Opinion
Case No. 2:01-CV-00316PGC
March 27, 2003
MEMORANDUM OPINION AND ORDER
Before the court are two evidentiary motions (Doc. #14-1 and #18-1) to strike extra-record materials and two motions addressing the merits of the Forest Service's Record of Decision ("ROD") to authorize the Monroe Mountain timber sale in the Fishlake National Forest (Doc. #14-1 and #18-1). For the reasons stated below, the court DENIES both motions to strike and finds that the Forest Service's ROD is not arbitrary, capricious, or otherwise contrary to the law.
I. Motions to Strike
Both defendants Dale Bosworth, et al ("Federal Defendants") and plaintiff Utah Environmental Congress ("UEC") have moved the court to strike certain exhibits attached to the pleadings in this matter which are not contained in the Administrative Record ("AR"). Generally, the trial court should not consider materials outside the administrative agency's record unless (i) the record needs to be expanded to explain agency action; (ii) the agency relied on the outside materials; (iii) to explain technical terms or a complex subject; or (iv) agency bad-faith has been shown. The court will address each motion separately.
See Franklin Sav. Assoc'n. v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991).
A. Denise Boggs' Affidavit
The court DENIES the Federal Defendants' motion to strike Denise Boggs' (Founder and Executive Director of Utah Environmental Congress) Affidavit. The Federal Defendants concede that "plaintiffs correctly state that they are allowed, indeed encouraged, to produce affidavits to establish standing any time during the briefing phase."Boggs' Affidavit directly addresses the three elements of standing: injury in fact, causation, and redressibility. Even paragraphs 10 and 11 of the Affidavit, which address specific animal species and the damage that will allegedly occur to the units planned for logging, relate to establishing UEC's injury and redressibility issues. Accordingly, the court will consider Boggs' Affidavit for the limited purpose of establishing standing.
Federal Defendants' Reply Brief to Plaintiff's Response to Federal Defendants' Motion to Strike Extra-Record Material ("Reply to Motion to Strike") at 2; See also Qwest Comm Intern., Inc. v. F.C.C., 240 F.3d 886, 892-93 (10th Cir. 2001).
See Affidavit of Denise Boggs.
B. The Seven Mile Appeal and the Seven Mile Amendment
The parties strongly dispute the admissibility of both the Regional Forester's ruling in the appeal of the Seven Mile Salvage Timber Sale on the Richfield Ranger District of the Fishlake National Forest ("Seven Mile Appeal") and its subsequent amendment ("Seven Mile Amendment"). On the one hand, the Federal Defendants' ask the court to strike the Seven Mile Appeal since it was rendered after the ROD and it dealt with a different project and different circumstances. On the other hand, UEC seeks to admit the Seven Mile Appeal but to strike its Amendment on grounds that there is no procedure in law or in the Forest Service appeal regulations for a regional forester to `amend' or change in any way a final appeal ruling."' As explained below, the court DENIES both motions.
See Memorandum in Support of Federal Defendants' Motion to Strike Extra-Record Materials Attached to Plaintiff's Petition for Review of Agency Action ("Memo to Strike") at 6.
See Plaintiff's Response to Defendant's Motion to Strike and Plaintiff's Counter-Motion to Strike at 8.
First, the court denies the motion to strike the original Seven Mile Appeal for two reasons. For one thing, this ruling is a published quasi-judicial decision of the agency, and thus falls outside the general rule excluding extra-record materials in administrative appeals. As an independent reason for admitting the decision, it fits within an exception to the rule excluding extra-record materials. Specifically, a court is permitted to review information outside the administrative record where a plaintiff alleges that the agency "swept stubborn problems or serious criticism under the rug."In this case, UEC alleges exactly that. It alleges that the Forest Service redrew roadless area boundaries improperly. UEC uses the Regional Forester's Seven Mile Appeal, which reversed the Forest Service's decision for that exact reason, as evidence that the agency acted improperly in this case. Therefore, the court will admit the Seven Mile Appeal.
National Audubon Soc. v. U.S. Forest Serv., 46 F.3d 1437, 1447 (9th Cir. 1993); Suffolk County v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2nd Cir. 1977); cert. denied, 434 U.S. 1064 (1978).
Second, the court denies the motion to strike the Seven Mile Amendment. According to the Federal Defendants, "[a]fter discovering that the administrative appeal decision contained dicta that was incorrect and after realizing that he had not considered the effect of the Utah Wilderness Act of 1984," the Appeal Deciding Officer amended his decision. In the Amendment, the Appeal Deciding Officer corrected two parts of his former ruling. First, he stated that "[i]t is not inappropriate to use the "Draft Intermountain Region Planning Desk Guide, Roadless Area Inventory and Evaluation' (1988) ("Desk Guide") at the project level to update roadless area inventories." Second, he stated that "[b]ecause Congress had already designated Wilderness in Utah before the Fishlake Forest Plan was approved, it was no longer necessary to identify potential wilderness in the Forest Plan."
Reply to Motion to Strike at 3.
See Memo to Strike, Exhibit 1.
Id.
Although there appears to be no federal decision directly addressing this situation, the court finds that the Seven Mile Amendment is admissible for several reasons. For one thing, similar to the Seven Mile Appeal itself, the Amendment is a quasi-judicial decision of the agency, and thus falls outside the general rule excluding extra-record materials in administrative appeals. Further, there is no sound reason for denying the agency the ability to correct errors in its decisions. Federal Rule of Civil Procedure 60(a) is instructive on this issue. It provides that "[c]lerical mistakes in judgments, orders or other parts of the record . . . may be corrected by the court at any time of its own initiative." By analogy, the court concludes that the Appeal Deciding Officer had inherent authority to correct mistakes made in the Seven Mile Appeal. Finally, as a matter of consistency, since the court admitted the Seven Mile Appeal as evidence of UEC's allegation that the Forest Service "swept stubborn problems or serious criticism under the rug,"'the court also allows the Seven Mile Amendment as evidence to potentially rebut these allegations. Accordingly, UEC's motion to strike (Doc. #29-1) is DENIED. of course, the court will carefully evaluate both parties' arguments as to what weight should be given to the Seven Mile Appeal and its Amendment in light of the somewhat unusual circumstances in this case.
National Audubon Soc., 46 F.3d at 1447; Suffolk County, 562 F.2d at 1384-85.
C. Map from the Forest Service Roadless Area Conservation FEIS
The court DENIES the Federal Defendants' motion to strike the map from the Forest Service Roadless Area Conservation Final Environmental Impact Statement ("FEIS") based on a study the Forest Service calls the "RARE II Inventory." The text of this exhibit is already included in the record and the map will only be considered to explain agency action and the subject matters at issue in this appeal.
D. Report from USDA Office of the Inspector
The court DENIES the Federal Defendants' motion to strike the report from the USDA Office of the Inspector General evaluating the environmental analysis requirements for forest service timber sales. UEC cited this report in its administrative appeal, and it explains and clarifies technical matters involved in the agency's monitoring of rare wildlife species. Thus, this evidence falls squarely under the exception to the general rule excluding extra-record materials since it will explain technical terms and a complex subject to the court.
See Franklin Sav. Assoc'n., 934F.2dat 1137.
Accordingly, both motions to strike (Doc. #21-1 and #29-1) are DENIED.
II. Appeal of Forest Service's ROD for the Monroe Mountain Ecosystem Restoration Project
UEC moves the court for an order reversing the Forest Service's ROD authorizing the Monroe Mountain timber sale in the Fishlake National Forest. UEC also asks the court to enjoin the Forest Service from taking any further action under that ROD until it demonstrates compliance with all applicable laws. For the reasons explained below, the court affirms the ROD. Jurisdiction to hear this agency appeal is proper pursuant to the Administrative Procedure Act, 5 U.S.C. § 701-706.
Introduction
In 1986, the Forest Service adopted the Fishlake National Forest Land and Resource Management Plan ("Forest Plan"). The Plan sets forth certain management guidelines and directives with which the Forest Service must comply with when approving projects that affect the wildlife species and the recreational uses of the Fishlake National Forest. In its appeal, UEC alleges that the Forest Service failed to comply with the Forest Plan in its ROD approving the Monroe Mountain Ecosystem Restoration Project ("Project"). The Project is the culmination of five years of interconnected analyses completed by the Fishlake National Forest through participation in the national Seeking Common Ground Demonstration Area Initiative. Apparently one of the goals of this "common ground" initiative is to avoid litigation, a goal obviously not achieved in this particular case.
The primary goal of the Project is to address the decline of aspen. The numerous benefits of aspen ecosystems include forage for livestock, habitat for wildlife, watershed protection, water yield for downstream users, esthetics, sites for recreational opportunities, wood fiber and landscape diversity.
See Project Status Update, AR at 0000014.
See Decline of Quaking Aspen, AR at 0003750-51.
In 1995, the Monroe Mountain Partnership, a group of land managing agencies, private landowners and citizens groups, implemented the Burnt Flat Analysis case study. This analysis revealed that diversity was being lost at an alarming rate in the landscapes within and surrounding the Burnt Flat Analysis area on Monroe Mountain. In 1996, a fire study revealed that reduced fire activity had caused significant changes to the vegetative cover types traditionally found on Monroe Mountain, resulting in loss of aspen acreage, declining forest health and timber mortality due to insects and disease. As a result, the Forest Service determined that active treatments were necessary to restore and sustain the rapidly declining ecosystems and bio-diversity of Monroe Mountain.
See Burnt Flat Analysis, AR at 0003898.
See Fire History Study, AR at 0002076.
The Project covers approximately 50,000 acres and is located on the high mountain plateau of the Monroe Mountain of the Richfield Ranger District in the upper drainages of twelve watersheds within the Sevier River Basin. Monroe Mountain is an island range of the Sevier Plateau encompassing more than 320,000 acres, approximately 65 percent of which is located on the Fishlake National Forest and the remainder is divided between the Bureau of Land Management, the State of Utah Wildlife and Parks, and private landowners. The alternative selected by the Forest Service to address its concerns would implement management activities such as timber harvest, prescribed fire and sagebrush treatments on less than 5,000 acres of Monroe Mountain.
See FEIS, AR 0000485.
See Cooperative Management, AR at 0003836.
See FEIS, AR at 0000485 (II-23).
UEC alleges four grounds for reversing the Forest Service's ROD for the Project: (a) that it excluded roadless area lands from its existing inventory without following established criteria and that the roadless area validation was illegal in a project-level Environmental Impact Statement ("EIS"); (b) that it failed to monitor Management Indicator Species ("MIS"); (c) that it failed to plan for the diversity of plant and wildlife species; and (d) that it failed to comply with NEPA and MUSYA. The court will address each allegation separately.
Standard of Review
This court must affirm the Forest Service's ROD for the Monroe Mountain Project unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."' This is a narrow and deferential standard, and the "court is not empowered to substitute its judgment for that of the agency." As explained by the Tenth Circuit, federal courts "are limited to determining whether the agency substantially complied with statutory and regulatory procedures, whether substantial evidence supports its factual determinations, and whether its action was an abuse of discretion." An agency's legislative interpretation may be disregarded only when it is contrary to plain and unambiguous statutory language, or if it is not a permissible interpretation of ambiguous statutory language. Moreover, an "agency's interpretation of its own regulations, including its procedural rules, is entitled to great deference." Finally, agency decisions are entitled to a presumption of regularity and the burden of proof is on the person challenging the decision.
Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir. 1992).
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-16 (1971).
Burke v. Board of Governors, 940 F.2d 1360, 1365 (10th Cir. 1991); cert. denied, 504 U.S. 916 (1992) (citing 5 U.S.C. § 706 (2)(A), (2)(D), 2(E).
Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984); Quivira Min. Co. v. Nuclear Regulatory Comm'n, 866 F.2d 1246, 1249 (10th Cir. 1989).
Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir. 1993).
Citizens to Preserve Overton Park, 401 U.S. at 415.
Park County Resource Council, Inc. v. U.S. Depart. of Agriculture, 817 F.2d 609, 621 (10th Cir. 1987).
A. The Roadless Validation
UEC alleges that the Forest Service's efforts to revalidate its roadless inventory was illegal in a project-level EIS.f The intent of roadless inventories is to determine which areas meet the minimum qualifications for wilderness designation. The court finds that the Forest Service did not act arbitrarily or capriciously in applying its chosen method of validating the Inventoried Roadless Areas ("IRAs") located with the Project because the IRAs at issue have been statutorily released from wilderness consideration.
See Memo in Support at 13.
The Code of Federal Regulations mandates that " /u/nless otherwise provided by law, roadless areas with the National Forest System (`NF') shall be evaluated and considered for recommendation as potential wilderness areas during the forest planning process." However, the Utah Wilderness Act of 1984 designated NFS lands in Utah for inclusion in the National Wilderness Preservation System ("NWPS") and released all other lands in Utah for other multiple-use-management activities. None of the IRAs on the Fishlake National Forest were selected for wilderness designation, and all were released for other management consideration. Therefore, the Wilderness Act. eliminated the need for further consideration of those areas for potential wilderness designation.
36 C.F.R. § 219.17 (emphasis added).
See PL 98-428.
See id. at Title 1.
See Forest Plan AR at 0000544a at 2.
Further, in evaluating the validation process under the "arbitrary and capricious" standard, the court must only `ensure that the agency "decision was based on a consideration of the relevant factors' and "examine whether there has been a clear error of judgment'" The court looks to the Desk Guide and the Administrative Record to determine whether the Forest Service's validation process was arbitrary or capricious. Although UEC argues that the Desk Guide is not the appropriate source because, among other things, it is to be used in forest planning and not project specific work, this court is required to give great deference to the Desk Guide, which is the Forest Service's interpretation of its own regulations, including its procedural rules. Moreover, although the court acknowledges that the title of the Desk Guide (the "Draft Intermountain Region Planning Desk Guide") implies that it is to be used for forest planning rather than project work, the court finds that this title alone does not meet UEC's burden of establishing that the Desk Guide procedures do not apply.
Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999) (citing Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (internal citations omitted)).
See Bar MK Ranches, 994 F.2d at 738.
Using the Desk Guide's criteria. the court Finds that the Forest Service adequately completed the validation) The Forest Service used the modern Geographic Information Systems technology ("GIS"), as set forth in the Desk Guide. In addition, the Specialist Report states that the validation involved looking at each IRA within or adjacent to the Project area using the criteria for the presence of roads and other indications of the human influence as described in the Desk Guide. In addition to the GIS maps, the Forest Service used aerial photographs and other non-GIS maps. Although the court acknowledges UEC's contention that some of the resources used by the Forest Service do not provide many details, this court is required to "defer to agency expertise on questions of methodology" and the "agency, not the reviewing court, is entrusted with the responsibility of considering the various modes of scientific evaluation. ., and choosing the one appropriate for the given circumstances." Thus, although UEC disputes the methods that the Forest Service used, including the types of data it referenced and the fact that no on-site field work was done, the court defers to the agency's chosen methodology. Accordingly, the court finds that all relevant factors were considered when the Forest Service amended the roadless inventory. As discussed below, this conclusion encompasses several related issues.
See Forest Service Handbook 1909.12, 8-92.
See Desk Guide at 5-6, AR 0001135-36.
See Specialist Report for Roadless, Recreation, Scenery, and Economics at 1.
See AR at 0001187.
Roadless maps, AR at 0000699-0000709.
Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993).
Custer County Action Assn. v. Garvey, 256 F.3d 1024, 1036 (10th Cir. 2001), cert. denied, 534 U.S. 1127 (2002).
1. Nielson Canyon Trail
First, UEC alleges that the Forest Service acted arbitrarily and capriciously in its decision to move the southern boundary of the Signal Peak RARE II IRA to the location of the Nielsen Canyon Trail. UEC contends in its pleadings that this "trail" is "not now noticeable" in photographs contained in the administrative record. The Forest Service responds that the "road" is substantially noticeable in the photographs. Curious about these directly conflicting representations of the facts, the court examined these photographs at oral argument. The court was readily able to see the road, contrary to UEC's claims. More important, it is not for this court to determine what the photographs mean. Forest Service professionals determined from the photographs that the evidence of mechanical construction (from the former use of four-wheel drive vehicles) on this strip of land was still substantially noticeable. This determination was proper under the Desk Guide, which provides that timber harvest areas are to be excluded from IRA inventory unless development is substantially noticeable.
Reply Brief at 10.
Desk Guide, AR at 0001145.
Further, although the UEC cites to the Seven Mile Appeal to conclude that the Forest Service could not properly undertake the validation at the project level, the court finds that it must defer to the agency's most recent statement that "[i]t is not inappropriate to use the [Desk Guide] at the project level to update roadless area inventories." The court has thoroughly reviewed the Seven Mile Appeal and the Seven Mile Amendment, and has carefully considered the legal arguments of both parties regarding the admissibility and weight of each opinion. As explained above, the court concludes that the Seven Mile Amendment effectively altered the holding of the Seven Mile Appeal. The court finds no evidence of had Faith in the Amendment. Therefore, while the court acknowledges UEC's argument that there is no agency procedure that authorizes such amendments, the court is bound to give the "agency's interpretation of its own regulations, including its procedural rules" great deference. Doing so, the court concludes that the Forest Service's decision to move the southern boundary of the Signal Peak RARE II IRA to the location of the Nielsen Canyon Trail was not arbitrary, capricious or otherwise contrary to law.
See Seven Mile Amendment, March 9, 2001.
Bar MK Ranches, 994 F.2d at 738.
2. Comments and Public Participation
Second, UEC alleges that the Forest Service did not adequately respond to comments regarding the IRAs. NEPA requires any federal agency preparing an EIS to consider each comment it receives and respond. This response may warrant further action, or, if no action is warranted, the agency must "[e]xplain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response." UEC acknowledges that an agency is not obligated to use a lengthy reiteration of its methodology for every complaint.
See Plaintiff's Brief in Support of Plaintiff's Petition for Review of Agency Action ("Reply Memo") at 29.
In this case, UEC attended an open house held by the Forest Service on February 23, 2000. At that time, the Forest Service requested a copy of UEC's roadless inventory. Although the parties disagree about why the Forest Service did not receive a copy of UEC's roadless area inventory for about five months, athe parties agree that UEC's comments on the validation were not received until the Final Environmental Impact Statement ("FEIS") was submitted and the additional thirty-day comment period was opened.
See UEC FEIS Comment Letter, AR 0000257-268.
In response to UEC's concerns about the roadless inventories, the Forest Service stated:
Revalidation of the portions of IRA's located within the Project Area that could be affected by the proposed activities was conducted in January 2000 using the criteria contained in the [Desk Guide]. This revalidation was conducted to update the existing Roadless inventory, using current technology and information. As a result of this inventory update, roadless area boundaries for the Project Area have been modified to reflect existing conditions.
See AR at 0000525.
The court finds that the Forest Service's reference to the more detailed procedures and methods in the Desk Guide, in light of the timing of UEC's comments, adequately fulfilled its obligations regarding public comment and participation.
3. Scope of Validation
UEC challenges the scope of the validation and believes that the Forest Service should have made an attempt to find additional areas for roadless designation. However, consistent with the Desk Guide, the Fishlake National Forest Supervisor set the scope of the validation and determined that only IRAs affected by the Project proposal or adjacent to the Project area would be inventoried. Further, UEC's argument fails because the validation was simply an update of the Fishlake National Forest resource information used in project planning and not a complete re-inventory of roadless areas. UEC does not cite any relevant authority establishing a requirement to validate the boundaries for all IRAs or potential IRAs on the Fishlake National Forest. Further, UEC's assertion that the amount of land being dropped as roadless will have significant impacts on future recommendations for wilderness is not correct. "Wilderness" in the State of Utah has been designated by statute, and all other areas were released for other management considerations. Each IRA within the Project area has already been released from wilderness consideration. Therefore, UEC has failed to establish how changes in roadless inventory as a result of the validation will have any negative effect on future recommendations for wilderness.
See Desk Guide, AR Vol. 3 at 1131; see also Letter, AR Vol. 1 at 0000011, 0000012.
See PL 98-428. See generally Forest Plan, AR at 0000544a (P-2).
B. MIS Monitoring
UEC also alleges that the Forest Service failed to monitor Management Indicator Species ("MIS"). As recently explained by this court in Zieroth, the NFMA imposes substantive duties on the Forest Service, one of which is the duty to "provide for diversity of plant and animal communities." One of the NFMA's implementing regulations. Regulation 219.19, requires the Forest Service to manage:
Utah Environmental Congress v. Zieroth, 190 F. Supp.2d 1265, 1268 (D. Utah 2002).
[f]ish and wildlife habitat . . . to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimate numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.
As one of the ways to determine whether the habitat is sufficient for these purposes, the Forest Services identifies management indicator species, which operate as a class representative for similar species in the area.
In this case, the MIS in the Monroe Mountain Project area are elk, deer, Northern Goshawk, "Cavity Nester," and "Sage Nesters." UEC argues that the decision to proceed with the Project violated NFMA because it was made in the absence of relevant MIS population data. The first issue this court must decide is whether the Forest Service is required to use actual population data in making such MIS determinations rather than other estimation devices, such as habitat trend data. As discussed at length in Zieroth, the Tenth Circuit has not squarely addressed this issue. Moreover, there appears to be a split of authority on this point. In Zieroth, however, this court sided with courts that have held that the use of quantitative population data is generally required where collection of such data is feasible. To be sure, this trial court decision is not, strictly speaking, binding here. But where an earlier opinion is persuasive, judicial economy dictates following the opinion's analysis rather than "reinventing the wheel." Here, Judge Kimball's opinion is persuasive, and this court follows Zieroth's approach.
Compare Sierra Club v. Martin, 168 F.3d 1, 6 (11th Cir. 1999) with Inland Empire Public Lands v. United States Forest Service, 88 F.3d 754, 760 n. 6 (9th Cir. 1996).
In Zieroth, this court reversed a Forest Service decision because it failed to collect appropriate data on the MIS (the Blue Grouse) affected by the project at issue. Here, however, reversal is not appropriate. For each of the five MIS at issue, the Forest Service has collected appropriate quantitative population data or has a valid reason for not collecting such data.
With respect to deer and elk, UEC does not argue that the Forest Service collected insufficient data. With respect to the Northern Goshawk, the Fishlake National Forest participates in the Utah Conservation Strategy, which requires the Forest Service to monitor Goshawk populations on an annual basis. UEC concedes that the Forest Service has collected appropriate Goshawk data in the Project area, but argues that it failed to collected forest-wide data to provide "context" for the Project area data. However, even though there was "no formal `Forest wide' surveys' conducted on the Northern Goshawk, the NFMA does not automatically require "context" for data. Rather, the NFMA only requires the Forest Service to maintain "viable populations" of MIS. If the Forest Service can determine from Project area data the actual viability of a population (as it did in this case), no further data is required.
See Memo in Support at 20-26.
AR at 0002220.
With respect to "Cavity Nesters" and "Sage Nesters," it appears that these were included within the neo-tropical bird species that were surveyed in 1994 in the Burnt Flat area. There have been no known sightings of Cavity Nesters or Sage Nesters on Monroe Mountain. In light of this fact, collection of hard population would be inappropriate. As the Tenth Circuit explained in Dombeck, the "regulatory language clearly presupposes the ascertainable presence of a species' population within a given planning area." To be sure, Dombeck was decided in the context of a non-MIS situation, while here we have a MIS situation. Even so, the court will not interpret the NFMA to require the impossible and, therefore concludes that, faced with difficult-to-count species, the Forest Service could make a reasonable choice about whether to use limited resources for this purpose.
See AR at 0003949.
See Dombeck, 185 F.3d at 1169.
The court acknowledges that the "Burnt Flat Analysis Area represents only a small portion of Monroe Mountain and the wildlife that lives there." However, even if hard population data is required, clearly that does not mean that the Forest Service must hand count every single member of the species. In any event, the court defers to the Forest Service's expertise in determining whether sampling is appropriate.
AR at 0003948.
Moreover, in light of the difficulty of collecting data about Cavity Nesters and Sage Nesters, the Forest Service proceeded to undertake alternative assessments of the Project's affects. To evaluate effects on Cavity Nesters, the Forest Service looked at the Three-Toed Woodpecker. Study of this bird is informative for Cavity Nesters in general. The Forest Service also completed survey work and a graduate study on Three-Toed Woodpecker distribution and habitat use. Additionally, because snag trees are an important factor in the life history of Cavity Nesters, the Forest Service applied the snag habitat guidelines set forth in the Forest Service Manual. To evaluate effects on Sage Nesters, the Forest Service noted that the prescribed treatments in the Project would affect only one percent of the available sagebrush habitat within the Project area. Nevertheless, the Forest Service consulted scientific journal articles and reports concerning proper management of Sage Nester habitats. In the face of the real world difficulties in obtaining hard population data on Cavity Nesters and Sage Nesters, the Forest Service's approach was appropriate.
AR at 0000485 (III-61 and III-68.)
Wilderness Summary, AR at 0002205; Three-Toed Woodpecker Map, AR at 0002234.
UEC also argues that the Forest Service's monitoring of other species is inadequate. These claims can be more quickly dispatched, as they are clearly without merit. With respect to Bonneville Cutthroat Trout (BCT), a sensitive fish species, only two habitats are within the Project area: Manning Meadow Reservoir and Manning Creek. Data at the reservoir has been collected annually via a spawning operation. Numbers of BCT taken at the spawning trap have steadily increased. At Manning Creek, the Forest Service undertook renovation treatments in 1995 and 1996 to eliminate nonnative trout. During this period of time, population monitoring did not occur because it could have had a harmful affect on population recovery — the wildlife equivalent of the Heisenberg Uncertainty Principle. Clearly, the NFMA should not be read to require population sampling to the detriment of the species, and particularly where the Forest Service has continued to monitor the population in Manning Creek in other ways. With regard to other species, UEC has not provided any specific explanation of how the Forest Service actions have been inadequate.
AR at 0001618.
C. Planning for Diversity of Plant and Wildlife Species
The NFMA requires that its implementing regulations specify guidelines which "provide for the diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." In accordance with this statutory biodiversity provision, the Forest Service promulgated the fish and wildlife resource regulation, one of thirteen designated to integrate various forest resources.
See C.F.R. § 219.14 through § 219.26.
The Committee of Scientists with whom the Secretary conferred in issuing the regulations stated that:
Provision for "diversity" as required by NFMA is one of the most perplexing issues dealt with in the draft regulations. We believe it is impossible to write specific regulations to "provide for" diversity . . . Although the statement of policy [to provide for diversity] is clear, there remains a great deal of room for honest debate on translation of policy into management planning requirements and into management programs.
Committee of Scientists, 44 Fed. Reg. 26, 600-01 26,008.
Indeed numerous courts have recognized that the NFMA does not create a concrete standard for diversity. Accordingly, "common sense and agency expertise must be used."
See Seattle Audobon Soc. v. Moseley, 798 F. Supp. 1484, 1489-90 (W. D. Wash. 1992); accord Sierra Club v. Espy, 38 F.3d 792, 800-02 (5th Cir. 1994); Krichbaum v. Kelley, 844 F. Supp. 1107, 1114 (W.D. Va. 1994); Sierra Club v. Marita, 845 F. Supp. 1317 (E.D. Wis. 1994); Oregon National Resource Council v. Lowe, 836 F. Supp. 727 (D. Or. 1993); Sierra Club v. Robertson, 810 F. Supp. 1021, 1027 (W.D. Ark. 1992).
Seattle Audobon Soc., 798 F. Supp. at 1490.
UEC's argument that "the Forest Service has not given proper consideration to diversity for this Project" fails because it does not cite any relevant authority delineating a "right way" to provide for diversity. Although UEC cites an Eleventh Circuit decision for the proposition that the Forest Service is required to collect population data on Proposed, Endangered, Threatened and Sensitive ("PETS") species, the Eleventh Circuit was clear that nothing in the NFMA or its implementing regulations, requires such data. The Circuit only found that the Chatahoochee National Forest and Oconee National Forest were required to collect data on PETS species because collection was mandated by the Chatahooche and Oconee Forest Plans. The Fishlake National Forest Plan only requires yearly visual reconnaissance Threatened, Endangered and Sensitive Species, and UEC does not dispute that this occurred.
Memo in Support at 26.
See Martin, 168 F.3d at 5 7.
In light of UEC's inability to establish either a standard for diversity or a deviation from the Forest Plan, this court cannot say that this part of the Project decision is arbitrary or capricious. According to the Forest Plan, because of the wide-ranging habitat needs of elk, the elk represents many species of wildlife. In managing for elk, the Forest Service adequately provides for both horizontal and vertical diversity of vegetation. Where aspen stands occur in the western United States, they are second only to riparian areas in species diversity and abundance. The monitoring data that has been collected for the Project facilitated an understanding of how the proposed treatments will enhance wildlife habitats, sustain their populations and ensure species viability. If the habitat improvements anticipated through implementation of the Project do not occur, elk and deer populations will not be able to be maintained at current Forest Plan levels and many other species will find habitats limited by encroaching conifer and sage in aspen forest. The NFMA and its regulations do not establish a procedure for ensuring diversity and UEC presents no evidence that the strategies defined in the Forest Plan and the FEIS will not ensure species diversity. In this case (as, perhaps, in many others), a "do nothing" option might by itself harm species diversity. At a minimum, it was not arbitrary and capricious for the Forest Service to approve a project that, in its professional judgment, will help to promote such diversity.
See Forest Plan, AR. Vol. 2 at 000544a (II-30).
See Water Depletion Study, AR. Vol. 4 at 1340.
D. Compliance with NEPA and MUSYA
UEC also alleges several violations of NEPA and Multiple Use and Sustained Yield Act ("MUSYA"), which the court will address individually.
1. Comments and Public Participation
UEC claims that the Forest Service did not adequately respond to public comments. An agency has a limited obligation to respond to public comments, and "not every comment need be published in the final [impact statement]." The requirement to respond merely obliges an agency to "provide a `meaningful reference' to all responsible opposing viewpoints concerning the agency's proposed action." The content analysis is included within the Administrative Record. As a result of the public comments, the Project was substantially altered: it excluded more than 4,000 acres of treatments and limited the prescriptions in aspen and mixed conifer aspen stands to prescribed fire. Based upon the comments received, the Forest Supervisor delayed his final decision, provided an additional 30-day comment period for the FEIS,and responded with a narrative disposition to the twelve comments received regarding the FEIS. The court finds these responses were adequate. In addition, for the reasons explained above, the court found that the Forest Service adequately responded to comments regarding the IRAs.
State of Cal. v. Block, 690 F.2d 753, 773 (9th Cir. 1982).
Id. (citations omitted).
AR at 0000299-0000318.
EPA Comments, AR at 0000238.
See AR at 0000484.
See AR at 0000485, 0000520-0000533.
2. Economic Analysis
UEC alleges that the Forest Service violated the MUSYA, which states that "national forests are established and shall be administered For outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Under MUSYA, the "Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forest for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas." MUSYA defines multiple use as "the management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people." UEC alleges that since forest protection jobs outnumbered logging and other wood product related jobs in recent years, the Forest Service violated the act by failing to determine how the various alternatives would benefit the American people. However, the weighing of the merits and drawbacks of various alternatives in a monetary cost-benefit analysis is often not appropriate where important qualiatative considerations are at issue. The environmental impact statement must only indicate those considerations, including factors not related to environmental quality, which are likely to be relevant and important to a decision.
16 U.S.C. § 528.
Id.
Id. at § 529.
Id. at § 531.
See Memo in Support at 33; AR 0005002.
40 C.F.R. § 1502.23.
See id.
Applying these standards, the court finds that the economic analysis for the Project meets the obligations for project-level economic analysis. First, the economic analysis discusses considerations such as jobs created due to timber sales, payments to counties and personal income generated in local communities. This analysis also includes a discussion of the financial viability of each alterative and identifies the assumptions used during the analysis. The FEIS also evaluates the two methods that could be used to authorize the removal of timber products from the Project area. The Specialist's Report on economics included a detailed discussion of the analysis of direct and indirect effects, estimated net economic returns and fave summaries of discounted revenues. It also discusses the Present Net Values, the economic analysis data, a report on best value acquisition, and the Timber Sale Program Information Reporting System data from Fishlake's Employment. Income and Program Level Account. Moreover, the FEIS is tied to the Fishlake's Forest Plan wherein economic and social analyses have already been completed. Therefore, the court finds that the analysis done for the Project meets the obligations for a project-level economic analysis.
See FEIS, AR at 000485 — 000490.
See FEIS, AR at 0000485 — 000487.
See FEIS, AR at 0000485 — 000089.
See AR 0003488 — 0003494.
See Economic analysis data, AR at 0003504, Best Value Acquisition, AR at 0000360; TSPIRS, AR at 3609.
FEIS, AR at 0000485.
3. Cumulative Impacts
The court also find that the Forest Service's analysis of the cumulative impacts of the Project was not arbitrary or capricious. The Tenth Circuit has recognized that "[c]ertainly as to the cumulative effects of resource development projects require prophecy beyond the capabilities of both scientists and courts. Neither are endowed with divine inspiration. It is enough that the US mentions and discusses foreseeable problems." "If the effects cannot be readily ascertained," detailed discussion of them "is not contemplated under NEPA."
Manygoats v. Kleppe, 558 F.2d 556, 560-61 (10th Cir. 1977).
Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1375 (10th Cir. 1980).
In addition, the Tenth Circuit has repeatedly rejected arguments that NEPA requires specific consideration of projects that have not been proposed. For example, in Sierra Club v. Lujan, plaintiffs argued that an EA for a county road project failed to consider future plans for the entire road. The Tenth Circuit specifically rejected this argument:
Sierra Club v. Lujan, 949 F.2d 362, 368 (10th Cir. 1991).
Throughout the course of this litigation, Garfield County has openly stated that its long range aims include paving the full length of the Barr Trail. Long range aims, however, are quite different from concrete plans and specific undertakings such as the Harper contract submitted for purposes of environmental analysis under NEPA. NEPA does not require an agency to consider the environmental effects that speculative or hypothetical projects might have on the proposed project.
Id. (internal citations omitted); see also Airport Neighbors Alliance, Inc. v. U.S., 90 F.3d 426, 431 (10th Cir. 1996) ("that analyzing possible future actions. . . that are far from certain would result in `a gross misallocation of resources, would trivialize NEPA, and would diminish its utility in promoting useful environmental analysis for major federal actions that truly affect the environment."') (quoting Park County Resource Council, Inc., 817 F.2d at 623).
In reviewing the impacts analysis of an agency's EIS for compliance with the relevant statute, the court's role is limited to determining whether the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" and provides information which is reasonably sufficient to encourage informed public participation and to "enable the decision-maker to consider environmental factors and make a reasoned decision."
Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).
The Administrative Record refutes UEC's cumulative effects argument. The FEIS contains the analysis of cumulative effects and discloses all past, present and reasonably foreseeable future actions on Fishlake. It also displays a table that summarizes all current and reasonably foreseeable actions located near the Project area. Moreover, the Biological Assessment and the Biological Evaluation included in Appendix 5 of the FEIS provide additional analysis of cumulative effects on PETS Species.
See FEIS, AR. Vol. 2 at 000485 (III 1-97).
See FEIS, AR. Vol. 2 at 000485 (I-3-15).
See FEIS, AR. Vol. 2 at 000485 (II-14, 15).
See FEIS, AR. Vol. 2 at 000485 (Appendix 5); Biological Assessment, AR. Vol. 5 at 0002282.
UEC asserts that the Forest Service has not appropriately considered the effect of cattle grazing in the project area. However, the Forest Service considered the effects of grazing on the Fishlake National Forest in its Environmental Assessment of Appropriate Grazing Practices. The FEIS discusses the historical impacts of grazing and discloses further actions and mitigation measures regarding grazing. Therefore, the Administrative Record does not support UEC's argument that the Forest Service failed to analyze the effects of grazing.
See Grazing EA, AR. Vol. 7 at 0004042.
See FEIS, AR. Vol. 2 at 000485 (III-22; Appendix 2-4; II-11, 12; and Appendix 3).
UEC also appears to misunderstand the role and intensity of wild ungulate grazing on Monroe Mountain. The deer classification for unit 48 establishes that 2,018 deer were observed between mid-November 1990, and mid-January 1991. Additionally, 1997 spring vehicle counts establish that in 1997 almost 4,000 deer were present on the Fishlake National Forest in unit 45 and almost 1,000 deer were present in unit 44. The effects of those 5,000 deer combined with 1,500 Elk in the face of only 1,340 cow/calf pairs and 1,600 sheep is what the Forest Service discussed and considered in its cumulative effects analysis. Therefore, the Administrative Record indicates that are simply more deer and elk than there are cattle on Monroe Mountain. Moreover, since cows do not jump over fences, and deer and elk do, regulation of deer and elk is not controllable without expensive, labor intensive methods. The Administrative Record establishes that all appropriate considerations were made in preparing the cumulative effects analysis, including effects from wild and domestic ungulate populations.
See Deer Classification, AR. Vol. 5 at 0002576.
See id. at 0002581, 0002582.
See Wildlife Summary, AR. Vol. 5 at 0002204; PB at 37; see generally FEIS, AR. Vol. 2 at 0000485 (Chapter III).
See FEIS, AR. Vol. 2 at 0000485 (Appendix 2-5).
Therefore, the Administrative Record demonstrates that the Forest Service took a "hard look" at the environmental consequences of the Project. As discussed previously, the Forest Service conducted substantial monitoring on the Fishlake National Forest and used that data and information in preparing the effects analysis. Moreover, the best available data, including site-specific data, was considered in developing the cumulative effects analysis. Accordingly, the court finds that the Forest Service's analysis of the Project's cumulative effects cannot be reversed under the arbitrary and capricious standard of review.
See generally FEIS, AR. Vol. 2 at 0000485 (II-23; III-3 0, 31; III-3 6; and III-56-72) (biological assessment, Wildlife Biologists Specialist's Report and Fisheries Specialist's Report pg. 15-18).
4. Stated Purpose and Need
UEC alleges that the Forest Service acted arbitrarily and capriciously by failing to ensure that the adopted alternative supports the Project's Statement of Purpose and Needs. The court disagrees.
NEPA requires the Statement and Purpose of Need in an EIS to reflect the true purpose and need "to which the agency is responding in proposing the alternatives including the proposed action." An agency may not "frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish those goals and the project would collapse under the weight of the possibilities." According to the FEIS, the Project's Purposes and Needs are to:
40 C.F.R. § 1502.13.
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991), cert denied, 502 U.S. 994 (1991).
1. Restore the abundance of aspen ecosystems where losses occurred because of changed disturbance regimes and increased ungulate pressure.
2. Work towards improving watershed conditions that favor long-term improvement of riparian areas and water quality.
3. Reduce the risk of large, intense episodes of wildland fire in the mixed conifer/aspen stands.
4. Reduce the potential of epidemic level spruce beetle outbreaks in spruce/fir stands.
5. Contribute to the restoration of the grass/forb ecosystems to improve habitat for wildlife and livestock; and
6. Provide timber products to support local economy, while performing ecosystem restoration.
AR 0000485 at S-3.
The Tenth Circuit instructs that a reviewing court must interpret the Forest Service's regulatory mandate in a manner consistent with the "`overall multiple use objectives' and "inherent flexibility' of [NFMA]." Using this standard, the court finds that the Project's Statement of Purpose and Need adequately reflects those "to which the agency is responding in proposing the alternative including the proposed action."
Dombeck, 185 F.3d at 1171 (citing Seattle Audubon Soc. v. Moseley, 80 F.3d at 1404).
First, the Project seeks to restore the abundance of aspen. UEC argues that under the Project domestic livestock will "continue to remove fine fuels, predators that prey on deer and elk will continue to be hunted in the name of livestock protection, and aspen will continue to decline." However, the Forest Service has submitted evidence in the Administrative Record supporting their contention that without the disturbance that the Project authorizes, aspen will not regenerate. Further, the grazing on Fishlake National Forest has declined 39% since 1943. Finally, to promote aspen regeneration, livestock grazing is prohibited in the treatment area for five years or until the new aspen are at least five feet tall. Based on this evidence, the court finds no grounds for questioning the Forest Service's conclusion regarding this first stated purpose and need.
Memo in Support at 41.
See AR 0003750.
See Specialist's Report, AR at 0004352.
AR at 000077.
Second, the Forest Service's conclusion that the Project will meet its stated purpose of improving watershed conditions also is proper. Contrary to UEC's contention, it is not only logging and fire that the Forest Service is using to improve watershed conditions. The Forest Service will also improve road drainage, obliterate 4.3 miles of road, reduce erosion on 1.2 miles of road by placing gravel in key areas, fence 2,200 feet of shoreline, and fence 2,300 feet of riparian areas.
See ROD, AR at 0000496, 0000498.
Third, the Project's stated purpose of reducing wildland fire in the mixed conifer/aspen stands also is proper. The Administrative Record provides evidence that aspen trees have a lower fire intensity than the shade-tolerant conifer species that currently dominate the landscape; therefore, due to the shift from an aspen dominated landscape to a mixed conifer/aspen landscape, there has been an elimination of frequent low-intensity mosaic fires and an increase in the potential for lethal, high intensity wildland fires. Accordingly, the court finds ample support for the Forest Service's conclusion that the "conversion of mixed conifer/aspen stands to aspen dominated communities will ensure that the Project meets the stated Purpose and Need of reducing the risk of large, intense episodes of wildland fire."
See AR 0000485 (III-49).
See Memorandum in Support of Federal Defendants' Motion to Dismiss and Opposition to Plaintiff's Petition for Review of Agency Action ("Opposition Memo") at 48.
Fourth, the court concludes that the Forest Service could properly find the Project would meet its purpose and need of reducing the "epidemic level of spruce beetle outbreaks in spruce/fir stands." UEC does not appear to directly attack this purpose and need, but rather asserts that the Forest Service has failed address the root causes of the spruce beetle epidemics. According to UEC, these were caused by prior mismanagement by the agency. However, regardless of past actions, the Administrative Record provides adequate support for the Forest Service's current Project plans. Specifically, Forest health aerial detection surveys indicate that the spruce beetle is now at epidemic levels within the Project area and that the proposed treatments for the Project have successfully reduced spruce beetle infestations in other areas of Utah. UEC does not significantly challenge these points. Based on this evidence, the court finds the agency's conclusions in this area to be adequately supportable.
See Memo in Support at 44.
See Aerial Detection Results, AR at 0003651.
See Spruce Beetle Strategies, AR at 0003728.
Fifth, although UEC alleges that the Forest Service will not be able to "contribute to the restoration of the grass/forb ecosystems to improve habitat for wildlife and livestock" if livestock grazing continues, the court finds that this purpose and need has been properly addressed. The Specialist's Report provides adequate rebuttal to UEC's allegation that this purpose and need will not be met. Specifically, this report states that all six cattle allotments are in good to excellent conditions and are in a stable or increasing trend. Therefore, the court accepts this fifth stated purpose and need.
See Memo in Support at 46.
See AR at 0004353.
Sixth and finally, the court finds that the Forest Service's stated purpose and need of providing timber products to support the local economy is proper. In the economic analysis for the Project, both the Stewardship End Result Contracting Distribution Program and the National Timber Forest Sale Program are shown to benefit the local economy. Accordingly, the court cannot conclude that the Project's decision regarding this, or any other stated purposes and needs, were arbitrary, capricious, or otherwise in violation of the law.
See AR 000485.
Conclusion
For the reasons stated above, the court DENIES both the Federal Defendants' motion to strike (Doc. #21-1) and UEC's motion to strike (Doc. #29-1). The court also GRANTS UEC's motion to reconsider the Record of Decision authorizing the Monroe Mountain timber sale in the Fishlake National Forest (Doc. #14-1) and in doing so affirms the ROD. Therefore, the Federal Defendants' motion to dismiss the case with prejudice (Doc. #18-1) is GRANIED and the clerk of the court is instructed to close this case.