Opinion
Case No. 03-478-HO.
June 23, 2004
ORDER
The complaint alleges two claims under the National Environmental Policy Act (NEPA) against the Bureau of Land Management (BLM) in connection with the decision to implement the Mr. Wilson Timber Harvest Project. The project involves logging approximately 6.4 mmbf of timber by various harvest prescriptions on 213 acres of late successional forest in twenty units in the West Fork Cow Creek 5th field watershed (WFCC), Glendale Resource Area, Medford BLM District. In their first claim, plaintiffs allege that the environmental assessment (EA) for the project is inadequate. In their second claim, plaintiffs allege that BLM failed to prepare a required environmental impact statement (EIS). The parties' cross motions for summary judgment are before the court. The court earlier ruled that it will not consider plaintiffs' extra-record evidence in resolving the cross motions for summary judgment.
Discussion
The court reviews plaintiffs' claims under the arbitrary and capricious standard. Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998).
I. First Claim for Relief — Inadequate EA
Plaintiffs allege that the EA is inadequate because it lacks a sufficient analysis of (1) impacts and cumulative impacts of the project on Port Orford Cedar trees (POC), the spread of Cedar Root Rot (P. lateralis) and red tree voles (RTVs), and (2) cumulative impacts to several late successional habitat (LSH) dependent species. Comp. at 15-18.
A.P. Lateralis and POC
BLM contends that to the extent plaintiffs allege that it failed to consider effects and cumulative effects on P. lateralis and POC, plaintiffs' claims are moot. Plaintiffs sought declarations that BLM violated NEPA by preparing an inadequate EA and by failing to prepare an EIS, and an injunction against further action within or in connection with the Mr. Wilson Project until BLM can demonstrate full compliance with NEPA. Comp. at 20. While this litigation was pending, BLM and the United States Forest Service completed the 2004 Final Supplemental EIS on Management of POC in Southwest Oregon (2004 POC FSEIS), and BLM completed a "supplemental EA amend[ing] the existing analysis of the Mr. Wilson EA to add an evaluation of the need for site-specific POC mitigation measures using the application of a Risk Key proposed in the 2004 POC FSEIS." Defs' Exs. A B. The supplemental EA also addressed cumulative impacts to POC. Ex. A at 4. BLM provided a public comment period for the supplemental EA, plaintiff Klamath Siskiyou Wildlands Center submitted comments, and BLM issued a finding of no significant impact and decision record documenting the decision of Field Manager Lynda Boody to make no modifications to the original decision. Ex. A, Exs. B C.
Plaintiffs argue that BLM cannot cure prior NEPA violations with documents generated in response to litigation, because these documents merely serve as post hoc rationalizations. The same criticism may be leveled against any NEPA documents that BLM would produce should the court grant plaintiffs' request for injunctive relief. It is also worth noting that while BLM and the Forest Service prepared the 2004 POC FSEIS in response to litigation, the agencies did not prepare that document in response to this particular litigation. 2004 POC FSEIS at S-1. This case is distinguishable from Idaho Sporting Congress v. Alexander, 222 F.3d 562, 568 (9th Cir. 2000), cited by plaintiffs, because BLM permitted administrative appeals and issued a new decision document, in addition to affording an opportunity for public comment. Plaintiffs also point to Metcalf v. Daley, 214 F.3d 1135, 1143-44 (9th Cir. 2000), where the agency did not prepare an EA until more than one year after entering into a contract that bound the agency to make a formal proposal for a whaling quota. In Metcalf, the court held that the agency's process was fatally defective, and ordered the agency to suspend its decision and issue a new EA. 214 F.3d at 1146. The facts of this case are different. Unlike the agency inMetcalf, BLM timely prepared an EA; plaintiffs simply allege that it is inadequate. Under these circumstances, the court concludes that the new supplemental documents are not fatally flawed by virtue of their timing, are operative, and therefore moot plaintiffs' claims to the extent they depend on BLM's failure to consider impacts and cumulative effects of the project on POC and P. lateralis. See Friends of the Payette v. Horseshoe Bend Hydroelectric, 988 F.2d 989, 996 (9th Cir. 1993); Kasza v. Browner, 133 F.3d 1159, 1172 (9th Cir. 1998); Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir. 1990).
B. Red Tree Voles
The complaint alleges that the EA fails to adequately address the impacts and cumulative effects of the project to RTVs, and that the EA unlawfully tiers to the RTV Management Recommendation (MR). Plaintiffs did not address these allegations in detail in their summary judgment papers, focusing instead on northern spotted owls, discussed below. The EA tiers to the RMP/EIS for analysis of environmental consequences in addition to analyzing site specific impacts. AR at 392. It is not unlawful tiering for the EA to consider the mitigating effects of management recommendations that will be implemented. The discussion would be incomplete without such a discussion. AR at 382.
BLM devoted more than one page of the EA to analysis of effects of the project on RTVs. AR at 382. The EA discusses cumulative effects to RTVS while discussing effects to LSH-dependent species.
[Red tree voles are] vulnerable to cumulative effects of timber harvest within a watershed. The cumulative effects of timber harvest on both public and private lands within the . . . project area may lead to substantially reduced or locally extirpated populations in the eastern portion of the project area . . . The dispersal capability of . . . red tree voles . . . would be substantially reduced across this fragmented watershed for several decades, until closed canopy conditions develop in regenerating units. As fragmentation continues, isolated, resident populations . . . would likely be concentrated within the remnant [LSH] blocks . . . and riparian reserves, and in small areas deferred from harvest or managed for SM species in recent timber sales within the [WFCC] watershed. AR at 394-95. As designed, the project provides ten-acre buffers around known active RTV nests. AR at 374. Surveys were conducted, and no nests were found. AR at 373. The Mr. Wilson Project purportedly implements the RMP. General effects of the RMP on RTV habitat are discussed in the RMP/EIS, to which the EA is tiered. The court finds that with respect to effects and cumulative effects on RTVs, BLM took the hard look that NEPA requires.
C. Late Successional Species
The complaint alleges that the EA fails to comprehensively analyze cumulative effects of the project and foreseeable projects in the watershed on northern goshawk habitat, RTVs, and salmonids. Again, plaintiffs have not briefed this claim, preferring instead to focus their challenges to BLM's consideration of impacts to the northern spotted owl and its habitat. The EA states that the WFCC watershed contains 20,210 acres of LSH on public ownership; the Key Elk, Mr. Wilson, Bear Pen and Willy Slide timber sales would remove or modify up to 1,000 acres of LSH; several blocks greater than 300 acres, functioning as corner to corner contiguous habitat, are likely to be substantially reduced and fragmented; and remaining small isolated blocks are likely to be harvested. AR at 392-94. The analysis further states that LSH connectivity in the watershed is very poor (primarily corner to corner on public matrix lands), and that a decision was made to log small, isolated patches in the eastern portion of the Wilson/Walker Creeks project areas (sixth-field watersheds) to avoid disturbing the relatively large areas of LSH in the western portion of the project areas. Id.
The EA goes on to describe anticipated cumulative effects on LSH dependent species:
Species with high mobility, such as northern spotted owls, would likely still be able to disperse . . . between LSRs and the Bobby Creek RNA. The dispersal capability of species with low mobility, such as Del Norte salamanders, red tree voles, and mollusks, would be substantially reduced across this fragmented watershed for several decades, until closed canopy conditions develop in regenerating units. As fragmentation continues, isolated, resident populations of these . . . species would likely be concentrated within the remnant [LSH] blocks . . . and riparian reserves, and in small areas deferred from harvest or managed for SM species in recent timber sales within the [WFCC] watershed. Through continual timber management, there would be a general decline in mature hardwood abundance, and therefore also tree species richness. Species which may depend primarily or exclusively on hardwoods would most likely also decline.Id. To the extent the cumulative effects analysis may be inadequate, it must be considered that the EA tiers to the EIS for the Medford District RMP (RMP/EIS). The RMP/EIS contains a discussion of the effects of the PRMP on Del Norte Salamander populations and habitat within general forest management areas (GFMAs). RMP/EIS at 4-53-56, 4-81. The RMP/EIS does not discuss effects of the PRMP on RTV populations, although effects on RTV habitat are considered. RMP/EIS at 4-53-56. The EA contains a paragraph discussing effects to northern goshawks and concluding that effects would be low. AR at 387. Effects on the Northern Goshawk are also discussed in the RMP/EIS at 4-81. The EA considers effects on aquatic and riparian habitat and cumulative effects on hydrology, and assures that the project complies with key watershed guidelines and aquatic conservation strategy objectives, and will have no substantial adverse effect to coastal coho salmon and steelhead or their critical habitat. AR at 375, 394.
Plaintiffs seem to argue that a project-level EA can never tier to a district-level EIS for analysis of effects and cumulative effects. The court disagrees with this contention. In any case, whether tiering is permissible will always depend on the particular analysis at issue, and whether tiering is reasonable considering, inter alia, whether the EIS is sufficiently site specific.
The court finds that between the EA and RMP/EIS, BLM took the hard look at cumulative effects to these species that NEPA requires.
Plaintiffs also argue that BLM failed to disclose adequate quantified information in its cumulative effects analysis. Quantified or detailed information is required. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1379 (9th Cir. 1998). BLM identified foreseeable projects (AR at 393), provided quantified information of existing conditions in the fifth-field watershed (AR at 394), and provided quantified information regarding the impact of foreseeable timber harvest on late successional habitat (LSH) in the watershed (AR at 395).
Plaintiffs argued in support of their second motion for preliminary injunction that the EA was inadequate because BLM did not disclose the volume of timber to be cut from foreseeable timber sales, thus preventing the public from ensuring that BLM did not exceed RMP estimates of probable sale quantity, allowable sale quantity or the non-interchangeable component of allowable sale quantity attributable to key watersheds. It is desirable for BLM to provide such information. However, the court does not hold that BLM violated NEPA for failing to include this information in the EA. The court holds that the quantified information provided by BLM was sufficient to satisfy BLM's obligation to provide quantified information in support of its cumulative effects analysis.
D. Impacts to Northern Spotted Owls and Owl Habitat
Plaintiffs did not specifically allege in the complaint that the EA is inadequate in its analysis of impacts to northern spotted owl and northern spotted owl habitat, but plaintiffs vigorously argue this contention in their summary judgment filings. Plaintiffs argue that the EA's analysis of direct impacts to northern spotted owls is inadequate for the following reasons: (1) BLM did not consider that the life-span of northern spotted owls is eight years when it determined that commercial thinning (CT) aspects of the project will provide net benefit to northern spotted owls; (2) BLM failed to consider that new stands will not contain components of old-growth habitat, including snags, downed wood and canopy layering; (3) increased tree stem diameter does not necessarily equate to improved habitat; (4) BLM failed to disclose the existence of possible owl activity sites; (5) BLM failed to state baseline data for the Wall Walker owl activity site; (6) the EA does not discuss the presence of barred owls in the project area; and (7) the EA does not analyze impacts to owl corridors, fragmentation of LSH and connectivity.
It appears from the EA that BLM concluded that net effects would be positive for alternative four, which was not selected. AR at 298, 379. In any event, the EA does not claim a net benefit to owls presently living, and concludes that the preferred alternative would remove LSH and northern spotted owl habitat within and without owl activity sites, and would negatively impact northern spotted owl critical habitat. AR at 378-81. The EA discloses that matrix lands may be cut after they reach maturity. AR at 378, 381. The portion of the EA cited by plaintiffs does not claim that increased stem diameter necessarily equates to improved owl habitat, and plaintiffs rely on the rejected Pearson declaration in support of this argument. Furthermore, BLM surveyed for coarse woody material and planned for retention in units that did not meet guidelines. AR at 368, 405-06.
Plaintiffs also appear to argue that the EA lacks a baseline analysis of the present suitability of northern spotted owl habitat in the project area. Pls' Memo. at 22. The EA sets out the existing quantity of suitable habitat in the project area, amounts that would be removed, amounts existing within 1.3 miles of known activity centers, and amounts that would be removed from the activity centers. AR at 378-80 (EA at 29-31). The EA also describes the present condition of LSH in the project area. AR at 352, 377. The EA erroneously stated that 113 acres of LSH would be harvested under the preferred alternative, when in fact the correct amount is 213 acres. NEPA appears to have served its purpose here as BLM acknowledged the error in the ROD and proceeded fully aware that the project would result in the loss of 213 acres of suitable habitat.
Plaintiffs rely on the rejected Pearson declaration to support their argument that the EA fails to disclose possible owl activity centers. Pearson testified that he has never visited the project area. BLM provided baseline data for the Wall Walker owl activity center. The EA sets out the amounts of suitable habitat within the site before and after harvest and discloses that the site contains below 40% suitable habitat, which would be further reduced by the project. AR at 379 (EA at 30). Percentages of suitable habitat within the site before and after harvest may be calculated using the information provided in the table. Plaintiffs are correct that the EA does not provide reproductive history information for the Wall Walker owl pair, but the court does not find this omission to be significant.
Plaintiffs also argue that table three is inaccurate. See AR at 380. It is apparent from the face of the table that BLM failed to subtract 23 acres of suitable habitat that would be degraded to dispersal habitat within the Landslide site under alternative four, and failed to subtract 43 acres of suitable habitat that would be removed from the Wall Walker site under alternative three. Additionally, Pearson testified that he is experienced in working with geographical information system (GIS) data, and that based on his review of BLM GIS data, information for the Landslide site is incorrect, because one unit identified as within the site is in fact located outside the site, and one unit counted without the site, is in fact within the site. Plaintiffs' exhibit 40 is a map of the Landslide site prepared by Pearson, showing unit 16 as within the Landslide site area, and unit 22 as without the site area. Table three counts unit 22 as within the area, and unit 16 as without the area. AR at 380. Activities in unit 22 under all alternatives would consist of seven acres of commercial thinning (CT) harvest, except for alternative five, which would consist of four acres of CT harvest. AR at 359. For unit 16, BLM planned overstory removal (OR) and regeneration harvest (RH) over six acres for alternatives one through three, and five acres of RH for alternative five, the preferred alternative. AR at 358.
BLM Wildlife Biologist Marlin Pose testified that the Landslide pair moves its nest from time to time; GIS data identifying owl sites is based upon an average of locations over a period of years; and GIS data is sometimes used to identify the location of owl activity centers, but was not used to identify the location of the Landslide site for purposes of compiling table three, because the nest location was found approximately one mile north of the location indicated in the GIS data. Given the small size of these parcels and the volume of timber involved, the court concludes that possible errors are insignificant, and do not render BLM's analysis of impacts meaningless, as plaintiffs contend.
The argument that BLM's failure to account for the presence of barred owls in analyzing the project's impacts on northern spotted owls is significant is supported only by the rejected Pearson declaration.
Finally, BLM appears to have considered impacts to connectivity and the ability of northern spotted owls to disperse, in contrast to plaintiffs' assertions. BLM described the present condition of LSH within the project area, including its fragmented character, and stated that harvest activities would occur in small, isolated patches in twenty different units in nine sections, mostly in the eastern portion of the project area. AR at 356-62, 377, 395. BLM reasonably concluded that the landscape would continue to be fragmented and, it follows, species with high mobility would be affected less than species with low mobility. AR at 377.
Relatedly, plaintiffs argue that the conclusion that the CHU will continue to function as intended is unsupported. The conclusion is based on BLM's calculation that after implementation of the preferred alternative, 58% of the CHU within the WFCC would consist of suitable northern spotted owl habitat. EA at 381. As noted, the EA erroneously stated that 113 acres of suitable habitat would be removed in the project area under the preferred alternative, when in fact, the number of acres that will be lost is 213. The error does not render BLM's analysis unreliable, considering the size of the CHU, and small sizes of the harvest units.
Plaintiffs contend that the issue is BLM's failure to disclose the amount of habitat required for the CHU to function properly, the impact of the project on that baseline, and an analysis that supports the conclusion that the CHU will continue to function as intended. Such a complete analysis is certainly desirable. The court does not find, however, that BLM's failure to completely support its conclusion that the CHU will continue to function renders the effects analysis meaningless, or demonstrates that BLM failed to take the hard look that NEPA requires. The court is deferential to an agency's conclusions regarding scientific questions such as whether the CHU will continue to function after implementation of the project. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989).
E. Cumulative Effects to Northern Spotted Owls
Next, plaintiffs' argue that BLM failed to consider the cumulative effects of reasonably foreseeable future projects on the functioning of the CHU within the WFCC. The EA discloses that before implementation of the Mr. Wilson Project, the WFCC contained 15,270 acres designated northern spotted owl critical habitat, of which 8,900 acres was suitable habitat. AR at 352. The EA further discloses that recent and future timber management actions would remove or modify up to 1,000 acres LSH, including the reduction or fragmentation of several blocks greater than 300 acres which function as corner to corner contiguous habitat, and remaining small isolated habitat blocks in some sections are likely to be harvested, resulting in the removal of remaining LSH in some sections. AR at 395. Plaintiffs are correct that BLM did not calculate the percentage of suitable habitat remaining within the LSH after implementation of all of the foreseeable timber management actions. However, all the information necessary to perform the calculation is provided. Based on the amount of suitable habitat that would remain under the worst case scenario, it is not unreasonable for BLM to conclude that species with high mobility such as northern spotted owls would likely still be able to disperse after the projects are implemented. AR at 395. Furthermore, the Northwest Forest Plan (NWFP) contemplated that timber harvest on matrix lands would occur, and would have little impact on designated critical habitat. 1994 NWFP Standards and Guidelines ROD at A-3. The EA adequately addresses site specific impacts to the portion of the CHU within the WFCC.
III. Second Claim for Relief — Failure to Prepare EIS
Plaintiffs argue that BLM was required to prepare an EIS, because the project area includes and will degrade "ecologically critical areas," and involves controversial logging of old growth trees and unknown risks. See 40 C.F.R. § 1508.27(b) (significance factors). "Timber sales do not categorically require preparation of an EIS." Kern v. Bureau of Land Management, 284 F.3d 1062, 1067 (9th Cir. 2002). As noted, the 1994 NWFP Standards and Guidelines ROD contemplated logging within critical habitat units on matrix lands. Plaintiffs argue that the project entails unknown risks because it will be detrimental to undiscovered northern spotted owl and RTV nest sites. Known northern spotted owls cites were disclosed and no RTV nests were discovered. AR at 373, 379. This is not the kind of high uncertainty that mandates preparation of an EIS. There can be little doubt that the logging of old growth forest stands is controversial, but that fact alone does not require BLM to prepare a new EIS each time it proposes to log old growth trees in a project that implements the RMP and NWFP, although BLM must always adequately consider site-specific effects, and must prepare an EIS in appropriate cases. This is not such a case.
Conclusion
For the foregoing reasons, plaintiffs' motion for summary judgment [#59] is denied; defendants' motion for summary judgment [#95] is granted. If plaintiffs wish to challenge the supplemental EA or 2004 POC FSEIS in this lawsuit, they must file a motion for leave to file an amended complaint within fourteen days of the date of this order, and BLM may file a response. If plaintiffs do not timely file such a motion, this action will be dismissed.
IT IS SO ORDERED.