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1 A hearing on the motions was held July 15, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ENVIRONMENTAL PROTECTION )

AND INFORMATION CENTER, a )

California nonprofit )

corporation, )

) No. 02:04-cv-1705-GEB-KJM

Plaintiff, )

) ORDER

v. )

) 

UNITED STATES FOREST SERVICE, )

)

Defendant. )

)

Pending are cross-motions for summary judgment on whether

Defendant violated the National Environmental Policy Act (“NEPA”),

42 U.S.C. §§ 4321-70, and the National Forest Management Act (“NFMA”),

16 U.S.C. §§ 1600-87, in issuing a Finding of No Significant Impact

(“FONSI”) with regards to a tree thinning project in the Yolla Bolla

Ranger District of the Shasta-Trinity National Forest, commonly called

the East Fork Project or East Fork Timber Sale (“Project”).1 The

Project authorizes the thinning and treatment of fire fuels on

approximately 2,077 acres of land in the Shasta-Trinity National

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2 An EA is a “concise public document” that “briefly

provide[s] sufficient evidence and analysis for determining

whether to prepare an environmental impact statement,” or issue a

FONSI. 40 C.F.R. § 1508.9(a)(1); see Cronin v. United States

Dep’t of Agric., 919 F.2d 439, 443 (7th Cir. 1990) (describing

the EA as a “rough-cut, low-budget environmental impact

statement.”). The EA must include “brief discussions of the need

for the proposal, of alternatives, as required by section

102(2)(E) [of NEPA], of the environmental impacts of the proposed

action and alternatives, and a listing of agencies and persons

consulted.” 40 C.F.R. § 1508.9.

2

Forest (“STNF”). (Admin. R. at 1343.) Defendant prepared an

Environmental Assessment (“EA”) to determine whether the Project’s

impacts on the environment were likely to be significant, as well as

the alternative of conducting no action. (Id. at 1350-63.)2

Thereafter, Defendant issued a Determination Notice (“DN”) and a FONSI

in lieu of an Environmental Impact Statement (“EIS”). (Id. at 1276-

84.)

Plaintiff argues that Defendant should have prepared an EIS

in conjunction with the Project because there are substantial

questions whether the Project’s impacts are likely to be significant. 

(Pl.’s Br. Supp. Summ. J. at 2-22.) Alternatively, Plaintiff argues

that the EA is flawed because Defendant failed to adequately analyze

the impacts of the Project. (Id. at 22-42.) Plaintiff also argues

that the EA failed to analyze a reasonable range of alternatives, or

to document that the Project will meet the Defendant’s stated purpose

and need. (Id. at 42-49.) Finally, Plaintiff argues that the Project

violates NFMA. (Id. at 49-55.) Plaintiff seeks an injunction

preventing Defendant from carrying out the Project until the Defendant

complies with the requirements of NEPA and NFMA. (Id. at 55; Compl.

at ¶¶ 18-19.)

Defendant argues that its DN and FONSI comply with the

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requirements of NEPA and NFMA. Alternatively, Defendant argues that

even if its action violates NEPA or NFMA, Plaintiff is not entitled to

injunctive relief.

ANALYSIS

I. Standard of Review

The Administrative Procedures Act (“APA”), 5 U.S.C. §§ 500-

596, 701-706, provides the standard of review for Plaintiff’s

challenge under NEPA and NFMA. Lujan v. Nat’l Wildlife Fed., 497 U.S.

871, 882 (1990); Ecology Center, Inc. v. United States Forest Serv.,

192 F.3d 922, 924-25 (9th Cir. 1999). Pursuant to the APA, a court

should “set aside [an agency’s] actions, findings, or conclusions if

they are ‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.” Ocean Advocates v. United States

Army Corps of Eng’rs, 361 F.3d 1108, 1118 (9th Cir. 2004) (quoting 5

U.S.C. § 706(2)(A)). “Courts apply a ‘rule of reason’ standard in

reviewing the adequacy of a NEPA document.” Klamath-Siskiyou

Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir.

2004) (citing Churchill County v. Norton, 276 F.3d 1060, 1071 (9th

Cir. 2001)). “Under this standard, we ask ‘whether an [environmental

review] contains a reasonably thorough discussion of the significant

aspects of the probable environmental consequences.’” Churchill

County, 276 F.3d at 1071 (citation omitted); accord Arizona Cattle

Growers’ Ass’n v. United States Fish & Wildlife Serv., 273 F.3d 1229,

1236 (9th Cir. 2001) (holding that the reviewing court “must determine

whether the agency articulated a rational connection between the facts

and the choice made.”).

“The court must defer to an agency conclusion that is ‘fully

informed and well-considered,’ but need not rubber stamp a ‘clear

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3 Plaintiff’s motion to strike Exhibit C to Defendant’s

cross-motion for summary judgment, which illustrates forest

conditions before and after thinning, is granted because the

photographs in the Exhibit were not presented to Defendant when

it issued the FONSI. See Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 419 (1971).

4

error of judgment.’” Anderson v. Evans, 371 F.3d 475, 486 (9th Cir.

2004) (quoting Blue Mountains Biodiversity Project v. Blackwood, 161

F.3d 1208, 1211 (9th Cir. 1998)). The Court’s “task in reviewing NEPA

claims is simply to ensure that the procedure followed by the agency

resulted in a reasoned analysis of the evidence before it, and that

the agency made the evidence available to all concerned.” Cold

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

of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.

1985)).3

II. NEPA

A. Did Defendant act arbitrarily and capriciously in

finding that the Project poses no significant 

impacts to the human environment?

NEPA requires federal agencies to prepare an EIS for “major

federal actions significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(c). “Human environment” is broadly

defined “to include the natural and physical environment and the

relationship of people with that environment.” 40 C.F.R. § 1508.14. 

“Significantly” as used in NEPA requires considerations of both

context and intensity. Id. § 1508.27. Context refers to the shortterm and long-term effects on “society as a whole (human, national),

the affected region, the affected interests, and the locality.” Id.

§ 1508.27(a). “Intensity refers to the severity of the impact,” and

the Council on Environmental Quality (“CEQ”) identifies ten factors to

be evaluated when analyzing intensity. Id. § 1508.27(b). To prevail

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on its claim that Defendant’s issuance of a FONSI instead of

preparing an EIS violated NEPA, Plaintiff must raise substantial

questions that the Project may have a significant effect on the

environment. Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th

Cir. 1998). Plaintiff argues that the intensity factors relevant to

the Project include:

(1) Impacts that may be both beneficial and

adverse. A significant effect may exist even if

the Federal agency believes that on balance the

effect will be beneficial. . .

(3) Unique characteristics of the geographic area

such as proximity to . . . ecologically critical

areas.

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

of the human environment are likely to be highly

controversial.

(5) The degree to which the possible effects on

the human environment are highly uncertain or

involve unique or unknown risks. . . .

(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. . . .

(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.

(Pl.’s Br. Supp. Summ. J. at 3-4 (citing 40 C.F.R. § 1508.27(a)).)

Plaintiff presents separate arguments regarding factors (3)

and (4). Factors (5), (7), and (9) are subsumed in Plaintiff’s

arguments that the Project significantly affects the Pacific Fisher,

Coho salmon and spring-run Chinook salmon, and the Northern Spotted

Owl. Factor (5) is also pertinent to Plaintiff’s argument that

Defendant relied on a faulty survey when identifying areas susceptible

to thinning.

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1. Unique Geologic Characteristics

Plaintiff argues that the Project “is located in areas with

unique ecological characteristics” because portions of the Project

area fall within the East Fork Trinity River Watershed, which,

Plaintiff contends, is “an area of pristine biological value for

riparian dependent species.” (Pl.’s Br. Supp. Summ. J. at 4.) 

Further, Plaintiff argues that the Project adversely affects areas

with unique geologic or ecologic characteristics because it calls for

logging in Late Successional Reserves (“LSR”) and Riparian Reserves. 

(Id.)

The EA, however, contradicts Plaintiff’s assertion that the

Project area is of pristine biological value. The EA describes the

Project area as consisting of “single-storied, young-growth mixed

conifer stands, which have had previous harvest entries . . . . 

Stands are currently stocked with too many trees, and are beyond site

capacity to maintain a healthy, vigorous forest condition.” (Admin.

R. at 1341.) While Tier-1 Watersheds, LSR, and Riparian Reserves may

consist of unique ecologic and/or geologic conditions, Plaintiff fails

to demonstrate how the Project area actually possesses unique

characteristics. Therefore, this factor does not warrant an EIS.

2. Controversy

Plaintiff argues that because “the East Fork project

implicates some of the most contentious and important issues in

contemporary forest management,” it is “inherently controversial” and

requires the preparation of an EIS. (Pl.’s Br. Supp. Summ. J. at 5.) 

“A federal action is controversial if ‘a substantial dispute exists as

to [its] size, nature, or effect . . . .’ Controversy does not refer

to the existence of opposition to a use.” Northwest Envt’l Def. Ctr.

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4 “Snags are typically dense woody areas created by

fallen trees or branches.” The Lands Council v. Powell, 395 F.3d

1019, 1024 (9th Cir. 2005).

7

v. BPA, 117 F.3d 1520, 1536 (9th Cir. 1997) (quotations and citations

omitted). Plaintiff has not made a showing that there is a

substantial dispute as to the size, nature, or effect of the Project. 

Cf. Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1219-20 (E.D. Cal.

1999) (holding that sufficient controversy exists to warrant an EIS

where Plaintiff cites to two specialists who raise concerns regarding

specific impacts of a project). Therefore, this factor does not

warrant an EIS.

3. Pacific Fisher

Plaintiff also argues that the Project significantly impacts

the Pacific Fisher (“fisher”) by reducing canopy cover and removing

downed trees and snags. (Pl.’s Br. Supp. Summ. J. at 8.)4 The fisher

(a member of the weasel family) is a Forest Service sensitive species,

but is not listed under the Endangered Species Act as either

endangered or threatened. See 69 Fed. Reg. 18770, 18770-81 (Apr. 8,

2004). Plaintiff asserts that the Project will result in increased

road traffic, which increases the mortality factor for the fisher, and

disrupts the fisher’s foraging and breeding habits. (Pl.’s Br. Supp.

Summ. J. at 8-10.) Further, Plaintiff argues that Defendant erred in

concluding that the Project does not significantly impact the fisher

because the EA does not (1) consider the harvesting of privately-held

lands in the analysis area, or (2) explain why removing structural

habitat components and opening the canopy cover through thinning poses

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5 Plaintiff also argues that the EA fails to adopt a

proper survey estimating the number of fishers in the affected

area. This argument is addressed below in section III.B.

8

only an indirect impact on the fisher. (Id. at 11.)5

Impacts to the fisher cannot be considered “significant”

under NEPA through the ninth CEQ factor because the fisher is not an

endangered or threatened species under the ESA. 40 C.F.R.

§ 1508.27(b)(9). While Plaintiff heavily relies on a statement the

Fish and Wildlife Service (“FWS”) promulgated proposing the fisher be

listed under the ESA (Pl.’s Br. Supp. Summ. J. at 7-8 (citing 69 Fed.

Reg. 18770-80)), Plaintiff’s argument does not rebut FWS’s analysis of

the Project’s potential impacts on the fisher, or FWS’s finding that

the Project poses only indirect risks to the fisher, and that the

fisher should be able to “easily avoid” those risks because of its

mobility and versatility. (Admin. R. at 1921-22, 1925.) In addition,

the Project applies silvicultural prescriptions that result in

structural elements the fisher favors, thus addressing Plaintiff’s

query of why removing structural habitat components and opening the

canopy cover through thinning poses only an indirect impact on the

fisher. (Admin. R. at 1399, 1921-22, 1935.) Defendant concluded,

after consulting with FWS, and considering its own analysis of the

fisher in the EA, that fishers are widely distributed across a variety

of habitat types in the Late Serral Assemblage. This reveals that

Defendant satisfied its obligation to conduct a reasonably thorough

analysis on the Project’s effects on the fisher. See Churchill

County, 276 F.3d at 1071. Further, the analysis and conclusion

reached in the FWS Biological Assessment and the EA rationally relate

to Defendant’s ultimate finding that the Project does not

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significantly impact the fisher. See Arizona Cattle Growers’ Ass’n,

273 F.3d at 1236.

Plaintiff also contends that Defendant failed to consider

cumulative impacts on the fisher resulting from the proposed

harvesting of 300 acres on private property adjacent to the Project

area. Defendant argues that Plaintiff should not be allowed to

litigate this issue because it did not mention this proposed private

activity in its comments regarding the Project or during the

administrative appeal. (Def.’s Br. Opp’n Summ. J. at 20 (citing

Vermont Yankee Nuclear Power Corp. v. Nat’l Resources Def. Council,

Inc., 435 U.S. 519, 553 (1978)).) However, the private activity was

proposed after Plaintiff submitted its comment letter, and concurrent

with the issuance of the first administrative appeal decision. 

(Admin. R. at 1270 (project proposed in December 2003), 861-869

(comment letter dated August 14, 2002; Dugan Decl. re Exhs. A-C ¶ 1,

Exh. C (first administrative appeal decision dated December 15,

2003).) Thus, Defendant’s objection to Plaintiff’s argument is

overruled. Nevertheless, Defendant satisfied its NEPA obligation by

pointing to (1) a letter amending the FWS opinion and evaluating the

cumulative impacts posed by the proposed private action on the

Northern Spotted Owl (“NSO”), and (2) an expert opinion that the

fisher prefers habitat that the NSO also favors. (Admin. R. at 1921-

22, 1951.)

4. Salmonid Species

Plaintiff argues that the Project may significantly impact

Coho salmon, an ESA threatened species, and spring-run Chinook salmon. 

(Pl.’s Br. Supp. Summ. J. at 12.) Further, Plaintiff argues that the

Project will significantly impact critical fish habitat designated

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under the ESA and Essential Fish Habitat (“EFH”) designated under the

Magnuson-Stevens Act. (Id.) Plaintiff contends the Project will

increase coarse sediment to the tributaries of the East Fork South

Fork Trinity River (“River”). (Id. (citing Admin. R. 1384).) This

coarse sediment may reduce the depth of the River’s confluence pool. 

(Id. at 12-13.) In addition, Plaintiff argues that an EIS is required

because Defendant failed to respond to National Oceanic & Atmospheric

Association’s (“NOAA”) recommendation that Defendant “should implement

all road decommissioning and hydro-closures planned for the East Fork

South Fork 5th-field watershed as described in the Roads Analysis

Report: East Fork Watershed (USDS-FS 2003a).” (Admin. R. 1945.)

Regarding the Coho salmon, Defendant’s and NOAA’s biologists

separately analyzed the potential impacts to the species and concluded

that the Project is not likely to adversely affect the species or its

habitat. (Admin. R. at 1374-75, 1385, 1944-45.) Therefore, the CEQ

factor calling for an EIS due to adverse impacts to ESA-listed species

is not violated. 40 C.F.R. § 1508.27(a)(9).

NOAA concluded that “adverse affects to EFH from Project

activities is due to possible degradation of habitat used by Chinook

salmon rather than coho salmon.” (Admin. R. at 1945.) Defendant

acknowledged NOAA’s conclusion, but reasoned that “the fact that few

adult spring-run Chinook salmon have been observed utilizing [the

River’s confluence pool], and [the confluence pool’s] frequent use by

the public, make the potential temporary loss [sic] pool depth and

potential loss of its use by spring-run Chinook salmon insignificant

to continued viability of this fish in the South Fork Trinity River.” 

(Admin. R. at 1382-84.) Defendant has adequately explained why NOAA’s

finding of potential adverse impact to EFH does not constitute a

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significant effect on the human environment under NEPA.

In addition, the FONSI indicates that Defendant and NOAA

reached “mutual agreements during . . . consultation,” and that

certain procedures regarding road usage and closure were adopted. 

(Admin. R. at 1277-78.) This reference rebuts Plaintiff’s assertion

that Defendant ignored NOAA’s request that certain road closures be

implemented. (Pl.’s Br. Supp. Summ. J. at 13-14.)

Plaintiff also complains that the Project does not consider

cumulative impacts to salmonid species involved with proposed logging

on adjacent private lands. (Id. at 14.) Defendant points to portions

of the EA that discuss potential effects on Management Indicator

Species (“MIS”), which include spring-run Chinook salmon, and ESAlisted species, which include the Coho salmon. (Admin. R. at 1400-

01). Plaintiff does not explain how the proposed private project

raises a substantial question that significant impacts may occur to

the human environment; rather, Plaintiff simply concludes that the

proposal itself compels Defendant to prepare an EIS. (Pl.’s Br. Supp.

Summ. J. at 14.) This conclusory argument does not meet Plaintiff’s

burden of showing that the proposed private logging raises a

substantial question of cumulatively significant effects to the human

environment. Thomas, 137 F.3d at 1150.

5. Northern Spotted Owl

Plaintiff also argues that the Project will have a

significant effect on the NSO. The NSO is a threatened species under

the ESA. 55 Fed. Reg. 26,114 (June 26, 1990). A total of 418 acres

of suitable NSO nesting/roosting habitat are proposed for harvest,

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6 The Northwest Forest Plan (“NWFP”) creates a network of

LSR for the purpose of providing enough habitat for the NSO to

survive and recover, but allowing high levels of logging on lands

outside the LSR. (Dugan Decl. re Exhs. F & G ¶ 1, Exh. F.) The

areas outside the LSR are called matrix lands. (Id.)

7 The NWFP requires that “one hundred acres of the best

[NSO] habitat . . . be retained as close to the nest or owl

activity center as possible for all known (as of January 1, 1994)

[NSO] activity centers located on federal lands.” (Dugan Decl.

re Exhs. F & G ¶ 1, Exh. G.)

12

including 41 acres of critical habitat, and 64 acres of LSR.6 (Admin.

R. at 1935.) Plaintiff contends that four NSO activity centers are

located within the Project analysis area, and that two of these

centers will be logged, but that the EA fails to provide any

documentation that the 100 acres of the best habitat around these

activity centers will be protected. (Pl.’s Br. Supp. Summ. J. at 15-

16.)7 Further, Plaintiff argues that the EA fails to meaningfully

analyze cumulative effects to the NSO. (Id. at 18-19.) Plaintiff

also cites to materials outside the Administrative Record that

allegedly contradict the EA’s conclusion that “past, present, and

reasonably foreseeable future actions are sufficiently discontinuous

over space and time so as not to contribute to significant cumulative

impacts to wildlife or their habitat.” Compare (Dugan Decl. re Exh. H

¶ 1, Exh. H), with (Admin. R. 1402).

The Biological Assessment and Evaluation (“BAE”), which is

incorporated by reference into the EA, rebuts many of Plaintiff’s

contentions:

Harvest prescriptions have been modified to

maintain total canopy cover at or above 70%

to retain snag densities at or above 2.5 per

acre or as available and to retain large

logs. Although intermediate harvest of these

stands will occur, suitable habitat

components such as canopy cover, snag and log

density, and structural diversity will be

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maintained to still meet criteria for

suitable nesting/roosting habitat . . . . No

treatment of occupied spotted owl suitable

nesting/roosting habitat is proposed and

scheduled surveys are designed to locate any

new colonization by owls. These efforts will

severely reduce the possibility of directly

impacting spotted owls.

(Admin. R. at 1921.) Thus, the BAE concludes that the Project “may

affect, but is not likely to adversely affect [NSO].” (Id. at 1925.) 

The BAE also notes that thinning in units of LSR or suitable NSO

nesting/roosting habitat will be consistent with species management

goals. (Id. at 1924-25.) Further, Plaintiff’s contention that the

Project is inconsistent with the NWFP and the STNF Plan is erroneous

because both plans direct Defendant to encourage the development of

late-successional forest conditions in the LSR that are overstocked

through thinning. (Id. at 169.)

As for Plaintiff’s argument that Defendant ignored

cumulative effects, Defendant amended the BAE to evaluate cumulative

impacts on the NSO from the proposed private logging activity on

nearby land. (Id. at 1951.) This amendment concluded that the

proposed private action did not alter the ultimate conclusion that the

Project may affect, but is not likely to adversely affect the NSO. 

(Id.)

6. Database Integrity

Plaintiff claims that Defendant relied on a flawed GIS

database (LMP 90) (“GIS database”) in determining which lands were

capable, available, and suitable for timber production. (Pl.’s Br.

Supp. Summ. J. at 20.) Plaintiff also asserts that Defendant failed

to respond to Plaintiff’s repeated requests for access to the

underlying data used to prepare the assessment of the Project, and

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that Defendant’s unresponsiveness prohibited a fully informed

commentary on the Project. (Id. at 22.)

However, the GIS database was not the exclusive means of

identifying areas susceptible for thinning; candidate areas for

thinning were identified based on a habitat survey (Admin R. at 351-

484), a mass wasting survey (id. at 529-53), a Goshawk survey (id. at

631-53), water quality and fish habitat monitoring (id. at 674-77), a

serpentine soil survey (id. at 712-39), a skid trail survey (id. at

743-44), NSO surveys (id. at 745-64, 1110-35, 1250-61), a western pond

turtle survey (id. at 814-818), stand records (id. 829-30), a North

American breed bird survey (id. at 922-27), and the California

Wildlife Habitat Relationships information system (id. at 1335). In

addition, “[t]he SMFU wildlife crew field typed all stands within the

affected area of the [East Fork South Fork] analysis, including up to

1/4 mile outside [the] analysis area boundary.” (Admin. R. at 1918.) 

Consequently, the EA is distinguishable from those processes the Ninth

Circuit held in violation of NEPA because a Defendant neither relied

heavily on the GIS database, Lands Council v. Powell, 379 F.3d 738,

749-750 (9th Cir. 2004), amended by 395 F.3d 1019, nor acted in an

absence of knowledge regarding the intensity of environmental effects,

Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 732-733

(9th Cir. 2001).

B. Does the EA adequately analyze impacts?

Plaintiff contends that even if an EIS is not required, “the

EA itself is flawed because the analysis it contains is not detailed

enough to allow the decision maker and the public to understand the

foreseeable impacts of the [P]roject.” (Pl.’s Br. Supp. Summ. J. at

22.) Plaintiff asserts that the grounds for finding a significant

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8 Plaintiff also argues that the EA is inadequate because

it evaluates the habitat of Management Indicator Species (“MIS”),

rather than hard quantitative surveys of MIS. (Pl.’s Br. Supp.

Summ. J. at 23-24.) This argument is addressed below in section

III.B.

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impact to the human environment discussed above in section II.A.

(e.g., impacts to the fisher, salmon, and NSO) also provide grounds

for finding that the EA’s analysis is inadequate. (Id. at 22-23.) 

However, the EA is sufficient as to those matters addressed above

because the EA sets forth a “reasonably thorough discussion” of those

potential impacts. See Churchill County, 276 F.3d at 1071. 

1. Sensitive Species and Management Indicator Species

Plaintiff asserts that the EA improperly addresses impacts

to sensitive species in a vague and conclusory manner. (Pl.’s Br.

Supp. Summ. J. at 23.)8 However, Plaintiff only cites to discrete

portions of Defendant’s conclusions regarding impacts to sensitive

species. Defendant provided a detailed analysis of potential impacts

to sensitive species in the EA, the Wildlife Report, and the Wildlife

BAE. (Admin. R. 1265-72, 1397-99, 1920-24.) Defendant’s analysis is

reasonably thorough.

2. Riparian Reserves

In addition, Plaintiff argues that the EA does not comply

substantively with the Northwest Forest Plan Aquatic Conservation

Strategy (“ACS”) because it “fails to demonstrate that the proposed

actions will maintain or improve riparian and aquatic habitat

conditions to comply with the ACS.” (Pl.’s Br. Supp. Summ. J. at 27.) 

Plaintiff also contends that the EA does not “adequately disclose

stand conditions within the Riparian Reserves,” and ignores portions

of the East Fork Watershed Analysis (“Watershed Analysis”) warning

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9 Defendant argues that the Project need not comply with

ACS objectives pursuant to a Record of Decision (“ROD”) the

Department of Agriculture issued to clarify that “[ACS

objectives] were intended to be applied and achieved at the

fifth-field watershed scale and larger scales.” (Admin. R. at

1983.) However, compliance with the ACS is necessary because

Defendant’s DN and FONSI pre-date the ROD. See Pac. Coast Fed’n

of Fishermen’s Ass’n (PCFFA) v. Nat’l Marine Fisheries Serv., 71

F. Supp. 2d 1036, 1069 (W.D. Wash. 1999), affirmed at 265 F.3d

1028 (9th Cir. 2001). Plaintiff’s argument that the ROD

necessitates amending the EA is incorrect because the ROD does

not offer new information showing “that the remaining action will

affect the quality of the human environment in a significant

manner or to a significant extent not already considered.” Marsh

v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989).

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against logging in Riparian Reserves. (Id.)

The EA evaluates the Project against each of the ACS’s nine

objectives and concludes that the Project will further riparian

habitat and improve stand structural diversity. (Admin. R. at 1379-

81.)9 While the EA acknowledges that road reconstruction and

recommission may produce a possibility of sediment increase, “[t]he

potential for sediment delivery from road use will be insignificant

due to road improvements which decrease erosion including upgrading

culverts, outsloping, installation of rolling dips, and surface

rocking prior to haul.” (Admin. R. at 1380, 1943.) No new roads will

be constructed in Riparian Reserves, and existing roads that would be

used will be improved to decrease road-related sediment production. 

(Id. at 1379-81.) Therefore, the Administrative Record demonstrates

that Defendant took a “hard look” at the Project’s compliance with ACS

objectives.

Plaintiff cites to excerpts from the Watershed Analysis that

speak of logging in Riparian Reserves from a general standpoint, but

Defendant cites to portions of the Watershed Analysis indicating that

proposals to thin areas in the Riparian Reserves should be “identified

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10 The EA also describes stand conditions in Riparian

Reserves slated for treatment as “uniform structural condition,

low tree species diversity, and heavy stocking.” (Admin. R.

1351.)

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and analyzed site-specifically through the NEPA process.” (Admin. R.

at 1805.) The Watershed Analysis indicates that treatment, including

commercial thinning, may “improve stand conditions (i.e., assist the

riparian reserve in attaining late successional characteristics).” 

(Id.) The Watershed Analysis specifically identifies Prospect Creek,

Texas Chow, and Dark Canyon – all areas where the Project proposes

treatment – as Riparian Reserves that are currently not functioning

properly because of a lack of large conifers and structural diversity. 

(Id. at 1805.)10 Thus, the Administrative Record does not support

Plaintiff’s arguments that Defendant failed to consider relevant

portions of the Watershed Analysis or adequately disclose stand

conditions in the Riparian Reserves.

3. Roads and Road Densities

Plaintiff argues that the EA fails to disclose adverse

recommendations in the Watershed Analysis regarding road uses and road

densities. (Pl.’s Br. Supp. Summ. J. at 28-30.) However, the EA

indicates that the Project:

deviate[s] from recommendations in the [Watershed

Analysis] with regard to Road 28N66. The

[Watershed Analysis] recommended decommissioning

the full length (2.5 miles) of Road 28N66. 

Approximately the last 1.3 miles of Road 28N66 has

been decommissioned and will be removed later from

the Forest Service Road System. However, the

first 1.2 miles will not be decommissioned as per

[Watershed Analysis] recommendations. The first

1.2 miles of 28N66 are needed for Proposed Action

thinning opportunities.

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11 Plaintiff’s argument that “[t]he EA fails to

demonstrate that the proposed road construction and

reconstruction is consistent with the information and

recommendations for roads in the Watershed Analysis,” (Pl.’s Br.

Supp. Summ. J. at 29), is without merit because the

recommendations in the Watershed Analysis “are not [] legally

binding commitment[s] enforceable under § 706(1) [of the APA].” 

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.

Ct. 2373, 2384 (2004); (Pl.’s Reply. Br. Supp. Summ. J. at 8).

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(Admin. R. at 1377.) This reference in the EA rebuts Plaintiff’s

contention that recommendations in the Watershed Analysis were

ignored.11

4. Key Watershed, Water Quality, Riparian and Aquatic Habitat

Plaintiff argues that the EA fails to adequately disclose

and analyze adverse effects on water quality and riparian and aquatic

habitat within and downstream from the Project area resulting from

past logging. (Pl.’s Br. Supp. Summ. J. at 30-31.) In addition,

Plaintiff complains that the EA discusses water quality impacts from

coarse sediment, but not fine sediment. (Id. at 33-34.) Finally,

Plaintiff argues that the EA fails to consider cumulative effects on

water quality from road uses and adjacent land uses. (Id. at 34-35.)

The Cumulative Watershed Effects (“CWE”) Analysis Report

indicates that past timber harvest, roads on federal and private

lands, proposed actions on federal and private lands, and foreseeable

actions on federal and private lands are components of core data

layers used to perform the CWE analysis. (Admin. R. at 1961.)

Defendant identifies the source of fine sediment in the

River, but selects coarse sediment as the factor most critical to

beneficial uses and water quality uses in water bodies the Project

might affect. (Id. at 1066.) Plaintiff’s argument that fine sediment

should be deemed the factor most critical to beneficial uses and water

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12 The Ambrose Declaration lacks foundation to establish

that the photographed tree she declares is slated for logging is

in an LSR. The declaration requires drawing an inference that

the declarant’s conclusion that the tree in question is in “late

successional forest” means that the tree is located in an LSR.

(Ambrose Decl. ¶¶ 3-4.) It is inappropriate, however, to draw

the inference Ambrose suggests because Defendant’s citations to

the Administrative Record establish that no dominant trees in an

LSR are proposed for treatment. (Admin. R. at 1109, 1394, 1398.)

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quality uses is erroneous because (1) Plaintiff mischaracterizes the

Watershed Analysis to conclude that “fine sediment is a critical

limiting factor in the watershed,” (2) Defendant has “discretion to

rely on the reasonable opinions of its own qualified experts.” (Id.

at 889, 1066, 1069, 1073, 1653, 1779); Marsh, 490 U.S. at 378.

Plaintiff’s contention that the EA failed to consider

various cumulative effects related to water quality is incorrect. The

cumulative effects related to water quality are addressed in the

Biological Evaluation for Sensitive Plant Species and Supplementary

Botanical Report (id. at 874, 876-77), the Hydrologist Report (id. at

888-901), the Fish Biological Assessment (id. at 1044-108), and the EA

(id. at 1372-73, 1378). The Project will comply with the Clean Water

Act and North Coast Basin Plan. (Id. at 345-350, 1038-39.) Moreover,

the EA also discloses that all potentially unstable areas have been

mapped on the ground, and will not be included in the Project

activities. (Id. at 1360.)

5. Late Successional Reserves

Plaintiff declares that it conducted a field inspection from

which it concluded that many units will log large, healthy legacy

trees in dominant and co-dominant crown positions. (Ambrose Decl.

¶ 4.)12 Plaintiff contends that the EA fails to disclose the number of

trees with a 25-inch diameter at breast height (“dbh”) that will be

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logged, or the number of trees in the LSR that will be logged. (Pl.’s

Br. Supp. Summ. J. at 36-37.) Finally, Plaintiff asserts that “the EA

fails to describe either the present or future distribution of snags

in the [P]roject area.” (Id. at 37.)

The Project proposes thinning 64 acres of single-storied,

overstocked, young-growth stands within an LSR. (Admin. R. at 169,

1266, 1341.) No late-successional or old growth stands are proposed

for harvest within the LSR. (Admin. R. at 1266, 1398.) The condition

of the LSR acres slated for treatment is set forth in the EA. (Id. at

1397-98.) Further, while “trees determined to be at a high risk for

mortality within the next five to ten years” are designated for

removal regardless of size, all large overstory trees in the LSR will

be retained, regardless of the risk of mortality. (Id. at 1350,

1910.) Therefore, contrary to Plaintiff’s contentions, the EA

adequately addresses treatment of acreage in the LSR.

The total number of trees marked for harvest that are 25-

inches dbh or greater is set forth in the Administrative Record. (Id.

at 1109.) Further, the Project will meet snag density standards -

snags are retained under all harvest prescriptions, and are preferred

within the four stands supporting suitable spotted owl

nesting/roosting habitat. (Id. at 1400, 1935.)

6. Fire Risk and Fire Management

Plaintiff argues that the EA fails to consider the increased

likelihood of fire resulting from the reduction of canopy, the

exposure of the understory to more open sunlight, increased

temperatures and wind, and decreased air humidity and fuel moisture

levels. (Pl.’s Br. Supp. Summ. J. at 38-39.) Plaintiff also argues

that the EA fails to disclose that the ground and surface fuels will

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not be adequately treated after logging, leading to an increased fire

hazard. (Id. at 39.)

The EA (Admin. R. at 1366-67) and the Fire and Fuels Report

(Id. at 846-60) address fire hazards. These analyses discuss the risk

of fire before and after the Project with reasonable thoroughness. 

(Id.)

7. Soils

Plaintiff also challenges the EA’s evaluation of impacts to

soils. The Soil Report, summarized in and incorporated by the EA,

discusses the Project’s impacts to soils, including compaction,

displacement, erosion, and mass wasting. (Admin. R. at 970-1005,

1385-88.) This analysis is reasonably thorough despite Plaintiff’s

contrary protestation.

8. Cumulative Impacts

Further, Plaintiff challenges the EA’s discussion of

cumulative impacts. The EA and supporting analyses adequately

disclose and analyze cumulative effects. (Admin. R. at 1370-73

(cumulative watershed effects), 1384-85 (cumulative effects to Coho

salmon), 1387-88 (cumulative soil effects), 1392-93 (cumulative

effects to Sensitive and Forest Plan Endemic Species), 1401-02

(cumulative effects to MIS).) More particularly, the EA addresses the

proposed logging project on private inholdings within the Project

area. (Id. at 1384, 1401-02.) The Wildlife Report and the Biological

Assessment and Evaluation also considered cumulative effects stemming

from this proposed private action. (Id. at 1951.)

9. Reasonable Range of Alternatives

Plaintiff challenges the EA’s failure to include a

discussion of more than the proposed action and no-action

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alternatives. The EA must include “brief discussions of . . .

alternatives, as required by section 102(2)(E) [of NEPA].” 40 C.F.R.

§ 1508.9. Section 102(2)(E) of NEPA directs all 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). The stated goals of a project determine the range of

alternatives. Carmel-by-the-Sea v. Dep’t of Transp., 123 F.3d 1142,

1155 (9th Cir. 1995). The rigor with which an agency must consider

alternatives is less when an agency determines that an EIS is not

required. Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1232 (E.D.

Cal. 1999) (citing Mt. Lookout-Mt. Nebo Prots. Ass’n v. Fed. Energy

Regulatory Comm’n, 143 F.3d 165, 172 (4th Cir. 1998)).

The EA considers two alternatives: the Project and the noaction alternative. (Admin. R. at 1350-63.) Plaintiff requested

“that the EA develop and analyze an alternative that does not involve

a commercial timber sale and does not remove any tree larger than 12-

inch dbh, and does not involve any road construction or

reconstruction.” (Admin. R. at 868.) However, removing only trees of

12-inch dbh or smaller would not achieve the reduction in fuel ladders

needed to protect larger stands from crown fire. (Admin. R. at 1341-

42, 1350-51.) In addition, Plaintiff’s proposal would not provide

merchantable lumber as an economic offering, which is a stated purpose

of thinning in the matrix lands. (Admin. R. at 1341.) Thus,

Plaintiff has failed to demonstrate that Defendant’s consideration of

the Project and the no-action alternative violated NEPA because

Plaintiff “had not offered a specific, detailed counterproposal that

had a chance of success.” City of Angoon v. Hodel, 803 F.2d 1016,

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1022 (9th Cir. 1986); accord Dep’t of Transp. v. Public Citizen, 541

U.S. 752, 766-67, (2004) (holding plaintiffs’ failure to propose

alternatives that the agency did not consider barred plaintiffs from

objecting to an EA on the ground that the agency failed adequately to

discuss potential alternatives to the proposed action).

10. Fulfillment of Project’s Purpose and Need

Plaintiff argues that the EA fails to demonstrate that the

Project meets the stated purpose and need, and contends that Defendant

attempts to hide the “disconnects between the [P]roject’s purpose and

need, and the actual proposed action by restating the purpose and need

in terms that describe the proposed action.” (Pl.’s Br. Supp. Summ.

J. at 47.)

The EA states that thinning in matrix lands “is intended to

maintain suitable stand growth, improve tree vigor over time by

providing space for the trees retained to grow, and provide

merchantable wood removed as an economic offering.” (Admin. R. at

1341.) On LSR lands, “[t]he purpose of thinning . . . is to reduce

the fire hazard of spreading crown fire by removing some of the

understory tree density, and to maintain stand growth toward latesuccessional conditions by giving individual trees more room to grow.” 

(Id. at 1342.) In Riparian Reserves, “[t]he purpose of thinning . . .

is to reduce the fire hazard of spreading crown fire by removing some

of the understory trees [sic] density, and to maintain stand growth

toward late-successional conditions by giving individual trees more

room to grow.” (Id.) Defendant disclosed stand conditions and

thinning prescriptions consistent with the stated purpose. (Id. at

1109, 1343-48, 1350-51, 1394, 1398.) Therefore, the EA does not

violate NEPA for failure of the Project to meet the purpose of need

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set forth in the EA because the selected alternative rationally

relates to the purpose and need described.

III. NFMA

NFMA provides for the planning and management of national

forests at two levels: forest and project. See generally, 36 C.F.R.,

§ 219.3. Defendant adopted the Shasta-Trinity National Forest Plan

(“STNF Plan”), which establishes goals and objectives for individual

units of the STNF, and provides specific standards and guidelines for

management of forest resources. 16 U.S.C. § 1604(g)(1)-(3); 36 C.F.R.

§§ 219.2, 219.3. Proposed projects may be implemented if they are

consistent with the applicable forest plan, have been analyzed

pursuant to NEPA, and specifically approved by the responsible Forest

Service official. 16 U.S.C. § 1604(I); 36 C.F.R. § 219.10.

Here, the responsible Forest Service official approved the

Project, and, for the reasons discussed above, Defendant complied with

NEPA in adopting a FONSI for the Project. (Admin. R. at 1276-84,

1341-1414.) Hence, through the prism of APA, the NFMA issue is

whether Defendant arbitrarily and capriciously concluded that the

Project complies with the STNF Plan. 5 U.S.C. § 706(2)(A).

A. Sensitive Species Survey Requirements

As explained above in section II.B.1, the EA and its

incorporated analysis reports evaluate in detail the Project’s effects

on Forest Service Sensitive Species, and these analyses rationally

relate to the conclusion that the Project will have an insignificant

effect on the species. This finding refutes Plaintiff’s contention

that the Project frustrates Defendant’s obligation under NFMA to

“provide for diversity of plant and animal communities.” 16 U.S.C.

§ 1604(g)(3)(B).

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13 This use of habitat assemblages is commonly referred to

as the proxy-on-proxy approach.

14 More specifically, the Ninth Circuit noted that “the

record demonstrated that the Forest Service’s methodology for

dedicating old growth is so inaccurate that it turns out there is

no old growth at all in management area 35, where the Forest

Service has purported to dedicate 1,280 acres of old growth.” 

Rittenhouse, 305 F.3d at 972. Further, the Forest Service’s own

wildlife expert opined that it would be necessary to assess MIS

habitat independent of any old growth analysis, because “[old

growth habitat and pileated woodpecker habitat] may or may not

overlap.” Id.

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B. Management Indicator Species Requirements

Plaintiff argues that Defendant violates NFMA because

Defendant did not implement a hard quantitative population survey of

MIS. (Pl.’s Br. Supp. Summ. J. at 50-53.) Rather, Defendant relied

on “habitat assemblages to be used as management indicators for

projects.” (Def.’s Br. Opp’n Summ. J. at 44.)13

The Ninth Circuit thrice declined to adopt Plaintiff’s

position that NFMA’s regulations require hard quantitative population

surveys. See Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957,

972-973 (9th Cir. 2002) (citing Inland Empire, 88 F.3d at 761 and

Thomas, 137 F.3d at 1153-54). Although the Rittenhouse court rejected

the agency’s use of the proxy-on-proxy approach, that rejection was

held appropriate because the “[agency’s] methodology [did] not

reasonably ensure viable populations of the species at issue.” 305

F.3d at 973.14 Here, Plaintiff does not argue that Defendant

implemented a methodology for monitoring habitat that failed to

“reasonably ensure[] . . . viable populations [of MIS].” Rittenhouse,

305 F.3d at 972. Rather, Plaintiff argues that Rittenhouse

effectively overruled Inland Empire and Thomas, and adopted the

reasoning of other circuits that the proxy-on-proxy approach is per se

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15 Consequently, it is unnecessary to determine whether,

as Defendant contends, recent amendments to the National Forest

System land management planning framework that explicitly adopt

the proxy-on-proxy approach are applicable to the Project. 

(Def.’s Br. Supp. Summ. J. at 45 (citing 70 Fed. Reg. 1023, 1060

(Jan. 5, 2005)).)

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contrary to NFMA. (Pl.’s Br. Supp. Summ. J. at 53 (citing Utah Envt’l

Cong. v. Dombeck, 372 F.3d 1219 (10th Cir. 2004).) Plaintiff’s

contention misconstrues Rittenhouse, and out-of-circuit decisions

adopting a per se prohibition on the proxy-on-proxy approach do not

undermine either Inland Empire, Thomas, or Rittenhouse.

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C. Aquatic Conservation Strategy

Plaintiff complains that “[t]he EA promised that the ACS

objectives would be met at the project-specific level; but after

public comments were in, [D]efendant applied the recent changes to the

ACS to allow it to escape project-specific compliance.” (Pl.’s Br.

Supp. Summ. J. at 54.) While Defendant asserts that it need not

comply with the ACS, the EA evaluates the Project against the ACS

objectives and its evaluation rationally relates to its conclusion

that the Project in fact complies with the ACS. (Admin. R. at 1379-

81.) Plaintiff’s specific contentions that the Project violates the

ACS are not supported by the Administrative Record for the reasons

already addressed in this Order.

CONCLUSION

For the stated reasons, Plaintiff’s motion for summary

judgment is denied, and Defendant’s motion for summary judgment is

granted.

IT IS SO ORDERED.

Dated: August 19, 2005

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/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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