Conservation Northwest v. Rey

674 F.Supp.2d 1232

CONSERVATION NORTHWEST; Gifford Pinchot Task Force; Environmental Protection Information Center; Klamath Forest Alliance; Umpqua Watersheds, Inc.; Siskiyou Regional Education Project; Klamath-Siskiyou Wildlands Center; Oregon Wild American Lands Alliance; Center for Biological Diversity; and Northcoast Environmental Center, Plaintiffs, v. Mark E. REY; C. Stephen Allred; Synthia U. Barry; U.S. Forest Service; U.S. Bureau of Land Management; and U.S. Fish and Wildlife Service, Defendants, and D.R. Johnson Lumber Company, Defendant-Intervenor.

Case No. C08-1067-JCC.

United States District Court, W.D. Washington, at Seattle.

December 17, 2009.

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Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Corrie Johnson Yackulic, Corrie Yackulic Law Firm, PLLC, Seattle, WA, for Plaintiffs.

Beverly F. Li, Brian M. Collins, U.S. Department of Justice, Washington, DC, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, for Defendants.

Scott W. Horngren, Shay S. Scott, Haglund Kelley Horngren Jones & Wilder LLP, Portland, OR, for Defendant-Intervenor.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on the parties' cross-motions for summary judgment: Plaintiffs' Motion for Partial Summary Judgment (Dkt. No. 34); Federal Defendants' Cross-Motion for Summary Judgment and Memorandum in Support of Summary Judgment and In Opposition to Plaintiffs' Motion for Partial Summary Judgment (Dkt. No. 45), and embedded Motion to Strike the Declaration of Dennis Odion (see id. at 10); Defendant-Intervenor's Cross Motion for Summary Judgment and Memorandum in Response to Plaintiffs' Motion for Summary Judgment (Dkt. No. 46); Plaintiffs' Opposition and Reply (Dkt. No. 49); Federal Defendants' Reply (Dkt. No. 55); and Defendant-Intervenor's Reply (Dkt. No. 58).¹ Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS IN PART the cross-motions for the reasons explained herein.

I. BACKGROUND

This is the latest episode in a long history of litigation and political action concerning the protection of species in Washington, Oregon, and northern California forested land. This controversy has its origins in actions initiated in the early 1990s over the northern spotted owl, and at is heart is the controversy over logging in these states' rare old growth forests.

Since the early 1990s, federal courts have been involved in ensuring responsible management of these forests. The story begins with Seattle Audubon Society v. Evans, in which Judge Dwyer of this Court enjoined the Forest Service from selling logging rights to land until it adopted standards and guidelines to ensure the protection of the northern spotted owl. 771 F.Supp. 1081 (W.D.Wash.1991), aff'd 952 F.2d 297 (9th Cir.1991). Although the owl's legend borders on infamy, the owl has always really been a proxy for waning old growth forests: it is an indicator species whose fate is a "viability measure for other wildlife—for an ecosystem— in the remaining old growth." Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, 1301 (W.D.Wash.1994), aff'd 80 F.3d 1401 (9th Cir.1996). In response to the Court's order in 1991, the Forest Service prepared an environmental impact statement ("EIS"), which listed a number of alternative standards and guidelines, and then released a Record of Decision ("ROD") adopting the Forest Service's preferred alternative.² But in Seattle Audubon Society v. Moseley, 798 F.Supp. 1473 (W.D.Wash.1992), aff'd sub nom. Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir.1993), Judge Dwyer again rejected the Forest Service's actions, because the agency failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d. Specifically, the EIS failed to meaningfully address scientific uncertainties that tainted the evidence on which the Forest Service's remedial strategy rested; failed to include a full discussion of what effect, if any, a decrease in spotted owl viability would have on other old-growth dependent species; and improperly based its owl-viability assessment on the assumption that all agencies involved would follow the same strategy. Espy, 998 F.2d at 704.

In 1993, in reaction to ongoing litigation over the fate of the spotted owl, President Clinton created a cabinet-level, interagency panel, called the Forest Ecosystem Management Assessment Team ("FEMAT"), to address these issues and, eventually, to call a truce between conservationists and logging concerns.³ FEMAT evaluated and identified ten alternative management options for the western states' forested land, and recommended one; after a supplemental EIS ("SEIS"), in 1994, the Secretaries of Agriculture and Interior issued an ROD adopting FEMAT's preferred alternative, which became known as the Northwest Forest Plan (sometimes referred to herein as "the Plan"). That same year, Judge Dwyer upheld the legality of the Northwest Forest Plan. Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir.1996).

The Northwest Forest Plan amended the planning documents of the nineteen National Forest and nine Bureau of Land Management ("BLM") lands within the range of the northwest spotted owl. (Pls.' Mot. 2 (Dkt. No. 24 at 7).) The Plan covers 24.5 million acres of federal lands in three states, ranging from San Francisco to the Canadian border. (Id.) The purpose of the plan was twofold: (1) to protect the long-term health of the forest ecosystem, and (2) to provide a sustainable supply of timber and other forest products. It was thus "intended to conserve late-successional forest related species and produce a sustainable level of timber harvest." 2007 FS ROD, AR 17307, at 4; 2007 BLM ROD, AR 17306, at 4.⁴ This is generally consistent with the manifold uses for which federally managed western lands are designated —"outdoor recreation, range, timber watershed, and wildlife and fish purposes." 16 U.S.C. § 528; 16 U.S.C. § 1604(e). It is the balancing act between commercial use and conservation that sparks cases such as the one before the Court today.

The Northwest Forest Plan designates land allocations across the 24.5 million acres; approximately 19 million acres—or around 77%—of the land covered is protected in "Reserves," while 4 million comprise the "Matrix," and 1.5 million acres comprise "Adaptive Management Areas." Northwest Ecosystem Alliance v. Rey, 380 F.Supp.2d 1175, 1182 (W.D.Wash.2005) (Pechman, J., presiding) (hereinafter NEA). Most commercial logging occurs in "Matrix" areas. Id. The Reserves are designed to protect late-successional and old-growth habitat, and manage previously disturbed forests so that they may become late-successional. Id. The overlap between the age of the forest and the designation is not perfect, however, and there are some mature and old-growth forests in the Matrix areas, and some younger, unforested, or previously logged forests in the Reserve areas. (See Pls.' Mot. 4 (Dkt. No. 34 at 9).) Logging is only allowed in Reserves under very limited circumstances. (Id.) The Northwest Plan contained estimations of annual probable sales of timber, which have fluctuated over the years.

One of the components of the Northwest Forest Plan is "Survey and Manage." When the Plan was enacted, it endeavored to account for approximately 400 rare or uncommon plant, animal, and fungal species, or species about which little is known, which have a "close association" with late-successional or old growth forests. NEA, 380 F.Supp.2d at 1182; 2007 BLM ROD, AR 17306, at 4; 2001 ROD at 77, AR 2392. In response to the concern that the Plan would not adequately protect these species, the Plan required the agencies to engage in four primary mitigation measures: (1) manage known sites of certain species; (2) conduct surveys prior to ground-disturbing activities; (3) conduct extensive surveys to find high priority sites for hard-to-find species, and (4) conduct general regional surveys to gain information about poorly known species. NEA, 380 F.Supp.2d at 1182-83 (administrative record cites omitted). Grouped together, these mandates are known as "Survey and Manage," and the standards and guidelines' purpose is manifold; in addition to helping the agencies gather information about little-known species, Survey and Manage also allows for important ecological functions to proceed, increasing the likelihood of a stable, well-distributed population of species on federally managed lands.⁵

Survey and Manage is, however, only one part of the Plan's overall strategy to meet species stability and distribution objectives. 2000 FSEIS at 68, AR 1465. While it does prevent some logging of mature and old-growth forests in the Matrix and Adaptive Management Areas, it is not the only such barrier, nor is it a wholesale ban on such logging. 1994 ROD at 33, AR 4149. Nonetheless, Survey and Manage—along with measures implemented by the rest of the Plan—unquestionably reduces the number of "board feet" available to commercial logging every year; according to the agencies' estimation, it has reduced expected timber production from 4.5 billion to approximately 958 million board feet per year in the spotted owl habitat areas. (See Defs.' Mot. 5) (Dkt. No. 45 at 14); 1994 FSEIS at 43, 405-406, AR 3017, 3379-80. And, at the outset, Survey and Manage did not contain a detailed assessment of the costs of its implementation, and was expected to have a "relatively minor" effect on maintaining a functional late-successional forest ecosystem because the species protected were thought to be rare. 2007 FS ROD, AR 17307, at 4; 2007 BLM ROD, AR 17306, at 4; 2004 FSEIS at 17, AR 16299; 2000 FSEIS at 58, AR 1455.

Within a few years, the Agencies realized that "Survey and Manage was presenting unanticipated difficulties in land...