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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ENVIRONMENTAL PROTECTION AND

INFORMATION CENTER, a

California nonprofit

corporation; and KLAMATHSISKIYOU WILDLANDS CENTER, an

Oregon nonprofit corporation,

NO. CIV. S-04-1027 WBS GGH

Plaintiffs, 

v. MEMORANDUM AND ORDER

JACK BLACKWELL, in his

official capacity as Regional

Forester for the Southwest

Pacific Region of the United

States Forest Service;

MARGARET BOLAND, in her

official capacity as Forest

Supervisor for the Klamath

National Forest; and UNITED

STATES FOREST SERVICE,

Defendants.

----oo0oo----

The court is called upon to review the Finding of No

Significant Impact (“FONSI”) issued by defendant Forest Service

(“FS”) in October 2003 regarding the proposed harvesting and sale

of timber in the Westpoint area of the Klamath National Forest

(the “project”). Plaintiffs and defendants both move for summary

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1 These “other widespread disturbances” are nowhere

identified.

2 The units are not numbered sequentially. The term

“Middle Creek” refers to both an area of proposed harvest as well

as the creek itself, which flows into the Scott River in the

general project area.

2

judgment and plaintiffs seek an injunction against any further

work on this project. Plaintiffs allege that defendants 

violated the National Environmental Policy Act (“NEPA”) and the

National Forest Management Act (“NFMA”) in approving the project.

I. Factual and Procedural Background

A. The Nature of the Project

The stated goal of this project is to “manage the

landscape toward a condition that will be resilient to

catastrophic fire and other widespread disturbances.1 The intent

is not to maintain this landscape in a static condition.” 

(Environmental Assessment (“EA”), Administrative Record (“AR”)

412). 

Defendant FS considered two alternatives in detail. 

The first alternative was a “no action alternative,” in which

“[n]o forest health or fuels reduction activities would occur on

public lands.” (Id. at 416). The second alternative was chosen

by the FS. Under this plan, approximately 1,026 acres of forest

stands in 53 units would be thinned in two general areas known as

“Middle Creek” and “Scott Bar Mountain.”2 Units range in size

from 2 to 46 acres. (Westpoint Project Wildlife Biological

Assessment/Evaluation (“Wildlife BA”), AR 1008). The majority of

the trees to be harvested would be 8 to 22 inches in diameter at

breast height (dbh), with the average tree harvested being 16

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3

inches in diameter and 72 feet tall. (FONSI, AR 162). The fuels

produced by this thinning would be treated in a variety of ways,

mostly by controlled burning, to reduce the possibility of later

fires. In addition, all stumps of Shasta red fir, white fir, and

hemlock greater than twelve inches in diameter would be treated

with a fungicide. The road network in the region would also be

changed: 4.7 miles of roads would be decommissioned, 1.8 miles of

temporary roads would be used and then hyrdrologically restored

after the project, 6.8 miles of road would change from being

closed year round to being closed seasonally, and 5.4 miles of

road would change from being closed year round to being open year

round. (EA, AR 413). Trees would be planted on 130 acres. 

(FONSI, AR 164). Finally, the plan would poison gophers in

certain units to reduce the mortality of seedlings. (EA App. F,

AR 174). 

Units 53, 56, 59, and 25 are different from the other

forty-nine units and are the source of much of the present

controversy. Forty-two acres in Units 53 and 56 are classified

as “late-successional” habitat. “Late-successional” habitat is

defined as multi-storied Douglas-fir, conifer hardwood, and mixed

conifer vegetation types with a minimum tree size of 24 inches

dbh, a canopy closure of greater than 70%, and sufficient

understory including slash, rotten logs, and stumps. (FONSI

Appeal, AR 69). The FS found the thinning of this latesuccessional habitat “likely to adversely affect” the northern

spotted owl (“NSO”), an endangered species. (Wildlife BA, AR

1027; see also id., AR 1022(“Harvesting will result in the

removal of 42 acres of [NSO] suitable habitat”)). In addition,

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these 42 acres provide potential nesting habitat for the northern

goshawk, a species listed by the FS as “sensitive.” (Id., AR

1029-30). These same 42 acres are also suitable habitat for two

other sensitive species, the Pacific fisher and the California

wolverine. (Id., AR 1032-35). 

 Three acres within unit 25 are within the Designated

Recreational River land allocation for the Scott River,

designated as a Scenic and Recreational River in the National

Wild and Scenic River System. (FONSI, AR 166-67). Unit 59

contains an area designated as NSO Critical Habitat. (Wildlife

BA, AR 1017).

B. Procedural History

Scoping for this project began in early 2002. The

notice of intent to prepare an EA was published in the Siskiyou

Daily News, which publishes out of Yreka, on March 14, 2002, and

the Pioneer Press, which publishes out of Fort Jones, on March

20, 2002. The National Oceanic and Atmospheric AdministrationFisheries and the United States Fish and Wildlife Service were

consulted. On June 13, 2003, the EA was circulated to those who

had showed an interest in the project. (FONSI, AR 164). 

The FS received comments on the EA from plaintiffs,

among others. On October 15, 2003, the FS issued its FONSI,

signed by defendant Boland, and appended to that document

responses to some 80 comments. Plaintiffs appealed to the Appeal

Deciding Officer. (AR 85). In an Appeal Decision Summary issued

January 15, 2004, Appeal Deciding Officer Bernard Weingardt

affirmed defendant Boland’s FONSI. (AR 67-81).

///

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5

II. Discussion

A. Standing

Before considering the substantive merits of this suit,

the court must determine that plaintiffs meet standing

requirements. Defendants do not argue that plaintiffs lack

standing. In his declaration, George Sexton states that he is an

active member of plaintiff Klamath-Siskyou Wildlands Center, an

organization formed to protect the Klamath-Siskyou ecosystem, and

that he regularly spends personal and professional time in the

Middle Creek and Scott Bar Mountain areas. Scott Greacen, in his

declaration, states that he is an active member of plaintiff

Environmental Protection Information Center, an organization

formed to protect and restore Northwestern California ecosystems,

and that he has visited and plans to return to the project area

in the future. These facts are sufficient to confer standing on

plaintiffs to bring this suit. See Ocean Advocates v. United

States Army Corps of Eng’rs, 402 F.3d 846, 859-862 (9th Cir.

2005)(discussing standing requirements in the context of suit

under NEPA).

B. Summary Judgment Standard

Both plaintiffs and defendants now move for summary

judgment pursuant to Federal Rule of Civil Procedure 56. The

court must grant summary judgment to a moving party “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). The party adverse to a motion for summary

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6

judgment may not simply deny generally the pleadings of the

movant; the adverse party must designate “specific facts showing

that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e);

see Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Simply put,

“a summary judgment motion cannot be defeated by relying solely

on conclusory allegations unsupported by factual data.” Taylor

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The non-moving

party must show more than a mere “metaphysical doubt” as to the

material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 587 (1986).

In this case, the court is called upon to review the

findings of an agency adjudication. “Judicial review of an 

agency decision typically focuses on the administrative record in

existence at the time of the decision and does not encompass any

part of the record that is made initially in the reviewing

court.” Southwest Ctr. for Biological Diversity v. United States

Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). Materials

outside the record may be allowed under three exceptions:

(1) if necessary to determine whether the agency has

considered all relevant factors and has explained its

decision, (2) when the agency has relied on documents not in

the record, or (3) when supplementing the record is

necessary to explain technical terms or complex subject

matter.

Id.(quotation marks and citation omitted). The parties have not

asked the court to look outside the record developed in the FONSI

and its supporting documents, and the court finds that none of

the three Southwest Center exceptions applies in this case. 

Therefore, the record will not be developed further and this case

is ripe for summary adjudication. 

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7

C. Standard of Review

The court reviews the decision of the FS under the

Administrative Procedure Act. Lands Council v. Powell, 395 F.3d

1019, 1026 (9th Cir. 2005). The United States has waived

sovereign immunity in this case under 5 U.S.C. § 702. See

Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d

800, 804 (1999). The court must reverse the agency action only

if the action is arbitrary, capricious, an abuse of discretion,

or otherwise contrary to law. 5 U.S.C. § 706(2). This standard

is narrow, and does not permit a court to substitute its own

judgment for that of the agency. Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 416 (1971). The court must ask

“whether the [agency] decision was based on a consideration of

the relevant factors and whether there has been a clear error of

judgment.” Id. The court must also determine whether the agency

“articulated a rational connection between the facts found and

the choice made.” Ocean Advocates, 402 F.3d at 859(citation

omitted).

D. NEPA

“NEPA exists to ensure a process, not particular

substantive results.” Hells Canyon Alliance v. United States

Forest Serv., 227 F.3d 1170, 1177 (9th Cir. 2000). Here, there

are two main issues under NEPA. The first issue is whether the

FS was required to prepare an Environmental Impact Statement

(“EIS”) rather than the abbreviated Environmental Assessment. 

The second issue is whether the FS considered an adequate range

of alternatives to the project.

/// 

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3 Unless otherwise noted, all citations to the Code of

Federal Regulations are to the 2003 version, the version in

effect at the time of the FONSI.

8

1. Necessity of an EIS

Plaintiffs challenge the failure of the FS to prepare

an EIS for this project. The relevant provision of NEPA provides

that “all agencies of the Federal Government shall . . . include

in every recommendation or report on proposals for legislation

and other major Federal actions significantly affecting the

quality of the human environment, a detailed statement by the

responsible official on – the environmental impact of the

proposed action.” 42 U.S.C. § 4332(2)(C). “Where an EIS is not

categorically required, the agency must prepare an Environmental

Assessment to determine whether the environmental impact is

significant enough to warrant an EIS.” Ocean Advocates, 402 F.3d

at 864. If, after preparation of the EA, the agency decides not

to prepare an EIS, it must put forth a “convincing statement of

reasons [in the form of a FONSI] that explain why the project

will impact the environment no more than insignificantly.” 

Id.(citation omitted); see also 40 C.F.R. § 1508.13(listing

requirements for a FONSI).3 The FONSI is crucial to a court’s

evaluation of whether the agency took the requisite “hard look”

at the potential impact of a project. Ocean Advocates, 402 F.3d

at 864.

“[A]n EIS must be prepared if substantial questions are

raised as to whether a project may cause significant degradation

of some human environmental factor.” Idaho Sporting Cong. v.

Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)(citation

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omitted)(emphasis in original)(“Idaho Sporting Cong. I”). To

trigger the requirement for an EIS, “a plaintiff need not show

that significant effects will in fact occur[;] raising

substantial questions whether a project may have a significant

effect is sufficient.” Id. at 1150(citation omitted)(emphasis in

original).

40 C.F.R. § 1508.27 explains how an agency or court is

to interpret “significantly” in 42 U.S.C. § 4332(2)(C). The

regulation gives the term two components: context and intensity. 

Context refers to the setting in which it takes place. Intensity

means “the severity of the impact.” 40 C.F.R. § 1508.27. 

Plaintiffs argue that the context of this project

weighs in favor of requiring an EIS. They contend that

defendants are implementing “a policy of old growth/latesuccessional logging within the Scott River Watershed.” (Pls.’

Mem. in Supp. of Summ. J. at 33). To support the existence of

this policy, plaintiffs cite other projects occurring in the

general vicinity. Plaintiffs also contend that the Scott River

is an “impaired watershed.” Defendants counter by noting that

the projects to which plaintiffs refer are twenty-five miles away

from Westpoint and, therefore, these projects should not be

considered relevant to the context of the project. (Defs.’ Mem.

in Opp’n to Pls.’ Mot. for Summ. J. at 22-23). Defendants

further argue that plaintiffs have not defined what they mean by

“impaired watershed” and point the court to documents in the

record that show that watershed effects of the Westpoint project

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4 Plaintiffs did define what they meant by “impaired

watershed” in their initial memorandum in support of their

motion. They claim that “[t]he Scott River is a 303(d) listed

water body with sedimentation/siltation and temperature

identified as water quality limiting factors. . . . The Middle

Creek/Scott River subwatershed is impaired due to sediment and

high temperature.” (Pls.’ Mot. for Summ. J. at 6); see also 33

U.S.C. § 1313(d)(Section 303(d) of the Clean Water Act, entitled

“Identification of areas with insufficient controls; maximum

daily load; certain effluent limitations revision”). The portion

of the record plaintiffs cite for the proposition that the Scott

River is a § 303(d) listed river does not support the

proposition. However, the record does support the fact that some

of the proposed harvesting would take place in a Wild & Scenic

River Corridor, (AR 377 (map)), and that there are already high

levels of sediment in the river. (Biological Assessment for

Threatened, Endangered, Proposed, and Sensitive Species That May

Be Affected by the Westpoint Vegetation Treatment Project (“Fish

BA”), AR 494-95). 

5 The following should be considered in evaluating

intensity:

(1) Impacts that may be both beneficial and adverse. A

significant effect may exist even if the Federal agency

believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects

public health or safety.

(3) Unique characteristics of the geographic area such

as proximity to historic or cultural resources, park

lands, prime farmlands, wetlands, wild and scenic

rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of

the human environment are likely to be highly

controversial.

(5) The degree to which the possible effects on the

human environment are highly uncertain or involve

unique or unknown risks.

(6) The degree to which the action may establish a

precedent for future actions with significant effects

10

would not be significant.4 (Defs.’ Reply at 14-15; see EA, AR

425(chart supporting defendants’ assertions)).

In considering the severity of a project’s impact, a

reviewing agency should consider ten factors.5 “[O]ne of these

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or represents a decision in principle about a future

consideration.

(7) Whether the action is related to other actions with

individually insignificant but cumulatively significant

impacts. Significance exists if it is reasonable to

anticipate a cumulatively significant impact on the

environment. Significance cannot be avoided by terming

an action temporary or breaking it down into small

component parts.

(8) The degree to which the action may adversely affect

districts, sites, highways, structures, or object

listed in or eligible for listing in the National

Register of Historic Places or may cause loss or

destruction of significant scientific, cultural, or

historical resources.

(9) The degree to which the action may adversely affect

an endangered or threatened species or its habitat that

has been determined to be critical under the Endangered

Species Act of 1973.

(10) Whether the action threatens a violation of

Federal, State, or local law or requirements imposed

for the protection of the environment.

40 C.F.R. § 1508.27.

11

factors may be sufficient to require preparation of an EIS in

appropriate circumstances.” Ocean Advocates, 402 F.3d at 865. 

Factor (1) should be kept in mind by a reviewing court as it

considers the other factors. “A significant effect may exist

even if the Federal agency believes that on balance the effect

will be beneficial.” 40 C.F.R. 1508.27(b)(1).

Plaintiffs argue that intensity factors (2), (3), (4),

and (9) raise sufficient substantial questions regarding whether

the project may have a significant effect to require an EIS. 

Plaintiffs have also made important arguments regarding factor

(5) in their memoranda, although these arguments are not found

under plaintiffs’ EIS heading. Therefore, the court will address

factor (5) as well.

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a. Degree of Effects on Public Health

Plaintiffs state that the poisoning of gophers with

strychnine has the potential to cause secondary poisoning to

other species, which in turn could come into contact with humans. 

In a separate argument, plaintiffs state that Middle Creek

supplies water to some cabin owners, that the project will affect

the water quality of the creek, and that “[t]he presence of

domestic water use is also a basis to require an EIS.” (Pls.’

Mem. in Supp. of Summ. J. at 35).

The risk of secondary poisoning related to the gopher

poisoning was considered in the EA. (EA App. F, AR 174). The EA

cites studies conducted in 1997, 2001, and 2002, and concludes

that “studies of gopher baiting have shown little risk of

secondary poisoning.” Id. The court defers to the agency in its

assessment of scientific evidence, Anderson v. Evans, 371 F.3d

475, 489 (9th Cir. 2004), and therefore finds that the risk of

secondary poisoning due to gopher baiting is not significant.

Regarding the domestic water usage, plaintiffs point to

the Fish BA, which states that “[t]here are one or two small

water diversions in lower Middle Creek near its confluence with

the Lower Scott River. These supply streamside cabin owners with

water. . . .” (AR 508). The FS points out that these

“diversions” are in the form of springs used by cabin owners

during the summer months, (Earth Scientist Report (“ESR”), AR

611) and that there are “no domestic uses of surface water in

Middle Creek.” (EA App. F, AR 191). The court thus finds that

consideration of factor (2) does not support a finding that this

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6 Plaintiffs brought this point to defendants’ attention

in both its initial memorandum and its response. Defendants,

interestingly, chose not to address it.

13

is a significant action.

b. Unique Characteristics of the Area

An area’s “unique characteristics” are defined to

include “ecologically critical areas.” 40 C.F.R. §

1508.27(b)(3). Part of unit 59 is located within designated

critical habitat for the NSO. (BA, AR 1017). Unit 59 is within

0.7 miles of a known NSO activity center and contains nesting and

roosting habitat for the NSO. (BA Map, AR 1051).

The BA dismisses the potential effect on the Critical

Habitat. The entire analysis is as follows:

Unit #59 is contains [sic] an area mapped as NSO Critical

Habitat (CA17) within the Matrix. This area of CHU in

Matrix was analyzed by Level 1 Team and Forest wildlife

biologists on September 8, 2001. Analysis determined this

area of CHU in Matrix did not contain suitable NSO habitat

and had no potential of reaching suitable habitat. the

recommendation was to manage this as Matrix land.

(Wildlife BA, AR 1017). This analysis is lacking. The Forest

Service may not unilaterally change a critical habitat

designation to meet its needs on a given project. 16 U.S.C. §

1533(b)(3)(D)(notice and comment process must be followed to

revise a critical habitat designation).6 This harvesting within

NSO critical habitat raises substantial questions about the

project’s environmental effects.

///

///

///

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c. Degree of Controversy

“A federal action is controversial if a substantial

dispute exists as to its size, nature or effect.” Wetlands

Action Network v. United States Army Corps of Eng’rs, 222 F.3d

1105, 1122 (9th Cir. 2000)(citation omitted). “A substantial

dispute exists when evidence, raised prior to the preparation of

an EIS or FONSI, casts serious doubt upon the reasonableness of

an agency’s conclusions.” Nat’l Parks & Conservation Ass’n v.

Babbitt, 241 F.3d 722, 736 (9th Cir. 2001)(citation omitted). 

Once this evidence is presented to the agency, the agency has the

burden of demonstrating why this evidence does not create a

controversy. Id. “The existence of opposition to a use,

however, does not render an action controversial.” Wetlands

Action Network, 222 F.3d at 1122. 

Plaintiffs and others wrote to the FS, prior to the

preparation of the FONSI, demonstrating their concern about the

reliability of the FS’s assumptions. (AR 248-345, 348-64). The

letters contain a brief synopsis of the reasons why logging

larger trees is counterproductive to future fire suppression and

refer to several articles on the subject. In contrast, the FS’s

Fuels and Fires Assessment is less academic in nature, and

heavily relies on the Forest Vegetation Simulator and the First

Order Fire Effects Model. (See AR 643). The Fuels and Fires

Assessment does not provide any scientific support for the

accuracy of these models. The FS also does not directly address

the arguments of the scientists who claim that logging larger

trees is not beneficial to fire suppression, other than claiming,

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without support, that the models are “state of the art tools.” 

(See Fuels and Fires Assessment, AR 645-48; FONSI, AR 182);

compare Wetlands Action Network, 222 F.3d at 1122(in finding that

a significant public controversy did not exist, the court noted

that “a dispute as to the effect that the [proposed permitting

action] would have on the environment did exist. During the two

year review process, the [agency] was able to address these

potential effects to the satisfaction of the federal resource

agencies, for all of the agencies eventually withdrew their

objections to the issuance of the permit”). Plaintiffs have

raised substantial questions on whether this project is

significantly controversial.

d. Uncertain or Unknown Risks

Plaintiffs argue that the FS left short-term fire

risks, risks resulting from changes in the road network, as well

as risks to the watershed, the soil, and sensitive species,

unanalyzed. The FS prepared an adequate analysis of the shortterm increase in the likelihood of fire, and concluded, after

modeling the action and no-action alternative, that the decreased

risk of stand replacing fire in the future justified the short

term risk. (Fire and Fuels Assessment, AR 634-645). The FS also

prepared an adequate soil and watershed analysis. (See ESR, AR

608-633). The FS also prepared an adequate analysis of the

impact of the changes in the road system. (See Roads Analysis

Process Paper, AR 1090-1105). 

However, plaintiffs’ argument that the effect of the

project on certain sensitive species is uncertain has merit. In

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addition to finding that the project was “likely to adversely

affect” the NSO, the Wildlife BA briefly discussed the impact of

the project on various sensitive species. The Wildlife BA finds

that “42 acres of mature and older forest (potential goshawk

nesting habitat) will be removed by harvest in units 53 and 56. 

This is unsurveyed habitat.” (AR 1030) In the next sentence,

the BA declares that “[t]he harvesting of these units will have a

low potential of disturbing nesting goshawks.” This conclusion

is unsupported by any evidence, and therefore is not a

“convincing statement of reasons.” See Blue Mts. Biodiversity

Project v. Blackwood, 161 F.3d 1208, 1213-14 (9th Cir. 1998)(“The

EA’s cursory and inconsistent treatment of sedimentation issues,

alone, raises substantial questions about the project’s effects

on the environment and the unknown risks to the area’s renowned

fish populations.”). Similar cursory analysis is given to the

Pacific fisher. (Id., AR 1033)(“The Westpoint Project proposes

to harvest 51 acres of suitable habitat. It is unknown if these

51 acres are occupied. . . . The implementation of the proposed

timber harvest will result in an overall removal of 50 acres of

mature and older forest [and] will no longer provide potential

reproductive habitat quality.”). About the California wolverine,

the Wildlife BA states “there is some evidence, although somewhat

dated (1973) the numbers [of California wolverines] appear to be

increasing in California.” (AR 1034). The California wolverine

would also lose 42 acres of habitat, and “[t]here is a potential

for secondary poisoning to occur” due to the gopher baiting. 

(Id., AR 1035). The FS was also uncertain in its analysis of the

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effects on the American marten. “No formal surveys for [American

marten] have been conducted in the area.” (Id., AR 1036). The

American marten would lose 27 acres of suitable denning habitat. 

(Id., AR 1037). The FS also does not know the effect of the

project on the pallid bat. “[S]urveys have not been conducted.” 

(Id., AR 1037-38). There would be a degradation in 1,026 acres

of pallid bat habitat. (Id., AR 1038). These examples show that

the FS has not conducted surveys on sensitive species despite

specific instruction to do so in the Forest Management Plan

Standards & Guidelines. (AR 2236)(“Project areas should be

surveyed for the presence of Sensitive species before project

implementation. If surveys cannot be conducted, project areas

should be assessed for the presence and condition of Sensitive

species habitat.”)(emphasis added). Plaintiffs have succeeded in

raising substantial questions about the significance of uncertain

or unknown risks. See Friends of the Clearwater v. Dombeck, 222

F.3d 552, 558 (9th Cir. 2000)(finding that Forest Service had to

prepare a supplementary EIS after seven species were newly

designated as sensitive).

e. Relation to Other Actions

Plaintiffs argue that defendants did not consider “the

Whittler, the Jack Heli, and the Jack conventional timber sales.” 

(Pls.’ Mem. in Supp. of Summ. J. at 30). However, defendants

convincingly argue that, since these projects are twenty-five

miles away from the Westpoint project, they were reasonably not

included in the cumulative effects analysis. See Idaho Sporting

Cong. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002)(“Idaho

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Sporting Cong. II”)(“Ordinarily, an agency has discretion to

determine the physical scope used for measuring environmental

impacts”). 

No documents in the record analyze the cumulative 

effect of this project with the Jack Heli, the Whittler, and the

Jack conventional timber sales. However, the Wildlife BA

analyzes the effects of other projects on sensitive species, and

concludes, for each species, that these other projects will not

impact the sensitive species’ habitat. (AR 1025-45)(discussing

effects of “Scott Bar Mountain Fuels Reduction Project,” and

“Pre-commercial Thinning Project” on sensitive species). 

Plaintiffs argue that defendants do not consider the

cumulative effects of this project, the Scott Bar Mountain Fuels

Reduction Project and the Pre-commercial Thinning Project on the

Middle Creek watershed. In its response, the FS points the court

to the Earth Scientist Report, which contains a subsection

entitled “Cumulative Watershed Effects.” (AR 619-25). Nowhere

in these pages, however, does the ESR discuss the effects of

other projects, such as the Scott Bar Mountain Fuels Reduction

Project and the Pre-Commercial Thinning Project, on the Middle

Creek Watershed. The use of the word “cumulative” in this

portion of the report is deceptive, as it does not refer to the

cumulative effects of this project along with others, but only

the “cumulative effects” of “units within the project area.” 

(ESR, AR 619). See Ocean Advocates, 402 F.3d at 868(“This

cumulative analysis must be more than perfunctory; it must

provide a useful analysis of the cumulative impacts of past,

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present, and future projects.”)(citation omitted). Plaintiffs

have succeeded in raising substantial questions about the

significance of cumulative watershed effects. 

f. Adverse Effect on Endangered Species

The Wildlife BA frankly states that this project is

“likely to adversely affect” the NSO. The question is whether

that is enough to raise substantial questions about the

significance of this project’s effect on the NSO. The law on

this question does not provide clear guidance. Compare W. Land

Exch. Project v. United States Bureau of Land Mgmt., 315 F.Supp

2d 1068, 1090-92 (D. Nev. 2004)(finding that, even though the

agency concluded that “there [was] no evidence that [the project]

will result in significant impacts to the desert tortoise [a

threatened species],” the fact that the agency “acknowledged that

direct and indirect impacts to a federally listed species could

occur” was sufficient to raise a substantial question in the 40

C.F.R. § 1508.27(b)(9) context) with Heartwood, Inc. v. United

States Forest Serv., 380 F.3d 428, 431-32 (8th Cir. 2004)(finding

that, although the Biological Opinion concluded that “adverse

effects are likely to occur to the Indiana bat [an endangered

species],” the degree to which the bat was adversely affected was

small, and therefore plaintiffs had not raised a substantial

question in the 40 C.F.R. § 1508.27(b)(9) context).

This court finds that the likelihood of adverse effects

to the NSO, combined with the removal of NSO critical habitat

already discussed, raises substantial questions about the

significance of this project’s effect on the NSO. The Wildlife

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BA finds that 42 acres of suitable nesting habitat will be

removed, (AR 1019), and that 138 acres of dispersal habitat will

be removed. (AR 1020). The removal of this dispersal habitat

“will slightly increase fragmentation of the NSO habitat” as

“[t]he Klamath Mountains provide an important dispersal habitat

linkage between the Cascades, Sierra Nevada’s [sic] and the coast

range.” (AR 1019, 1016)(emphasis added). Although the FS

concludes that the project “will result in an approximate less

[sic] than 0.01% reduction of NSO suitable habitat” across Forest

Service land, (AR 1019), the significance of removing this

“important dispersal habitat linkage” should be further explored

in an EIS. 

2. Adequacy of Alternatives

NEPA requires federal agencies to “study, develop, and

describe appropriate alternatives to recommended courses of

action in any proposal which involves unresolved conflicts

concerning alternative uses of available resources.” 42 U.S.C. §

4332(2)(E); see also 40 C.F.R. § 1508.9(discussion of

alternatives required in an EA); Bob Marshall Alliance v. Hodel,

852 F.2d 1223, 1228-29 (9th Cir. 1988)(“[C]onsideration of

alternatives is critical to the goals of NEPA even when a

proposed action does not trigger the EIS process”); Akiak Native

Cmty. v. United States Postal Serv., 213 F.3d 1140, 1148 (9th

Cir. 2000)(noting that EA must consider a reasonable range of

alternatives). Because the Ninth Circuit has recognized that an

EA, like an EIS, must include a reasonable range of alternatives,

the court draws upon case law with respect to alternatives

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7 The FS also summarily dismissed two other alternatives,

a “no-harvest, restoration only alternative” and a “chemical-free

alternative.” (EA, AR 420).

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developed in an EIS. Defendants cite an Eighth Circuit case for

the proposition that the range of alternatives an agency must

consider under NEPA is smaller when preparing an EA than when

preparing an EIS, but that proposition is unsupported by Ninth

Circuit case law. (Defs.’ Reply Mem. at 18); see Olmsted

Citizens for a Better Cmty. v. United States, 793 F.2d 201, 208

(8th Cir. 1986).

The choice of alternatives is bounded by some notion of

feasibility and an agency is not required to consider remote and

speculative alternatives. Vt. Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, Inc., 435 U.S. 519, 551 (1978). An

agency is not required “to undertake a separate analysis of

alternatives which are not significantly distinguishable from

alternatives actually considered.” Westlands Water Dist. v.

United States Dep’t of the Interior, 376 F.3d 853, 868 (9th Cir.

2004)(citation omitted). The touchstone for a court’s inquiry

into the adequacy of the alternatives considered is whether the

discussion of alternatives fosters informed decision-making and

public participation. Id. 

Here the agency considered in detail two alternatives.7

The first alternative, the no-action alternative, was described

in the EA:

No forest health or fuels reduction would occur on public

lands in the project area at this time. Management in the

area would include regular administrative activities

required to manage special uses, recreation, maintain roads,

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suppress fires, and reduce fuels. Future stand conditions

would be determined by natural or human-caused events (for

example, human-caused wildfire).

(AR 416). The second alternative was the one chosen by the FS

and is the subject of this litigation.

In Muckleshoot Indian Tribe, the Forest Service

considered “only a no action alternative along with two virtually

identical alternatives.” 177 F.3d at 813. The court found that

the Forest Service had failed to consider adequate alternatives. 

Id. at 814. The present case is more extreme. The no-action

alternative, the only alternative that the FS considered in

detail, was one that clearly did not meet the stated goal of the

project, and thus the selection of alternative two was

preordained. (See EA, AR 412)(“The goal is to manage the

landscape toward a condition that will be resilient to

catastrophic fire and other widespread disturbances. The intent

is not to maintain this landscape in a static condition.”)

(emphasis added).

In this case, there was an obvious, viable alternative

that the FS did not consider. The FS should have considered an

option which would exclude from harvest units 53, 56, 59, and 25,

and would substitute other parts of the forest that do not

contain critical habitat for an endangered species, nesting

habitat for that species, or an area designated as Recreational

River land. The existence of a viable but unexamined alternative

shows that an adequate range of alternatives was not considered. 

Westlands, 376 F.3d at 868. Defendants do not point to any part

of the record explaining the basis for choosing the land for this

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8 Plaintiffs provide a cynical explanation of the reason

for harvesting in units 53 and 56, pointing to an internal

document authored by District Ranger Ray Haupt. (See AR

1380)(“commercial timber offering is the goal of this

project”)(emphasis added). That may very well be a legitimate

goal of the project, but if so it should be clearly stated in the

documents that the FS provides to the public. 

9 Plaintiffs make one more NEPA argument, claiming that

the public has not been involved. This argument is without

merit, as the numerous submitted comments on the project by

plaintiffs and others demonstrate that the public was involved in

this process.

10 The Klamath National Forest Plan issued in 1994. (See

AR 2165-2459). The regulation at issue was amended in 2000, and

is very different from what it was in 1994.

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project, nor does the record explain why harvesting in units 53,

56, 59, and 25 is vital to the project.8 If the FS chooses to go

forward with the project and prepare an EIS, it must consider

obvious, viable options.9

E. NFMA

The National Forest Management Act requires the FS to

create a comprehensive Forest Plan for each national forest. 

Lands Council, 395 F.3d at 1032(citing 16 U.S.C. §§ 1604(a),

(e)). “Once the Forest Plan is adopted, NFMA prohibits any sitespecific activities that are inconsistent with the Forest Plan.” 

Id. at 1033.

1. Viability

Plaintiffs’ first NFMA argument is that the Forest Plan

does not ensure the viability of the NSO, an endangered species,

and the coho salmon, a species designated as threatened under the

Endangered Species Act (“ESA”). Under 36 C.F.R. § 219.19

(1994),10 the FS has a duty to formulate its plans such that

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“viable populations of existing native and desired non-native

vertebrate species in the planning area” shall be maintained. 

The same section defines a viable population as “one which has

the estimated numbers and distribution of reproductive

individuals to insure its continued existence is well distributed

in the planning area.” 

Plaintiffs argue that the present project would render

the NSO and the coho salmon not viable. They argue that, since

the purpose of the ESA is to allow a species to recover, any FS

project that would impair that recovery is unlawful.

In evaluating plaintiffs’ argument, a key distinction

between NFMA and NEPA must be highlighted. NEPA is a statute

governing the FS’s procedure in making its determinations in this

case. NFMA, by contrast, is a substantive control on the FS’s

actions. See Inland Empire Pub. Lands Council v. United States

Forest Serv., 88 F.3d 754, 757-58 (9th Cir. 1996)(comparing the

two acts). This court is in a much better position to evaluate

the procedures the FS followed or failed to follow than it is to

sift through the scientific evidence and evaluate the ultimate

findings of the FS. See Norton v. S. Utah Wilderness Alliance,

124 S.Ct. 2373, 2381 (2004)(a principal purpose of the APA is “to

avoid judicial entanglement in abstract policy disagreements

which courts lack both expertise and information to resolve”). 

Furthermore, this court’s finding that an EIS is required before

this project may go forward renders any ruling on substantive

violations of the NFMA tentative at best. If and when an EIS is

prepared, the parties will likely return to this court to dispute

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11 The FS considers Middle Creek not to be occupied by coho

salmon. (Fish BA, AR 505).

12 The court addresses this NFMA argument because it is

easily disposed of at this stage.

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the substance of the EIS. Hopefully the EIS will contain a more

complete evaluation of the effects of this project on the NSO,

and the court considers it more efficient to delay any decision

on any substantive violation of this regulation under the NFMA

until that time.11

2. Management Indicator Species

Plaintiffs’ second NFMA argument is that the FS failed

to measure the effect of the project on Management Indicator

Species (“MIS”).12 “NFMA requires that the Forest Service

identify Indicator Species, monitor their population trends, and

evaluate each project alternative in terms of the impact on both

Indicator Species habitat and Indicator Species populations.” 

Lands Council, 395 F.3d at 1036. These Indicator Species serve

as a proxy for the relative health of other species that rely on

the same habitat.

In this case, the FS used the “proxy-on-proxy”

approach, in which the population trends of the Indicator Species

are evaluated by evaluating the habitat in which those Indicator

Species live. See id. The Ninth Circuit has found this method

allowable in appropriate cases, but the methodology for

identifying the habitat proxy must be sound. Id.; see also

Inland Empire, 88 F.3d at 760(deferring to agency’s

interpretation of its own regulations to find that proxy-on-proxy

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approach was suitable under § 219.19).

Plaintiffs argue that the FS’s methodology is flawed. 

(Pls.’ Mem. in Supp. of Summ. J. at 49)(“the Forest Service has

failed to put forward any date to indicate that its methods of

assessing habitat and habitat relationships are fact accurate”). 

However, plaintiffs do not point to any particular methodological

flaw. Compare Lands Council, 395 F.3d at 1036(“Here, there is

evidence that the Forest Service’s main tool for old growth

calculation, the timber stand management reporting system

database . . ., was inaccurate.”). The court has analyzed the

Westpoint MIS assessment, (AR 655-81), and does not find the

requisite flaws with the analysis are present so that the proxyon-proxy approach is not permissible. The court defers to the

FS’s expertise in developing the appropriate model for measuring

the population trends in the MIS.

III. Injunctive Relief

To determine whether injunctive relief is an

appropriate remedy for an agency’s failure to prepare an

environmental impact statement, a court must apply the

traditional balance of harms analysis. Nat’l Parks, 241 F.3d at

737. Absent unusual circumstances, injunctive relief is the

appropriate remedy for a violation of NEPA. Forest Conservation

Council v. United States Forest Serv., 66 F.3d 1489, 1496 (9th

Cir. 1995). 

In this case, legal remedies would be inadequate. 

Plaintiffs do not seek money damages. Even if they did, it would

be virtually impossible to quantify the damages resulting from

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the FS’s failure to prepare an EIS. See Amoco Prod. Co. v.

Village of Gambell, 480 U.S. 531, 545 (1987)(“Environmental

injury, by its nature, can seldom be adequately remedied by money

damages and is often permanent or at least of long duration,

i.e., irreparable. If such injury is sufficiently likely,

therefore, the balance of harms will usually favor the issuance

of an injunction to protect the environment.”). In this case, if

the FS were allowed to go forward without preparing an EIS,

irreparable damage would be done. The public interest also

weighs in favor of granting an injunction, as that interest is

expressed in the NEPA statute and the ESA. On the other hand, if

an injunction issues the FS will be unable to collect the value

of the timber to be harvested. However, after the FS has

complied with its obligations under NEPA, assuming it chooses to

go forward with this project, it may be able to collect the value

of the timber. Therefore, the balance of harms clearly favors

the plaintiffs in this case.

Given the above, the court grants plaintiffs’ request

for injunctive relief. Defendants are enjoined from proceeding

with the Westpoint project until such time as the Forest Service

satisfies its NEPA obligations. See Muckleshoot Indian Tribe,

177 F.3d at 815(similar injunction).

IT IS THEREFORE ORDERED that:

(1) plaintiffs’ motion for summary judgment be, and the

same hereby is, GRANTED, and defendants’ motion for summary

judgment be, and the same hereby is, DENIED, to the extent that

the defendants violated NEPA by failing to prepare an

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Environmental Impact Statement and by failing to consider an

adequate range of alternatives; 

(2) defendants’ motion for summary judgment be, and the

same hereby is, GRANTED, and plaintiffs’ motion for summary

judgment be, and the same hereby is, DENIED, to the extent that

defendants did not violate NFMA;

(3) defendants be, and hereby are, PERMANENTLY ENJOINED

from proceeding with the Westpoint project. Should the FS at

some point in the future comply with NEPA, it may move this court

to dissolve this injunction. 

DATED: May 4, 2005

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