Or. Wild, an Or. Non-Profit Corp. v. Bureau of Land Mgmt.

OREGON WILD, an Oregon non-profit corporation;and CASCADIA WILDLANDS, an Oregon non-profit corporation, Plaintiffs, v. BUREAU OF LAND MANAGEMENT, an administrative agency

of the United States Department of Interior, Defendant, v. SCOTT TIMBER Co., an Oregon corporation;and CARPENTERS INDUSTRIAL COUNCIL,an Oregon non-profit corporation, Defendant-Intervenors.

Case No. 6:14-CV-0110-AA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 14, 2015

OPINION AND ORDER

Jennifer R. Schwartz

Law Office of Jennifer R. Schwartz

325 NE Graham Street, #8

Portland, Oregon 97212

Nicholas S. Cady

Cascadia Wildlands

P.O. Box 10455

Eugene, Oregon 97440

Attorneys for plaintiffs

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Sam Hirsch

Acting Assistant Attorney General

Brian M. Collins

U.S. Department of Justice

Environmental and"Natural Resources Division

P.O. Box 7611

Washington, DC 20044

Attorneys for defendant

Robert L. Molinelli

Scott W. Horngren

American Forest Resource Council

5100 SW Macadam Boulevard, Suite 350

Portland, Oregon 97239

Attorneys for defendant-intervenors

AIKEN, Chief Judge:

Plaintiffs Oregon Wild and Cascadia Wìldlands move for summary judgment pursuant to Fed. R. Civ. P. 56. They allege that defendant, the U.S. Bureau of Land Management ("BLM"), violated the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act ("FLPMA"), the Administrative Procedure Act ("APA"), and those statutes' implementing regulations. Defendant BLM and defendant-intervenors, Scott Timber Co. ("Scott Timber") and Carpenters Industrial Council ("CIC"), oppose plaintiffs' motion and filed cross-motions for summary judgment. For the reasons set forth below, the Court partially grants plaintiffs' motion for summary judgement and denies the defense cross-motions. The Court need not reach plaintiffs' FLPMA claims, because it finds BLM violated NEPA and APA.

BACKGROUND

Plaintiffs challenge BLM's authorization of the White Castle Project ("project") located in BLM's Roseburg District near the community of Myrtle Creek in Douglas County. Administrative Record Page 2

("AR") 739, 770. In December 2010, the U.S. Secretary of the Interior directed Roseburg and other BLM districts in southwest Oregon to develop demonstration pilot projects to apply the principles of "ecological restoration" developed by Drs. Jerry F. Franklin and K. Norman Johnson ("Franklin and Johnson"). AR 6410; see AR 18332-40. The White Castle Project is one of two timber harvests that comprise the Roseburg District Secretarial Demonstration Pilot Project ("pilot project"). AR 739. Plaintiffs do not challenge the pilot project's other timber harvest, the Buck Rising Timber Sale, because it would affect younger trees that do not provide nesting, roosting, and foraging habitat for the threatened northern spotted owl. Compl. 11.

The federal government listed the northern spotted owl as a threatened species under the Endangered Species Act in 1990, and its population has continued to decline since then, due, in part, to habitat loss from timber harvest. Determination of Threatened Status for the Northern Spotted Owl, 55 Fed. Reg. 26, 114 (June 26, 1990) (codified at 15 C.F.R. § 17.11(h)); AR 1366, 1382. The White Castle Project falls within the purview of the Northwest Forest Plan ("NWFP"), which coordinates federal efforts to balance environmental concerns with the need for sustainable forest products in the range of the northern spotted owl. AR 1381. The project also falls under the Revised Recovery Plan for the Northern Spotted Owl published by the U.S. Fish and Wildlife Service ("FWS") to provide recommendations for the conservation of the species and its habitat. AR 1382, 2307. In February 2012, during the

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project's planning stages, FWS proposed designating almost all of the pilot project area as "critical habitat . . . essential to the conservation of the spotted owl." AR 1011, 16403-506.¹ In December 2012, after BLM had already approved the project, FWS finalized a critical habitat designation that included an even greater portion of the pilot project area. AR 475, 478; Designation of Revised Critical Habitat for the Northern Spotted Owl, 77 Fed. Reg. 71876 (Dec. 4 2012).

The White Castle Project implements variable retention harvesting methods,² a shift for the Roseburg District, which has relied almost exclusively on less intensive thinning and density management strategies for timber production since 2000. AR 513. The project would apply variable retention harvesting techniques to 265 acres, retaining 78 acres and logging 187 acres of forest. AR 740, 537, 544. The project would harvest the 187 acres in nine separate units clustered within a few miles of one another. AR 739, 770, 726. The forest stands to be harvested range in age from 60 to 110 years old, and "most of the stands to be treated are

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between 100 and 110 years of age." AR 539.³ The project would effectively remove 160 acres of "mature forest," defined as stands over 80 years old.⁴ AR 503 (BLM response to project protest). Defendant-Intervenor Scott Timber purchased the project's timber sale and would harvest an estimated 6,395 thousand board feet of timber. AR 73 9; Scott Mot. Intervene 4.

After the White Castle Project's authorization, FWS designated all or almost all 187 acres slated for harvest as critical habitat for the northern spotted owl. AR 1028-29, 1359, 748.⁵ The project would remove habitat within the home ranges⁶ of several spotted owls, although no nests would be located in the harvest area. AR 6468, 748, 1403. BLM consulted with FWS at all stages of project planning and requested a Biological Opinion ("BiOp") which FWS issued June 4, 2012 and updated and confirmed on January 11, 2013 after FWS approved final critical habitat designations. AR 1351-

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1442 (BiOp), 1027-30 (errata), 475-80 (update). The BiOp determined the project would "adversely affect" northern spotted owls, their critical habitat, and their prey such as red tree voles but would not jeopardize the continued existence of the northern spotted owl as a species. AR 1351, 1412-13, 1421-23, 478-80.

The project area contains habitat for the red tree vole, an arboreal rodent that inhabits older conifer forests and serves as a key food source for spotted owls. AR 6479. The NWFP sets Survey and Manage requirements for red tree voles. AR 6479, 9876, 9878. During the development of the project, volunteers with the organization Northwest Ecosystems Survey Team ("NEST") surveyed project units for voles and submitted evidence of nest sites to BLM. AR 4008-11, 3006. BLM acknowledged NEST's submissions but rejected the findings and declined to analyze them in the project's Environmental Assessment ("EA") or to manage the alleged sites in accordance with the NWFP. AR 3006, 6480.

In April 2012, BLM issued the EA for the pilot project as a whole, analyzing the White Castle and Buck Rising project areas together. AR 6402-6652. The EA set forth the pilot project's three-fold purpose: (1) to demonstrate a variable retention harvesting model to create complex, early-successional habitat; (2) to design the pilot project with participation from FWS in order to apply Recovery Actions from the Northern Spotted Owl Recovery Plan; and (3) to design and offer timber sales that benefit local and regional employment and manufacturing. AR 6411. The EA assessed two alternatives: a no-action alternative and the project as

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proposed, breaking the analysis of the proposed action into two variations, one with and one without riparian treatments in the Buck Rising Project area. AR 6419-22. In June 2012, after public comment and the FWS BiOp, BLM opted for the proposed project with riparian treatments and issued a Finding of No Significant Impact ("FONSI"). AR 1006-15. In August 2012, BLM authorized both the Buck Rising and White Castle projects. AR 739-87.

On January 22, 2014, plaintiffs filed the present complaint, claiming BLM's analysis and authorization of the White Castle Project violated NEPA, FLPMA, APA, and accompanying regulations. Compl. 19. On May 12, 2014, the Court permitted Scott Timber, the contract holder for the White Castle timber sale, and CIC, a union representing affected lumber mill workers, to intervene. On June 20, 2014, plaintiffs moved for summary judgment, and defendant and defendant-intervenors responded and made cross-motions seeking summary judgment in their favor.⁷ Plaintiffs allege BLM violated NEPA by failing to analyze an adequate range of project alternatives; not preparing an Environmental Impact Statement ("EIS"); and failing to take the required "hard look" at the project's potential environmental consequences. Compl. 16-18. Plaintiffs also claim BLM violated FLPMA and NEPA by failing to adhere to NWFP requirements for surveying and managing red, tree vole sites. Compl. 19. Plaintiffs ask the Court to find that BLM

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violated NEPA, FLPMA, and APA; to vacate the White Castle decision; and to enjoin BLM from proceeding with the project and compel them to correct the alleged violations. Pls.' Mot. Summ. J. 2-3. Plaintiffs also seek attorney fees and costs. Id. at 3.

STANDARD OF REVIEW

Courts must review federal agencies' compliance with NEPA or FLPMA under the APA. 5 U.S.C. § 706. In an APA case, a court will award summary judgment for the plaintiff if, after reviewing the administrative record, it determines that the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir, 2005) (quoting 5 U.S.C. § 706(2)(A)). Under this standard of review, the court must "engage in a substantial inquiry," which entails "a thorough, probing, in-depth review," Native Ecosys. Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005). However, the court may not substitute its own judgment for that of the agency. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds...