Prairie Wood Products v. Glickman

Page 457

971 F.Supp. 457

PRAIRIE WOOD PRODUCTS, et al., Plaintiffs, v. Dan GLICKMAN, Secretary of Agriculture, et al., Defendants, and Pacific Rivers Council, et al., Defendant-Intervenors.

BLUE MOUNTAIN NATIVE FOREST ALLIANCE, et al., Plaintiffs, v. John LOWE, Regional Forester, United States Forest Service, Region Six, et al., Defendants.

No. 96-6058-HO.

No. 95-1519-HO.

United States District Court, D. Oregon.

April 10, 1997.

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Scott W. Horngren, Shay S. Scott, Haglund & Kirtley, Portland, Or., for Prairie Woods Products, DR Johnson Lumber Co., Malheur Lumber Co., Malheur Timber Operators, Northwest Forest Resource Council, Dan Bishop, Thomas Lumber Co., Grant County, Valley County, Adams County, Idaho County, Boise County.

Kristine Olson, Thomas C. Lee., U.S. Attorneys Office, Portland, OR, Wells Burgess, U.S. Dept. of Justice, Washington, DC, James L. Sutherland, Asst. U.S. Atty., Eugene, OR, Lois J. Schiffer, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, John W. Watts, Dept. of Justice, General Litigation Section, Washington, DC, for Secretary, U.S. Dept. of Agriculture, being sued as Dan Glickman, U.S. Forest Service, being sued as Jack Ward Thomas.

James L. Sutherland, Asst. U.S. Atty., Eugene, OR, John W. Watts, Dept. of Justice, General Litigation Section, Washington, DC, for Robert W. Williams, David Jolly, Dale Worth.

Marianne G. Dugan, Western Environmental Law Center, Eugene, OR, Todd D. True, Adam J. Berger, Sierra Club Legal Defense Fund, Seattle, WA, for Pacific Rivers Council, Wilderness Soc., Inland Empire Public Lands Council, Idaho Conservation League.

ORDER

HOGAN, Chief Judge.

These two consolidated cases involve challenges to the United States Forest Service's decision to implement certain resource conservation policies in nine national forests pending completion of long term forest plan strategy. The Prairie Wood Products plaintiffs (Prairie Wood plaintiffs) move for summary judgment under the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Plaintiffs' Motion for Summary Judgment (# 40). The Blue Mountain Native Forest Alliance plaintiffs (Blue Mountain plaintiffs) move for partial summary judgment under NEPA. Plaintiffs' Motion for Partial Summary Judgment (# 29). Defendants have submitted cross motions for summary judgment. Federal Defendants' Motion for Summary Judgment (# 59) (Prairie Wood claims); Federal Defendants' Cross Motion for Partial Summary Judgment (# 31) (Blue Mountain claim). Defendant-intervenors move for summary judgment as to the Prairie Wood plaintiffs' fourth and seventh claims for relief. Defendants-intervenors' Cross Motion for Partial Summary Judgment (# 53).

FACTS

The agency decisions at issue took place against a backdrop of information obtained by the United States Forest Service (Forest Service) in the early 1990s. See Defendants' Ex. L (# 134), Environmental Assessment (EA) at 1-3. That information, reflected in both private and government reports, indicated "broad declines in naturally reproducing Pacific salmon, steelhead, and sea-run cutthroat trout" and "widespread degradation of the habitat upon which these anadromous fish depend." Id. at 1. Other scientific studies identified risks to wildlife species in old growth forests on the east side of the Cascade mountain range. See Eastside Screen Administrative Record (ES AR) at 1996; see also ES AR at 2135.

The Forest Service, with the cooperation of the Bureau of Land Management (BLM), began preparation of two Environmental Impact Statements (EISs) to consider the impacts of long term strategies dealing with the observed ecosystem degradation. In February, 1994, the Forest Service and BLM announced their intention to prepare an EIS for the Lower Columbia River Basin (Eastern Oregon and Washington), and in December, 1994, the agencies announced their intention to prepare an EIS for the Upper Columbia River Basin (Idaho and parts of Montana, Utah, Nevada, and Wyoming). See 59 Fed.Reg. 63071 (Dec. 7, 1994). The Forest Service initially expected to issue a draft of the Lower Columbia River Basin EIS in November, 1994, 59 Fed.Reg. 4680 (January 21, 1994), but now expects the draft EISs for both the lower and upper Columbia Basins to be issued in June of this year, with the final EISs expected one year later. See 62 Fed. Reg. 2176 (Jan. 15, 1997).

From late 1993 to 1995, the Forest Service developed several strategies pending completion of the Columbia River Basin EISs. The first, the Eastside Screens, was originally announced in a memorandum issued by the Regional Forester on August 18, 1993. Eastside Screens Administrative Record (ES AR) at 1090. In December, 1993, the Forest Service released a draft Environmental Assessment (EA) concerning a revised version of the screens. ES AR 1739. On May 20, 1994, the Forest Service issued a final EA, including a Finding of No Significant Impact (FONSI). ES AR at 2124, 2135. The Regional Forester amended the affected forest plans to incorporate the screens but did not amend the regional guide. ES AR at 2127.

The Eastside Screens initially consisted of three procedures for screening proposed timber sales. The riparian Screen, however, which established no-harvest stream-side buffers, has been superseded by a more comprehensive riparian conservation strategy, as described below. See July 31, 1995 INFISH Decision Notice Correction, Defendants' Ex. J at 4-1. Under the ecosystem screen, which remains effective, the Forest Service compares current conditions of a proposed timber sale area with the range of conditions that existed in that area prior to colonial settlement, called the Historic Range of Variability (HRV). 1994 Def. Ex. A, App. A at 3. Under the wildlife screen, the Forest Service imposes certain harvesting restrictions according to whether the condition of a sale area is within the HRV. Id. at 7-11. As originally drafted, the wildlife screen prohibited the sale of timber in late and old structural (LOS) stands.

The Forest Service amended the screens on June 5, 1995, to allow the Forest Service to permit certain types of "thinning, group or individual tree selection sales of the understory" in LOS stands meeting or exceeding the HRV. Decision Notice, Def. Ex. A at 5. The purpose of the amendment was to provide an opportunity "to reduce stress on the big trees by treating the understory, while also relieving some of the fuels accumulation." Id.

The second interim strategy, Interim Strategies for Managing Anadromous Fish-producing Watersheds in Eastern Oregon and Washington, Idaho, and Portions of California, has been dubbed "PACFISH". In March, 1994, the Forest Service and BLM issued a draft EA for PACFISH. After responding to public comments obtained during a 60-day comment period, the agencies issued a final Decision Notice, EA, and FONSI on February 24, 1995. PACFISH Decision Notice, Def. Ex. L. The affected forest plans and regional guides were amended to incorporate the PACFISH procedures. See id. at 8.

PACFISH is a strategy for the conservation of riparian environments. It restricts timber harvest and other management activities within Riparian Habitat Conservation Areas (RHCAs) as well as activities outside RHCAs that would degrade RHCAs. Id. at C-8 to C-19. PACFISH allows salvage and fuelwood logging within RHCAs only when the RHCA's woody debris needs are met, where such logging would not impair other riparian management objectives, and where adverse effects on anadromous fish listed under the Endangered Species Act can be avoided. Id. at C-10.

The RHCAs consist of buffers which vary in width according to character of water (whether fish-bearing, perennial, etc. as described below) and topography. The first category is fish-bearing streams, for which the buffers include the stream and extend from each side of the stream to the top of the inner gorge, the outer edges of the 100-year floodplain, the outer edges of riparian vegetation, a distance equal to the height of two site-potential trees, or 300 feet slope distance (from each side of the stream) whichever is greatest. Id. at C-8. The three other categories are permanently flowing non-fish-bearing streams; ponds, lakes, reservoirs, and wetlands greater than one acre; and seasonally flowing or intermittent streams, wetlands less than one acre, landslides, and landslide-prone areas. These categories also have topographically-defined buffers but with 150 foot minimum widths for bodies of water in categories two and three. Id.

The third interim strategy, the Inland Native Fish Strategy (INFISH), involves nonanadromous fish bearing waters. As noted above, INFISH and PACFISH together superseded the riparian screens. INFISH is not challenged in either of these actions.

DISCUSSION

I. Standard of Review

The Forest Service's Environmental Assessments and forest plan amendments must be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989) (arbitrary and capricious standard applies to agency findings which involve agency expertise). Although "inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The agency's action may not be set aside so long as it has a "rational basis." Bowman Transp., Inc. v. Arkansas-Best Freight System. Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986).

Summary judgment is appropriate "if the pleadings,...