Watershed v. Hurlocker

393 F.Supp.3d 1086

WILD WATERSHED, et al., Plaintiffs,

v.Sanford HURLOCKER, District Ranger, Santa Fe National Forest, et al., Defendants.

No. 18 CV 486 JAP/SCY

United States District Court, D. New Mexico.

Signed June 3, 2019

Stephen G. Durkovich, Law Office of Stephen Durkovich, Santa Fe, NM, Thomas John Woodbury, Forest Defense, PC, Missoula, MT, for Plaintiffs

Andrew A. Smith, U.S. Department of Justice c/o U.S. Attorneys Office, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiffs Wild Watershed, Multiple Chemical Sensitivities Task Force, Dr. Ann McCampbell, and Jan Boyer (collectively, Plaintiffs) have challenged the decisions of the United States Forest Service (USFS) approving two projects in the Santa Fe National Forest (SFNF), the Hyde Park Wildland Urban Interface Project (Hyde Park Project) and the Pacheco Canyon Forest Resiliency Project (Pacheco Canyon Project).¹ Plaintiffs request judicial review under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 et seq., bringing their claims against federal Defendants Sanford Hurlocker, a District Ranger for the SFNF; James Melonas, the Supervisor of the SFNF; Cal Joyner, the Regional Forester for the USFS Southwest Region; and Victoria Christiansen, the Chief of the USFS (collectively, Defendants). Defendants are sued solely in their official capacities.

On October 5, 2018, Defendants provided the Court with the final administrative records for the Hyde Park Project and the Pacheco Canyon Project.² Plaintiffs' challenge to the agency actions is now fully briefed,³ and the Court has reviewed the briefing, the administrative records,⁴ and the relevant law. Concluding that Defendants did not act arbitrarily, capriciously, or contrary to law, the Court will enter judgment for Defendants affirming the administrative decisions and will dismiss Plaintiffs' claims.

I. BACKGROUND

The Hyde Park Project and the Pacheco Canyon Project are both forest health projects in which the USFS proposes to use thinning and prescribed burning to reduce the risks posed by disease, insect infestation, and catastrophic wildfire in the project areas. HP003526-003528; PC001238-001240. These projects are part of a larger strategy to restore fire resiliency to forest lands by reintroducing fire as a forest management tool, rather than endeavoring to suppress all forest fires. HP00164; HP003526; PC000099; PC001238. Due to decades of fire suppression policies, the project areas are now overgrown with densely packed small diameter trees, many of which are stunted and diseased because they have grown in shade. HP003526-003527; PC000992; PC001238. These trees are more vulnerable to insect infestations and disease outbreaks. HP003437; HP003527; PC001238-001239. They also contribute to an increased risk for high-intensity fire because they provide fuel ladders that carry ground fire up into the tree canopy, where it may become a more severe crown fire. HP003437; HP003527; PC001238-001239. By reducing the tree density through thinning and prescribed low-intensity burning, the USFS hopes to increase the health of the remaining trees, encouraging them to grow larger and become more resilient. HP003439-003443; HP003527-003528; PC001201-001204; PC001239-001240. The projects are also expected to improve habitat diversity and sustainability by providing space for the reintroduction of more fire-tolerant species that have been suppressed by the unnatural overgrowth. HP003439-003443; HP003527-003528; PC001201-001204; PC001239-001240.

The Hyde Park Project and the Pacheco Canyon Project are located within SFNF lands that were designated by the Secretary of Agriculture on May 20, 2014 as insect and disease treatment areas under 16 U.S.C. § 6591a(b), part of the 2014 Farm Bill amendment to the Healthy Forests Restoration Act (HFRA), 16 U.S.C. §§ 6501 - 6591b. Once a treatment area has been designated under § 6591a(b), the USFS is authorized to "carry out priority projects on Federal lands in the areas designated under subsection (b)—(A) to reduce the risk or extent of, or increase the resilience to, insect or disease infestation; or (B) to reduce hazardous fuels." § 6591a(d). Relying on this statutory authority, the USFS approved the Hyde Park Project on March 21, 2018, and the Pacheco Canyon Project on June 1, 2018. HP003528-003531; PC001240-001243.

The decisions to approve the projects were made after scoping processes involving notice and public comment. HP003529-003530; PC001242. However, the USFS did not prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS) for either project. HP003528; PC001240. Instead, the USFS concluded that documentation in an EA or EIS was not required because the actions were categorically excluded from the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 - 4370h, under 16 U.S.C. § 6591b. Plaintiffs assert that the decisions to designate the treatment areas and approve the projects were arbitrary, capricious, and contrary to law because the USFS failed to consider the foreseeable cumulative direct and indirect impacts of the actions and failed to consider all of the relevant factors and follow all of the required procedures when making the decisions. Additionally, Plaintiffs contend that the projects do not meet the statutory requirements of the HFRA. They ask the Court to set aside the USFS decisions and enjoin implementation of the projects until the USFS prepares a programmatic EIS under NEPA.

II. STANDARD OF REVIEW

Plaintiffs claim that in designating treatment areas and approving the Hyde Park Project and the Pacheco Canyon Project, the USFS violated NEPA and the HFRA, as amended by the 2014 Farm Bill.⁵ The Court has jurisdiction over this suit under 28 U.S.C. § 1331 because it arises under the federal laws of the United States. Venue is proper in this district under 28 U.S.C. § 1391(e) because the claims involve a dispute over management of the SFNF, which is situated in this district. Plaintiffs and one or more of Defendants reside in the district, and the contested decision-making process took place in this district. Additionally, Plaintiffs' uncontested statements of aesthetic, recreational, and procedural injuries, allegedly caused by the USFS decisions and redressable through this lawsuit, have adequately established Plaintiffs' standing to bring their claims. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.").

However, as a challenge to final agency action, Plaintiffs' claims are reviewable only under the APA. See Wyoming v. U.S. Dep't of Agric. , 661 F.3d 1209, 1226 (10th Cir. 2011) (no private right of action under NEPA); Native Ecosystems Council v. Erickson , 330 F.Supp.3d 1218, 1228 (D. Mont. 2018) (no private right of action under NEPA or the HFRA). "Under the APA, [the Court] cannot set aside an agency decision unless it fails to meet statutory, procedural or constitutional requirements, or unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sac & Fox Nation v. Norton , 240 F.3d 1250, 1260 (10th Cir. 2001) (citing 5 U.S.C. § 706(2)(A)-(D) ). A decision is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

"The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency." Id. "[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ " Id. (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). However, the Court will " ‘accord agency action a presumption of validity,’ and ‘the burden is on the petitioner to demonstrate that the action is arbitrary and capricious.’ " Wyoming , 661 F.3d at 1227 (quoting Copar Pumice Co. v. Tidwell , 603 F.3d 780, 793 (10th Cir. 2010) ). "The deference [the Court will] give agency action is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise." San Juan Citizens Alliance v. Stiles , 654 F.3d 1038, 1045 (10th Cir. 2011) (internal quotation marks omitted).

III. DISCUSSION

Plaintiffs challenge both the 2014 designation of SFNF land under § 6591a(b) and the subsequent approvals of the Hyde Park Project and the Pacheco Canyon Project under § 6591a(d) and § 6591b(a) - (b). Plaintiffs assert that both the designation and the project approvals were in violation of NEPA, and that the projects also violate the old-growth standards and scientific requirements of the HFRA.

A. Designation of Treatment Areas

As an initial matter, Plaintiffs argue that the May 20, 2014 designation of SFNF lands under § 6591a(b) of the HFRA was a discretionary act that required NEPA analysis as to its foreseeable cumulative impacts, even before the USFS consideration of the specific projects in Hyde Park and Pacheco Canyon. Olenhouse Br. at 7-8....