Blue Mountains Biodiversity Project v. Jefferies

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BLUE MOUNTAINS BIODIVERSITY PROJECT, Plaintiff, v. SHANE JEFFRIES, et al., Defendants.

No. 2:20-cv-02158-MO

United States District Court, D. Oregon, Portland Division

September 26, 2022

OPINION AND ORDER

MICHAEL W. MOSMAN, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before me on Plaintiffs Motion for Summary Judgment [EOF 66] and Defendants' Cross Motion for Summary Judgment [ECF 67]. Oral Argument was held on July 25 2022, at which I GRANTED IN PART and DENIED IN PART both parties' Motions, for the reasons stated on the record. Minutes of Proceedings [ECF 80], I also TOOK UNDER ADVISEMENT various claims and asked Plaintiff for a supplemental statement of authorities. See Statement of Supplemental Authority [ECF 81], For the reasons below, I GRANT Defendants' motion and DENY Plaintiffs motion on all claims taken under advisement.

BACKGROUND

Plaintiff Blue Mountains Biodiversity Project (“BMBP”) seeks vacatur of a United States Forest Service (“Defendant” or the “Forest Service” or the “Service”) decision, as well as declaratory and injunctive relief under the Administrative Procedure Act (“APA”). BMBP challenges the Decision Notice (“DN”), including the Finding of No Significant Impact (“FONSI”), and underlying Environmental Assessment (“EA”) issued by Defendant approving the Walton Lake Restoration Project (“the project”), which is a logging proposal in the Ochoco National Forest (“ONF”). Am. Compl. [ECF 12] ¶ 1. The Amended Complaint alleges seven violations of the National Environmental Policy Act (“NEP A”) and four violations of the National Forest Management Act (“NFMA”). Am. Compl. [ECF 12] ¶¶ 60-90. After various proceedings, Plaintiff moved for summary judgment; Defendants did likewise shortly thereafter. Pl.'s Mot. for Summ. J. [ECF 66]; Defs.' Cross Mot for Summ. J. [ECF 67]. For those claims which I took under advisement after Oral Argument on July 25,2022,1 provide my decision and reasons below.

LEGAL STANDARD

Summary judgment is proper “if the movant shows 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(a). The initial burden for a motion for summary judgment is on the moving party to identify the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate, through the production of evidence listed in Fed.R.Civ.P. 56(c)(1), that there remains a “genuine issue for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the pleading allegations, Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed. R. Civ. P 56(e)), or “unsupported conjecture or conclusory statements,” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107,1112 (9th Cir. 2003). All reasonable doubts and inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Because BMBP's claims allege the Service violated NEPA and NFMA, they are governed by the APA. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). “When reviewing an agency's final decision, the court's duty on summary judgment is to determine whether the evidence in the administrative record permitted the agency to make that decision as a matter of law.” Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency, 855 F.Supp.2d 1199, 1204 (D. Or. 2012). “This review is governed by the [APA's] arbitrary and capricious standard.” Id. (citing 5 U.S.C. § 706(2)(A)).

“To determine whether an agency decision is arbitrary and capricious, the court should ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'” Id. at 1204 (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989). “After considering the relevant factors, the agency must articulate a satisfactory explanation for its action, including a rational connection between the facts found and the agency's conclusions.” Id. (citing Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172,1193 (9th Cir. 2008)).

“An arbitrary and capricious finding is necessary if the agency ‘relied on factors Congress did not intent it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'” Id. (citing Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010)). “Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency.” Id. “The court must be ‘at its most deferential' when reviewing an agency's scientific determinations.” Id. (citing Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).

DISCUSSION

I. Claim 1, Count 2

BMBP argues that the Service violated NEPA by having an unreasonably narrow purpose and need statements in its EA. Pl.'s Mot. for Summ. J. [ECF 66] at 16. According to BMBP, the first and fourth statements unreasonably defined the purpose and need for the project too narrowly such that they ignore the Walton Lake area's ONF Plan management objectives and exclude reasonable alternatives that should be considered. Id.

NEPA requires agencies to “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. An agency “may not define the objectives of its actions in terms so unreasonably narrow that only one alternative . . . would accomplish the goals of the agency's action.” Nat'l Parks Conservation Ass'n v. BLM, 606 F.3d 1058, 1070 (9th Cir. 2010). An agency enjoys “considerable discretion” to define the purpose and need statement. Id. Further, the statement of purpose and need is evaluated under a “reasonableness” standard on appeal. Id.

A. First Purpose and Need Statement

The ONF Plan (the “Plan”) designates the Walton Lake recreation area as a “Developed Recreation Management Area” with two sub-areas-a “Developed Site” and a “Visual Influence Area.” Mot. for Summ. J. [ECF 66] at 18. The Plan provides for different restrictions on the two sub-areas. Id. For the Developed Site, the plan says, “[h]arvest only for the purpose of maintaining safe and attractive recreational sites.” AR 1629. For the Visual Influence Area, the plan says, “[e]mphasize maintenance of large, ponderosa pine and western larch.” Id. It goes on to state, “[p]recommercial thinning and commercial thinning may be done to meet the visual quality objectives and maintain healthy stands.” Id.

BMBP contends that the first purpose and need statement-“[t]here is a need to curb the laminated root rot infestation where it occurs within the Developed Recreation Management Area around Walton Lake, to develop a healthy stand of vegetation, and provide for public safety,” AR 7573-impermissible lumps together these two areas and “preordain[s]” the chosen alternative. Mot. for Summ. J. [ECF 66] at 18-19. By describing the issue as a “need” to curb laminated root rot (“LRR”) in all areas of the Recreation Management Area, the statement makes it seem as if the Service's outcome would be the only one that would “curb” LRR everywhere, according to BMBP. Id. Instead, each sub-area should have been considered on its own. Id.

The Service responds that the first purpose and need statement is consistent with the Plan's mandatory direction to prevent and suppress insect and disease outbreaks. Defs. Mot. for Summ. J. [ECF 67] at 31. The Plan contains forest health standards and guidelines that direct the Service to “[u]tilize all methods to prevent or suppress insect and disease outbreaks” and to “[e]mphasize detection and treatment of bark beetle and root disease occurrences, as these relate to providing a safe environment . . . .” AR 1569. The Service argues that this standard applies to the entire Developed Recreation Area (that contains the two sub-areas) as a whole. Defs. Reply in Supp. of Mot. for Summ. J. [ECF 72] at 19. The EA confirms that these standards from the Plan apply to the entire Developed Recreation Area. Id. (citing AR 7575).

I find the Service's argument persuasive on this point. The purpose and need statement in the EA says that the LRR needs to be curbed in the larger Developed Recreation Management Area. When one reads the Plan and what it says should be done for the two sub-areas within the broader Developed Recreation Management Area, the EA and the Plan are not inconsistent. Generally speaking, to curb something means to restrain, or keep in check; alternatively, to check or control. See Curb, Merriam-Webster's Collegiate Dictionary (11th ed. 2005). I do not think that “curbing” LRR in some way violates the plan's requirement to “harvest only for the purpose of maintaining safe and attractive recreational sites” or thinning “done to . . . maintain healthy stands.” In sum, I find neither the language nor the Service's reading and use of the purpose and need statement to be too narrow; nor are they arbitrary or capricious.

B. Fourth Purpose and Need Statement

The fourth purpose and need statement states: “There is a need to amend the Ochoco Land and Resource Management Plan,” AR 7574. BMBP argues that “[b]y using elements of the preferred alternative to define the ‘need' of the action, the Service put the cart before the horse, violating NEPA's requirement that the purpose and need be used to identify the alternatives.” Pl.'s Mot. for...