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Leavenworth Audubon Adopt-a-Forest Alpine Lakes Protection Soc'y v. Ferraro

ELR Citation: 26 ELR 20103
Nos. No. C:94-1025C, 881 F. Supp. 1482/(W.D. Wash., 03/03/1995)

The court holds that the U.S. Forest Service must complete a supplemental environmental assessment (EA) under the National Environmental Policy Act (NEPA) for a proposed timber sale in the Wenatchee National Forest, and enjoins the sale until the EA is complete. The court first holds that the Forest Service's failure to consider and document the presence of bull trout—a sensitive and management indicator species under the forest plan—is inconsistent with the plan. The court holds that a declaration explaining that the proposed sale does not involve significant habitat disturbances requiring an inventory of the bull trout—a "sensitive" species under the forest plan—is an inadmissible post-decision justification. It does not explain or clarify the record, but rather provides an analysis of the bull trout that should have been made in the administrative proceedings. The court denies, however, a request by the environmental groups challenging the sale to enjoin the sale until the Forest Service develops a species management guide for the bull trout. The 1990 forest plan only requires that all such guides be completed by the 10th year after the plan's approval. The court holds that it was arbitrary and capricious for the Forest Service not to consider whether the bull trout is present in the sale area or whether the project will cause significant habitat disturbances after its own experts determined that the bull trout "possibly exists" in the sale area. The court next turns to the adequacy of the modified aggregate recovery percentage (ARP) model that the Forest Service used to conduct a cumulative-effects watershed analysis. The court holds that it must defer to agency expertise on questions of methodology unless the agency has completely failed to address some factor, consideration of which was essential to a truly informed decision. The court holds that the percentage of unrecovered condition within a watershed is a relevant factor necessary to make an informed decision, and that the Forest Service did not completely fail to address the watershed's unrecovered condition. The court holds that the modified ARP model provided a sufficient methodology for the Forest Service to evaluate the watershed's unrecovered condition. The court also holds that the Forest Service's decision to increase the amount of unrecovered area in the watershed when the amount of unrecovered area already exceeds that which the ARP model designates as risking increased flooding is not arbitrary and capricious. The court next holds that the Forest Service failed to analyze the impact of the sale on the detrimental soil conditions in one of the watershed drainages. The court next holds that the Forest Service adequately analyzed the sale's impact on old growth ponderosa pine stands. The Forest Service also provided sufficient documentation for its reclassification of areas previously classified as unsuitable for timber harvest. Thus, the Forest Service adequately considered the issue of timber suitability in the sale area. The court next holds that a declaration by a Forest Service scientist regarding mitigation of serpentine soils is not a post-decision justification, but is a permissible clarification of his original recommendation in the administrative record. The court also concludes that the Forest Service addressed the scientist's recommendations in the EA and followed them. And the court holds that the EA sufficiently documented and analyzed the regenerative capacity of the serpentine soils in the project area.

The court next holds that the Forest Service's decision not to consider the significance of new information contained in a report that the environmental groups cite lacks the "careful scientific analysis" that NEPA requires. The court next holds that a 1993 regional forester's interim directive does not govern the sale. The plain language of the directive states that it does not apply to those portions of the eastside forests covered by the 1994 record of decision (ROD), and it is undisputed that the Wenatchee National Forest is subject to the 1994 ROD. But the Forest Service must determine the significance of the scientific information underlying the 1993 directive. The court next holds that unusually large wildfires that burned near the sales area constitute an extraordinary event requiring supplementation of the EA; however, the Forest Service need not reevaluate the impact of the timber sale on the old growth ponderosa pine stands in the area in light of the fires, because the Forest Service provided a reasoned evaluation of the lack of significance of the new circumstance. The court holds that the Forest Service must evaluate the effects of the fires on the watersheds within the sale area before the contracts are performed, and before the trees are cut. The Forest Service has not shown that the wildfires have not had a significant effect on the streams in the project area. Further, the Forest Service must reexamine the impact of the proposed project on the sediment quality and water temperatures of the streams in the sale area in light of the wildfires. The court next holds that pending further compliance with NEPA, there is no need to determine whether the sale violates the Forest Service's standards and guidelines under the National Forest Management Act (NFMA). The court holds that plaintiffs' claims are not barred by the doctrine of laches, because the four months that passed after plaintiffs exhausted their administrative appeals was not unreasonable, and no undue prejudice resulted. The court next holds that the timber sale may irreparably harm the bull trout and detrimental soil conditions, and that this harm is grave compared to the adverse monetary impacts the Forest Service and timber companies may suffer. The court thus enjoins the sale until the Forest Service has taken the requisite "hard look" at the effect of the timber sale and ensured that the sale complies with its standards and guidelines under the NFMA.

Counsel for Plaintiffs
Gregory T. Costello
Riddell, Williams, Bullitt & Walkinshaw
1001 4th Ave. Plaza, Ste. 4400, Seattle WA 98154
(206) 624-3600

Counsel for Defendants
Brian C. Kipnis, Ass't U.S. Attorney
U.S. Attorney's Office
3600 Sea-First Plaza Bldg.
800 5th Ave., Seattle WA 98104
(206) 553-7970