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Federal Court Strikes Down Federal Resource Agencies’ Amendments to Northwest Forest Plan

June 13, 2007

U.S. District Judge Ricardo Martinez recently rejected amendments made by the Departments of Agriculture and Interior to the Aquatic Conservation Strategy (“ACS”), a key component of the Northwest Forest Plan (“NW Forest Plan”). The ACS is the federal government’s “primary salmon restoration strategy on federal forestlands.”[1] The amendment allowed more logging to occur – even if specific actions were inconsistent with the ACS – as long as existing watershed conditions were maintained or restored over the long term. In Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries Service, Judge Martinez invalidated the ACS amendment and associated Biological Opinions (“BiOps”) that addressed the effect of its implementation on listed fish.[2] The opinion does not prohibit the Forest Service or the Bureau of Land Management (“BLM”) from allowing timber sales or forest restoration to occur on land covered by the NW Forest Plan, but does require that such actions comply with the original objectives of the 1994 ACS.

Background

The Clinton administration adopted the ACS as a component of the NW Forest Plan in 1994.[3] The goal was to protect and restore aquatic species’ habitat without eliminating the economic timber base of western economies that had sparked the timber wars of the early 1990s. At the time the NW Forest Plan was adopted, the Forest Ecosystem Management Assessment Team (“FEMAT”) was formed to develop alternative forest management options for lands covered by the NW Forest Plan.[4]

Timber harvest removes canopy and can accelerate erosion, and road work associated with timber sales can result in short-term sedimentation that negatively impacts aquatic species.[5] The ACS limits logging, road building and other erosion-causing activities in watersheds and steep hillsides that can damage aquatic habitat.[6] It addresses aquatic environments covered by the NW Forest Plan, and contains four basic components: (1) riparian reserves (buffer zones along water bodies); (2) key watersheds (best aquatic habitat, crucial to at-risk fish species and stocks and providing high quality water); (3) watershed analysis (documenting existing and desired watershed conditions); and (4) watershed restoration (long-term restoration of watershed health and aquatic ecosystems). Binding standards and guidelines within the ACS restrict logging and development activities that can impair fish habitat. The ACS also contains nine objectives designed to “maintain and restore properly functioning aquatic habitats.”[7]

When the Forest Service and BLM adopted the NW Forest Plan, no aquatic species within the range of the Plan were protected by the Endangered Species Act (“ESA”).[8] Subsequently, the National Marine Fisheries Service (“NMFS”) and U.S. Fish and Wildlife Service (“FWS”) listed several species of trout, salmon, steelhead, and bull trout as threatened or endangered under the ESA.[9] These listings required the Forest Service and BLM to consult with NMFS and/or FWS to ensure that continued implementation of the ACS was not likely to jeopardize listed species or destroy or adversely modify their critical habitat.[10] After consultation, the agencies produced BiOps that sparked several rounds of litigation.[11] The Ninth Circuit held that appropriate analysis of compliance with the ACS must occur at both watershed and project levels.[12] FWS issued a programmatic BiOp in 2000 in which it concluded that continued implementation of Forest Service and BLM resource management plans, as amended by the ACS and the NW Forest Plan, would not likely jeopardize bull trout. In December 2001, FWS and timber industry representatives initiated negotiations regarding logging in the Pacific Northwest. In 2002, Oregon Natural Resources Council and other plaintiffs challenged FWS' BiOps for four timber sales in bull trout habitat. The court issued a preliminary injunction, concluding that FWS failed to ensure that the timber sales were consistent with the ACS objectives.[13] FWS subsequently withdrew the BiOp, and the Forest Service and BLM initiated amendments to the ACS.[14] In 2004, the Bush administration attempted to implement these amendments to allow short-term stream degradation to occur, as long as agencies performed long-term monitoring to ensure maintenance of overall watershed health.[15]

Because amending the ACS is a “federal action significantly affecting the environment,”[16] in addition to issuing BiOps required under the ESA, the Forest Service and BLM were required to prepare an Environmental Impact Statement (“EIS”) under the National Environmental Policy Act (“NEPA”).[17] A coalition of commercial fishing, environmental and conservation groups filed suit against NMFS, the U.S. Department of Agriculture, and the U.S. Department of the Interior (collectively, “federal defendants”) to challenge the 2004 ACS amendments and the associated EIS and BiOps. Douglas Timber Operators, Inc. and American Forest Resource Council intervened as defendants.

In 2006, Magistrate Judge Mary Alice Theiler concluded (among other things) that the federal defendants failed to supply “a reasoned analysis in changing their course,” and did not adequately assess the cumulative effects of the ACS amendments.[18] In his March 30, 2007 opinion, Judge Martinez approved and adopted Judge Theiler’s Report and Recommendation, with the exception of her conclusions about plaintiffs’ NEPA challenges to the EISs.

Judge Martinez’s Opinion in Pacific Coast Federation

With respect to plaintiffs’ NEPA challenges, Judge Martinez held that the federal defendants’ assessment of the amendment was inadequate and failed to comply with NEPA. The Court found that, prior to the 2004 amendment, the ACS required the Forest Service to ensure that “road densities and the total amount of a watershed in clearcut condition would not alter runoff and erosion patterns to the detriment of water quality and fish survival.” The ACS amendment eliminated this requirement without “fully assess[ing] … the impacts of that change[.]”[19]

The Court also condemned the agencies’ failure to disclose opposing scientific views on the ACS amendments. NEPA requires federal agencies to “‘candidly disclose in its EIS the risks of its proposed action, and … respond to adverse opinions held by respected scientists.”[20] An EIS “violates NEPA where it fails to ‘disclose and discuss the responsible opposing views.’”[21]

The Court found that the administrative record showed that some FEMAT scientists, for example, expressed “disagreement with the [federal defendants’] assertion that the amended ACS would be consistent with the original objectives of the ACS, particularly as to the requirement that projects be consistent with the ACS at the site, watershed, and landscape scales.”[22] FWS scientists also commented that the “proposed language would ‘remove or weaken several key conservation provisions for aquatic species at the plan level’ and eliminate the ‘assurance that projects developed and implemented under the ACS guidance will contribute to restoring and/or maintaining the ecological health of aquatic ecosystems.’”[23] The Court found that these and other comments and dissenting opinions, by respected scientists, were not published in the body of the final SEIS, but were “instead … buried in the appendices as a summary of public comments on the draft [supplemental] EIS.”[24] In addition, the Court found that “several of the FEMAT scientists’ responses regarding [the] original intent of the ACS were misrepresented[.]”[25] Because an agency’s failure to acknowledge “opinions held by well-respected scientists concerning the hazards of [a] proposed action” in an EIS “is fatally deficient,” the Court held that the FSEIS violated NEPA.[26]

As a result, the Court granted plaintiffs’ motion for summary judgment and denied defendants’ two motions seeking summary judgment. The Court ordered that the BiOps and EIS issued on the ACS amendments, as well as the ACS amendments themselves, be set aside because all failed to comply with the ESA, the Administrative Procedure Act, and NEPA.[27]

The federal defendants filed a response to Judge Martinez’s Order in April 2007, asserting that the Court need not take any further action prior to entering final judgment in the case, but objecting to the scope of relief requested by plaintiffs.[28] Plaintiffs subsequently asked the Court to require that the federal defendants disclose what actions, if any, they are taking to ensure that projects authorized under the now-invalid 2004 amendments comply with the original objectives of the ACS.[29] As of this writing, the Court had not addressed either response.

For more information on ESA or NEPA issues, contact Jessica Ferrell.

[1] Pacific Coast Federation of Fishermen’s Associations, The “Aquatic Conservation Strategy” Proposed Changes (Feb. 2003).

[2] No. 04-1299, --- F.Supp.2d ---, 2007 WL 1031717 (W.D. Wash. March 30, 2007).

[3] See Report and Recommendation of Theiler, United States Magistrate Judge (March 28, 2006), reprinted in Pacific Coast Federation of Fishermen’s Ass’ns v. National Marine Fisheries Service (“Pacific Coast Federation”) No. 04-1299, --- F.Supp.2d ---, 2007 WL 1031717, at *7 (W.D. Wash. March 30, 2007) (citation omitted). For more information on the ACS, visit these pages of the NW Forest Service Plan Regional Ecosystem Office website: http://www.reo.gov/library/acs/ and http://www.reo.gov/library/reports/newroda.pdf.

[4] Report and Recommendation of Theiler, reprinted in Pacific Coast Federation, 2007 WL 1031717, at *7.

[5] Id. at *3.

[6] See generally Dan Berman, Judge rejects Bush admin bid to rewrite fish protections in NW Forest Plan, Landletter (April 5, 2007) (subscription required).

[7] These objectives are designed to maintain and restore the following: (1) distribution, diversity, and complexity of watershed and landscape-scale features to ensure protection of the aquatic systems to which species, populations and communities are uniquely adopted; (2) spatial and temporal connectivity within and between watersheds; (3) the physical integrity of the aquatic system; (4) water quality necessary to support healthy riparian, aquatic, and wetland ecosystems; (5) the sediment regime under which aquatic ecosystems evolved; (6) in-stream flows sufficient to create and sustain riparian, aquatic, and wetland habitats and to retain patterns of sediment, nutrient, and wood routing; (7) the timing, variability, and duration of floodplain inundation and water table elevation in meadows and wetlands; (8) the species composition and structural diversity of plant communities in riparian areas and wetlands to provide adequate summer and winter thermal regulation, nutrient filtering, appropriate rates of surface erosion, bank erosion, and channel migration and to supply amounts and distributions of coarse woody debris sufficient to sustain physical complexity and stability; and (9) habitat to support well-distributed populations of native plant, invertebrate, and vertebrate riparian-dependent species. Report and Recommendation of Theiler, reprinted in Pacific Coast Federation, 2007 WL 1031717, at *7-9 (citation omitted).

[8] 16 U.S.C. §§ 1531-1544.

[9] See Pacific Coast Federation, No. 04-1299, Complaint, Docket No. 1, at 12-13 (W.D. Wash. filed May 27, 2004) (describing these listings and attendant ESA obligations) (available on PACER).

[10] Report and Recommendation of Theiler, reprinted in Pacific Coast Federation, 2007 WL 1031717, at *8.

[11] See id. at *8-9 (citing opinions).

[12] Id. at *9-10 (citing, among other opinions, Pacific Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1036 (9th Cir. 2001)).

[13] See Cascadia Wildlands Project v. FWS, No. 02-747 (D. Or. Aug. 7, 2002).

[14] Plaintiffs argued that the federal defendants initiated this process at the request of timber companies. Id. (citation omitted). When proposed, the Pacific Coast Federation of Fishermen’s Associations said the Bush administration’s amendments “would eliminate current requirements under the ACS to protect or prevent damage to salmon habitat at any particular place in a watershed. By eliminating any requirement for site-specific protections, as well as any monitoring to ascertain cumulative effects of site specific timber operations, there would be no way of ascertaining whether the ACS was really working, nor of preventing further salmon habitat degradation.” Pacific Coast Federation of Fishermen’s Associations, The “Aquatic Conservation Strategy” Proposed Changes (Feb. 2003). The federal defendants stated that amendment was necessary to clarify the intent of the ACS objectives. Defendant-intervenors argued that project-level ACS consistency resulted in a “gridlock” on timber harvest. See Report and Recommendation of Theiler, reprinted in Pacific Coast Federation, 2007 WL 1031717, at *10 (citation omitted).

[15] For a summary of the ACS amendments, see Pacific Coast Federation, 2007 WL 1031717; Bush Increases Old Growth Logging in Pacific Northwest, ENS (March 25, 2004); and the NW Forest Service Plan Regional Ecosystem Office website.

[16] Pacific Coast Federation, 2007 WL 1031717, at *2 (quoting 42 U.S.C. § 4332(2)(C)).

[17]Report and Recommendation of Theiler, reprinted in Pacific Coast Federation, 2007 WL 1031717, at *10.

[18] Id. at *20, 25.

[19] Pacific Coast Federation, 2007 WL 1031717, at *2-3.

[20] Id. at *3 (quoting Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482 (W.D. Wash. 1992), aff’d, 998 F.2d 699 (9th Cir. 1993)).

[21] Id. (quoting Ctr. for Biological Diversity v. Forest Serv., 349 F.3d at 1169.).

[22] Id. at *4 (citing the administrative record in the case).

[23] Id. (citing the administrative record in the case).

[24] Id.

[25] Id. at *5.

[26] Id. at *4, 6.

[27] Id. at *6 (citing 5 U.S.C. § 706)).

[28] See Pacific Coast Federation, No. 04-1299, Federal Defendants’ Response to Court’s March 30, 2007 Order, Docket No. 107 (W.D. Wash. filed April 11, 2007).

[29] See Pacific Coast Federation, No. 04-1299, Plaintiffs’ Response to Court’s March 30, 2007 Order, Docket No. 108 (W.D. Wash. filed April 18, 2007).

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