Greenpeace, Inc. v. Cole
Greenpeace, Inc. v. Cole
Opinion of the Court
ORDER REGARDING MOTION TO ENFORCE MANDATE ON REMAND
I. INTRODUCTION
Plaintiffs Greenpeace, Inc., and Cascadia Wildlands Project (“Plaintiffs”) move for an order enforcing the mandate of the United States Court of Appeals for the Ninth Circuit and the amended judgment of this Court regarding the United States Forest Service’s (“Forest Service”) approval of four timber sale projects in the Tongass National Forest. Plaintiffs request at Docket 106 that, due to failure to comply with the Circuit Court’s direction on remand, this Court vacate the four agency actions or, in the alternative, re
II. GOVERNING PROVISIONS
A. NFMA
The National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600 et seq., requires the Forest Service to develop and maintain forest resource management plans.
B. NEPA
The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purpose is to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public.
III. FACTUAL BACKGROUND
Established September 10, 1907, the Tongass National Forest covers nearly 17
A. Initial Forest Service Actions 1. 1997 Forest Plan
The 1997 Forest Plan was ultimately adopted based on a Final Environmental Impact Statement (“FEIS”), which discussed the planning process and analysis used'to develop the Forest Plan, described and analyzed the alternatives considered in detail, and discussed public objections to the plan. Two local species were identified within the 1997 Forest Plan, the Sitka black-tailed deer (“deer”) and the Alexander Archipelago wolf (“wolf’), as “management indicator species.”
2. The Projects
Under the 1997 Forest Plan, the four projects at the core of this matter were proposed, reviewed, and approved. While the geography, size, and timeline of actions by the Forest Service varied among the projects, the final decisions to approve each timber sale project were based on consistency with the guidelines of the 1997 Forest Plan.
a. Scott Peak
The Scott Peak project was analyzed in a FEIS published in November 2005.
b.Overlook
The Overlook project was analyzed in an EA published in April 2005.
c.Traitors Cove
The Traitors Cove project was analyzed in an EIS published in 2007.
d.Soda Nick
The Soda Nick project was analyzed in an EA published in April 2005.
3. The Deer Model.
The 1997 Forest Plan uses a deer winter habitat capability model (“deer model”) to produce a relative ranking of habitat suitability for deer and, by extension, wolves.
This ranking is expressed as a habitat suitability index (“HSI”) score. The HSI scores, ranging from 0.0 to 1.3 are used to estimate habitat carrying capacity or in
4. 2008 Forest Plan
In response to the Ninth Circuit’s decision in Natural Resources Defense Council, et al. v. United States Forest Service, et al., the 1997 Forest Plan was subsequently amended through a ROD issued on January 23, 2008.
Specifically, while the 1997 Forest Plan directs the Forest Service to provide sufficient deer habitat capability for sustaining wolf populations and then meeting human demands, which has continued to be 18 deer per square mile, the 2008 Forest Plan made the addition that this provision is required “where possible.”
B. Procedural History
Plaintiffs filed suit against the Forest Service on July 10, 2008, challenging the decision to approve the four projects at issue in this matter. Plaintiffs raised Claims under NFMS and NEPA, centering on the use of the deer habitat capability model by the Forest Service in analyzing project impacts to deer and wolves. This Court ruled in favor of the Forest Service on April 27, 2010, and Plaintiffs filed an appeal in the Ninth Circuit Court of Appeals. The Ninth Circuit reversed in part, vacated in part, and remanded the case to this Court on August 2, 2011.
C. The Forest Service’s actions on Remand
The Forest Service determined that the best way to respond to this Court’s Order of Remand was “by preparing a new analysis using current deer model methods.”
Based on the SIR for each project, the Forest Service evaluated the necessity of preparing any supplements to the existing NEPA documents.
IV. STANDARD OF REVIEW
The Administrative Procedure Act governs this Court’s review of the actions of the Forest Service on remand. “Agency decisions that allegedly violate ... NEPA and [the] NFMA are reviewed under the Administrative Procedure Act (‘APA’), and may be set aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”
When reviewing “under the arbitrary and capricious standard[,]” a court is deferential to the agency involved.
If an agency has not committed one of the these errors, and “ ‘a reasonable basis exists for its decisionf,]’ ” the action should be affirmed.
V. DISCUSSION
Plaintiffs seek an order from this Court vacating the Forest Service’s approval of the four timber projects pursuant to the APA. Plaintiffs seek in the alternative an order from this Court remanding these four actions to the Forest Service for a second time and enjoining the Forest Service from moving forward with any activities pursuant to these four decisions until such time as the Forest Service has demonstrated compliance with the requirements of NFMA and NEPA. Additionally, Plaintiffs seek a declaration that the Forest Service has failed to comply with the remand order and mandate of the Circuit and District Courts, as well as the requirements of NFMA and NEPA.
This Court finds that two actions were clearly required by the Ninth Circuit’s decision: 1) an adequate explanation of how the deer model supports the decision to approve the projects; and 2) consideration of possible supplementation under NEPA. As to the first, the Court of Appeals concluded that the Forest Service had not adequately explained its use of the deer model; and therefore, had not provided an
A. The Forest Service Failed to Explain How the Projects Comply with the 1997 Forest Plan and NFMA
The Forest Service notes that it “fully considered” the 1997 Forest Plan, but implies that this full consideration only required discussion of the evolution of the deer model from 1997 through 2008 up to the present.
1. Forest Service’s Actions Must Comply with the Forest Plan in Effect at the Time the Decision was Made
The NFMA provides not only the statutory framework, but also “specifies the procedural and substantive requirements under which the Forest Service is to manage National Forest System lands.”
While the forest plan may change over time through amendment and revision, the relevant forest plan and regulations for evaluating compliance of the Forest Service’s actions are those in effect at the time of the decision. In fact, the Forest Service is “required to comply with the regulations and forest plan in place at the time of its decision.”
2. The 1997 Forest Plan Still Applies to the Decisions Approving These Projects
Because the 1997 Forest Plan was in effect at the time the original approval
Although subsequent action and evaluation was required of the Forest Service in preparing the SIRs and Change Analyses on remand, these actions do not constitute a new decision. The Forest Service implies that it is illogical to perform the analysis and evaluation on remand based on the outdated 1997 Forest Plan. However, this supplemental analysis was the explanation and rational connection that the Ninth Circuit found deficient in the Forest Service’s original decision based on the 1997 Forest Plan on appeal. Even if the Forest Service were to argue that the subsequent analysis and actions on remand were new decisions, which they have not, this argument is precluded by the agency’s own policies. The Forest Service’s Handbook states that a SIR is not a NEPA document and therefore 1) it cannot fulfill the requirements for revised or supplemental EIS or EA, 2) it cannot repair deficiencies in the original documentation, and 3) it cannot change the decision previously made by the Forest Service.
Alternatively, the Forest Service contends that application of the 2008 Forest Plan, instead of the 1997 Forest Plan, is appropriate because it included transition language, under § 1604® of the NFMA, to allow for existing projects to move forward under the new amended forest plan.
The Court does not find it necessary to evaluate at length the similarities and differences between the 1997 and 2008 Forest Plans, as it is sufficient to note that they are not identical and therefore they are not interchangeable in evaluating the Forest Service’s decisions to approve these projects. The entirety of the four projects were evaluated under the 1997 Forest Plan initially, however only the deer model anal-yses have now been evaluated under the 2008 Forest Plan. If the Forest Service is to rely on the original decision making process approving these projects on remand, then the analyses prepared for the 1997 Forest Plan alone must provide the adequate explanation and support sought by the Ninth Circuit.
3. The Forest Service Wrongly Relied on the 2008 Forest Plan in Preparing the SIRs
Based on the above, the Forest Service had two options for moving forward with these projects on remand: 1) defend the decisions approving these projects by reexamining its deer model under the 1997 Forest Plan or 2) reopen the decisionmak-ing process in order to apply the 2008 Forest Plan analysis for these projects. However, the Forest Service has attempted a third course of action which seeks to defend the original decisions approving these projects based on SIRs and Change Analyses that rely on the subsequent 2008 Forest Plan. This court recognizes the Forest Service’s desire to use the most recent deer model and forest plan, as well as the desire to avoid the complexities of commencing a renewed decisionmaking process. However, the Forest Service cannot have it both ways.
While the Forest Service’s record on remand does- include mention of the 1997 Forest Plan, the conclusions drawn regarding compliance and consistency are almost exclusively stated with regard to the 2008 Forest Plan. In fact, this Court notes that nowhere in any of the SIRs or Change Analyses for these four projects is there any discussion on how the deer model analyses are consistent with the 1997 Forest Plan in support of the approval decisions. Not only do they focus on the 2008 Forest Plan, but they highlight that there may be some variance from the analysis under the 1997 Forest Plan, performed in between 2005 and 2007 for these projects, and the analysis done under the 2008 Forest Plan in 2012 on remand. For example the Soda Nick SIR notes that “[d]eer density ... was consistently lower in the 2012 Reanalysis than in the original analysis in 2007 due to differences in analysis methods; however, the effects to deer density in the 2012 Reanalysis are within the range of effects disclosed in the analysis for the 2008 Forest Plan” and that “[t]he 2012 Reanalysis results are fully consistent with the 2008 Forest Plan....”
As discussed above, the Ninth Circuit found that the Forest Service did not adequately explain the rational connection between the deer model analysis and the Forest Service’s decision to approve the projects. The Forest Service was to address this failure on remand, but rather than providing an explanation for their original decision, the Forest Service engaged in new analysis under the subsequent forest plan. By relying on the 2008 Forest Plan, which was not part of the original decisionmaking process, to defend its approval of the projects, the Forest Service failed to address the specific deficiency noted by the Ninth Circuit in remanding this matter. While the Court recognizes that it may seem illogical to adhere to a forest plan that is now 17 years old, this Court cannot ignore that the entire decisionmaking processes for each of these projects are similarly based on the same dated plan. If the Forest Service wishes to rely on the original process for making the decisions on these projects, this Court cannot absolve them of the need to comply with the forest plan in place at the time of those decisions. By relying on the 2008 Forest Plan, the Forest Service has still not “artieulate[d] a rational connection between the facts found and choices made” in the original approval decision for these projects.
4. Remand
Plaintiffs have sought vacatur or, in other words, an order of this Court setting aside the four decisions approving these projects and forcing the Forest Service to start the entire process from the very beginning. This is not necessary. In support of vacatur, Plaintiffs cite the two factor test used by the Ninth Circuit in California Communities Against Toxics v. U.S. E.P.A.
B. The Forest Service Did Not Act Arbitrarily, Capriciously or Contrary to the Law by Determining That No Supplemental NEPA Documentation Was Necessary
Because this Court has already found that the Forest Service failed to comply with NFMA, it is not necessary to reach the matter of the Forest Service’s decision to not prepare supplemental NEPA documentation on remand. However, this Court notes that if the Forest Service had included discussion on remand detailing how the proposed projects are fully consistent with the 1997 Forest Plan, the Forest Service’s actions under NEPA would have been appropriate. The use of SIRs and Change Analyses by the Forest Service were only inappropriate in their omission of an adequate explanation of compliance under the 1997 Forest Plan and reliance on the 2008 Forest Plan. It is a “basic agency law principle that ‘notions of fairness and informed administrative de-cisionmaking require that agency decisions be made only after affording interested parties notice and an opportunity to comment.’ ”
Review under APA is narrow and this Court is not to substitute its own judgement as to whether the updated deer model presents significant new information or circumstances which require supplemental assessments or impact statements. The use of an SIR to evaluate an interdisciplinary review of new information is the appropriate course of action in evaluating new information in this context and the
VI. CONCLUSION
For the foregoing reasons, the motion for order enforcing mandate and vacating agency actions at Docket 106 is hereby GRANTED IN PART and DENIED IN PART. This matter is hereby REMANDED to the United States Forest Service to make further findings and determinations consistent with this decision as outlined above.
IT IS SO ORDERED.
. 16 U.S.C. §§ 1604(a).
. 16 U.S.C. §§ 1604(i).
. 16 U.S.C. § 1604(g)(3)(B).
. Ecology Center v. Castaneda, 574 F.3d 652, 656-57 (9th Cir. 2009) (citing Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996)).
. Ecology Center at 657.
. Ecology Center at 657 (quoting Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002)).
. Ecology Center at 657 (quoting Neighbors of Cuddy Mountain at 1070).
. Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1172 (9th Cir. 2006), cert. denied, 549 U.S. 1278, 127 S.Ct. 1829, 167 L.Ed.2d 318 (2007), abrogated on other grounds, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
. See 40 C.F.R. §§ 1501.3, 1501.4.
. 40 C.F.R. § 1508.9(a).
. 40 C.F.R. §§ 1501.4(e), 1508.13.
. 1997 Tongass National Forest Land and Resource Management Plan at 6-15 (Sitka black-tailed deer); Id. at WILD 112.XI (Alexander Archipelago Wolf).
. Id. at WILD112.II.B.
. Id. at WILD112.XI.A.3.
. AR 10-006743.
. AR 10-00004 at 2-155.
. Scott Peak Change Analysis, RR 06-0045 at 1.
. Id.
. Id.
. Id.
. Overlook Change Analysis, RR 06-0044 at 1.
. Id.
. Id.
. Id.
. Id.
. Traitors Cove Change Analysis, RR 06-0047 at 1.
. Id.
. Soda Nick Change Analysis, RR 06-0046 at 1.
. Id.
. Id.
. Id.
. Id.
. See AR 10-007428-32.5.
. Id.
. Id.
. See AR 603_2251 at 5; AR 10_007430; AR 603_2267 at 1.
. AR 10-007428-32.5 at 7.
. 421 F.3d 797 (9th Cir. 2005).
. RR 01-0001 at 4-5.
. Id.
. 1997 Tongass National Forest Land and Resource Management Plan WILD1.XI.A.3 at 4-114; 2008 Tongass National Forest Land and Resource Management Plan WILD 1.XIV.A.2 at 4-95.
. Id.
. 2008 Tongass National Forest Land and Resource Management Plan WILD1.XIV.A.2 at 4-95.
. Id.
. Greenpeace, Inc. v. Cole, 445 Fed.Appx. 925, 928 (9th Cir. 2011).'
. Id. at 4-5.
. Id. at 5-7.
. RR 01-0001 at 1.
. See Overlook EA SIR RR 07-0059; Scott Peak EIS SIR, RR 08-0067; Soda Nick EA SIR, RR 09-0081; Traitors Cove EIS SIR, RR 10-0084.
. Id.
. Id.
. Id.
. RR 06-0044 through 06-0047 at 3.
. Id.
. Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007) (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008-09 (9th Cir. 2006), 5 U.S.C. § 706(2)(A)).
. In Def. of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014) (quoting Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2005)).
. Id. (quoting Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005)).
. Nat'l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).
. Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1084 (9th Cir. 2011) (quoting Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)).
. Nat’l Ass’n of Home Builders, 551 U.S. at 658, 127 S.Ct. 2518 (quoting Motor Vehicle Mfrs. Assn, of U.S., Inc. v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).
. Cal. Wilderness Coal., 631 F.3d at 1084 (quoting Nw. Ecosystem Alliance, 475 F.3d at 1140).
. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).
. Greenpeace, 445 Fed.Appx. at 927."
. Docket 115 at 14.
. Docket 115 at 22.
. Id.
. Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (en banc).
. Native Ecosystems Council v. Tidwell, 599 F.3d 926, 932 (9th Cir. 2010) (quoting Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002)).
. Id.
. Native Ecosystems Council v. Tidwell, 599 F.3d 926, 932 n. 8 (9th Cir. 2010) (citing Envtl. Prot. Info. Ctr., 451 F.3d at 1017 n. 8.).
. Docket 115, p. 14.
. Docket 115, p. 22.
. Greenpeace, 445 Fed.Appx. at 928 n. 4.
. Id.
. FSH 1909.15-2011-1, 18.1.
.RR 06-0047 at 4.
. Docket 118 at 15 citing 2008 Tongass National Forest Land and Resource Management Plan ROD at 68-70.
. Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1070 (9th Cir. 1998).
. Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011).
. Friends of Southeast’s Future, 153 F.3d at 1070 (noting that NFMA '"requires timber sales to be consistent with a single Forest Plan, not selected elements of two plans.”).
. Greenpeace, 445 Fed.Appx. at 928 n. 4.
. Soda Nick EA SIR, RR 09-0081 at 2.
. Overlook EA SIR RR 07_0059 at 11.
. Scott Peak EIS SIR, RR 08-0067 at 8.
. Pac. Coast Fed'n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005).
. 688 F.3d 989, 992 (9th Cir. 2012).
. Id.
. Docket 115 at 24.
. California Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1110 (9th Cir. 2011) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)).
.40C.F.R. § 1502.9(c)(1).
. North Idaho Community Action Network v. U.S. Department of Transportation, 545 F.3d 1147 (9th Cir. 2008).
. See Overlook EA SIR, RR 07_0059 at 1; Scott Peak EIS SIR, RR 08_0067 at 1; Soda Nick EA SIR, RR 09_0081 at 1; Traitors Cove EIS SIR,'RR 10_0084 at 1.
. Tongass Conservation Society v. Cole, No. 1:09-cv-00003-JWS (D.Alaska Dec. 7, 2009).
Reference
- Full Case Name
- GREENPEACE, INC. v. Forrest COLE
- Cited By
- 1 case
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- Published