Court: District Court, D. Oregon; January 2, 2019; Federal District Court
Magistrate Judge Sullivan's Findings and Recommendation from August 27, 2018, suggests that the Court should partially grant and partially deny the parties' motions for summary judgment, vacate the Forest Service's decision, and remand for further proceedings. Central Oregon Landwatch, Federal Defendants, and Intervenors have filed objections to this recommendation. Under 28 U.S.C. 636(b)(1) and Federal Rule of Civil Procedure 72(b), the district court is required to perform a de novo review of any objected portion of the report.
Upon review, the District Judge concurs with Judge Sullivan's conclusions that the Forest Service's "No Effect" determination contravened the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). The Judge clarifies that on remand, the Forest Service must consult with the Fish and Wildlife Service (FWS) in accordance with 50 C.F.R. 402.13 and 402.14, unless exceptions apply.
Regarding elk habitat claims, the Judge agrees with Judge Sullivan's findings that the Forest Service violated the National Forest Management Act (NFMA) and NEPA. The Federal Defendants contended that Judge Sullivan overstepped her authority by requiring the Forest Service to map calving sites and wallows upon remand. However, the District Judge interprets the Findings and Recommendation as emphasizing the necessity for the Forest Service to substantiate its compliance with Forest Plan requirements by documenting the locations of these sites. Judge Sullivan pointed out that while the Service had some seasonal restrictions, it failed to provide specific data or maps identifying known elk calving sites and wallows, thus lacking a rational basis for demonstrating compliance with obligations to protect these areas and minimize disturbances.
Judge Sullivan's agreement with the Forest Service's approach to protecting specific sites in relation to a project is noted, although she emphasizes the need for clearer explanations regarding site protections and minimal disturbances, without mandating actual site mapping. The main issue lies in the Forest Service's failure to provide a rational explanation for its compliance with certain Forest Plan directives, leaving the method of remedying this error open.
Regarding riparian claims under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA), Judge Sullivan's conclusions are largely adopted, except for her endorsement of the Forest Service's justification for modifying Inland Native Fish Strategy (INFISH) Riparian Management Objectives (RMOs). While the Forest Service altered RMOs for woody debris, stream temperature, and width/depth ratios, Judge Sullivan asserts that the agency adequately analyzed habitat indicators and cited relevant studies to support these modifications.
However, the author disagrees with the notion that the Forest Service's modifications align with INFISH requirements due to a lack of specific watershed or stream reach data. INFISH mandates that modifications to interim RMOs must follow a watershed analysis or be supported by specific data, neither of which was adequately met in this case. The SFEIS references the interim INFISH RMOs pertinent to the project and redband trout, but fails to provide the necessary site-specific justifications as required by INFISH, which stipulates that such analysis should be completed before establishing or modifying RMOs.
The Forest Service modified the Interim Framework for Managing Habitat (INFISH) Resource Management Objectives (RMOs) concerning large woody debris, stream temperature, and width/depth ratios to better reflect habitat conditions in the Project Area. The adjustments for large woody debris increased the requirement from over 20 pieces per mile to over 48-69 pieces per mile, informed by a 1995 study from Oregon's Blue Mountains. For stream temperature, the original RMO mandated no measurable increase in maximum temperatures, while the modified RMOs categorized temperatures as "Good," "Fair," or "Poor," based on a seven-day average maximum temperature range associated with redband trout habitat suitability. The width/depth ratio objective was also modified based on a study by Rosgen, which considered stream type rather than a one-size-fits-all approach. However, the Forest Service's modifications lacked watershed or stream reach-specific data, contravening INFISH requirements that necessitate such data for RMO changes. Consequently, the court rejected the Forest Service's compliance with INFISH regarding these modifications, adopting most of the Findings and Recommendations except for the INFISH-related claims. The Forest Service's Supplemental Environmental Impact Statement (SFEIS) and Record of Decision (ROD) were vacated and remanded for further proceedings aligned with the Findings and Recommendations.
The U.S. Forest Service's approval of the Ochoco Summit Trail System Project, which establishes a 137-mile network of roads and trails for off-highway vehicle (OHV) use in the Ochoco National Forest, is being challenged in consolidated cases by several plaintiffs, including WildEarth Guardians, Oregon Wild, the Sierra Club, and Great Old Broads for Wilderness, along with Central Oregon LandWatch and the Oregon Hunters Association. The Project was approved via a Supplemental Final Environmental Impact Statement (SFEIS) in September 2016 and a final Record of Decision (ROD) in June 2017. Plaintiffs assert claims against the SFEIS and ROD under the Administrative Procedure Act and various environmental statutes, including the Endangered Species Act, National Forest Management Act, National Environmental Policy Act, Inland Native Fish Strategy, and the Travel Management Rule. The parties have submitted cross-motions for summary judgment, with additional motions to supplement the Administrative Record and submit extra-record evidence. The Court held oral arguments on May 22, 2018, ultimately denying the motions to supplement and striking down the response to LandWatch's Motion to Supplement. The Court plans to grant in part and deny in part the summary judgment motions, vacate the Forest Service's decision, and remand for further proceedings. The Project includes both existing and new trails, with a mix of user-created paths and roads, and provisions for seasonal OHV access.
The Project Area encompasses 301,580 acres near Prineville, Oregon, and includes an "OHV Management Area" to manage unauthorized off-highway vehicle (OHV) trails, which pose environmental risks and create conflicts between motorized and non-motorized users. The Project integrates design features and mitigation strategies aimed at safeguarding forest resources, particularly streams, riparian zones, and big game species such as elk. It comprises four segments that intersect three old growth management areas and involves the construction of a new trail through scabland.
The project approval process began with public meetings conducted by the Forest Service from 2006 to 2009, leading to a scoping notice in November 2009 for a designated trail system. The Forest Service proposed an OHV trail system to fulfill recreational demand and mitigate unauthorized trails. A draft Environmental Impact Statement (EIS) was released in January 2012, followed by a final EIS and draft Record of Decision (ROD) in March 2014. After withdrawing the final EIS and draft ROD in July 2014 for further design, a supplemental draft EIS was issued in February 2016, culminating in a supplemental final EIS (SFEIS) in September 2016. The Forest Supervisor approved the Project on June 27, 2017, selecting Alternative 5 with an additional route from Alternative 2.
Under the Administrative Procedure Act (APA), courts must set aside agency actions deemed arbitrary, capricious, or not in accordance with law. The review is thorough yet deferential, requiring evidence of rational connections between facts and conclusions. Agency decisions are upheld unless they rely on inappropriate factors, neglect significant aspects, contradict the evidence, or are implausible. The agency’s reasoning must be rational, clear, and complete to withstand scrutiny.
An agency's decision can only be upheld based on the reasoning provided within that decision. LandWatch sought to supplement the Administrative Record with maps of elk security habitat, while an amicus curiae sought to submit a map of gray wolf dispersal paths. The federal defendants opposed both motions and submitted a declaration challenging the validity of the maps. LandWatch then moved to strike this declaration. The Court ultimately denied both LandWatch's and the amicus's motions to submit extra-record evidence and deemed LandWatch's motion to strike moot.
Judicial review of agency decisions primarily relies on the existing administrative record, with limited exceptions allowing for extra-record evidence. These exceptions include situations where it is necessary to assess whether the agency considered all relevant factors, relied on documents not in the record, needs clarification of technical terms, or shows agency bad faith. The burden to demonstrate the applicability of these exceptions falls on the party seeking to admit extra-record evidence.
In contrast, under the Endangered Species Act (ESA), courts are not restricted to the administrative record and may consider additional evidence for ESA claims. While APA standards still apply to ESA citizen suits, the scope of review is broader than that under the APA.
LandWatch's motion to supplement the Administrative Record with newly created maps fails to meet the strict requirements of the Administrative Procedure Act (APA). These maps were developed after the administrative process for use in litigation and were not available during the decision-making process. The exceptions outlined in Lands Council pertain only to information available at the time of the original decision, not subsequently created materials. LandWatch’s maps attempt to present an alternative factual interpretation of vegetation management projects and elk habitats to challenge the Forest Service's determination that the Project would have "no effect" on endangered gray wolves. However, the existing Administrative Record already addresses the Project's impacts on elk and, by extension, gray wolves, rendering LandWatch's maps irrelevant to the analysis of the Endangered Species Act (ESA) claims.
Additionally, Amicus' motion to submit extra-record evidence is deemed improper. Amicus, while assisting in public interest cases, does not hold the same privileges as formal parties and has not sought to intervene in this litigation. Even if Amicus were allowed to submit extra-record evidence, the maps proposed do not meet APA admissibility criteria as they were created after the administrative process and do not provide new relevant information. The existing Administrative Record already covers the essential details regarding the Project's impacts on gray wolves, making the proposed submissions unnecessary for the Court's decision-making.
Federal defendants have submitted the Passarelli Declaration to argue that LandWatch's and amicus' maps are scientifically flawed and not admissible as extra-record evidence. The Court clarifies that the Passarelli Declaration is not intended to support the merits of the case but rather for limited evidentiary purposes under general rules of evidence. The Court finds that LandWatch's and amicus' evidence is not properly admitted, rendering LandWatch's Motion to Strike the Passarelli Declaration moot. Consequently, the Court denies LandWatch's Motion to Supplement the Administrative Record and amicus' Motion to Submit Extra-Record Evidence, as well as LandWatch's Motion to Strike.
On standing, each plaintiff has demonstrated the necessary criteria, which include suffering a concrete injury that is traceable to the challenged conduct and can be redressed by the court. An organization has standing if its members would have standing individually, the interests are related to the organization's purpose, and the lawsuit does not require individual member participation. The presence of any party with standing meets Article III's case-or-controversy requirement. Environmental plaintiffs can show injury by asserting usage of the affected area and diminished aesthetic and recreational values due to the challenged action. The federal defendants have only contested LandWatch's standing concerning its ESA claims but have not challenged the standing of Guardians, who assert similar claims. Although the initial declarations supporting LandWatch's standing were general, the supplemental Miller Declaration provides specific evidence of interest in photographing wolves in the Project Area, thus establishing standing. The federal defendants' arguments against LandWatch's standing are ultimately unsuccessful.
The Endangered Species Act (ESA) aims to conserve ecosystems supporting endangered and threatened species, mandating federal agencies to ensure their actions do not jeopardize these species or their habitats. Under Section 7, federal agencies must assess whether any listed species may be present in the area of their proposed action and, if so, prepare a biological assessment. If the agency determines that its actions may affect a listed species, formal consultation with the Fish and Wildlife Service or the National Marine Fisheries Service is required. The threshold for triggering this consultation is low; any potential effect—whether beneficial or adverse—necessitates further review.
In the context of a specific project, the Forest Service concluded that the project would have "No Effect" on gray wolves, citing a lack of breeding packs and consistent occupancy in the area. However, this conclusion is flawed. The ESA's inquiry only requires consideration of whether the species "may" be present, not whether significant numbers exist. Evidence indicates gray wolves are present in the Forest, with reports of their increasing use, movement through the area, and observations by staff and contractors. The project area is identified as having habitat suitable for transient gray wolves. Defendants reference a case (Defenders of Wildlife v. Flowers) to argue that residency is necessary for impacts under Section 7; however, this case is not applicable, as there is confirmed evidence of gray wolf presence in the area, unlike the situation in Flowers where no owls were detected.
The Forest Service must reassess whether the Project "may affect" the gray wolf due to a flawed "may be present" finding in the Section 7 analysis, given the low threshold that considers any potential effects. Defendants' admissions indicate that roads and motorized routes can reduce prey availability and habitat suitability for wolves, as wolves tend to avoid areas with motorized activity. The Administrative Record highlights various potential impacts on wolves from the Project Area, including denning and foraging activities, land use changes, prey distribution alterations, human-wolf conflicts, and increased road densities. Since gray wolves may be present in the Project Area, the "may affect" analysis must include these factors. The Forest Service's informal communications with the Fish and Wildlife Service (FWS) do not suffice, as formal consultation is mandated when endangered species may be affected. The Forest Service's "no effect" determination was in violation of the Endangered Species Act (ESA) and showed a failure to adequately consider the Project's impacts on gray wolves, violating the National Environmental Policy Act (NEPA). Motions for summary judgment by LandWatch and Guardians concerning the ESA claim should be granted, while the defendants' motion should be denied.
Additionally, the claims regarding the Project's effects on elk and elk habitat under the National Forest Management Act (NFMA) and NEPA focus on the protection of elk calving areas, habitat integrity, the scientific validity of the Forest Service's studies, and cumulative impacts. The NFMA mandates that the Forest Service's actions must align with established forest management plans, which outline long-term objectives for forest management and require compliance with resource planning. The Forest Service is also tasked with ensuring biodiversity based on land suitability and conducting analyses for specific actions to maintain consistency with the forest plan and NFMA requirements.
Every project or activity must align with applicable plan components, requiring an approval document to explain this consistency. Land and resource management plans must ensure multiple use and sustained yield of resources, coordinating various interests like recreation and wildlife, according to the Multiple-Use Sustained-Yield Act of 1960. The Forest Service has significant discretion in balancing these uses to meet public needs, and its interpretation of the Forest Plan is afforded substantial deference by courts.
The National Environmental Policy Act (NEPA) emphasizes the commitment to environmental quality, ensuring agencies consider detailed information about significant environmental impacts in their decision-making process. NEPA does not dictate specific outcomes but mandates a thorough process, requiring a "hard look" at potential environmental consequences. If a proposed action may significantly affect the environment, an Environmental Impact Statement (EIS) must be prepared, providing comprehensive analysis. Alternatively, an Environmental Assessment (EA) may be conducted to determine the necessity of an EIS.
NEPA requires consideration of all foreseeable direct and indirect impacts, with direct effects occurring simultaneously with the action, while indirect effects may occur later or farther away but are still foreseeable. Cumulative effects encompass the overall impact from the action combined with other past, present, and reasonably foreseeable actions, even if individually minor. Agencies are obligated to disclose these direct, indirect, and cumulative impacts in their assessments.
The agency's failure to adequately disclose or analyze environmental impacts indicates a lack of a thorough examination of consequences, as required by precedent. The Forest Plan mandates the protection of elk, specifically regarding calving sites and wallows, by minimizing human disturbances during critical periods: calving from May 15 to June 30 and rutting from September 1 to October 15. Plaintiffs argue that the Project infringes upon these protections by permitting motor vehicle use in these sensitive areas during the specified seasons. Although there are seasonal restrictions for project-related activities, these do not extend to motorized OHV use, which is allowed from June 1 to September 30. Furthermore, the existing restrictions apply only to known sites and lack adequate documentation on specific locations of calving sites and wallows, failing to establish how motor vehicle use during these seasons will protect these areas. The Project could impact 11,040 acres of potential elk calving habitat, equating to 9% of the total calving area, without sufficient protective measures against the adverse effects of motor vehicles during critical reproductive periods. Additionally, the provisions for future monitoring and mitigation are deemed inadequate and not aligned with the requirement for demonstrating consistency with the Forest Plan at the time of decision-making.
Defendants assert that the Forest Service should receive deference in fulfilling its duty to minimize disturbances and protect calving sites and wallows, arguing that the Forest Plan lacks specific mandates for disturbance minimization and seasonal use restrictions. However, the issue is not the agency's interpretation but rather the absence of data identifying calving sites and wallows, preventing effective protection. The Forest Service’s seasonal restrictions on construction and maintenance, which do not extend to motorized vehicle use, contradict the Forest Plan and are thus not worthy of deference. The permitted motor vehicle use during sensitive elk seasons violates the Forest Plan’s requirements to minimize human activity during calving and protect wallows during rutting. The Forest Service has not adequately justified how the Project aligns with the Forest Plan. Additionally, the SFEIS is challenged for not adhering to road density standards crucial for big game habitat protection, as the Forest Plan specifies that open road densities should remain below 3.0 miles per square mile. Plaintiffs argue that the SFEIS and ROD fail to adequately demonstrate compliance with this road density requirement, violating the Forest Plan, NFMA, and NEPA. While defendants claim that Hunters waived their road density concerns, evidence shows that Hunters consistently raised objections during the administrative process. The requirement for administrative exhaustion is interpreted broadly, allowing issues to be raised with sufficient clarity for decision-makers to understand and address them. Summary judgment should be granted in favor of the plaintiffs regarding their claims about elk calving sites and wallows, while the defendants' motion should be denied.
Alerting an agency in general terms fulfills the exhaustion requirement, provided the agency has the opportunity to apply its expertise to resolve the claim. It is not necessary for a plaintiff to cite specific statutes or use precise legal terminology to exhaust a legal issue. In the context of road density calculations for a project, the SFEIS indicates that the chosen alternative has a motorized road density of 2.06 mi/mi². However, there are discrepancies in the road mileage figures presented. The Forest Service claims an existing road density of 1.83 mi/mi² under the "no-action" alternative, but other data suggests a higher total of 1,069 miles of open roads, leading to a recalculated road density of 2.49 mi/mi² once the additional 107 miles of open routes are included. Furthermore, nearly 700 miles of user-created OHV routes were not considered in the road density analysis, even though these routes significantly impact elk habitat. Including these user-created routes would elevate the road density to 3.75 mi/mi², exceeding Forest Plan limitations. Additionally, the SFEIS presents another figure of 1,820 miles of open road, with unclear derivation, which may have been used to minimize perceived project impacts. The Forest Service contends that only open roads contribute to the road density requirement but fails to adequately justify exclusions from the calculations.
Defendants acknowledge unauthorized off-highway vehicle (OHV) use on closed roads, exacerbating issues with the exclusion of user-created trails from road density calculations. The Forest Service's significantly differing mileage figures and failure to include user-created trails in these calculations is deemed arbitrary and capricious, undermining the legitimacy of its compliance with road density requirements. This inconsistency in the Supplemental Final Environmental Impact Statement (SFEIS) and Record of Decision (ROD) violates the agency’s duty to provide accurate and transparent information to the public, as mandated by the Forest Plan. While the Forest Service claims discretion in its road density analysis, it fails to justify the exclusion of user-created trails. Defendants contend that the Forest Plan does not require the inclusion of these trails, yet the Forest Service has not adequately explained its decision. Furthermore, the agency's claim regarding an irrelevant 1,820-mile figure lacks clarification on its purpose, raising concerns about inconsistent calculations. Although the Forest Service is permitted to interpret the Forest Plan, this deference does not apply to unsubstantiated decisions. Consequently, the analysis is deemed arbitrary and capricious. The Forest Plan mandates that road and trail densities must meet long-term resource needs, yet the SFEIS and ROD do not address compliance with this requirement or define what those needs are. Therefore, the SFEIS and ROD are found to violate road density requirements, leading to the recommendation that the Hunters’ and Guardians' motions for summary judgment on road density claims be granted, while the defendants' motion be denied. Additionally, plaintiffs argue that the Project fails to provide adequate elk habitat as required by the Forest Plan and NMFA, with specific objections to the Forest Service’s analysis of elk security habitat in relation to road density.
The Forest Service faces criticism for not thoroughly analyzing the effects of user-created roads on elk habitat, as required by NEPA. Hunters contend that the SFEIS lacks scientific integrity, misrepresenting research on elk security habitats and the impacts of motorized vehicles. According to relevant regulations, the agency must ensure the professional and scientific integrity of its analyses, properly disclose its methodologies, and explain its conclusions. While the court generally defers to the agency's scientific judgments, it also conducts an independent review of the decision-making process.
The SFEIS established "key indicators" for assessing elk security habitat based on specific distance and area criteria, referencing several studies. However, hunters argue these studies do not support the chosen metrics and highlight omissions, such as a 30% minimum acreage requirement for security areas and misinterpretations of distance thresholds. Despite these claims, the Forest Service utilized a range of studies and data, indicating it is not bound to accept any single study's findings. The agency relied on various studies and expert opinions to analyze habitat impacts, maintaining discretion in choosing which expert views to adopt, even if a court may find alternative perspectives more convincing.
Under NEPA, the court is not obligated to resolve scientific methodology disagreements, affirming the Forest Service's reliance on its expert's findings regarding open roads and elk habitat as reasonable and not arbitrary. The court emphasized that it cannot substitute plaintiffs’ opinions for the agency's scientific judgment. Plaintiffs' demands for the Forest Service to address every argument from cited studies exceed the agency's NEPA obligations, which do not require a response to every scientific comment.
However, the court found that the Forest Service failed to adequately analyze elk security habitat in relation to open and closed user-created roads, leading to an arbitrary and capricious decision under NEPA. Consequently, the defendant's motion for summary judgment on the Hunters' scientific integrity claims should be granted, while the Hunters' motion should be denied. Conversely, motions for summary judgment by other plaintiffs regarding elk security habitat and roads should be granted, and the defendant's motion denied.
LandWatch contends that the Forest Service did not gather sufficient data on elk calving and rutting sites, arguing that this lack of information violates NEPA's requirement for adequate baseline data for evaluating project impacts. The Forest Service cannot rely on future monitoring for these sites, as data must be available during the Environmental Impact Statement (EIS) process for public comment. While the Forest Service claims to have expanded protections for known calving sites, the project lacks restrictions on trail use and does not identify these sites. The Record of Decision (ROD) specifies that timing restrictions apply only to construction-related activities, not to the use of trails, which fails to encompass the necessary protections for calving and rutting areas.
Defendants claim that the Forest Service intended to implement seasonal restrictions on trail operation for the Project, but this intention is not reflected in the Record of Decision (ROD) or Supplemental Final Environmental Impact Statement (SFEIS). They cannot introduce the term "trail operation" into the ROD during litigation. The defendants have not clearly identified elk calving and rutting areas nor explained how these areas will be protected during overlapping OHV use, leading to a failure to meet the "hard look" requirement under the National Environmental Policy Act (NEPA). Consequently, LandWatch's Motion for Summary Judgment regarding the claims related to calving and rutting sites should be granted, while the defendants' Motion should be denied.
Regarding cumulative impacts, hunters argue that the SFEIS inadequately analyzes the Project's cumulative effects alongside other local actions, such as livestock grazing and logging. NEPA mandates the Forest Service to disclose and analyze the direct, indirect, and cumulative impacts of its actions. The definition of cumulative effects includes the combined impact of actions over time, necessitating a detailed analysis rather than general statements. The analysis must explain how individual impacts may interact to affect the environment. Hunters assert that the SFEIS does not sufficiently address cumulative effects of elk harvest, despite acknowledging habitat impacts due to increased legal and illegal harvesting. The SFEIS refers to studies on the direct impacts of road traffic on elk harvest and discusses potential increases in elk harvest due to greater vehicular access and visibility resulting from management projects.
The plaintiff acknowledges that the Forest Service's Supplemental Final Environmental Impact Statement (SFEIS) discusses the Project's relationship to both legal and illegal elk harvests but does not specify additional cumulative effects requiring review. The SFEIS is deemed adequate in its exploration of cumulative impacts related to elk harvest. LandWatch asserts that the SFEIS omits consideration of cumulative effects from vegetation treatment projects, although it did analyze potential impacts on elk habitat concerning vegetation management in overlapping areas of the Project. The SFEIS recognized the cumulative impact of disturbances from vegetation management and OHV trail use, concluding these were not significant enough to affect habitat effectiveness, supported by detailed data.
Hunters argue that the SFEIS fails to address cumulative impacts from livestock grazing in the Project area, but they have not provided evidence or rationale justifying the need for such an analysis. The Forest Service is granted discretion in determining relevant factors for cumulative impact reviews. Plaintiffs assert that the analysis should include the impacts of OHV use on closed and user-created roads. Although the Forest Service referenced the continued motorized use of these roads, it did not provide the detailed analysis required by NEPA, particularly concerning road density related to closed and user-created trails. Consequently, the cumulative impacts analysis regarding these roads was found inadequate, leading to a recommendation for granting the plaintiffs' motions for summary judgment on these specific claims while upholding the sufficiency of the SFEIS on other issues raised by LandWatch and Hunters.
In terms of riparian claims concerning Redband trout, plaintiffs argue that the defendants violated NEPA and NFMA by failing to conduct a proper baseline analysis of sediment impacts and by not adhering to the Inland Native Fish Strategy (INFISH), which aims to protect native fish habitats. Guardians claim further violations related to protecting riparian habitats from recreational impacts.
The INFISH program amends the forest management plans of twenty-two forests, including the Ochoco Forest Plan, to mitigate risks to native fish populations and enhance fish habitats. It introduces six Riparian Management Objectives (RMOs) to evaluate riparian habitat quality, encompassing indicators such as pool frequency, water temperature, large woody debris, bank stability, lower bank angle, and width/depth ratio. RMOs serve as benchmarks for measuring progress toward achieving riparian goals and guide resource management activities. INFISH specifically aims to protect Redband trout and establishes Riparian Habitat Conservation Areas (RHCAs) where management practices are subject to strict standards to safeguard riparian-dependent resources.
The standards apply to RHCAs and to projects identified through NEPA analysis that may adversely affect these areas. INFISH RM-1 mandates that the Forest Service design and operate recreation facilities in a way that aligns with RMOs and avoids negative impacts on native fish. A comprehensive watershed analysis is required prior to constructing new recreation facilities in RHCAs, aiming to gather essential baseline information on watershed function. Adverse effects are defined as management-related impacts that could lead to mortality or other detrimental physiological changes in fish.
In the Project Area, which includes nine watersheds with 138 miles of fish-bearing streams, the Forest Service must conduct watershed analyses for each watershed. LandWatch contends that the Forest Service violated NEPA and NFMA by asserting that the Project's impacts on Redband trout habitat would be minimal without conducting sufficient watershed analysis. They argue that the agency relied on outdated historical data for assessing stream conditions, failing to accurately evaluate baseline conditions and cumulative sediment delivery. The Forest Service had analyzed the watersheds and effects of alternatives for creating off-highway vehicle (OHV) trails, proposing 15.2 miles of new construction and reopening closed roads near streams.
A Watershed Condition Framework was developed to analyze water quality, habitat access, and habitat elements for streams within 300 feet of proposed trails. The Forest Service included effects common to all analyzed alternatives, discussing sedimentation, water temperature, and large woody debris. Although some short-term impacts were noted, none of the proposed alternatives would alter stream ratings. LandWatch challenged the accuracy of surveys, claiming missing and outdated data. However, the Forest Service's reliance on the data was deemed reasonable, as it incorporated various sources, including watershed conditions and stream temperature monitoring, to establish habitat baselines. The agency's assessment of road and drainage densities relative to stream crossings was also conducted, and LandWatch failed to demonstrate inaccuracies in the monitoring data. The Forest Service's analysis received judicial deference under NEPA standards.
LandWatch further contended that the Forest Service's evaluation of cumulative effects on aquatic habitats overlooked significant factors like grazing and unauthorized OHV use. Nevertheless, the Forest Service included OHV impacts in sediment delivery modeling and addressed cumulative effects of grazing in the SFEIS. The assessment utilized current environmental conditions as proxies for past impacts, fulfilling NEPA requirements. The SFEIS indicated that cumulative effects from future projects on aquatic resources would be negligible, identifying twenty-five such projects.
The Forest Service conducted a quantitative analysis of the cumulative effects of road/trail densities and stream crossings on flow, sediment, turbidity, and aquatic species, concluding that there were no measurable increased cumulative effects in the watersheds overlapping the Project area. This analysis met NEPA obligations and facilitated informed decision-making and public participation, as evidenced by the SFEIS's thorough assessment of past, present, and future project impacts on aquatic resources.
LandWatch criticized the Forest Service's analysis of the Lower Deep Creek subwatershed, noting high road densities and poor water quality ratings. The subwatershed had experienced declines in stream health and trout populations, although some improvements occurred following road closures. The SFEIS outlined a restoration project aimed at enhancing stream and riparian health and improving habitat for redband trout. The Forest Service based its assessments on the Deep Creek Restoration Plan, acknowledging that past forest management activities may have degraded aquatic habitats. However, the reliance on existing data for baseline conditions was deemed reasonable. Ultimately, the Forest Service concluded that the Project would not measurably affect redband trout, making adjustments to avoid conflicts with decommissioned roads and areas of hydrologic concern.
The Project has strategically avoided areas of concern in the sediment delivery zone, leading to a minor reduction in road and trail densities within 300 feet of streams in the Lower Deep Creek subwatersheds. The Forest Service conducted a comprehensive analysis of the Lower Deep Creek subwatershed's effects on Redband trout, rejecting LandWatch's claim that a watershed analysis was mandatory. While the SFEIS identifies Lower Deep Creek as a priority subwatershed according to the Forest Service’s definitions, it is not classified as a priority watershed under INFISH, thus exempting it from the watershed analysis requirement. Regardless, the Forest Service asserts that it performed an adequate evaluation of the subwatershed.
LandWatch contends that the Forest Service improperly modified Riparian Management Objectives (RMOs) without conducting a watershed analysis and without sufficient supporting data, as required by INFISH. The SFEIS outlines RMOs related to various habitat indicators critical for Redband trout, including factors like pools, temperature, large woody debris, and bank stability. The Forest Service claims it has justified modifications to RMOs, asserting that they reflect conditions for good fish habitat that exceed INFISH standards. The analysis included indicators such as water quality, habitat access, and habitat elements, each categorized into functioning standards (good, fair, poor). Specific criteria were used to evaluate these indicators in watersheds near proposed trails, with particular focus on stream temperature and width/depth ratios relevant to Redband trout habitat.
The Forest Service utilized specific studies to modify Resource Management Objectives (RMOs) while adhering to a deferential standard in accordance with legal precedent. Under INFISH guidelines, trail design and operations must not hinder the attainment of RMOs or adversely impact inland native fish. For site-specific projects, a thorough analysis is required to ensure that recovery rates are not negatively affected. The Forest Service determined that the Project complied with INFISH requirements, asserting that all action alternatives would not impede RMOs if Project Design Criteria are followed.
LandWatch contested the adequacy of the Forest Service's analysis, claiming that conclusions regarding the Project's consistency with INFISH were insufficiently supported by data and explanation. They pointed out that while the Supplemental Final Environmental Impact Statement (SFEIS) acknowledged short-term construction impacts, it failed to clarify how these would not interfere with RMO attainment. LandWatch also criticized the Forest Service for not justifying the long-term impacts' compliance with INFISH.
The SFEIS assessed the Project’s effects on RMOs related to stream temperature, large woody debris, and width-depth ratios, concluding minimal impact. Although construction would have temporary effects, the Project was designed to mitigate sediment delivery and maintain stream temperatures by preserving riparian vegetation and shade trees. The removal of large woody debris was limited, with efforts made to maintain debris numbers by relocating materials. The Project was also designed to preserve width/depth ratios through careful planning of stream crossings and minimal vegetation removal.
The Forest Service compared the chosen alternative with other proposals regarding various environmental factors and concluded that the Project would not measurably impact Redband trout populations across all subwatersheds. The analysis supporting the Forest Service’s conclusions was deemed sufficient and not arbitrary or capricious, countering LandWatch's claims regarding the potential impacts on aquatic habitats and RMO attainment.
The court found no violation of the Inland Native Fish Strategy (INFISH) concerning the impacts on Redband trout, as the administrative record did not demonstrate significant negative effects. The Forest Service complied with the Forest Plan by evaluating the Project's long-term impacts on riparian habitats. Consequently, the defendant's Motion for Summary Judgment was granted, while the motions from LandWatch and Guardians were denied.
Guardians contended that the Project did not adhere to the Travel Management Rule (TMR) minimization criteria regarding off-road vehicle (ORV) routes. Executive Order 11644 mandates that agencies establish regulations to minimize environmental damage, wildlife harassment, and conflicts among recreational uses of public lands. The TMR, enacted in 2005, aims to implement these executive orders by designating specific routes and areas for ORV use, prohibiting motor vehicle use outside designated roads and trails.
In designating routes, the Forest Service must assess potential impacts on natural and cultural resources, public safety, recreational opportunities, and maintenance needs. It must also consider minimizing damage to soil and vegetation, harassment of wildlife, and conflicts between different recreational uses and vehicles. These considerations are part of the TMR's "minimization criteria," which the Forest Service is required to apply to all designated areas for ORV use.
The Forest Service is required to conduct a detailed minimization analysis to meet the objectives of the Travel Management Rule (TMR) on an area-by-area basis, documenting how it evaluated and applied the TMR to minimize impacts on forest resources. Simply acknowledging the TMR's criteria is inadequate; the Forest Service must demonstrate how it used collected data to design areas for off-highway vehicle (OHV) use while minimizing environmental damage. The SFEIS (Supplemental Final Environmental Impact Statement) fails to provide sufficient evidence of compliance with the TMR's minimization criteria regarding trail designations and their location, especially in relation to special landscapes, wildlife habitats, and user conflicts among different recreational groups. Although the analysis of water quality meets certain standards, it does not satisfy the minimization requirements of the TMR. The defendants claim extensive consideration of minimization objectives based on a section of the SFEIS, but this section contains only superficial discussions that do not adequately detail the implementation of the minimization criteria at a granular level. The argument that the selected project alternative is the environmentally preferable option under NEPA does not address the necessity of a thorough analysis under the TMR regarding motor vehicle route designations and their impacts, particularly concerning wildlife like gray wolves and elk. The defendants' reliance on a previous case to assert that their minimization consideration was adequate is insufficient to fulfill the regulatory requirements.
The Environmental Impact Statement (EIS) for the Pryors Coalition involved extensive review of various route designations and specific environmental resources, resulting in a chosen alternative that was significantly modified. In contrast, the Supplemental Final Environmental Impact Statement (SFEIS) lacks the necessary depth and specificity of analysis. Defendants' reliance on project design features and the SFEIS to claim compliance with the Travel Management Rule (TMR) is insufficient. The TMR mandates a clear application of criteria to minimize impacts when designating routes; mere references to education and enforcement do not satisfy this requirement. The SFEIS and Record of Decision (ROD) fail to meet the TMR's standards, warranting the granting of Guardians' Motion for Summary Judgment and denial of the defendants' Motion.
The Administrative Procedure Act (APA) stipulates that federal courts must annul agency actions that are not compliant with the law. If an agency's decision cannot be substantiated by the administrative record, it must be vacated and remanded for further action. The court finds no justification to deviate from the standard remedy of vacatur due to the Forest Service's significant errors across various statutes and regulations. Proceeding with the Project without revisiting the SFEIS and ROD risks detrimental effects on environmental resources, including sensitive habitats and endangered species. Conversely, delaying the construction of recreational vehicle trails poses minimal risks of disruption. The court determines that remand without vacatur is not warranted in this situation.
The Court should VACATE the Supplemental Final Environmental Impact Statement (SFEIS) and Record of Decision (ROD), REMANDING the matter to the Forest Service for further proceedings aligned with the Findings and Recommendations. The Court intends to GRANT IN PART and DENY IN PART the parties' Motions for Summary Judgment, specifically vacating the Forest Service's decision and mandating additional proceedings. A United States District Judge will review these Findings and Recommendations, with objections due by September 10, 2018, and responses due within fourteen days of any filed objections.
The Court clarified that the role of amicus curiae is to provide insights on issues raised by the parties, not to introduce independent causes of action. Consequently, the Court dismissed amicus' claims as improper but utilized its briefing to aid in the analysis of the parties' arguments. The Court also allowed amicus to use a submitted map as a visual aid without the need for a formal motion.
The excerpt highlights concerns about gray wolves' habitat, noting that motorized vehicle activity and high human presence negatively affect them by reducing prey availability and habitat suitability. The Forest Service's assessment of road density and its potential impacts on wildlife, particularly regarding elk security habitat, was acknowledged, including the possibility of unauthorized use of closed roads impacting wildlife security. The analysis presented indicates a complex interplay of motorized access, wildlife behavior, and habitat conservation within the designated Project Area.
Active enforcement of trail closures will increase, with plans for trail rehabilitation and restoration, and marked discouragement of closed and unauthorized trails. This aligns with the Forest Service's responsibility to assess the effects of continued closed road usage. Plaintiffs’ concerns about elk displacement onto private land are deemed unsuccessful, stemming from critiques of scientific studies. While the Forest Service is obligated to consider elk security habitat connectivity in road density analyses, assessing all road impacts on elk habitats poses challenges.
Road density considerations were included in the Forest Service's evaluation of baseline conditions and sediment issues, contrary to Guardians' claims of omission. Improvements in grazing management and active rehabilitation of user-created trails have been noted, reducing cattle usability of these trails. Federal defendants argue that LandWatch forfeited its arguments concerning INFISH consistency and watershed analysis by not raising them during the administrative phase; however, LandWatch did voice objections regarding INFISH criteria and related modifications, providing adequate notice to the agency.
The Forest Service’s TMR analysis inadequately addressed route selection for new routes near streams, acknowledging the harmful effects on riparian areas. Guardians presented studies to minimize such impacts and argued that the Forest Service violated NEPA by failing to provide sufficient baseline data on routes through scablands. However, their requests for data lacked specificity beyond route types. The SFEIS detailed trail miles through scabland areas for each alternative and included route maps in the ROD.
Regarding remedies, defendants noted prior agreement for additional briefing if the Court found agency error. However, the Court determined that while it considered the possibility of separate remedy discussions, no formal decision was made to bifurcate the case, and sufficient briefing has already occurred. The Court will proceed with recommendations on remedies based on the existing record.
