Summary
finding "rough comparability" between road-maintenance CE and post-fire salvage logging on 14,951 acres along roads
Summary of this case from Earth Island Inst. v. ElliottOpinion
No. CV-03-0054-PCT-FJM.
July 9, 2003.
ORDER
This is an action brought by the Forest Conservation Council against the United States Forest Service seeking to enjoin the Forest Service from implementing three separate decisions made in connection with the treatment of dead trees arising out of the Rodeo/Chediski fire. We allowed Navajo County, Apache County, the City of Winslow, the Showlow Fire District, and the American Forest Resource Council to intervene as defendants. The case is here on the parties' cross-motions for summary judgment (doc. 4) and (doc. 9). We have read the parties' voluminous briefing along with the briefs of the many amici curiae. We have heard oral argument. We have reviewed the administrative record.
The Council has moved to supplement the administrative record. The Forest Service objects only to Exhibits 1(D), 4, 5, 6, 7, 14, and 15. The court has concluded that the cross-motions can be decided as a matter of law without reference to any of the exhibits that are in controversy. Accordingly, IT IS ORDERED GRANTING the Council's motion to supplement the administrative record as to unobjected exhibits, but DENYING the motion as to each of the exhibits to which objection was made.
I.
The Rodeo-Chediski fire of 2002 involved more than 460,000 acres of which 177,000 were within the Tonto and Apache-Sitgreaves National Forests. After consideration, the Forest Service issued three decisions to harvest dead trees on National Forest land. For each decision, the Forest Service decided that compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., was not necessary because of the existence of categorical exclusions within the Forest Service's Handbook. We very briefly describe each of the three decisions and later the categorical exclusions upon which the Forest Service based its decisions.
The first Decision Memo, Administrative Record 57, addresses the "Treatment of Dead Trees within or Adjacent to Administrative Sites, Roads, Trails, Developed Recreation Sites, and Concentrated Use Areas." Among other modes of treatment, the decision would allow the salvage logging of dead trees on 14,951 acres. Dead trees would be removed within 500 feet of the boundaries of administrative sites, developed recreation sites, and identified concentrated use areas, within 200 feet of the center line of highly traveled roads open to motor vehicle traffic, and within 100 feet of the center line along heavily used forest system trails.
The second Decision Memo, Administrative Record 58, addresses the "Treatment of Dead Trees Along Fences and Utility Lines." Dead trees would be removed within 150 feet of fences serving as private property boundaries and within 150 feet of utility lines. This would involve 3,008 acres.
The third Decision Memo, Administrative Record 59, addresses the "Treatment of Dead Trees in the Wildland/Urban Interface." It would remove dead trees within one-half mile of private land boundaries (the first 150 feet is also permitted under the second Decision Memo discussed above). This would involve 19,364 acres.
II.
Generally speaking, the National Environmental Policy Act requires federal agencies to prepare an environmental impact statement for major actions significantly affecting the quality of the human environment. An agency must prepare an environmental assessment to determine whether an environmental impact statement is required. An agency may avoid all of this if its action fits within a categorical exclusion which is defined as an action that has no significant effect on the human environment.
In each of the three decisions at issue here, the Forest Service performed no environmental assessment. Indeed, counsel for the Forest Service at oral argument conceded that the agency simply believed that its proposed action fit within existing categorical exclusions and moved on from there.
In reviewing the Forest Service's decisions, the court's standard of review is quite narrow. We do not judge whether the Forest Service proposals are good or bad, wise or imprudent. The wisdom of any particular decision is vested by operation of law in the agency, not this court. Our role is limited to a determination of whether the agency acted in a way that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A). We look at the record taken as a whole. And, of critical importance here, an agency's interpretation of its own categorical exclusion controls unless it is plainly erroneous or inconsistent with the terms used in the categorical exclusion. Alaska Ctr. for the Env't v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999). In short, our standard of review is quite deferential.
We also keep in mind that the issue before the court is not whether the dead trees should be cut, but only whether the Forest Service violated federal law in choosing not to perform an environmental assessment before deciding to cut them. That in turn depends upon whether the agency's interpretation of its categorical exclusions was plainly erroneous or inconsistent with the terms used in the categorical exclusions. It is to these issues that we now turn.
III.
As the basis for the categorical exclusion for its first decision, Administrative Record 57, which we refer to here as the roads and trails decision, the Forest Service relied upon categorical exclusions 31.1(b)(3), (4), and (5). Categorical exclusion 31.1(b)(3) addresses the "Repair and maintenance of administrative sites," with examples such as mowing lawns, replacing roofs, painting buildings, or applying pesticides. Categorical exclusion 31.1(b)(4) addresses the "Repair and maintenance of roads, trails and landline boundaries" with examples such as resurfacing roads, grading a road, pruning vegetation and posting landline boundaries. Categorical exclusion 31.1(b)(5) addresses the "Repair and maintenance of recreation sites and facilities" with examples such as applying herbicides to control poison ivy in camp grounds, applying insecticides at recreation sites, repaving a parking lot, and applying pesticides for rodent or vegetation control.
The application of these three categorical exclusions to the roads and trails decision is not immediately obvious. Removing dead trees within 500 feet of the boundaries of administrative sites can generally be said to relate to administrative sites. But the examples given (e.g., mowing lawns, replacing roofs) are far more modest than removing dead trees within a 500 foot swath. Similarly, removing dead trees within 200 feet of roads and 100 feet of trails relates generally to the repair and maintenance of roads and trails. Again though, the examples given are far more modest than the action proposed here (grading a road, pruning vegetation). And, removing dead trees within 500 feet of recreation sites generally relates to the repair and maintenance of recreation sites and facilities. But again, the examples given are far more narrow (applying insecticides and repaving a parking lot). If we were deciding this issue de novo, we might have concluded that the action proposed by the roads and trails decision, while within the general description of the categorical exclusions, is far more expansive than the examples given and thus the exclusions would not apply. But we are not reviewing this de novo. We must give the agency's interpretation controlling weight unless it is plainly erroneous or inconsistent with the terms used in the categorical exclusion. We cannot say that the agency's interpretation here is inconsistent with the terms used in the categorical exclusion. There is rough comparability. For example, the major environmental impact occurred when the roads went in. We thus cannot say that the agency's interpretation is plainly erroneous.
We turn next to the second decision, Administrative Record 58, which we call here the fence and utility line decision. Here, the Forest Service relied upon categorical exclusions 31.1(b)(4) (which we discussed above in connection with the roads and trails decision), and 31.2(2) "Additional construction or reconstruction of existing telephone or utility lines in a designated corridor." Examples include replacing an underground cable trunk and reconstructing a power line. The removal of dead trees within 150 feet of fences is generally within the scope of the repair and maintenance of roads, trails and landline boundaries. And, removing dead trees within 150 feet of utility lines is generally within the scope of the reconstruction of utility lines in a designated corridor. While the proposed actions are generally within the scope of the description, the examples cited are far more narrow. Again, the scope of review controls the outcome. We cannot say that the agency's interpretation is inconsistent with the terms used in the categorical exclusion and thus cannot say that its interpretation is plainly erroneous. This is especially true where, as here, the major environmental impact was considered when the utility lines went in.
We turn finally to the third decision, Administrative Record 59, the "Treatment of dead trees in the wildland/urban interface." The Forest Service proposes to remove dead trees within one-half mile of private land boundaries and relies on categorical exclusion 31.2(6) "Timber stand and/or wildlife habitat improvement activities which do not include the use of herbicides or do not require more than one mile of low standard road construction." Examples given are thinning or brush control to improve growth or to reduce fire hazard, the opening of an existing road to a dense timber stand, and prescribed burning. The removal of dead trees within one-half mile of all private land boundaries does not fit within the general description of timber stand and/or wildlife habitat improvement activities. Nor do any of the examples support such a vast program.
The salvaging of dead timber is covered by categorical exclusion 31.2(4)(b), which specifically addresses timber harvest and salvaging wood from dead or dying trees. But the Forest Service does not rely on this categorical exclusion because its motivation is to create a fire break and because the exclusion was invalidated in Heartwood v. United States Forest Serv., 73 F. Supp.2d 962 (S.D. Ill. 1999). Even if it did apply, the board feet that it would allow is infinitely less than that proposed here. Indeed, the Forest service has proposed a new salvage timber sale categorical exclusion that would be capped at 250 acres. The wildland/urban interface decision here involves 19,364 acres.
It is thus obvious that categorical exclusion 31.2(6) does not support the Forest Service's decision here. No amount of stretching can make it fit. Unless the deferential standard of review is infinitely elastic, we are constrained to say that the Forest Service's interpretation of categorical exclusion 31.2(6) is inconsistent with its terms and is therefore plainly erroneous.
IV.
By employing the broadest deferential standard, we have upheld the Forest Service's decision to treat dead trees within or adjacent to administrative sites, roads, trails, developed recreation sites, and concentrated use areas, and its decision with respect to the treatment of dead trees along fences and utility lines. But not even the broadest deferential standard could save the Forest Service's decision with respect to the treatment of dead trees in the wildland/urban interface. There remains the question of remedy.
The Forest Service argues that even if we were to find that it violated the National Environmental Policy Act, we need not enjoin it with respect to its wildland/urban interface decision. In Amoco Prods. Co. v. Village of Gambell, 480 U.S. 531 (1987), the Court acknowledged that the granting of injunctive relief is not automatic. A balancing of respective harms is still required. See also Alpine Lakes Prot. Soc'y v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975). The court notes that the half mile wildland/urban interface decision involves 19,364 acres of the 177,000 acres destroyed by fire on Forest Service land. The parties have advised the court that the Forest Service has already indicated an intent to provide an environmental impact statement on the remaining 150,000 acres.
The argument in favor of granting injunctive relief is that, no environmental assessment having been done, it is difficult for the agency or this court to say that the implementation of the wildland/urban interface decision would not have a significant effect on the quality of the human environment. Moreover, the Forest Service could collapse an environmental assessment of the wildland/urban interface acreage with the environmental analysis being undertaken for the remaining 150,000 acres.
The argument against granting injunctive relief is that the Forest Service is of the opinion that the one-half mile buffer between the Forest Service and private land would provide a defense zone against future wild fires. We take judicial notice of the fact that a drought plagues Arizona and that forests (other than the ones at issue here) are burning as we write. The Rodeo/Chediski fire burned in a mosaic pattern and it is likely that fuel for another wild fire exists even now. The Forest Service also argues that it does not have the resources to do all the cutting itself and must rely on commercial logging to implement its decision. It argues that the trees will become worthless if not logged soon. For this proposition the Forest Service relies upon Alpine Lakes Prot. Soc'y v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975) and Friends of the Clearwater v. McAllister, 214 F. Supp.2d 1083 (Mt. 2002).
The fire occurred about one year ago and there is a suggestion in the record that at about 18 months, dead trees begin to lose their value. Under these circumstances, we think that the balance tips in favor of denying injunctive relief. The Forest Service may proceed, but if it chooses to do so, it must comply with the National Environmental Policy Act by simultaneously preparing an environmental assessment, and, if necessary, an environmental impact statement, on the wildland/urban interface decision. Indeed, it may well be that the environmental impact analysis presently being done with respect to the remaining 150,000 acres will provide most of the answers to the questions raised by this proposal.
V.
Accordingly, IT IS ORDERED as follows.
1. We GRANT the Forest Service's motion for summary judgment (doc. 9) with respect to its decision on the "Treatment of dead trees within or adjacent to administrative sites, roads, trails, developed recreation sites and concentrated use areas," and its decision on the "Treatment of dead trees along fences and utility lines." Administrative Record items 57 and 58. We DENY the remainder of it.
2. We GRANT the Forest Conservation Council's motion for summary judgment (doc. 4) on the Forest Service's decision on the "Treatment of dead trees in the wildland/urban interface." (Administrative Record 59). We DENY the remainder of it.
3. We do not enjoin the Forest Service from implementing its decision with respect to the treatment of dead trees in the wildland/urban interface, but if the Forest Service chooses to go forward, it shall simultaneously prepare an environmental assessment, and, if necessary, an environmental impact statement no later than six months after the filing of this order. Meanwhile, the Forest Service may proceed forthwith.
4. All claims having been resolved, the clerk is directed to enter final judgment.