JOHN COONEY, Magistrate Judge
Plaintiffs Klamath Siskiyou Wildlands Center, Siskiyou Regional Education Project, Oregon Natural Resources Council, and Headwaters bring this action alleging that defendant Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. in its preparation of the Pickett Snake Project (the Project) Environmental Assessment (EA) and Finding of No Significant Impact (FONSI). Plaintiffs only challenge the commercial logging and associated road building of the Project. Plaintiffs seek: 1) a declaration that defendant's FONSI for the Project was arbitrary and capricious and in violation of the law; 2) a declaration that the Project violates the Medford District Resource Management Plan (RMP); and 3) an injunction prohibiting the implementation of the Project until the defendant complies with NEPA and the RMP. Before the court are plaintiffs' motion for summary judgment (#41), defendant's motion for summary judgment (#56), and plaintiffs' motion to strike (#74).
Motion to Strike
Plaintiffs move to strike the declarations of Lee Anderson, Jeanne Klien, David Maurer, and the first and second declarations of Linda Mazzu arguing that the testimony: 1) postdates the agency's final actions that are subject to judicial review; 2) constitutes post hoc rationalizations for the agency's decision; 3) is not sustained by the existing administrative record; 4) does not meet any of the exceptions for admitting extra-record evidence; 5) from the BLM employees that is explanatory of the record is inextricably intertwined with post-record data or conclusions not supported by, and even contradictory of, the record; 6) contains unsubstantiated opinions about the effects of the timber sale; 7) discloses information that was not disclosed to the public or included in the administrative record; and 8) provides opinions without offering the requisite underlying data.
Plaintiffs argue that defendant should not be allowed to use Mr. Anderson's declaration to augment the record. Specifically, plaintiffs argue that: 1) his declaration is the clearest example of the BLM attempting to create new information to make up for deficiencies in the record; 2) Mr. Anderson was brought in as an expert after litigation commenced to determine whether or not the Project complies with the Visual Resource Objectives of the RMP; 3) Mr. Anderson's declaration consists entirely of new evidence gathered after the litigation was filed in an effort to justify the record assembled before the decision; 4) Mr. Anderson's analysis is not included in the administrative record; and 5) his opinions were not before the decision maker or the public at the time of the final decision.
Plaintiffs argue that Mr. Maurer's declaration should be excluded because it: 1) contains opinion testimony without any supporting evidence or data; 2) contains conclusions that are unsupported by data or are incongruous with the results in the record; and 3) fails to explain the science underlying his conclusions or why that science was not included in the record.
Plaintiffs argue that Ms. Klien's declaration should be excluded because: 1) although the first part of her declaration is explanatory of the record, the declaration provides new information that was never disclosed to the public or included in the administrative record; 2) the declaration uses new information to reach conclusions of law; 3) the comparative timber sales analysis in the declaration fails to cite any evidence in the record to corroborate the analysis; 4) the comparative timber sales information was never disclosed to the public and is not in the administrative record; 5) the comparative timber sales analysis is undated so it is unclear if it was made before or after the decision; 6) and the declaration contains conclusions that the Project complies with the law without citations to the record to substantiate those conclusions.
Plaintiffs move to exclude the first and second declarations of Ms. Mazzu arguing that: 1) the declarations consist primarily of information that was not included in the record or conclusions regarding the impacts of the Project on rare plants species that conflict with the record; 2) both the first and second declarations contain false information; 3) the declarations do not contain any references to the data underlying the facts and conclusions or to information in the record; 4) and her conclusions contradict the information in the record regarding long term cumulative impacts of BLM activities on rare plant species.
In response, defendant argues that: 1) the declarations are submitted to show that there are genuine issues of material fact concerning plaintiffs' claim that the agency has not considered all relevant factors or explained it decision; 2) the declarations of Mr. Anderson and Ms. Klien provide evidence that visual impacts from the Project do not exist; 3) the declaration of Ms. Mazzu explains the record and why the project does not raise concerns over certain botanical species; 4) the declaration of Mr. Maurer is an explanation of the record and contains references to documents in the administrative record and explains how they interrelate; and 5) the court should consider the declarations for purposes of explaining the record, the terminology used in the record, and the complexities of the issues.
In reply, plaintiffs argue that: 1) the exception allowing extra-record evidence to show defendant considered all relevant factors does not apply to Mr. Anderson's and Ms. Klien's declarations, because plaintiffs are not bringing a claim under NEPA for failure to consider relevant factors — plaintiffs' claim is that the Project does not comply with the RMP's Visual Resource Objectives; 2) the relevant factors exception does not apply to Mr. Anderson's declaration because it consists of evidence gathered after the decision and it cannot be used to show defendant considered relevant factors when it made its decision; 3) Mr. Anderson's declaration and Ms. Klien's declaration do not provide any new information regarding whether the Project is located in Visual Resource Management Class II areas; 4) Mr. Anderson's and Ms. Klien's declarations contain unsubstantiated conclusions that are not corroborated by the record, were not before the public or decision-maker at the time of the decision; 5) defendant fails to show that the declarations of Ms. Mazzu and Mr. Maurer fall under the exception of explaining technical terms or complex subject matter; 6) Ms. Mazzu's declaration contains conclusions of law regarding compliance with the RMP guidelines for management of sensitive species and contradicts the record; 7) Mr. Maurer's declaration is offered to show the project complies with the Aquatic Conservation Strategy; 8) Ms. Mazzu's declaration contradicts the record and offers new unsupported information not included in the record; and 9) Mr. Maurer's declaration repeats rather than explains the record and offers opinion testimony with no supporting evidence or data.
Generally, judicial review of an agency decision is limited to review of the administrative record before the agency at the time of the decision. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). A reviewing court may allow extra-record materials: 1) to determine whether the agency has considered all relevant factors and has explained its decision; 2) if the agency has relied upon documents outside the record; or 3) to explain technical terms or complex subject matter.Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996).
Post-decisional information may not be used as a new rationale for either sustaining or attacking an agency's decision. Id. The additional information should be explanatory in nature, and must be sustained by the record. Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir. 1984). Post-decisional information cannot be used to determine the correctness of the agency's decision.Pacific Coast Federation of Fisherman's Ass'n v. National Marine Fisheries Service, 71 F. Supp.2d 1063, 1066 (W.D. Wash. 1999),affirmed in part and vacated in part, 253 F.3d 1137 (9th Cir.),opinion amended and superseded on denial of rehearing, 265 F.3d 1028 (9th Cir. 2001). In addition, an agency cannot rely on expert opinion that does not include the underlying data upon which the opinion is based. Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998).
The court agrees with plaintiffs' position. The court finds that the declarations do not fall under any of the exceptions which allow for the introduction of extra-record materials. Much of the testimony consists of post-decisional information, which defendant seeks to use to support its decision. Consideration of this evidence to determine the correctness of defendant's decision is prohibited. Much of the information offered by the declarations is new information, rather than explanations of the record, the terminology in the record, or the complexities of the issues. Some of the new information offered is not supported by or contradicts information in the record. Some of the testimony contains opinions, but fails to cite to the data to support those opinions. The information offered cannot be considered background information. Based on the foregoing, plaintiffs' motion to strike should be granted.
I. FACTS
In 1998, the BLM began developing a proposal for managing the landscape in the Pickett Snake watershed to reduce fire hazard, harvest timber, thin young forest stands and provide recreational opportunities in accordance with the objectives, management actions/directions contained in the RMP and the Northwest Forest Plan (NFP). (AR 731). The Project seeks to implement the RMP, which in turn incorporated the standards and guidelines of the NFP. (AR 481).
On June 10, 1999, the BLM issued an Environmental Assessment (EA) for the Project (AR 475-573). The EA proposes commercial logging of mid and late successional forests on 1,116 acres of approximately 7.5 million board feet of wood volume in the Pickett Creek watershed southeast of Galice, Oregon. (AR 310).
The Project includes two timber sale contracts; Pickett's Charge and Pickett Snake. (AR 488). The Pickett Snake timber sale has been awarded and the purchaser has signed a timber sale contract. The BLM has not approved the Pickett Snake timber sale contract.
The Pickett Snake timber sale includes the construction of .7 miles of road, most of which follows a pre-existing road. (AR 237). Neither the Taylor Creek nor Buckhorn Mountain are designated as roadless areas by the RMP. (AR 210).
The land use allocation for the Project is Matrix land (AR 483). The BLM prepared Environmental Impact Statements (EISs) for both the RMP and the NFP.
The Project is adjacent to the Wild and Scenic Rogue River corridor, designated under the National Wild and Scenic Rivers Act, 16 U.S.C. § 1271-87. (AR 469). The Project is adjacent to the corridor in sections 9, 10, and 15. Timber sale units 9-8 and 10-10 abut the corridor. Most of the areas targeted for logging contain previously un-entered late successional forest habitat with a canopy closure of greater than 60%. (AR 522). The Pickett Snake timber sale does not authorize timber harvest in riparian reserves. (AR 457).
The Rogue-Recreation Section (a.k.a. Big Hog) watershed analysis was completed in January 1999. (Rogue-Recreational Watershed Analysis (WA) at 1). Final editing, printing, and public distribution was completed in August 1999, after expiration of the formal 30-day comment period for the Project EA. (AR 215). The Project EA specifically states that the BLM drew from the WA in planning the Project. (AR 481). Plaintiff Klamath Siskiyou Wildlands Center requested and received a copy of the WA. (AR 665).
The EA included two action alternatives, as well as a no action alternative. (AR 484). The two action alternatives were substantially similar; the only difference in the proposals is that Alternative 2 would decrease the canopy closure to a range between 25% and 40% over the entire project area, while Alternative 3 would leave 580 acres with canopy closure greater than 50%. (AR 488, 491).
The final EIS for the RMP analyzed a range of alternative land allocations and management options. (RMP-EIS Chap. 2). The Project EA was tiered to this document and to the RMP. (AR 2, 481). The RMP implements the objectives of the NFP, which designates the objectives of lands designated as Matrix to include timber harvesting activities. (NFP at 6).
The Pickett Snake Project area is home to many rare and sensitive plant species, including Cypripedium fasciculatum (clustered ladyslipper), Cypripedium monatanum (mountain ladyslipper), and Frittilaria gentneri (Gentner's frittilary). (AR 459, 516). C. fasciculatum is designated a Bureau Sensitive species under BLM policy, a Species of Concern under the Federal Endangered Species Act (ESA), and a Survey and Manage Species under the NFP. (AR 516). C. monatanum is also a Survey and Manage Species. (Id.). F. gentneri is listed as endangered under the ESA. (AR 459). The long term, indirect effects of the Project may include a reduction in population size, and productivity of individual populations of C. fasciculatum and C. montanum within the protection buffers in the project area. (AR 520-521).
The Project will result in the alteration of more than 2000 acres of suitable habitat for species dependant on late successional forests, including the Northern Spotted Owl, a threatened species under the ESA. (AR 527-528). The Project will result in the incidental take of two pairs of spotted owls. (AR 528).
The BLM consulted with the U.S. Fish and Wildlife Service (FWS) regarding the effects of the timber sale on the Northern Spotted Owl and its critical habitat. (FWS Biological Assessment and Biological Opinion # 1-7-01-F-032). The biological opinion from the FWS found that the timber harvest activities on the Project would not jeopardize the listed species or adversely modify its critical habitat. (Id.). The FWS has granted incidental take permits for Northern Spotted Owl sites on the Project. (AR 528).
Within the 1,116 acres of the Pickett Snake timber sale, 205 acres out of 620 acres will be degraded from suitable nesting habitat to dispersal habitat. Of 428 acres of foraging habitat, approximately 190 acres will be degraded to dispersal habitat. (Kerwin Decl. at 4).
The Project EA lists cumulative effects in various portions of the administrative record. (AR 512, 515-516, 520, 532-533, 540). General or typical effects from projects similar in nature to the actions proposed as part of the Project and the alternatives are described in the RMP and NFP EIS to which the Project EA is tiered. (AR 503; RMP EIS Chap 4; NFP EIS at 2-68-2-83).
Many concerned parties, including all the plaintiffs, submitted timely comments to the BLM concerning the proposed project. (AR 661-701). On June 24, 2002, Grants Pass Resource Area Field Manager Abbie Jossie signed a Decision Record/Rationale/FONSI for the Project, stating that there would be no significant impacts associated with the implementation of the Project, and concluding that the BLM did not have to prepare an EIS. (AR 456-471).
II. DISCUSSION
Plaintiffs move for summary judgment arguing that:
1) the Project violates the RMP by failing to comply with the Survey Management Requirements, the Bureau Sensitive Plant Directives, the Aquatic Conservation Strategy, and the Visual Resource Management Objectives;
2) the BLM must prepare an EIS for the project because, the Project will have significant cumulative impacts on the environment that were not discussed in the EA or the RMP, the BLM did not properly assess the impacts of the Project on threatened and endangered species, the BLM did not properly assess the impacts of the Project on the unique geographic area, and the BLM failed to explain why the Project would not have a significant impact on the environment;
3) the EA did not present an adequate range of alternatives; and
4) plaintiffs are entitled to an injunction.
In response to plaintiffs' motion for summary judgment and in support of its motion for summary judgment, defendant argues that:
1) the Project is consistent with the RMP;
2) the EA covers the impacts of the challenged actions including: the cumulative impacts of past, present, and reasonably foreseeable projects in the Pickett Creek watershed, impacts on threatened and endangered species, and impacts on the geographic area;
3) the EA adequately considered reasonable alternatives; and
4) plaintiffs are not entitled to an injunction.
In reply, plaintiffs argue that:
1) the Project does not comply with the RMP with regard to sensitive plant species, the Aquatic Conservation Strategy, and the Visual Resource Management Objectives;
2) the impacts of the Project are significant and require an EIS;
3) the BLM improperly used tiering to avoid a site specific analysis;
4) the BLM did not adequately assess cumulative impacts of the Project;
5) the BLM did not adequately assess the impacts of the Project on the unique geographic area;
6) violations of the law require the BLM to do an EIS;
7) the BLM failed to analyze an adequate range of alternatives; and
8) plaintiffs are entitled to an injunction.
In reply, defendant argues that:
1) the Project complies with the RMP;
2) the BLM did not improperly tier to the Programmatic EIS;
3) the BLM properly considered cumulative impacts;
4) the Project will not adversely affect threatened or endangered species;
5) the Project does not impact a unique geographic area;
6) there are no violations of other laws; and
7) the BLM considered an adequate range of alternatives.
RMP Claims
FLMPA mandates the development of a Resource Management Plan. 43 U.S.C. § 1712. FLPMA and its implementing regulations require the BLM to manage lands in compliance with the requirements of the Resource Management Plan. 43 U.S.C. § 1732(a); 43 C.F.R. § 1610.5-3(a). The RMP is the land use plan for all projects within the BLM's Medford District. Failure of a project to comply with the requirements of the Resource Management Plan is a violation of FLPMA and its implementing regulations. Survey Management Requirements and the Bureau Sensitive Plant Directives
The RMP contains survey and management strategies for vascular plants, which apply to all management actions for all land use allocations and resource programs. (RMP at 24-25). Strategy 1 has the highest priority and requires the BLM to manage known sites by acquiring information on the sites, making it available to all project planners, using it to design or modify projects and to protect known sites. (RMP at 24-25). In managing Matrix lands, the BLM is required to apply the management actions/direction for special status and SEIS special attention species. (RMP at 38-39).
The management actions/direction for special status and SEIS special attention species require the BLM to "[m]anage for the conservation of federal candidate and Bureau Sensitive species and habitats so as not to contribute to the need to list and to contribute to the recovery of the species." (RMP at 50-51). They require the BLM to modify, relocate, or abandon the proposed actions that contribute to the need to list Federal candidate species, state listed species, Bureau-sensitive species or their habitats . (RMP at 52).
Table 5 of the RMP, entitled Special Status Animal Species Management, states that the management action for C. fasciculatum and C. montanum is to protect known sites. (RMP at 57). Both C. fasciculatum and C. montanum are special status species under the RMP. (RMP at 136).
The project EA provides in part that:
Six populations of Cypridium fasciculatum were found in T35S-R7W-Section 15, T36S-R7W-Section 27 and T35S-R7W-Section 28. One population of C. montanum was found in T35S-R7W-Section 28. Cypripedium fasciculatum (CYFA) and C. montanum (CYMO) habitat occur primarily on moist northerly aspects . . . in older forests with 60% to 100% canopy closure. These orchid species are very long-lived, perhaps as long as 95 years . . ., can take up to 15 years to emerge above ground and require specific mychorrhiza for germination and establishment. C. fasciculatum . . . sparsely covers this range and is currently considered threatened or sensitive in most states. It is a Bureau Sensitive Species under BLM policy, a species of concern under the Federal ESA, and is a Survey and Manage . . . species. C. montanum . . . is rare in southwestern Oregon with fewer known populations than C. fasciculatum. It is also a Survey and Manage . . . species. These species have been found growing together in the same location.
(AR at 516).
The EA discusses the 1998 Management Recommendations for vascular plants which states that for both these Cypripedium species:
1) habitat conditions be maintained or restored in population areas, 2) canopy closure by maintained at 60% or greater, 3) down logs, snags and duff layer be maintained for soil moisture and mychorrhizal associates, 4) activities that alter soil, duff, downed wood and mychorrhiza be avoided, 5) known sites be secured from prescribed fire, except in research areas, 6) population areas be large enough to maintain microclimate, 7) biological/ecological requirements at each life stage be managed, and 8) environmental change be
managed in such a way as to ensure evolutionary potential.
(AR at 516-517).
The project EA discusses the "Environmental Consequences of Vegetation Treatments" as follows:
The differences in level of effect on botanical resources is in direct proportion to the amount of habitat affected by treatment. It is not just a result of the number of acres treated but also the size of intact habitat treated and the size of remaining habitat left available for re-establishment. The Management Recommendations state that size and quality of habitat are important factors for the survival of Cypripedium species. Therefore, when assessing treatment alternatives for effects on botanical resources, the most important aspects to review are the number of acres within the oldest stands that will have ground disturbance taking place and the type of disturbance (ie., dispersed treatments versus concentrated treatments). The variable of importance for the Picket Snake project is the type of disturbance taking place for each alternative, because structural retention will reduce canopy closure more than commercial thinning.
For all alternatives, while short term direct effects may be mitigated by the procedures outlined in the PDFS, long term indirect effects could include a reduction in population size and productivity of individual Cypripedium fasciculatum, C. montanum and Allotropa virgata populations within protection buffers. There is no definitive information available on whether buffers will protect these species' populations in the long run. Disruption in mychorrhizal connections could be detrimental over an extended period of time to the productivity of the population.
Indirect effects will occur from harvesting in potential habitat (ie., late-successional forest habitat). These effects are compounded because of the naturally fragmented, sparse nature of potential habitat in the project area. Whether the
treatment is commercial thinning or structural retention, the ground disturbance from such activities could be detrimental to any Survey and Manage populations that may be dormant presently or to any establishment of new populations from intact habitat. This is because the treatments would disrupt the mychorrhizal connections necessary for survival of these species.
Depending on the treatments, the canopy will be opened to varying degrees that could alter microsite from one of moisture and shade to more open, dry conditions. In Alternative 2, as mentioned in the Wildlife section, late-successional forest conditions will be reduced by 80% in the project area due to the amount of structural retention proposed. Structural retention will reduce canopy closure to an estimated 25% level which will eliminate any potential habitat in these units. The effects will be most detrimental in T35S-R7W-Section 15(005) and T36S-R7W-Section 27(020 and 021) where multiple Cypripedium fasciculatum and Allotropa virgata populations are located. The current Management Recommendations (1998) state that canopy closure, should be maintained at greater than 60% for protection of microsite for these vascular Survey and Manage species.
(AR at 519-520). The EA's proposed mitigation measure #8 calls deferring units 15.005, 27.02 and 27.021 from structural retention harvest prescription. (AR at 520).
In the Decision Record/Rationale/FONSI, the BLM decided to implement Alternative 2. (AR 456). The decision rejected proposed mitigation measure #8, stating that:
Populations of the Cypripedium will be buffered in accordance with current management guidelines. Deferral of structural retention harvesting in Units 15(005), 27(02) and 27(021) is therefore not needed. . . .
(AR 463).
The BLM's decision violates the RMP's Survey and Management Strategy 1, which requires the BLM to protect known sites of C. fasciculatum and C. montanum. The decision violates the RMP requirement that the BLM to manage lands so as not to contribute to the need to list the species and to contribute to the recovery of the species.
The BLM's chosen alternative, Alternative 2, reduces late-successional forest conditions by 80% in the project area and structural retention will eliminate any potential habitat. The effects of structural retention "will be most detrimental" in section 15 (005), and section 27 (020 and 021) where multiple C. fasciculatum populations are located. The EA states that the size and quality of habitat are important factors for the survival of the Cypripedium species. The EA provides that the current Management Recommendations state that canopy closure, should be maintained at greater than 60% for protection of microsite for these vascular Survey and Manage species. The EA discusses the cumulative impacts of timber harvests, understory treatments, and the clearing of forest for development on the Cypripedium species. It states that the "long term effect is a decrease in the ability of populations to maintain or to expand from these small islands of undisturbed ground into surrounding altered habitat and a decrease in the chances for persistence of the Survey and Manage species in southwestern Oregon."
The BLM's rejection of mitigation measure #8, which states that populations of the Cypripedium will be buffered in accordance with current management guidelines, does not comport with the Management Recommendation set forth in the EA. The Management Recommendation in the EA states that canopy closure, should be maintained at greater than 60% for protection of microsite for these vascular Survey and Manage species.
Aquatic Conservation Strategy
The RMP and the NWF Plan set forth the Aquatic Conservation Strategy, which "was developed to restore and maintain the ecological health of watersheds and aquatic ecosystems contained within them on public lands." (NWF Plan at B-9; RMP at 22). The Aquatic Conservation Strategy is designed to meet certain objectives. (RMP at 22). In order to comply with the Aquatic Conservation strategy, the BLM "must manage the riparian-dependent resources to maintain existing condition or implement actions to restore conditions." (NWF Plan at B-10).
The Aquatic Conservation Strategy contains standards and guidelines. (NWF Plan at B-10). The NWF Plan provides that:
The intent [of the standards and guidelines] is to ensure that a decision maker must find that the proposed management activity is consistent with the Aquatic Conservation Strategy objectives. The
decision maker will use the results of watershed analysis to support the finding. In order to make the finding that a project or management action "meets" or "does not prevent attainment" of the Aquatic Conservation Strategy objectives, the analysis must include a description of the existing condition, a description of the range of natural variability of the important physical and biological components of a given watershed, and how the proposed project or management action maintains the existing condition or moves it within the range of natural viability. . . .
(NWF Plan at B-10).
The EA contains the information required, in the form of a Biological Assessment, to demonstrate compliance of the Project with the standards and guidelines for the Aquatic Conservation Strategy. (AR 630-654). This document considered the watershed analysis, as well as information in the EA in determining that the project was consistent with the Aquatic Conservation Strategy. (AR 641). The BLM, in making its decision, may properly rely on the expertise of other agencies. See Luguna Greenbelt, Inc. v. U.S. Dept. of Transportation, 42 F.3d 517, 529 (9th Cir. 1994). The court finds that the Project does comply with the Aquatic Conservation Strategy.
Visual Resource Management Objectives
The RMP's Visual Resources objective for VRM Class II areas is to "retain the existing character of landscapes." (RMP 70). VRM Class II areas include the "seen area from the Rogue National Wild and Scenic River (wild section)." (RMP 70). The RMP requires the BLM to use "the visual resource contrast rating system during project level planning to determine whether or not proposed activities will meet VRM objectives." (RMP 70). The RMP requires the BLM to
Manage VRM Class II lands for low levels of change to the characteristic landscape. Management activities may be seen but should not attract the attention of the casual observer. Changes should repeat the basic elements of form, line, color, texture, and scale found in the predominant natural features of the characteristic landscape."
(RMP 70).
In discussing the VRM Objectives, the record states that:
Units visible from the Wild and Scenic Rogue River, Merlin Galice road, Indian Mary Park, and the Umpqua Joe trial near Indian Mary Park are VRM Class II. The general management objective for VRM Class II lands is to retain the existing character of landscape.
The stands that are VRM Class II are identified in Table B-2. in the table, VRM II foreground/middle ground refers to treatment units that are within one mile or to the first ridge, whichever is closer, from viewpoints on the river. No Structural retention treatments would be prescribed for the VRM II foreground/middle ground management zone. SR units will be divided along the first screening ridge as necessary and the seen areas would have the prescription CT/MGS.
The CT/MGS treatment would predominately remove the smaller crowned trees and it is anticipated that the larger crowned trees would provide a continuous visual canopy. In the case of the Umpqua Joe trail near Indian Mary Park, canopy closure would remain 45%+ with emphasis on maintaining the park trail as a scenic recreational trial. Trees would not be removed within twenty feet of the trail but, removal of some trees for scenic vista development may occur on the trail where appropriate.
The new Buckhorn Ridge trail will also have a twenty foot no harvest buffer along the edges.
(AR 491).
The RMP requires use of the visual contrast rating system to determine whether a project complies with the VRM objectives. The record does not state that the defendant used the visual resource contrast rating system to determine whether or not the Project met VRM objectives. The defendant's decision violates the RMP's VRM Management Actions/Direction requirement.
NEPA Claims
The court reviews an agency's decision not to prepare an EIS under the arbitrary and capricious standard. See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998); Northcoast Environmental Center v. Glickman, 136 F.3d 660, 666-667 (9th Cir. 1998); Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1993). The arbitrary and capricious standard requires the court to ensure that an agency has taken the requisite "hard look" at the environmental consequences of its proposed action, carefully reviewing the record to ascertain whether the agency decision is "founded on a reasoned evaluation `of the relevant factors'" and whether there has been clear error in judgment. Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The inquiry must be searching and careful, but the standard of review is a narrow one. Id.
The goals of NEPA are to ensure the agency will have available and will carefully consider detailed information concerning significant environmental impacts when it makes a decision and to guarantee that the information is available to the public.Inland Empire Public Lands v. U.S.F.S., 88 F.3d 754, 758 (9th Cir. 1996). The court must "ensure that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision was not arbitrary and capricious".Strycker's Bay Neighborhood Council, 444 U.S. at 227 (quotingBaltimore Gas Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97-98 (1983)). An agency's decision may only be called arbitrary and capricious if the agency: relied on factors which Congress did not intend it to consider; entirely failed to consider an important aspect of the problem; offered an explanation for its decision that runs counter to the evidence before the agency; or offered an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Southwest Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1448 (9th Cir. 1996) (citation omitted). Necessity of an EIS
An agency must prepare an EIS for all major federal actions significantly affecting the environment. 42 U.S.C. § 4332(2)©). To determine whether a project will have significant impacts on the environment, an agency must evaluate: the unique characteristics of the geographic area; whether the action is related to other actions with individually insignificant but cumulatively significant impacts; the degree to which the action may adversely affect an endangered or threatened species or its critical habitat; and 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)(3), (b)(7), (b)(9), and (b)(10). An EA must "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a).
Plaintiffs argue that the defendant failed to address the cumulative impacts of this project on: special status plants and threatened species; the watershed; fisheries; soil and water; botany; and wildlife. Plaintiffs argue that defendant's one sentence explanation in the FONSI, which states that "No significant cumulative impacts have been identified outside of those addressed and anticipated in the RMP-EIS" does not constitute a convincing statement of reasons why the project will not have significant effects. Plaintiffs also argue that defendant cannot tier to the RMP-EIS, because the RMP-EIS is not detailed enough and the project substantially departs from the policy and directives of the RMP-EIS.
In response, defendant argues that: the EA contains an adequate analysis of cumulative impacts, citing AR 512, 515-516, 520, 532-533, and 540; the EA was tiered to Chapter 4 of the RMP-EIS which considered the impacts from designating the lands on which the project is located as Matrix lands; the EA states that if a factor is not discussed it is assumed that the effects of the project on this factor will be minimal or nonexistent; plaintiffs must show the cumulative impacts analysis is missing; C. fasciculatum is no longer a Survey and Manage species; and the RMP-EIS discusses impacts on late-successional forest habitat and species at RMP-EIS 4-53.
In response, plaintiffs argue that: 1) defendant was not fully informed of the cumulative impacts of the project when the decision was made; defendant did not consider all factors in determining that the impacts of the Project were not significant; defendant did not provide a compelling statement of reasons why the cumulative impacts of the Project are not significant; the RMP-EIS does not contain substantive data or site-specific information; the EA and RMP-EIS do not provide sufficient information to support the FONSI; the Project violates the RMP, so the RMP-EIS could not have anticipated its impacts; the EA's analysis of affected plants and wildlife concluded that some species could be lost from the watershed; the sections of the administrative record cited by defendant lack substance and analysis; the cumulative impacts analysis on hydrology does not discuss impacts of current and future projects; the cumulative impacts analysis for vegetation does not discuss impacts of removing mature trees on the remaining vegetation; the EA contains only a general analysis of past and future projects in the watershed; the fisheries analysis contains no cumulative impact analysis; defendant cannot rely on its statement that if an impact is not discussed there is minimal or no impact; defendant cannot use tiering because the RMP-EIS does not account for any watershed level specific impacts from the project in conjunction with other projects in the area; the RMP-EIS states that late-successional species would be maintained (RMP-EIS 4-56), but the EA states that late-successional species may be lost from the watershed (AR 533); the elimination of a Bureau Sensitive Species from the Project area constitutes a significant impact; and the RMP at 2-104 and 2-107 requires a site-specific analysis.
In reply, defendant argues that: the RMP-EIS already considered the impacts of allocating this land for timber harvest and those impacts do not have to be revisited; the EA is implementing the RMP for which an EIS has already been done; the use of tiering was appropriate; the RMP-EIS analyzed the cumulative impacts of logging on various species; the EA shows no change or improvement to the hydrology of the area (AR 512); the cumulative impacts on the transitional snow area are discussed in detail (AR 462); cumulative impacts on vegetation are discussed in the NWFP-EIS (AR 536-541); the impacts on fisheries will be beneficial; therefore, a cumulative impacts analysis is not necessary (AR 534-535); a cumulative impacts analysis on sensitive species was done (AR 521); a cumulative impacts analysis on late-successional species was done (AR 533); the RMP-EIS addressed cumulative impacts on late-successional habitat (RMP-EIS 4-53); the NWFP-EIS anticipated that entire drainages would be wiped out (NWFP-EIS at 34-46); and extirpation of species would not be a real effect of the Project (AR 522).
An EA must provide an adequate analysis of any cumulative impacts resulting from the proposed action. Northwest Environmental Defense Center v. Bonneville Power Administration, 117 F.3d 1520, 1536 (9th Cir. 1997). Cumulative impacts are defined as:
"the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal
or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."
40 C.F.R. § 1508.7.
"To consider cumulative effects, some quantified or detailed information is required. Without such information, neither the courts nor the public, in reviewing the Forest Service's decisions, can be assured that the Forest Service provided the hard look that it is required to provide." Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372,1379 (9th Cir. 1998).
If the agency determines, based on the EA, not to prepare an EIS, the agency must prepare a Finding of No Significant Impact (FONSI). 40 C.F.R. § 1501.4(e). The agency must adequately explain its decision not to prepare an EIS by supplying a convincing statement of reasons why potential effects are insignificant. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998), cert. denied, 527 U.S. 1003 (1999). The statement of reasons is crucial to determining whether the agency took a hard look at the potential environmental impacts of the project. Id. "An agency must set forth a reasoned explanation for its decision and cannot simply assert that its decision will have an insignificant effect on the environment." Marble Mountain Audubon Soc. v. Rice, 914 F.2d 179, 182 (9th Cir. 1990) (citation omitted). Conclusions that are reached without any study or supporting documentation are insufficient to satisfy an agency's NEPA obligations. Id.
"An agency must prepare an EIS if substantial questions are raised as to whether a project . . . may cause a significant degradation of some human environmental factor. The plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared." Greenpeace Action, 14 F.3d at 1332 (citations and quotations omitted).
If an environmental impact is considered in a programmatic or regional EIS, then that impact does not have to be re-examined in a site-specific EIS. See Headwaters v. BLM, 914 F.2d 1174, 1178 (9th Cir. 1990), rehearing denied, 940 F.2d 435 (9th Cir. 1991). However, to allow teiring to a programmatic or regional EIS, that EIS must account for specific impacts of the proposed project and contain details concerning the proposed project and its impacts. See Muckleshoot Indian Tribe v. USFS, 177 F.3d 800, 810 (9th Cir. 1999). The proposed project needs to be concrete enough to allow for adequate analysis. Id.
In addressing the cumulative effects to Wildlife, including special status and Survey and Manage species, the EA states that:
The watershed has been greatly altered by past management activities on State, county, private and federal lands. (AR 532). Within the watershed the BLM planned to harvest 5,289 acres of timber, Josephine County was completing two timber harvest projects, and a private timber company was planning to harvest a mature stand (AR 532-533). Reasonably foreseeable actions included timber harvesting on BLM Matrix lands, as well as timber harvesting on county and private lands.
It was anticipated that after all the BLM actions, approximately 5,910 acres of late-successional habitat would remain on BLM lands within the watershed. 78% of this would be located within the Fish Hook/Galice LSR. The EA recognized that the remaining stands of late-successional habitat "are extremely important for supporting biodiversity and providing refugia for late-successional species . . .". (AR 533).
The EA found that:
The result of these actions will be a reduction in the refugia capabilities of these stands, as well as a reduction in the ability of these stands to temporally and spatially function. This means that some late-successional species may be lost from the drainage as well as the eastern portion of the watershed due to habitat loss. (AR 533).
The proposed harvests by the BLM and Josephine County would "take . . . all 9 known spotted owl site located in the Rogue-Recreation 5th field Watershed outside the LSRs." (AR 533). It was unknown if the sites would continue to be occupied or productive. (AR 533). The worst case analysis would be the loss of "all eight sites until habitat grows back and becomes suitable." (AR 533).
In addressing whether the Project "is related to other actions with individually insignificant but cumulatively significant impacts", the BLM found that "No significant cumulative impacts have been identified outside of those addressed and anticipated in the RMP-EIS." (AR 470).
The RMP-EIS's section on Species Associated with Mature and Old Growth Conifer Forest Habitat anticipated the following cumulative effects under the PRMP:
In the northern GFMA under the PRMP, lands allocated to timber management would be managed on a 100-year rotation and 100-year minimum harvest age. Within these areas, old growth on lands allocated to intensive or restricted timber harvest would rapidly be harvested. After three or four decades in the northern GFMA, old growth habitat would be restricted to riparian reserves, connectivity/diversity blocks, administratively withdrawn lands, protection buffers for several species and core areas around northern spotted owl sites. These small, isolated patches of latesuccessional habitat do have value for several species, especially those with limited mobility. . . . However, they often do not provide effective interior habitat for those species that require larger blocks. (RMP-EIS 4-55).
In this case, the BLM considered the cumulative impacts of the Project and other related timber harvests on Wildlife, special status and Survey and Manage species and their habitats, as well as late-successional species and watershed in general, in the EA. The BLM's finding that no significant cumulative impacts have been identified outside of those addressed and anticipated in the RMP-EIS with regard to the cumulative impacts is supported by the RMP-EIS. The RMP-EIS anticipated that in the northern GFMA, old growth habitat would be restricted to riparian reserves, connectivity/diversity blocks, administratively withdrawn lands, protection buffers for several species and core areas around northern spotted owl sites.
The court finds that the BLM's analysis of the cumulative impacts of the Project on wildlife, as well as the watershed in general, satisfies the hard look standard, defendant has supplied an adequate statement of why the potential impacts are insignificant, the statement is supported by the record, and plaintiffs' have failed to raise substantial questions as to whether the project may cause significant effects.
In addressing the effects of the Project on fisheries, the EA states that:
a) Short Term
The proposed notching of the existing structures will improve fish passage, thereby increasing salmon and trout production. The placement of the boulders and large wood will increase habitat complexity and will improve available rearing habitat for juvenile salmon and steelhead. In
addition the structures will provide resting pools for returning adult fish. This in turn will increase trout and salmon production in Pickett Creek.
The replacement or reinstallment of the culvert on the tributary to Pickett Creek will improve fish passage. Resident trout production will increase because of the alteration to the passage structure.
b) Long Term
Thinning, brushing, and burning will accelerate the progression of early and mid seral stage riparian vegetation. Canopy closure will increase at a more rapid rate and will help reduce excessive summer water temperatures. In addition, the larger trees will provide beneficial complex structure to the stream. The complex structure will improve fish habitat and will increase salmon and trout production and survival. (AR 535-536).
The court finds that defendant's examination of the effects of the project on fisheries satisfies the hard look standard. Defendant found that those effects would be positive, and this conclusion is supported by the record. Plaintiffs have failed to raise substantial questions as to whether the Project may cause a significant degradation to fisheries.
The EA contains a section on the effects of the project on soil and water. (AR 507). The EA contains a table which analyzes the short and long term effects of the project. (AR 508-510). The table shows that the Project will have only minimal or slight impact. The table shows that the Project's only moderate effect is on erosion in the short term in the Pickett Rogue area. (AR 509). The EA proposes mitigation measures to reduce the short term moderate effects of the Project. (AR 513). The EA also found that the Project would have no effect on summer water temperatures. (AR 514).
The court finds that defendant's examination of the effects of the project on soils and water satisfies the hard look standard. Defendant found that those effects would be minimal to slight, and in the case of the only moderate effect, defendant has proposed a mitigation measure to minimize the effects. Plaintiffs have failed to raise substantial questions as to whether the Project may cause a significant degradation to soils and water.
The EA contains a section on the cumulative effects of the Project on Botany. (AR 520). The EA states that:
Most of the BLM administered Matrix land with merchantable timber in the Rogue-Res 5th field watershed is or will be included in landscape projects with timber harvesting activities. This can also be said for BLM matrix land in adjacent watersheds. In southwestern Oregon, no official habitat assessment has been done, but of the known Cypripedium population sites on BLM land, the majority are being affected by timber projects through canopy thinning, ground disturbance and habitat fragmentation. Of the known populations, the majority are being protected through buffers that have not been proven to ensure viability for a specific population. The LSR adjacent to the Pickett Snake project area does contain Cypripedium fasciculatum populations, but may not be providing mitigation for these species, sine the majority of populations and potential habitat exists in the lower elevation, mixed evergreen vegetation of the Matrix land allocation.
The reasonable foreseeable future actions that will take place in the matrix and on county and private land will include continued timber harvest, understory treatments and clearing of forest land for development. More special status populations will continue to need buffering as more actions are planned on federal lands. Also, any populations on non-federal lands will most likely remain unprotected. The long term effect is a decrease in the ability of populations to maintain or to expand from these small islands of undisturbed ground into surrounding altered habitat and a decrease in the chances for persistence of these Survey and Manage species in southwestern Oregon. (AR 520-521).
In this case, the BLM considered the cumulative impacts of the Project and other related timber harvests on Botany in the EA. The BLM's finding that no significant cumulative impacts have been identified outside of those addressed and anticipated in the RMP-EIS with regard to the cumulative impacts on Botany is supported by the RMP-EIS. The RMP-EIS anticipated that timber management could later or eliminate habitats and individual populations. (RMP-EIS 4-67).
The court finds that the BLM's analysis of the cumulative impacts of the Project on Botany satisfies the hard look standard, defendant has supplied an adequate statement of why the potential impacts are insignificant, the statement is supported by the record, and plaintiffs' have failed to raise substantial questions as to whether the project may cause significant effects.
Plaintiffs argue that: the Project may adversely affect the Northern Spotted Owl and the Frittilaria gentneri is ways not adequately discussed in the EA or the RMP-EIS; defendant's finding that the Project is not likely to adversely affect the Northern Spotted Owl is contradicted by the Biological Opinion which states that the Project may affect (is), likely to adversely affect the Northern Spotted Owl; Northern Spotted Owls will be lost from the Project area; the EA fails to mention and analyze the Project's impacts on the Gentner's Frittilary; and the listing of Genter's Frittilary is significant new information requiring supplemental analysis.
In response, defendant argues that: the Biological Opinion made a no jeopardy assessment; the EA discusses Frittilaria gentneri and a Biological Opinion found the Project was not likely to adversely affect the species; the Project is designed to avoid adverse impacts; potential owl sites are not occupied; and a substantial portion of the Project has been deferred.
The EA acknowledges that Fritillaria gentneri is a federally listed species and that it is located in the Project area. (AR 459-460). The EA provides that all prescribed fire treatments in the areas where this species is located will be deferred pending the development of a specific experimental burn plan, separate NEPA documentation, and project specific consultation with the USFWS. (AR 459-460). In addition, the Biological Assessment shows that the Project is not likely to adversely affect this species. (BO at 43).
The court finds that: EA did consider the presence of Fritillaria gentneri in the Project area; the EA provides for steps to avoid adverse effects on the species; the record supports the determination that the Project is not likely to adversely affect this species; and plaintiffs have failed to raise substantial questions as to whether the Project may cause a significant effect on this species.
The effects of the Project on the Northern Spotted owl were addressed in the EA in the section on the cumulative impacts of the Project on wildlife. As stated above, the RMP-EIS anticipated the elimination of late-successional habitat and species from areas devoted to general forest management. The court finds that plaintiffs have failed to raise substantial questions regarding whether the project may cause a significant effect on the Northern Spotted Owl.
With regard to the unique characteristics of the geographic area, the EA acknowledges the presence of the Rogue Wild and Scenic River and states that the Project followed the VRM II guidelines to insure that there would be no adverse impacts on the visual qualities of the river. The court found earlier that the Project failed to comply with the RMP requirement for the use of the visual contrast rating system to determine whether a project complies with the VRM objectives. Since this portion of the defendant's determination regarding unique characteristics of the geographic area will have to be reevaluated after the defendant complies the requirements of the RMP, the court will not address plaintiffs' remaining arguments regarding other unique features of the area.
Range of Alternatives
Plaintiffs argue that the EA is invalid because: the defendant considered only two action alternatives that were virtually identical; the defendant failed to evaluate reasonably feasible alternatives proposed by plaintiffs and failed to explain why these alternatives were rejected; the defendant failed to evaluate a reasonably feasible alternative suggested by a member of the ID Team for the Project and failed to explain why that alternative was rejected; defendant failed to show plaintiffs' alternatives were unreasonable; 16-28" diameter trees are not small diameter trees; plaintiffs' suggestions of deferring harvesting of certain areas was not covered by the no action alternative. The defendant argues that: it appropriately limited the range of alternatives for the Project to those which would fulfill the requirements of the RMP; the no action alternative considered deferring logging; most of the trees selected for harvest are thin diameter; plaintiffs' suggested alternatives were not reasonable because they did not meet the objectives of the RMP; defendant does not have to reexamine the designation of the designation of these lands as Matrix lands; and an adequate explanation was given rejecting plaintiffs' proposed alternatives at AR 219 and 234.
"NEPA directs 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." Oregon Natural Desert Ass'n v. Singleton, 47 F. Supp.2d 1182, 1194 (D.Or. 1998). NEPA requires an agency to consider a reasonable range of alternatives to the proposed action. City of Carmel-by-the Sea v. U.S. Department of Transportation, 123 F.3d 1142, 1155 (9th Cir. 1997); See Prairie Woods Products v. Glickman, 971 F. Supp. 457, 471 (D. Oregon 1997).
The range of alternatives is determined by the statement of the purpose and need of the project, "which briefly defines `the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action'". City of Carmel-by-the-Sea, 123 F.3d at 1155. "The stated goal of a project necessarily dictates the range of `reasonable' alternatives and an agency cannot define its objectives in unreasonably narrow terms." City of Carmel-by-the-Sea, 123 F.3d at 1155. The court must determine whether the final "Purpose and Need" was reasonable, and then whether the alternatives considered were reasonable in light of the cited goals. Id.
An agency does not have to consider alternatives that are not feasible, ineffective, or inconsistent with the project's goal.Oregon Natural Desert Ass'n, 47 F. Supp.2d at 1195. "However, alternatives must rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss reasons for their having been eliminated." Id. An agency's failure to examine a viable alternative renders an environmental assessment inadequate. Muckleshoot Indian Tribe, 177 F.3d at 814.
In this case, the defendant's two action alternatives are virtually identical. (AR 456, 484, 488, 491, 492). The court finds that the EA is invalid because it did not consider a reasonable range of alternatives. See Muckleshoot Indian Tribe, 177 F.3d at 812-814. A member of the ID Team for the Project suggested a proposed alternative that deferred logging in section 21 of the Project area. (AR 728). The court finds that the EA is invalid because the defendant failed to explain why this proposed alternative was rejected and it appears that this was a reasonable alternative which should have been considered.See Oregon Natural Desert Ass'n, 47 F. Supp.2d at 1194-1195. Therefore, the defendant should be required to prepare an EA or EIS which analyzes a reasonable range of alternatives. Id. at 1196.
Injunctive Relief
In the Ninth Circuit, courts may apply one of two preliminary injunction tests. Ali v. United States, 932 F. Supp. 1206, 1209 (N.D.Cal. 1996). Under the first test, the party must show: 1) irreparable injury; 2) probability of success on the merits; 3) the balance of equities in their favor; and 4) if the public interest is involved, the granting of the injunction is in the public interest. Stanley v. University of Southern California, 13 F.3d 1313, 1319 (9th Cir. 1994) (citation omitted). Under the second test, the moving party must demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardship tips sharply in their favor. Id. Even if the balance tips in their favor, they must still show a fair chance of success on the merits. Id. If the balance tips sharply in favor of the plaintiff, less likelihood of success on the merits is required. Wilson v. Watt, 703 F.2d 395, 399 (9th Cir. 1983). In addition, the party must also show an inadequate remedy at law. Stanley, 13 F.3d at 1320. The standards for a permanent injunction are the same as a preliminary injunction, except the moving party must show actual success on the merits, instead of probable success on the merits.Amoco Production Co. V. Village of Gambell, AK, 480 U.S. 531, 546 n. 12 (1987).
"Irreparable harm is injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation." Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 37 (2nd Cir. 1995). Injunctive relief is appropriate when the moving party demonstrates irreparable harm and inadequacy of legal remedies. Amoco Production Co., 480 U.S. at 542 (citation omitted). The "court must balance the competing claims of injury and must consider the effect on each party the granting or withholding of the requested relief. Id. "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment."Id. at 545. The court will not issue an injunction if the granting of an injunction "might actually jeopardize natural resources". American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 966 (9th Cir. 1983).
"The court must weigh and consider the public interest in deciding whether to issue an injunction". Seattle Audubon Soc. v. Evans, 771 F. Supp. 1081, 1095 (W.D. Wash.), affirmed, 952 F.2d 297 (9th Cir. 1991) (citations omitted). An administrative agency's failure to comply with the law "invokes a public interest of the highest order: the interest in having government officials act in accordance with the law. Id. at 1096 (citation omitted).
"In determining whether to issue an injunction where statutory violations have occurred, the court must engage in a two-part analysis." Id. (citation omitted). First, the court must determine whether the statute restricts the courts equity jurisdiction; whether the statue would either require or preclude the issuance of an injunction. Id. Second, if there is no limitation, the court must balance the equities to determine the appropriateness of an injunction. Id. If the court finds NEPA violations, an injunction is the appropriate remedy. See Forest Conservation Council v. U.S.F.S., 66 F.3d 1489, 1496 (9th Cir. 1995). However, an injunction should not automatically issue. Id. Instead, defendants should be given an opportunity "to present evidence of unusual circumstances that weigh against the injunction sought, and to present evidence to assist the court in fashioning the appropriate scope of whatever injunctive relief is granted." Id. (citations omitted).
In this case, the court finds that plaintiffs' have met their burden of showing that they are entitled to injunctive relief. Plaintiffs have established actual success on the merits on their claims for violations of FLPMA and NEPA. The plaintiffs have established the possibility of irreparable harm if the Project is allowed to proceed without compliance with these laws. Plaintiffs have established that the balance of hardships weighs in their favor. In this case, an injunction is the appropriate remedy for violations of FLPMA and NEPA. See Forest Conservation Council v. U.S.F.S., 66 F.3d 1489, 1496 (9th Cir. 1995). Therefore, it is recommended that a injunction be issued pending defendant's compliance with FLPMA and NEPA.
III. RECOMMENDATION
Based on the forgoing, it is recommended that plaintiffs' motion for summary judgment (#41) be granted in part and denied in part, defendant's motion for summary judgment (#57) be granted in part and denied in part, and plaintiffs' motion to strike (#74) be granted.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.