Sharon Duggan, CSB #105108 2070 Allston Way Suite 300 Berkeley, CA 94704 (510) 647-1904 Internet e-mail address foxsduggan@aol.com Local Counsel for Plaintiffs Marianne Dugan, Oregon State Bar # 93256, pro hac vice Facaros & Dugan 485 E. 13th Ave. Eugene, OR 97401 (541) 484-4004 Fax no. (541) 686-2972 Internet e-mail address mdugan@ecoisp.com or mariannedugan@yahoo.com Attorney for Plaintiffs Brenna Bell, Oregon State Bar # 01519 Klamath Siskiyou Wildlands Center P.O. Box 332 Williams, OR 97544 (541) 846-0732 Fax no. (541) 846-0732 Internet e-mail address brenna@kswild.org of Counsel for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ENVIRONMENTAL PROTECTION AND INFORMATION CENTER, a California nonprofit corporation; KLAMATH FOREST ALLIANCE, a California nonprofit corporation; and KLAMATH-SISKIYOU WILDLANDS CENTER, an Oregon nonprofit corporation, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. S-03-0938 GEB KLM PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE i


TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. II. III. IV. STANDARD FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 DEFENDANT VIOLATED NEPA BY FAILING TO PREPARE A FULL EIS . . . . . . . 2 A. B. C. D. E. The Project May Harm Northern Spotted Owl . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Impacts to the Watershed May Be Significant and Are Highly Uncertain . . . . . . 7 Cumulative Impacts May Be Significant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Impacts to the Wild and Scenic Salmon River May be Significant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Fact That Adverse Impacts May be "Short-Term" and That a Net Environmental Benefit May Ultimately Result Does Not Eliminate the Disclosure Requirements of NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The EA and DN/FONSI Fail to Demonstrate That Project Design Features and Mitigation Measures Will Reduce Effects to Insignificance . . . . . . . . . . . . . . . . 12

F. V.

DEFENDANT VIOLATED NEPA BY FAILING TO ADEQUATELY ANALYZE IMPACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. B. C. Sensitive and Management Indicator Species . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Defendant Failed to Disclose Important Information About the Alleged Fire Hazard and Fuels Reduction Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Defendant Failed to Adequately Address Cumulative Impacts to the Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. 2. D. The Meteor timber sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Other timber sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Miscellaneous Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE ii


VI.

DEFENDANT VIOLATED NEPA BY FAILING TO DOCUMENT THAT THE PROJECT WILL MEET THE STATED PURPOSE AND NEED FOR THE PROJECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 THE EA DOES NOT ANALYZE A REASONABLE RANGE OF ALTERNATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 THE PROJECT VIOLATES NFMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. B. The Project Violates the Viability Requirement of NFMA . . . . . . . . . . . . . . . . . 25 The Project Violates the Aquatic Conservation Strategy . . . . . . . . . . . . . . . . . . 26

VII. VIII.

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE iii


TABLE OF AUTHORITIES CASES Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) . . . 7, 18, 20 California v. Block, 690 F.2d 753 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908 (D. Or. 1977) . . . . . . . . . . . . 17, 23 Citizens for a Better Henderson v. Hodel, 768 F.2d 1051 (9th Cir. 1985) . . . . . . . . . . . . . . 22, 23 City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Friends of the Earth v. Hall 693 F. Supp. 904 (W.D. Wash. 1988) . . . . . . . . . . . . . . . . . . . . . . . 17 Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Idaho Conserv. League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 22, 23 Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 26 Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . 11, 22 Inland Empire Public Lands v. USFS, 88 F.3d 754 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 25, 26 Marble Mountain Audubon Society v. Rice, 914 F.2d 179 (9th Cir. 1990) . . . . . . . . . . . . . . . . . 5 Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) . . . . . . . . 18, 23, 24 National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 12 Nat'l Parks & Conservation Assn v. Babbitt, 241 F.3d 722 (9th Cir. 2001) . . . . . . . . 2, 5, 7, 12, 13 Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372 (9th Cir. 1998) . . . . . . . 25 Pacific Coast Federation of Fishermen's Associations v. Nat'l Marine Fisheries Serv., 253 F.3d 1137 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 26, 27 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994) . . . . . . . . . . . . 1-2 Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) . . . . . . . . . . . . . . . . . . 17 PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE iv


Sierra Club v. Norton, 207 F. Supp. 2d 1310 (S.D. Ala. 2002) . . . . . . . . . . . . . . . . . . . . . . . . 7, 13 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626 (9th Cir. 1987) . . . . . . . 1 STATUTES 5 U.S.C. §§ 551-706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 16 U.S.C. § 1600 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 16 U.S.C. § 1532(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 16 U.S.C. § 1533(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 16 U.S.C. § 1604(g)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 102(2)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. §§ 4321-4370(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 4332(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REGULATIONS AND COURT RULES Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 48 Fed. Reg. 18,026 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 36 C.F.R. 219.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 36 C.F.R. 219.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 40 C.F.R. 1500.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17 40 C.F.R. 1502.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE v


40 C.F.R. 1502.9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 40 C.F.R. 1502.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 40 C.F.R. 1502.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 40 C.F.R. 1502.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 40 C.F.R. 1508.9(2)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

40 C.F.R. 1508.27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 40 C.F.R. 1508.27(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 40 C.F.R. 1508.27(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 40 C.F.R. 1508.27(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 40 C.F.R. 1508.27(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 40 C.F.R. 1508.27(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 40 C.F.R. 1508.27(b)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE vi


INTRODUCTION This is a civil action for declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-706. The claims arise from defendant's violations of the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370(d). The plaintiff groups allege that the defendant, the United States Forest Service ("Forest Service"), violated federal law in its preparation of the Knob timber sale in the Salmon River watershed of the Salmon River Ranger District, Klamath National Forest. Specifically, the plaintiffs allege that the defendant failed to comply with the National Environmental Policy Act's requirements of disclosure of environmental impacts and alternatives to the project; and failed to comply with the Record of Decision on Management of Habitat for Late-Successional and Old-Growth Forest Related Species within the Range of the Northern Spotted Owl (the ROD) and the Klamath National Forest Land and Resource Management Plan (LRMP) in its planning and implementation of the Knob timber sale. I. STANDARD FOR SUMMARY JUDGMENT The Court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987). II. STANDING Plaintiffs have representational and organizational standing to bring this lawsuit, as demonstrated in the Declarations of Chichizola, Ambrose, and Baker which are filed concurrently with this brief. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 1


1352 n.10 (9th Cir. 1994). III. STATEMENT OF FACTS The relevant facts are set forth in the Plaintiffs' Statement of Undisputed Facts filed concurrently with this brief, and, where appropriate, within the body of the brief. IV. DEFENDANT VIOLATED NEPA BY FAILING TO PREPARE A FULL EIS Defendant prepared an Environmental Assessment (EA) and a "Finding of No Significant Impact" (FONSI) for this project. AR 1155, AR 1243. NEPA requires a full Environmental Impact Statement (EIS) for any major federal action that may significantly affect the environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. 1502.3; Nat'l Parks & Conservation Assn v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001). "If an agency decides not to prepare an EIS, it must supply a `convincing statement of reasons' to explain why a project's impacts are insignificant." Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). In Nat'l Parks, the court explained: Whether there may be a significant effect on the environment requires consideration of two broad factors: "context and intensity." See 40 C.F.R. § 1508.27; 42 U.S.C. § 4332(2)(C) . . . . Context simply delimits the scope of the agency's action, including the interests affected. Intensity relates to the degree to which the agency action affects the locale and interests identified in the context part of the inquiry. The NEPA regulations list ten "intensity" factors, of which the following are applicable in the instant case, as explained in detail in this brief: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. . . . (3) Unique characteristics of the geographic area such as proximity to . . . ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. . . . PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 2


(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. 40 C.F.R. 1508.27(a). The Knob timber sale is located in areas with unique ecological characteristics. The sale area is adjacent to the federally designated Wild and Scenic Salmon River, the significance of which is known to Defendant, and disturbance effects to those areas from roading and logging are uncertain, may be significant, and are highly controversial. a. Defendant approved the sales in an area where there has been significant

disturbance from past roading and clearcutting. The result of cumulative actions over time, including other Forest Service and private lands timber sales in the vicinity of the Knob timber sale, may cause significant impacts to the environment, including impacts to wildlife, soil productivity, and water quality. b. The sale may adversely affect the threatened northern spotted owl and its

designated Critical Habitat. c. The Knob sale has a high level of scientific controversy and uncertainty in

regards to fuel loadings and fire hazard. The Forest Service's own wildlife biologist concluded that the project will increase fire hazard within a Northern Spotted Owl critical habitat unit. d. The project may adversely impact the Wild and Scenic characteristics of

the Salmon River PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 3


A.

The Project May Harm Northern Spotted Owl

As noted above, the fact that a project may adversely impact a species listed under the Endangered Species Act (ESA) indicates the need for a full Environmental Impact Statement (EIS) as opposed to an Environmental Assessment and "Finding of No Significant Impact" (FONSI). 40 C.F.R. 1508.27(b)(9). Impacts to Northern Spotted Owl (NSO) from the Knob project require a full EIS. The U.S. Fish and Wildlife Service listed the NSO in 1990 as threatened under the ESA, 16 U.S.C. §§ 1532(20), 1533(c)(1). Answer ¶ 26. In 1992, the U.S. Fish and Wildlife Service established "critical habitat" areas for the NSO. AR 3204-47. Designation of critical habitat serves to identify lands which may be necessary for the conservation and recovery of species listed under the ESA. AR 545. The Fish and Wildlife Service's primary objective in designating critical habitat for the NSO was to identify existing NSO habitat and highlight specific areas where NSO habitat management should be given highest priority. Id. The Critical Habitat Units (CHU's) established for the NSO are very important for connectivity between two Late Successional Reserves. AR 1326. Six units of the Knob timber sale fall within three portions of designated CHU areas for the NSO. AR 1328-29. The three portions are CHU 25 (south), CHU 25 (north), and CHU 22. Id. This will result in the logging of 125 acres of CHU. Id.; AR 16-17. Defendant acknowledged that the Knob sale may adversely affect the threatened northern spotted owl and its designated Critical Habitat. Answer ¶ 54c. The EA fails to disclose, however, that the Knob sale may actually destroy three NSO nest sites. AR 560.1 The logging The fact that defendant found that the project "may" destroy and "may adversely affect" the NSO does not let defendant off the hook from preparing an EIS. First, an EIS must PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 4
1


will remove "most, if not all, of the small amount of existing nesting habitat" within the affected CHUs. AR 286-87. Within CHU-22, nesting is one of the functions of this portion of the NSO's Critical Habitat. AR 287. The NSO habitat in some portions of the timber sale area are already fragmented. Answer ¶ 27. Defendant did not, however, consider or analyze the cumulative effect of the Knob sale on the viability and recovery of the spotted owl that rely on the CHU's, when added to the other timber sales in the sub-watersheds in the planning area. AR 1301-88. The Forest Service's Wildlife Biologist stated that CHU-22 provides "important dispersal habitat, as well as some nesting-roosting habitat," and provides one of the few remaining links for NSO dispersal between the Eddy Late-Successional Reserve (LSR) and the Little North Fork LSR; it also provides a link between the Eddy LSR and the Marble Mountain Wilderness. AR 1079. Although the proposed logging is not within the LSR itself, the Forest Service biologist found that "[t]here is a high degree of overlap" between the two CHUs which are to be logged and their associated LSRs. AR 1080. The Ninth Circuit addressed habitat connectivity in Marble Mountain Audubon Society v. Rice, 914 F.2d 179 (9th Cir. 1990). In that case, the Forest Service failed to discuss in a timber sale EIS the importance of maintaining biological corridors between the Red Buttes Wilderness and the Grider Creek drainage on the Klamath National Forest. 914 F.2d at 182. As the court explained: "Biological corridors provide avenues along which wide-ranging animals can travel, plants can propagate, genetic interchange can occur, populations can move in be prepared if the project may significantly affect the environment, and can only be foregone if there is no doubt on this point. Nat'l Parks & Conservation Assn, 241 F.3d at 730. Second, as discussed infra at 7, this type of uncertainty regarding the amount of impact a project will have itself requires a full EIS. 40 C.F.R. 1508.27(a)(5). PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 5


response to environmental changes and natural disasters, and threatened species can be replenished from other areas." Id. at n.2. "Although the FEIS acknowledges that the Grider drainage is a biological corridor, it does not contain a significant discussion of the corridor issue." The court therefore held that the failure to address the biological corridor issue invalidated the NEPA analysis. The EA also fails to disclose that the Forest Service's own wildlife biologist found that logging within Northern Spotted Owl Critical Habitat Unit number CA-22 will increase the risk of harmful fire to that critical habitat, and that this CHU unit is currently at low risk of fire: Because the stands [in CHU CA-22] are on a southfacing aspect and the canopy will become more open through timber harvest the forest floor will become drier and warmer . . . . Fire hazard could be elevated over the current situation for the short term. Currently, these stands have very low fuel loadings; the forest floor has very little midsized slash and only a moderate amount of large logs. Fine and mid-sized fuels will be added through harvest activities and be present until fuels abatement occurs. In addition, these stands are at the bottom of the slope near human activity (roads, homes and trailhead), which also places the stands at higher risk for man-caused fire. The location of these stands in relation to the Little North Fork LSR [LateSuccessional Reserve] poses a concern. This LSR has high fuels loading within it, and the area to the west was burned in 1987 (Yellow fire) and is currently occupied by flashy fuels. . . . The placement of the proposed harvest units at the bottom of this high fuel situation has the potential to be detrimental to the LSR and corresponding CHU, especially at the time period between when timber harvest is completed and fuels treatment is completed. AR 1085-86; see also AR 286-87 (short-term fuel loading within CHU-25 would increase, while long-term loading would be reduced; short-term fuel loading within CHU-22 would increase, while long-term loading would be "only slightly" reduced). Defendant acted arbitrarily and capriciously in not preparing a full EIS for this project, given the undisputed impacts to NSO and its critical habitat.

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 6


B.

Impacts to the Watershed May Be Significant and Are Highly Uncertain

Defendant stated in the EA that effects to water quality from increased sedimentation would be "short-term" ­ defining this as five to ten years ­ and that the magnitude of these "short-term" effects is "immeasurable." AR 1342. As discussed infra at 12, the fact that the impacts may be "short-term" (although plaintiffs dispute that five to ten years is "short term") does not let defendant off the NEPA hook. Furthermore, the uncertainty exhibited in the "immeasurable" finding requires a full EIS. 40 C.F.R. 1508.27(a)(5). "An agency must generally prepare an EIS if the environmental effects of a proposed agency action are highly uncertain. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998) ("significant environmental impact" mandating preparation of an EIS where "effects are `highly uncertain or involve unique or unknown risks'"); Nat'l Parks, 241 F.3d at 731-32; Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002). As the court recently noted in Sierra Club v. Norton, 207 F. Supp. 2d 1310 (S.D. Ala. 2002), allowing an EA in the face of uncertainty about impacts "would turn NEPA on its head, making ignorance into a powerful factor in favor of immediate action where the agency lacks sufficient data to conclusively show not only that the proposed action would harm an endangered species, but that the harm would prove to be 'significant.'" 207 F. Supp. 2d at 1335. In holding that a full EIS was required, the court noted that the project in that case would cause habitat loss of a listed species, and that the listing (as here) had been prompted primarily by habitat loss. Soil cover, mass balance, and site drainage will be altered by the road work proposed under the project. Answer ¶ 80. The EA focuses on the future positive impacts on watershed conditions from road decommissioning projects, and dismisses the adverse "short-term" impacts as "immeasurable." AR 1342. Even if road decommissioning is likely to result in long-term PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 7


benefits to aquatic habitat conditions, it is undisputed that short-term adverse impacts from the road decommissioning will occur. As discussed infra at 12, the fact that impacts are "shortterm" does not mean they need not be explained in the NEPA analysis. When analyzing the cumulative watershed effects (CWEs) from the Knob timber sale, defendant addressed the impacts only at the scale of individual drainages, and did not look at the effects of the Knob sale, in conjunction with other past and future timber sales, on the fifth-field watersheds of the North and South Fork Salmon River. AR 1330-32, 1340-44. The EA did not disclose that the Forest Service's own staff identified active landslides within Knob timber sale units 22, 66, 82, and 171. AR 1272. Active landslides are to be included in Riparian Reserves and are not supposed to be logged. See AR 2722. The cumulative watershed effects analysis conducted for the Knob Timber Sale is limited to the assessment of actions within the ten seventh-field subwatersheds that contain proposed logging units. AR 1331. Several of the projects listed in the EA occur in other subwatersheds within the North Fork, Upper South Fork, and Lower South Fork Salmon River fifth-field watersheds, but these impacts are not incorporated into the cumulative impacts analyses and modeling. AR 1325. For example, as noted above, the cumulative impact analysis fails to discuss impacts form the Glassups Timber Sale and Upper South Fork Timber Sale within the same seventh-field subwatersheds as some Knob units. The Fish Biological Assessment/Biological Evaluation (BA/BE) states that "increases in CWE [Cumulative Watershed Effects] at scale larger than seventh-field subwatersheds will be negligible." AR 1146. However, there is nothing in the EA to indicate that the Forest Service conducted any analysis at these larger spatial scales, and the EA fails to provide any data, evidence, or analysis to support this conclusory statement. The EA completely fails to analyze PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 8


impacts from sedimentation and other CWE's on anadromous fish habitat in the North and South Fork Salmon River mainstems, in the mainstem of the Salmon River, or in the Klamath mainstem and estuary. The EA instead explicitly limits the CWE analysis to the ten directly affected seventh-field subwatersheds only, thereby preventing such an analysis from occurring.2 It is well documented that significant cumulative effects currently exist within the North Fork, South Fork, and Main Stem Salmon River watersheds, and that conditions within individual subwatersheds contribute to this larger-scale degradation. AR 49. Assessing cumulative effects only at the subwatershed scale masks degradation at other spatial scales and fails to address the cumulative effects of all combined activities affecting the Salmon River watershed. C. Cumulative Impacts May Be Significant

Environmental baseline indicators for the seventh- and fifth-field watersheds affected by this timber sale show that watershed conditions are currently impaired and suffering from significant adverse cumulative watershed effects.3 The EA acknowledges that the proposed Knob Timber Sale will contribute to existing significant cumulative effects, surface erosion, and

2

"The Knob TS Specialist Report for CWE Models for Surface Erosion, Runoff Risk (ERA/TOC), and Mass-Wasting contains methods used in the modeling and displays data outputs based on the alternatives for the seventh-field drainages that comprise the assessment area." AR 1326.
3

Two watersheds are "not properly functioning" for disturbance history, one watershed "not properly functioning" for roads, six watersheds "at risk" for disturbance history, four watersheds "at risk" for sediment, four "at risk" for substrate, eight "at risk" for drainage net increase, five "at risk" for peak/base flows, seven "at risk" for road density, nine "at risk" for riparian reserves, five "at risk" for pool frequency, and four "at risk" for pool quality. AR 1176-1218. In addition, surface erosion and mass wasting modules indicate that current sediment inputs in the ten seventh-field subwatersheds already greatly exceeds naturally occurring background levels and established thresholds. AR 1027, 1033. PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 9


mass wasting. See AR 85, 87, 1335, 1340, 1341. The Knob timber sale would contribute to the cumulative negative impacts to the watersheds within which the sale is located for at least the next five to ten years. Answer ¶ 31; AR 1342. The EA and DN/FONSI insist, however, that these increases in adverse cumulative impacts are not significant for the purposes of NEPA, stating that "[t]he Selected Alternative does not represent potential significant cumulative adverse impacts when considered in combination with other past, current, or reasonably foreseeable actions, as described at the end of Chapter 2." AR 86. The EA and DN/FONSI conclude that the increased cumulative watershed effects are not significant because the effects of the Knob timber sale are small, and the effects of the other actions in the affected watershed are also small. This approach ignores the whole point of cumulative impact analysis. As discussed in further detail infra at 17-20, this type of minimization of cumulative impacts is exactly what the NEPA regulations warn against. NEPA requires the agency to acknowledge that small impacts can combine to cumulatively create significant impacts and to give those cumulative impacts a "hard look." This conclusion also contradicts the results of the cumulative analysis conducted for the sale, and essentially ignores the collective impacts of all actions in the affected watersheds. The failure to provide a quantitative and substantive evaluation of the cumulative effects of all these actions is arbitrary and capricious and renders the conclusions in the EA and DN/FONSI unsupported and inaccurate. Despite the presence of existing significant cumulative impacts, indications that the Knob timber sale will contribute to these cumulative impacts, and the existence of other current and planned activities that will exacerbate these impacts, the EA dismisses cumulative impacts as "minor," "insignificant," "negligible," and having a "low risk" of adversely affecting water PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 10


quality and beneficial uses, but does not provide sufficient reasons, analysis, or evidence to support this conclusion. See, e.g., AR 1335-1337; AR 83-86; AR 1144, 1145, 1147. The conflict between the EA's disclosure of numerous adverse impacts from the Knob timber sale to an already degraded watershed, and the cursory dismissal of these impacts as insignificant, raises substantial questions about the adequacy and integrity of the Forest Service's FONSI. Because a significant amount of information exists that demonstrates that significant adverse cumulative watershed effects are currently present within the affected watersheds, and that the proposed actions will contribute to those cumulative effects, the preparation of an Environmental Impact Statement (EIS) is necessary. 4 D. Impacts to the Wild and Scenic Salmon River May be Significant

The Salmon River is designated under the National Wild and Scenic Rivers Act. 16 U.S.C § 1271-87. Four timber harvest units covering 44 acres are planned within the Wild and Scenic Salmon River Corridor. Answer ¶ 24; AR 5. Defendant acknowledges that the significance of the Wild and Scenic Salmon River Corridor "is known to" defendant. Answer ¶ 54a. One of the factors requiring a full EIS is "[u]nique characteristics of the geographic area

such as proximity to . . . ecologically critical areas." 40 C.F.R. 1508.27(a)(3). Yet defendant refused to prepare a full EIS for this project. Its refusal to do so was arbitrary and capricious.

"We have held that an EIS must be prepared if "substantial questions are raised as to whether a project . . . may cause significant degradation of some human environmental factor." Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992). To trigger this requirement a "plaintiff need not show that significant effects will in fact occur"; raising "substantial questions whether a project may have a significant effect" is sufficient. Id.; Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998). PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 11

4


E.

The Fact That Adverse Impacts May be "Short-Term" and That a Net Environmental Benefit May Ultimately Result Does Not Eliminate the Disclosure Requirements of NEPA

Defendant's repeated statements acknowledging "short-term" negative impacts but insisting that "long-term" impacts will be beneficial indicates a misunderstanding of the requirements of NEPA. The NEPA regulations specifically state that in determining significance, "[b]oth short- and long-term effects are relevant. . . . Significance cannot be avoided by terming an action temporary." 40 C.F.R. 1508.27. The NEPA regulations provide that "[a] significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial." 40 C.F.R. 1508.27(b)(1). F. The EA and DN/FONSI Fail to Demonstrate That Project Design Features and Mitigation Measures Will Reduce Effects to Insignificance

Nor can the defendant rely on mitigation measures and the hope for a long-term beneficial outcome to avoid a full EIS. The EA relies on "project design features" and "best management practices" to supposedly mitigate every possible effect of the Knob sale, but provides no data supporting the claim that these features indeed mitigate significance. AR 1344. When, as in this case, the FONSI is conditioned on mitigation measures, the Forest Service must establish the sufficiency of its mitigation measures. While an agency's decision to forego issuing an EIS may be justified in some circumstances by adopting mitigation measures, a perfunctory description or mere listing of mitigation measures without supporting analytical data is insufficient to support a FONSI. National Parks, 241 F.2d at 734-35; see also National Audubon Society v. Hoffman, 132 F.3d 7, 17 (2d Cir. 1997) ("We emphasize the requirement that mitigation measures must be supported by substantial evidence in order to avoid creating a temptation for federal agencies to rely on mitigation proposals as a way to avoid preparation of PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 12


an EIS.") Sierra Club v. Norton, 207 F. Supp. 2d 1310 (S.D. Ala. 2002), is a recent case which comprehensively addresses the use of mitigation to attempt to reduce impacts to insignificance and thereby avoid a full EIS. In that case, the court explained at length the interplay between the NEPA provisions which allow for such a "mitigated EA" and the NEPA provision cited above. 207 F. Supp. at 1330. The court held that a plan to make conditions better in a different location cannot mitigate impacts into insignificance on the affected area. As the court explained: "The mitigation measures, admittedly beneficial and admittedly minimizing many of the lesser adverse effects of this action, do nothing to lessen the irreducible destruction of habitat." Id. Recently the Ninth Circuit specifically rejected the government's minimization of shortterm impacts the ACS: We find nothing in the record to authorize NMFS to assume away significant habitat degradation. Each of the biological opinions challenged acknowledges project-scale degradations but then deems that degradation inconsequential. Under the practice adopted by NMFS, only degradations that persist more than a decade and are measurable at the watershed scale will be considered to degrade aquatic habitat. This generous time frame ignores the life cycle and migration cycle of anadromous fish. In ten years, a badly degraded habitat will likely result in the total extinction of the subspecies that formerly returned to a particular creek for spawning. The NMFS never disputes that short-term effects have the potential to jeopardize listed fish populations. . . . In the Programmatic Biological Opinion, NMFS states that "even a low level of additional impact to any life form, especially the anadromous form which is at critically low levels, may reduce the likelihood of survival and recovery of the ESU as a whole." Given the importance of the near-term period on listed species survival it is difficult to justify NMFS's choice not to assess degradation over a time frame that takes into account the actual behavior of the species in danger. Pacific Coast Federation of Fishermen's Associations v. Nat'l Marine Fisheries Serv., 253 F.3d 1137 (9th Cir. 2001) ("PCFFA"). In National Parks, the Ninth Circuit held that when "evaluating the sufficiency of PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 13


mitigation measures . . . we examine whether mitigation measures will render the impacts so minor as to not warrant an EIS." The court concluded that because "the Parks Service did not conduct a study of the anticipated effects of the mitigation measures, nor did it provide criteria for an ongoing examination of them or for taking any needed corrective action," the FONSI could not be based upon the mitigation measures. Id. Similarly, in the instant case, the Forest Service did not provide any analysis of the effectiveness of its mitigation measures for minimizing cumulative impacts; rather, the EA directed the public to a list of generic "Best Management Practices" with no accompanying analysis. AR 1321-22, AR 1360-67. V. DEFENDANT VIOLATED NEPA BY FAILING TO ADEQUATELY ANALYZE IMPACTS NEPA requires agencies to disclose all foreseeable impacts from projects, whether they are "direct" or "indirect." 40 C.F.R. 1502.16; City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975). The agency must use high quality information and accurate scientific analysis. 40 C.F.R. 1500.1(b). Even if a full EIS was not required, the EA itself is flawed because the analysis it contains is not detailed enough to allow the decision maker and the public to understand the foreseeable impacts of the project. As discussed supra, the project EA failed to adequately disclose impacts to the Northern Spotted Owl and the Wild and Scenic Salmon River, and cumulative impacts to the watershed. In addition, the EA failed to adequately disclose other foreseeable impacts as discussed below. A. Sensitive and Management Indicator Species

The Knob timber sale area includes habitat for three Management Indicator Species (MIS) "associations" as described by the Klamath LRMP, comprising a total of 16 individual PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 14


indicator species. Answer ¶ 36; AR 293-312; AR 1311 (incorporating by reference the MIS Project Level Assessment). Defendant did not provide adequate analysis or data on current populations of MIS to support its conclusion that the viability of these species is not likely to be threatened by the increased fragmentation from the Knob timber sale. AR 293-312. Defendant used "habitat assessment and other survey information" of sensitive species habitat "in lieu of project-level surveys for sensitive species." Answer ¶ 74. Defendant did not state any reasons why project-level surveys of sensitive species cannot be done. AR 285-92; see AR 1311 (incorporating by reference the Wildlife Resource Input document). Furthermore, the EA did not disclose that the Klamath National Forest's own Fiscal Year 2001 Monitoring and Evaluation Report found that "some Management Indicator Species are not easily monitored and there isn't a clear link between some species presence or abundance and changes in habitat conditions." AR 300. The EA acknowledges that the sale may impact "individuals" within sensitive species, and both the Glassups timber sale and the Upper South Fork timber sale have similar impacts, but makes no attempt to determine the actual impact to the environment from these effects. AR 289-90. In particular, the Glassups sale includes logging units which are directly adjacent to two of the sale units on the Knob timber sale (units 170 and 171). Decl. of Chichizola ¶ 5; id. Exs. A & B. Like the adjacent Knob units 170 and 171, the logging units in Glassups are on very steep slopes directly above the Salmon River, and in that sale every large tree was cut or marked and fine fuels were ignored. Decl. of Chichizola ¶ 5; id. Exs. A & B.

B.

Defendant Failed to Disclose Important Information About the Alleged Fire

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 15


Hazard and Fuels Reduction Concerns One of the stated purposes of the Knob timber sale is to reduce the risk of stand-replacing fires. AR 1305-07; Answer ¶ 39. Throughout the EA, defendant characterizes the project area as being at risk of catastrophic fire. Answer ¶ 40. The EA states that the project will reduce the "long-term" risk of fire in the sale area, and does not analyze the potential impacts to the environment from the increased short-term risk of fire in the project area. Answer ¶ 42; see generally AR 1301-88. As noted supra, the "short-term" nature of the impact does not relieve the Forest Service of its duty to meaningfully analyze the impacts in the NEPA analysis. More importantly, the EA fails to disclose the following findings of the Forest Service's own wildlife biologist that the logging is actually likely to increase the fire risk: "Reducing canopy closure [through logging] could potentially increase the fire risk because the forest floor is warmer, and more wind is allowed into the stand. This can be an important factor in fire spread and intensity, particularly on south and west exposures." AR 1083-84. As noted supra, CHU-22 is south-facing. AR 1085. The EA fails to disclose these additional findings from the Forest Service's own wildlife biologist: "More open stands are also more susceptible to windthrow, particularly on ridgelines and other areas where strong winds are frequent. . . . Areas of windthrow, although providing habitat for prey species, also increase the fuel hazard. Timber harvest causes high quantities of woody slash, which increases the fuel hazard in the short term. It can take up to five years to treat these fuels, particularly in helicopter yarding units." AR 1084. The EA also fails to disclose the findings from the Forest Service's own wildlife biologist, citing a Forest Service fuels specialist, that the proposed tractor piling can increase PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 16


fuels hazard through time. AR 1088. The EA fails to disclose that the following statement from the National Fire Plan (Managing the Impact of Wildfires in Communities and the Environment, A Report to the President, 2000): "The removal of large, merchantable trees from forests does not reduce fire risk and may, in fact, increase such risk . . . . Targeting smaller trees and leaving both large trees and snags standing addresses the core of the fuels problem." Answer ¶ 43; see generally AR 1301-88. The government has a duty under NEPA to use high quality information and accurate scientific analysis. Id. 1500.1(b). NEPA requires that an EIS disclose "any responsible opposing view," 40 C.F.R. 1502.9(b); Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291, 1318 (W.D. Wash. 1994) (EIS must "disclose responsible scientific opinion in opposition to the proposed action and make a good faith, reasoned response to it."). A NEPA document must inform the decisionmaker of the full range of responsible opinion on the environmental effects of the actions. Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908, 922 (D. Or. 1977). An EIS that fails to disclose and respond to "the opinions held by well respected scientists concerning the hazards of the proposed action is fatally deficient." Friends of the Earth v. Hall 693 F. Supp. 904, 934 (W.D. Wash. 1988). By failing to disclose its own expert's finding which undermine the assertions about fire risk, the defendant was arbitrary and capricious. C. Defendant Failed to Adequately Address Cumulative Impacts to the Environment

When assessing the significance of the Knob timber sale, the Defendants must consider the cumulative impacts of the sale in conjunction with "other past, present, and reasonably PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 17


foreseeable future actions." 40 C.F.R. 1508.27(b)(7). When multiple actions may have significant cumulative environmental impacts on the environment, "this consequence must be considered in an EIS." Blue Mountains, 161 F.3d at 1214. When analyzing the cumulative impacts of the Knob sale, in conjunction with all other projects in the area, the EA must do more than just catalogue "relevant past [or future] projects in the area." Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 809-10 (9th Cir. 1999). The EA "must also include a 'useful analysis of the cumulative impacts of past, present and future projects.'" Id. This means a discussion and an analysis in sufficient detail to assist "the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts." Id. The task of the agency is twofold: first, it must identify and analyze the possible cumulative impacts of the project; second, it must make a useful and supportable determination whether the impacts may be significant. Defendant failed on both accounts, neither adequately analyzing the cumulative impacts nor providing support for its FONSI.. The information provided in the Knob EA demonstrates that there are numerous cumulative adverse effects to the affected watersheds, and that the proposed actions will contribute to and exacerbate these adverse effects. However, the Knob EA contains little detail or discussion as to the actual environment impacts from the Knob timber sale when combined with other impacts to the watershed. The EA and DN/FONSI fail to adequately disclose or analyze cumulative effects from all past, present, and reasonably foreseeable timber sales and other actions and fail to demonstrate that project design features and mitigation measures will reduce cumulative effects to a level of insignificance. Defendant's cumulative impacts analysis does not adequately address the magnitude of the likely cumulative impacts to water quality, to PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 18


the NSO, to sensitive and MIS species, to the Wild and Scenic qualities, or to other aspects of the environment. See AR 1330-32, 1340-44; AR 285-92; AR 313-34. 1. The Meteor timber sale

The Forest Service is planning another reasonably foreseeable project, Meteor, which includes a timber sale, which defendant admits may overlap with some of the subwatersheds proposed for logging in the Knob timber sale. Answer ¶ 34. In fact, Meteor and Knob grew out of the same project, which was formerly called the "Comet" project. Units of the Comet project in which "survey and manage" mollusks were present became part of the Comet sale and those which contained no such mollusks became the Knob sale. AR 1068. The Forest Service did not analyze the cumulative effects of Knob in conjunction with Meteor. AR 1340-44; see generally AR 1301-88. The EA provides a list of current and reasonably foreseeable future actions within the Knob Timber Sale assessment area, and states that these actions were included in the cumulative watershed effects modeling analyses for the sale. AR 1325. As noted supra, a mere listing of other projects does not meet NEPA's requirement of a cumulative impacts analysis. In addition, the Meteor Sale is not even included in this catalog. The Forest Service claimed that this omission was because Meteor was "in the initial planning stage" and "[t]he specifics of the units (size and treatment prescription) are not identified at this time." AR 1325. As explained above, this both Meteor and Knob came out of the Comet project and therefore were planned concurrently. While the Knob EA explained that the Comet Study had been withdrawn, it did not disclose that the Meteor timber sale was a clear outgrowth of the Comet Study and would soon be released for public scoping. The Forest Service issued its final decision for the Knob timber sale on December 17, 2002 and less than a PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 19


month later (with an intervening major holiday), on January, 16, 2003, the Forest Service disclosed that Meteor would log 39 timber sale units on 744 acres, many of which are adjacent to Knob Timber Sale units and in the same seventh-field subwatersheds. The Meteor Timber Sale certainly qualifies as a foreseeable future action which must be substantively evaluated in the Knob analysis. Blue Mountains, 161 F.3d at 1215.5 2. Other timber sales

The EA does not disclose that defendant's own "Interdisciplinary Team" (IDT) which developed the Knob project had concerns about the cumulative effects of the Knob sale when combined with prior logging in the West Fork of Knownothing Creek. AR 1255. The IDT stated: "This drainage has had a large amount of activity and the cumulative impacts of the Knob units are a concern." Id. This concern was regarding three of the Knob units, but only two of those units were dropped. AR 1255-56. The cumulative impact analysis also fails to account for logging impacts in the Glassups Timber Sale (670 acres) and Upper South Fork Timber Sale (1,503 acres), both of which include units within the same seventh-field subwatersheds as units of the Knob sale, within the North and South Fork Salmon River watersheds. AR 49. D. Miscellaneous Impacts

In the administrative proceedings, the plaintiffs alerted the Forest Service of its failure to address the impacts from hauling logs in the project area, particularly through riparian reserves

The Yoakumville Roads Analysis was included in the Knob Timber Sale Cumulative Watershed Effects analysis even though it was in the initial planning stages, similar to the Meteor Timber Sale. AR 1325. The decision to not include a similar analysis for the Meteor Timber Sale is clearly arbitrary and capricious and an abuse of discretion, in violation of the APA. 5 U.S.C. § 706(2)(A). PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 20

5


and the Wild and Scenic River corridor. AR 30, 45. The use of the roads for hauling during the dry season causes substantial disturbance to the road systems, creating a large amount of "fluffed-up" sediment, which is delivered to the stream system during the first rains. Id. The Forest Service did not take these impacts into account when assessing the significance of the timber sale. The EA fails to provide any meaningful evaluation of the cumulative impacts from the "hazard" tree salvage logging associated with the Sale. The EA briefly mentions that the Knob timber sale includes logging of "hazard" trees on sixteen miles of roads throughout the project, but provides absolutely no discussion of the impacts of this additional logging, yarding and hauling to the already extreme watershed impacts. AR 1319. Nor did the EA provide any of the criteria by which the Forest Service will determine which trees are "hazardous," thus providing no opportunity for public input into that important determination. VI. DEFENDANT VIOLATED NEPA BY FAILING TO DOCUMENT THAT THE PROJECT WILL MEET THE STATED PURPOSE AND NEED FOR THE PROJECT NEPA requires the statement of purpose and need in an NEPA document to reflect the purpose and need "to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. 1502.13; 40 C.F.R. 1508.9(2)(b). As explained in the Statement of Facts, the stated purposes of the Knob timber sale include reducing the risk of stand-replacing fires. Defendant failed to demonstrate how the proposed project would meet the purpose and need, and failed to address the body of scientific literature that directly disputes Defendant's allegations that commercial logging in mature stands will decrease fire danger, as discussed supra at 6. PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 21


Because defendant's proposed project does not meet, and in fact may hinder, its stated purpose and need, defendant's approval of this timber sale is arbitrary, capricious, not in accordance with law, and without observance of procedures required by law, within the meaning of the APA, 5 U.S.C. § 706. VII. THE EA DOES NOT ANALYZE A REASONABLE RANGE OF ALTERNATIVES The Knob EA is inadequate because it does not present an adequate range, or analysis, of alternatives as required by NEPA. Central to the environmental assessment is an analysis of alternatives to the proposed action. The CEQ regulations direct that EAs follow the same guidelines regarding alternatives as do full environmental impact statements. 40 C.F.R. 1508.9(2)(b). These guidelines directs the agency to "study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 102(2)(E). The discussion of alternatives is at "the heart" of the NEPA process, and is intended to provide a "clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. 1502.14; Idaho Sporting Congress, 222 F.3d at 567. The NEPA regulations and Ninth Circuit caselaw require the agency to "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. 1502.14(a); Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985) (EIS must consider "every" reasonable alternative). The Ninth Circuit, as elsewhere, has consistently held that an agency's failure to consider a reasonable alternative is fatal to an agency's NEPA analysis. See, e.g., Idaho Conserv. League v. Mumma, 956 F.2d 1508, 1519-20 (9th Cir. 1992) ("The existence of a viable, but unexamined alternative renders an environmental impact statement inadequate."); see also Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 48 Fed. Reg. 18,026 PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 22


(1981). The court must inquire whether the range of alternatives can serve NEPA's purpose to "foster both informed decision making and informed public participation." California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). The NEPA regulations provide the agency an opportunity to explain why a particular option is not feasible, or otherwise not reasonable, and hence eliminate it from further consideration. 40 C.F.R. 1502.14(a). The courts must, however, scrutinize this explanation to ensure that the reasons given are adequately supported by the record. Muckleshoot Indian Tribe, 177 F.3d at 813-15; Idaho Conserv. League, 956 F.2d at 1522 (while agencies can use criteria to determine which options to fully evaluate, those criteria are subject to judicial review); Citizens for a Better Henderson, 768 F.2d at 1057. An agency may not decline to evaluate an alternative simply on the grounds that it is not a "complete solution" to the agency's goals. Citizens Against Toxic Sprays, 428 F. Supp. at 933. Applying these standards, the Knob EA is invalid. Rather than evaluating a "reasonable" range of alternatives as NEPA requires, as explained in the Statement of Facts, the Forest Service considered only two actions alternatives to "no action" that are virtually identical in every important aspect. The only difference in the harvest proposals is that Alternative B, the selected alternative, would log 125 acres of spotted owl critical habitat, which would be deferred from logging under Alternative C. AR 83. By considering only two nearly identical alternatives besides the required "no-action" alternative, defendant violated the requirement that NEPA documents consider and discuss the range of all reasonable alternatives to the proposed action, to "provid[e] a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. 1502.14. Ninth Circuit caselaw is clear that the limited range of alternatives analyzed in the Knob EA is inadequate. The PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 23


situation is on point with Muckleshoot Indian Tribe, 177 F.3d at 813, in which the court held that the Forest Service had failed to consider an adequate range of alternatives in an EIS that considered only the no-action alternative and two virtually identical alternatives. The Forest Service failed to evaluate any of the reasonable, feasible alternatives suggested by the plaintiffs, which emphasized restoration and de-emphasized logging latesuccessional trees. See AR 31, 78, 156. Such alternatives are clearly reasonable and viable, as they include restoration components commonly included in timber sales and simply exclude some of the most environmentally damaging logging. Instead of incorporating a restorationbased alternative into its planning for Knob, the Forest Service did not respond to these comments, and pushed forward with its two nearly identical alternatives without any discussion of why other alternatives were excluded.6 The end result is that the decision-makers and the public are presented with an EA that fails to achieve its chief purpose: assuring that the agency has evaluated all of the reasonable options for achieving its goals, including those that are environmentally preferable, and assisting in choosing a course of action that makes the most sense from an environmental and economic standpoint. The Forest Service acted arbitrarily and capriciously by failing to provide the decision maker and the public with an adequate range of alternatives to the proposed Knob timber sale, and failing to adequately explain its decision to not explore other possible alternatives. As a result, this Court should, pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(1), compel the Defendants to prepare a new NEPA document with an adequate
6

The Decision Record does mention one alternative that was not considered in detail, but it had even greater adverse impacts on wildlife species and watershed health. AR 83. There is no indication that the Forest Service considered any of the environmentally beneficial alternatives suggested by plaintiffs. PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 24


range of alternatives prior to implementing the Knob timber sale. VIII. THE PROJECT VIOLATES NFMA Failure to comply with resource management plans violates the National Forest Management Act (NFMA). Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1377-78 (9th Cir. 1998); 36 C.F.R. 219.10. The Project fails to comply with NFMA's viability and diversity requirements; the LRMP standards and guidelines for soil protection; and the Aquatic Conservation Strategy in the ROD. In Neighbors of Cuddy, the Ninth Circuit stated: [T]o prove that the Grade/Dukes sale would be consistent with the Payette LRMP, the Forest Service should have shown that after the sale, there would be at least 5/2.5 percent of old growth "within each theoretical pileated woodpecker home range." The Forest Service has failed to do so. In fact, the Forest Service provides no information whatsoever regarding how many woodpecker home ranges there are within the sale area, or how many home ranges would be affected by the timber sale. Having failed to do so, it certainly could not have demonstrated that after the sale, a sufficient percentage of old growth would remain in each affected pileated woodpecker home range. 137 F.3d at 1377-78. The same reasoning applies to the instant case. As explained in this brief, the Forest Service has provided no information about the present wildlife conditions and attainment of the Aquatic Conservation Strategy goals. The Forest Service thus cannot demonstrate that the project meets the standards and guidelines of the LRMP, the NWFP ROD, or NFMA itself. A. The Project Violates the Viability Requirement of NFMA

NFMA imposes substantive duties upon the Forest Service, including the duty to "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B); Inland Empire Public Lands v. USFS, 88 F.3d 754 (9th Cir. 1996). The NFMA regulations state: Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 25


planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence it well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area. 36 C.F.R. 219.19. These mandatory provisions apply to site-specific timber sales, as well as to Resource Management Plans. Inland Empire, 88 F.3d at 760-61 n.6. As discussed supra at 4-6, the project would degrade and/or destroy NSO critical habitat, and will adversely impact habitat for sensitive and management indicator species, and thus violates NFMA. Furthermore, the defendant is improperly relying on habitat quality rather than the abundance of individual indicator species, despite the fact that defendant's own documentation indicates that habitat quality is a poor proxy for the condition of the species. AR 300. Indeed, it is the "management indicator species" itself which is supposed to be the proxy for determining the condition of the habitat. MIS monitoring is required in addition to habitat set-asides, to insure species viability under NFMA. Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002). B. The Project Violates the Aquatic Conservation Strategy

The Aquatic Conservation Strategy ("ACS") is a key component of the Northwest Forest Plan (the ROD), and is incorporated into the Klamath LRMP. Answer ¶ 79. By logging in landslide-prone areas and failing to demonstrate that the Project will attain the ACS objectives, the Project violates NFMA. In the PCFFA case, the Ninth Circuit recently explained the purpose of the Riparian Reserves and the Aquatic Conservation Strategy (ACS). One of the key components of the NFP [Northwest Forest Plan] is the ACS, a comprehensive plan designed to maintain and restore the ecological health of the PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 26


waterways in the federal forests. There are four components to the ACS: (1) key watersheds (the best aquatic habitat, or hydrologically important areas), (2) riparian reserves (buffer zones along streams, lakes, wetlands and mudslide risks), (3) watershed analysis (to document existing and desired watershed conditions), and (4) watershed restoration (a long-term program to restore aquatic eco-systems and watershed health). The ACS also has binding standards and guidelines that restrict certain activities within areas designated as riparian reserves or key watersheds. Additionally, ACS has nine objectives designed to maintain or restore properly functioning aquatic habitats. 253 F.3d 1137. The Northwest Forest Plan ROD prohibits and regulates activities in riparian reserves that retard or prevent attainment of the nine ACS objectives. The PCFFA court explained: The FEMAT report, which was instrumental in developing ACS, emphasized the importance of curtailing incremental aquatic habitat degradation because the effects of numerous actions can cause significant damage to fish species and their habitat. See FEMAT, Forest Ecosystem Management: An Ecological, Economic, and Social Assessment V-2 (1993). 253 F.3d 1137. As discussed in this brief, the Knob timber sale decision violates NFMA and its implementing regulations by failing to comply with the ACS, in one or more of the following particulars: a. road building and hauling will increase turbidity and further degrade the sediment regime in the Beaver Creek watershed and its drainages and retard ACS objectives; building new road and renovating existing road will alter soil cover, mass balance and site drainage and will retard ACS objectives; and the project fails to address compliance with the ACS at multiple spatial scales, including the 5th-field watershed.

b. c.

CONCLUSION PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 27


Based on this brief, the Administrative Record, and the declarations and Statement of Undisputed Facts accompanying this brief, plaintiffs respectfully request that the court award them summary judgment as a matter of law, and provide the relief stated in the complaint. DATED October 14, 2003. Respectfully submitted, ____________________________ Marianne Dugan, Oregon State Bar # 93256, pro hac vice Attorney for Plaintiffs Facaros & Dugan 485 E. 13th Ave. Eugene, OR 97401 Brenna Bell, of Counsel Sharon Duggan, Local Counsel

PLAINTIFFS' MEM. IN SUPP. OF MO. FOR SUMMARY JUDGMENT ­ PAGE 28