League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, et al., Plaintiffs, v. KENT P. CONNAUGHTON, et al., Defendants,andBAKER COUNTY, a political subdivision of the State of Oregon, et al., Defendant-Intervenors.

No. 3:12-cv-02271-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

December 9, 2014

OPINION & ORDER

Tom C. Buchele

EARTHRISE LAW CENTER

10015 SW Terwilliger Blvd.

Portland, OR 97219

Attorney for Plaintiff League of Wilderness

Defenders/Blue Mountain Biodiversity Project

Jennifer R. Schemm

Attorney at Law

602 O Ave.

La Grande, OR 97850

Attorney for Plaintiff Hells Canyon

Preservation Council

Sam Hirsch

Beverly F. Li

US DEPARTMENT OF JUSTICE

Environmental & Natural Resources Division

P.O. Box 7611

Washington, D.C. 20044

Attorneys for Federal Defendants Kent P.

Connaughton, United States Forest Service,

United States Fish and Wildlife Service,

and Gary Miller

Scott W. Horngren

AMERICAN FOREST RESOURCE COUNCIL

5100 SW Macadam, Suite 350

Portland, OR 97239

Caroline Lobdell

WESTERN RESOURCES LEGAL CENTER

5100 SW Macadam, Suite 350

Portland, OR 97239

Attorneys for Defendant-Intervenors

HERNÁNDEZ, District Judge:

In this environmental case, Plaintiffs The League of Wilderness Defenders/Blue Mountain Diversity Project and the Hells Canyon Preservation Council (collectively, "Plaintiffs") challenge the Record of Decision (ROD) and underlying final Environmental Impact Statement (EIS) issued by Defendant the United States Forest Service approving theSnow Basin Vegetation Management Project ("Project"), which would allow a certain amount of commercial logging of large trees and old forests in the Project area. Kent P. Connaughton is also named as a defendant in his official capacity as Regional Forester in the Pacific Northwest Region of the Forest Service.¹ On March 14, 2013, the Court granted the motion to intervene by Baker County, Union County, Boise Cascade Wood Products, American Forest Resource Council, Chary Mires, and Oregon Small Woodlands Association (collectively, "Intervenors").

In July of 2013, this Court denied Plaintiffs' motion for preliminary injunction that sought to block the Project's plan for commercial logging activities. On appeal, the Ninth Circuit affirmed that decision in large part but reversed on a narrow issue by finding that Plaintiffs were entitled to an injunction based on the inadequacy of the Project's final EIS regarding elk habitat. See League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 767 (9th Cir. 2014). The Ninth Circuit remanded to this Court with instructions to "enter a preliminary injunction sufficient to protect the status quo while the [Forest Service] completes a supplemental environmental impact statement." Id. On August 7, 2014, this Court issued a preliminary injunction blocking all logging activities in the Project's two commercial logging sales, pending a decision on the merits.² (ECF #129).

Following the Ninth Circuit decision, Plaintiffs dropped a number of their claims. Two claims remain. The remaining claims, Claim 1, counts 3, 4, 6, and 8-11; and Claim 2; allegeviolations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. §§ 1601 et seq.

Now before the Court are cross-motions for summary judgment filed by Plaintiffs, Defendants, and Intervenors. For the reasons explained below, the Court grants summary judgment to Plaintiffs on Claim 1, counts 3, 4, 9, 10, 11; and Claim 2. The Court grants summary judgment to Defendants and Defendant-Intervenors on Claim 1, counts 6 and 8.

BACKGROUND

Since 2008, the Forest Service has been developing a plan for logging in the Project area, a nearly 29,000 acre portion of the Wallowa Whitman National Forest (WWNF) in northeastern Oregon. The Forest Service issued a draft EIS in March 2011 and a final EIS and ROD in March 2012. Admin. Rec. (AR) 7854; 12135; 12820. The Project has three purposes: (1) "Manage forest composition, structure, and density toward the historic range of variability across the landscape and improve sustainability"; (2) "Maintain and increase landscape resilience to reduce the risk of uncharacteristic disturbance, including the risk of high severity, stand replacing fires, insect outbreaks, and disease," and; (3) "Provide a supply of forest products for the public to utilize, and provide a supply of materials to local markets." AR 12827-28. Historic range of variability (HRV) refers to "the natural fluctuation of components of healthy ecosystems over time." AR 12570.³ The intent of the Project is to "reestablish and retain resilience of forest ecosystems across the [Project] landscape." AR 12827.

The Forest Service seeks to accomplish the Project's goals through approximately 11,000 acres of commercial logging, using a combination of intermediate thinning and overstoryremoval, and approximately 9,000 acres of non-commercial thinning. The ROD also authorizes fuels treatments⁴, including prescribed fires and machine and hand piling and burning, on approximately 19,000 acres, most of which would occur after commercial harvest activities. The Project calls for removing trees along approximately 225 miles of system haul roads, constructing approximately 9 miles of temporary roads, and reconstructing approximately 39 miles of existing roads to support timber log hauling. Road maintenance will be performed on approximately 224 miles of roads and replace an existing bridge.

The resilience of the forest in the Project area "is at risk due to past fire suppression and logging activities," which have caused "considerable changes in species composition, structure, and densities" over the last several decades. AR 12827. The ROD states that the desired condition for the Project area is "a mosaic landscape that has a distribution of forested species compositions, structural stages, tree diameters, and relative densities within the natural (historic) range of variability for these sites." AR 12828. In order to achieve the desired condition, the ROD calls for the removal of some trees, primarily grand fir, that are 21 inches or larger in diameter at breast height (DBH).⁵ Large mistle-toe infected trees would also be removed to promote the growth and health of desirable understory tree species. Old trees (defined as 150 years or more) of all species would be retained.

In order to implement the Project, the Forest Service seeks to amend the "Eastside Screens." The Eastside Screens, a region-wide WWNF Plan amendment adopted in the early1990s, are a set of interim riparian, ecosystem, and wildlife standards for timber sales applicable to public lands east of the Cascade Mountains. The Screens prohibit logging late and old seral and/or structural (LOS) trees 21 inches DBH or greater until a long-term strategy for protection and restoration is developed. In essence, the Screens prohibit the harvest of old-growth trees.

The Forest Service proposes to amend the Eastside Screens in two ways. First, the Forest Service seeks a Project area exception to the WWNF Plan in order to allow logging of LOS trees in Project areas that are below the HRV. AR 12830. The ROD states that this amendment is needed to "change multi-story stands dominated by large grand fir trees to single story stands dominated by large early-seral ponderosa pine and western larch trees." Id. The amendment would help "maintain declining desired tree species, such as ponderosa pine and western larch, by reducing competition with over represented large grand fir." Id. The second amendment allows logging of "a limited amount of grand fir of any size from all units and logging of trees 21 inches diameter at breast height (DBH) and greater, where there is excessive mistletoe infestation impeding development of healthy conditions in Douglas-fir or where large trees of other species are affecting the health and vigor of aspen stands." AR 12831. The ROD states that this amendment is needed "to remove conifers within harvest treatment stands based on the greatest benefit to residual tree survival and stand sustainability rather than based on conifer diameter." Id.

Plaintiffs submitted comments during the public comment period for the draft EIS. AR 8866, 8459. Once the ROD and final EIS were issued, Plaintiffs submitted administrativeappeals. AR 14744, 15250. Now, Plaintiffs challenge the ROD and its underlying final EIS in this Court by bringing the following claims which allege violations of NEPA⁶:

1) Failure to disclose and analyze in the final EIS the cumulative impacts of prior timber sale projects across the WWNF and failure to properly consider and analyze the impacts of reasonably foreseeable future sales and plan amendments in similarly situated areas of the WWNF, (Claim 1, Count 3);

2) Failure to prepare a supplemental EIS and instead preparing the final EIS relying on a Travel Management Plan that had been withdrawn, (Claim 1, Count 4);

3) Failure to take a "hard look" at whether the Project's proposed logging within old forests and logging of big trees will achieve the Project's purpose and need; and failure to consider a reasonable range of alternatives, (Claim 1, Counts 6, 8);

4) Failure to include documents critical to the Forest Service's analysis in the final EIS and failure to prepare a new or supplemental draft EIS for the Project, in light of significant reworking of its analysis, (Claim 1, Counts 9, 10); and

5) Failure to ensure the scientific integrity of the discussions and analyses pertaining to logging large trees and old forests, (Claim 1, Count 11).

In addition, Plaintiffs bring the following claim under NFMA:

1) Improper use of site-specific amendments to the Forest Plan, (Claim 2).

Plaintiffs seek declaratory and injunctive relief as follows: (1) declare that Defendants violated NEPA and NFMA in all the ways that Plaintiffs allege; (2) vacate and set aside the final EIS and ROD for the Project; (3) enjoin the Forest...