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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

SIERRA NEVADA FOREST

PROTECTION CAMPAIGN, PLUMAS

FOREST PROJECT EARTH ISLAND

INSTITUTE; and CENTER FOR

BIOLOGICAL DIVERSITY, nonprofit organizations,

NO. CIV. S 04-2023 MCE GGH

Plaintiffs,

v. MEMORANDUM AND ORDER

UNITED STATES FOREST SERVICE;

JACK BLACKWELL, in his

official capacity as Regional

Forester, Region 5, United

States Forest Service; and

JAMES M. PEÑA,

Defendants.

----oo0oo----

In instituting this litigation, Plaintiffs Sierra Nevada 

Forest Protection Campaign, Plumas Forest Project Earth Island

Institute, and Center for Biological Diversity (hereinafter

collectively referred to as “Plaintiffs”) challenge the decision

by Defendants United States Forest Service, Jack Blackwell, and

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James Peña (hereinafter “Forest Service”) to proceed with

implementation of the logging and fuel treatments contemplated by

the Meadow Valley Project (“MVP”). Specifically, Plaintiffs

assert that the Forest Service’s approval of the project without

preparation of an Environmental Impact Statement (“EIS”) violated

the provisions of the National Environmental Protection Act, 42

U.S.C. § 4321, et seq. (“NEPA”). Plaintiffs further assert that

the project, as designed, fails to achieve fire resilient forests

despite being contemplated to do so. Finally, Plaintiffs contend

the Forest Service failed to specifically mark trees for removal

pursuant to the MVP in violation of the National Forest

Management Act, 16 U.S.C. § 472a(g). (“NFMA”). 

Plaintiffs now move for summary judgment on grounds that the

administrative record establishes, as a matter of law, that an

EIS should have been prepared, that the project was be redesigned

to achieve fire resilience, and that the Forest Service must mark

all trees as required by the NFMA. The Forest Service has

responded with its own motion for summary judgment. The Forest

Service argues that the MVP in fact meets all federal

requirements and that an EIS is consequently unnecessary. 

For the reasons stated below, summary judgment in favor of

the Forest Service will be granted, and Plaintiffs’ motion will

be denied.

FACTUAL BACKGROUND 

This case arises from the Herger-Feinstein Quincy Library

Group Forest Recovery Act of 1998 (“QLG Act” or “Act”), pursuant

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Designations to the “AR” throughout this Memorandum and 1

Order refer to the Administrative Record designated by the

parties.

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to which Congress directed the Secretary of Agriculture to

conduct a pilot project involving construction of a strategic

system of defensible fuel profile zones (“DFPZs”) and group

selection logging designed “to achieve a desired future condition

of all-age, multistory, fire resilient forests.” QLG Act, Pub L.

105-277, Div. A. [Title IV, Sec. 401], Oct. 21, 1998, 122 Stat.

2681-305 (16 U.S.C. § 2104 note), § 401(b), (d). Pursuant to the

QLG Act, a pilot project area is to be implemented on

approximately 1.5 million acres within the Plumas and Lassen

National Forests and the Sierraville Ranger District of the Tahoe

National Forest.

In implementing the QLG Act, Congress exempted the habitat

of the California spotted owl. The California spotted owl is a

medium sized raptor inhabiting the Sierra Nevada mountain range

from Shasta County south to Kern County. The California spotted

owl has not been classified as either threatened or endangered

under the Endangered Species Act of 1973 (“ESA”). See 68 Fed

Reg. 7580, 7608 (Feb. 14, 2003) (denying petition to list the

owl). The California spotted owl has, however been designated as

a “sensitive” species due to concerns regarding its viability (13

AR 4822) as the old forest conditions it prefers (typified by 1

large trees, dense and multi-layered forest canopies, large

standing dead trees (“snags”) and downed logs and woody debris)

have been depleted through logging, development and related

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Nonetheless, within the approximately 7.37 million acres of 2

forested land within the Sierra Nevada, some 4.12 million acres

is considered potentially suitable habitat for the spotted owl. 

4 AR 1402.

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activities. See 10 AR 03838. Because its population changes 2

are believed to indicate the effects of forest management

practices on other species dependent on old forest habitat, the

California spotted owl has also been designated as a “management

indicator species” for the Plumas National Forest. 13 AR 4798-

99. 

In a 1999 Final Environmental Impact Statement (“FEIS”) for

the QLG Act pilot project on a programmatic basis, the Forest

Service concluded that the construction of fuel treatments as

envisioned by the Act would reduce the amount of California

spotted owl nesting habitat by 7 percent and the amount of owl

foraging habitat by an additional 8.5 percent, for a total

reduction of 15.5 percent of suitable owl habitat within the

pilot project area. 7 AR 2581. 

In the Record of Decision (“ROD”) that accompanied the 1999

FEIS, the Forest Service recognized that a 15.5 percent reduction

in California spotted owl habitat “could pose a serious risk to

the viability of the California spotted owl in the planning area,

thereby making the implementation of [the selected alternative]

inconsistent with the National Forest Management Act.” 7 AR

2384. The Forest Service concluded that “additional mitigation

must be applied... in order to provide sufficient protection to

the California spotted owl.” 7 AR 2388. Consequently, as a

mitigation measure, the Forest Service required that “[a]t the

site-specific level, defensible fuel profile zones, group

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selection harvest areas, and individual tree selection harvest

areas will be designed and implemented to completely avoid

suitable California spotted owl habitat, including nesting

habitat and foraging habitat.” 7 AR 2383. The 1999 ROD provided

only programmatic direction in this regard, and specified that

all project-level decisions must be implemented “after sitespecific environmental analysis and review.” Id. 

In 2001, the Sierra Nevada Forest Plan, which provides a

comprehensive management strategy for all eleven national forests

within the Sierra Nevada range, was amended. In addressing the

maintenance of old forest ecosystems and species associated with

those ecosystems, the ROD adopting the amendment imposed

requirements for managing the California spotted owl. The ROD

established Protected Activity Centers (“PACs”), which consisted

of 300 acres around each known owl nest or roosting site. In

addition, 1,000 acre Home Range Core Areas (“HRCAs”) were set

aside in conjunction with each PAC. The 2001 ROD imposed

additional requirements on timber harvest, including diameter

limits and requirements for snag retention and forest canopy

closure. 

Following adoption of the 2001 Sierra Nevada Forest Plan

Amendment (“2001 SNFPA”), the Forest Service determined that

additional review was needed to determine how to implement the

QLG pilot project to the fullest extent possible. The year-long

public review which ensued culminated with the issuance of new

management recommendations in March of 2003. The resulting SNFPA

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A complete copy of the MRR is attached to the Forest 3

Service’s Second Errata to Memorandum in Support of Cross Motion

for Summary Judgment.

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Management Review and Recommendations (“MRR”) determined that 3

the 2001 ROD “severely limits” implementation of the QLG project

by precluding DFPZs and group selection areas. See MRR at 6. 

The review further determined that a new California spotted owl

analysis was warranted, and concluded that studies leading to the

2001 ROD unnecessarily “took a worst case approach to estimating

effects” on the California spotted owl. MRR at 55. In

particular, the 2003 review found that fuel reduction thinnings

entailed by DFPZ construction in owl nesting habitat actually

reduced that habitat by less than one percent in treated acreage,

as opposed to the 100 percent impact assumed by prior analysis. 

Id. Consequently the prior assessment was determined to be

unduly conservative. See id.

Following receipt of the aforementioned MRR, an additional

programmatic Environmental Impact Statement was prepared. The

ensuing 2004 ROD, which replaced the 2001 ROD in its entirety,

amended the Sierra Nevada Forest plans. (“2004 SNFPA”). The 2004

SNFPA revised the analysis of likely effects to the California

spotted owl, and allowed for full implementation of the QLG Act. 

See 4 AR at 1055-56. Nonetheless, under the terms of the 2004

SNFPA, site-specific projects must still be scrutinized for their

particular environmental impact, if any.

The Meadow Valley project at issue in this litigation

(“MVP”) is one such site-specific project. The MVP, approved by

the Forest Supervisor for the Plumas National Forest on April 16,

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2004, is part of the QLG pilot project and involves logging of

about 40 million board feet of timber from approximately 6,440

acres in a 50,400 acre area over a five-year period. The MVP is

located within the Mount Hough Ranger District, Plumas National

Forest, and is located approximately five miles west of Quincy,

California. The project surrounds the community of Meadow

Valley.

The group selection aspect of the MVP involves 743 acres in

488 units scattered throughout the project area. 13 AR 4760. 

The contemplated group selection units range in size from onehalf to two acres, and entails removal of trees up to 30 inches

in diameter at breast height (“dbh”). 12 AR 4346, 4350. Although

this logging would significantly reduce forest canopy cover in

the areas involved, the Forest Service maintains that the broad

dispersal of the units themselves would still maintain relatively

continuous forest cover within the stand as a whole, and would

therefore ensure habitat connectivity for wildlife species

dependent on old forest conditions. At the same time, according

to the Forest Service, opening the forest canopy in the group

selection units permits the reforestation of shade-intolerant

species like the ponderosa pine and hence contributes to forest

diversity and the recreation of pre- European settlement

conditions. 

In addition to the group selection areas, the MVP also calls

for approximately 5,700 acres of DFPZ logging in 37 units. 13 AR

4760-63. DFPZs are long strips, up to a quarter mile in width,

that generally follow ridgetops or roadway areas. DFPZs are

designed to provide breaks that reduce the possibility of

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catastrophic crown fire destroying the forest canopy. See 13 AR

4824; 12 AR 4433-4455. Within DFPZ units, trees larger than

20" dbh would be retained in approximately 82 percent of the

units, and trees larger than 30" would generally be retained in

all units, along with snags and large logs. 13 AR 4793; 15 AR

5498. No minimum canopy cover is required in DFPZs unless the

area slated for treatment had more the 40 percent canopy cover

beforehand, in which case that cover would be retained. That

cover requirement, however, applies to only some 978 acres of the

total 5,700 acres contemplated as DFPZs. See 15 AR 5498.

 For both group selection and DFPZ units, the MVP calls for

treatment of activity-related fuels (slash) through either piling

and burning, underburning or mastication of this logging-related

debris so as to ensure acceptable levels of residual fuel

loading. See 15 AR 5480, 13 AR 4884. Completion of the group

selection and DFPZ units, including slash treatment, is

contemplated to occur within five years after project contracts

are awarded. See 13 AR 4764. With regard to group selection

units, the trees to be logged are designated by description, as

opposed to individual marking of specified trees. 16 AR 5754.

According to the Forest Service, implementation of the MVP 

meets the objectives of the QLG Act by achieving an all-aged

mosaic of timber stands that contributes to the local economy

through a sustainable output of forest products, and at the same

time comprises a fuel treatment network necessary to reduce the

potential risk of future wildfires, provide for increased

firefighter safety, and protect the community of Meadow Valley in

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In 1999 and 2000, four fires occurred in the vicinity of 4

Meadow Valley. Two of those fires, the so-called Pidgeon and

Lookout Fires, entered the area contemplated for treatment under

the MVP and threatened the community of Meadow Valley. See

Intervenors’ Response to Pls.’ Mot. for Summ J., pp. 5-6

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the event of a wildfire. 13 AR 4771-72. 4

With respect to California spotted owl habitat, no MVP

activity is contemplated in either PACs or Spotted Owl Habitat

Areas (“SOHAs”). 13 AR 4824. SOHAs are defined as designated

stands of owl habitat, comprising at least 1,000 acres, that are

located within a 1.5 mile radius of a nesting site. Consequently

SOHAs are less inclusive than HRCAs, which by definition

encompass 1,000 acres immediately around the 300 acre PAC stands

surrounding a California spotted owl nesting or roosting site. 

Using these strictures, the project EA determined that some 96

percent of the combined acreage of PACs and HRCAs within the

wildlife analysis area (85,919 acres) would not be treated. Id.

The actual MVP area itself, however, contains some 945 acres

of suitable California spotted owl nesting habitat and 3,336

acres of suitable foraging habitat. 12 AR 4367-68. Those 4,281

acres of suitable owl habitat comprise some 67 percent of the

project area’s 6400 acres, but only 9.6 percent of total suitable

habitat within the wildlife analysis area as a whole. 12 AR

4367. The proposed MVP project would log portions of some 16

HRCAs. 12 AR 4428. The Forest Service has acknowledged that MVP

logging may render unsuitable nearly all 4,281 acres of nesting

(94.6 percent) and foraging (86.6 percent) habitat in the project

area. 12 AR 4439-40. Nonetheless, the Biological

Assessment/Biological Evaluation for the MVP (“BA/BE”) concluded

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It is undisputed that Plaintiffs filed timely 5

administrative appeals of the Forest Service decision prior to

commencement of this action (15 AR 6564-60, 5681-708) and that

those appeals were subsequently denied. 15 AR 5739-52.

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that owl occupancy is not expected to diminish within the

wildlife analysis area as a whole and a cumulative population

loss is not anticipated with implementation of the MVP. 12 AR

4438. 

After considering an environmental assessment (“EA”) of the

project, the adoption of Alternative C (which allowed the most

logging/fuel treatment in the project area) was approved. 15 AR

5493. Because the Forest Service concluded that the action being

proposed would not result in significant environmental effects, a

Finding of No Significant Impact (“FONSI”) was issued and no EIS

was required. Plaintiffs now challenge that decision by way of

this lawsuit, and ask that a full EIS be prepared before the 5

project is commenced.

Specifically, Plaintiffs take issue with the Forest

Service’s description of the project as achieving fire resilient

forest, claiming that to the contrary the risk of severe fire is

actually increased by the activity being contemplated. In

addition, Plaintiffs claim that the proposed actions will also

adversely affect California spotted owl viability. Moreover,

Plaintiffs assert that Plaintiffs have failed to adequately

disclose and consider the cumulative impacts of the project when

considered together with other past, present, and planned timber

sales in the project area.

As indicated above, Plaintiffs contend that these

shortcomings all run afoul of NEPA, and go on to identify an NFMA

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violation on grounds that timber cutting by designation, as

contemplated by the MVP, is not permitted and that individual

marking, by Forest Service employees, of trees to be logged, must

instead occur.

PROCEDURAL FRAMEWORK

Congress enacted NEPA in 1969 to protect the environment by

requiring certain procedural safeguards before an agency takes

action affecting the environment. The NEPA process is designed

to “ensure that the agency ... will have detailed information

concerning significant environmental impacts; it also guarantees

that the relevant information will be made available to the

larger [public] audience.” Blue Mountains Biodiversity Project

v. Blackwood, 171 F.3d 1208, 121 (9 Cir. 1998). The purpose of th

NEPA is to “ensure a process, not to ensure any result.” Id. 

“NEPA emphasizes the importance of coherent and comprehensive upfront environmental analysis to ensure informed decision-making

to the end that the agency will not act on incomplete

information, only to regret its decision after is it too late to

correct.” Center for Biological Diversity v. United States

Forest Service, 349 F.3d 1157, 1166 (9 Cir. 2003). th

NEPA requires that all federal agencies, including the

Forest Service, prepare a “detailed statement” that discusses the

environmental ramifications, and alternatives, to all “major

Federal Actions significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)[C). To determine whether this

detailed statement (commonly referred to as an EIS) is required,

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an agency may first prepare an environmental assessment (“EA”). 

The objective of an EA is to “[b]riefly provide sufficient

evidence and analysis to determining whether to prepare” an EIS. 

40 C.F.R. § 1508.9(a)(1). If the EA indicates that the federal

action may significantly affect the quality of the human

environment, the agency must prepare an EIS. 40 C.F.R. § 1501.4;

42 U.S.C. § 4332(2)[C).

In the event an agency determines that an EIS is not

required, it must, as the Forest Service did here, issue a FONSI

detailing why the action “will not have a significant effect on

the human environment.” 40 C.F.R. § 1508.13. As is customary,

the FONSI in this case is contained within the project EA. The

EA must support the agency’s position that a FONSI is indicated. 

Blue Mountains, 161 F.3d as 1214. 

Whether there may be a significant effect on the human

environment requires consideration of two broad factors, context

and intensity. As the Ninth Circuit explained in Nat’l Parks &

Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9 Cir. 2001): th

“Context simply delimits the scope of the agency’s action,

including the interests affected. Intensity relates to the

degree to which the agency action affects the locale and

interests identified in the context part of the inquiry.”

NEPA regulations provide relevant factors for evaluating

intensity, including, inter alia:

(2) The degree to which the proposed action affects public

health and safety. 

...

(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 of

unknown risks.

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...

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

individually insignificant but cumulatively significant

impacts. Significance exists if it is reasonable to

anticipate a cumulatively significant impact on the

environment. Significance cannot be avoided by terming an

action temporary or by breaking it down into small component

parts. 

...

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

endangered or threatened species or its habitat that has

been determined to be critical under the Endangered Species

Act of 1973.

40 C.F.R. § 1508.27(b).

The presence of one such factor may be sufficient to deem

the action significant in certain circumstances. Ocean Advocates

v. United States Army Corps. Of Eng’rs, 361 F.3d 1108, 1125 (9th

Cir. 2004). If substantial questions are raised as to whether a

project may have a significant effect on the environment, an EIS

should be prepared. Save the Yaak Committee v. Block, 840 F.2d

714, 717 (9 Cir. 1988). “An agency’s decision not to prepare th

an EIS will be considered unreasonable if the agency fails to

supply a convincing statement of reasons why potential effects

are insignificant.” Id.

In addition to arguing that the Forest Service violated NEPA

by failing to prepare an EIS in this case, Plaintiffs also

contend that the Forest Service’s designation of trees to be cut

by designation, as opposed to individual marking, violates the

NFMA, which requires that “resource plans and permits, contracts,

and other instruments for the use and occupancy of National

Forest Systems lands shall be consistent with the land management

plans.” 16 U.S.C. § 1604(i). Consequently, all activities in

Forest Service forests, including timber projects, must be

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determined to be consistent with the governing forest plan, which

is a broad, programmatic planning document. See, e.g.,

Wilderness Society v. Thomas, 188 F.3d 1130, 1132 (9 Cir. th

1999).

Because neither NEPA nor NFMA contains provisions allowing a

private right of action (see Lujan v. National Wildlife

Federation, 497 U.S. 871, 882 (1990) and Ecology Center Inc. v.

United States, 192 F.3d 922, 924 (9 Cir. 1999) for this th

proposition under NEPA and NFMA, respectively), a party can

obtain judicial review of alleged violations of NEPA and NFMA

only under the waiver of sovereign immunity contained within the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.

Under the APA, the court must determine whether, based on a

review of the agency’s administrative record, agency action was

“arbitrary and capricious”, outside the scope of the agency’s

statutory authority, or otherwise not in accordance with the law. 

Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356

(9 Cir. 1994). Review under the APA is “searching and th

careful.” Ocean Advocates, 361 F.3d at 1118. However, the court

may not substitute its own judgment for that of the agency. Id.

(citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971), overruled on other grounds by Califano v.

Sanders, 430 U.S. 99 (1977)).

In reviewing an agency’s actions, then, the standard to be

employed by the court is decidedly deferential to the agency’s

expertise. Salmon River, 32 F.3d at 1356. Although the scope of

review for agency action is accordingly limited, such action is

not unimpeachable. The reviewing court must determine whether

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there is a rational connection between the facts and resulting

judgment so as to support the agency’s determination. Baltimore

Gas and Elec. v. NRDC, 462 U.S. 87, 105-06 (1983), citing Bowman

Trans. Inc. v. Arkansas-Best Freight System Inc., 419 U.S. 281,

285-86 (1974). In short, the court must ensure that the agency

has taken a “hard look” at the environmental consequences of its

proposed action. Oregon Natural Resources Council v. Lowe, 109

F.3d 521, 526 (9 Cir. 1997). th

AUGMENTATION OF THE ADMINISTRATIVE RECORD

The Forest Service has moved to strike certain evidence

offered by Plaintiffs in conjunction with the summary judgment

motions presently before the Court. Specifically, the Forest

Service asserts that because the Declarations of Monica Bond,

Jennifer Blakesley, and Dennis Odion, along with the Supplemental

Declaration of Chad Hanson, were not part of the underlying

administrative record they should be disregarded. Defendants

make the same argument with regard to certain attachments to the

Declaration of George Torgun. In response, Plaintiffs have not

only argued that inclusion of the above materials is appropriate,

but they have also moved to supplement the record to include

several additional items (a supplemental declaration from Dennis

Odion, the Declaration of Don C. Erman, and four attachments to

the Declaration of Rachel M. Fazio).

The Forest Service correctly points out that “the focal

point for judicial review should be the administrative record

already in existence, not some new record made initially in the

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reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973);

Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100

F.3d 1443, 1450 (9 Cir. 1996). The rationale for this general th

rule is that the reviewing court should determine agency

compliance with the law solely on the record before the agency at

the time of its decision. See Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 419 (1971). Limiting review in that

regard precludes the reviewing court from conducting a de novo

trial and substituting its opinion for that of the agency. See

id. at 416.

Consideration of extra-record evidence may nonetheless be

justified (1) if necessary to determine “whether the agency has

considered all relevant factors and has explained its decision”;

(2) if “the agency has relied on documents not in the record”;

(3) “when supplementing the record is necessary to explain

technical terms or complex subject matter”; or (4) when

plaintiffs make a showing of agency bad faith.” Lands Council v.

Powell, 379 F.3d 738, 747 (9 Cir. 2004). These exceptions th

“operate to identify and plug holes in the administrative

record.” Id.

The Blakesley, Bond, Odion and Hanson declarations all

consist of scientific opinion testimony criticizing the adequacy

of the Forest Service’s analysis of MVP effects on the California

spotted owl and on fire risk. These declarations all pertain to

Plaintiffs’ claim that significant environmental impacts were 

ignored in the MVP EA, and that consequently, the provisions of

NEPA were violated. The Odion declaration, for example, relates

to the sufficiency of the Forest Service’s analysis of project

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Although of more attenuated relevance to the Lands Council 6

factors as delineated above, the supplemental Hanson declaration

is offered to aid the Court, through photographs, in

understanding Plaintiffs’ argument that some units within the

project area had previously been adequately treated for fire risk

reduction. It will be accepted on that basis. 

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fire risk, and purports to explain complex matters dealing with

the science of fire risk. Hence the Odion declaration falls

within the first and third exceptions to the administrative

record review as articulated by the Ninth Circuit in Lands

Council.

The Blakesley and Bond declarations argue that the Forest

Service failed to sufficiently consider the effects of the

project on the California spotted owl, and hence pertain to

Plaintiffs’ NEPA claim as well. The attachments to the Torgun

Declaration also relate to Plaintiffs’ assertion, under NEPA,

that cumulative effects of the MVP were not properly considered.6

The same arguments apply to the additional declarations and

evidence that Plaintiffs separately request be included within

the administrative record.

In cases challenging the adequacy of agency review

under NEPA, the Ninth Circuit has routinely admitted extra-record

evidence to show that the agency failed to consider all relevant

factors in assessing potential environmental effects. See, e.g.,

Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 n. 22

(9 Cir. 1992); City of Davis v. Coleman, 521 F.2d 661, 675 (9 th th

Cir. 1975); Natural Resources Defense Council v. Duvall, 777 F.

Supp. 1533, 1534 n. l (E.D. Cal. 1991). In Environment Now! v.

Espy, 877 F. Supp. 1397, 1404 (E.D. Cal. 1994), this district

permitted expert declarations in order to highlight perceived

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deficiencies in the environmental review process and to explain

and assist understanding the complex and technical subject matter

underlying the agency decision at issue.

This liberality in allowing consideration of material beyond

the record makes sense given the fact that NEPA requires the

court to make a “substantial inquiry” into the nature of a

federal agency’s NEPA compliance. See Citizens to Preserve

Overton Park v. Volpe, 401 US. at 415. As the Ninth Circuit

pointed out in Asarco Inc. v. United States Environmental

Protection Agency, 616 F.2d 1153, 1160 (9 Cir. 1980), “it will th

often be impossible, especially when highly technical matters are

involved, for the court to determine whether the agency took into

consideration all relevant factors unless it looks outside the

record to determine what matters the agency should have

considered but did not.”

Given these considerations, and because the materials at

issue herein all relate to NEPA claims, they will be considered

by this Court. Consequently, the Forest Service’s Motion to

Strike is denied and Plaintiffs’ request to augment the record is

granted.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide for

summary judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

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as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). Under summary judgment practice, the

moving party

“always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file together with the

affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Rule

56[c).

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-587 (1986); First Nat’l Bank v. Cities Ser. Co., 391 U.S.

253, 288-289 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986).

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Summary judgment is appropriate in cases, like the present

matter, which involve judicial review of administrative action

where review is based upon an administrative record. National

Wildlife Fed’n v. Babbitt, 128 F. Supp. 2d 1274, 1289 (E.D. Cal.

2001), see also Northwest Motorcycle Ass’n v. U.S. Dept. Of

Agriculture, 18 F.3d 1468 (9 Cir. 1994). th

ANALYSIS

A. Impact on the California Spotted Owl

The parties do not dispute that the California spotted owl

is a territorial species that preferentially utilizes habitat

near and around its nest tree. Plaintiff’s Undisputed Fact

(“PUF”) No. 20. For that reason, 300 acres have been set aside

as PACs around each nesting site. The MVP leaves those PACs

completely intact, and further leaves intact an additional 1,000

acres of foraging area, or SOHA, within a 1.5 mile radius of each

nesting site. 15 AR 5497. 

It is the MVP’s impact on the HRCAs, which as stated above

are the 700 acres immediately surrounding each PAC, that is at

issue. As indicated above, sixteen HRCAs located within the MVP

area would be impacted by the proposed logging. 12 AR 4368.

Approximately one-third of the MVP group selection areas are

located within HRCAs, some directly adjacent to owl PACs. 12 AR

4489. Given the Forest Service’s admission that all of the

4,281 acres of suitable owl habitat falling within the project

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area could be rendered unsuitable by the MVP (PUF No. 50; 12 AR

4439-40), Plaintiffs contend that such impact would create a risk

of decreased California spotted owl survival and reproduction in

the project area, even if California spotted owl occupancy

remains stable, and would contribute to the need to eventually

list the owl under the Endangered Species Act. Blakesley Decl.

¶¶ 7-11; Bond Decl. ¶¶ 16-23, 38-39.

In addition, aside from the 6,440 acres Meadow Valley

Project itself, Plaintiff argue that there are an additional 14

PACs and associated HRCAs within the greater 85,919 acre wildlife

analysis area that may be indirectly adversely impacted, as well

as 15 more such areas just outside the analysis area. According

to Plaintiffs, the EA has failed to adequately take these

considerations, and the cumulative impacts these pose, into

account.

The MVP EA states that the project alternative selected

(Alternative C) has a higher risk for adversely affecting the

California spotted owl because it deviates more significantly

from prior California spotted owl management strategy and does

create structurally unsuitable habitat across the project area by

reducing canopy closure and old forest conditions. 13 AR 4824. 

Although the EA goes on to conclude that California spotted owl

population/occupancy in the greater wildlife analysis area is not

expected to diminish overall as a result of the project (12 AR

4438), Plaintiffs assert that this conclusion is conclusory and

lacks the quantified analysis to survive NEPA scrutiny.

According to Plaintiffs, the EA makes no more than “general

statements about possible effects and some risk” that are

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insufficient to constitute the “hard look” required by NEPA. 

Klamath-Siskiyou Wildland Center v. Bureau of Land Mgmt., 387

F.3d 989, 993-94 (9 Cir. 2004). th

Specifically, Plaintiffs maintain that the EA fails to

discuss several reasonably foreseeable future actions

implementing the QLG Act pilot project that had been proposed or

planned at the time the MVP was approved. (Pl’s Opening Brief,

26:5-7). To that end, Plaintiffs maintain that the Empire,

Basin, Watdog and Slapjack projects were are well along in the

planning process when the MVP was approved, yet the EA fails to

consider those projects or evaluate their potential cumulative

effects in conjunction with the MVP.

Plaintiffs also take issue with the EA’s conclusion that the

project-specific effects of the Forest Service’s proposed actions

are not likely to be considered “highly controversial” (13 AR

4815), and hence do not require preparation of a full EIS. 

Plaintiffs point to the declarations of their own scientists to

create the requisite controversy. Additionally, in arguing that

the effects of the MVP are also “highly uncertain” and merit

preparation of an EIS on that basis as well (See 40 C.F.R. §

1508.27(b)(5)), Plaintiffs point to the Forest Service’s own

previous findings as proof of such uncertainty. They emphasize

that the MVP is the first major project to fully implement the

QLG-prescribed group selection and DFPZ treatments without

previously recognized California spotted owl habitat protections. 

In countering Plaintiffs’ argument that it failed to

adequately consider the cumulative effects of the project, the

Forest Service first argues that Plaintiffs’ failure to

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specifically raise the projects not considered by the Forest

Service precludes Plaintiffs from now raising those unexhausted

contentions. The Forest Service points out that in order to

challenge an administrative decision in Federal court, a

plaintiff must first exhaust all available remedies required by

statute. In that regard, the Forest Service contends that the

issues raised in an administrative appeal must be delineated in

sufficient detail to provide notice to the Forest Service to

rectify any alleged violations. Native Ecosystems Council v.

Dombeck, 304 F.3d 886, 899 (9th Cir. 2002). The Forest Service

maintains that Plaintiff failed to meet their exhaustion

requirement because they neglected to specifically raise the

Empire, Basin, Watdog and Slapjack projects now identified in

this lawsuit.

This argument fails for several reasons. First, the

cumulative impacts issue arises in the context of Plaintiffs’

NEPA claims and neither NEPA itself, nor NEPA’s implementing

regulations, contain an exhaustion requirement. Consequently the

statutes in question do not mandate exhaustion. See Darby v.

Cisneros, 509 U.S. 137, 146-47 (1993). To the contrary, in

claims arising under NEPA, “the Forest Service has a duty to

address cumulative action regardless of whether plaintiffs

complain of violations.” Sierra Club v. Bosworth, 199 F. Supp.

2d 971, 988 (N.D. Cal. 2002); see also California v. Bergland,

483 F. Supp. 465, 472, n. 5 (E.D. Cal. 1980)(noting that “there

appear to be no administrative remedies to exhaust before suing

under NEPA”). Finally, as Plaintiffs point out, they

participated in the comment and administrative appeals process

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for the MVP, and the record documents several instances where

Plaintiffs raised the Forest Service’s alleged failure to

consider cumulative impacts in any event. (See Pls.’ Opp’n to

Def.’s Mot. for Summ. J., pp. 15-17).

Plaintiffs’ cumulative effect argument nonetheless fails to

pass muster when considered on its merits. As the Forest Service

points out, although the MVP itself comprises only some 6,400

acres, in defining the wildlife analysis area for purposes of the

project EA, and in assessing cumulative effects, an area more

than twelve times as large was selected, based on the lines of

the next outlying HRCA beyond each HRCA where project activity

would occur. See 12 AR 4489 (displaying relationship between

treatment zones, wildlife analysis areas and owl PACs and HRCAs);

see also 12 AR 4351 (defining the analysis area as ”the project

area plus an additional larger land base, determined by spotted

owl distribution, that may be affected by cumulative effects,

totaling approximately 85,919 acres”). Significantly, defining

the geographic area for assessment purposes is “a task assigned

to the special competency of the appropriate agencies,” and such

decisions are given deference. Kleppe v. Sierra Club, 427 U.S.

390, 414 (1976); see also Selkirk Conservation Alliance v.

Forsgren, 336 F.3d 944, 959-960). 

Forest Service formulation of the 85,919 acre wildlife

analysis area here is accordingly entitled to deference under

//

//

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//

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While Plaintiffs’ cumulative effects argument appears to be 7

primarily centered on an alleged failure to properly consider

certain future projects falling outside the analysis area, with

respect to past and ongoing projects, the BA/BE for the MVP EA

identified numerous timber sale projects within the analysis

area, described the silvicultural system used, and the extent of

anticipated effects. See 12 AR 4397-4402, 4434-4438, 4439. The

number of acres treated or otherwise affected for some 14 past

and ongoing projects is listed, and the cumulative potential

reduction on spotted owl habitat is thereafter considered. This

is sufficient for NEPA purposes.

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that standard. All of the future projects Plaintiffs claim 7

should have been analyzed are outside the cumulative effects

analysis area. See Bednarski Decl., Attach. 1. The Forest

Service is not obligated under NEPA to discuss how a proposed

project like the MVP would affect California spotted owl

population outside a reasonably selected wildlife analysis

boundary. See, e.g., Inland Empire Pub. Lands Council v. U.S.

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

While Plaintiffs rely on the Ninth Circuit’s decision in

Klamath-Siskiyou, supra, that case dealt with future project

planned in the same watershed that had originally been conceived

as a single project. 387 F.3d at 992. The present case is

distinguishable given the size of the analysis area as well as

the fact that said area was based on California spotted owl

distribution. Consequently the Forest Service here appears to

have determined the boundaries of its analysis area with

cumulative effects in mind, as required by NEPA. Selkirk, 336

F.3d at 958.

As indicated above, in addition to arguing that cumulative

effects have not been properly considered, Plaintiffs also

maintain that an EIS is warranted because the MVP failed to

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The Court recognizes that the degree to which an action may 8

adversely affect an endangered or threatened species or its

habitat should also be considered, but merges that factor with

the highly controversial and uncertain aspects discussed below,

particularly given the fact that the California spotted owl is

not a listed species under the ESA. Even if the owl were so

listed, however, the mere presence of a threatened or endangered

species in the project area does not necessarily mean that the

action would be significant as defined by Section 1508.27(b)(9). 

See Southwest Ctr. for Biological Diversity v. U.S. Forest Serv.,

100 F.3d 1443, 1450 (9 Cir. 1996). Finally, with respect to th

the effect of the action on public health and safety pursuant to

Section 1508.27(b)(2), those considerations will be discussed

with respect to potential fire risks stemming from the project,

also discussed infra.

Plaintiffs also argue that the Forest Service failed to 9

identify or assess a larger “biological home range” of the

California spotted owl, of which they maintain that the HRCAs

comprise only some 20 percent, with 30-40 percent of owl activity

occurring in the portion of the home range outside the HRCA. 

(See Pl’s Opp. to Defs.’ Mot. for Summ. J., 19:13-15). By

defining the wildlife analysis area at 85,919 acres, however, as

opposed to the 6,400 acres contained within the project itself,

the Forest Service allowed for the possibility that the

California spotted owl’s actual home range exceeded HRCA size. 

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consider the extent to which its proposed action would affect the

California spotted owl in other respects. Plaintiffs

specifically contend that impacts on the California spotted owl

also “significantly affect” the environment because they are

“highly controversial” and because the risks entailed are

“uncertain or involve unique or unknown risks”. See 40 C.F.R. §

1508.27(b)(4), (5).8

Contrary to Plaintiffs’ protestations, the MVP EA does take

a “hard look” at impacts to the California spotted owl and

concludes, as articulated by the Forest Service, that the impacts

would not be significant for six reasons. First, as indicated

above, there would be no project activity in any PACs or SOHAs.9

See 13 AR 4824, 12 AR 4428. Second, when analyzed throughout the

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The Forest Service estimates that some 26,300 acres of 10

foraging habitat would remain within the analysis area. 12 AR

4367-68. This conclusion was reached through analysis of

existing vegetative conditions, as determined by canopy closure

assessment through the California Wildlife Relationship (“CWHR”)

system, which assigns categories based on tree size and canopy

cover. See 12 AR 4469. The cumulative changes in CWHR types for

each alternative contemplated by the MVP were considered. See 12

AR 4390-92. Hence Plaintiffs’ assertion that the MVP fails to

consider effects on owl foraging habitat appears misplaced.

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wildlife analysis area, the vast bulk of existing foraging

habitat (87 percent) and nesting habitat (95 percent) would be

retained. 13 AR 4824, see also 12 AR 4455. Third, “96% of the 10

combined acreage of PACs and HRCAs would not be treated.” 13 AR

4824. Fourth, of the 30 HRCAs situated within the wildlife

analysis area, sixteen would be reduced only by an average of 7

to 8 percent. Id. Fifth, the Forest Service found that the

three PAC/HRCAs subject to the greatest suitable habitat

reduction had not been occupied by owls for the preceding two

years. 13 AR 4824, see also 12 AR 4455. Finally, as discussed

in more detail below, the fact that DFPZs are designed to reduce

the risk of a catastrophic crown fire will actually safeguard the

canopy cover critical to California spotted owl habitat. See 13

AR 4824; 12 AR 4433, 4455.

Moreover, in concluding that the previous 1999 ROD

unnecessarily “took a worst case approach to estimating effects”

on California spotted owl habitat (by assuming that group

selection/DFPZ construction would render 100 percent of impacted

habitat unsuitable (see MRR 55; see also 4 AR 1402), the Forest

Service found that past fuel reductions in owl nesting habitat

“actually reduced that habitat by less that one percent of the

acreage treated,” rather than 100 percent. MRR at 55. The team

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The Forest Service also evaluated effects on California 11

spotted owl prey base, and determined that structural elements

retained for owl habitat (like snag retention and downed logs)

would also provide habitat for species preyed on by the

California spotted owl like woodrats and flying squirrels. See

12 AR 4434.

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reviewing the 199 ROD further explained:

“Considering all timber strata used by owls for nesting,

past projects reduced only six percent of the acres of

habitat treated to lower quality habitat strata. Even

assuming the Pilot Project would double the highest

percentage of reductions in habitat within treated areas

previously experienced (six percent); the projected

reductions in owl habitat would only be 12 percent of the

100 percent used in the analysis.”

Id.

Examination of the MVP BE also indicates that project

effects of fragmentation and loss of connectivity of California

spotted owl habitat were considered. Although recognizing that

group selection would create some “low-moderate density openings

within stands” (12 AR 4432), the Forest Service determined that

the size of these gaps would still “meet the definition of

continuous forest cover” previously formulated by California

spotted owl habitat guidelines. 12 AR 4432, 4438; 15 AR 5465. 

The Forest Service biologist went on to conclude that this would

not significantly impact the California spotted owl because the

canopy openings would be low to moderate in extent, and because

other structural elements like retained large trees, downed logs

and snags would mitigate against habitat barriers. See 12 AR

4432. The Forest Service further noted that historical

understory densities were discontinuous and that understory

elements can return relatively quickly. Id.11

In addition to analyzing impact on California spotted owl

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habitat, the EA defends its conclusion that California spotted

owl occupancy would not be reduced with scientific support also

providing a reasonable basis for the Forest Service to have

concluded that potential effects to California spotted owls would

not be significant. A Forest Service biologist examined 16 HRCAs

which would be directly affected by the MVP (see 12 AR 4431), and

for each such HRCA analyzed the likelihood of occupancy based on

past data on reproduction and pair occupancy in the associated

PAC. See 12 AR 4475. The biologist further assessed the

percentage portion of the HRCAs subject to treatment along with

the number of acres of suitable habitat to be harvested. Based

on those figures, the degree of potential risk to PAC viability

was calculated and considered. 12 AR 4427-4440.

In determining that the degree and distribution of habitat

impacts would not lead to changes in California spotted owl

occupancy or threaten the species’ viability (see 15 AR 5467),

the Forest Service relied in part on similar silvicultural and

fuel treatments, as well as other improvements, that have been

implemented on the Mount Hough Ranger District in recent years. 

13 AR 4816.

The mere existence of opposition to a project does not

automatically render it controversial; it is only one factor to

be considered in whether an EIS must be prepared. Greenpeace

Action v. Franklin, 14 F.3d 1324, 1333 (9 Cir. 1992; Cold th

Mountain v. Garber, 375 F.3d 884, 893 (9 Cir. 2004). While th

Plaintiffs asserted during oral argument that anything impacting

California spotted owl habitat is by its very nature

controversial, that position is unfounded. Instead, a

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substantial question as to significant environmental degradation

is required in order to cast serious doubt as to the

reasonableness of an agency’s determination. Nat’l Parks v.

Babbitt, 241 F.3d at 736. Plaintiffs have not identified

concerns rising to that level in this case.

Similarly, in concluding that project risks to the

California spotted owl are neither uncertain nor unknown, as

indicated above the Forest Service addressed direct effects to

California spotted owl habitat on sixteen PACs/HRCAs, the

indirect effect of the project on thirty others, and the extent

to which suitable habitat within each HRCA was impacted. 12 AR

4427-4432; see also 15 AR 5462. The Forest Service also pointed

to its experience with similar projects in concluding that

anticipated project effects were not unknown. 13 AR 4816. In

addition, and in any event, “NEPA regulations do not require a

reviewing agency to eliminate all uncertainty prior to issuing a

[finding of no significant impact].” Northwest Envtl. Def. Ctr.

v. Wood, 947 F. Supp. 1371, 1385 (D. Or. 1996) 

Taken as a whole, the EA and supporting documents adequately

evaluated the potential impact to the California spotted owl

posed by the MVP, and reasonably concluded that no significant

effects would result. Invalidating the scientific analysis

undertaken by the Forest Service in the EA would force this Court

to choose between competing expert opinions, a position it should

avoid. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th

Cir. 1992). In addition, the fact that Plaintiffs have produced

scientists disagreeing with the agency’s conclusions does not

render the agency’s conclusions invalid. See City of Carmel-byCase 2:04-cv-02023-MCE -GGH Document 82 Filed 05/09/05 Page 30 of 40
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the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1151-52 (9 Cir. th

1997) (“When specialists express conflicting views, an agency

must have discretion to rely on the reasonable opinions of its

own qualified experts even if, as an original matter, a court

might find contrary views more persuasive.”).

In reviewing the Forest Service’s decision not to prepare an

EIS in this case, this Court will only assess whether its

decision is “based on a ‘reasoned evaluation of the relevant

factors.’” Nat’l Envtl. Def. Ctr. v. Bonneville Power Admin.,

117 F.3d 1520, 1536 (9 Cir. 1997). The Court concludes that th

such a reasoned evaluation occurred here with respect to

potential impacts of the MVP on the California spotted owl. 

Consequently no EIS is mandated, and the Forest Service is

entitled to judgment as a matter of law.

B. Potential Fire Risk/Resilience Associated with Project

Activity

Plaintiffs also claim that the fuel treatment anticipated by

the MVP “will increase the potential for, and risk of, severe

fire in the project area.” Pls’ Mem. At 10. In support of their

argument in that regard Plaintiffs allege that slash, or

flammable logging debris, will be left on site. Plaintiffs

further contend that opening the forest canopy through

construction of group selection units will facilitate the growth

of highly flammable underbrush and will result in drier

conditions more conducive to fire. In arguing that these factors

also require preparation of an EIS, Plaintiffs contend that the

project affects “public health and safety”. 40 C.F.R. §

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As the Record also indicates, some group selection units 12

may slow the initial spread of a fire, ignited inside or

immediately adjacent to such units, from its point of origin,

giving firefighters more time to implement effective suppression

action. 13 AR 4869; see also 13 AR 4795.

Although Plaintiffs argue that a small portion of acreage 13

selected for group selection units (108 acres) and DFPZs (84

acres) had already been treated for fuel reductions, the

Declarations of James M. Peña and Carl Skinner proffered by the

Forest Service adequately explain why retreatment of these

relatively small areas was indicated. See Peña Decl., ¶¶ 17-22;

Skinner Decl., ¶ 19.

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1508.27(b)(2). Plaintiffs further assert that the MVP runs

counter to the stated objective of the QLG Act in decreasing fire

risk and achieving fire resilient forests.

These concerns appear unfounded. Initially, it should be

noted that a key objective of the project is to reduce the risk

of the Meadow Valley community to lightning-induced fires,

several of which have threatened the community since 1999. The

contemplated group selection units, in providing a fuel break,

are designed to slow the advance of fire igniting in or near

those units. See 15 AR 5480-81. In addition, the MVP DFPZs are 12

intended as part of a larger strategic system of DFPZs that

provide safer locations from which firefighters may operate in

the event of wildfire. 13 AR 4743. The DFPZs, as designed, also

serve to reduce the possibility of a catastrophic crown fire that

would remove forest cover and, consequently, California spotted

owl habitat. 13 AR 4824.13

The QLG Act is also designed to increase long-term fire

resilience by promoting development of an all-age, multistory

forest more akin to Sierra Nevada forests that existed prior to

European settlement and twentieth century forest management. See

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Although Plaintiffs also argue the Forest Service’s 14

promotion of pine growth is not recommended for higher elevation

forests and contend that group selection is consequently not

indicated on that basis, as the Forest Service points out, the

overwhelming majority of group units are located below 5500 feet,

and the vast majority of groups located above 5500 feet are

located on south facing exposures, which are hotter and drier,

and therefore more able to support ponderosa pine. See Forest

Service Reply Mem., 39:8-11). 

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QLG Act § 401(d)(2). By opening the canopy and facilitating

grown of more shade-intolerant (and fire resistant) pine trees,

overall fire resilience is improved. See Skinner Decl. ¶¶ 6-7, 14

10-11. The EA adequately evaluated the potential effects of the

MVP on fire and fuels and reasonably concluded that an EIS was

not required. See 13 AR 4795 (discussing effects of group

selection on fire and fuels); 13 AR 4864-4887 (Fire/Fuels

Report).

With respect to Plaintiffs’ specific arguments concerning

fire risk, the MVP does require treatment of logging slash,

contrary to Plaintiffs’ assertion. The timber contracts that

will be used to implement the project will contain provisions

requiring that slash be remediated. See, e.g., 16 AR 5781, 5935

(Provision B6.7); 16 AR 5821-23, 5977-79 (Provision C6.7). As

explained in response to comments generated by the EA:

“[A]fter tree removal in group selection units, activitycreated fuels in the unit would be treated by one or more of

the following methods: piling and burning, underburning,

mastication, or by no treatment at all where residual

surface fuels are at an acceptable level. Trees from group

selection units would be yarded whole to landings. Excessive

surface fuels on landings not chipped and removed as biomass

would be treated with prescribed fire. Excessive surface

fuels created in group selection units would not go

untreated.” 

15 AR 5480; see also 13 AR 4794 (“[r]esidue from group selection

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Although Plaintiffs assert that slash will be treated in 15

the great majority of the project area by simply scattering it to

as much as an 18 inch depth in given logging units (see Pls.’

Opp. To Defs.’ Mot. for Summ. J., 6:2-3), such scattering appears

to be contemplated only for treatment along roads and in DFPZ

units prior to underburning, and is not planned for group

selection units. See Forest Service’s Reply Mem., 35:15-18).

Pertinent forestry terms, including both “butt log” and 16

“bucking”, are defined in Fed. Defs.’ Ex. E.

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and DFPZ construction would be burned, so that surface fuels

would be decreased.”). With respect to timing of these 15

treatments, the timber contracts require a schedule for

completion of slash treatment prior to commencement of logging

operations. 16 AR 5821. Burn piles within group selection units

are anticipated to be burned with one year. 15 AR 5470. 

Consequently, Plaintiffs’ assertion that slash will remain

untreated indefinitely is not supported by the record. 

Plaintiffs also argue that whole tree yarding, pursuant to

which trees are cut into pieces and then removed intact, is only

required for smaller trees less than 20 inches in diameter, while

larger trees generating more slash may be shorn of limbs before

being cut into pieces and skidded to landings. See 16 AR 5817. 

In making that argument, Plaintiffs contend that the term

“bucked” means that log branches are removed. The Forest

Service, however, in response, points out that the term “bucking”

actually refers to sawing felled trees into shorter lengths, as

opposed to “limbing” which entails branch or limb removal. In

fact, the project requires that all trees be whole yarded, and

only the butt log sections of trees greater than 20 inches in

diameter can be limbed. Because the “butt log” is defined as 16

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“the first log cut above the stump”, and because the lower

portions of larger trees typically have few if any branches, the

Forest Service maintains that little slash debris would result. 

That conclusion makes sense. 

With respect to Plaintiffs’ assertion that flammable

vegetation will rapidly regrow in treated areas, thereby

increasing fire risk, the Forest Service notes that brush growth

is not highly flammable until after 20-30 years of brush growth,

and points out that overstory tree growth will occur in the

treated areas prior to that time. 15 AR 5480.

Finally, Plaintiffs also pose the general argument that

construction of DFPZs and group selection units, as envisioned by

the MVP, will create hot and dry conditions that facilitate fire. 

See Decl. of Dennis Odion, ¶¶ 13-14. As indicated above,

however, the the EA outlines why the Forest Service concluded

that the project does have beneficial effects in terms of

decreasing fire risk and promoting fire resilience. In addition,

Plaintiffs have no demonstrated that slash residue poses an

unacceptable risk triggering the need for an EIS.

The fire risk/resilience portion of the MVP passes muster

under both NEPA and the QLG Act. While Plaintiffs’ experts

disagree, the Forest Service’s informed judgment in this case is

entitled to deference. Marsh v. Or. Natural Res. Council, 490

U.S. 360, 378 (1989) (“Because analysis of the relevant documents

‘requires a high level of expertise,’ we must defer to the

‘informed discretion of the responsible federal agencies.’”)

(quoting Kleppe, 427 U.S. at 412). Consequently the Forest

Service is entitled to judgment as a matter of law as to the fire

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Plaintiffs cite legislative history for Section 472a(g) to 17

the effect that the Secretary of Agriculture should have

“sufficient flexibility” to indicate timber to be harvested “by

designating an area in which all timber will be cut, where trees

to be cut will be marked, or where trees to be left will be

marked.” S. Rep. No. 94-893 at 21.22 (1976), reprinted in 1976

U.S.C.C.A.N. 6662, 6681.

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risk/resilience issues as well, in that an EIS is not required

under the circumstances and that no QLG Act violation has

occurred. 

C. Designation, Rather than Individual Marking, of Trees to be

Cut

In addition to the claimed NEPA violations outlined above,

Plaintiffs also contend that the MVP violates the NFMA by failing

to mark the trees to be removed in proposed group selection

units. According to Plaintiffs, the designation of trees to be

logged by description is inadequate to meet the requirements of

the NFMA.

Section 472a(g) of the NFMA provides in pertinent part as

follows:

“[d]esignation, marking when necessary, and supervision of

harvesting of trees, portions of trees shall be conducted by

persons employed by the Secretary of Agriculture. Such

persons shall have no personal interest in the purchase or

harvest of such products and shall not be directly or

indirectly in the employment of the purchase thereof.”

Despite the fact that the language of the statute itself

indicates that marking is only required “when necessary”,

Plaintiffs assert that designation is appropriate only when all

trees in a given area are either to be removed or retained.17

They argue that because the MVP calls for a mix of trees to be

removed or retained in the group selection units, the Forest

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Service is obligated by statute to individually mark the trees

slated for removal.

Individual marking is not necessary in this case because the

timber contracts in question unequivocally designate the size of

trees which may be removed. See, e.g., 16 AR 5793, 5948

(specifying that “no tree larger that 29.9 inches in diameter at

breast height (DBH) is designated for cutting under this

contract...”). Because such provisions unambiguously “designate”

the size of trees to be cut, there is no room for discretion on

the part of the timber purchaser. There is no violation of the

NFMA in the designation provided for within the MVP.

C. Availability of Injunctive Relief

Plaintiffs, in seeking declaratory judgment that the MVP

cannot proceed without first preparing an EIS, in essence seek 

injunctive relief to prevent the project from going forward on

the basis of the EA, alone. Plaintiffs contend that if the MVP

projects proceeds in violation of the procedural mandates of

NEPA, as well as the substantive requirements of the QLG Act and

the NFMA, irreparable environmental harm will occur both because

of potential impacts to the California spotted owl, and because

of an increased risk of severe wildfire in the project area.

The standard governing issuance of such a permanent

injunction must therefore be considered. A two-part inquiry is

required in that regard. Amoco Production v. Village of Gambell,

Alaska, 480 U.S. 531, 542 (1987). First, a court must determine

whether any statute restricts its traditional equity

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jurisdiction. If no such restriction is present, a traditional

balancing of equities must ensue to determine whether an

injunction is appropriate. Id.

Turning first to the initial area of inquiry, the Ninth

Circuit has held that “[t]here is nothing in NEPA to indicate

that Congress intended to limit [a] court’s equitable

jurisdiction.” Save the Yaak, 840 F.2d at 722, citing Northern

Cheyenne Tribe v. Hodel, 842 F.2d 224, 230 (9 Cir. 1988). th

Morever, while not directly addressed in the context of the NFMA

and QLG Act, courts in this circuit have also assumed that

injunctive relief for such violations is appropriate, and the

parties herein do not dispute the potential availability of such

a remedy. See, e.g., Idaho Sporting Congress, Inc., v.

Rittenhouse, 305 F.3d 957, 976 (9 Cir. 2002)(NFMA); Neighbors of th

Cuddy Mountain v. United States Forest Service, 137 F.3d 1372,

1382 (9 Cir. 1998)(NFMA). Consequently this Court must proceed th

to the second prong of the analysis and balance the equities

involved by considering “irreparable injury and inadequacy of

legal remedies.” Amoco Production, 480 U.S. at 542.

The Supreme Court, in Amoco Production, emphasizes that in

environmental cases, the balance of harms typically weighs in

favor of issuing an injunction: “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.” Id. at 545, emphasis added. Nevertheless there

can be no presumption of environmental harm from alleged

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violations of an environmental statute. See id. at 542; Sierra

Club v. Penfold, 857 F.2d 1318 (9 Cir. 1988). th

The necessary assessment of whether environmental injury is

“sufficiently likely” in order to warrant an injunction brings to

play the same factors already discussed. This Court has

determined above that the MVP poses no significant effect on the

environment either in terms of its impact to the California

spotted owl, or with respect to increased fire risk. The Court

has granted summary judgment in favor of the Forest Service as to

those issues, which are the very same bases proffered by

Plaintiffs as justification for injunctive relief in this case. 

Consequently, for the reasons previously stated, no “sufficiently

likely” environmental injury has been identified here that would

warrant issuance of a permanent injunction prohibiting the MVP

from going forward in the absence of an EIS. Without the

possibility of likely environmental injury, Plaintiffs cannot show

the requisite irreparable harm. Moreover, because Plaintiffs have

not shown such likelihood, the Court need not engage in a

balancing of harms analysis. See Idaho Sporting Congress, Inc. v.

Alexander, 222 F.3d 562, 569 (9 Cir. 2000). th

CONCLUSION

For all the foregoing reasons, summary judgment in favor of

the Forest Service is granted. The record demonstrates that the

EA prepared in this matter was based on a reasoned evaluation of

relevant factors. Consequently, the “hard look” already taken by

the Forest Service through the EA is sufficient, and no EIS is

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required. The fact that Plaintiffs’ experts may agree with the

conclusions reached is immaterial given the fact that the Forest

Service may rely upon its own expert analysis in thoroughly

considering the project. Further, in the absence of demonstrating

that environmental injury in this case is sufficiently likely,

Plaintiffs have also no established entitlement to the permanent

injunctive relief they seek in prohibiting implementation of the

MVP pending preparation of an EIS. 

IT IS SO ORDERED.

DATED: May 6, 2005 

______________________________

MORRISON C. ENGLAND, JR. 

UNITED STATES DISTRICT JUDGE 

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