IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

OREGON WILD, · 

Plaintiff, 

v. 

UNITED STATES FOREST SERVICE, 

Defendant. 

PANNER, District Judge: 

1:14-cv-00981-PA 

OPINION AND ORDER 

This matter comes before the Court on cross motions for 

summary judgment filed by Plaintiff Oregon Wild (#12) and 

Defendant United States Forest Service ("the Forest Service") 

(#15). Plaintiff's Motion for Summary Judgment (#12) is DENIED. 

The Forest Service's Cross-Motion for Summary Judgment (#15) is 

GRANTED. 

1 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 1 of 30
Background 

I. The Bybee Project 

Plaintiff challenges the Forest Service's authorization of 

the Bybee Vegetation Management Project ("the Bybee Project") 

located in the High Cascades Ranger District of the Rogue RiverSiskiyou National Forest in Jackson County, Oregon. 

Administrative Record ("AR") 7214. The Bybee Project is a forest 

treatment project aimed at 1) improving stand conditions, 

diversity, density, and structure to increase forest resiliency 

and overall forest health; 2) providing for a sustainable supply 

of timber products; and 3) reducing the risk to forest resources 

from high intensity fire. AR 7222, 11584. 

The Bybee Project planning area covers approximately 16,215 

acres within the national forest. AR 7221. The project area is 

adjacent to Crater Lake National Park and Oregon Highway 230, also 

known as the Rogue-Umpqua Scenic Byway. AR 7222. Both the 

National Park and Oregon Highway 230 present serious fire risks. 

AR 7223. The heightened risk of fire sterns from human activity, 

differing fire use standards between the National Park Service and 

the Forest Service, and the accumulation of fine fuels in the 

project areas along the park boundary and the highway. 1 AR 7223. 

1Fine fuels, such as needles and small twigs, are "one of 

the best indicators of the risk of fire spread because small 

materials burn faster and spread fire more quickly than heavier 

fuels." AR 7223. The areas along the park boundary and along 

Oregon Highway 230 have approximately 7 tons of fine fuels per 

acre. AR 7223. The same areas "have abundant ladder fuels which 

can transfer wildland fire to the forest canopy. . leading to 

a loss of high quality habitat and other forest resources." AR 

7224. In the project areas along the park boundary and Oregon 

2 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 2 of 30
More than half of the project planning area has previously 

been used for timber harvest. AR 7221. 34% of the project area 

contains overstocked timber stands. AR 7223. 

The Forest Service solicited and received public comments on 

the Bybee Project proposal beginning in April 2010. 2 AR 7230. In 

January 2013, the Forest Service issued an Environmental 

Assessment ("EA") for the Bybee Project. AR 7214-509. Plaintiff, 

along with a number of other interested parties, submitted 

comments to the Forest Service. AR 8294-376. On September 17, 

2013, the Forest Service issued a Decision Notice and Finding of 

No Significant Impact ("FONSI") for the Bybee Project. AR 11584-

600. In response to public comments, the Forest Service adopted a 

modified alternative to its initial proposed action. AR 11585~91. 

The modified alternative adopted by the Forest Service scaled back 

the original Bybee Project proposal in a number of areas. Id. 

As approved, the Bybee Project permits commercial timber 

harvest of 2,021 acres on 45 units; 487 acres of precommerical 

thinning on 14 units; 236 acres of non-commercial thinning on 

parts of 27 units and 467 acres of natural fuels reduction 

treatments on 15 units. AR 11585. The project also includes the 

construction of 7.9 miles of temporary roads, largely on existing 

Highway 230, the fuel reduction treatments would reduce fine 

fuels to 1.15 tons per acre. AR 7225. 

2

The Forest Service solicited comments ~n the scope of the 

Bybee Project between April 2010 and June 2010 and received 780 

comments. The Forest Service also solicited public comments on 

the Bybee Project EA between January 2013 and February 2013. 

During that period, the agency received approximately 11,400 

comments. AR 11592. 

3 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 3 of 30
non-system road templates, as well as decommissioning 5.4 miles of 

existing roads. Id. Decommissioning the temporary and existing 

roads will reduce the road density of the project area to a "low 

watershed risk category." AR 7315. The Bybee Project also 

includes post-harvest treatments, including soil restoration "to 

loosen detrimentally compacted soils (from previous management 

activity) [and] improve root growth, thereby increasing stand 

resiliency and health." AR 11586. 

Plaintiff, as well as several timber industry parties, 

appealed the Forest Service's decision on the Bybee Project. AR 

11821-964; 11965-73; 11974-77. The Forest Service denied the 

appeals in December 2013. AR 11980-12009. Plaintiff filed this 

action on June 18, 2014 (#1). 

II. The Gray Wolf 

A number of Plaintiff's claims relate to the appearance of 

endangered gray wolves in the High Cascades Ranger District in the 

months following the Forest Service's final decision on 

Plaintiff's administrative appeal. In western Oregon, the grey 

wolf is listed as "endangered" under the Endangered Species Act. 

Mellgren Decl. Ex. A, at 2. A male wolf, known as OR-7, left his 

original pack in northeastern Oregon and has been tracked over 

several years by radio collar. Id. In 2011, OR-7 traveled 

through southern Oregon and into California before returning to 

Oregon and settling in the High Cascades Ranger District of the 

Rogue River-Siskiyou National Forest. Id. In May 2014, the U.S. 

Fish & Wildlife Service ("USFWS") informed the Forest Service that 

OR-7 had found a mate and produced a litter of at least two pups. 

·4 -ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 4 of 30
Id. Because no wolves were known to be present in the Bybee 

Project area during the project planning and comment periods, 

neither the Forest Service or Plaintiff discussed the wolves at 

the administrative stages of this case. 

As of October 2014, the batteries on OR-7's radio collar were 

failing and so the state and federal agencies are only able to 

track his location intermittently. Id. The Oregon Department of 

Fish & Wildlife planned to capture and collar one of the wolves. 

Id. The precise location of the wolves' den is being withheld by 

the state and federal agencies to protect the endangered wolves, 

but it is located more than 15 air miles from the Bybee Project 

area. Id. at 3. OR-7 has not been tracked within 15 miles of the 

Bybee Project area and all known locations for the wolves were 15 

or more miles from the project area. Id. at 2-3. 

On October 10, 2014, after consultation with experts from 

USFWS, the Forest Service issued a New Information Review. The 

Forest Service concluded that the appearance of the gray wolves 

"does not constitute significant new information relevant to 

environmental concerns regarding the Bybee project, and . 

does not have a bearing on the authorized Bybee decision or its 

impacts." Id. at 3. The Forest Service determined that no 

supplemental environmental analysis was necessary. Id. 

Legal Standard 

I. Summary Judgment Standards Do Not Apply 

The parties have filed cross-motions for summary judgment 

under Federal Rule of Civil Procedure 56. The legal standards for 

summary judgment motions are "inconsistent with the standards .for 

5 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 5 of 30
judicial review of agency action" under the Administrative 

Procedure Act (APA) . Olenhouse v. Commodity Credit Corp., 42 

F.3d 1560, 1579 (lOth Cir. 1994). Nonetheless, the Ninth Circuit 

endorsed summary judgment motions as "'an appropriate mechanism 

for deciding the legal question of whether the agency could 

reasonably have found the facts as it did.'" City & Cnty. of San 

Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 

1997) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 770 (9th 

Cir. 1985)). As I have previously noted, I consider "summary 

judgment" to be only a convenient label for the judicial review of 

challenged agency actions. Oregon Wild v. Connaughton, No. 1:12-

cv-2244-PA, 2014 WL 357084, at *1 (D. Or. Jan. 31, 2014). 

II. Judicial Review under the APA 

Under the APA, the court determines whether the agency's 

decisions was "arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law." 5 U.S.C. § 706(2) (A). 

Before a court may overturn an agency decision under the APA's 

deferential standard of review, 

the court must consider whether the decision was based 

on a consideration of the relevant factors and whether 

there has been a clear error of judgment. Although this 

inquiry into the facts is to be searching and careful, 

the ultimate standard of review is a narrow one. The 

court is not empowered to substitute its judgment for 

that of the agency. 

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 

(1971) (citations omitted), abrogated in part on other grounds 

Qy Califano v. Sander, 430 U.S. 99, 105 (1977). This court 

presumes the agency acted properly and affirms the agency when "'a 

reasonable basis exists for its decision.'" Nw. Ecosystem Alliance 

6 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 6 of 30
v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 

2007) (quoting Independent Acceptance Co. v. California, 204 F.3d 

1247, 1251 (9th Cir. 2000) (citations omitted)). 

Review is limited to the question of whether the agency todk 

a "hard look" at the proposed action as required by a strict 

reading of procedural requirements. Ctr. for Envtl. Law & Policy 

v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1005 (9th Cir. 

2011) (quotation marks omitted). Courts defer to any agency 

decision that is "fully informed and well-considered," but must 

not overlook a "clear error of judgment." Id. (quotation marks 

omitted). A court's deference when reviewing an agency's decision 

"is highest when reviewing an agency's technical analyses and 

judgments involving the evaluation of complex scientific data 

within the agency's technical expertise." League of Wilderness 

Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 

1122, 1130 (9th Cir. 2010). 

D:iscuss:ion 

Plaintiff contends the Forest Service violated the National 

Environmental Policy Act ("NEPA") and the National Forest 

Management Act ( "NFMA") . 

I. NEPA 

Plaintiff alleges that the Forest Service violated NEPA by 

failing to prepare an Environmental Impact Statement ("EIS") for 

the Bybee Project and also by failing to supplement the Bybee 

Project Environmental Assessment ("EA") to account for the 

appearance of endangered gray wolves in the area. 

7 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 7 of 30
A. Failure to Prepare an EIS 

NEPA is a procedural statute that does not mandate particular 

results, but rather sets forth a review process to "ensure that 

federal agencies take a hard look at the environmental 

consequences of the proposed action." Sierra Club v. Bosworth, 

510 F.3d 1016, 1026 (9th Cir. 2007). NEPA requires agencies 

considering "major Federal actions significantly affecting the 

quality of the human environment" to prepare an Environmental 

Impact Statement ("EIS"). 42 U.S.C. § 4332(C). To determine 

whether an EIS is required, an agency may first prepare a less 

extensive Environmental Assessment ("EA"). 40 C.F.R. § 1501.4(b). 

If the EA finds that the proposed action will significantly affect 

the environment, the agency must prepare an EIS. W. Watersheds 

Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013). If the 

proposed action is found to have no significant effect, the agency 

may issue a Finding of No Significant Impact ("FONSI"), 

"accompanied by a convincing statement of reasons to explain why a 

project's impacts are insignificant." Sierra Club, 510 F.3d at 

1018 (quotation marks and citation omitted). 

In determining whether the potential effects are significant, 

agencies and courts evaluate "both context and intensity~" 40 

C.F.R. § 1508.27. In assessing intensity or "severity of impact," 

courts and agencies look at ten factors described in the federal 

regulation. 3 40 C.F.R. § 1508.27(b). A court may find a 

3 I discuss only the relevant factors in this opinion, but 

the full'list of intensity factors is as follows: 

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

significant effect may exist even if the Federal agency believes 

8 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 8 of 30
substantial effect based on just one of the "intensity" factors. 

Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 865 

(9th Cir. 2004). Even if no single factor justifies an EIS, the 

factors may require an EIS when considered cumulatively. Cascadia 

Wildlands v. U.S. Forest Serv., 937 F. Supp. 2d 1271, 1283-84 (D. 

Or. 2013) .. 

In this case, Plaintiff challenges the Forest Service's Bybee 

that on balance the effect will be beneficial. 

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

health or safety. 

(3) Unique characteristics of the geographic area, such as 

proximity to historic or cultural resources, park lands, prime 

farmlands, wetlands, wild and scenic rivers, or ecologically 

critical areas. 

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

human environment are likely to be highly controversial. 

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

environment are highly uncertain or involve unique or unknown 

risks. 

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

for future actions with significant effects or represents a 

decision in principle about a future consideration. 

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

individually insignificant but cumulatively significant impacts. 

Significance exists if it is reasonable to anticipate a 

cumulatively significant impact on the environment. Significance 

cannot be avoided by terming an action temporary or by breaking 

it down into small component parts. 

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

districts, sites, highways, structures, or objects listed in or 

eligible for listing in the National Register of Historic Places 

or may cause loss or destruction of significant scientific, 

cultural, or historic resources. 

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

endangered or threatened species or its habitat that has been 

determined to be critical under the Endangered Species Act of 

1973. 

(10) Whether the action threatens a violation of Federal, 

State, or local law or requirements imposed for the protection of 

the environment. 

40 C.F.R. § 1508.27(b). 

9 - ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 9 of 30
decision based on four of the§ 1508.27(b) factors: 4 1) the unique 

characteristics of the geographic area (§ 1508.27(b) (3)); 2) the 

degree to which the action represents a precedent for future 

actions (§ 1508.27(b) (6)); 3) the degree to which the action may 

affect an endangered species or its critical habitat (§ 

1508.27(b) (9)); and 4) the degree to which the action threatens a 

violation of law (§ 1508.27 (b) (10)). 

1. Unique Characteristics of the Bybee Project Area 

In assessing the "intensity" of a proposed action, agencies 

are required to consider "[u]nique characteristics of the 

geographic area, such as proximity to historic or cultural 

resources, park lands, prime farmlands, wetlands, wild and scenic 

rivers, or ecologically critical areas." 4 0 CFR § 150 8. 2 7 (b) ( 3) . 

In this case, Plaintiff alleges that the Forest Service failed to 

consider this factor with regard to 1) potential wilderness areas 

(PWA) within the Bybee Project area; 2) Crater Lake National Park; 

and 3) Oregon Highway 230. 

a. Potential Wilderness Areas 

Plaintiff Contends that the Forest Service failed to analyze 

whether its decision to permit logging in PWAs in the Bybee 

Project is environmentally significant. Plaintiff contends that 

the effect of the Bybee Project on PWAs required the preparation 

of an EIS. 

4Plaintiff originally challenged the decision not to prepare 

an EIS on six "intensity" factors, but it has conceded its 

arguments based on§ 1508(b) (4) and (5). I accept Plaintiff's 

concession. 

10- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 10 of 30
An agency is required to consider the environmental 

consequences of logging in roadless areas for two reasons: 1) 

roadless areas have certain attributes of independent 

environmental significance which must be analyzed, such,as water 

resources, soils, wildlife habitat, and recreation opportunities; 

and 2) roadless areas are significant because of their potential 

for designation as wilderness areas under the Wilderness Act of 

1964. Lands Council v. Martin, 529 F.3d 1219, 1230 (9th Cir. 

2008) . "The possibility of future wilderness classification 

triggers, at the very least, an obligation on the part of the 

agency to disclose the fact that development will affect a 5,000 

acre roadless area or will affect an area of sufficient size as to 

make practicable its preservation and use in an unimpaired 

condition." Id. at 1231 (quotation marks and citation omitted) 

PWAs are not a land designation decision (does not 

change current land management allocations), they do not 

imply or impart any particular level of management 

direction or protection, they are not an evaluation of 

potential wilderness . ., and they are not preliminary 

administrative recommendations for wilderness 

designation . . The inventory of PWAs does not 

change the administrative boundary of any [inventoried 

roadless area] or congressionally designated wilderness. 

The original designated management area (e.g., Matrix) 

would remain the land designation, even if areas in the 

project planning area meet the handbook criteria for 

PWAs. 

AR 737 6. 

In this case, there are 2,693 acres of PWA on Forest Service 

land in the Bybee Project area. 5 AR 7377. The PWAs are broken 

5

There are no wilderness areas or inventoried roadless areas 

within the Bybee Project area. AR 7375-76. 

11- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 11 of 30
into 10 distinct parcels, which range in size from 7 acres to 

1,622 acres. AR 7956. The Forest Service PWAs are adjacent to 

166,000 acres of PWA in Crater Lake National Park. 6 AR 7377. As 

ultimately adopted, the Bybee Project will affect approximately 

403 acres of PWA, which the Forest Plan has designated as suitable 

for timber harvest. AR 11587-88. 

The Bybee EA included a 33-page appendix specifically 

addressing PWAs. AR 7925-57. The EA recognized that PWA which 

overlapped with treatment areas "would likely forego future 

designation as a wilderness." AR 7379. The Forest Service 

determined, however, that under the alternative ultimately 

adopted, the intensity of thinning on PWA would be "relatively 

light" and is not expected to leave "long term impacts on the 

landscape or create irreversible/irretrievable impacts to 

wilderness values." AR 11593. 

In light of the relatively small percentage of PWA acreage 

that will be affected by the Bybee Project, as well as the Forest 

Service's conclusion that the project will not create irreversible 

or irretrievable impacts on wilderness values, I conclude that the 

Forest Service reasonably decided that no EIS was required. 

b. Crater Lake National Park 

Plaintiff contends that the potential impact of the Bybee 

6

The PWAs within the Bybee Project area met inventory 

criteria for PWAs because they were adjacent to the much larger 

proposed wilderness within Crater Lake National Park. Any 

decrease in PWA acreage within the project area would not affect 

the eligibility of land within Crater Lake National Park. AR 

7377. 

12- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 12 of 30
Project on adjacent land in Crater Lake National Park obligated 

the Forest Service to prepare an EIS. 

Proximity of a project to an ecologically critical ~rea, such 

as a national park, does not per se warrant the preparation of an 

EIS. Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1162 

(9th Cir. 1998). 

In this case, the Bybee Project includes only National Forest 

System lands. AR 7294. As noted, however, the project area 

shares a boundary with Crater Lake National Park. During the 

public comment period for the Bybee EA, the National Park Service 

expressed concerns about "potential consequences for the resources 

and visitor experience within [Crater Lake National Park]," and 

requested a formal consultation between the Park Service and the 

Forest Service. AR 8161; 8210-23. The Forest Service analyzed 

the effects of the Bybee Project on the park both within the EA 

itself and in response to comments. AR 7384-7390; 11665-66; 

11676; 11677. Following the comment period, the Forest Service 

opted to scale back the Bybee Project near the park border. AR 

11585; 11587. The free and precommercial thinning incorporated in 

the Bybee Project is expected to "benefit the area in the long 

term by reducing the stocking levels in overstocked stands, and 

reducing the heavy fuel loading that could lead to a standreplacement fire that could affect both the Forest and Crater Lake 

National Park." AR 11596. Ultimately, the Forest Service 

concluded "that project effects will not cause significant effects 

to park resources nor will the project interfere with the 

13- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 13 of 30
management responsibilities of the National Park Service." AR 

11593. 

On review of the record, I conclude that the Forest Service's 

decision not to prepare an EIS based on the proximity of the Bybee 

Project to Crater Lake National Park was rational. 

c. Oregon Highway 230 

Plaintiff contends that proximity of the Bybee Project area 

to Oregon Highway 230, also known as the Rogue-Umpqua Scenic 

Byway, required the preparation of an EIS. As noted, mere 

proximity to an ecologically critical area does not require the 

preparation of an EIS. Presidio Golf Club, 155 F.3d at 1162. 

The Bybee EA noted that Oregon Highway 230 is a an "area of 

concern for scenic quality." AR 7386. The highway is also a 

"high recreation use [area]" with "a risk of human caused fire." 

AR 7223. The Forest Service also noted that, without treatment, a 

fire that began along Oregon Highway 230 "would likely burn uphill 

into thick late successional vegetation with accumulated down 

woody material. A fire in this area would likely adversely affect 

these high value late successional resources." AR 7223. As 

noted, the Bybee Project is expected to substantially reduce the 

fire risk through fuel reduction treatments. AR 7225. 

The Bybee EA noted that none of the proposed actions would 

"contribute additional adverse effects to these visually sensitive 

management areas." AR 7388. "[A]ll known cultural properties 

will be avoided during implementation" of the Bybee Project. AR 

11598. The Forest Service consulted with the Oregon State 

14- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 14 of 30
Historic Preservation Office, which concurred that the Bybee 

Project would have "no effects on significant cultural resource 

values." AR 11598. 

I conclude that the Forest Service's decision not to prepare 

an EIS based on proximity to Oregon Highway 230 was rational. 

2. Precedential Value of the Bybee EA 

Agencies are required to consider "[t]he degree to which the 

action may establish a precedent for future actions with 

significant effects or represents a decision in principle about a 

future consideration." 40 C.F.R. § 1508.27 (b) (6). 

"EAs are usually highly specific to the project and the 

locale, thus creating no binding precedent." Barnes v. U.S. Dep't 

of Transp. 655 F. 3d 1124, 1140-41 (9th Cir. 2011). 

In this case, the Forest Service determined that the Bybee 

Project is 

similar in nature to actions undertaken on National 

Forest System lands and [does] not establish a precedent 

for future actions with significant effects, or 

represent a decision in principle with respect to future 

actions . [I]t is evident that these actions are 

consistent with the Rogue River Forest Plan, as amended. 

Any future decisions will need to be considered in a 

separate analysis using relevant scientific and sitespecific information available at that time. 

AR 11597-98. 

Plaintiff concedes that future projects that log in PWAs and 

other unroaded areas "will stand or fall on their own 

administrative record," but contends that the decision to permit 

logging and road construction nevertheless constitutes a potential 

precedent. Pl.'s Reply Br. 9. Plaintiff bases its claim on the 

15- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 15 of 30
assertion that the Forest Service has never authorized timber 

harvesting on PWAs before. 

The units at issue are designat~d for timber harvest under 

the Forest Plan. AR 11685. The Forest Service's decision is, 

therefore, consistent with the established designation of the 

land. As noted, the timber harvest on the PWAs will be light and 

is not expected to leave "long terms impacts on the landscape or 

create irreversible/irretrievable impacts to wilderness values." 

AR 11593. Given the limited scope of the Bybee Project, as well 

as the highly specific, non-binding nature of the EA, I conclude 

that the Forest Service rationally determined that no EIS was 

required. 

3. Risks to Threatened or Endangered Species 

Agencies are required to consider "[t]he 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) (9). 

Plaintiff contends that the Bybee Project will adversely 

affect both the northern spotted owl and the gray wolf. 

a. Northern Spotted Owls 

The northern spotted owl is an endangered species that can be 

found within the Rogue River-Siskiyou National Forest. AR 11598. 

During the Bybee Project planning process, the Forest Service 

consulted with the U.S. Fish & Wildlife Service regarding the 

northern spotted owl. At the time, the Bybee Project treatment 

units were are "coincident with 14 individual home ranges and/or 

16- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 16 of 30
core areas of known (not estimated) spotted owl sites." AR 6906. 

The Bybee Project does not include any removal of owl 

critical habitat. AR 6906, 11589. No "take" of individual owls 

is anticipated or permitted. AR 6914. USFWS concluded that the 

Bybee Project "may affect, and is not likely to adversely affect" 

the northern spotted owl. AR 6913. Agency biologists considered 

the cumulative effects of past, present, and reasonably 

foreseeable future actions and determined that "the Bybee Project 

is not expected to significantly cumulatively affect" spotted owl 

habitat. AR 11656-57. The habitat impacted by the Bybee Project 

"would be negligible and is not expected to affect the viability 

of the spotted owl within the analysis area." AR 11657. 

Nevertheless, the Forest Service ultimately deferred 

implementation of several Bybee Project units in order to "retain 

high value wildlife habitat within the home ranges of several 

spotted owls." AR 11585; 11589; 11598. 

Plaintiff contends that the Forest Service and USFWS 

determination was based on the effects of the Bybee Proj~ct on the 

northern spotted owl as a species and that the agencies should 

have considered the effects of the project on individual owls. 

The Ninth Circuit has held, however, that "NEPA regulations direct 

the agency to consider the degree of adverse effect on a species, 

not the impact on individuals of that species." Envtl. Prot. 

Info. Ctr. v. U.S Forest Serv., 451 F.Jd 1005, 1010-11 (9th Cir. 

17- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 17 of 30
2006). 7 

I conclude that the Forest Service rationally determined that 

no EIS was required based on potential adverse effects to the 

northern spotted owl. 

b. Gray Wolves 

In this case, the parties agree that no gray wolves were 

known to be in the High Cascades Ranger District at the time of 

the Bybee EA or the FONSI. As of now, the Rogue River-Siskiyou 

National Forest does not contain any gray wolf habitat that has 

been determined to be critical. Mellgren Decl. Ex. A, at 2. 

In the context of 40 C.F.R. § 1508.27(b) (4), the Ninth 

Circuit has held that challenges to agency decisions cannot be 

based on post hoc controversies when was no substantial dispute at 

the time of the agency's decision. Greenpeace Action v. Franklin, 

14 F.3d 1324, 1334 (9th Cir. 1992). Although this holding is not 

a perfect fit when applied to§ 1508.27(b) (9), the underlying 

rationale is sufficiently similar. Plaintiff cannot explain how 

the Forest Service could have acted arbitrarily and capriciously 

in failing to consider the potential effects of the Bybee Project 

7Plaintiff also cites this Court's recent decision in Oregon 

Wild v. BLM, No. 6:14-cv-01100-AA, 2015 WL 1190131 (D. Or. Mar. 

14, 2015). In that case, the Court found that the project's 

effects on the spotted owl, when considered cumulatively with the 

other "intensity" factors, justified the preparation of an EIS. 

Id. at *26. Unlike the present case, however, Oregon Wild 

involved the removal of 187 acres of owl critical habitat, which 

led USFWS to conclude that the project would adversely affect the 

spotted owl. Id. at *24-25. As noted, the present case involves 

no removal of critical habitat and USFWS found that the Bybee 

Project was not likely to adversely affect the northern spotted 

owl. 

18- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 18 of 30
on gray wolves when all parties agree that there were no gray 

wolves in the area at the time of the decision. The gray wolves' 

subsequent appearance in the High Cascades Ranger District and the 

Forest Service's response is more properly addressed in the 

context of Plaintiff's claims regarding supplemental NEPA 

analysis. 

4. Threatened Violation of Law 

As part of its NEPA analysis, an agency must consider 

"[w]hether the action threatens a violation of Federal, State, or 

local law or requirements imposed for the protection of the 

environment." 40 C.F.R. § 1508.27(b) (10). 

In this case, Plaintiff contends that the Bybee Project 

threatens a violation of NEPA by failing to prepare in EIS in the 

first instance and also by failing to supplement the Bybee EA 

following the appearance of the gray wolves in the High Cascades 

Ranger District. Plaintiff also asserts that the Bybee Project 

threatens a violation of NFMA. As discussed throughout this 

opinion, I find no violation of NEPA or NFMA. The Forest Service 

therefore rationally concluded that no EIS was required. 

B. Failure to Supplement the Bybee Project EA 

Plaintiff contends that the Forest Service violated NEPA by 

failing to prepare a supplemental EA once it learned of the 

presence of the OR-7 pack in the High Cascades Ranger District. 

In May 2014, USFWS and the Forest Service determined that OR7 had located a mate, settled in the High Cascades Ranger 

District, and produced pups. On October 10, 2014, less than six 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 19 of 30
months after the discovery of the OR-7 pack and approximately four 

months after Plaintiff commenced this action, the Forest Service 

completed the Bybee Vegetation Management Environmental Assessment 

- New Information Review for Gray Wolves ("the New Information 

Review"), an inter-disciplinary, supplemental review of the Bybee 

Project. Mellgren Decl. Ex. A. 

The Forest Service determined that the appearance of the OR-7 

pack was sufficient to warrant consideration and that it 

represented new information not considered in the Bybee EA. 

Mellgren Decl. Ex. A, at 2. The Forest Service also determined 

that the information was potentially relevant, as both the Bybee 

Project and the OR-7 pack are located within the High Cascades 

Ranger District. Id. 

The Forest Service biologists determined that the Bybee 

Project will have no effect on the gray wolves. Mellgren Decl. 

Ex. A, at 3. In making that determination, the Forest Service 

noted that the wolves' den is over 15 air miles from the Bybee 

Project area and all known locations of the OR-7 pack were more 

than 15 miles from the project area. Id. at 2-3. The Forest 

Service also conferred with USFWS biologists, who agreed that the 

Bybee Project would have no effect on the gray wolves. Id. at 3. 

Accordingly, the Forest Service found that the appearance of the 

OR-7 pack was not substantial and no supplemental NEPA analysis 

was required. 

1. Threshold Procedural Issues 

"Persons challenging an agency's compliance with NEPA must 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 20 of 30
structure their participation so that it alerts the agency to the 

parties' position and contentions, in order to allow the agency to 

give the issue meaningful consideration." Dep't of Transp. V. 

Public Citizen, 541 U.S. 752, 764 (2004) (quotation marks and 

citation omitted). 

As noted, the Forest Service's New Information Review was 

issued less than six months after the discovery of the gray wolves 

and four months after Plaintiff initiated this action. Plaintiff 

did not amend its complaint to include allegations regarding the 

New Information Review. In its motion for summary judgment, 

Plaintiff contends that the New Information Review is arbitrary 

and capricious. 8 

The Forest Service argues that Plaintiff's challenge to the 

New Information Review is procedurally barred by Plaintiff's 

decision not to amend its complaint. 9 The Forest Service also 

contends that Plaintiff failed to challenge the New Information 

Review at the administrative level. 

8 In its complaint, Plaintiff also claimed, in the 

alternative, that the Forest Service unlawfully withheld or 

unreasonably delayed its decision on a supplemental NEPA analysis 

in violation of 5 U.S.C. § 706(1) Compl. 17. Plaintiff has 

apparently abandoned this claim. 

9 In a footnote of its Reply brief, Plaintiff requests leave 

to amend its complaint, should the Court find amendment 

necessary. Local Rule 7-1(b) forbids combining a motion with any 

response, reply, or other briefing. Nor does the motion comply 

with the conferral requirements of Local Rule 7-1(a). 

Plaintiff's motion is not properly before the Court and I decline 

to consider it. See Harley-Davidson Credit Corp. V. Turudic, No. 

3:11-cv-01317-HZ, 2012 WL 5411771, at *1 (D. Or. Nov. 6, 2012). 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 21 of 30
While it may be that Plaintiff should have challenged the 

Forest Service's decision not to supplement their NEPA analysis at 

the administrative level, or, at the very least, should have 

amended their complaint, the fact remains that the Forest Service 

has now completed its review and issued its decision. I turn now 

to Plaintiff's substantive challenge to that decision. 

2. The New Information Review 

NEPA requires agencies to supplement a NEPA analysis in 

response to "significant new circumstances or information relevant 

to environmental concerns and bearing on the proposed action or 

its impacts." 40 C.F.R. § 1502.9(c) (1) (ii). Supplementation is 

not required every time new information comes to light after the 

EIS' is finalized because "[t] o require otherwise would render 

agency decisionmaking intractable, always awaiting updated 

information." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 

373 (1989). 

An agency's decision not to prepare a supplemental NEPA 

analysis "may be overturned only if it was arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law." 

Cold Mountain v. Graber, 375 F.3d 884, 892 (9th Cir. 2004). 

"Whether new information requires supplemental analysis is a 

'classic example of a factual dispute the resolution of which 

implicates substantial agency expertise.'" Tri-Valley CAREs v. 

U.S. Dep't of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (quoting 

Marsh, 490 U.S. at 376). 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 22 of 30
In this case, the New Information Review determined that the 

appearance of the OR-7 wolf pack was new information. Mellgren 

Decl. Ex. A, at 2. The presence of the wolves in the High 

Cascades Ranger District made the information potentially relevant 

to the Bybee Project. Id. Accordingly, the Forest Service 

undertook a review of potential impacts on the gray wolves by the 

Bybee Project. Id. at 3. As part of its review, the Forest 

Service biologists consulted with biologists from USFWS. Id. 

Both the Forest Service and USFWS determined that the Bybee 

Project would have no effect on the OR-7 wolves, noting that all 

known wolf locations, as well as the wolf den, are fifteen miles 

or more from the project area. Id. at 2-3. Based on the opinions 

of its own biologists, as· well as those of USFWS, the Forest 

Service concluded that the appearance of the gray wolves did not 

constitute significant new information relevant to environmental 

concerns regarding the Bybee Project. Id. at 3. Accordingly, the 

Forest Service determined that no supplemental NEPA analysis was 

necessary. Id. 

Plaintiff argues that the Forest Service should have made a 

decision on supplemental NEPA analysis before Plaintiff filed this 

action. I note that Plaintiff filed this action approximately one 

month after the presence of the OR-7 wolf pack was discovered. 

The New Information Review was completed less than six months 

after the discovery of the OR-7 pack. Under the circumstances, 

the Forest Service undertook and completed its review promptly. 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 23 of 30
Turning to the New Information Review itself, I conclude that 

the Forest Service's decision was not arbitrary and capricious. 

As noted, the question of whether an agency is required to 

supplement its NEPA analysis implicates agency ·expertise. Because 

Plaintiff decided not to amend its complaint to include 

allegations regarding the New Information Review, the Forest 

Service has not filed an administrative record for that decision. 

Nevertheless, the New Information Review and the supporting 

declaration filed by the Forest Service (#18) make it clear that 

the Forest Service based its decision on the advice and opinions 

of its own scientists, as well as those of USFWS. Of particular 

note, it is uncon~roverted that there is no designated critical 

wolf habitat in the Rogue River-Siskiyou National Forest. 

Similarly, it is undisputed that all known gray wolf activity has 

occurred fifteen miles or more from the project area. I conclude 

that the Forest Service took a "hard look" at the new information .. 

The Forest Service's decision not to prepare a supplemental NEPA 

analysis was not arbitrary or capricious. 

II. NFMA 

The National Forest Management Act, 16 U.S.C. § 1600 et seq., 

establishes both procedural and substantive requirements for the 

management of National Forest System lands. Under NFMA, the 

Forest Service is required to develop a Land and Resource 

Management Plan ("LRMP"), also known as a Forest Plan, which sets 

forth broad, long-term planning for an entire national forest. 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 24 of 30
Any site-specific projects approved by the Forest Service must be 

consistent with the Forest Plan. Great Old Broads for Wilderness 

v. Kimbell, 709 F.3d 836, 851 (9th Cir. 2013). The Forest 

Service's interpretation and implementation of its own Forest Plan 

is entitled to substantial deference. Id. at 850; Native 

Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). 

"Agency decisions challenged under NFMA may be set aside only if 

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

otherwise not inaccordance with the law." Native Ecosystems 

Council, 697 F.3d at 1056. 

Plaintiff alleges that the Forest Service violated NFMA by 

authorizing timber harvests and roadbuilding on soils that already 

exceed Forest Plan requirements for the protection of soil 

resources. 

In this case, the relevant Forest Plan is the Rogue River 

National Forest Land and Resource Management Plan. AR 1347. The 

Forest Plan provides that "No more than 10 percent of an activity 

area should be compacted, puddled or displaced upon completion of 

project (not including permanent roads or landings). No more than 

20 percent of the area should be displaced or compacted under 

circumstances resulting from previous management practices 

including roads and landings." AR 1417. 

Within the Bybee Project, 21 units have detrimental soil 

conditions that already exceed the 20% threshold prior to project 

implementation. AR 7628-31. None of the 21 units at issue are 

25- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 25 of 30
expected to suffer a net increase in soil disturbance as a result 

of the project. Id. The Bybee Project will combine silvicultural 

treatment with subsoiling, a restoration and rehabilitation 

practice aimed at improving deep root growth over time, ultimately 

improving stand resiliency and health. AR 7644; 11588. Other 

mitigation measures include consultation with a soil scientist 

during project planning, AR 11615, and the presence of an on-site 

Forest Service soil scientist during implementation "to ensure 

that proper mitigation measures and soil restoration actions are 

applied.u AR 11588. 

The Forest Plan does not directly address the issue of what 

standard should apply when prior activities have already resulted 

in soil disturbance in excess of 20%. The Forest Plan provides, 

however, that its standards and guidelines "supplement, but do not 

replace, direction from Forest Service Manuals, Handbooks, and the 

Regional Guide for the Pacific Northwest Region.u AR 1407. The 

relevant Forest Service Manual provides that "In areas where more 

than 20 percent detrimental soil conditions exist from prior 

activities, the cumulative detrimental effects from project 

implementation and restoration must, at a minimum, not exceed the 

conditions prior to the planned activity and should move towards a 

net improvement in soil quality." SUPP 002 (#13-1); AR 7644. 

The Ninth Circuit confronted a similar situation in Hapner v. 

Tidwell, 621 F. 3d 1239, 1246-47 (9th Cir. 2010). In that case, 

the applicable standards prohibited logging that resulted in more 

26- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 26 of 30
than 15% detrimental soil disturbance in affected areas. 10 Id. at 

1246. Where the soil disturbance already exceeded 15% from prior 

activities, harvesting was permissible so long as it did not 

result in a net increase in soil disturbance. Id. In Hapner, as 

in this case, the Forest Service planned to implement soil 

restoration measures so that the project area would not suffer a 

net increase in soil disturbance. Id. at 1247. The Ninth Circuit 

held that the Forest Service did not violate NFMA when it 

concluded that its mitigation measures would prevent a net 

increase in soil disturbance. Id. 

In this case, the Forest Service's decision to look to the 

Forest Service Manual for the applicable standard on management 

activities on sites that already exceeded the Forest Plan 

threshold was reasonable in light of the Forest Plan's express 

incorporation of Forest Service Manual standards. As in Hapner, 

the Forest Service had provided for mitigation measures to prevent 

a net increase in soil disturbance. 

Plaintiff disputes the efficacy of subsoiling as a 

restoration method. The record indicates that subsoiling is not a 

universally effective form of soil restoration and certain soil 

conditions can limit or negate its benefits. AR 6513; 6515; 7625; 

11612. Subsoiling has, however "been used with success on the 

10 In Hapner, the applicable Forest Plan did not provide 

specific standards for soil disturbance. The Forest Service 

therefore looked to the Northern Region Soil Quality Standard. 

Hapner, 621 F.3d at 1246. 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 27 of 30
High Cascades Ranger District for soil restoration, where historic 

management methods created detrimental compaction." AR 7625; see 

also AR 11588 ("Implementation and effectiveness monitoring on 

other similar projects in the areas have shown this method of soil 

restoration to be effective."). The record also indicates that 

the Forest Service is aware of the limitations of subsoiling and, 

accordingly, provided that a Forest Service soil scientist would 

be on site during implementation to ensure that the Bybee Project 

does not result .in a net increase in soil disturbance. AR 6515; 

11588. The efficacy of the mitigation measures is the sort of 

technical, scientific question in which the agency is entitled to 

substantial deference. Accordingly, I defer to the Forest 

Service's determination that the mitigation measures to be 

implemented in the Bybee Project will prevent a net increase in 

soil disturbance. 

I conclude that the Forest Service's decision to implement 

the Bybee Project is not arbitrary or capricious and does not 

violate NFMA. 

28- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 28 of 30
Conclusion 

Plaintiff's Motion for Summary Judgement (#12) is DENIED. 

The Forest Service's Motion for Summary Judgment (#15) is GRANTED. 

Judgment is for Defendant Forest Service. 

DATED this ~day of May, 2015. 

~~ OWEN M. PANNER 

U.S. DISTRICT JUDGE 

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Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 29 of 30
Conclusion 

Plaintiff's Motion for Summary Judgement (#12) is DENIED. 

The Forest Service's Motion for Summary Judgment (#15) is GRANTED. 

Judgment is for Defendant Forest Service. 

DATED this Z-1 day of May, 2015. 

OWEN M. PANNER 

U.S. DISTRICT JUDGE 

28- ORDER 

Case 1:14-cv-00981-PA Document 22 Filed 05/29/15 Page 30 of 30