NSO in the Project area. (AR 1162.) As a result, in March 2012, the Forest Service issued a second biological assessment (the "2012 BA"). (AAR 3598.) In January 2013, the 2012 revised critical habitat for the NSO became effective. (AAR 22916.) The Forest Service then issued an additional biological assessment on April 18, 2013 (the "2013 BA"), which determined that the Algoma Project "may affect, and is not likely to adversely affect the [NSO]", but that the Project "may affect, and is likely to adversely affect [NSO] critical habitat."
On November 15, 2012, Plaintiff filed its original Complaint against Defendant Forest Service and Defendant FWS, alleging violations under the ESA, NFMA, and NEPA. (ECF No. 1.) On January 8, 2013, Defendant Intervenors Franklin Logging, Inc. and Scott Timber Co., filed an unopposed Motion to Intervene.
Both Defendants and Defendant Intervenors filed Answers to the Complaint. (See ECF No. 39; ECF No. 44.) On November 22, 2013, Plaintiff filed a Motion for Summary Judgment. (ECF No. 51; corrected on the docket as ECF No. 52.) On January 13, 2014, both Defendants and Defendant Intervenors, filed respective Motions for Summary Judgment. (ECF No. 68; ECF No. 62.)
Accordingly, the Court now considers Plaintiff, Defendants, and Defendant Intervenors' Cross Motions for Summary Judgment.
Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In this case, the Court's review of Plaintiff's ESA, NFMA, and NEPA claims is governed by the Administrative Procedure Act. See Nw. Res. Info. Ctr., Inc. v. NMFS, 56 F.3d 1060, 1066 (9th Cir. 1995); Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059, 1065 (9th Cir. 2004); Arizona Cattle Growers' Ass'n v. U.S. Fish and Wildlife, Bur. Ld. Management, 273 F.3d 1229, 1235 (9th Cir. 2001). A court conducting APA judicial review does not resolve factual questions, but instead determines "whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985)). "[I]n a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record." Id. at 89. In this context, summary judgment becomes the "mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. at 90. Pursuant to the APA, the reviewing Court "shall ... hold unlawful and set aside agency actions, findings, and conclusions found to be ... arbitrary, capricious, or an abuse of discretion or otherwise not in accordance with law," or which have been taken "without observance of procedure required by law." 5 U.S.C. § 706(2)(A)-(D).
Under the ESA, each federal agency must insure that any action authorized by said agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). Destruction or adverse modification is defined as:
50 C.F.R. § 402.02. Pursuant to the Ninth Circuit decision in Gifford, 378 F.3d at 1069-1072, this definition is invalid to the extent that an agency considers adverse modification to occur only if habitat necessary for survival — ignoring habitat necessary for recovery — has been appreciably diminished. However, Plaintiff acknowledges that Defendant FWS has taken into account survival and recovery habitat for the NSO; the habitat modification analysis in the 2013 BiOp is based upon whether "the affected critical habitat would continue to serve its conservation function or purpose of the species" and on "the effects the proposed action is likely to have on the ability of an area to support life-history needs of the [NSO]." (See ECF No. 52 at 25, n. 8; AAR 22937.)
The environmental baseline includes "the past and present impacts of all Federal, State or private actions and other human activities in the action area" and "the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation." 50 C.F.R. § 402.02; see Nat'l Wildlife Fed'n v. Nat'l. Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008).
Plaintiff contends that both Defendants have failed to insure against adverse modification in this case because: 1) the Project's effects will ensure that minimum thresholds for NSO habitat suitability are not met, as measured in terms of treatment to the core and home range of NSO activity centers; 2) Defendants considered only long-term impacts on the NSO, at the expense of short term loss to habitat suitability; 3) adverse modification will result due to loss of dispersal habitat; and 4) the Project fails to safeguard against the removal of old-growth trees, thus diminishing the capability of the critical habitat.
The thrust of Plaintiff's argument is based upon a calculus for adverse modification of habitat, as measured in terms of a "core area" and "home range" surrounding an NSO nest or cluster of detections (i.e. NSO activity centers). (See ECF No. 52 at 25-28; AAR 22925-29.) The "core" is the 0.5 mile area surrounding a nest or cluster of detections; the "home range" is the 1.3 mile area surrounding a nest or cluster of detections.
With respect to activity center ST-203, Defendant FWS found that the 500 acre core area contains 496 acres of suitable habitat, of which 118 acres is nesting and roosting habitat, and 378 acres is foraging habitat. (AAR 22932.) 48 acres of thinning is proposed within the core, and no nesting and roosting habitat is proposed for treatment. (AAR 22932.) The home range of ST-203 contains 2,396 acres of suitable habitat; approximately 472 acres of foraging habitat and 217 acres of dispersal habitat are proposed for treatment. (AAR 22932.) Defendant FWS ultimately concluded:
(AAR 22933.)
With respect to activity center ST-204, treatments are not proposed within the core area. (AAR 22933.) The Project is not expected to affect nesting/roosting or foraging habitat within the home range. (AAR 22933.) The Project is expected to affect 25 acres of dispersal treatment. (AAR 22933.)
With respect to ST-225, Defendant FWS concluded that this activity center was not within 1.3 miles of a treatment unit and therefore silvicultural activities would not affect NSOs in the area. (AAR 22933.) Several road systems would be closed or decommissioned within the activity center. (AAR 22933.) Outside of potential disturbance from machinery during the process, road closure was expected to be beneficial. (AAR 22933.)
With respect to ST-226, Defendant FWS acknowledges that the home range measurement was uncertain, given that detections of the NSO were made at nighttime; however, it concluded that suitable habitat (nesting/roosting and foraging) within the home range would not be treated. Approximately 1,013 of the 1,646 acres of forest classified as dispersal habitat within the outer home range analysis will receive treatment. (AAR 22934.)
Contrary to Plaintiff's claims, the Court does not find that the changes in the number of acres surrounding the activity centers violate thresholds for habitat suitability. Plaintiff directs the Court to the following statements within the 2009 BiOp: 1) maintaining minimum thresholds "provide a functional home range in relation to reproductive success and survival of the pair" (AR 82); 2) some research "has demonstrated that [NSO] abundance and productivity decrease when the proportion of suitable habitat within 0.7 miles of an activity center falls below 500 acres" (AR 91); 3) an "adequate amount and distribution of foraging habitat within the home range is essential to the survival [of the NSO]". (ECF No. 52 at 37.)
However, as an initial matter, the Court does not find that these cited statements from an outdated (2009) consultation document establish a framework for the Court's analysis here. As discussed, since the 2009 BiOp was issued, Defendant Forest Service issued the 2012 Biological Assessment and the 2013 Biological Assessment, and Defendant FWS issued its current 2013 BiOp. The 2009 BiOp was prepared before the 2012 critical habitat rule became effective, which decreased the amount of critical habitat designated for the NSO within the Project area.
Accordingly, the Court does not find that Defendants acted arbitrarily or capriciously in their consultation and implementation of the Project, on the grounds proffered here by Plaintiff.
Plaintiff argues additionally that logging will result in impermissible short term impacts to foraging habitat. (ECF No. 52 at 37.) As stated in the 2013 BA, there are 7,282 acres of foraging habitat within the Project area, of which 1,090 will be treated. (AAR 23534, 23544.) Defendant FWS concludes that logging will likely "result in variable degrees of reduction of canopy closure, basal area, habitat layering (vertical structure), snags ... understory trees, coarse wood, shrubs and forest floor vegetation to a degree where its structure will be simplified and its quality will be degraded." (AAR 22939.) However, Defendant FWS also concluded that such changes were not sufficient to downgrade the foraging function that the treated areas currently provide. Instead, Defendant FWS concluded that proposed treatments are "expected to maintain habitat function for foraging, and are expected to benefit NSO over the long term by reducing inter-tree competition and mortality rates of large trees, increasing tree growth rates, favoring retention of sugar pine and Douglas fir, and fostering desirable species such as black oak through release and re-planting." (AAR 22939.)
Plaintiff relies upon Pacific Coast Federation of Fisherman's Associations v. U.S. Nat'l Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2011) for the proposition that the Defendants must not minimize the importance of short-term (ten year) impacts to endangered species. See Pacific Coast Federation, 265 F.3d at 1037 ("We find nothing in the record to authorize [the National Marine Fisheries Service] to assume away significant habitat degradation ... In ten years a badly degraded habitat will likely result in the total extinction of the subspecies that formerly returned to a particular creek for spawning.") However, the Pacific Coast decision was made in the context of an anadromous fish whose breeding and migration cycles depend upon the short term availability of a particular water environment. Id. Plaintiff does not provide this Court with sufficient information about NSO breeding and/or life cycles that would permit the Court to draw an analogy here to Pacific Coast.
Absent further indication that the short term impacts to NSO foraging habitat must override both expected long term benefits and the continued functionality of the current foraging habitat, the Court cannot find that Defendants failed to insure against the adverse modification of habitat on these grounds.
The 2013 BA provides that 2,746 acres of dispersal habitat are within the Project area, of which 1,288 acres will be treated. (AAR 23534, 23544.) The 2013 BiOp concludes that: 1) "the small scale of habitat removal will not influence the stand or landscape-level availability of dispersal habitat and the degree of habitat (forest) connectivity within the Algoma project area and surrounding landscape"; and 2) "plantation treatments are likely to be beneficial by opening up overly dense stands and increasing stand species and spatial composition heterogeneity." (AAR 22930.)
Plaintiff argues that, given uncertainty about the importance of dispersal habitat for the NSO, Defendants should have exercised greater precaution in modifying dispersal habitat. (ECF No. 52 at 30.) Plaintiff directs the Court to a principle under the ESA that "require[s] agencies to afford first priority to the declared national policy of saving endangered species." Tennessee Valley Authority, 437 U.S. 153, 185 (1978). However, the Court is not advised of a specific cautionary principle regarding dispersal habitat that Defendants did not uphold in this case. The consultation documents in this case show that Defendants considered the Project area to be a high risk of large-scale habitat loss due to insects, disease, and fire, as caused by unnaturally dense stands, and a key purpose of the Project was to reduce that risk. (AAR 227-28; AAR 22917-18.)
Plaintiff also argues that logging within dispersal habitat will adversely modify habitat connectivity. Plaintiff raises a concern about critical habitat unit 8, subunit ECS-3, which provides habitat connectivity between units that are otherwise geographically isolated. (See ECF No. 52 at 40.) The 2013 BiOp, which specifically identifies unit 8, subunit ECS-3, as an essential unit for habitat connectivity, notes that "special management considerations or protection are required in this unit," and concludes that "maintaining connectivity and recruiting additional high-quality habitat for the NSO is especially important...." (AAR 22936.) That Defendant FWS undertook to specifically highlight the importance of this unit, however, does not compel this Court to find that Defendant FWS failed to insure against adverse habitat modification.
Plaintiff also argues that Defendants should have used the "appreciably diminish" standard in evaluating the Project's effects on dispersal habitat, as provided for in 50 C.F.R. § 402.02, as opposed to a "significantly affect" standard. (See ECF No. 52 at 30-32; ECF No. 69 at 14). At times in the 2013 BiOp, Defendant FWS concludes that Project effects would not "significantly affect" the NSO's use of dispersal habitat. (See AAR 22933, 22934, 23941.)
Plaintiff contends that the Project fails to safeguard against the removal of old-growth trees, thus diminishing the capability of the critical habitat. Specifically, Plaintiff contends that Defendants violated the ESA because they do not use a diameter limit when logging. Plaintiff points to an acknowledgement in the 2013 BiOp of a study finding that the "[Presence] of trees greater than 20-24 inches dbh is considered an important attribute of foraging habitat." (AAR 22927.) Plaintiff also points to the 2011 NSO Recovery Plan, which articulates the need for large-diameter trees in NSO habitat. (See ECF No. 52 at 37.) However, as discussed in the EIS, Defendant Forest Service declined to adopt a treatment plan that prevented the logging of trees over 20 inches in diameter, because to do so would leave many tree stands overstocked, rendering them, among other effects, more susceptible to beetle infestation. (AAR 267.) The EIS advises managers of late-successional forest systems to move away from approaches based on diameter limits and instead focus on old growth trees. (AAR 267.) The 2013 BA (to cite one consultation document) provides that a main purpose of the Project is to accelerate the development of late-successional and old-growth habitat characteristics, and that treatments are designed to afford the NSO an older and more structurally complex habitat. (See AAR 23539.) The Court is not aware of statutory or case law authority — and Plaintiff does not direct the Court to such authority — holding that the selection of which trees to log in this case must be based on a predetermined diameter limit.
For the aforementioned reasons, with respect to Claim 1, the Court does not find that Defendants were arbitrary or capricious in insuring against the adverse modification of critical habitat. Therefore summary judgment is granted in favor of Defendants and Defendant Intervenors.
Under the ESA, Defendants must, in consulting over the nature and extent of jeopardy posed to the NSO, use "the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2). Plaintiff contends that Defendants failed to use the best available science, with respect to 1) the use of diameter limits when logging and 2) the beneficial effects of wildfire on the NSO. (ECF No. 52 at 33-37.)
As discussed, supra, the Court finds that Defendant considered and rejected a treatment plan that selected trees to log based on a 20 inch diameter limit. The EIS advises managers of late-successional forests to move away from approaches based on diameter limits, and instead focus on the retention of old-growth trees. (See AAR 267.) Plaintiff does not otherwise show that the best available science mandates the use of a diameter limit when logging.
With respect to the beneficial effects of wildfire, Plaintiff asserts that selected studies were ignored that demonstrate a correlation between NSO recovery and the use of high-severity burned areas for foraging. (See ECF No. 52 at 44.) These studies were referenced in the 2013 BiOp, which determined that they were inconclusive as to the current Project, due to their sample size and fire effects peculiar to each area studied.
(AAR 208.)
As the Court noted in League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir. 2010), the "highest deference is owed to the Forest Service's technical analysis and judgments within its area of expertise." "The court's role in reviewing agency actions is not to weigh conflicting expert opinions or to consider whether the agency employed the best methods, but instead, when an agency's particular technical expertise is involved, to guard the agency's discretion." Conservation Congress v. U.S. Forest Serv., 2012 WL 2339765 at *7 (E.D. Cal. 2012) (referencing Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097, 1099 (9th Cir. 2003); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376-77 (1980).) In addition, an agency's use of the best available science and commercial data "does not explicitly limit the Secretary's analysis to apolitical considerations ... [T]he Secretary must be permitted to choose the one that best suits all of its interests, including political or business interests." SW Center for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 523 n. 5 (9th Cir. 1998).
Given the complex and technical task of fire risk management, and given the ample consideration by Defendants of the effects of wildfire within the Project area, the Court defers to the judgment of the federal agencies in this case. Summary judgment is therefore granted in favor of Defendants and Defendant Intervenors with respect to Claim 2.
Plaintiff's First Supplemental Complaint contends that habitat modification in the Project area constitutes "harm" and "harassment" within the ESA's "take" definition. (See ECF No. 33 at 19.) Section 9(a)(B) of the ESA prohibits the take of listed species within the United States, except as provided for in section 10, which allows for incidental take if certain safeguards are met. See 16 U.S.C. §§ 1538, 1539. The ESA defines "take" as "...to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." 16 U.S.C. § 1532.19. As advised by Plaintiff, the regulatory definition of "harm" includes "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3.
Plaintiff does not further pursue this claim, in either its Memorandum In Support of Motion for Summary Judgment (ECF No. 52) or its Reply in Support of Motion for Summary Judgment (ECF No. 74). In its argument regarding Claim 1, Plaintiff points to a description of the home range of activity center ST-203 in the EIS, which states: "The amount of foraging habitat is currently well above the 1,085 [acres] incidental take threshold values." (See AAR 640.) Plaintiff asks the Court to infer from this statement that take must be presumed if foraging habitat within any home range drops below 1,085 acres; Plaintiff further argues that ST-204 does not meet this requirement. (ECF No. 52 at 28.) The home range of ST-204 contains 718 acres of nesting, roosting, and foraging habitat, and 76 acres of dispersal habitat; 25 acres of dispersal habitat are proposed for treatment but it is not expected to impact habitat functionality. (AAR 637.) Given this minimal proposed treatment, the Court cannot find that the Project's implementation will be the cause of "take" within the meaning of the ESA.
The Court will infer that Plaintiff's arguments concerning the adverse modification of habitat in Claim 1 are to apply equally to its arguments concerning "take" in Claim 3. The Court finds for Defendants with respect to Claim 1, and this determination encompasses a finding that "take" has not occurred as a result of this modification.
Therefore summary judgment is granted in favor of Defendants and Defendant Intervenors with respect to Claim 3.
The NFMA provides that Defendant Forest Service's activities carried out on the National Forests "shall be consistent with land management plans." 16 U.S.C. § 1604(I); 36 C.F.R. 219.10(e). The relevant land management plan in this case is the Shasta-Trinity National Forest Land and Resource Management Plan ("LRMP"). Plaintiff contends that the Forest Service failed to comply with 1) LRMP provisions regarding snags and down logs, and 2) an NFMA mandate to maintain viable populations of the sensitive species the Northern goshawk (Accipiter gentilis), the Pacific fisher (Martes pennanti), and the American marten (Martes americana). (See ECF No. 52 at 38-40).
The LMRP directs Defendant Forest Service to "maintain dead/down material, hardwoods, and snags at naturally occurring levels." (AAR 7811.) The LSR Assessment provides further guidance as to the desired number of snags and down logs, including that the average number of snags, which are at least 20 inches in diameter, should equal 2 to 6 snags per acre within mixed Conifer habitat. (AAR 7507-08.)
Plaintiff references treatment within the Defensible Fuel Management Zone, which "will result in a small proportion of specific thinning that will be deficit in snags," but that nonetheless does not prevent snag retention guidelines from being met "at the scale of 100-acre landscape." (AAR 2101.) Plaintiff argues, pursuant to Oregon Natural Resources Council v. Brong, 492 F.3d 1120, 1130 (9th Cir. 2007), that such treatment is an impermissible attempt to "dilute the effects of its proposed activities by averaging the snag retention over [] a wide area." (ECF No. 52 at 38.)
However, the snag retention at issue in Brong specifically was as follows: of the 1,004 acres to be included as harvest areas, 679 acres were to receive harvest of all snags, and the remaining 325 acres were to retain all snags, thus technically accounting for a required 8-12 snags per acre, but in effect meaning that over two-thirds of the affected acreage would be completely stripped of all snags. See Brong, 492 F.3d at 1129-30. There is no indication that the snag removal in this case is analogous to the treatment in Brong. The Design Criteria and Resource Protection Measures of the EIS indicates the Project will "retain [where snags or down logs of this size exist and except for instances where snags must be felled for safety] an average of 2 to 6 snags per acre ... meeting the minimum requirements of 20 inches DBH and at least ten feet in height." (AAR 536.) Moreover, the treatment referenced by Plaintiff is to occur in the Defensible Fuel Management Zone, a 150-foot corridor established around important Forest System operation and public use roads; the removal of snags in this area is done as a safety precaution for public and fire personnel. (AAR 229, 257.)
With respect to the Project's effects on snags and down logs, the Court does not find that Defendant Forest Service acted arbitrarily or capriciously in failing to comply with the NFMA.
Pursuant to 16 U.S.C. 1604(g)(3)(B), Defendant Forest Service is required to "provide for diversity of plant and animal communities." To meet this requirement, Defendant Forest Service must ensure that viable populations of native animals are maintained, a duty that "applies with special force to `sensitive' species." Ecology Center v. Austin, 430 F.3d 1057 (9th Cir. 2005) (citing Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 n. 2 (9th Cir. 2000). The Northern goshawk, Pacific Fisher, and American marten are listed as sensitive species in the Project area. (ECF No. 52 at 40.) Plaintiff briefly argues that Defendant Forest Service lacks substantive information about the populations of these species, and therefore contends that Defendant Forest Service cannot ensure that viable populations will be maintained. (ECF No. 52 at 40; ECF No. 74 at 7-8.) However, Plaintiff does not otherwise advise the Court as to specific management or population monitoring duties with which Defendant Forest Service failed to comply.
A prior ruling in this District, Conservation Congress v. U.S. Forest Service, No. 08-2483, at *5-8 (E.D. Cal. June 4, 2009), aff'd No. 09-16182, 371 Fed. Appx. 723 (9th Cir. 2010) found that the use of habitat capability models, as applied to the goshawk and furbearer species under the Shasta-Trinity LRMP, is a permissible form of population documentation. As that Court noted, the Ninth Circuit has "repeatedly approved the Forest Service's use of the amount of suitable habitat for a particular species as a proxy for the viability of that species, and its use of habitat as a proxy to measure a species' population." See id.; Ecology Ctr. v. Castaneda, 574 F.3d 652, 664 (9th Cir. 2009). "When the Forest Service decides, in its expertise, that habitat is a reliable proxy for species' viability in a particular case, the Forest Service nevertheless must both describe the quantity and quality of habitat that is necessary to sustain the viability of the species in question and explain its methodology for measuring this habitat." Lands Council v. McNair, 537 F.3d 981, 997-98 (9th Cir. 2008).
With respect to the goshawk, the EIS states that Defendant Forest Service evaluated population by using a "habitat capability model, research data, vegetation classes in the northern section of the Algoma LSR, stand exam data, and field review." (AAR 546.) The EIS determined that past projects impacted 158 acres, or 1.4% of suitable habitat within the cumulative impacts analysis area, and that it occurred outside of nest cores. (AAR 313.) The EIS contains an extensive discussion of the Project's anticipated effects to the goshawk, including that Project activities will not occur within the 200-acre core areas of the four goshawk territories in the Project area. (AAR 311.) The EIS predicts that all treated stands are expected to continue to function as foraging habitat after the Project is implemented, and overall concludes that the Project will not hinder goshawk viability. (See AAR 310-313.) Plaintiff references the EIS for the fact that the Project will impact 27% of suitable habitat and reduce canopy cover from 70% to 45% in the short term, with canopy cover expected to return in 20-30 years. (AAR 554-555.) However, absent further guidance from the parties as to the precise relevance of this effect, this Court is not prepared to find that Defendant Forest Service was arbitrary or capricious in its assessment of effects on the goshawk.
Defendant Forest Service evaluated Project effects on the American marten and Pacific fisher together because they share similar habitat requirements. (AAR 561.) Based on habitat capability modeling for these species, Defendant Forest Service concluded that there was "little to no" high quality habitat for either species in the Project area. (AAR 563.) Under a different analysis (modeled after NSO habitat), Defendant Forest Service determined that 96% of the high-quality habitat in the Project area would remain unaffected and available for use by these species.
Plaintiff does not specify any management or population monitoring duties under the NFMA or Shasta-Trinity LRMP with which Defendant Forest Service failed to comply. Without more, the Court cannot find that Defendant Forest Service's activities with respect to these species constitutes arbitrary and capricious conduct. The Court therefore grants summary judgment in favor of Defendants and Defendant Intervenors with respect to Claim 4.
The Complaint contends broadly that the Forest Plan requires the Forest Service to manage threatened species under existing recovery goals, as identified in the species Recovery Plan. (ECF No. 33 at 21.) Plaintiff does not otherwise brief the Court as to the specific provision under the NFMA that has been violated. Plaintiff's Memorandum in Support of Summary Judgment (ECF No. 52) makes a claim under the Endangered Species Act, as the Court has discussed, to the effect that the Project does not adhere to the 2011 Recovery Plan's recommendation that large diameter and/or old growth trees be retained in NSO habitat. (ECF No. 52 at 37.) However, Plaintiff does not otherwise address this claim in its briefing. Therefore summary judgment is granted to Defendants and Defendant Intervenors with respect to Claim 5.
Plaintiff contends that Defendant Forest Service violated the NEPA because: 1) it failed to disclose opposing scientific views about the relationship between the NSO and wildfire; and 2) it failed to adequately address cumulative effects of the Project to the NSO.
As a component of the requirement that Defendant Forest Service provide a full and fair discussion of environmental impacts of a proposed action (i.e. the requisite "hard look"), the Ninth Circuit has faulted an agency for not addressing uncertainties relating to the action "in any meaningful way." See Seattle Audobon Soc'y v. Espy, 998 F.2d 699, 704 (9th Cir. 1993). NEPA does not require that Defendant Forest Service affirmatively present every uncertainty in its EIS, but it "must acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exists." See Lands Council, 537 F.3d at 1001. That said, an agency must be permitted discretion in relying on the reasonable opinion of its own qualified experts, even if the court might find contrary views more persuasive. See Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976). A reviewing court is not to entertain a "battle of the experts" when plaintiffs proffer expert testimony to set against the agency's professional judgment. See Lands Council, 537 F.3d at 1000.
As the Court has discussed, Plaintiff points to studies showing the benefits of wildfire to NSO habitat, and contends that the Forest Service did not adequately address and disclose these studies. (ECF No. 52 at 49.) However, the EIS in this case contains an extensive discussion of fire management treatment plans.
The Court's role in this regard is "simply to ensure that the Forest Service made no clear error of judgment that would render its action arbitrary and capricious." See Lands Council, 537 F.3d at 993 (internal quotations omitted). The Court does not find that Defendant made this error.
A cumulative impact is defined in NEPA's implementing regulations as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions ... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7. "A proper consideration of the cumulative impacts of a project requires some quantified or detailed information; general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided." Klamath-Siskyiuou Wildlands Ctr. v. BLM, 387 F.3d 989, 993 (2004) (internal quotations omitted). "[I]n assessing cumulative effects, the Environmental Impact Statement must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and difference between the projects, are thought to have impacted the environment." Lands Council v. Powell, 395 F.3d 1019, 1028 (2004); see also Great Basin Mine Watch v. Hankins, 456 F.3d 955, 971-72 (9th Cir. 2006).
The cumulative effects report within the EIS considered the impacts of the Algoma Project with respect to two spatial scales: the "Action Area", which consists of a 1.3 mile buffer around the Algoma Project Area, and a broader scale, totaling approximately 89,028 acres of mostly federal land.
Notably, the Action Area analysis determined the following: 1) 32 projects were completed within the Project area within the prior 20 years, resulting in approximately 9,000 acres of commercial thinning, 260 acres of patch or clear cutting, and about 113 acres of sanitation/salvage; 2) future Federal projects to overlap the Project area include the Moosehead, East McCloud, and Toad Mountain Projects; 3) approximately 17,960 acres of timber harvest plans have occurred on private lands within the Project area in the last 20 years. (See AAR 897-98.)
With respect to habitat modification, the EIS summarizes the cumulative effects on the Project area to include the following: 1) the degradation of 7,424 acres of foraging habitat over the last 20 years; the Forest Service determined that this habitat remained functional as foraging habitat post-treatment; 2) the Algoma Project would degrade approximately 1,815 acres with thinning treatments; the degraded habitat is expected to remain fully functional as foraging habitat post-treatment;
Plaintiff contends that in NSO activity center ST-204, private land comprises the majority of the home range and that the EIS provides no actual analysis of the impacts related private lands logging in ST-204. (ECF No. 52 at 42.) Defendant responds that the Algoma Project does not propose treatment within ST-204, and thus it need not address the cumulative impact of the Project with respect to private logging.
Plaintiff also contends that the cumulative effects report does not adequately consider the cumulative effects of the Moosehead Project. (ECF No. 69 at 52.) However, the report discloses that portions of two Moosehead Project units (units 124 and 127) overlap the Project Area and estimates that thinning in these units would degrade 80 acres of foraging habitat. (AAR 898.) Within the second, larger-scale analysis, the report states that the Moosehead Project would degrade 1,400 acres of foraging habitat, and concludes that this habitat would return within roughly 10 years. (AAR 905.)
The cumulative effects report in the EIS provides a sufficiently detailed catalogue of past, present, and future projects, including quantified predictions regarding changes to nesting, roosting, and foraging habitat for the NSO. The Court does not otherwise find that Defendant Forest Service acted arbitrarily or capriciously in failing to consider the cumulative effects to the NSO.
Therefore, summary judgment with respect to Claim 6 is granted in favor of Defendants and Defendant Intervenors.
For the reasons discussed herein, Plaintiff's Motion for Summary Judgment (ECF No. 52) on Claims 1 through 6 of the First Supplemental Complaint (ECF No. 33) is DENIED. Defendants' Motion for Summary Judgment (ECF No. 68) and Defendant Intervenors' Motion for Summary Judgment (ECF No. 62) is GRANTED. Plaintiff's Motion for Preliminary Injunction (ECF No. 81) is moot and the Court does not reach this issue.
16 U.S.C. §1532(5)(A).
