Conservation Congress v. U.S. Forest Service ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 CONSERVATION CONGRESS and No. 2:13-cv-00934-JAM-DB CITIZENS FOR BETTER FORESTRY, 13 Plaintiffs, 14 ORDER DENYING PLAINTIFFS’ MOTION v. TO SUPPLEMENT THE ADMINISTRATIVE 15 RECORD; DENYING PLAINTIFFS’ UNITED STATES FOREST SERVICE MOTION TO STRIKE; DENYING 16 and UNITED STATES FISH AND PLAINTIFFS’ MOTION FOR SUMMARY WILDLIFE SERVICE, JUDGMENT; AND GRANTING DEFENDANT 17 AND DEFENDANT-INTERVENOR’S Defendants, MOTIONS FOR SUMMARY JUDGMENT 18 AMERICAN FOREST RESOURCE 19 COUNCIL, 20 Defendant- Intervenor. 21 22 For nearly a decade, the parties have argued over the impact 23 the Pettijohn Project would have on the Shasta-Trinity National 24 Forest’s Northern Spotted Owl (“spotted owl”) population and its 25 wildfire management efforts. Conservation Congress and the 26 Citizens for Better Forestry (collectively, “Plaintiffs”) believe 27 the project will destroy critical old-growth forest that the 28 spotted owls need to survive. The United States Forest Service 1 (“the Forest Service”), the United States Fish and Wildlife 2 Service (“Fish and Wildlife”), and the American Forest Resource 3 Council (“the Resource Council”) contend the project will reduce 4 the likelihood of major wildfires and will have minimal short- 5 term effects on the spotted owls and their critical habitat. 6 This dispute has finally come to a head with the filing of 7 cross-motions for summary judgment by all parties involved. See 8 Pls.’ Mot. Summ. J., ECF No. 62; Defs.’ Mot. Summ. J., ECF No. 9 73; Def-Interv.’s Mot. Summ. J., ECF No. 76. In addition, 10 Plaintiffs have filed a motion to supplement the administrative 11 record, see Mot. to Supp. Admin. Record, ECF No. 66-1, and a 12 motion to strike, see Mot. to Strike, ECF No. 79. For the 13 reasons set forth below, the Court DENIES Plaintiffs’ motion to 14 supplement the administrative record; DENIES Plaintiffs’ motion 15 to strike; DENIES Plaintiffs’ motion for summary judgment; GRANTS 16 the Forest Service and Fish and Wildlife’s motion for summary 17 judgment; and GRANTS the Resource Council’s motion for summary 18 judgment.1 19 20 I. STATUTORY, FACTUAL, AND PROCEDURAL BACKGROUND 21 A. The National Environmental Policy Act 22 The National Environmental Policy Act (“NEPA”) “is a 23 procedural statute that requires the federal government to 24 carefully consider the impacts of and alternatives to major 25 environmental decisions.” Native Ecosystems Council v. Weldon, 26 27 1 These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for January 12, 2021. 1 697 F.3d 1043, 1051–52 (9th Cir. 2012) (citing 42 U.S.C. 2 §§ 4321, 4331). NEPA requires that federal agencies take a 3 “hard look” at the environmental consequences of their proposed 4 actions and then inform the public about the agency’s decision- 5 making process. Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 6 1062, 1066 (9th Cir. 2002). “NEPA is concerned with process 7 alone and merely prohibits uninformed—rather than unwise—agency 8 action.” Turtle Island Restoration Network v. U.S. Dep’t of 9 Commerce, 878 F.3d 725, 730 (9th Cir. 2017) (internal quotation 10 marks and citation omitted). Judicial review of agency 11 decision-making is “at its most deferential” when reviewing 12 scientific judgments and technical analyses within the agency’s 13 expertise. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 14 668 F.3d 1067, 1075 (9th Cir. 2011). 15 B. The National Forest Management Act 16 The National Forest Management Act (“the NFMA”) “charges 17 the Forest Service with the management of national forest land, 18 including planning for the protection and use of the land and 19 its natural resources.” All. for the Wild Rockies v. U.S. 20 Forest Serv., 907 F.3d 1105, 1109 (9th Cir. 2018). The Forest 21 Service develops land and resource management plans (“forest 22 plans”), 16 U.S.C. § 1604, that summarize the “broad, long-term 23 plans and objectives for the entire forest.” Weldon, 697 F.3d 24 at 1056. Forest plans include guidelines to help achieve the 25 NFMA’s goals, including consideration of both economic and 26 environmental concerns, preservation of diversity in plant and 27 animal communities, and research on the effects of forest 28 management. 16 U.S.C. § 1604(g)(3). 1 “After a forest plan is approved, the Forest Service 2 implements the forest plan when approving or denying site- 3 specific projects.” Weldon, 697 F.3d at 1056. Courts must defer 4 to the Forest Service’s reasonable interpretation of its own 5 guidelines, overturning the agency’s decision only if it is 6 plainly erroneous or inconsistent with the forest plan. Forest 7 Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1098 (9th Cir. 8 2003). “A project is consistent if it conforms to the applicable 9 ‘components’ of the forest plan, including the standards, 10 guidelines, and desired conditions that are set forth in the 11 forest plan and that collectively establish the details of forest 12 management.” All. for the Wild Rockies, 907 F.3d at 1109–10. 13 Although a forest plan’s “standards” require strict adherence, 14 the Forest Service may deviate from the plan’s “guidelines” if 15 the agency documents the rationale for the deviation. Id. 16 C. The Healthy Forest Restoration Act 17 The Healthy Forest Restoration Act (“HFRA”) aims to reduce 18 “wildfire risk to communities, municipal water supplies, and 19 other at-risk Federal land,” address “threats to forest and 20 rangeland health, including catastrophic wildfire,” and protect, 21 restore, and enhance forest ecosystem components “to promote the 22 recovery of threatened and endangered species.” 16 U.S.C. 23 § 6501(1), (3), (6). To achieve these goals, HFRA provides for 24 the implementation of “authorized hazardous fuel reduction 25 projects” on federal land that contains habitat for threatened 26 and endangered species where the project “will provide enhanced 27 protection from catastrophic wildfire” for species or its 28 habitat. 16 U.S.C. § 6512(a)(5)(B). 1 D. The Endangered Species Act 2 The Endangered Species Act (“the ESA”) “reflects a 3 conscious decision by Congress to give endangered species 4 priority over the primary missions of federal agencies.” 5 W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th 6 Cir. 2011) (internal quotations marks and citation omitted). 7 The ESA tasks federal agencies with ensuring that any “agency 8 action” is not likely to jeopardize the continued existence of 9 any listed species. 16 U.S.C. § 1536(a)(2). Further, agency 10 action may not destroy or adversely modify the critical habitat 11 of any listed species. Id. 12 Agency actions that “may affect” a listed species require 13 the acting agency to formally consult with the federal agency 14 responsible for protecting that species. 50 C.F.R. § 402.14(a); 15 Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008, 16 1011–12 (9th Cir. 2012), as amended (Sept. 17, 2012). If a 17 listed species is present in the area of a proposed action, the 18 acting agency—here, the Forest Service—must conduct a Biological 19 Assessment (“BA”), “for the purpose of identifying any endangered 20 species or threatened species which is likely to be affected by 21 such action.” 16 U.S.C. § 1536(c). 22 At the end of the formal consultation process, the Secretary 23 of the consulting agency—here, Fish and Wildlife—must issue a 24 Biological Opinion (“BiOp”). Id. § 1536(b)(3)(A). A BiOp is a 25 “written statement setting forth the Secretary’s opinion, and a 26 summary of the information on which the opinion is based, 27 detailing how the agency action affects the species or its 28 critical habitat.” Id. If the consulting agency believes that 1 the project will jeopardize a listed species or adversely modify 2 the species’ habitat, “the Secretary shall suggest those 3 reasonable and prudent alternatives which he believes would not 4 violate subsection (a)(2) and can be taken by the Federal agency 5 or applicant in implementing the agency action.” Id. If the 6 acting agency subsequently modifies the action “in a manner that 7 causes an effect to the listed species or critical habitat that 8 was not considered in the [BiOp],” the agencies must reinitiate 9 formal consultation. 50 C.F.R. § 402.16. 10 E. The Shasta-Trinity National Forest and Clear Creek 11 Late Successional Reserve 12 The Shasta-Trinity National Forest is a 2.1-million-acre 13 mixed conifer forest located in northern California. FS-AR 14 005320. The forest provides habitat for certain species listed 15 as threatened or endangered under the ESA. FS-AR 004809-12. The 16 spotted owl was listed as threatened in 1990. FS-AR 004811-12; 17 55 Fed. Reg. 26,194 (June 26, 1990). Pursuant to the Northwest 18 Forest Plan (“NWFP”), portions of the forest are classified as 19 Late Successional Reserves (“LSR”). FS-AR 003240; FS-AR 005852. 20 LSRs are intended to “maintain a functional, interactive, late- 21 successional and old-growth forest ecosystem” that “serve[s] as 22 habitat for late-successional and old-growth related species 23 including the [spotted owl].” FS-AR 005856. Programmed timber 24 harvesting is prohibited in LSRs, however, the NWFP allows for 25 “thinning or other silvicultural treatments . . . to reduce risks 26 of large-scale disturbance” in LSRs “east of the Cascades and in 27 Oregon and California Klamath Provinces.” FS-AR 005858. 28 The Clear Creek LSR is in the Shasta-Trinity National Forest 1 and consists of approximately 84,000 acres primarily in the 2 Klamath Province, 35,000 acres of which are privately owned and 3 managed for timber production. FS-AR 003570; FS-AR 003206; FS-AR 4 003193; FS-AR 001954. A 1997 assessment of the Clear Creek LSR 5 concluded that decades of fire suppression and logging “shifted 6 the fire regime within the area [] and increased the potential 7 for partial to complete stand-replacing2 fires within mature 8 conifer and hardwood stands.” FS-AR 003573. As a result, the 9 assessment recommended prioritizing activities that would thin 10 overstocked young to mature conifer stands in the LSR. See FS-AR 11 003595–601. The thinning treatment would reduce the risk of 12 large-scale losses of dense young to mature stands, and adjacent 13 older stands, from stand-replacing crown fires by thinning out 14 the vegetation below them. FS-AR 003597. It would also enhance 15 late successional and old-growth stand development by 16 “concentrating growth on fewer individual trees to provide larger 17 conifers with larger fuller crowns.” Id. 18 F. The Pettijohn Late Successional Reserve Habitat 19 Improvement and Fuels Reduction Project 20 In December 2008, the Forest Service initiated NEPA’s 21 scoping process by publishing a notice of intent to prepare an 22 environmental impact statement (“EIS”) for a proposed action in 23 the Pettijohn area of the Clear Creek LSR under HFRA. See FS-AR 24 001671. The Forest Service’s proposed action for the Pettijohn 25 area would thin mature stands to reduce the risk of stand- 26 2 A stand-replacing fire is a fire which kills all or most of the 27 living overstory trees in a forest and initiates forest succession or regrowth. See 28 https://www.nwcg.gov/term/glossary/stand-replacing-fire. 1 replacing wildfire, foster late-successional and old-growth 2 conditions, and promote fire suppression activities. Id. The 3 action contemplates thinning from below on 1,155 acres of overly 4 dense conifer stands. FS-AR 001672. Thinning from below is a 5 silvicultural technique in which a desired stand density is 6 identified, and the stand is thinned by removing the smallest 7 and least healthy trees, while retaining the largest and 8 healthiest ones, until the desired density is achieved. Id. 9 The action also provides for the creation of fuel management 10 zones (“FMZs”) on 1,995 acres. Id. FMZs are roadside areas 11 where fuels are reduced, and hazard trees are removed. Id. 12 After receiving public comment on a draft EIS assessing the 13 potential environmental effects of the proposed action, the 14 Forest Service published a final EIS (“FEIS”) in May 2012. See 15 FS-AR 000891-1350 (draft EIS); FS-AR 000343-890 (FEIS). The 16 FEIS analyzed the potential environmental effects of the 17 proposed action, including potential effects on fire and fuels, 18 wildlife, silviculture, air quality, and climate change. See 19 FS-AR 000401-18 (fire and fuels); FS-AR 000418-45 (wildlife); 20 FS-AR 000445-56 (silviculture); FS-AR 000523-30 (air quality); 21 FS-AR 000543 (climate change). After an objection period, the 22 Forest Service approved the Pettijohn Late Successional Reserve 23 Habitat Improvement and Fuels Reduction Project (“the Pettijohn 24 Project”) with a record of decision (“ROD”) in March 2013. FS- 25 AR 000307-330. 26 The Pettijohn Project area encompasses 13,162 acres of 27 federal land and 8,409 acres of private land. FS-AR 000311. 28 The area also includes 14,347 acres of spotted owl critical 1 habitat. FS-AR 022777. Contained within the critical habitat 2 is 11,103 acres of nesting, roosting, and foraging habitat of 3 which 3,518 acres are old-growth, high-quality nesting and 4 roosting habitat and 7,858 acres are mature, moderate-quality 5 nesting and roosting habitat. FS-AR 000422. Under the ROD, the 6 Pettijohn Project will thin 958 acres of overly dense conifer 7 stands and create 1,846 acres of FMZs along thirty-six miles of 8 road. FS-AR 00313. Appendix H of the FEIS details the thinning 9 prescriptions designed by an interdisciplinary team to “maintain 10 the densest canopy [] sustainable with late summer fire events 11 while maintaining large/old trees, large snags/logs[,] and 12 viable understory hardwoods.” FS-AR 000791. The project also 13 provides for prescribed burning on 101 acres; hand thinning, 14 piling, and burning on eleven acres; decommissioning 2.3 miles 15 of road; creating thirty-six short-term cut timber landings; and 16 construction of 0.95 miles of temporary roads to access the 17 landings. FS-AR 000313-14. 18 Before approving the Pettijohn Project, the Forest Service 19 formally consulted with Fish and Wildlife under Section 7 of the 20 ESA. See FS-AR 002092-93. As part of that process, the Forest 21 Service transmitted an April 2011 BA and 2012 BA supplement to 22 Fish and Wildlife. See FS-AR 002705-820; FS-AR 002672-99. The 23 BA determined that the project is likely to adversely affect the 24 spotted owl and its designated critical habitat by reducing some 25 of its quality. FS-AR 002754-55. It also found that the 26 project is likely to benefit the spotted owls by “reducing the 27 risk and hazard of catastrophic loss of suitable habitat to 28 late-season wildfire.” Id. Fish and Wildlife’s resulting May 1 2012 BiOp assessed the potential effects of the Pettijohn 2 Project on the spotted owl and its critical habitat, finding the 3 project was not likely to jeopardize the continued existence of 4 the spotted owl or adversely modify its critical habitat. FS-AR 5 001996-97. 6 In June 2013, the Forest Service reinitiated consultation 7 with Fish and Wildlife due to revisions of the spotted owl’s 8 critical habitat and the presence of barred owls in the project 9 area. See FS-AR 022790. In June 2017, the Forest Service 10 transmitted a supplemental information report to Fish and 11 Wildlife that addressed: barred owls, changes to spotted owl 12 occupancy and activity centers in the project area, the 2012 13 Critical Habitat Rule, the 2011 Revised Recovery Plan, and the 14 spotted owl’s use of burned habitat. FS-AR 022790–850. In 15 response, Fish and Wildlife issued a supplemental BiOp in April 16 2018, concluding the project would not jeopardize the existence 17 of the spotted owl or adversely modify its critical habitat. 18 FS-AR 022942. 19 In March 2019, the Forest Service prepared a supplemental 20 information report (“SIR”), explaining that the information in 21 the BA supplement and BiOp supplement did not constitute 22 significant new information warranting a supplemental EIS under 23 NEPA. FS-AR 022774-85. The SIR also explained that the 24 Pettijohn Project’s total treatments would be reduced by an 25 additional 121 acres in light of spotted owl movement and new 26 activity centers. FS-AR 022785-86. The project will, instead, 27 thin from below 908 acres and create FMZs on 1,775 acres. FS-AR 28 022786. 1 G. Procedural Posture 2 Plaintiffs filed suit in May 2013, challenging the Pettijohn 3 Project under the ESA, the NFMA, NEPA, HFRA, and the 4 Administrative Procedures Act (“the APA”). See Compl. ¶¶ 2, 10, 5 ECF No. 1. The parties stipulated to stay the proceedings after 6 the Forest Service requested additional consultation with Fish 7 and Wildlife. See ECF Nos. 11, 13. Six years later, the Forest 8 Service issued the SIR modifying the project. First Am. Compl. 9 (“FAC”) ¶ 60, ECF No. 32. In response, Plaintiffs filed an 10 amended complaint, alleging the project sill violates the ESA, 11 the NFMA, NEPA, HFRA, and the APA. See FAC. 12 On February 10, 2020, Plaintiffs filed a motion to 13 supplement the administrative record. See ECF No. 38. The Court 14 granted it in part and denied it in part. See Order, ECF No. 55. 15 The administrative record for Plaintiffs’ NEPA failure-to- 16 supplement claim was supplemented with a September 2016 update to 17 the Forest Service’s Resource Planning Act Assessment and a June 18 2016 resource detailing how to account for climate change when 19 conducting a NEPA analysis. Id. The administrative record for 20 Plaintiffs’ ESA claim was supplemented with a December 2018 paper 21 on the interim baseline adjustment for spotted owl critical 22 habitat. Id. 23 The parties now move for summary judgment. Plaintiffs also 24 move to supplement the administrative record and move to strike. 25 26 II. OPINION 27 A. Motion to Supplement Administrative Record 28 The APA “provides a right to judicial review of all ‘final 1 agency action of which there is no other adequate remedy in a 2 court.’” Bennett v. Spear, 520 U.S. 154, 175 (1997). 3 Generally, “courts reviewing an agency decision are limited to 4 the administrative record.” Lands Council v. Powell, 395 F.3d 5 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co. v. 6 Lorion, 470 U.S. 729, 743–44 (1985)). A “records review” case 7 “typically focuses on the administrative record in existence at 8 the time of the [agency’s] decision and does not encompass any 9 part of the record that is made initially in the reviewing 10 court.” Id. at 1029–30 (quoting Southwest Ctr. for Biological 11 Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 12 1996)). 13 The Forest Service and Fish and Wildlife lodged 14 administrative records with the Court on December 9, 2019. See 15 Notice of Lodging, ECF Nos. 34, 59. The Court entered a 16 scheduling order on January 6, 2020, setting forth deadlines by 17 which Plaintiffs were required to move to supplement or complete 18 the administrative records. See Stip. of Joint Briefing 19 Schedule and Order ¶ 1, ECF No. 37. The scheduling order also 20 set a briefing schedule for cross-motions for summary judgement 21 in the event a motion to supplement the administrative record 22 was not filed. Id. ¶ 2. Plaintiffs filed a motion to 23 supplement the administrative record on February 10, 2020, which 24 vacated the summary judgment briefing schedule. See Mot. to 25 Supp. Admin. Record, ECF No. 38. The Court decided that motion 26 on May 28, 2020. See Order, ECF No. 55. Then, on June 12, 27 2020, the Court adopted the parties’ proposed briefing schedule 28 for cross-motions for summary judgment. See Stip. and Order, 1 ECF No. 58. That schedule did not provide for additional 2 motions to supplement the administrative record. Id. 3 Plaintiffs now request that the administrative record be 4 supplemented with two additional documents. See Mot. to Supp. 5 Admin. Record at 2; Reply at 2, ECF No. 80 (withdrawing a third 6 document from Plaintiffs’ request). Plaintiffs filed this 7 motion concurrent with their motion for summary judgment. 8 Plaintiffs did not move to alter the scheduling order to permit 9 a second motion to supplement the briefing schedule. Thus, 10 Defendants filed their motions for summary judgment per the 11 briefing schedule and while this request to supplement was still 12 pending. As a result, Defendants did not consider these 13 additional documents in preparing their motions for summary 14 judgment. Moreover, Plaintiffs make no attempt to identify good 15 cause for this delay or otherwise explain why the documents with 16 which they now seek to supplement the administrative record were 17 not included in their original motion to supplement. See Fed. 18 R. Civ. P. 16(b)(4) (“A schedule may be modified only for good 19 cause and with the judge’s consent.”); Hardy v. Cnty. of El 20 Dorado, No. 2:07-cv-0799-JAM-EFB, 2008 WL 3876329, at *1 (E.D. 21 Cal. 2008) (noting “good cause” standard for modifying a 22 scheduling order). 23 Simply put: Plaintiffs missed their window of opportunity 24 for filing this motion and fail to present a reason for the 25 Court to excuse this delay. Accordingly, Plaintiffs’ motion to 26 supplement the administrative record is DENIED. 27 B. Motion to Strike 28 Plaintiffs move to strike a portion of the Forest Service 1 and Fish and Wildlife’s memorandum in support of their cross- 2 motion for summary judgment that they argue “advances a post hoc 3 argument in support of the Forest Service’s action” that is not 4 found in the 2012 FEIS and “relies on scientific references not 5 found in the administrative records.” Mot. to Strike at 2. 6 Specifically, Plaintiffs request that the Court strike the 7 portion of the memorandum that begins on line eleven of page 8 eighteen and ends on line twenty-two of the same page. Id. 9 That portion of the memorandum argues that the Forest Service 10 considered and rejected the position that thinning would result 11 in greater fire intensity. See Defs.’ Mot. Summ. J. at 18. In 12 so arguing, Defendants reference two studies: Estes et al. 2012 13 and Weatherspoon 2006, and cite to FS-AR 00000061. Id. 14 The parties agree that, “courts may not accept appellate 15 counsel’s post hoc rationalizations for agency action.” See 16 Defs.’ Opp’n Strike at 4, ECF No. 87 (quoting Or. Nat. Res. 17 Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1120 (9th 18 Cir. 2010) (internal quotation marks and citation omitted)). 19 And that “[i]t is well established that an agency’s action must 20 be upheld, if at all, on the basis articulated by the agency 21 itself.” Id. Nonetheless, the Forest Service and Fish and 22 Wildlife oppose the motion, arguing that their response 23 regarding thinning and fire intensity is not a post hoc 24 rationalization because it predates the Forest Service’s 25 approval of the Pettijohn Project by seven months and came from 26 the agency itself. Defs.’ Opp’n Strike at 4. Thus, it does not 27 reflect a post-decisional litigation position developed by 28 counsel. Id. The Court agrees. 1 The Forest Service approved the Pettijohn Project through a 2 final ROD in March 2013. FS-AR 000307-30. Nine months prior, 3 the Forest Service released an FEIS, which was subject to the 4 Forest Service’s pre-decisional administrative review process. 5 FS-AR 000340-41; 36 C.F.R. § 218.5 (2012); see generally 36 6 C.F.R. pt. 218, subpt. A (2012). Plaintiffs submitted 7 objections to the FEIS on July 3, 2012, as part of that process. 8 FS-AR 000130-75. Plaintiffs objected to the Forest Service’s 9 claim that the increased risk of higher surface fire caused by 10 the thinning is negligible when compared to the “desirable 11 effects of reductions in ladder fuels and potential wildfire 12 threats to older larger trees.” FS-AR 000061. In response, the 13 Forest Service explained that, in terms of fire risk, any 14 reduction in canopy cover by the Pettijohn Project will be 15 outweighed by the reduction in live and dead fuel loading and 16 cited to Estes et al. 2012 and Weatherspoon 2006. Id. This 17 response came seven months before the project was approved by 18 the final ROD. See FS-AR 000326-27. 19 Forest Service and Fish and Wildlife quote to this response 20 in the contested portion of their memorandum. See Defs.’ Mot. 21 Summ. J. at 18 (quoting FS-AR 000061). They were not wrong to 22 do so. The Forest Service’s response to Plaintiffs’ objections 23 during the administrative process did not assert a new rationale 24 for the Pettijohn Project. The FEIS acknowledged the 25 possibility that thinning might “result in faster mid-flame wind 26 speeds and decreased fuel moistures, which can effect fire 27 behavior.” FS-AR 000878. The FEIS also noted that thinning 28 from below retains the overstory canopy, which would “minimiz[e] 1 the potential changes to the fire environment post-treatment,” 2 while decreasing the potential for crown fires. Id. The 3 studies cited to by the Forest Service merely confirm that the 4 project’s effect on surface fuel moisture will be negated by the 5 degree to which it reduces ladder fuels. See FS-AR 000061 (“The 6 conclusion presented in the fire and fuel specialist report is 7 consistent with the findings of these studies.”). 8 Moreover, the Forest Service and Fish and Wildlife did not 9 rely on extra-record evidence in their memorandum. The lines 10 Plaintiffs seek to strike are found in the Forest Service’s 11 administrative record. See Defs.’ Mot. Summ. J. at 18 (quoting 12 FS-AR 000061). Thus, the Court finds no issue with the Forest 13 Service and Fish and Wildlife relying on that portion of the 14 record to oppose Plaintiffs’ hard-look NEPA claim. See 5 U.S.C. 15 § 706 (noting “the court shall review the whole record or those 16 parts of it cited by a party” in reviewing agency action under 17 the APA). The fact that the studies themselves were omitted 18 from the administrative record is of no consequence. See Defs.’ 19 Opp’n Strike at 5. The studies are sufficiently summarized in 20 the Forest Service’s response to Plaintiffs’ objection and they 21 were considered by the decision-maker before the project was 22 authorized. See Keli McElroy Decl. ¶¶ 3–4, ECF No. 87-1. This 23 suffices for them to be considered part of the administrative 24 record under the APA. See Thompson v. U.S. Dep’t of Labor, 885 25 F.2d 551, 555 (9th Cir. 1989) (“The whole administrative record, 26 therefore, consists of all documents and materials directly or 27 indirectly considered by agency decision-makers . . . .) 28 (emphasis in original) (internal quotation marks and citation 1 omitted)). 2 Thus, the Forest Service and Fish and Wildlife did not err 3 in referring to their response to Plaintiffs’ objections and 4 citing the Estes and Weatherspoon studies. Accordingly, 5 Plaintiffs’ motion to strike is DENIED. 6 C. Cross-Motions for Summary Judgment 7 Plaintiffs move for summary judgment on their claims 8 against the Forest Service and Fish and Wildlife. See Pls.’ 9 Mot. Summ. J. They argue that the Forest Service violated NEPA 10 by failing to take a hard look at the effects of the project and 11 failing to prepare a supplemental EIS; that the project is 12 inconsistent with standards set forth in the NFMA and HFRA; and 13 that Fish and Wildlife failed to use the best available 14 scientific data available, erroneously determined no adverse 15 modification of critical habitat would occur, and failed to 16 reinitiate consultation, in violation of the ESA. Id. at 7–25. 17 The Forest Service, Fish and Wildlife, and the Resource Council 18 dispute this and argue that each of Plaintiffs’ claims fail. 19 See Defs.’ Mot. Summ. J.; Def-Interv.’s Mot. Summ. J. 20 1. Standard of Review 21 Agency decisions that allegedly violate the ESA, the NFMA, 22 NEPA, and HRFA are reviewed under the APA. See All. for the 23 Wild Rockies, 907 F.3d at 1112. A court conducting APA judicial 24 review does not resolve factual questions, but instead 25 determines “whether or not as a matter of law the evidence in 26 the administrative record permitted the agency to make the 27 decision it did.” Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 28 (D.D.C. 2006) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 1 766, 769 (9th Cir. 1985)). In a case involving review of a 2 final agency action under the [APA] . . . the standard set forth 3 in Rule 56(c) does not apply because of the limited role of a 4 court in reviewing the administrative record.” Id. at 89. In 5 this context, summary judgment becomes the “mechanism for 6 deciding, as a matter of law, whether the agency action is 7 supported by the administrative record and otherwise consistent 8 with the APA standard of review.” Id. at 90. 9 The APA directs reviewing courts to “hold unlawful and set 10 aside agency action, findings, and conclusions found to 11 be . . . arbitrary, capricious, an abuse of discretion, or 12 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A)- 13 (D). Judicial review under the “arbitrary and capricious” 14 standard is narrow and deferential. Motor Vehicle Mfrs. Assn of 15 U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 16 (1983). A court may not “substitute its judgment for that of 17 the agency.” Id. “This deference is highest when reviewing an 18 agency’s technical analyses and judgments involving the 19 evaluation of complex scientific data within the agency’s 20 technical expertise.” League Of Wilderness Defs. Blue Mountains 21 Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 22 2010) (citation omitted). 23 Agencies are required to “examine the relevant data and 24 articulate a satisfactory explanation for its action.” Turtle 25 Island, 878 F.3d at 732 (internal quotation marks and citation 26 omitted). An action is arbitrary and capricious where “the 27 agency has relied on factors which Congress has not intended it 28 to consider, entirely failed to consider an important aspect of 1 the problem, offered an explanation for its decision that runs 2 counter to the evidence before the agency, or if the agency’s 3 decision is so implausible that it could not be ascribed to a 4 difference in view or the product of agency expertise.” Id. at 5 732–33 (internal quotation marks and citation omitted). 6 2. Analysis 7 a. Abandoned Claim 8 As an initial matter, Plaintiffs have abandoned one of 9 their ESA claims against Fish and Wildlife. See Pls.’ Mot. for 10 Summ. J. at 19, n.8. Plaintiffs withdraw Claim IV, which 11 alleges Fish and Wildlife violated § 1536(b)(4) of the ESA by 12 issuing an arbitrary and capricious incidental take statement. 13 Id.; see also FAC ¶¶ 137–47. Plaintiffs have nine remaining 14 claims. Each is analyzed below. 15 b. NEPA Claims 16 Plaintiffs’ seventh and ninth claims assert that the Forest 17 Service violated NEPA by failing to take a hard look at the 18 Pettijohn Project’s direct, indirect, and cumulative impacts and 19 failing to prepare a supplemental analysis based upon 20 significant new information or circumstances. See FAC ¶¶ 166– 21 96, 203–16. Plaintiffs argue the Forest Service inadequately 22 analyzed the project’s alternatives and failed to consider the 23 actual risk of catastrophic wildfire, the effects of fire and 24 tree removal on spotted owl habitat, and the impact on 25 greenhouse gas emissions. Pls.’ Mot. for Summ. J. at 7–16. 26 Plaintiffs also argue the Forest Service failed to consider new 27 information in the environmental baseline and should have 28 conducted supplemental analysis using that new information. Id. 1 at 16–17. 2 (i) Reasonable Alternatives 3 While Plaintiffs’ FAC alleges two NEPA claims and an HFRA 4 old growth conditions claim, see FAC ¶¶ 166-196, 197-202, 203– 5 216, Plaintiffs argue in their motion for summary judgment that 6 the Forest Service also “failed to give full and meaningful 7 consideration to all reasonable alternatives.” Pls.’ Mot. for 8 Summ. J. at 7–9. The Forest Service and Fish and Wildlife 9 counter that because Plaintiffs did not allege a reasonable 10 range of alternatives NEPA claim in their FAC, they cannot 11 pursue such a claim for the first time now. Defs.’ Mot. for 12 Summ. J. at 10. The Court agrees. 13 NEPA’s regulations require an agency to “[rigorously 14 explore and objectively evaluate all reasonable alternatives, 15 and for alternatives which were eliminated from detailed study, 16 briefly discuss the reasons for their having been eliminated.” 17 40 C.F.R. § 1502.14. This obligation to consider alternatives 18 under NEPA has been modified by HFRA, which directs the Forest 19 Service to consider no more than three alternatives: (1) the 20 proposed action; (2) no action; and, in certain cases, (3) an 21 action alternative. 16 U.S.C. § 6514(c)(1)(C). A reasonable 22 alternatives claim is distinct from a hard-look claim under 23 NEPA. See Te-Moak Tribe of Western Shoshone of Nev. v. U.S. 24 Dep’t of the Interior, 608 F.3d 592, 599–602 (9th Cir. 2010) 25 (analyzing hard-look and reasonable alternatives claims 26 separately). 27 Reasonable alternatives are not mentioned in Plaintiffs’ 28 HFRA claim. See FAC ¶¶ 197–202. Nor are they mentioned in 1 Plaintiffs’ NEPA claims. See FAC ¶¶ 166–96, 203–16. However, 2 Plaintiffs do discuss the no-action alternative in one NEPA 3 claim. See FAC ¶ 172. There, Plaintiffs argue the Forest 4 Service “failed to adequately analyze the no-action 5 alternative.” Id. This allegation is different in kind from 6 one that alleges the Forest Service did not conduct sufficient 7 analysis of reasonable alternatives. Plaintiffs did not seek 8 leave to amend the FAC to add a reasonable alternatives claim, 9 and the Forest Service was not on notice that Plaintiffs 10 intended to bring this claim. Summary judgment “is not a 11 procedural change to flesh out inadequate pleadings.” Wasco 12 Products v. Southwall Technologies, 435 F.3d 989, 993 (9th Cir. 13 2006). Thus, to the extent Plaintiffs seek to assert a 14 reasonable alternatives claim under NEPA or HFRA, that claim is 15 procedurally barred. 16 By contrast, the Court considers the no-action alternative 17 claim sufficiently pled. See Fed. R. Civ. P. 8(a) (requiring a 18 short and plain statement of the claim showing the pleader is 19 entitled to relief). Nonetheless, the Forest Service considered 20 the no-action alternative in the FEIS. FS-AR 000380. And 21 adequately so. “Although brief, the [Forest Service’s] 22 discussion [is] sufficient because the No Action Alternative 23 maintains the status quo . . . .” Te-Moak, 608 F.3d at 602 24 (finding defendant’s one-paragraph consideration of the no- 25 action alternative sufficient). Moreover, Plaintiffs do not 26 contest the adequacy of the Forest Service’s consideration of 27 the no-action alternative in their briefing. See Pls.’ Mot. for 28 Summ. J. at 7 (“In this case, the USFS considered only the 1 ‘proposed’ and ‘no-action’ alternatives.”); Opp’n to Fed. Defs.’ 2 Mot. at 4–6. Thus, the failure to adequately consider the no- 3 action alternative claim fails. 4 (ii) Hard Look 5 In assessing whether an agency took a hard look at a 6 proposed action, courts “employ a rule of reason standard to 7 determine whether the EIS contains a reasonably thorough 8 discussion of the significant aspects of the probable 9 environmental consequences.” Allen, 615 F.3d at 1130 (internal 10 quotation marks, citation, and alterations omitted). Courts 11 “must uphold the agency decision as long as the agency has 12 considered the relevant factors and articulated a rational 13 connection between the facts found and the choice made.” Id. 14 (internal quotation marks and citation omitted). Here, the 15 analyses in the FEIS and the supporting specialist reports on 16 the Pettijohn Project’s effects on fire, fuels, and wildlife 17 amount to a sufficiently thorough discussion of the probable 18 environmental consequences. See FS-AR 000401–44 (FEIS); FS-AR 19 002348-87, FS-AR 002341-47 (fire and fuels specialist report and 20 supplement); FS-AR 002705-820, FS-AR 002672-99 (BA and 21 supplement). 22 The Forest Service relied on scientific literature and 23 conducted two types of modeling to assess the project’s 24 potential impact on fire behavior. See FS-AR 000401-04 25 (modeling); FS-AR 000591-94 (modeling and scientific 26 literature); FS-AR 002381–84 (scientific literature). One model 27 examined the potential effects at the scale of the entire 28 21,500-acre project area immediately following project 1 implementation, and the other considered effects at a treatment- 2 level scale over time. FS-AR 000401. Both models concluded 3 that the Pettijohn Project would reduce the risk of stand- 4 replacing wildfires that burn at high intensity through the 5 crowns of the trees. See FS-AR 000411–15. 6 Plaintiffs argue that the Forest Service ignored relevant 7 science and should have applied its expertise differently with 8 respect to the model that examined the project’s effect on fire 9 behavior over the entire project area. See Pls.’ Mot. for Summ. 10 J. at 9–13. Plaintiffs question the Forest Service’s decision 11 to use 90th percentile fuel moisture, wind, and weather data, 12 arguing that there is “conflicting scientific opinion about the 13 severity of fires in the Klamath Mountains . . . .” Id. at 10. 14 Plaintiffs also assert that the Forest Service ignored relevant 15 science by not modeling higher surface fuel temperature under 16 the proposed action. See id. at 10–13. 17 However, regarding the severity of fires in the area, the 18 FEIS expressly addressed the two studies cited by Plaintiffs 19 (Miller, 2012; Odion et al., 2004). See FS-AR 000406; FS-AR 20 000004–07 (the Forest Service’s review of both studies). The 21 Forest Service considered each study, but ultimately decided to 22 rely on its own “[s]ite-specific observations of fuels 23 conditions [which] support the likelihood of risk of higher 24 severity fires due to changes in species compositions and size- 25 and age-class structures.” Id. And 90th percentile conditions, 26 which model late summer fires, were used “because this is the 27 driest time of the year and the period when most catastrophic 28 wildfires occur in the project vicinity.” FS-AR 000403. 1 As for the surface fuel temperatures used in the modeling, 2 the Forest Service considered whether thinning would increase 3 surface fuel temperatures and result in greater fire intensity. 4 See FS-AR 0000061. Relying on recent studies, the Forest 5 Service concluded that the surface fuel moisture differences 6 between unthinned and thinned stands are minor and the negative 7 effects on microclimate of thinning the stand are outweighed by 8 the reduction in live and dead fuel loading. Id. (citing Estes 9 et al., 2012; Weatherspoon, 2006). The FEIS explains, “thinning 10 with proper fuels consideration can reduce fire-induced 11 mortality to lower levels than would be expected without 12 treatment.” FS-AR 000407 (citing Graham et al., 1999; Raymond 13 and Peterson, 2005). 14 The Court’s review of the Forest Service’s modeling and its 15 consideration of scientific literature is subject to significant 16 deference. See, e.g., Lands Council v. McNair, 629 F.3d 1070, 17 1074 (9th Cir. 2010) (holding courts apply their most 18 deferential standard of review in “reviewing scientific 19 judgments and technical analyses within the agency’s 20 expertise”). Under this deferential approach, courts do not 21 “act as a panel of scientists, instructing the agency, choosing 22 scientific studies, and ordering the agency to explain every 23 possible scientific uncertainty.” Id. (internal quotation marks 24 and citation omitted). This is true even when conflicting 25 opinions exist. EPIC v. U.S. Forest Serv., 451 F.3d 1005, 1017 26 (9th Cir. 2006) (“When specialists express conflicting views, we 27 defer to the informed discretion of the agency.”). Thus, the 28 Forest Service’s application of 90th percentile conditions in 1 its modeling and its determination that surface fuel moisture 2 differences are minimal are both permissible. These decisions 3 were informed and reasonable. See Allen, 615 F.3d at 1130. 4 It is similarly within the Forest Service’s discretion to 5 rely on studies it deems reliable. See Weldon, 697 F.3d at 1043 6 (courts “defer to agency decisions so long as those conclusions 7 are supported by studies that the agency deems reliable.”). In 8 doing so here, the Forest Service did not act arbitrarily or 9 capriciously. See EPIC, 451 F.3d at 1016–17 (rejecting the 10 argument that the Forest Service failed to address the 11 scientific literature that directly disputes the allegations 12 that commercial logging in mature stands will decrease fire 13 danger). 14 Regarding the effect of fire on the spotted owl and its 15 habitat, Plaintiffs argue that the Forest Service ignored 16 scientific literature indicating that spotted owls continue to 17 use recently burned forests and the model examining the 18 potential effects on the entire project area forecasted only 19 seven percent fewer burned acres of forest. Pls.’ Mot. for 20 Summ. J. at 13. However, the FEIS and BA examined the Pettijohn 21 Project’s potential effects on the spotted owl and its habitat. 22 See FS-AR 000435–42; FS-AR 002736-50. Notably, the Forest 23 Service considered the study cited by Plaintiffs, explaining 24 that, although the study showed spotted owls used recently 25 burned habitat because it made prey more accessible by opening 26 understory habitat, the study also showed that spotted owls 27 “avoided high and moderate burn severity areas for roosting, and 28 presumably for nesting.” FS-AR 000835 (citing Bond, 2009). 1 This satisfies NEPA’s hard-look mandate. See Conservation Cong. 2 v. U.S. Forest Serv., No. 2:12-cv-02800-TLN-CKD, 2014 WL 3 2092385, at *14 (E.D. Cal. May 19, 2014) (rejecting the argument 4 that the Forest Service insufficiently responded to studies 5 showing the benefits of wildfire to spotted owl habitat). 6 Moreover, rather than claiming that burned areas provide no 7 habitat for the spotted owls, the FEIS notes that the “loss of 8 overstory structure to high severity fire [] reduce[s] the 9 quality of nesting/roosting habitat. This finding is consistent 10 with the Roberts, et al. (2011) study.” FS-AR 000835. 11 As for Plaintiffs’ assertion that the model demonstrates 12 the project will have an insignificant effect on the number of 13 acres burned, the model did not only project active crown fires 14 would decrease by seven percent across the entire project area. 15 See FS-AR 000411-12. The model also demonstrates that the 16 project would decrease passive crown fires by eight percent, 17 while increasing surface-level fires by fifteen percent. Id. 18 In addition, the modeling of treatment-level effects supports 19 the FEIS’s conclusion that fire events in the thinned stands 20 would burn at much lower intensity and would largely preserve 21 enough canopy cover to retain spotted owl nesting and roosting 22 habitat. FS-AR 000413-15. Thus, evidence in the record 23 supports the FEIS’s finding that the project would benefit 24 spotted owl habitat in the long-term by reducing the risk of 25 stand-replacing wildfires. 26 Insofar as Plaintiffs contend the Forest Service’s analysis 27 of greenhouse gas effects is flawed and inadequate, this 28 argument is procedurally precluded. See Pls.’ Mot. for Summ. J. 1 at 14–16. Plaintiffs did not raise any issues related to 2 greenhouse gas emissions during the administrative process. 3 Thus, Plaintiffs failed to “structure their participation in the 4 agency’s decision[-]making process so as to alert the agency to 5 the parties’ position and contentions, in order to allow the 6 agency to give the issue meaningful consideration.” Protect our 7 Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1036 (9th Cir. 2019). 8 This failure to notify precludes Plaintiffs from challenging the 9 FEIS’s analysis of those emissions for the first time here. 10 Id.; see also McNair, 629 F.3d at 1076. Plaintiffs concede this 11 point. Pls.’ Opp’n to Fed. Defs.’ Mot. for Summ. J. & Reply 12 (“Opp’n to Fed. Defs.’ Mot.”) at 6 n.7, ECF No. 78. 13 Plaintiffs go to great lengths to challenge different 14 aspects of the Forest Service’s analyses of wildfires and tree 15 removal and their effects on spotted owl habitat and greenhouse 16 gas emission, but in doing so, they miss the forest for the 17 trees. So long as the Forest Service considered the relevant 18 factors and articulated a rational connection between the facts 19 found and choices made, the Court must uphold the agency 20 decision. See Allen, 615 F.3d at 1130. Here, the Forest 21 Service met that requirement. Its analysis is reasoned; it took 22 a hard look at the probable environmental consequences of the 23 Pettijohn Project. As a result, the Court gives the Forest 24 service the deference to which it is entitled. 25 (iii) Supplemental Analysis 26 NEPA’s implementing regulations require supplementation of 27 an EIS when “[t]here are significant new circumstances or 28 information relevant to environmental concerns and bearing on 1 the proposed action or its impacts.” 40 C.F.R. 2 § 1502.9(c)(1)(ii). However, supplementation is not required 3 “every time new information comes to light after an EIS is 4 finalized.” Marsh v. Or. Res. Council, 490 U.S. 360, 373 5 (1989). Requiring otherwise “would render agency decisionmaking 6 intractable, always awaiting updated information only to find 7 the new information outdated by the time a decision is made.” 8 Id. Here, too, courts apply a “rule of reason” in assessing 9 whether “the new information is sufficient to show that the 10 remaining action will affect the quality of the human 11 environment in a significant manner or to a significant extent 12 not already considered.” Id. at 374 (internal quotation marks 13 and citation omitted). “Whether new information requires 14 supplemental analysis is a ‘classic example of a factual dispute 15 the resolution of which implicates substantial agency 16 expertise.’” Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 17 1113, 1130 (9th Cir. 2012) (quoting Marsh, 490 U.S. at 376). 18 Plaintiffs first argue that the Forest Service failed to 19 consider new information in the environmental baseline. See 20 Pls.’ Mot. for Summ. J. at 16–17. In December 2018, Fish and 21 Wildlife released an updated accounting of the spotted owl 22 habitat loss from wildfires in the Shasta-Trinity National 23 Forest. See FWS-AR SUPAR-001. This interim baseline adjustment 24 reduced the estimated amount of nesting, roosting, and foraging 25 habitat in the forest. FWS-AR SUPAR-008, Table 6. Plaintiffs 26 argue this affects the FEIS’s analysis of the direct and 27 indirect effects of the project’s fuel management activities on 28 spotted owl habitat. 1 This argument lacks merit. To assess the project’s 2 potential effects on spotted owl habitat, the FEIS examined a 3 25,274-acre spotted owl action area, reflecting a “1.3-mile 4 buffer around all areas containing suitable nesting or roosting 5 habitat that are proposed for treatment.” FS-AR 000419. None 6 of the area affected by wildfires considered in the interim 7 baseline adjustment overlap with the 25,274-acre spotted owl 8 action area. Defs.’ Mot. for Summ. J. at 24. Plaintiffs do not 9 dispute this. Id.; see also Opp’n to Fed. Defs.’ Mot. at 11-12. 10 As a result, the information in the interim baseline adjustment 11 had no effect on the FEIS’s analysis of the project’s potential 12 effects on spotted owl habitat. Thus, the Forest Service’s 13 decision to not supplement the FEIS in response to the interim 14 baseline adjustment was neither arbitrary nor capricious. 15 Plaintiffs also argue that the Forest Service should have 16 updated the project’s greenhouse gas analysis in a supplemental 17 EIS considering the agency’s “updated guidance” for assessing 18 greenhouse gas emissions. See Pls.’ Mot. for Summ. J. at 17. 19 Yet, Plaintiffs do not explain how this guidance constitutes new 20 information affecting the FEIS’s assessment of greenhouse gas 21 emissions in a way not previously considered. Plaintiffs fail 22 to identify new information sufficient to show that the 23 Pettijohn Project will affect the environment in a significant 24 way that is not already addressed by the FEIS. 25 In sum, the Forest Service has elucidated the possible 26 impacts of the Pettijohn Project with a sufficient degree of 27 detail. It has adequately analyzed the no-action alternative, 28 taken a hard look at the different impacts of the project, and 1 did not need to conduct the supplemental analyses Plaintiffs 2 allege. The Pettijohn Project’s FEIS is not arbitrary, 3 capricious, an abuse of discretion, or otherwise not in 4 accordance with the law. See 5 U.S.C. § 706(2). The Court 5 GRANTS summary judgment in favor of the Forest Service, Fish and 6 Wildlife, and the Resource Council and against Plaintiffs on 7 Plaintiffs’ seventh and ninth NEPA claims. 8 c. NFMA Claims 9 The relevant land management plan in this case is the 10 Shasta-Trinity National Forest Land and Resource Management Plan 11 (“LRMP”). Plaintiffs’ fifth, sixth, and tenth claims assert 12 that the Forest Service violated the NFMA by failing to satisfy 13 the standards set forth in the LRMP for snags, down logs, and 14 old-growth retention, and for failing to ensure the Pettijohn 15 Project is consistent with the 2011 Recovery Plan. See FAC 16 ¶¶ 148–65, 217–21. Plaintiffs argue the Pettijohn Project will 17 not maintain snags and down logs at naturally occurring levels 18 and that the Forest Service has failed to establish the 19 project’s fire reduction efforts will focus on younger stands. 20 Pls.’ Mot. for Summ. J. at 17–18. 21 Regarding snags and down logs, the parties agree that the 22 LMRP directs the Forest Service to maintain “dead/down material, 23 hardwoods, and snags at naturally occurring levels.” See Pls.’ 24 Mot. for Summ. J. at 18 (citing FS-AR 004866); Defs.’ Mot. Summ. 25 J. at 25. This standard applies across all LSRs in the Shasta- 26 Trinity National Forest. See FS-AR 004773 (the LMRP 27 “establishes Forest-wide standards and guidelines to fulfill the 28 NFMA requirements”). Thus, it is not restricted to a project 1 area or the specific areas within the FMZs from which snags will 2 be removed. Under the Pettijohn Project, no snags will be 3 removed as part of the thinning treatment. Pls.’ Mot. for Summ. 4 J. at 18 (citing FS-AR 00984; FS-AR 001164). Snags up to 24 5 inches in diameter within 150 feet of a road in a FMZ will be 6 cut and left on the ground for safety purposes. FS-AR 000792 7 (FMZ prescriptions). Beyond that 150 feet, the size class of 8 snags that may be cut is progressively smaller. Id. 9 “‘It is well-settled that the Forest Service’s failure to 10 comply with the provisions of a Forest Plan is a violation of 11 [the] NFMA’ and for an agency action to comply with the NFMA, a 12 reviewing court must be ‘[]able to determine from the 13 [administrative] record that the agency is complying with the 14 forest plan standard[s].’” Conservation Cong. v. U.S. Forest 15 Serv., No. 2:14-cv-02228-GEB-AC, 2015 WL 1295914, at *10 (E.D. 16 Cal. March 23, 2015) (quoting Native Ecosystems Council v. U.S. 17 Forest Serv., 418 F.3d 953, 961–62 (9th Cir. 2005)). The thin- 18 from-below treatments provide for no snags other than hazards to 19 be cut, and only snags within certain distances of roads and 20 meeting certain diameter thresholds to be cut in the FMZs. 21 Neither prescription violates the LRMP. See Conservation Cong. 22 v. U.S. Forest Serv., 686 Fed.Appx. 392, 394 (9th Cir. 2017) (no 23 violation of the LRMP snag standard where snags would only be 24 removed if deemed a safety hazard); Conservation Cong., 2014 WL 25 2092385, at *12 (no violation of the LRMP snag standard where 26 removal would occur in 150-foot FMZ corridor). 27 Plaintiffs’ reliance on Or. Nat. Res. Council Fund v. 28 Brong, 492 F.3d 1120 (9th Cir. 2007) is misplaced. See Opp’n to 1 Fed. Defs.’ Mot. at 14–15. There, the relevant forest plan 2 expressly limited the removal of large snags in LSRs. Id. at 3 1128. And the project in question allowed for the removal of a 4 significant number of large snags in LSRs. Id. That is not the 5 case here. Only hazards will be cut in the treatment areas and 6 only smaller snags will be removed from roadside areas and the 7 FMZs. See FS-AR 00984; FS-AR 001164; FS-AR 000792. 8 In addition, Brong’s snag-retention analysis was “grossly 9 misleading” because the agency determined the amount of large 10 snag retention was sufficient by averaging salvaged and non- 11 salvaged areas together across all the acres included in the 12 logging. 492 F.3d at 1129–30. This finding is also inapposite 13 because, here, the Forest Service analyzed snag retention at the 14 project-level. An agency silviculturist used “forest stand- 15 level vegetation and fuels data collected during stand exams” to 16 quantitatively assess “changes in amount of snag and down log 17 assemblage habitat” from the project. FS-AR 002659. The data 18 was also used to qualitatively assess any “changes in density of 19 snags and/or down logs.” Id. That analysis found that the 20 project’s removal of snags would be insignificant in the thinned 21 stands and would not meaningfully affect snag density at the 22 landscape scale in the FMZs. FS-AR 002660. Thus, the Forest 23 Service did not arbitrarily conclude that the Pettijohn Project 24 complied with the NFMA’s snag and down log standards. 25 The FEIS also notes that, “[a]lthough the FMZs would 26 experience a reduction in standing snags as a result of the 27 Pettijohn Project, Forest-wide aerial survey data indicates an 28 additional 591,000 acres of snag and down log habitat has been 1 created on the Forest since 1994 due to wildfire and insect and 2 disease.” FS-AR 00434. And modeling “indicates that ongoing 3 tree mortality within adjacent untreated stands as well as 4 within the thinned stands would provide relatively high snag 5 densities throughout the project area.” FS-AR 000804. 6 Therefore, it was reasonable for the Forest Service to conclude 7 that, while “overall snag density would be reduced,” it would 8 remain “well within Forest Plan guidelines.” FS-AR 000436. 9 This conclusion is “entitled to substantial deference.” Weldon, 10 697 F.3d at 1056. 11 Regarding the NWFP’s requirement that silvicultural fire- 12 reduction activities focus on younger stands, see FS-AR 005989, 13 there is no evidence in the record that the Pettijohn Project 14 runs afoul of that requirement. The NWFP acknowledged the 15 increased risk of fire in the Klamath Province and, as a result, 16 allowed for fire-reduction efforts that include controlled 17 logging. See FS-AR 005988–89; see also Allen, 615 F.3d at 1131 18 (“[T]he NWFP permits logging activities in LSRs . . . .”). 19 Plaintiffs argue logging and thinning “will decrease moisture 20 content and increase the likelihood of fire.” Pls.’ Mot. for 21 Summ. J. at 18. However, as discussed in the NEPA section 22 above, those claims were adequately considered and properly 23 rejected by the Forest Service. The relevant analyses concluded 24 the project will promote old-growth conditions and reduce the 25 risk of stand-replacing wildfire. Thus, the Forest Service 26 determined the project would comply with the NWFP and the 27 Regional Ecosystem Office concurred. FS-AR 002069. “Far from 28 conflicting with the protection of LSRs, carefully controlled 1 logging is a tool expressly authorized by the NWFP for long-term 2 LSR maintenance.” Allen, 615 F.3d at 1131. This determination 3 “goes to the very heart of the Forest Service’s expertise.” Id. 4 at 1134. 5 Accordingly, with respect to the project’s effects on snags 6 and down logs and its compliance with old-growth standards, the 7 Court does not find that the Forest Service acted arbitrarily or 8 capriciously in failing to comply with the NFMA. Its decision- 9 making is neither erroneous nor inconsistent with the LRMP. See 10 Forest Guardians, 329 F.3d at 1098. The Court GRANTS summary 11 judgment in favor of the Forest Service, Fish and Wildlife, and 12 the Resource Council and against Plaintiffs on Plaintiffs’ 13 fifth, sixth, and tenth NFMA claims. 14 d. HFRA Claim 15 Plaintiffs’ eighth claim asserts that the Forest Service 16 violated HFRA by failing to ensure the Pettijohn Project 17 maintains or restores old-growth forests. See FAC ¶¶ 197–202. 18 Plaintiffs argue that approximately seventy-five percent of the 19 areas to be treated are mature and old-growth stands and the 20 project will treat “roughly 2,916 acres by ‘thinning from 21 below,’ removing larger, fire-resilient trees, decreasing 22 moisture in surface fuels, and increasing fire risk.” Pls.’ 23 Mot. for Summ. J. at 19. 24 Plaintiffs’ argument lacks merit. Of the thinning approved 25 by the Pettijohn Project, approximately twenty-five percent will 26 be in younger, mature stands and seventy-five percent will be in 27 “mature and selected old-growth.” FS-AR 002561. This does not 28 violate HFRA. The silviculture specialist report explains that, 1 “[t]rees selected for removal will be suppressed trees and those 2 specifically designated to release the growth of desirable 3 species and tree sizes.” Id. As a result, “[g]rowth is 4 expected to accelerate on the residual stand component.” Id. 5 Thinning will also lead to “[i]ncreased stand vigor, reduced 6 stand mortality, and reduced stand susceptibility to insect and 7 disease.” Id. Rather than harming old-growth stands, the 8 thinning of younger trees will contribute to the development of 9 old-growth characteristics and improve stand resiliency. Id. 10 Plaintiffs argue that, critical to the HFRA inquiry is 11 whether the project will promote “fire resilient stands.” Opp’n 12 to Fed. Defs.’ Mot. at 16 (citing 16 U.S.C. § 6512(f)(1)). As 13 illustrated by portions of the record discussed above, the 14 project meets that requirement. See FS-AR 000411–15. There is 15 evidence that the project will reduce fire intensity and the 16 risk of stand-replacing wildfires. Id. Plaintiffs also argue 17 that “the only way to get the amount of timber to be produced 18 from this project is to log large trees.” Opp’n to Fed. Defs.’ 19 Mot. at 16. However, Plaintiffs cite to no evidence supporting 20 this contention. By contrast, the Forest Service references 21 portions of the record indicating the project will not remove 22 old-growth trees. See FS-AR 000434; FS-AR 000420. And that 99 23 percent of the trees to be removed in the spotted owl nesting 24 and roosting habitat are below 24 inches in diameter. FS-AR 25 000738, Figure A6-1. 26 The Forest Service’s determination that the project 27 complies with HFRA “is entitled to substantial deference.” 28 Native Ecosystems Council v. Marten, 807 F. App’x 658, 661 (9th 1 Cir. 2020). Based upon the evidence in the record, the 2 Pettijohn Project is HFRA compliant. The Court GRANTS summary 3 judgment in favor of the Forest Service and Fish and Wildlife, 4 and against Plaintiffs on Plaintiffs’ eighth HFRA claim. 5 e. ESA Claims 6 Plaintiffs’ first and second claims assert that the Forest 7 Service and Fish and Wildlife violated § 7(a)(2) of the ESA by 8 failing to use the best available science and failing to avoid 9 jeopardizing, destroying, or adversely modifying spotted owl 10 critical habitat. See FAC ¶¶ 103–25. Plaintiffs’ third claim 11 asserts that the Forest Service and Fish and Wildlife failed to 12 reinstate consultation in violation of 50 C.F.R. § 402.16(b), an 13 implementing regulation of the ESA. See FAC ¶¶ 126–36. 14 Plaintiffs argue Fish and Wildlife failed to use the best 15 available science in two parts of its 2018 supplemental BiOp and 16 used outdated guidelines to determine the habitat values and 17 thresholds incorporated into its critical habitat effects 18 analysis and determination. Pls.’ Mot. for Summ. J. at 19–23. 19 As a result, the Pettijohn Project will destroy and adversely 20 modify spotted owl critical habitat. Id. at 23–24. Plaintiffs 21 also argue Fish and Wildlife should have reinitiated 22 consultation over effects on critical habitat given it had 23 access to updated data. Id. at 25. 24 (i) Best Available Science 25 In making a § 7 adverse modification determination, Fish 26 and Wildlife is required to use the “best available scientific 27 and commercial data available.” 16 U.S.C. § 1536(a)(2); 50 28 C.F.R. § 402.14(g)(8); Locke, 776 F.3d at 995. “Under this 1 standard, an agency must not disregard [] available scientific 2 evidence that is in some way better than the evidence [it] 3 relies on.” Id. at 995. Plaintiffs contend that Fish and 4 Wildlife’s 2009 “Regulatory and Scientific Basis for U.S. Fish 5 and Wildlife Service Guidance for Evaluation of Take for NSOs on 6 Private Timberlands in California’s Northern Interior Region” 7 (“2009 Take Guidance”), see FWS-AR 016935-17012, is not the best 8 available science for determining what habitat metrics would 9 provide for population growth and recovery. See Pls.’ Mot. for 10 Summ. J. at 20–23. Rather, Plaintiffs argue Fish and Wildlife 11 should have consulted and followed the habitat metrics outlined 12 in the 2011 Recovery Plan, the 2012 Critical Habitat Rule, and 13 the 2018 Forest Service Technical Report. Id. 14 This argument fails because Fish and Wildlife did, in 15 effect, consider these habitat metrics. Fish and Wildlife used 16 the 2009 Take Guidance as a starting point in its 17 stand/treatment unit level analysis to obtain a field-verified 18 baseline for the quality or condition of the spotted owl habitat 19 proposed for treatment and the likely effects of the proposed 20 treatment on the specific habitat in the treatment units. FWS- 21 AR 004054-57; FWS-AR 001510-13. Notably, the 2009 Take Guidance 22 is consistent with the recovery guidelines outlined in both the 23 habitat retention recommendations of the 2011 Recovery Plan and 24 the nesting and roosting metrics in the 2012 Critical Habitat 25 Rule. Compare FWS-AR 017007, 017010 (the 2009 Take Guidance 26 uses a recommended retention standard of 400 acres or 80 percent 27 suitable nesting, roosting, and foraging habitat in a 500-acre 28 area and 40 percent suitable habitat in a home range) with FS-AR 1 020357-60 (the 2011 Recovery Plan recommends prioritizing 2 spotted owl sites that have at least 50 percent suitable habitat 3 in the core and at least 40 percent suitable habitat in the home 4 range); compare also FWS-AR 016948 (the 2009 Take Guidance 5 describes high quality nesting and roosting conditions having at 6 least 60 percent canopy cover) with 77 Fed. Reg. 71,876, 71,905 7 (Dec. 4, 2012) (the 2012 Critical Habitat Rule outlines that 8 high quality nesting and roosting habitat contains 65-89 percent 9 canopy cover). 10 As for the 2018 Forest Service Technical Report, that 11 document post-dates Fish and Wildlife’s April 2018 BiOp. See 12 Ex. A to Mot. to Supp. Admin. Record, ECF No. 66-2. Thus, it 13 was not considered in the agency’s decision-making process and 14 is not properly part of the record. 15 Plaintiffs also argue that Fish and Wildlife’s failure to 16 consider information in 2018 interim baseline adjustment 17 resulted in a skewed baseline accounting of available critical 18 habitat in the subunit and unit and invalidates Fish and 19 Wildlife’s adverse modification analysis. Pls.’ Mot. for Summ. 20 J. at 21–22. Here, too, this document post-dates Fish and 21 Wildlife’s April 2018 BiOp. See FWS-AR SUPAR-001 (dated 22 December 20, 2018). Thus, it was not available for 23 consideration. Fish and Wildlife’s adverse modification 24 analysis used a habitat baseline that incorporated all 25 information up until the end of the 2017 fire season. FWS-AR 26 004063-65; FWS-AR 004166. The only information in the 2018 27 interim baseline adjustment not considered by the April 2018 28 BiOp was the change in critical habitat in the unit and subunit 1 caused by the 2018 fire season, which did not exist in April 2 2018. Defs.’ Mot. for Summ. J. at 32. 3 Fish and Wildlife could not have considered information 4 that did not exist, and fire events that had not occurred, when 5 it prepared its April 2018 BiOp. And there is no § 7 violation 6 where the information was not available. See Locke, 776 F.3d at 7 995 (“Under this standard, an agency must not disregard [] 8 available scientific evidence . . . .”) (emphasis added). 9 Moreover, as explained below, the information from the 2018 fire 10 season would have minimally impacted the April 2018 BiOp. 11 (ii) Adverse Modification Determination 12 Plaintiffs challenge Fish and Wildlife’s determination that 13 the Pettijohn Project would not result in adverse modification 14 of critical habitat. Pls.’ Mot. for Summ. J. at 22–25. To 15 avoid adverse modification, the proposed treatments cannot 16 directly or indirectly alter the spotted owl’s habitat in a way 17 that appreciably diminishes the conservation or recovery value 18 of the entire critical habitat designation. Rock Creek Alliance 19 v. FWS, 663 F.3d 439, 442–43 (9th Cir. 2011); 50 C.F.R. 20 § 402.02. Thus, Fish and Wildlife analyzed the potential 21 effects the proposed project’s treatments of 2,013 acres of 22 habitat might have on the spotted owl’s overall 9,577,969 acres 23 of critical habitat. See FWS-AR 004103-13; 16 U.S.C. 24 § 1536(a)(2); 50 C.F.R. § 402.14(g). 25 First, Fish and Wildlife identified the relevant critical 26 habitat unit, subunit, and action area, and then calculated a 27 baseline inventory of spotted owl critical habitat (i.e., 28 designated nesting, roosting, foraging, and dispersal habitat 1 types) within each area. FWS-AR 004106; FS-AR 022825-26. The 2 Pettijohn Project is located within the Interior Coastal 3 California Critical Habitat Unit (“Unit 11”) and wholly within 4 subunit ICC-7. FWS-AR 004105. Unit 11 encompasses 941,568 5 acres of critical habitat, subunit ICC-7 consists of 119,742 6 acres, and the project’s action area contains 14,347 acres of 7 designated critical habitat. FWS-AR 004105-06. 8 Upon obtaining this baseline information, Fish and Wildlife 9 analyzed the project’s potential effects on several different 10 scales and varying physical and biological features (“PBFs”) of 11 critical habitat.3 At the stand/treatment unit scale, which 12 consists of the 2,013 acres selected for treatment, Fish and 13 Wildlife reviewed field-verified spotted owl habitat metrics 14 specific to the area. See FWS-AR 016935–17012 (Fish and 15 Wildlife “has conducted a thorough review and synthesis of 16 published literature, unpublished data sets, and direct 17 communication with [spotted owl] researchers in support of a 18 rigorous process for evaluating the effects of habitat 19 management on [spotted owls].”). It acknowledged that the 20 proposed treatments would have adverse effects on certain 21 stand/treatment units. See FS-AR 022826–28. However, Fish and 22 Wildlife also determined that these adverse effects would 23 primarily be short-term and were not likely to prevent spotted 24 owls in these specific treatment units from nesting and 25 foraging. FWS-AR 001456-66; FWS-AR 004075-79; FWS-AR 004093-96. 26 27 3 PBFs are used to characterize the key components of critical habitat that provide for the conservation of the listed species. 28 FWS-AR 004104. 1 Using the information from the treatment unit analysis, 2 Fish and Wildlife assessed whether the project’s proposed 3 treatments on the 2,013 acres compromised the capability of 4 critical habitat within the project’s action area to fulfill its 5 intended recovery function. FWS-AR 004105-09. The action area 6 consists of 14,347 acres of critical habitat that is meant to 7 allow for long-term reproduction, connectivity to other habitat 8 in subunit ICC-7, and recruitment of high-quality spotted owl 9 habitat. Id. Here, too, the anticipated adverse effects from 10 the project’s treatments would primarily be short-term and only 11 impact a relatively small portion of the nesting, roosting, and 12 foraging habitat available in the action area. FWS-AR 004107- 13 09. In addition, treatments would produce more fire-resistant 14 and sustainable habitat, consistent with the spotted owl’s 2011 15 Recovery Plan. FWS-AR 004112; FS-AR 022841-43. 16 Next, Fish and Wildlife looked to the project’s impact on 17 critical habitat within subunit ICC-7, which consists of 119,635 18 acres of critical habitat. FWS-AR 004109–10. The effects at 19 the subunit ICC-7 scale were minimal as the proposed treatments 20 affect only two percent of available nesting, roosting, and 21 foraging habitat in that area. FWS-AR 004109. Fish and 22 Wildlife determined that the project’s treatments were, thus, 23 unlikely to impair the ability of the critical habitat in 24 subunit ICC-7 to contribute to its larger conservation and 25 recovery purpose. Id. 26 Finally, at the broadest scale, the project’s anticipated 27 short-term adverse effects became nearly undetectable. FWS-AR 28 004109-10 (“The selected alternative, at that [] scale, is [] 1 not reasonably likely to cause an adverse effect to the [] 2 larger CHU 11.”). The project would temporarily adversely 3 impact only 0.28 percent of critical habitat available at the 4 Unit 11 level and “a fraction of a percent of the 12 million 5 acres of critical habitat rangewide.” FWS-AR 004112–13. 6 Ultimately, Fish and Wildlife determined that the project 7 would not compromise the subunit and unit’s ability to 8 contribute to the range-wide critical habitat’s overall 9 conservation and recovery purpose. FWS-AR 004111-13; Rock Creek 10 Alliance, 663 F.3d at 442-43 (finding that Fish and Wildlife did 11 not err by conducting a large-scale analysis and by relying on 12 the relative size of the critical habitat to evaluate the 13 project’s impact on the species). Moreover, Fish and Wildlife 14 concluded that the project would help create more high-quality, 15 fire-resistant spotted owl habitat, consistent with the spotted 16 owl’s 2011 Recovery Plan and the 2012 Critical Habitat Rule. 17 FWS-AR 004111-13. Fish and Wildlife made these determinations 18 having conducted extensive analysis on all aspects of the 19 Pettijohn Project. Thus, the adverse modification analysis, and 20 the conclusions drawn from it, are complete, reasonable, and 21 sufficiently supported by the record. See FWS-AR 004103-13. 22 (iii) Reinitiating Consultation 23 Lastly, Plaintiffs argue that the agencies must reinitiate 24 consultation based on new information in the 2018 interim 25 baseline adjustment. See Pls.’ Mot. for Summ. J. at 25. “If 26 the data is new and the new data may affect the jeopardy or 27 critical habitat analysis, then [Fish and Wildlife] [is] 28 obligated to reinitiate consultation pursuant to 50 C.F.R. 1 § 402.16.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife 2 Serv., 378 F.3d 1059, 1077 (9th Cir. 2004). However, the 3 additional data from the 2018 interim baseline adjustment does 4 not affect Fish and Wildlife’s critical habitat analysis. See 5 Defs.’ Mot. for Summ. J. at 32–33. 6 The April 2018 BiOp analyzed the Pettijohn Project’s 7 effects on 1,546 acres of nesting, roosting, and foraging 8 habitat designated as critical habitat. See FWS-AR 004107-09. 9 That acreage represented 1.29 percent of the total critical 10 habitat in subunit ICC-7 and 2.46 percent of the total nesting, 11 roosting, and foraging habitat in ICC-7. FWS-AR 004106, Table 12 21. Using the additional data from the 2018 interim baseline 13 adjustment in the analysis, the effect of treating 1,546 acres 14 of nesting, roosting, and foraging habitat in ICC-7 represents 15 2.81 percent of the same habitat available in ICC-7. FWS-AR 16 SUPAR-008 (total nesting, roosting, and foraging in subunit goes 17 down to 55,004 acres). That is a difference of 0.35 percent 18 from the April 2018 BiOp’s evaluation. 19 With regard to the larger unit, the April 2018 BiOp 20 assessed that the treated 1,546 acres of nesting, roosting, and 21 foraging habitat would affect 0.28 percent of the total nesting, 22 roosting, and foraging habitat in the unit. FWS-AR 004106, 23 Table 21. Considering the 2018 interim baseline adjustment, the 24 project affects 0.33 percent of the total nesting, roosting, and 25 foraging habitat in the unit. FWS-AR SUPAR-008 (total nesting, 26 roosting, and foraging in larger unit goes down to 55,004 27 462,186 acres). A difference of 0.05 percent. Thus, even with 28 these revised numbers, the conclusions drawn from Fish and 1 Wildlife’s analysis remains essentially the same: The 2 Pettijohn’s Project’s treatments would not appreciably reduce 3 the spotted owl’s prospects for recovery and, therefore, would 4 not likely result in adverse modification. See FWS-AR 004111- 5 13. Accordingly, reinitiating consultation was not warranted. 6 In sum, the Court finds: (1) Fish and Wildlife used the 7 best available science in conducting its critical habitat 8 analysis; (2) the Pettijohn Project will not adversely modify 9 spotted owl critical habitat; and (3) there was no need to 10 reinitiate consultation. Fish and Wildlife’s § 7 critical 11 habitat analysis was consistent with the ESA, reasonable, and is 12 supported by the administrative record. The Court, therefore, 13 GRANTS summary judgment in favor of the Forest Service, Fish and 14 Wildlife, and the Resource Council and against Plaintiffs on 15 Plaintiffs’ first, second, and third ESA claims. 16 Til. ORDER 17 For the reasons set forth above, the Court: 18 (1) DENIES Plaintiffs’ Motion to Supplement the 19 | Administrative Record; (2) DENIES Plaintiffs’ Motion to Strike; 20 (3) DENIES Plaintiffs’ Motion for Summary Judgment; (4) GRANTS 21 the Forest Service and Fish and Wildlife’s Motion for Summary 22 Judgment; and (5) GRANTS the Resource Council’s Motion for 23 Summary Judgment. 24 IT IS SO ORDERED. 25 | Dated: May 17, 2021 26 kA 27 teiren staves odermacr 7008 28 44