25 ELR 21288 | Environmental Law Reporter | copyright © 1995 | All rights reserved

Clairton Sportsmen's Club v. Pennsylvania Turnpike Commission

The court holds that the Federal Highway Administration (FHWA) and other federal and state agencies did not violate the National Environmental Policy Act (NEPA) or the Intermodal Surface Transportation Efficiency Act (ISTEA) when they issued a final environmental impact statement (EIS) for a roadway segment through western Pennsylvania. The road will run from I-70 near Speers, Pennsylvania, to Route 51 near Large, Pennsylvania, and is part of a proposed highway from Morgantown, West Virginia, to Pittsburgh, Pennsylvania. Plaintiffs challenge the agencies' decision to divide the project north of I-70 into two segments—I-70 to Route 51 and Route 51 to Pittsburgh. The court first holds that a letter from the U.S. Environmental Protection Agency's (EPA's) acting regional administrator to a staff attorney for the Pennsylvania Environmental Council is properly part of the administrative record. The letter predates the FHWA's record of decision, which was the final agency action for the project; EPA was directly involved with the project as a cooperating agency on the EIS; and the Council commented on the project. The court, however, does not accept intervenors' exhibits as properly part of the administrative record.

Turning to plaintiffs' claim that the final EIS fails adequately to consider the environmental impacts of the project from Route 51 to Pittsburgh, the court holds that the actions the agencies have taken concerning the project do not constitute a "proposal" for federal agency action under NEPA § 102(2)(C). Plaintiffs have provided no evidence that the project has been federally approved, there is no funding proposal pending before any agency, and there is no evidence of active preparation to make a decision on alternatives. Further, to study now the impact of a road from Route 51 to Pittsburgh runs an almost certain risk that the information will be outdated by the time decisionmakers might actually use it. Given NEPA's plain terms, the court rejects plaintiffs' interpretation of 40 C.F.R. § 1508.7 to require that the future action need only be reasonably foreseeable. The court also rejects plaintiffs' argument that agencies should not be permitted to change a decision once made. Administrative Procedure Act rules of review and case law demonstrate that altering transportation projects in midstream is not, in itself, prohibited by NEPA.

The court next addresses plaintiffs' claim that the agencies wrongly divided the project into two segments and, thus, failed to consider the cumulative impact of the Route 51 to Pittsburgh road in the final EIS. The court rejects plaintiffs' assertion that Pittsburgh, not a point on Route 51, is the logical northern terminus for this project. Although an endpoint for the expressway in Pittsburgh is one logical choice, the court finds that this choice is validly confined to the agencies. And although the current northern terminus may add 7,400 vehicles per day to an already congested Route 51, the court cannot say that this factor strips the Route 51 terminus of all logic. The agencies have planned measures to reduce the added congestion.

The court next addresses plaintiffs' argument that if construction of the I-70 to Route 51 road is allowed to proceed, the southern terminus of the Route 51 to Pittsburgh project will be finally determined and, thus, road planners will be unable to avoid areas of high subsidence in constructing it. The court holds that this issue is appropriately committed to agency discretion, and the record shows that the agencies acknowledged this issue. Moreover, plaintiffs have cited no evidence that the risk of subsidence is insurmountable by known engineering solutions. Without such information, the court is ill-equipped to question the agencies' implicit conclusion that subsidence risks can be mitigated. The court holds that the claim that a sportsmen's club's "unique property" will be affected is likely moot, because plaintiff club has indicated its intention to withdraw from the suit. Nonetheless, there is no evidence that the club's property is significantly more important than other private property that will be affected by the road such that NEPA requires additional study of alternatives around it.

The court next addresses plaintiffs' claims that Council on Environmental Quality regulations also compel consideration of the Route 51 to Pittsburgh project in the EIS because the two roads are either connected actions, cumulative actions, or similar actions, as defined by the regulations. Plaintiffs cite no supporting case authority. Case law applying the "connected action" test, which assesses a project's independent utility, demonstrate that the I-70 to Route 51 road has independent utility by meeting the needs identified by the agencies, and does not depend on a larger action for its justification. By achieving certain stated goals, it will contribute to economic redevelopment of the area. The court holds that the agencies were not required to consider cumulative impacts, because plans for the Route 51 to Pittsburgh project do not meet the regulations' definition of "proposed actions" and the agencies do not know what form the project will take. Also, the presence of some disagreement among the agencies on the need to study cumulative impacts does not negate the validity of the final EIS. The court holds that plaintiffs' argument that the two roads are similar actions also lacks merit. The court next rejects plaintiffs' argument that the agencies failed to consider fully an alternative to the road ultimately chosen—a project upgrading Route 51 South. The court finds that given the agencies' choice of transportation goals, the Route 51 South upgrade was not a reasonable alternative that NEPA required the agencies to consider. The record contains direct information that the alternative would not advance the agencies' transportation goals or that the agencies improperly dismissed the alternative.

Turning to plaintiffs' claims under the ISTEA, the court holds that the public participation requirements of 23 C.F.R. § 450.316, which concerns the metropolitan transportation planning process, are not mandatory for the congestion management system study (CMS) required under ISTEA § 134(i)(1). The court upholds as reasonable the FHWA's interpretation of the interim regulations as not including specific requirements for public involvement regarding the CMS. The court also holds that 23 C.F.R. § 450.318 did not compel the FHWA to require a major investment study (MIS) for the project, and that the agencies' decision to include a section on MIS compliance in the final EIS instead was reasonable. Regarding the validity of the CMS evaluation, the court holds that the agencies' actions were not arbitrary, capricious, an abuse of discretion, or contrary to law.

Counsel for Plaintiffs
Anthony P. Picadio
Picadio, McCall, Kane & Norton
USX Tower
600 Grant St., 46th Fl., Pittsburgh PA 15219
(412) 288-4000

Counsel for Defendants
Charles B. Gibbons
Klett, Lieber, Rooney & Schorling
One Oxford Ctr., 40th Fl., Pittsburgh PA 15219
(412) 392-2000

[25 ELR 21289]

CINDRICH, District Judge.

This is an action for review of a decision to build a seventeen mile, $ 413 million limited access highway, from Interstate 70 to Route 51 near Large, Pennsylvania, a point short of the major metropolitan area in the region. The immediate issues raised by this decision concern vehicle traffic. Barely below the surface and directly connected to the traffic issues, however, are matters of economics, land development, employment, politics, regional influence, ecology, and sociology.

The parties and intervenors address both the traffic and non-traffic issues at length in their briefs. This is to be expected given their importance and the anticipated direct relationship between the highway and the fortunes of surrounding communities. Indeed, the obvious and intrinsic importance of these issues may make it difficult to accept that a court cannot influence related decision-making, and can exercise authority over such cases only under fairly narrow conditions. It is not that the Court considers these issues any less important. Rather, the law firmly recognizes that the elements that make up such decisionmaking are so diverse that they are consigned to officials and agencies with specialized knowledge, experience, resources, and mechanisms for broad public participation that a court does not possess. Thus, while a host of issues must be considered by the defendants ("Agencies") in deciding what form their transportation objectives will take, we review the Agencies' actions only to ensure that such issues are genuinely considered. We are not free to weigh the many competing interests underlying these issues. Having reviewed the Agencies' consideration of the issues in detail we conclude that their actions were consistent with governing law. Accordingly, plaintiffs' challenge to the Agencies' actions will be denied.

FACTUAL BACKGROUND

What is now known as the Mon/Fayette Transportation Project is a series of roads and prospective roads extending 65 miles from I-68 near Morgantown, West Virginia, to the City of Pittsburgh. Southern portions of this project have been completed and are open for traffic. At issue here is the construction of the northern portion. ARBD 27 PO-2 to PO-3.¹

At one time the northern portion was conceived of as a single road extending from I-70 to I-376, to be built in a single stage. In its present form in this litigation, this portion of the project has been divided. The roadway is now planned to span seventeen miles from I-70 near Speers, Pennsylvania to Route 51 near Large, Pennsylvania; it does not extend to I-376 or the City of Pittsburgh. It will lie west of the Monongahela River, in rough proximity to Mid-Mon Valley² communities such as Donora, Charleroi, Monessen, and Monongahela. It will be a four lane, limited access toll road with interchanges [25 ELR 21290] near Charleroi, Monongahela, and Finleyville. It will be constructed by the Pennsylvania Turnpike Commission ("Commission") and become part of the Pennsylvania Turnpike System. ARBD 27 at II-36 to II-43.

Plans for construction of a north-south highway serving the Mid-Mon Valley have existed for twenty-five years. ARBD 1 at 5. Lack of funding habitually prevented the highway from being built. The advent of toll revenues as a source of financing brought the project back to life in the mid-1980's. In 1985, the Pennsylvania legislature authorized the Commission to build, among other projects, a road from I-70 to I-376 that was permitted to become a toll road. 75 Pa.Cons. Stat.Ann. § 8912(1). The toll feature allowed then Governor Casey to propose the project for federal funding under the Surface Transportation and Relocation Assistance Act. That Act permitted federal funding of up to 35% of toll road projects, reversing the federal government's previous policy of funding only toll-free highways. 23 U.S.C. § 129(a) and (j). See ARBD 27 at ES-1.

With federal funding in place, construction planning proceeded. Until June 1992, studies of the northern portion of the Mon/Fayette Transportation Project were based on a road that stretched from I-70 to I-376. See ARBD 1 at 7; ARBD 3 at 1-6; ARBD 35 at 167.³ For example, an engineering study for the Commission issued in March 1992 evaluated the road from I-70 to I-376. ARBD 3. There is no question that the proposed transportation project was to be linked to the major metropolitan areas of Morgantown and Pittsburgh. See, e.g., ARBD 35 at 9. There likewise is no question that the entire Mon/Fayette Project, while ultimately intended to encompass a continuous road surface, was being planned and built in different stages at different times. See, e.g., ARBD 27 at PO-2; ARBD 1 at 7; ARBD 3 at 1-2; ARBD 35 at 177.

On June 29 and 30, 1992, more than sixty federal, state, and local officials participated in a conference⁴ to re-evaluate the transportation needs of the Morgantown-Pittsburgh corridor. The conferees concluded that:

reconsidering different project needs in the corridor from Pittsburgh, Pennsylvania to Morgantown, West Virginia showed differing needs for different sections, depending upon: variations in the surrounding areas; existing highway conditions; projections of future traffic demands; and known community and environmental constraints.

In order to design improvements to best meet these varying needs most effectively, the overall transportation improvements for the corridor were designated as individual projects, with individually determined alternatives and individually tailored environmental studies.

ARBD 27 at PO-5. Project construction and the accompanying environmental impact studies thus were to be divided into four geographical areas:

(1) I-68 to Uniontown, Pennsylvania;

(2) Uniontown to I-70;

(3) I-70 to Route 51; and

(4) Route 51 to Pittsburgh.

The Agencies outlined the perceived benefits to this approach, namely: greater responsiveness to local needs; independent scheduling of environmental review; and precision that is lost when impacts are assessed in project areas that are too large. ARBD 27 at PO-5.

Following the June 1992 conference the FHWA requested the EPA and the Army Corps of Engineers to become cooperating agencies in developing environmental impact statements ("EIS"). These agencies and others participated in regular coordination meetings to continue review of the project, goals, suggest alternatives, and resolve problems related to the project. ARBD 27 at PO-12.

A Draft Environmental Impact Statement ("DEIS") was circulated in March 1993, and a public hearing held in May 1993. A Supplemental DEIS was issued in September 1993 to address an alternative route known as the Green Alignment running through Jefferson Borough, Allegheny County, ARBD 21 at 1. Another public hearing was held in October 1993 to provide and receive additional information about the project.

Based on the DEIS, Supplemental DEIS, agency comments and public comments, a two-volume Final Environmental Impact Statement ("FEIS") was prepared. ARBD 27 and 28. The FEIS identified the needs of the Mon Valley and the purposes of transportation improvements for that area:

—existing poor roadway conditions impede efficient movement of goods and services throughout the area;

—roadway capacity is insufficient to relieve existing and future congestion;

—vehicular and pedestrian safety needs to be improved;

—roadway linkage between major highways serving the area is insufficient;

—accessibility to social services and accessibility by emergency services in the area needs to be improved;

—transportation services capable of supporting economic redevelopment of the area are not present.

ARBD 27 at ES-2. The FEIS reviewed four alternatives for the I-70 to Route 51 project that would serve these objectives. A transportation system management alternative would make improvements to the existing road system and implement changes that would not require construction, such as additional bus service and staggered travel times. The upgrade of existing highways alternative would make substantial construction improvements to Routes 837 and 88 that now serve the area. The no-build alternative consists of only routine improvements. The new alignment alternative consists of the limited access, four lane toll road from I-70 to Route 51. ARBD 27 at ES-2 to ES-3.

The FHWA approved the FEIS on February 23, 1994. Notice of the availability of the FEIS was published in the Federal Register on March 4, 1994. A public hearing on the FEIS was conducted on March 16, 1994. The EPA, Army Corps of Engineers, and three state agencies had no objections to the FEIS. ARBD 32 at 5. After reviewing the environmental documents and comments, the FHWA issued a Record of Decision on May 19, 1994, selecting the new highway alternative. ARBD 32. This constitutes the FHWA's final agency decision. The alternative selected includes a stretch known as the Green Alignment which, though not agreeable to all residents affected, was suggested by a group of residents of Jefferson Borough. ARBD 32 at 6.

Before and after the June 1992 conference, the United States Fish and Wildlife Service, Department of the Interior, recommended that the cumulative effects of the entire Morgantown-Pittsburgh corridor be studied. The Commission thereafter formed a Cumulative Project Impacts Subcommittee to gather information consistent with its title. The Subcommittee met five times from June 1993 to December 1993, and had begun considering a model by which to analyze the cumulative effects of the entire project. See, e.g., ARBD 27 at PO-11; Doc. No. 29. Its work ended, however, when the FEIS was issued in February 1994.

We believe this to be a sufficient factual account to preliminarily inform the analysis that follows. Rather than include more of the extensive factual history here, we prefer to cite additional facts as necessary below in our analysis.

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint on July 6, 1994. At a hearing before Judge Ambrose [25 ELR 21291] on August 22, 1994, the Court considered the status of the case and the parties agreed to submit an administrative record for review, which they have done. This record consists of 70 volumes (including two supplements, filed separately by plaintiffs and defendants), totalling approximately ten linear feet of documents.

Plaintiffs moved for final injunctive relief on October 3, 1995. Defendants moved for summary judgment on October 20, 1994. After the case was reassigned, we held a status conference on December 1, 1994. We then heard oral argument on the pending motions on January 26, 1995.

A large group of organizations and individuals were granted permission to intervene on September 1, 1994. They include nine public and private economic development or business associations, ten political subdivisions, five businesses, and a state legislator. Five other state legislators and a federal congressman were permitted to join the intervenors on February 1, 1995. The intervenors support construction of the road in its current form. They have submitted briefs and made arguments advancing their position.

A state legislator was allowed to intervene on plaintiffs' behalf on February 1 as well.

In challenging the Agencies' decision to divide the project north of I-70 into two segments, plaintiffs invoke the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Intermodal Surface Transportation Efficiency Act ("ISTEA"), 23 U.S.C. § 134, and federal regulations associated with each. Plaintiffs allege, among other things, that political pressure, and not practicality, compelled the participants at that time to divide the northern portion of the Project in two (I-70 to Route 51 and Route 51 to Pittsburgh), and to accelerate the planning and construction of the southern of these two sections.

Plaintiffs' application to the Court for final judgment in its favor takes the form of a Request for Final Injunctive Relief. Doc. No. 27. Defendants have moved for summary judgment. Doc. No. 30.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c) . We find no genuine disputes of material fact, principally because this is an administrative record review case. See Lake Erie Alliance v. Army Corps of Engineers, 526 F. Supp. 1063, 1068 (W.D.Pa.1981). Instead, the disputes lie in the legal issues of whether and to what extent the Agencies complied with the procedural requirements of NEPA and ISTEA.

GENERAL SCOPE OF REVIEW

Plaintiffs' entitlement to pursue this case, and our authority to review the federal administrative action taken, arise out of provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 706.⁵ The APA roots of this method of analysis are worth noting for several reasons. First, a fair number of relevant NEPA cases do not mention the APA, though they cite controlling terms, such as the arbitrary and capricious standard of review of agency action, taken from the statute. Second, the parties have only modestly considered the APA in seeking final judgment.⁶ Finally, resort to APA principles applied to other forms of agency decision making may resolve ambiguities or fill gaps left by decisions involving NEPA, for example, by helping define the scope of the record properly subject to review, or by controlling our interpretation of ISTEA, which few courts have reviewed.

In applying the APA, the agency's decision "is entitled to a presumption of regularity . . . . But that presumption does not shield [agency] action from a thorough, probing, indepth review." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 (1971). The remedy available were we to find a violation of NEPA or ISTEA is narrow. "The proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such inquiry." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 1607, 84 L. Ed. 2d 643 (1985).

A manifestation of this principle is the deference we must accord executive agency decisions.

[The] view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency's] understanding of this very "complex statute" is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency].

Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S. Ct. 1102, 1107, 84 L. Ed. 2d 90 (1985). Accord Matter of Seidman, 37 F.3d 911, 924 (3d Cir.1994); EEOC v. City of Mt. Lebanon, 842 F.2d 1480, 1492 (3d Cir.1988) (agency's interpretation "especially important" where specialization is significant factor supporting agency action); National Ass'n of Metal Finishers v. EPA, 719 F.2d 624, 637 (3d Cir. 1983) ("if an act is susceptible to more than one reasonable interpretation, we must accept any reasonable interpretation chosen by the agency"), rev'd on other grounds, 470 U.S. 116, 105 S. Ct. 1102, 84 L. Ed. 2d 90 (1985); Budd Co. v. Occupat'l Safety and Health Review Commission, 513 F.2d 201, 204 (3d Cir. 1995) (courts obliged to accord "great deference" to agency interpretation of statutes committed to it for implementation).⁷

THE SCOPE OF THE RECORD

Review of agency decisions under the APA is based on "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. This provision refers to the administrative record before the agency at the time the decision was made. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 421, 19 S. Ct. 814, 826, 28 L. Ed. 2d 136 (1971).

"The focal point for judicial review [of agency action] should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 [93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106] (1973). The task of the reviewing court is to apply the appropriate APA standard of review, 5 USC § 706, to the agency decision based on the record the agency presents to the reviewing court.

Florida Power & Light Co. v. Lorion, 470 [25 ELR 21292] U.S. 729, 743-44, 105 S. Ct. 1598, 1607, 84 L. Ed. 2d 643 (1985). This standard applies to review of agency decisions under NEPA. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988).

Plaintiffs dispute the Agencies' reliance on a February 18, 1994 letter from the EPA's acting regional administrator to Davitt Woodwell, a staff attorney for the Pennsylvania Environmental Council. Doc. No. 28. Plaintiffs assert that the letter should be excluded from the administrative record because it was not considered by the defendants in their decisionmaking. They cite no authority defining the scope of the record. Instead, they cite twenty-one cases containing language criticizing the EPA. Pls' Reply Br. at 7-9, Doc. No. 37. The Agencies respond that the EPA participated in the NEPA process, and regularly expressed its policy views and specific conclusions regarding the Mon Valley/Fayette Transportation Project. They argue that this letter essentially repeats EPA positions expressed elsewhere in the administrative record, and so should not be excluded.

The EPA letter predates the FHWA's May 19, 1994 Record of Decision, the final agency action. The EPA was directly involved with the Project as a cooperating agency on the FEIS. The Pennsylvania Environmental Council commented on the Project. In fact, the FEIS contains twenty-eight pages of comments by Mr. Woodwell himself on the DEIS and Supplemental DEIS. ARBD 28 at VIII-219 to VIII-232.

A document need not literally pass before the eyes of the final agency decisionmaker to be considered part of the administrative record. We find no distinction between the EPA letter in question, for example, and the comprehensive Agency responses to commentators contained in section VIII of the FEIS. ARBD28. Given the identities of the author and the recipient and the subject matter of the letter, we find the February 18, 1994 EPA letter properly part of the administrative record, although we do not view its inclusion as in any way affecting the outcome of this case.

With the exception of plaintiffs' objection to this letter, the scope of the administrative record has not been a point of contention among the parties in seeking final judgment. We address one other matter regarding the scope of the record as a housekeeping measure, and for the possible benefit of a reviewing court. The parties have filed supplements to the administrative record. Doc. Nos. 29, 32. The intervenors have filed a "List of Supplemental Exhibits." Doc. No. 33. Without making document-by-document findings, it appears that plaintiffs' and defendants' submissions are part of the administrative record because of the topics, agencies, and persons mentioned therein. We cannot say the same for the intervenors' exhibits and we have not accepted them as properly a part of the administrative record.

DISCUSSION

Plaintiffs argue that, under NEPA, the Agencies are required to consider the cumulative impacts of both the I-70 to Route 51 road and the Route 51 to Pittsburgh project in a single EIS. They also contend that NEPA requires the Agencies to consider the upgrade of Route 51 South as an alternative. Under ISTEA, they allege that the Agencies improperly denied public participation in the production of two studies compelled by regulations under the statute. They also dispute the FHWA's decision to dispense with one of the studies as a separate document, and they challenge the fundamental reliability of the other.

I. NEPA

A. The Statute and Associated Scope of Review

NEPA imposes duties upon agencies that are essentially procedural . Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978). In what the Third Circuit describes as the "heart and soul" of the statute, Morris County Trust for Historic Preserv'n v. Pierce, 714 F.2d 271, 275 (3d Cir. 1988). NEPA requires federal agencies to prepare "a detailed statement by the responsible official" for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). This is the environmental impact statement. The EIS must consider:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id.

NEPA "requires a balancing between environmental costs and economic and technical benefits." Cape May Greene, Inc. v. Warren, 698 F.2d 179, 188 (3d Cir.1983). It does not require agencies to "elevate environmental concerns over other appropriate considerations." Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28, 100 S. Ct. 497, 500, 62 L. Ed. 2d 433 (1980) (per curiam).

Under NEPA, the Third Circuit has determined that agency action in developing EIS's must be upheld unless the agency "failed adequately to follow prescribed procedures or made decisions that were 'arbitrary, capricious, and an abuse of discretion.'" Township of Springfield v. Lewis, 702 F.2d 426, 442 (3d Cir.1983), quoting Concord Township v. United States, 625 F.2d 1068, 1073 (3d Cir.1980). We adhere to this standard in our analysis.⁸

In a recent decision involving a NEPA challenge, among others, to a highway construction project, the First Circuit similarly found that "the actions of [federal] agencies shall not be overturned unless 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Conservation Law Found'n v. Federal Highway Admin'n, 24 F.3d 1465, 1471 (1st Cir.1994), quoting 5 U.S.C. § 706(2)(A). The court went on to identify the "highly deferential abuse of discretion standard of review" applicable to NEPA cases. Id. at 1471. The Ninth Circuit directly applies the "without observance of procedure required by law" standard of the APA when the question is whether the EIS was adequate. 5 U.S.C. § 706(2)(D), Coalition for Canyon Preserv'n v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980).

"Once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences it cannot" interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Strycker's Bay, 444 U.S. at 227-28, 100 S. Ct. at 500, citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S. Ct. 2718, 2730 n. 21, 49 L. Ed. 2d 576 (1976) (internal citation omitted). "The NEPA process involves an almost endless series of judgment calls. . . . It is of course always possible to explore a subject more deeply and to discuss it more thoroughly. The line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts." Coalition on Sensible Transport'n, Inc. v. Dole, 826 F.2d 60, 66 (D.C.Cir. 1987). "As long as the 'statutory minima' is satisfied, NEPA requires only that the agency take a 'hard look' with 'good faith objectivity' at the environmental consequences of a particular action." Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 436 (5th Cir.1981) (citation omitted).

Plaintiffs also rely on two regulations [25 ELR 21293] which figure directly in our NEPA analysis. The FHWA regulation at 23 C.F.R. § 771.111(f) (1993) helps insure that every highway project serves a useful purpose, though not necessarily the ideal purpose. The Council on Environmental Quality ("CEQ") regulation at 40 C.F.R. § 1508.25 (1993) helps insure that decisionmakers consider related past, present, and pending agency action in identifying the most complete picture of environmental effects associated with a particular project or group of projects.

B. Whether the Route 51 to Pittsburgh Project is Cognizable under NEPA

Plaintiffs' first challenge to the Agencies' actions is that the FEIS violates NEPA and applicable federal regulations because it fails adequately to consider the environmental impacts of the project from Route 51 to Pittsburgh. This claim rests on the assertion that two projects—I-70 to Route 51 and Route 51 to Pittsburgh—both currently fall within the scope of NEPA. Excluding from the FEIS a detailed look at the Route 51 to Pittsburgh road, plaintiffs say, gives an incomplete picture of the environmental impact of the Agencies' road building plans, and thus violates NEPA.

Plaintiffs' claims raise an elemental NEPA issue: to what extent NEPA applies to the action in question. The NEPA status of the I-70 to Route 51 road is undisputed; it has been studied and approved by federal agencies and is thus properly before us. Consequently, our first task is to decide whether the actions taken by the Agencies concerning the Route 51 to Pittsburgh project, regardless of the labels the parties have attached to it, constitute a "proposal" for federal agency action. 42 U.S.C. § 4332(2)(C).

Plaintiffs first hurdle is the governing regulations. The term "proposal" is defined at 40 C.F.R. 1508.23: "Proposal exists at that stage in the development of an action when an agency subject to [NEPA] has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated." 40 C.F.R. § 1508.23 (1993) (italics in original).⁹

Several alternatives have been identified for the Route 51 to Pittsburgh project, such as intermodal facilities that, for example, might provide connecting bus service; high occupancy vehicle lanes; a toll road; arterial road upgrades; and no action. See, e.g., ARBD 27 at PO-10. Plaintiffs have provided no evidence that this project has been federally approved or has coalesced into the form of a proposal in NEPA terms. Their burden under NEPA certainly includes having to demonstrate that the suspect action has reached the stage where federal court review is justified. There is no funding proposal pending before any agency, nor is there evidence of active preparation to make a decision on alternatives.

The Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976) faced a similar issue: whether a plan for coal development in the Northern Great Plains Region required an EIS for the entire region, when U.S. Department of the Interior plans and studies had considered actions only of a local or national scope. 427 U.S. at 398-99, 96 S. Ct. at 2725.

The Court rejected the court of appeals' formulation of a test of the need for an EIS based on contemplated action. "A court has no authority to depart from the statutory language and, by a balancing of court-devised factors, determine a point during the germination process of a potential proposal at which an impact statement should be prepared." 427 U.S. at 407, 96 S. Ct. at 2728 (emphasis in original). The Court went on to explain the test for the proper timing of an EIS, finding that NEPA:

speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval on the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects.

Kleppe, 427 U.S. at 410 n. 20, 96 S. Ct. at 2730 n. 20 (emphasis in original). The Court stated further that "when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together." 427 U.S. at 410, 96 S. Ct. at 2730 (emphasis added).

The Court's expression of the need to consider related actions in the same EIS is not lost on us, but neither is the Court's direction on how to determine the relatedness of two or more projects for NEPA purposes. The Court clings firmly to the notion that a proposal requiring an EIS is a creature actually pending before a federal agency. Thus if a project is only "contemplated" or "less imminent," it does not merit inclusion in an EIS.¹⁰

"Until there has been a 'proposal,' and until there has been a 'recommendation or report' on that proposal, there is no requirement for an EIS. . . . The 'proposal' requirement, then, is a statutory requirement grounded in the language of Section 102(2)(C) of NEPA that governs the time when an EIS should be prepared." Save Barton Creek Ass'n v. Federal Highway Administration, 950 F.2d 1129, 1136 (5th Cir. 1992), cert. denied, U.S. , 112 S. Ct. 3029, 120 L. Ed. 2d 900 (1992).

Save Barton Creek involved an 82 mile circumferential freeway around Austin,Texas, that had been divided into five segments for planning and construction. The Fifth Circuit considered whether one segment had been improperly divorced from the rest. It was important to the court that the segments of the loop were to be constructed at different times over a period of years; the project was not one uninterrupted construction effort.

The court found that the loop had not reached the stage where it could be considered a federal proposal. The district court thus had "incorrectly elevated the [Federal Highway Administration's] early coordination process to the status of a 'proposal' under NEPA." 950 F.2d at 1136. The court added:

Major construction projects, like the Austin Outer Loop, customarily change in design, cost, scope, and impact over the years required for development. The segments for the Austin Outer Loop are planned to be constructed at different times in the future over a period of many years. Furthermore, the financing, specific location, and construction timing of other segments are subject to change. More important, some segments of the Austin Outer Loop may never be built. In essence, the construction of an outer loop around Austin is, at most, a contemplated action, which at this point exists only as a concept in a long range plan that is subject to constant revision. The record is silent with regard to any meaningful federal participation or [25 ELR 21294] control exercised over the project in this case.

Save Barton Creek, 950 F.2d at 1137. These observations apply squarely to the project contemplated from Route 51 to Pittsburgh, even though there is undisputed federal participation in the I-70 to Route 51 road.

The Fifth Circuit had previously resolved the dilemma about when to consider the environmental impact of a particular project. "NEPA does not require an agency to restate all of the environmental effects of other projects presently under consideration. Where the underlying data base includes approved projects and pending proposals, the 'statutory minima' of NEPA has been met." Piedmont Heights, 637 F.2d at 441 (emphasis added).

A case finding in favor of a NEPA challenge further highlights the proper interpretation of "proposal." In Swain v. Brinegar, 542 F.2d 364 (7th Cir.1976) (en banc), the plaintiffs used to enjoin construction of a 15 mile segment of a proposed 42 mile freeway. The EIS was confined to the 15 mile segment, leading the plaintiffs to claim the project was illegally divided. The court agreed that the segmentation was improper, but under facts that conclusively distingish Swain from this case: it was "clear that under the facts of this case, the proposed federal action being taken includes funding the entire 42 miles of" the highway. Id. at 368. There is no such federal funding of the Route 51 to Pittsburgh highway, despite the firm belief in previous years by all parties involved that there would be.

The Agencies have not studied the total impact¹¹ of the Route 51 to Pittsburgh project because it has not, in NEPA terms, been proposed. To study now the impact of a road from Route 51 to Pittsburgh runs an almost certain risk that the information will be outdated by the time decisionmakers might actually use it. The "gestation period," as the agencies call it, of a new highway serving the Mon Valley took twenty-five years. For obvious reasons (e.g., commonality of location and persons involved), the history of that road may be a fair approximation of the possibilities of the Route 51 to Pittsburgh project. On the other hand, it may not be. The uncertainty that attends these decisions is exactly the point. Requiring a cumulative impact study in the face of these many unknowns makes little sense.

Performing two studies, now and in the future, would be duplicative, wasteful, and would further complicate a process that is already detailed and comprehensive. Nor do we find it contemplated by NEPA. We have run across no evidence about the shelf-life of an EIS. Though it may be determinable, we feel uncompelled to pursue it because wer are convinced that decisionmakers should have the most current information when considering the impact of the various alternatives for the Route 51 to Pittsburgh project. A study performed now is not likely to bear that quality.

Plaintiffs fall back on an assertion that the future action need not be proposed, but only reasonably foreseeable, relying on 40 C.F.R. § 1508.7.¹² We disagree with plaintiffs' interpretation, given the plain terms of NEPA and their application above. In further support, they contend that an I-70 to I-376 route was approved by the Pennsylvania legislature, and that the FHWA's 1989 notice of intent to prepare an EIS described a project from I-70 to Pittsburgh. They also cite current planning for the Route 51 to Pittsburgh project as proof that it is reasonably foreseeable. Pls' Reply Br. at 2-4.

In plain terms, this appears to be hook on which plaintiffs seek to hang their first NEPA claim. They argue in essence that Agencies should not be permitted to change a decision once made; and that the environmental impacts of all related projects—"related" being the operative word we must define—must be studied, if not built, at the same time. The sense that political influence has improperly influenced this process is also apparent in plaintiffs' arguments.

APA rules of review and precedent cited herein demonstrate that altering transportation projects in mid-stream is not in itself prohibited by NEPA. See, e.g., Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C.Cir.1987). NEPA also places discernible limits on which projects must be considered together for their cumulative impact. See Kleppe. And it does not prohibit what can be called political influence in certain aspects of the process, such as decisions on the broad choice of alternatives. To the contrary, NEPA invites participation which can be described as political in its opportunities for public comment, open to individuals or groups of any stripe, on federal projects. As stated above, if the NEPA's minimum requirements are followed, we are prohibited from interfering in the administrative process.

In sum, we have before us a project that includes one road ready to be built, and one transportation link of undecided geography, dimensions, and deadlines. The reason this latter project is not a "proposal" is the same reason it is not "reasonably forseeable": the Route 51 to Pittsburgh project, born when the Agency officials changed their minds, simply has not progressed to the point where it must be considered under NEPA now. This is so despite its future possible incarnation as a road connected to the northern endpoint of the I-70 to Route 51 project. Just as there must be some point in time that separates a non-NEPA contemplated action from a bona fide NEPA proposal, there must be some point in time that separates a project under study from one that is reasonably foreseeable. The interplay of these closely related words in this context surely taxes their common meaning. Given the controlling and guiding interpretations of NEPA we have reviewed, however, we find that a reasonably foreseeable project is one in a form similar to a proposed project. The "reasonably foreseeable" language should not be permitted to contradict the CEQ's own definition of "proposal," 40 C.F.R. § 1508.23, which requires active preparation of a decision by a federal agency, or FHWA's definition of "action," 23 C.F.R. §§ 771.107(b), 771.109(a)(1). We thus find that 40 C.F.R. § 1508.7 entitles plaintiffs to no relief.

C. Whether the Agencies Were Required to Consider Cumulative Impact

It is difficult to escape the conclusion that plaintiffs' cumulative impact claim is precluded by the absence of a proposal for federal action for the Route 51 to Pittsburgh project. Nonetheless, to account for the contention that the proposed major federal action (the I-70 to Route 51 road) and the future action are so closely related that they should be considered together in one EIS,¹³ we review plaintiffs' cumulative impact claims¹⁴ below.

As mentioned above, plaintiffs assert that [25 ELR 21295] the Agencies wrongly divided the expressway project into two segments, the road from I-70 to Route 51 and the project from Route 51 to Pittsburgh. This act of segmentation is said to violate NEPA because the Agencies as a consequence failed to consider the cumulative impact of the Route 51 to Pittsburgh road in the EIS for the I-70 to Route 51 road. Plaintiffs rely on two federal regulations and case law in seeking to demonstrate this type of NEPA violation.

"Segmentation of a large or cumulative project into smaller components in order to avoid designating the project a major federal action has been held to be unlawful." New Jersey Dept. of Env'l Protection v. Long Island Power Authority, 30 F.3d 403, 411 (3d Cir.1994), quoting Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 240 (3d Cir.1980), cert. denied, 449 U.S. 1096, 101 S. Ct. 893, 66 L. Ed. 2d 824 (1981). Where there is no dispute about the existence of major federal participation, such as here, segmentation of a large project for other reasons, such as to exclude potentially objectionable environmental factors, is likewise unlawful. Piedmont Heights, 637 F.2d at 439. Broadly stated, "segmentation' or 'piecemealing' occurs when an action is divided into component parts, each involving action with less significant environmental effects." Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2nd Cir.1988).

Segmentation analysis has its exceptions. "The rule against segmentation is not required to be applied in every situation." Piedmont Heights, 637 F.2d at 439; accord Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C.Cir.1987). The court in Piedmont Heights goes on to cite the three factors now contained in 23 C.F.R. § 771.111(f), in addition to a prohibition against irretrievably committing federal funds to closely related projects, as a test for improper segmentation.¹⁵

In support of their cumulative impact claim, plaintiffs assert that the EIS must comply with both the FHWA's regulation at 23 C.F.R. 771.111(f), and the CEQ's rule at 40 C.F.R. 1508.25.

1. FHWA Regulations

The relevant FHWA regulation provides that:

(f) In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) shall:

(1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

(2) Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements are made; and

(3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

23 C.F.R. § 771.111(f) (1993).¹⁶ Plaintiffs invoke the first and third of these subsections.

a. Logical Termini

Plaintiffs argue that the City of Pittsburgh is the logical northern terminus, or endpoint, for this project.¹⁷ They further contend that the current northern terminus on Route 51 is illogical, thus rendering the Agencies' decision to empty the expressway onto Route 51 fatally flawed. Pls' Br. at 32, Doc. No. 27.

Plaintiffs' assertions have some merit. The City of Pittsburgh is the dominant economic, demographic, and cultural feature of the region. Given unrestricted options about where to build this expressway, it is not possible to deny the sense of linking the proposed expressway with Pittsburgh as a bona fide alternative. The administrative record until 1992 confirms as much, when the Agencies' plans were based on such an option.

But here we are met squarely with the limitations to our powers of review, given the changes in the Agencies' plans since 1992. We have no authority to choose Agency transportation goals, nor can we forbid the Agencies from changing their minds. "That a terminus is the most logical is not mandated by the segmentation analysis—that analysis requires only that a terminus be 'logical.'" Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1483 (10th Cir.1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1017, 112 L. Ed. 2d 1099 (1991). We do not deny—nor do the Agencies—that an endpoint for the expressway in the City of Pittsburgh is one logical choice. We unequivocally find, however, that that choice is validly confined to the Agencies, and may include a choice other than the City of Pittsburgh.

"'Termini' include crossroads, population centers, major traffic generators, or similar highway control elements." Conserv'n Law Found'n v. Federal Highway Admin'n, 24 F.3d 1465, 1472 (1st Cir.1994). Despite the obvious differences between the features of a "crossroads" and those of a "population center," each of them nonetheless may qualify as logical endpoints for highway projects. This is as it should be, given our country's need for a modern, nationwide, interconnected system of highways. As in the Conservation Law Foundation case, plaintiffs here have cited no authority restricting highway termini to major metropolitan areas. In Save Barton Creek, the plaintiffs asserted that the endpoint of the segment would obviously restrict the form and location of the roads that would attach to it at either end. The court rejected this contention essentially for the lack of proof that any segment would not be functional on its own, finding that the regulations required no more. 950 F.2d at 1142.

Plaintiffs argue strenuously that the northern terminus of the expressway is not logical because it will add 7,400 vehicles per day to the already congested Route 51. Pls' Br. at 32. This is acknowledged in the FEIS. ARBD 27 at PO-15.

Again, that factor may lower the status of the northern terminus on the scale of logic; we cannot say that it strips the Route 51 terminus of all logic. First, the 7,400 vehicle figure is a 24 hour, two way figure, with about 370 vehicles in each direction added to existing Route 51 north of the new road in the peak travel hour. ARBD 27 at PO-15; AR 44 at 2541-42. Second, only 12% of traffic spilling onto Route 51 is expected to reach downtown Pittsburgh or the Oakland area, although 33% of this traffic is destined for all of Pittsburgh. ARBD 27 at PO-15; ARBD 26 at 31. It does give the Court pause to read that Route 51 is recognized as already operating "at or near capacity along most of its length north of the proposed interchange." ARBD 27 at IV-9; AR 24 at 2542. The suggestion in the FEIS and by [25 ELR 21296] one of the Commission's consultants that the congestion may not be much worsened by the Mon/Fayette traffic because more vehicles will choose alternate routes to avoid the new congestion seems debatable at best. ARBD 27 at IV-9 to IV-10; AR 44 at 2542-43.

We are always wary of affording conclusive weight to any single observation, however, given the broad scope of environmental impact studies, and the limited number of choices agencies have for placing roads. But more importantly, the Agencies have planned measures to help reduce the added congestion. One measure is a park-and-ride lot for expanded bus service and car- and vanpools. Others include improvements to Route 51 itself, such as adding a center turning lane to match the five lane configuration on upper Route 51, improving intersections, and coordinating traffic signals. As result, traffic on Route 51 is not expected to degrade. AR 42 at 767-83, 1293; AR 44 at 2499-2503; AR 62 at 1726-28; 1762-67.

Given the consideration of this issue by the Agencies and the actions planned, we cannot say that the decision to link the road from I-70 to Route 51 is illogical.

b. Restriction on Consideration of Alternatives

Plaintiffs next argue that if construction of the I-70 to Route 51 road is allowed to proceed, the southern terminus of the Route 51 to Pittsburgh project will be finally determined. Road planners will then be unable to avoid areas of high subsidence, or the Clairton Sportsmen's Club's unique property. The most serious threat they perceive appears to be the unknown significant impacts that will remain unknown if the area is not studied. Pls' Br. at 35.

Plaintiffs' concern with potential subsidence stems from a conclusion drawn from the Corridor Feasibility Study, ARBD I. A diagram indeed shows an area designated as having potentially high subsidence because of the presence of old coal mines near the northern end of the I-70 to Route 51 road. See Pls' Br. at 35, 45-46, and Ex. D.

This is a prime example of an issue which is appropriately committed to agency discretion. The record shows that the Agencies acknowledged this issue. ARBD 27 at IV-75 to IV-86. Given this recognition, plaintiffs have cited no evidence that the risk of subsidence is insurmountable by known engineering solutions. Without such information, we are ill-equipped to question the Agencies' implicit conclusion that subsidence risks can be mitigated.¹⁸

As for the interference with the Clairton Sportsmen's Club property, the Court has in its office file a letter dated October 12, 1994 (after plaintiffs filed their main brief) from the president of the Club withdrawing as a plaintiff. No withdrawal motion has been filed with the Clerk, however. The withdrawal is based on assurances from the Commission that Club property would not be affected, and recites that plaintiffs' counsel was informed about the withdrawal.¹⁹ This issue gives all indications of being moot. Even if it is not, there is no evidence that the Club's property is significantly more important than other private property that will be affected by the road such that NEPA requires additional study of alternatives around it.

In sum, the present configuration of the I-70 to Route 51 road certainly restricts some alternatives to the extent that its siting has now been fixed. We find that these restrictions are an inevitable result of the choice made, that the choice is valid under NEPA, and the resulting restrictions are the type that can be expected from any such decision. In this regard we find helpful the Fifth Circuit's decision in Save Barton Creek. The court found that one segment of a road did not dictate the construction of any other segment—despite its existence as one portion of a loop roadway—the size of any other segment, or the alignment of the rest of the loop. 950 F.2d at 1142.

2. CEQ Regulations

Plaintiffs also invoke CEQ regulations in challenging the sufficiency of the EIS. They assert that these rules also compel consideration of the Route 51 to Pittsburgh project in the EIS because construction of the two roads are either connected actions, cumulative actions, or similar actions, as defined by the regulations.

The CEQ regulations treat the scope of EIS's as follows:

Scope consists of the range of actions, alternatives and impacts to be considered in an environmental impact statement. . . . To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement. . . .

40 C.F.R. § 1508.25 (1993) (italics in original). "These regulations were made binding on all agencies by Executive Order No. 11991, 3 C.F.R. 123 (1978), and are entitled to substantial deference even if they conflict with another agency's interpretation of NEPA." New Jersey Dept. of Env'l Prot'n v. Long Island Power Authority, 30 F.3d 403, 409 n. 9 (3d Cir.1994) (citations omitted).²⁰

a. Connected Action

Plaintiffs argue the connectedness of the I-70 to Route 51 and the Route 51 to Pittsburgh roads by conclusorily asserting that economic revitalization of the Mon Valley is impossible without a road that leads to the City of Pittsburgh, and does so now. They cite no supporting case authority.

"The proper test to determine relatedness under 40 C.F.R. § 1508.25(a)(1)(iii) is whether the project has independent utility." Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2d Cir.1988).²¹ In Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C.Cir.1987), the D.C. Circuit reviewed the independent utility and logical termini of a four mile segment of a subway system that had begun as an eighteen mile project in downtown Los Angeles. The plaintiffs there claimed only that the entire subway system [25 ELR 21297] as originally planned must be considered in the EIS, and that the four mile project was improperly segments from the whole. In rejecting this claim, the court of appeals referred to unrebutted evidence that the subway, even in its much-abbreviated form—extending only 22% of the distance originally contemplated—had independent utilty and logical endpoints. For example, the court found that the subway would link the main railroad terminal with a busway; connect other light rail systems; intersect other bus lines; improve access from densely populated areas to the central business district; and cut travel time through the central business district by one-fourth. 819 F.2d at 299.

The court recognized that the four mile segment "has always been, and still is, envisioned as the first leg of a larger system," id., but found that plaintiffs had failed to provide evidence that failure to consider the entire system would lead to a misleading view of the environmental impact. The court went on to add that

transit officials must have some flexibility in meeting the public transportation demands of a large metropolitan area. Large public transportation projects, such as the one involved here, are in the planning and development stage over a long period of time. Officials need flexibility to allow for modifications to meet unforeseen developments, including the availability of state and federal funding.

819 F.2d at 299-300. We find that the same observations apply to highway projects, even if they are located outside major metropolitan areas.

As noted above, the decision in Save Barton Creek, 950 F.2d 1129, involved one segment of an 82 mile circumferential freeway around Austin, Texas, that had been divided into five segments for planning and construction. The segment was found to have independent utility because it improved access to business, residential, and recreational areas through intersecting roads, among other reasons. Id. at 1142.

Another example of independent utility analysis is found in Hudson River Sloop Clearwater, Inc. v. Dept. of Navy, 836 F.2d 760 (2d Cir.1988). There the plaintiffs challenged a Navy decision to locate a berth for the U.S.S. Iowa battleship group on Staten Island, New York, as well as 1700 housing units for the personnel who worked in the group. In examining the Navy's action for correctedness under 40 C.F.R. § 1508.25(a)(1)(iii), the court of appeals found that, "given the district court's factual finding that the Navy will proceed with the operational aspects of the homeport with or without the housing, it is clear that the two actions are not interdependent under subdivision (iii), since the operational aspect of the homeport has the requisite independent utility." Id. at 764. The court thus found that the housing and operational aspects of the homeport need not have been considered in a single EIS.

It is undoubtedly easier to compare the independent utility of a battleship berth and the housing that accompanies it because each serves notably different purposes. Comparing the independent utility of roads is more difficult because they all serve a fairly uniform set of purposes, primarily access, convenience, development, and safety. Moreover, because virtually all roads connect to other roads, it is not as easy to identify independent utility, unless one were to find that all roads, short of ones that end in the middle of a wasteland, have independent utility. The consequence of this difficulty, as we interpret it from the case law, is that the test for independent utility is a flexible one.²²

These decisions applying the "connected action" test firmly demonstrate that I-70 to Route 51 road has independent utility by meeting the needs identified by the agencies, and does not depend on a larger action for its justification. This road will replace poor, slow, unsafe roads so that goods and services will move faster through the area. It will link major highways where no such linkage now exists. It will relieve present and future congestion on the currently inadequate roads serving the area. It will improve vehicle and pedestrian safety. It will make social and emergency services more accessible. By achieving these goals, it will contribute to economic redevelopment of the area. ARBD 27 at ES-2.

Plaintiffs, of course, have a different view about the road's ability to support economic development of the region. They argue that businesses north of Route 51 deserve attention, and that for the economic potential of the entire region to be realized, the I-70 to Route 51 road must connect to Pittsburgh.

Plaintiffs' arguments have appeal in general, but they do not completely coincide with the goals of the I-70 to Route 51 road as selected by the Agencies, which are empowered to set the goals. We find persuasive support for the goals of the road as planned in the presence of the intervenors from the Mid-Mon Valley. Their appearance and argument, though not part of the administrative record, confirm portions of the administrative record: that even this divided road has legitimate purposes and is expected to benefit an appreciable number of communities, businesses, and individuals.

Accordingly, given the objectives of this project, seen in context, as a whole, and apart from any other road construction, plaintiffs have conclusively failed to establish that the I-70 to Route 51 project lacks independent utility.

b. Cumulative Actions

Plaintiffs' attempt to transform the efforts of the Cumulative Impact Subcommittee formed by the agencies into a violation of 40 C.F.R. § 1508.25(a)(2). They claim that the information the agencies gathered about the effects of the expressway on the City of Pittsburgh and the greenfield areas of northern Washington County demonstrate that there are cumulative impacts of a Route 51 to Pittsburgh road that must be considered now.

Plaintiffs cursory treatment of this topic does not convince us that the regulation requires consideration of what are referred to here as cumulative impacts. First, they run into the obstacle of the regulatory requirement that cumulative actions involve proposed actions, as that term is defined therein. 40 C.F.R. § 1508.23. Plans for the Route 51 to Pittsburgh project do not meet that definition. While the analysis of independent utility under 40 C.F.R. § 1508.25(a)(1), above, allows—indeed requires—the court to examine one segment of allegedly related actions, review of cumulative impact under section 1508.25(a)(2) inescapably requires the existence of two or more proposals. It is dispositive that there is no other proposed action, the impacts of which to consider cumulatively. In sum, the agencies cannot be faulted for not considering cumulative impacts together because they do not know what form the Route 51 to Pittsburgh project will take.

The interrupted efforts of the Cumulative Project Impact Subcommittee do not convince us otherwise. Other than the U.S. Fish and Wildlife Service, the other Agencies and project participants agreed on the advisability of dividing the Mon/Fayette Project into four parts. It does not appear that the Agencies' willingness to consider cumulative impacts was transformed into a condition for issuance of the FEIS. (Recall that one of the reasons for dividing the project was to avoid the gross conclusions of a seventy mile Mon/Fayette Corridor study in favor of the finer detail of four studies of the component areas.) As noted above, we review the record for adherence to the statutory minima. [25 ELR 21298] The presence of some disagreement among the Agencies, even on the need to study cumulative impacts, does not negate the validity of the FEIS.

c. Similar Actions

Plaintiffs' argument that the proposed project and the future one which link the City of Pittsburgh are similar actions under 40 C.F.R. § 1508.25(a)(3) has no more merit than those rejected above. While this subsection includes consideration of reasonably foreseeable as well as proposed actions, we find that phrasing no more persuasive in determining whether the Agencies are acting arbitrarily in not having studied the Route 51 to Pittsburgh project already. In any event, this subsection contains permissive language, and thus is committed to agency discretion. For the reasons stated above, we find no relevant abuse of discretion in applying this subsection to the Agencies' decision.

D. Consideration of Route 51. South Upgrade

Plaintiffs second major NEPA challenge against the Agencies is that they failed to fully consider an alternative to the route ultimately chosen.²³ The alternative they cite is a project improving Route 51 South. They assert that this project is reasonable on a variety of grounds: it is less expensive than the I-70 to Route 51 road; it will preserve farmland; it will reduce the danger from the subsidence; it may reduce the loss of residents and businesses from the City of Pittsburgh; it would fare better on a cost-benefit comparison of transportation projects in the region; and would avoid disrupting Jefferson Borough. Having these reasonable qualities, they contend, it was unreasonable for the Agencies not to consider it in detail. In their reply brief, plaintiffs also strongly disagree with the goals of the expressway identified by the Agencies. They argue that the Agencies improperly confine their goals to the Mid-Mon Valley, rather than considering the region as a whole.

There is no dispute that the consideration of alternatives is a vital part of the NEPA process. The dispute lies in whether the Route 51 South upgrade qualifies as an alternative that should have been considered in detail.

The Supreme Court stated that "the concept of alternatives [under NEPA] must be bounded by some notion of feasibility." Vermont Yankee, 435 U.S. at 551, 98 S. Ct. at 1215. "NEPA's requirement of a discussion of alternatives . . . should be superintended according to a 'rule of reason.'" Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C.Cir.1988); Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 783 (9th Cir.1980). Stated another way, "The degree to which an existing alternative should be considered, or indeed whether an alternative should be considered at all, varies with existing circumstances." Piedmont Heights, 637 F.2d at 436. The "rule of reason necessarily governs which alternatives the agency must discuss, and the extent to which it must discuss them." Alaska v. Andrus, 580 F.2d 465, 475 (D.C.Cir.) (emphasis in original), vacated in part as moot, 439 U.S. 922, 99 S. Ct. 308, 58 L. Ed. 2d 315 (1978). Reasonableness is measured by whether it achieves the goals the Agencies set out to achieve. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991), cert. denied, 502 U.S. 994, 112 S. Ct. 616, 116 L. Ed. 2d 638 (1991).

Route 51 is aligned in a southeast-northwest direction in relation to the Mon Valley communities which are said to benefit from the expressway. It is approximately 10 miles east of these Mon Valley communities. The Route 51 South upgrade as an alternative was not wholly overlooked by the Agencies; rather, it was not seen as a reeasonable alternative to the expressway given the goals of the project. It thus was not studied in detail in the FEIS. In response to various public comments suggesting this alternative, the FEIS states:

Use of Route 51 from I-70 to Jefferson Borough was not considered a reasonable alternative to meet the project area transportation needs. Route 51 is already a four-lane highway within this area, but does not draw traffic from the project area. It is too far east to serve the north-south transportation demands of the project area. It does not contribute to solving congestion, safety, and access problems in the project area. Route 51 does not serve the transportation needs of the communities on the west side of the Monongahela River.

ARBD 28 at VIII-21.²⁴

Indeed, a similar option had been disfavored years before. In the February 1988 Corridor Feasibility Study, only one of what were described as the initial corridors was dismissed from further consideration at that time. See ARBD 1 at 11 and Fig. 2.

This corridor began at the proposed interchange at I-70; however, it travelled north a short distance before turning east to cross the Mon River just south of Monongahela City. From there it continued north on the east side of the Mon River and followed the Route 48 corridor up to an interchange and terminus at I-376 (Figure 2).

After coordination with the Steering Committee, this corridor alternative was dismissed for the following reasons: The east side of the Monongahela River is largely undeveloped which does not maximize economic development and redevelopment opportunities. In addition, placement of the expressway on the east side of the Mon River does not provide access to the majority of Mon Valley Communities hoping to benefit from proximity to the expressway.

Id. The route identifed in Figure 2 does not exactly track Route 51 South. It nonetheless intersects with Route 51 South on the east side of the Mon River. The comments that disqualified this route thus apply with similar force to the Route 51 South alternative now at issue.

In the face of these spare but relevant considerations, plaintiffs now challenge the Agencies' goals for the expressway and their failure to consider various advantages offered by a route they failed to consider. This is a red flag for the Court. Lake Erie Alliance, 526 F. Supp. at 1070. We have no power to choose the Agencies' transportation goals. Nor are we convinced that plaintiffs' selective quotations from the FEIS about regional effects of the highway fairly represent a commitment to an undefined "region," when the FEIS is considered as a whole and in context. Pls' Reply Br. at 10-11.

The Court likewise is in no position to weigh the various advantages allegedly offered by the Route 51 South upgrade alternative. To do so would require a relative assessment of the reasonableness of the alternatives the Agencies did consider in detail. This would bear too strong a resemblance to the process the Agencies already carried out to fall within the Court's province. The record contains direct information that the Route 51 South alternative would [25 ELR 21299] not advance the Agencies' goals.²⁵ A "proposed alternative is reasonable only if it will bring about the ends of the federal action. . . . The goals of an action delimit the universe of the action's reasonable alternatives." Citizens Against Burlington, 938 F.2d at 195.

Given the conclusions above, the matter is effectively foreclosed in our view by the absence of any information that the Route 51 South alternative was improperly dismissed. Instead, it appears to have been one of the unremarkable casualties of an administrative process that was open to nearly all suggestions at the beginning, resulted in inevitable weeding out, and was constrained by the inescapable limits of time, money, and people. We thus find that, given the Agencies' choice of transportation goals, the Route 51 South upgrade was not a reasonable alternative that NEPA required the Agencies to consider.

II. ISTEA

Plaintiffs next statutory challenge to the Agencies' actions arises under a provision of the Intermodal Surface Transportation Efficiency Act. Plaintiffs contend that two studies required of the Agencies by ISTEA—a Congestion Management System ("CMS") evaluation and a Major Investment Study ("MIS," also referred to as Major Investment Analysis, "MIA")—were approved without public involvement. They maintain that FHWA's decision to allow the Commission to forego preparation of a separate MIS was arbitrary and capricious. They also contend that the CMS so lacks merit that it is a sham.

A. Statutory and Regulatory Background

ISTEA was enacted to reduce fuel consumption and air pollution and to encourage an "intermodal transportation system"—that is, one based on travel by means other than cars carrying one person. 23 U.S.C. § 134(a). In pursuit of these goals, urban areas with populations above 200,000 have been designated as transportation management areas. Id. § 134(i)(1). For federally funded transportation projects, metropolitan planning organizations within these areas must develop a CMS. The CMS affects such projects through requirements for the consideration of "travel demand reduction and operational management strategies." Id. at § 134(i)(1). Significantly for the case at hand, this subsection expressly permitted the Secretary of Transportation to establish a schedule for phasing-in these requirements. Id.

Plaintiffs zero in on the subsection of ISTEA which states:

Notwithstanding any other provisions of this title or the Federal Transit Act, for transportation management areas classified as nonattainment for ozone or carbon monoxide pursuant to the Clean Air Act, Federal funds may not be programmed in such area for any highway project that will result in a significant increase in carrying capacity for single occupant vehicles unless the project is part of an approved congestion management system.

23 U.S.C. § 134(l). The area around Pittsburgh has been classified as a moderate nonattainment region for ozone under the Clean Air Act. AR 49 at 1809. Consequently, a federally-funded highway that will improve travel conditions for cars carrying one person, such as the I-70 to Route 51 road, must be part of a CMS.

To assist compliance with ISTEA and pending formal rulemaking, the FHWA published Interim Guidance for FHWA field offices and state transportation agencies. 57 Fed.Reg. 14943 (April 23, 1992). The Interim Guidance sets forth the requirements for interim CMS's and, for our purposes, shows that CMS requirements were being implemented gradually. Id. at 14947-48. On December 1, 1993, the FHWA issued regulations setting out the requirements for the various transportation management and monitoring systems required by ISTEA, including traffic congestion management. 23 C.F.R. § 500.501-500.509 (1994). These regulations include a compliance schedule, which requires a state to develop a work plan for congestion management by October 1, 1994. Full operation of the work plan and use of the CMS need not be achieved until October 1, 1995, however. Id. § 500.509(a). Until October 1, 1995, interim CMS requirements at 23 C.F.R. § 450.336(b) (1994) apply to highway projects that increase capacity for single occupant vehicles. Id. § 500.509(b)(1). We thus look to section 450.336(b) for the regulations that ultimately govern the Agencies' conduct with regard to the Mon/Fayette Project.

Section 450.336(b) establishes the phase-in procedures for the new congestion management schemes. Projects like the I-70 to Route 51 road may not "advance beyond the NEPA process unless an interim CMS is a in place that meets the criteria in paragraphs (b)(1) and (b)(2) of this section and the project results from this interim CMS." Id. § 450.336(b)(3). Subsection 450.336(b)(1) provides that the most serious problems in the metropolitan area must be identified in the interim CMS, and that plans be developed to address these problems. Subsection 450.336(b)(2) provides further that interim CMS's must analyze "travel demand reduction and operational management strategies." This analysis must consider whether such strategies can replace a plan to build a road for single occupant vehicles. If the analysis finds that such strategies cannot serve as a substitute for the road, then planners must go as far as possible in incorporating such strategies into the road project. If there are other strategies appropriate for the transportation corridor but not for the road project itself, the state and affected metropolitan planning organization must commit to implement these by the time road construction is completed. Car- and vanpools must be a part of this commitment.

B. Public Participation in the CMS and MIS Processes

1. CMS

Plaintiffs argue first that the regulations also require public involvement in the CMS process. They cite 23 C.F.R. § 450.316(b), which is part of the regulation defining the elements of the metropolitan transportation planning process. Subsection 450.316(b)(1) provides for comprehensive, proactive public involvement in the metropolitan transportation planning process, including timely public notice, full public access to key decisions, opportunity for public comment, public distribution of information about transportation issues, and the like. They also note that commenters were informed by the Agencies that the Project complied with section 450.316. ARBD 27 at VIII-438.

Like the NEPA requirements were reviewed above, the provisions of ISTEA that concern the Mon/Fayette Project are unmistakably procedural. We therefore examine them to decide only if the procedures were followed.

The Agencies recognized their obligations to comply with ISTEA in mid-1993, and considered the Act's requirements in the Supplemental DEIS issued in September 1993. ARBD 21 at II-1 to II-7. A public hearing on the SDEIS was held October 14, 1993. Three volumes of public and private comments and testimony from the hearing, including some on ISTEA's requirements, are collected in the record. ARBD 22, ARBD 23, ARBD 24. Public meetings on the CMS were held in December 1993 and January 1994. David McGuirk, a representative of plaintiff Jefferson United, and Davitt Woodwell, an attorney with the Pennsylvania Environmental Council, attended both meetings. AR 45 at 3526; AR 47 at 622. The study and meetings resulted in a seventy-page CMS evaluation adopted on January 31, 1994. AR 47 at 1033-1035. The CMS evaluation is in the record at ARBD 26. The final CMS recommendations were incorporated into the FEIS approved February 23, 1994. ARBD 27 at II-25 to II-35. The FEIS was open to [25 ELR 21300] public comment at a meeting on March 16, 1994. ARBD 32 at 5.

It is apparent that there were opportunities for public participation in consideration of the CMS. Plaintiffs complain about the degree of public opportunity to comment. The first relevant legal issue, however, is whether the public participation requirements of section 23 C.F.R. § 450.316 were mandatory for the interim CMS evaluation. We find that they were not.

First, the FHWA in the decision on which this case is based stated that "there are no specific requirements for public involvement regarding CMS under the interim regulations." ARBD 32 at 5. Since the regulations in question are issued by the FHWA, we must accord its interpretation substantial deference.

We find this interpretation reasonable. The congestion management provision of ISTEA expressly provides for a phase-in of requirements. 23 U.S.C. § 134(i)(3). The regulations establish this phase-in, the final step of which does not occur until October 1, 1995. 23 C.F.R. § 500.509. The interim regulations on congestion management which control this case do not mandate public involvement in the interim CMS process. As plaintiffs point out, 23 C.F.R. § 450.316(b) comprehensively addresses public participation, but in a section that by its own terms deals with the general metropolitan transportation planning process.

We find the terms of the specific congestion management regulations controlling. Applying the public participation requirements of section 450.316(b) to a project that was well under way before that regulation was issued is akin to imposing retroactive rules.²⁶ This seems incongruous with the expressed provision for a phase-in.

The Agencies' efforts to provide opportunities for public participation in the CMS process where none is required by the regulations do not trigger the application of rules which do not otherwise bind them. If that were true, agencies could change the terms of rules simply by their conduct. "That the [agency] may have done more than was necessary to comply with the regulation, however, is no reason to enlarge the regulatory requirements." Hudson River Sloop Clearwater, Inc. v. Dept. of Navy, 836 F.2d 760, 764 (2d Cir.1988).

2. MIS

Plaintiffs make the samepublic participation argument with regard to the alleged regulatory requirement for a major investment study of the project.

As part of the metropolitan transportation planning process, 28 C.F.R. § 450.318(a) (1994) requires that major investment studies be made on the "design concept and scope of the investment," investment meaning the transportation project being considered. Section 450.318(b) provides for an interagency process to decide what to put in the study and who will perform it; it also provides for public participation in this process consistent with section 450.316(b)(1), which we examined above. Section 450.318(i) states that "where the environmental process has been initiated but not completed, the FHWA and the FTA shall be consulted on appropriate modifications to meet the requirements of this section." While plaintiffs acknowledge the existence of this latter provision in their brief, they ignore its effect.

Again, the environmental review process for the I-70 to Route 51 road was nearing completion by the time these regulations took effect. The Agencies thus were entitled to rely on the FHWA's decision to determine the extent to which they were required to perform the MIS. Thirty-five agency representatives, but apparently no plaintiffs or members of the public, met to consider the need for MIS on January 24, 1994. Given the degree of study already being undertaken and the project's progress to that date, the FHWA representative determined that a separate MIS would not be required. Instead, the Agencies agreed to include a section on MIS compliance in the FEIS. ARBD 28 at Appendix D, Memo dated Jan. 24, 1994 entitled Formal Screening Meeting, Major Metropolitan Transportation Investment Analysis.

The FEIS includes a section on compliance with 23 C.F.R. § 450.318. ARBD 27 at I-19 to I-26. This section identified alternatives considered, listed the twenty-eight Agency and public meetings on the project, identified seven travel demand reduction and operational management strategies, and identified documentation in the EIS that demonstrated compliance with MIS. Id. As mentioned above, a public hearing was held on March 16, 1994 and a comment period opened to receive public input on the FEIS. Two-hundred-and-eighty people attended the meeting. All comments were published and answered in the basis report for the FHWA's record of decision. ARBD 33.

As regards plaintiffs' specific criticism, we find that it has no more merit than the public participation argument rejected above. Indeed, the terms of public participation on the MIS are governed by language in section 450.318(b) that refers back to section 450.316(b)(1). Section 450.316(b)(1) does not apply to projects already in progress. In any event, given the discretion accorded the FHWA under the regulations to modify the MIS process, and the steps actually taken in carrying out a modified form of compliance, we find the Agencies' action reasonable. Section 450.318 did not compel the FHWA to require a separate MIS.

C. Validity of CMS Evaluation

Finally, plaintiffs take issue with the contents of the CMS evaluation. They contend that the CMS is a sham because it contributes to an already serious congestion problem on Route 51.²⁷ The Agencies are said to further compound the problem by not giving this problem a high priority, as the regulations require.

The interim CMS process does require the identification of "the most serious congestion problems in the metropolitan area" and "development of actions to address these problems." 23 C.F.R. § 450.336(b)(1). Couched in this language is a substantial amount of discretion. We described above how the Agencies acknowledge the congestion on Route 51 North and the steps they plan to mitigate further congestion from the I-70 to Route 51 road. The record also contains an October 1993 CMS progress report that identifies many congested roads in the metropolitan area. AR 69 at 38-55. We have reviewed the final CMS evaluation that contains travel demand reduction and operational management strategies; analysis of alternatives to the planned highway; commitments for transportation improvements that do not involve new highway construction; and consideration of future CMS regional strategies. ARBD 26. Under our guiding standards of review, we do not find the Agencies' actions related to the CMS arbitrary, capricious, an abuse of discretion or contrary to law.

CONCLUSION

The environmental impact review process under NEPA for federally funded projects is a complex undertaking that must reconcile, as best as possible, dozens of competing interests. It demand a high level of technical expertise. ISTEA adds greater scrutiny of national transportation goals to this process. The process does not result in perfection, and can generate legitimate disagreement, even with the most studied of outcomes.

[ILLEGIBLE SLIP OP. PAGE 21301]

[25 ELR 21302]

II. FINDINGS OF FACT

A. The Parties, Jurisdiction, Venue and Standing

1. EPIC is an "environmental watchdog organization devoted to the protection of threatened and endangered species in the Northern California forest ecosystem." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 1 (N.D.Cal. Sept. 1, 1993). EPIC's 300 members live and work in the redwood region of Northern California. (Lanham, Tr. 8/15/94 at 42, 46.) Many of EPIC's members are committed to protecting the biodiversity of the redwood region. (Id. at 55.) In this role, they monitor areas where they believe marbled murrelets are nesting, and attempt to determine what impact logging these areas will have on the marbled murrelet and other old-growth dependent species. (Id.) This court has already found that EPIC's members will suffer an "injury in fact" if Pacific Lumber's implementation of THP-237 results in a "take" of the marbled murrelet in violation of the ESA. Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 5-9 (N.D. Cal. Sept. 1, 1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, __ n. 8, 112 S. Ct. 2130, 2143 n. 8, 119 L. Ed. 2d 351 (1992)). Thus, EPIC has standing to sue under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Id.

2. The marbled murrelet is a rate seabird which nests primarily in old-growth coastal coniferous forests between southeast Alaska and Santa Cruz, California. (Pls.' Ex. 272 at 2.) Effective March 12, 1992, the marbled murrelet was listed as an "endangered species" under the California Endangered Species Act ("CESA"), 14 Cal.Fish & Game Code § 1750, et seq.³ See 14 C.C.R. § 670.5. Effective September 28, 1992, the marbled murrelet was listed as a "threatened species" under the federal ESA within its range in California, Oregon and Washington.⁴ 57 Fed.Reg. 45328 (Oct. 1, 1992); see also 50 C.F.R. § 17.11 (1993). Thus, as a protected species under the ESA, the marbled murrelet has standing to sue "in its own right." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 9, n. 4 (N.D.Cal. Sept. 1, 1993) (quoting Palila, 852 F.2d at 1107.).

3. Pacific Lumber is a logging company with a base of operations in Scotia, California. (Herman, Tr. 9/6/94 at 165.) Pacific Lumber owns and proposes to harvest the portion of the Owl Creek forest covered by THP-237. (Def's. Exs. 816 and 818.)

4. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 16 U.S.C. §§ 1540(c) and 1540(g)(1).

5. Venue is proper pursuant to 28 U.S.C. § 1391(b).

B. The Marbled Murrelet

6. The marbled murrelet is a small seabird in the family of alcids (which includes auks, murres and puffins).⁵ (Carter, Tr. 8/15/94 at 58-60; Pls.' Ex. 251 at 1, 7-8.) The marbled murrelet is approximately nine inches in length, it has a short neck and tail, small wings, and a heavy compact body. (Pls.' Ex. 251 at 1, 7-8; Nelson, Tr. 8/16/94 at 53.) Both adult murrelets and their chicks have "cryptic plumage," during the breeding season, the adult's plumage is dark brown and gray with black bars above and a heavily mottled light brown below. (Pls.' Ex. 251 at 8; Nelson, Tr. 8/16/94 at 22, 53; Carter, Tr. 8/15/94 at 66.)

7. Like other alcids, the marbled murrelet spends most of its time at sea feeding on small fish. (Pls.' Ex. 251 at 7-8.) The marbled murrelet, however, is the only member of the alcid family that nests in trees. (Id. at 1, Carter, Tr. 8/15/94 at 60.) Within the contiguous United States, the marbled murrelet nests exclusively in old-growth coniferous forests within 30 miles of the northern Pacific coastline.⁶ (Carter, Tr. 8/15/94 at 60-61, 72; Burkett, Tr. 8/18/94 at 185, 224-26; Pls.' Exs. 223, 224, 251, 270, 304 and 329.) These old-growth forests contain centuries-old redwood and Douglas fir trees which are hundreds of feet tall with large trunks that can range from two feet to ten feet in diameter. (Fox, Tr. 9/7/94 at 229-30; Herman, Tr. 9/6/94 at 112, 120.) Marbled murrelet next trees generally have a large trunk (more than 32 inches in diameter) and large limb structures that are used as a nest platform. (Nelson, Tr. 8/16/94 at 53.) Typically, the marbled murrelet chooses a limb at least 150 feet above the forest floor. (Id. at 55.)

8. Marbled murrelets do not breed until they are several years old, and adults do not necessarily breed every year. (Pls.' Ex. 251 at 1, 9-10.) Additionally, the marbled murrelet does not "build" a nest; rather, the female lays a single egg each year in a natural depression on a large horizontal, moss-covered limb of an old-growth redwood or Douglas firm tree. (Id.; Nelson, Tr. 8/16/94 at 21-22; Moore, Tr. 8/17/94 at 156.) After an egg is laid, the male and female incubate the egg, trading off duties on a daily basis. One murrelet remains on the nest while the other is at sea, and the birds exchange places at dawn. (Nelson, Tr. 8/16/94 at 23-25.)

9. Marbled murrelets nest solitarily, rather than in colonies. (Id. at 26; Carter, Tr. 8/15/94 at 66; Burkett, Tr. 8/18/94 at 264.) While a forest where marbled murrelets are nesting usually contains more than one such nest, only a single pair of marbled murrelets will nest in any one tree within a particular forest stand. (Nelson, Tr. 8/16/94 at 27, 52.) In addition, marbled murrelets are known to have high "site fidelity," i.e., the species returns each year to the same forest "stand."⁷ (Id. at 70-71; Carter, Tr. 8/15/94 at 151; Speich, Tr. 9/8/94 at 63-64.)

10. The marbled murrelet is highly susceptible to predation during its nesting season, which lasts from approximately mid-April until September. (Moore, Tr. 8/17/94 at 155; Pls.' Ex. 251 at 9, 12-13.) Of the marbled murrelet nests which have been discovered, few have achieved nesting success. (Carter, Tr. 8/15/94 at 86; Nelson, Tr. 8/16/94 at 26.) That is, the chick hatched in the nest rarely survive to become a fully-fledged bird. Death of marbled murrelet chicks before fledgling results primarily from attacks by avian predators.(Nelson, Tr. 8/16/94 at 26.) Predators such as ravens, hawks and stellar jays, known as "corvids," are generally considered to be a significant threat to the marbled murrelet. (Id. at 26-27; Burkett, Tr. 8/18/94 at 263-64; Moore, Tr. 8/17/94 at 178-79; Speich, Tr. 9/8/94 at 76.) Some experts believe that, even under ideal circumstances, more than 50 percent of marbled murrelet nests are subject to nest predation. (Moore, Tr. 8/17/94 at 180.)

11. Because the marbled murrelet is highly susceptible to predation during the nesting season, the bird has developed very secretive behavior to protect itself and its young. (Carter, Tr. 8/15/94 at 62-63, 65-66.) The marbled murrelet prefers to nest in areas where the foliage is thick enough to [25 ELR 21303] protect it from being spotted by avian predators. (Moore, Tr. 8/17/94 at 155.) While on land, the marbled murrelet is nocturnal; it flies primarily in darkness or at very low light levels, at dawn and dusk. (Carter, Tr. 8/15/94 at 66; Nelson, Tr. 8/16/94 at 53.) Additionally, the marbled murrelet flies very fash through the air, at speeds up to sixty miles per hour. (Nelson, Tr. 8/16/94 at 18.)

12. Because the marbled murrelet depends on stealth for its existence, it is "very; very difficult to study and find." (Nelson, Tr. 8/16/94 at 52-53.) In the words of one of Pacific Lumber's expert witnesses, Steven Kerns ("Kerns"): "the Murrelet is a bird that is hard to detect at any given bird sites. It is a secretive bird." (Kerns, Tr. 9/7/94 at 22.) "The murrelet basically makes its living by staying out of everything's way." (Moore, Tr. 8/17/94 at 155.)

13. The historical population of the marbled murrelet in California is believed to have been about 60,000. (Pls.' Ex. 251 at 2, 16-17.) Currently, it is believed that approximately 2000 to 5000 marbled murrelets remain in California. (Pls.' Ex. 248 at 1; Speich, Tr. 9/8/94 at 80.) In 1991, the California Department of Fish and Game ("DFG") estimated that the total breeding population of the marbled murrelet in California was approximately 1650 to 2000 birds. (Pls.' Ex. 251 at 2, 17-19.)

14. The existing population of the marbled murrelet in the Pacific Northwest is known to be declining rapidly. (Carter, Tr. 8/15/94 at 86-88; Pls.' Exs. 248 and 251.) The two primary reasons for this decline are the bird's very low annual reproductive potential (1 chick per successful breeding pair), which is exacerbated by nest failure due to predation, and the loss of the vast majority of the marbled murrelet's old-growth nesting habitat. (Pls.' Ex. 248 at 1; Carter, Tr. 8/15/94 at 86-90; Burkett, Tr. 8/18/94 at 173; Moore, Tr. 8/17/94 at 105-06.) In California, more than 96 percent of the marbled murrelets' old-growth nesting habitat has been lost to commercial logging during the past 150 years. (Pls.' Exs. 223 and 224; Burkett, Tr. 8/18/94 at 227; Fox, Tr. 9/7/94 at 223; Moore, Tr. 8/17/94 at 105-06.) Pacific Lumber estimates that a total of only 137,000 acres of old-growth remain in the State of California. (Pls.' Ex. 334 at IV-5.) Pacific Lumber owns approximately four percent of this total. (Id.)

15. The remaining population of marbled murrelets in California is separated into three clusters, which are closely associated with the three remaining blocks of old-growth in the state. (Pls.' Ex. 251 at 17.) The largest remaining cluster of marbled murrelets in California is located in Del Norte and northern Humboldt Counties in the vicinity of Jedediah Smith State Park and Redwood National Park. (Id.) The next largest cluster is located in southern San Mateo and northern Santa Cruz Counties in the vicinity of Portola State Park and Big Basin State Park. (Id.) The smallest remaining cluster is located in "an isolated locality" in south central Humboldt County in the vicinity of Grizzly Creek State Park, Humboldt Redwoods State Park and Owl Creek.⁸ (Id.) The DFG believes that the geographic separation between these three clusters may be substantial enough to prevent movement of individual marbled murrelets between populations.⁹ (Id.)

16. After the logging of an old-growth forest, the original "cathedral-like" columns of trees do not regenerate for a period of two hundred years. (Fox, Tr. 9/7/94 at 226.) Because of the precarious state of the marbled murrelet population, the destruciton of any significant amount of marbled murrelet habitat will result in a high probability that the Northern California population will become extinct. (Carter, Tr. 8/15/94 at 95.) The DFG's June 1991 "Status Review of the Marbled Murrelet" states "all remaining old-growth coastal coniferous forest supporting Marbled Murrelets must be protected from any further modification." (Pls.' Ex. 251 at 5, P 4.) Destruction of any additional occupied stands would, therefore, retard the marbled murrelets' recovery. (Carter, Tr. 8/15/94 at 98-101.) As Pacific Lumber's expert witness Steven Speich ("Speich") asserted, "the whole reason for being a marbled murrelet is to reproduce successfully." (Speich, Tr. 9/8/94 at 66.) Successful nesting is critical to the survival of the species, because most of the population is unable to successfully raise young in the nest. (Carter, Tr. 8/15/94 at 173-74.) Unless the marbled murrelet population is kept at a sustainable level, without further loss of habitat, it is very likely that the marbled murrelet will slip toward extinction. (Id. at 81-82, 86, 91-96, 174; Pls.' Exs. 270 and 271.)

17. In connection with the marbled murrelets' listing as a "threatened species" under the ESA, the United States Fish and Wildlife Services ("USF & WS") appointed a Marbled Murrelet Recovery Team (" MMRT") to review the conservation needs of the species in California, Oregon and Washington. (Pls.' Ex. 248 at 1.) In a status report dated April 14, 1994, the MMRT concluded that "any reduction in occupied nesting habitat for the Marbled Murrelet would hamper efforts to stabilize the population and eventually recover the species." (Id. at 2.) The MMRT recommended that the USF & WS designate all suitable marbled murrelet nesting habitat on Pacific Lumber's lands in Humboldt County, California, as "critical habitat" for the marbled murrelet.¹⁰ (Id. at 2-3.) The MMRT concluded that "these areas are the only available nesting habitat for the population of Marbled Murrelets that occur at-sea in the area of Cape Mendocino." (Id. at 3.)

C. Owl Creek and THP-237

18. The Owl Creek forest is an isolated 440 acre stand of contiguous old-growth redwood and Douglas fir trees located 22 miles inland from the Pacific coast in south central Humboldt County. (Pls.' Ex. 329; Kerns, Tr. 9/7/94 at 57; Def's. Exs. 812 and 813.) The Owl Creek forest is completely surrounded by previously harvested clear cut and second-growth forests for four to five miles in all directions. (Pls.' Ex. 329; Moore, Tr. 8/17/94 at 105-06; Burkett, Tr. 8/18/94 at 265.) The nearest stand of old-growth to Owl Creek is Allen Creek, which is located some four miles to the west. (Moore, Tr. 8/17/94 at 105-06.)

19. THP-237 is a 237 acre, kidney-shaped segment of the Owl Creek forest. (Def's. Ex. 816.) Within THP-237, the forest consists of old-growth redwood and Douglas firm tarees which are between two and eight feet in diameter at breast height ("d.b.h."), in excess of 150 feet tall, with canopy closure ranging from 50 to 100 percent. (Pls.' Exs. 292-M, 329, 334, 335, 336 and 337; Defs. Exs. 812 and 813.) The old-growth redwood and Douglas fir trees in THP-237 range in age from 150 to more than 500 years old. (Herman, Tr. 9/6/94 at 109.)

20. Because of the age and size of its old-growth redwood and Douglas fir trees, the high degree of canopy closure, the existence of suitable nest platforms, and its proximity to the ocean, the Owl Creek stand, including [25 ELR 21304] THP-237, is suitable nesting habitat for the marbled murrelet. (Pls.' Ex. 298; Moore, Tr. 8/17/94 at 158; Nelson, Tr. 8/16/94 at 55; Burkett, Tr. 8/18/94 at 185.) In fact, Pacific Lumber has ranked THP-237 as some of the most suitable and important nesting habitat for the marbled murrelet on the 196,000 acres of land owned by the company in Humboldt County, California.¹¹ (Pls.' Exs. 329 and 334.)

21. On April 11, 1990, Pacific Lumber submitted THP-237 to the California Department of Forestry ("CDF") for approval.¹² (Def's. Ex. 816.) Initially, the CDF refused to approve Pacific Lumber's proposal for THP-237 because the proposed harvest plan did not provide sufficient mitigation measures to ensure that a "take" of the marbled murrelet would not occur in violation of the CESA.¹³ (Def's. Ex. 817.)

22. On March 13, 1992, the California Board of Forestry overruled the CDF and approved THP-237. (Id.) The Board of Forestry's approval, however, was made contingent upon Pacific Lumber's conducting marbled murrelet surveys in Owl Creek in compliance with the Pacific Seabird Group's "Methods for Surveying Marbled Murrelets at Inland Forested Sites" ("PSG Protocol"), and Pacific Lumber's sharing of its survey results with the DFG to ensure that no "take" of the marbled murrelet would occur. (Id. at 3-4.) According to the Board of Forestry's Findings for Approval of THP-237, "operations may not commence until the surveys made [as] a condition of this approval are completed and the information [is] provide[d] to CDF and DFG.'" (Id. at 10.)

23. After conversations with representatives of the CDF and DFG at THP-237 in August 1992, Pacific Lumber agreed to amend THP-237 to set aside certain mitigation zones for the marbled murrelet, and to refrain from harvesting THP-237 during the marbled murrelets' nesting season. (Def's. Ex. 832.)

24. On November 25, 1992, Pacific Lumber recorded a "minor amendment" to THP-237 which set aside three areas to THP-237 from logging for long as the marbled murrelet continues to be listed as a threatened or endangered species under the state or federal ESA, or until a marbled murrelet management plan, such as a habitat conservation plan under 16 U.S.C. § 1539(a)(2), is approved for all of Pacific Lumber's lands. (Def's. Ex. 833; Herman, Tr. 9/6/94 at 152; Speich, Tr. 9/8/94 at 145.) The amended THP-237 contains an 83 acre "retention area" in the southwestern portion of the stand, which will not be harvested during the specified period of time; 23 acres of "marbled murrelete mitigation zones," which will not be cut at all; and 137 acres designated as the "harvest area," of which 40 to 60 percent of the trees will be harvested immediately.¹⁴ (Herman, Tr. 9/6/94 at 118-19; Def's. Ex. 818.)

25. Pacific Lumber has proposed a "modified selection cut" for THP-237. (Moore, Tr. 8/17/94 at 166-67.) This is not an outright clear cut, but rather a two-step clear cut. (Id.) The initial cut will take the largest old-growth trees in the harvest area. (Id.) Within ten years, Pacific Lumber will re-enter the stand and harvest the remaining old-growth. (Id.; Pls.' Ex. 334 at II-3.)

D. The PSG Protocol

26. The Pacific Seabird Group ("PSG") is a professional scientific organization which has taken the lead role in coordinating and promoting research on marbled murrelets, and in providing researchers and land managers with standardized techniques to determine marbled murrelet use of inland forested sites. (Pls.' Ex. 272 at 4.) In 1996, the PSG developed its protocol for studying marbled murrelets to assist wildlife biologists by providing guidance to: (a) determine the presence or probable absence of marbled murrelets in a forested stand; (b) help evaluate how marbled murrelets are using these stands; (c) identify the geographic distribution of the marbled murrelet; and (d) provide consistency for the long-term monitoring of the murrelets' activity levels.¹⁵ (Pls.' Ex. 277 at 2.) The PSG Protocol is based on the best available information on marbled murrelet biology. (Id. at 1.) The protocol is updated annually as new information about the marbled murrelet becomes available.¹⁶ (Id. at 1-2.)

27. The PSG Protocol was not designed specifically to find murrelet nests, and the failure to find nests in an area does not rule out the probability that marbled murrelets are nesting within a stand.¹⁷ (Nelson, Tr. 8/16/94 at 54-55.) Instead, the PSG Protocol classifies certain observed behaviors to determine the "presence" of marbled murrelets in a stand of "potential habitat," or to determine whether a particular stand is "occupied" by marbled murrelets.¹⁸ (Pls.' Ex. 277 at 2.)

[25 ELR 21305]

28. The unit of measure under the PSG Protocol is the "detection" of single bird or flock. (Id. at 4.) The PSG Protocol defines a "detection" as "the sighting or hearing of one or more birds acting in a similar manner." (Id.) For example, if a surveyor sees or hears a single marbled murrelet circling overhead for three minutes, the protocol states that this should be recorded as a single detection. (Id.) If the surveyor loses contact with the bird and then hears a marbled murrelet calling from an unexpected direction, this should be recorded as two detections. (Id.) When a flock of birds is observed splitting into two groups, this should be recorded as one detection (Id.) If two flocks of birds are observed merging into one, this should be recorded as two detections. (Id.)

29. The PSG Protocol recommends that marbled murrelet "surveys" take place at regular intervals during the murrelets' breeding season, which generally occurs between mid-April and early August of each year.¹⁹ (Nelson, Tr. 8/16/94 at 28; Pls.' Exs. 272, 273, 274 and 277.) According to the protocol, marbled murrelet detectability at inland sites in California appears to have a pre-peak level of moderate intensity during the spring (possibly during incubation), and a peak level of moderate intensity during the spring (Possibly during incubation), and a peak level of high activity during the last three weeks of July (possibly during the chick period). (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 5; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.) Detections tend to decrease markedly in August, presumably because the young marbled murrelets are undergoing a flightless molt at sea. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 5; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.)

30 During a survey, individual surveyors are placed at various observation stations which are arranged in advance according to factors sets forth in the protocol. (Nelson, Tr. 8/16/94 at 29.) Since marbled murrelets are rarely seen by observers (75 to 95 percent of all detections in California are audible detections), the PSG Protocol recommends that surveyors should avoid placing survey stations near loud noise sources, such as creeks or busy roads. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 277 at 15.) The PSG Protocol also recommends that surveys should not be conducted during rainy or windy conditions when it becomes difficult to hear the birds, or in heavy fog which limits visibility. (Pls.' Ex. 272 at 6; Pls.' Ex. 277 at 15.) However, surveys can be conducted on overcast days with light rain or moderate fog, because murrelets tend to call for longer periods and at higher rates during these conditions. (Pls.' Ex. 277 at 15.) Finally, the PSG Protocol recommends that surveys stations be located in areas that have an unobstructed view of the sky, and a maximum view of the canopy or stand being surveyed, because it is much easier to see the silhouette of a marbled murrelet flying directly overhead against the light-colored sky than it is to see the bird while looking down onto a dark background from the top of a ridge or a high point. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 274 at 6; Pls.' Ex. 277 at 6; Pls.' Ex. 291.)

31. Marbled murrelet surveys should begin 45 minutes before the official sunrise (as determined by the Nautical Almanac) and last until either 75 minutes after the official sunrise or for 15 minutes after the last detection, whichever is longer. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 6; Nelson, Tr. 8/16/94 at 29.) According to the PSG Protocol, there must be a minimum of six and a maximum of 30 days between survey visits at a particular station. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 7; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.) At least two surveys must be conducted at each survey site after July 1, with at least one of these surveys conducted during the peak nesting season. (Pls.' Ex. 277 at 5.)

32. Marbled murrelet surveys are conducted by surveyors certified through a training process approved by the State of California. (Nelson, Tr. 8/16/94 at 7.) Surveyors are taught to record each marbled murrelet detection, whether auditory or visual, on a standardized data sheet. (Id. at 30.) Surveyors are not required to be 100 percent certain that they have detected a marbled murrelet to note a detection; rather, they are trained to record data whenever they think they may have detected a marbled murrelet. (Id. at 72; Moore, Tr. 8/17/94 at 186.)

33. Auditory detections include marbled murrelet vocalizations, such as detections of the bird's distinctive "keer" calls, wing beats, and "jet" sounds. (Nelson, Tr. 8/16/94 at 73.) A single keer call is important and should be noted by the surveyor. (Id. at 134-35; Moore, Tr. 8/17/94 at 185-86.) The sound of wing beats is made when marbled murrelets are coming into a next. (Nelson, Tr. 8/16/94 at 73.) "Jet" sounds, which are made by a murrelet doing a "jet dive," or steep dive, have been made above known nest trees, and generally end below the tree canopy. (Id.)

34. According to the PSG Protocol, the "presence" of marbled murrelets can be determined upon the completion of four surveys per year for two consecutive years, where murrelets have been detected but instances of "occupied behavior," or observations of subcanopy behaviors in a stand, have not been observed.²⁰ (Pls.' Ex. 277 at 12.) The "absence" of marbled murrelets from a particular stand cannot be determined unless the number of surveys specified in the protocol are conducted for two consecutive years, and no birds are seen or heard. (Nelson, Tr. 8/16/94 at 40-41.)

35. Observations of "occupied behavior" indicate that marbled murrelets are probably using a stand for nesting purposes.²¹ (Id. at 40.) The types of subcanopy behavior classified as "occupied behavior" include detections of marbled murrelets: (a) flying through, into, or out of the forest canopy; (b) landing in trees; (c) calling from a stationary location; and (d) circling below the canopy height.²² (Pls.' Ex. 277 at 13.) Circling above the canopy is also common at "occupied" sites, however, the 1994 PSG Protocol recommends following up a single observation of circling above the canopy with additional surveys. (Id.)

36. Because marbled murrelets are so difficult to detect, and because studies have shown that "occupied behavior" is associated with probable nesting, a single observation of "occupied behavior" under the PSG Protocol is enough to classify a suitable stand of marbled murrelet habitat as being "occupied." (Nelson, Tr. 8/16/94 at 52.) Thus, even if only one instance of "occupied behavior" is noted during 300 surveys, a forest will be considered a probable marbled murrelet nest stand. (Id. at 52-53.)

E. Survey Efforts and Logging Operations at THP-237

1. 1990

37. Pacific Lumber did not begin formally surveying for marbled murrelets in Owl Creek until August of 1991; however, while surveying for spotted owls on August 8, 1990, Pacific Lumber's expert witness, Steven Kerns, observed what he believed to be a marbled murrelet fly directly into the proposed harvest area of THP-237 at a height of just ten feet. (Kerns, Tr. 9/7/94 at 128-30; Pls.' Ex. 307.) Six minutes later, Kerns heard another marbled murrelet's distinctive wing beats as the bird flew directly overhead, but he did not see the bird. (Kerns, Tr. 9/7/94 at 130.) Kern's noted at the time, [25 ELR 21306] however, that these observations could not be confirmed as detectionsof marbled murrelets. (Pls.' Ex. 307.)

2. 1991

38. On August 7, 1991, Pacific Lumber's employees conducted four, two-hour surveys for marbled murrelets at four stations in THP-237, but made no detections. (Kerns, Tr. 9/7/94 at 16; Def's. Ex. 840.) No further surveys were conducted in Owl Creek in 1991.

3. 1992

39. In April 1992, shortly after the California Board of Forestry's conditional approval of THP-237 and California's listing of the marbled murrelet as an endangered species, Pacific Lumber began conducting marbled murrelet surveys at 19 numerically designated stations in Owl Creek. (Def's. Ex. 829.) The location of each of the 19 survey stations was selected by Pacific Lumber (Kerns, Tr. 9/7/94 at 11.) Although the 1992 PSG Protocol recommends that surveyors establish a minimum of one survey station for every 30 acres of habitat, Pacific Lumber placed only four of its 19 survey stations in the 160 acre section of THP-237 containing the proposed harvest area and the marbled murrelet mitigation zones.²³ (Pls.' Ex. 273 at 6; Kerns, Tr. 9/7/94 at 14; Def's. Ex. 841.)

40. During the 1992 survey season, marbled murrelet surveys at THP-237 were conducted by a combination of Pacific Lumber employees, who were performing these surveys in addition to their regular duties, and local wildlife biology students or college graduates who were in need of summer employment.²⁴ (Kerns; Tr. 9/7/94 at 179-81.) Pacific Lumber retained Wildlands Resource Managers ("WRM"), and Natural Resource Management Corporation ("NRM"), to provide the additional marbled murrelet surveyors.²⁵ (Herman, Tr. 9/6/94 at 229-30; Miller, Tr. 8/16/94 at 157-58.)

41. Pacific Lumber directed when, where and how the marbled murrelet surveys in THP-237 were to be taken by WRM and NRM. (Kerns, Tr. 9/7/94 at 134.) Pacific Lumber's Chief of Forestry, Ray Miller ("Miller"), was put in charge of the marbled murrelet surveys, and he managed the surveys "as part of managing our timber[.]" (Miller, Tr. 8/16/94 at 151, 162-63.) Pacific Lumber instructed its surveyors not to record a marbled murrelet detection unless they were "100 percent" certain that they had actually observed a murrelet. (Id. at 185-86.) Additionally, Pacific Lumber's surveyors were instructed not to record a detection if they heard only one "keer" call, or if they heard the marbled murrelet's distinctive wing beats. (Beck, Tr. 8/16/94 at 205; Penney, Tr. 8/18/94 at 111-12.)

42. Despite these and other restrictions which deviated from the PSG Protocol, during 14 days of surveying between April 17 and June 16, 1992, Pacific Lumber's surveyors recorded 70 detections of marbled murrelets at numerous locations in and around THP-237, including 16 detections of marbled murrelets in the proposed harvest area itself. (Pls.' Exs. 94, 292 and 293; Rodgers, Tr. 8/16/94 at 234, 242;Moore, Tr. 8/17/94 at 151-52.) Without any further examination, this significant number of detections during the pre-peak season for marbled murrelet activity would at least indicate the "presence" of marbled murrelets in THP-237. (Pls.' Ex. 273 at 11; Pls.' Ex. 277 at 14.) However, further examination reveals that several of these detections are indicative of "occupied behavior" as defined by the PSG Protocol.

43. At least 11 of the 70 detections of marbled murrelets at Owl Creek, or 16 percent, were visual detections. (Pls.' Ex. 292.) This is significant because nearly 75 to 95 percent of all marbled murrelet detections in California are audible detections. (Pls.' Ex. 273 at 6; Pls.' Ex. 277 at 6.) Moreover, the significance of these detections is enhanced because many of the surveys taken during this period were conducted in less than optimal weather conditions. Pacific Lumber's surveyors recorded 100 percent cloud cover at some or all of the survey stations in Owl Creek on 12 of the 14 days when surveys were conducted; fog was recorded at some or all of the survey stations on 11 of the 14 days; and heavy fog and rain were recorded on six of the 14 days. (Pls.' Ex. 292.) In fact, all but one of the visual detections were recorded on days with 100 percent cloud cover, and ten visual detections were recorded on days with rain and fog. (Id.)

44. On April 29, 1992, WRM surveyor James Denison ("Denison") recorded nine detections, including five visual detections, of 16 marbled murrelets flying over Station 16, which is located along a logging road at the southwestern edge of the Owl Creek forest, adjacent to the proposed retention area of THP-237. (Pls.' Ex. 292; Def.'s Ex. 841.) Some of the birds were observed flying west to east or north to northeast, into or above the Owl Creek stand, but the majority of the birds were observed flying silently in a southerly direction through or above the proposed retention area. (Pls.' Ex. 292.) Denison recorded the height of the birds as "90 +"; however, he did not indicate a unit of measure (feet or meters). (Id.) Depending on whether the birds were flying at a height of 90 feet or 90 meters, Denison's detections could be classified as "subcanopy" flight, or "occupied behavior" in accordance with the PSG Protocol. (Pls.' Ex. 277 at 13.) In any event, Denison's detections are important because of the number of marbled murrelets that he detected, given the scarcity of the species, and the isolation of the Owl Creek stand from other suitable nesting habitat.²⁶

45. On April 30, 1992, Denison observed three marbled murrelets flying at a height of 25 meters above Station 15, which is located adjacent to THP-237 on the southeastern edge of the proposed harvest area. (Denison, Tr. 9/8/94 at 19, 28; Kerns, Tr. 9/7/94 at 14; Pls.' Ex. 284; Chinnici, Tr. 8/17/94 at 37.) According to Denison, the murrelets flew toward him from the west and turned south. (Denison, Tr. 9/8/94 at 15.) Thus, the marbled murrelets flew either directly out of, or adjacent to, the proposed harvest area of THP-237. Pacific Lumber's expert witness later characterized the birds as flying "just below top of tree" and noted, "the Protocol states that this observation is a fly through the canopy, indicating an activity site." (Kerns, Tr. 9/7/94 at 139, 185.) As such, Denison's detection constitutes an observance of "occupied behavior" under the PSG Protocol, signifying that the proposed harvest area of THP-237 is a probable marbled murrelet nest stand. (Pls.' Ex. 286.)

46. On May 1, 1992, a marbled murrelet was observed circling above the canopy at Station 17, which is adjacent to the southwestern [25 ELR 21307] portion of the Owl Creek stand, between the proposed retention area and the proposed harvest area of THP-237. (Pls.' Ex. 292.) According to the surveyor, Mark Rodgers ("Rodgers"), the marbled murrelet was flying at a height of 300 feet, from the northeast (the direction of the proposed harvest area) to the southeast. (Id.) According to the 1992 PSG Protocol, which Pacific Lumber was supposed to be operating under at the time, circling above the canopy of a stand of suitable habitat, or above a stand adjacent to suitable habitat, is "an extremely strong indication of an occupied site." (Pls.' Ex. 273 at 10.) The current PSG Protocol states that circling above the canopy is common over nest stands and occupied stands; therefore, it indicates possible occupancy of a stand. (Pls.' Ex. 277 at 13.) The 1994 Protocol recommends increasing survey efforts in stands where circling is observed. (Id.) After Rodgers' observation of circling on May 1, 1992, however, there was a three week lapse in Pacific Lumber's surveys. (Pls.' Ex. 292.)

47. In addition to the 11 visual detections recorded at Owl Creek between April 17 and June 16, 1992, Pacific Lumber's surveyors recorded 59 audible detections of marbled murrelets during the same period. (Pls.' Ex. 292.)²⁷ Many of these audible detections are significant because, like the visual detections, they were recorded on days with less than optimal weather conditions, and some of these detections indicate behaviors which are classified as "occupied behaviors."

48. On April 30, 1992, a day which was plagued by heavy rain, wind and fog, Pacific Lumber's surveyors recorded 17 audible detections of marbled murrelets at seven different survey stations in Owl Creek, including three of the four survey stations in the proposed harvest area of THP-237. (Pls.' Ex. 292.) At Stations 10 and 14, which are located near the center of the proposed harvest areas, two surveyors recorded nine audible detections of marbled murrelets within 50 to 150 meters of their stations. (Pls.' Exs. 292 and 292-T.) Neither surveyor recorded a visual detection (both surveyors noted that heavy fog and rain had a negative impact on their survey efforts); however, their audible detections are significant because they suggest "occupied behavior." At Station 10, NRM surveyor Sean McAllister ("McAllister") recorded two audible detections of marbled murrelets engaging in unknown behavior at a height of 50 meters, which is well below the canopy level of 75 meters. (Pls.' Ex. 292; Pls.' Ex. 298 at 4.) This suggests that marbled murrelets were either flying below the canopy level or nesting in the subcanopy, both of which are "occupied behaviors." (Pls.' Ex. 298 at 4; Pls.' Ex. 277 at 13.) Similarly, at Station 14, NRM surveyor Dirk Embree ("Embree") recorded seven audible detections of marbled murrelets within 50 to 100 meters of his position. (Pls.' Ex. 292-T.) Embree recorded three separate detections of marbled murrelets calling from the same direction, due north, at a distance of 50 to 100 meters. (Id.) Embree did not, however, record a departure direction for the birds, indicating that the marbled murrelets were calling from a stationary location in the stand, which, according to the PSG Protocol, is "very rare" and indicates "occupied behavior" in the heart of the proposed harvest area. (Pls.' Ex. 277 at 13.)

49. On May 1, 1992, Denison recorded two audible detections of three marbled murrelets vocalizing at Station 18, which is located immediately to the south of the proposed retention area of THP-237. (Pls.' Ex. 292; Def's. Ex. 841.) Denison indicated that the birds were flying at a height of only 20 meters from the northwest to the northeast (into the stand), and from the northeast to the east (out of the stand). (Pls.' Ex. 292.) Denison's detections indicate that the marbled murrelets were accessing either the proposed retention area or the proposed harvest area to the northeast, which, according to the PSG Protocol, is evidence of "occupied behavior." (Pls.' Ex. 277 at 13.)

50. On June 8, 1992, WRM surveyor David Fortna ("Fortna") recorded a marbled murrelet "jet sound" at Station 17.²⁸ (Miller, Tr. 8/16/94 at 167.) A "jet sound" is a distinctive sound that a marbled murrelet makes when it "jet dives" from a high altitude into a nest tree. (Nelson, Tr. 8/16/94 at 73.) Flying into the canopy or a nest tree is classified as an "occupied behavior" by the PSG Protocol. (Pls.' Ex. 277 at 13.) In fact, observations of marbled murrelets flying into a nest tree are considered to be so important that the PSG Protocol recommends that they be reported immediately to interested scientists and responsible wildlife agencies. (Id. at 15.) Pacific Lumber, however, never reported Fortna's detection to anyone.²⁹

51. In accordance with the Board of Forestry's mandate, Pacific Lumber was supposed to be operating under the most current PSG Protocol during the 1992 survey season. The 1992 PSG Protocol recommends that marbled murrelet surveys be conducted for a minimum of two consecutive years to establish "presence" or "absence" of marbled murrelets from a particular site, unless the site is determined to be occupied with fewer survey visits. (Pls.' Ex. 273 at 11.) It also identifies mid-summer (the month of July) as the peak period for marbled murrelet detectability in California, and it recommends that at least two surveys be conducted during this period, with at least one survey occurring after July 1. (Id. at 5.) Nevertheless, Pacific Lumber ignored both the PSG Protocol and the Board of Forestry's mandate by terminating its marbled murrelet surveys at THP-237 after June 16, 1992.

52. On Thursday, June 18, 1992, Miller transmitted a letter to Ken Moore at the DFG which summarized the pre-peak survey data from ten of Pacific Lumber's 19 survey stations in Owl Creek.³⁰(Miller, Tr. 8/17/94 at 171-72, 176; Pls.' Ex. 51.) Miller's letter stated:

As you will note from review of the data, no activity sites were found to exist anywhere within or adjacent to the plan area. Since there is no evidence that the THP area contains an active murrelet site or possesses a potential impact to a murrelet as provided in 14 CCR 1036.1 [sic], additional consultation with Fish and Game is not necessary, and timber operations will be commenced.

(Pls.' Ex. 51.)

53. On the following day, Friday, June 19, 1992, before Moore even had a chance to review Miller's letter, Pacific Lumber began [25 ELR 21308] harvesting operations in THP-237.³¹ The harvesting was conducted at the direction of the company's president, John Campbell. (McLaughlin, Tr. 8/16/94 at 196.)

54. Pacific Lumber conducted logging on five separate areas of THP-237 from Friday, June 19, 1992 until Tuesday, June 23, 1992, when operations were halted at the request of the CDF. (Id. at 201-02; Pls.' Ex. 64; Moore, Tr. 8/17/94 at 151; Herman, Tr. 9/6/94 at 143.) Pacific Lumber's logging manager, Dan McLaughlin ("McLaughlin"), testified that logging over a weekend was highly unusual. In fact, McLaughlin testified that in his sixteen years with the company, Pacific Lumber's logging crews never worked on a Sunday except in the case of fire, flood or heavy snowfall. (McLaughlin, Tr. 8/16/94 at 198-99.) More importantly, many of the areas harvested in THP-237 in June 1992 were immediately adjacent to survey stations where several detections of marbled murrelets were recorded between April and early June, including Stations 10, 13 and 14 in the proposed harvest area, and Station 15, where "occupied behavior" was observed by Denison on April 30, 1992. (Pls.' Exs. 64, 255 and 285.)

55. At the request of the DFG, Pacific Lumber resumed marbled murrelet surveys in THP-237 after the June 1992 harvest. (Moore, Tr. 8/17/94 at 152.) Whereas 70 marbled murrelet detections were recorded prior to the June 1992 harvest, only six detections were recorded in the month after the harvest. (Id. at 151-52.) None of these detections were recorded in the areas that Pacific Lumber harvested the previous month. (Pls.' Ex. 292.)

56. After the June 1992 harvest, Pacific Lumber added two survey stations, Stations 20 and 21, along a road that bisects the proposed retention area in the southwestern of portion of THP-237. (Pls.' Ex. 285.) This was the first time that Pacific Lumber placed survey stations in the southwestern portion of the Owl Creek forest, which is the closest part of the forest to the sea, and the direction where one would expect a marbled murrelet to come from on its journey to its nest. All of Pacific Lumber's post-harvest detections in Owl Creek during the remainder of the 1992 survey season were recorded in the vicinity of these two stations. (Pls.'Ex. 292.)

57. On July 1, 1992, NRM surveyor William Goggin (" Goggin") recorded one detection of three marbled murrelet vocalizations at a point 200 meters to the west of Station 21. (Id.) On the same morning, NRM surveyor Maya Conrad ("Conrad") recorded one detection of six marbled murrelet vocalizations to the north and west of Station 20, which is near the western edge of the proposed retention area.³² (Id.)

58. On July 10, 1992, Fortna recorded three alternating marbled murrelet vocalizations at Station 21. (Id.) According to Fortna, the birds were detected approximately 200 meters to the west and below Station 21 in the creek drainage. (Id.) Fortna's description places the marbled murrelets at a point below the canopy in the heart of the proposed retention area of THP-237. (Def's. Ex. 841.) This indicates that the proposed retention area of THP-237 is "occupied" by the marbled murrelet. (Pls.' Ex. 273 at 13.)

59. Finally, on July 14, 1992, Fortna detected a single marbled murrelet calling from a point approximately 300 meters south of Station 16, which would place the bird just south of Station 20 in the proposed retention area. (Pls.' Ex. 292.) Fortna's July 14, 1992 detection, as well as the other July 14, 1992 detections in the vicinity of Stations 20 and 21, support a finding that the proposed retention area of THP-237 is "occupied" by the marbled murrelet.

60. At the end of the 1992 survey season Pacific Lumber's Resource Manager, Thomas Herman ("Herman"), hosted a party at his home for Pacific Lumber's forestry staff, which included the company's marbled murrelet surveyors.³³ (Miller, Tr. 8/16/94 at 186.) At the party, there was a target of a marbled murrelet on a dart board, at which the attendees were throwing darts. (Id.)

61. On September 28, 1992, the marbled murrelet was listed as a "threatened species" under the ESA. 57 Fed.Reg. 45328 (Oct. 1, 1992). During October and November of 1992, Pacific Lumber was informed by various employees of the USF & WS that logging in Owl Creek pursuant to THP-237 would likely cause a "take" of the marbled murrelet in violation of the ESA. (Pls.' Exs. 85, 309 and 333.)

62. On November 24, 1992, the eve of the Thanksgiving holiday, Pacific Lumber again began logging THP-237 at the direction of its president John Campbell. (McLaughlin, Tr. 8/16/94 at 199, 202.) During the trial, Pacific Lumber's logging manager, Dan McLaughlin, testified that one of the reasons the company conducted logging operations in THP-237 over the holiday weekend was because of the company's fear that it "might be stopped again." (Id. at 200.) In fact, Thanksgiving 1992 was the only time that Pacific Lumber's logging crews had worked on a Thanksgiving weekend in McLaughlin's sixteen years with the company, and THP-237 was the only area logged by those crews on Friday, November 27, 1992, and Saturday, November 28, 1992. (Id. at 199-201.)

4. 1993

63. During the 1993 survey season, Pacific Lumber concentrated most of its survey efforts in the southwestern portion of the Owl Creek stand. Not surprisingly, many of the marbled murrelet detections recorded in 1993 were observed in this portion of the forest. In addition, Pacific Lumber failed to conduct marbled murrelet surveys at Owl Creek for a period of 71 consecutive days. (Moore, Tr. 8/18/94 at 90-91.) This was clearly a violation of the PSG Protocol. (Pls.' Ex. 274 at 5.) Nevertheless, there were significant detections of marbled murrelets in THP-237 during 1993.

64. On April 16, 1993, WRM surveyor Erin O'Bryan ("O'Bryan") recorded a visual detection of two marbled murrelets circling 20 meters above the canopy at Station 21, which is in the proposed retention area of THP-237. (Pls.' Ex. 280.) According to O'Bryan, the murrelets flew directly over the canopy at Station 21, heading from the southeast to the west. (Id.) According to the 1993 PSG Protocol, circling above the canopy is considered "occupied behavior;" however, the protocol recommends additional surveys depending on the height of the birds above the canopy and distance from potential habitat. (Pls.' Ex. 274 at 12.) In this case, two marbled murrelets flew directly over suitable habitat at a height of only twenty meters. This provides strong evidence that the southwestern portion of the Owl Creek stand is "occupied" by the marbled murrelet.

65. On July 1, 1993, five surveyors conducted Pacific Lumber's first search for marbled murrelet eggshell fragments in Owl Creek. (Def's. Ex. 838 at 5-6.) The surveyors searched the ground in the vicinity of Station 20 for two and one-half hours, with no success. (Id.)

66. On July 7, 1993, four Pacific Lumber surveyors conducted a search for marbled murrelet eggshell fragments on a strip of land approximately 120 feet wide and 300 meters long between Stations 6 and 7, which are located to the north of THP-237 on the opposite bank of the Owl Creek. (Pls.' Ex. 284.) The surveyors searched the ground around 70 trees for two hours, with no success.³⁴ (Id.)

[25 ELR 21309]

67. On July 14, 1993, another Pacific Lumber crew conducted ground searches in the vicinity of Stations 16 and 21, once again without success. (Def's. Ex. 838 at 3-4.) One of the surveyors, however, indicated that the area of the search was not very good habitat for the marbled murrelet (Id. at 4.)

68. On July 25, 1993, WRM surveyor Jeff Steinman ("Steinman") recorded 11 detections of 14 marbled murrelets vocalizing and circling above and below the canopy at Station 20, which is to the southwest of Station 21 in the proposed retention area of THP-237. (Pls.' Ex. 279.) According to Steinman, two marbled murrelets flew 50 feet below the canopy heading from the east to the north; one marbled murrelet flew 50 feet below the canopy heading from the south to the northeast, which is in the direction of the proposed harvest area; two marbled murrelets were observed circling at the top of the canopy (150 feet); and five marbled murrelets were observed flying just at or above the top of the canopy (150 feet). (Id.) According to the 1993 PSG Protocol, circling below the canopy provides some of the strongest evidence that a stand is "occupied." (Pls.' Ex. 274 at 12.) Given the large number of marbled murrelets observed flying at or below the canopy level of Station 20 on July 25, 1993, there can be no question that the southwestern portion of the Owl Creek stand is "occupied" by the marbled murrelet.

5. 1994

69. On June 15, 1994, four marbled murrelets were observed flying just over the top of the canopy at Station 16, which is located on the southwestern edge of the Owl Creek stand adjacent to the proposed retention area of THP-237. (Pls.' Ex. 261 at 20.) According to the surveyor, Nick Matthews, three murrelets flew directly overhead from east to west, heading from the direction of the proposed retention area to the sea. (Id. at 21.) One other murrelet flew over the canopy from the northeast to the southwest, heading from the direction of the proposed harvest area to the sea. (Id.)

70. On July 11, 1994, a WRM surveyor recorded two detections of 13 "overlapping" marbled murrelet vocalizations from a stationary position located 150 meters to the southwest of Station 21, which is in the proposed retention area of the stand. (Def's. EX. 830.) This indicates that the marbled murrelets were calling from a stationary position in the stand, which is clarified as "occupied behavior." (Pls.' Ex. 277 at 13.)

71. On the same day, WRM surveyor Michael Penney ("Penney"), observed a pair of marbled murrelets flying below canopy level at Station 6, which is immediately to the north of the proposed harvest area of THP-237. (Penney, Tr. 8/18/94 at 107-09; Pls.' Ex. 290; Kerns, Tr. 9/7/94 at 15.) According to Penney, the marbled murrelets werre flying from the southeast, directly out of the proposed harvest area of THP-237, to the northeast.³⁵ (Penney, Tr. 8/18/94 at 108; Pls.' Ex. 290.) Under the 1994 PSG Protocol, Penney's detection indicates that the proposed harvest area of the THP-237, which is adjacent to Station 6, is "occupied" by the marbled murrelet.³⁶ (Pls.' Ex. 277 at 13.)

72. On July 14, and July 21, 1994, Pacific Lumber conducted ground searches for marbled murrelet eggshell fragments to the north and south of Station 6. (Def's. Ex. 838 at 7-8.) A total of 18 surveyors searched the area for three and one-half hours, without success. (Id.)

73. Pacific Lumber stopped surveying from marbled murrelets in Owl Creek after July 21, 1994.

F. THP-237 is "Occupied by the Marbled Murrelet

74. After carefully reviewing all of the evidence, and weighing the credibility of the witnesses, the court find the EPIC has proven, by a preponderance of the evidence, that THP-237 is "occupied" by the marbled murrelet. That is, EPIC has proven, by preponderance of the evidence, that marbled murrelets are nesting in TH-237.

75. Under the PSG Protocol, the test for determining whether a stand of potential habitat is "occupied" is simple: if a surveyor detects marbled murrelets during a survey visit and observes "occupied behavior," the entire stand is classified as "occupied" (Pls.' Ex. 277 at 12-13, 29.) EPIC has proven that THP-237 satisfies this test.

76. First, EPIC has established that THP-237 is suitable habitat for the marbled murrelet. It has been classified as such by EPIC's expert witnesses, the PSG Protocol, the USF & WS Marbled Murrelet Recover Team, and by Pacific Lumber itself in its map of the most suitable nesting habitat for the marbled murrelet on company property.³⁷ (Moore, Tr. 8/17/94 at 158; Nelson, Tr. 8/16/94 at 86; Burkett, Tr. 8/18/94 at 185, 262-65; Pls.' Ex. 248 at 2-3; Pls.' Ex. 277 at 3; Pls.' Ex. 329.)

77. Second, Pacific Lumber's survey records from 1992, 1993 and 1994 demonstrate that numerous instances of "occupied behavior" have been observed in and around THP-237, in both the proposed harvest area and the proposed retention area. (Nelson, Tr. 8/16/94 at 62.) Therefore, in accordance with the PSG Protocol, THP-237 is properly classified as an "occupied site." (Pls.' Ex. 277 at 13.)

78. It is important to remember that the marbled murrelet is an elusive species, and relatively few murrelets remain in the at-sea population off south central Humboldt County. This means that any detection of a marbled murrelet at a stand of suitable habitat in south central Humboldt County is significant. Add to this the remoteness of the Owl Creek stand, as well as its isolation from other [25 ELR 21310] suitable habitat, and the detections of marbled murrelets at THP-237 begin to take on greater significance.

79. In this case, there have been approximately 100 detections of marbled murrelets at oc, throughout the birds' breeding season, for a period of three consecutive years. It is reasonable to conclude that there can be only one explanation for the marbled murrelets' continued presence in oc: the marbled murrelet is using the Owl Creek stand for nesting purposes. As Pacific Lumber states in its HCP.

There is every reason to believe that during the spring and early summer, when activity levels are lower, that largely nesting birds are being detected during morning observation periods. This is the period when most birds are incubating eggs, attending newly hatched young, and starting into the nestling period. The period when detection rates increase, often dramatically, is when most nests contain nestlings.

(Pls.' Ex. 334 at V-4.)

80. During the trial, Pacific Lumber attempted to minimize the significance of its marbled murrelet detections by arguing that the quantity of detections, especially detections of "occupied behavior," was too low, when compared to the number of hours spent surveying, for the finder of fact to conclude that THP-237 is "occupied" by the marbled murrelet. Pacific Lumber's expert witnesses, Speich and Kerns, opined that the significant number of "no detections" recorded by Pacific Lumber's surveyors, coupled with the lack of observations of behaviors closely associated with nesting, leads them to conclude that THP-237 is not "occupied" by the marbled murrelet. (Speich, Tr. 9/8/94 at 74-74; Kerns, Tr. 9/7/94 at 47-48, 52-56, 91-94.) The opinions of Speich and Kerns are entirely dependent upon the integrity of Pacific Lumber's surveys, or more accurately, that portion of Pacific Lumber's survey data which indicates that marbled murrelets were not detected in THP-237. As will be discussed below, this portion of Pacific Lumber's survey is patently unreliable.

81. Pacific Lumber's "no detections" argument unsuccessfuly attempts to sidestep a fundamental flaw in the manner in which Pacific Lumber has deal with the task of evaluating the potential presence of marbled murrelets in oc. Quite simply, Pacific Lumber's marbled murrelet surveys were not conducted by an independent andimpartial third party using the scientific method to determine whether the Owl Creek stand is occupied by the marbled murrelet. Instead Pacific Lumber's marbled murrelet surveys in Owl Creek were conducted by surveyors, who to a considerable extent were Pacific Lumber employees, and all of whom were under the direct supervison of Pacific Lumber's top and middle management, whose understandable loyalty to Pacific Lumber extended to the harvesting of THP-237 as the desired company goal. As Thomas Herman, the head of Pacific Lumber's forestry operations, stated during the trial: "Our intention in running our business is to grow and harvest trees. Just about anything we do is intended to cut and grow trees." (Herman, Tr. 9/6/94 at 174.) Herman admitted that the purpose of Pacific Lumber's marbled murrelet surveys was to let the company continue its harvest operations. (Id.) Pacific Lumber displayed its commitment to harvesting trees at all costs when it logged THP-237 in June and November 1992, contrary to the conditional approval it had received from the Board of Forestry just a few months before, and despite mounting evidence that Pacific Lumber had in its possession that the stand was occupied by the marbled murrelet. In this case, Pacific Lumber's bold pursuit of its intention "to cut and grow trees" renders the objectivity of its survey results highly suspect.

82. Additionally, there is sufficient evidence in the record for the court to find that Pacific Lumber administered it marbled murrelets' presence in THP-237 with the intent to either avoid detecting marbled murrelets or, to the extent that making detections could not be helped, to grossly understate the marbled murrelets' presence in THP-237. Despite the Board of Forestry's expressed condition of approval, Pacific Lumber's marbled murrelet surveys were never conducted in accordance with the PSG Protocol. Moreover, Pacific Lumber's marbled murrelet surveys were never conducted in accordance with the PSG Protocol. Moreover, Pacific Lumber's utilization of the following methods to conduct marbled murrelet surveys at THP-237 provides clear evidence that the company's marbled murrelet surveys were either designed to fail to detect murrelets, or they were admninistered with indifference as to whether the required procedure would be used or not:

(a) Pacific Lumber's employees decided where they survey stations would be located and when they would be manned;

(b) only four survey stations were located in the proposed harvest area itself, and only two survey stations were located on the western edge of THP-237—the direction from which the birds could be expected to fly from the sea and into the stand;

(c) in direct contradiction to the PSG Protocol, survey stations were located near loud noise sources, and a substantial number of surveys were conducted in adverse weather conditions, which were known to inhabit the surveyors' ability to detect murrelets;

(d) in 1992, Pacific Lumber harvested in THP-237 during the middle of the nesting season, at the very beginning of the peak period for marbled murrelet detectability;

(e) in 1993, 71 consecutive days were allowed to elapse between surveys;

(f) despite the fact that Pacific Lumber's surveyors were trained to be able to audibly detect the marbled murrelet and were certified by the State of California as being able to do so, Pacific Lumber's survey managers instructed the company's filed surveyors that they were not to record detections of single marbled murrelet "keer" calls, or detections of the marbled murrelets' distinctive wing beats or "jet sounds;"

(g) two surveyors who recorded visual detections were interrogated by their supervisors, on the surveyors' own time, under circustamances that appear to have been calculated to persuade the surveyors to change or delete marbled murrelet detections that were contrary to Pacific Lumber's interests; and

(h) Pacific Lumber never conducted ground searches for eggshell fragments in THP-237 until July 1993, and it never conducted ground searches in the proposed harvest area until July 14, 1994, after Penney observed two marbled murrelets flying below the canopy level at Station 6.

83. The weakness of Pacific Lumber's "no detection" argument is further demonstrated by the fact that Pacific Lumber has never fully complied with the Board of Forestry's requirement that it "share" information obtained from its marbled murrelet surveys with the DFG to ensure that a "take" of the marbled murrelet will not occur during harvesting. Pacific Lumber did not provide survey data sheets for the 1992 survey season to the DFG until approximately July 31, 1992, more than one month after the company surreptitiously logged THP-237.³⁸ (Moore, Tr. 8/17/94 at 149.) Pacific Lumber revealed for the first time during the trial that the survey data sheets it turned over to the DFG on July 31, 1992 were not the original survey data sheets completed by the company's field surveyors at the time they conducted their surveys.

84. On the second day of the trial, August 16, 1994, Pacific Lumber revealed for the first time that its two principal survey contractors kept two different sets of survey data sheets for the marbled murrelet surveys conducted in THP—237 during 1992. (Tr. 8/16/94 at 147-50.) The first set of survey sheets, which Pacific Lumber characterized as the "original" survey sheets, were completed by NRM's certified marbled murrelet surveyors in the filed at the time they conducted their surveys. (Id. at 147-48.) According [25 ELR 21311] to Pacific Lumber, NRM turned over the original survey sheets to Pacific Lumber's primary survey contractor, WRM; WRM "replicated" the original data onto a second set of survey sheets; and Pacific Lumber turned over the second set of sheets to the DFG on July 31, 1992 (Id.) Pacific Lumber, however, never produced the original 1992 survey data sheets until the second day of the trial, more than two years after they were originally completed. (Id.; Pls. Exs. 292 and 293.) During the trial, Kerns testified that the original survey sheets were recently uncovered in his closet at home, which he referred to as WRM's "archives." (Kerns. Tr. 9/7/94 at 39.)

85. Further examination of the original NRM survey sheets reveals that Pacific Lumber did more than merely "replicate" data from one set of survey sheets to another. Many of the original NRM survey sheets contain pertinent informatin which may have helped the DFG evaluate the validity of Pacific Lumber's surveys and the inpact that harvesting THP-3237 would have on the marbled murrelet, including: field surveyors' references to adverse weather conditions which may have had an adverse impact on survey efforts; detections of predators such as ravens, stellar jays and hawks in and around THP-237; the degree of canopy coverage at the survey stations; characterists of the old-growth at the site; and surveyors references to whether the portion of the stand that they were surveying was suitable nesting habitat for the marbled murrelet. (Pls.' Ex. 292.) nearly all of these comments were delted or altered before the date was "replicated" onto the second set of survey sheets that Pacific Lumber submitted to the DFG.³⁹ (Pls.' Ex. 292-A-T.)

86. Pacific Lumber's performance concerning the reworking and withholding of the original survey data sheets materially weakens the "no-detection" premise that Speich and Kerns rely on for their opinions concerning occupancy. Consequently, these opinions are not sufficiently persuasive to dislodge a finding that EPIC has satisfied its burden of proof.

87. Finally, the court finds that Pacific Lumber's expert witnesses. Speich and Kerns, lack objectivity and credibility. Both Speich and Kerns have been paid substantial sums of money to conduct marbled murrelet research on behalf of the company, and to act as advocates for Pacific Lumber in various forums. Since 1990, Pacific Lumber has paid Kerns' firm, WRM, nearly one million dollars to conduct marbled murrelet surveys and research for the company.⁴⁰ (Tr. 9/8/94 at 161-62.) In addition, Kerns has participated in Pacific Lumber's interactin with state and federal agencies regarding the company's efforts to oppose the listing of the marbled murrelet as a protected species,to harvest THP-237, and to obtain an "incidental take" permit for the marbled murrelet.⁴¹ (Kerns, Tr. 9/7/94 at 153-58; Pls.' Exs. 96, 309 and 334.) Shortly before the marbled murrelet was listed as an "endangered species" by the State of California, Speich pitched his services as a "consultant" to Pacific Lumber's president, John Campbell, Kerns, and other Pacific Lumber officials, advising them to "get in front of the curve" on marbled murrelet research. (Speich, Tr. 9/8/94 at 38-41, 87.) Speich told Pacific Lumber's executives that "if they want to be able to continue [to] harvest timber, they're going to have to be able to demonstrate [the] relationship of marbled murrelet to those timbers that they are projecting to harvest." (Id. at 41.) One of Speich's first assignments was to testify before the California Fish and Game Commission in opposition to the State of California's listing of the marbled murrelet as an "endangered species" under CESA. (Id. at 41.) One of Speich's first assignments was to testify before the California's listing of the marbled murrelet as an "endangered species" under CESA. (Id. at 87-88.) Speich also submitted comments to the USF & WS criticizing the research upon which the federal listing of the marbled murrelet as a "threatened species" is based. (Id. at 88-89.) Since 1992, Pacific Lumber has paid Speich's consulting firm in excess of $ 250,000.00 for Speich's work regarding the marbled murrelet.⁴² (Id. at 92-93.)

88. Additionally, the expert reports of both Speich and Kerns were written with substantial input from Pacific Lumber's attorneys. Kerns repeatedly sought guidance from Pacific Lumber and its attorneys in crafting his expert report. (Kerns, Tr. 9/7/94 at 112-14.) After meeting with Pacific Lumber's attorneys, Kerns drafted and initial expert report which contained a series of outlines and proposed conclusions. (Id. at 112-13.) Kerns faxed his draft report to Pacific Lumber's attorneys and asked them "How much flesh should be hung on the bones?" (Id. at 113-14.) Kerns also reviewed and edited Speich's expert report. (Id. at 114.) Similarly, Pacific Lumber's attorneys gave Speich detailed instructions about what he should state in a sworn declaration that Pacific Lumber submitted to the California Court of Appeals in opposition to a temporary stay that the court had issued against THP-237. (Speich, Tr. 9/8/94 at 133-37; Pls.' Ex. 333.) In a letter dated December 1, 1992, Pacific Lumber's attorney, Frank Bacik stated:

The declaration should be simple and direct, stating that under your review of the facts and circumstances the Owl Creek plan area is not active murrelet site or "occupied" by murrelets that will be directly "taken." . . . In general, it should say that there is no proof, and you do not believe that there is available adequate evidence or proof, to establish that implementation of the plan will kill or injure murrelets or otherwise pose a devastating risk to the continued existence of the species; that they annot be annoyed if they are not present; that they will not be present during the non-breeding season (winter).

[25 ELR 21312]

(Pls. Ex. 333.) The testimony of Speich and Kerns during the trial in this case was identical to the declaration proposed by Bacik in 1992.

89. As the Ninth Circuit recently stated in Daubert:

One very significant fact to beconsidered [in the context of the court deciding whether to admit expert testimony] is whether the experts are proposing to testify about matters growing naturally and directly out of research that they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely asn an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is in the lab or the field, not the courtroom or the lawyer's office.

Daubert, 43 F.3d at 1317. This standard is equally applicable when weighing the credibility of an expert witness after he has testified. In this case, the court may not ignore the fact that the primary experience that Speich and Kerns have had with the marbled murrelet has grown out of their involvement with Pacific Lumber, for which they have been paid presumably fair and full compensation; that their trial testimony, which contradicted the generally accepted scientific knowledge about the marbled murrelet, appears to have been crafted by Pacific Lumber's attorneys; and that Speich and Kerns have acted as advocates for Pacific Lumber in a variety of forums, including during the trial in this case. For these reasons, the court finds that Speich and Kerns lack objectivity and credibility.

90. In sum, the court finds that there have been sufficient observations of "occupied behavior" in and aroundTHP-237 for th4e court to conclude that the Owl Creek stand is "occupied" by the marbled murrelet. See, infra, Section II-E. Pacific Lumber's attempt to minimize the significance of these detections is not persuasive because its evidence merely shows a variety of efforts by the company to avoid, or at least to discourage, the inevitable recording of detections ofmarbled murrelets, and to understate the importance of detections that recorded. The other evidence of nearly 100 detections, however, has demonstrated that these efforts failed. Finally, the opinions of Pacific Lumber's expert witnesses regarding the marbled murrelets' occupancy of THP-237 are unreliable, principally because they are dependent upon Pacific Lumber's discredited claims that marbled murrelets do not inhabit THP-237, all of which have been shown to be based on Pacific Lumber's survey methods and reporting of survey data which are unreliable.

H. Pacific Lumber's Implementation of THP-237 would both "Harm" and "Harass" the Marbled Murrelet

91. Under the ESA, it is illegal for any preson to "take" any endangered species of fish or wildlife within the United States or the territorial sea of the United States.⁴³ 16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as follows:

The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

16 U.S.C. § 1532(19).

92. The USF & WS has defined the word "harass" in the ESA's definition of "take" as:

an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.

50 C.F.R. § 17.3 (1993).

93. The USF & WS has defined the component terms "harm" as:

an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

Id.

94. EPIC has demonstrated that Pacific Lumber's implementation of THP-237 will sufficiently "harm" and "harass" the marbled murrelet to constitute a "taking" of the species in violation of 16 U.S.C. § 1538(a)(1)(B). 1. Harm

95. The proposed harvest area of THP-237 lies at the approximate center of the Owl Creek stand. Logging activities on THP-237 according to the plan, as amended, will result in the destructioni and degradation of occupied habitat, such that marbled murrelets will actually be killed or injured by the logging operations, or through significant impairment of their essential behavioral patterns. (Nelson, Tr. 8/16/94 at 70; Moore, Tr. 8/17/94 at 175-81.) Pacific Lumber's implementation of THP-237, which calls for the immediate removal of 40 to 60 percent of the old-growth redwood and Douglas fir trees in the proposed harvest area, will significantly impair the marbled murrelets' breeding behavior and decrease the chances of successful nesting. (Nelson, Tr. 8/16/94 at 69-73; Burkett, Tr. 8/18/94 at 262-65; Carter, Tr. 8/15/94 at 173-74.) Moreover, the harvesting of THP-237, or any other significant portion of the marbled murrelets' critical nesting habitat in southern Humboldt County, will result in a high probability that the remaining population of marbled murrelets in this region will become extinct. (Carter, Tr. 8/15/94 at 91-96; Pls.' Exs. 270 and 271.) The survivability of the marbled murrelet population, because the loss of this population will result in the loss of the marbled murrelet population throughout a significant portion of its range. (Carter, Tr. 8/15/94 at 94-95; Pls.' Exs. 270 and 271.)

96. Removing more than half of the trees in the 137 acre harvest area will result in the loss of a substantial portion of thenesting opportunities for marbled murrelets returning to the harvest area. (Moore, Tr. 8/17/94 at 154,166.) The retention of a relatively small portion of suitable marbled murrelet habitat within the stand will not reduce the impact of the harvesting of THP-237 to a level of insignificance. Given the immensity of the old-growth trees, the felling of any one tree inevitably causes damage to other trees around it, and the harvest of any one part of the stand willdegrade the suitability of the entire stand as nesting habitat for marbled murrelets. (Id. at 154-55.)

97. Since marbled murrelets return to the same tree or groups of trees in consecutive years, the harvest of half of the trees in the centerof the stand will likely cause returning marbled murrelets to become disoriented and significantly decrease the likelihood that they will be able to successfully nest and raise their young to fledgling. (Nelson, Tr. 8/16/94 at 70-71.) If THP 237 is implemented, marbled murrelets returning to the Owl Creek stand will be subject to increased competition for the few remaining nest sites, and some individual marbled murrelets will likely fail to nest sites. (Id.)

98. The remaining Owl Creek stand will be much more open and fragmented, a condition that will increase the likelihood of avian predation upon the remaining marbled murrelets who achieve nesting, their eggs, and their young. (Burkett, Tr. 8/18/94 at 263-64; Carter, Tr. 8/15/94 at 111.) In fact, an examination of the original NRM survey sheets from the 1992 survey season reveals that a number of marbled murrelet predators have been detected in and around the Owl Creek stand, including in the harvest area itself.⁴⁴ (Pls.' Ex. 292.)

[25 ELR 21313]

99. The loss of canopy which will occur if THP-237 is implemented will force returning murrelets to attempt to nest in the degraded nest sites, or be forced to attempt nesting in substandard habitat. (Burkett, Tr. 8/18/94 at 264-65; Moore, Tr. 8/18/94 at 59.) Nesting in substandard habitat will also subject the marbled murrelets faced with nesting in substandard habitat will simply choose not to nest. (Id.)

100. While marbled murrelets fly inland in greater numbers during the nesting season, there is evidence that murrelets visit inland sites year-round. (Nelson, Tr. 8/16/94 at 20-21, 28 and 50; Carter, Tr. 8/15/94 at 109, 131; Speich Tr. 9/8/94 at67.) Therefore, it is likely that marbled murrelets use THP-237 and the Owl Creek forest during non-nesting times of the year. (Carter, Tr. 8/15/94 at 109.) Year-round use of inland sites is documented in the region. (Nelson, Tr. 8/16/94 at 50; Speich, Tr. 9/8/94 at 67.) Consequently, the court finds that the proposed logging of THP-237, even outside of the nesting season, will "harm" the marbled murrelet by destroying its critical nesting habitat. (Burkett, Tr. 8/18/94 at 270.)

2. Harass

101. Implementing the proposed timber harvest plan during the breeding season creates the likelihood of injury to marbled murrelets by annoying them to such an extent that it will significantly disurpt their normal behavioral patterns. (Nelson, Tr. 8/16/94 at 70.) This was clearly demonstrated by the precipitous decline in marbled murrelet detections at THP-237 in July 1992, after Pacific Lumber conducted logging oeprations at the beginning of what should have been the peak period for marbled murrelet detectability. (Id. at 67; Moore, Tr. 8/17/94 at 151-52.)

102. Pacific Lumber maintains that by harvesting THP-237 during the fall or spring, it will successfully avoid harassing murrelets because they are not in the stand. At this time, it is impossible to determine whether Pacific Lumber's argument is correct. Marbled murrelets are known tofly inaldn during the non-breeding season; however, no surveys have been taken in Owl Creek during this period. Nevertheless, in light of the court's finding that harvesting in Owl Creek at any time of the year will "harm" the marbled murrelet, the court will not lift the injunction to allow Pacific Lumber to harvest THP-237 during the non-breeding season.

I. Permanent Injunction

103. In cases involving the ESA, Congress has removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties; competing interests. TVA v. Hill, 437 U.S. 153, 173, 187-88, 98 S. Ct. 2279, 2291, 2298-99, 57 L. Ed. 2d 117 (1978); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.1987). In TVA, the Supreme Court stated that the "language, history, and structure" of theESA demonstrates Congress' determination that the balance of hardships and the public interest tip heavily in favor of endangered species. TVA, 437 U.S. at 174, 187-88, 194-95, 98 S. Ct. at 2292, 2298-99, 2301-02. Thus, the court "may not use equity's scales to strike a different balance." Marsh, 816 F.2d at 1383.

104. To prevail in an injunctive proceeding under theESA, the plaintiff must show that a "violation of the ESA is at least likely in the future," or that there is "a definite threat of future harm to [a] protected species." Burlington Northern, 23 F.3d at 1512, n. 8. Future harm to a species need not be shown with certainty before an permanent injunction may issue, but "mere speculation" will not suffice. Id.

105. In this case, EPIC has demonstrated that Pacific Lumber's proposed implementation of THP-237 imposes a definite threat of future harm to the marbled murrelet. The harvesting of THP-237 will likely cause a violation of the ESA by sufficiently degrading the birds' critical nesting habitat to the extent that it will significantly impair themarbled murrelets' essential behavioral patterns, including breeding, feeding and sheltering. Consequently, EPIC has demonstrated that a permanent injunction is warranted in this case.⁴⁵

III. CONCLUSIONS OF LAW

106. Pacific Lumber's implementation of THP-237 will "harm" the marbled murrelet as defined in 50 C.F.R. § 17.3, and thereby cause a "take" of the species in violation of 16 U.S.C. § 1538(a)(1)(B).

107. Pacific Lumber's implementation of THP-237 will "harass" the marbled murrelet as defined in 50 C.F.R. § 17.3, and thereby cause a "take" of the species in violation of 16 U.S.C. § 1538(a)(1)(B)/

108. A permanent injunction prohibiting Pacific Lumber's implementation of THP-237 is warranted under 16 U.S.C. § 1540.

109. Plaintiffs are entitled to recover their costs, including reasonable attorney and expert witness fees, in accordance with 16 U.S.C. § 1540(g)(4). [25 ELR 21314]

APPENDIX A

(Excerpted from Plaintiffs' Exhibit 285 and Defendant's Exhibit 841, and directional arrow added for clarity)

[SEE MAP IN ORIGINAL]

1. The administrative record filed by the parties is identified by the abbreviations ARBD and AR. Each volume of the administrative record is numbered. Court citations to the administrative record are to the volume and page within.

References to documents in the Clerk's docket file are by document number ("Doc. No.").

A glossary of abbreviations and acronyms is attached for the convenience of the reader.

2. According to the intervenors, who hail from the area, the Mid-Mon Valley is the area along the Monongahela River below the Allegheny County line to Brownsville in Fayette County. Interv. Br. at 5.

3. Note that ARBD 35, the Mon Valley/Fayette Expressway Needs Document (Sept. 21, 1990), over an inch thick, has no page numbers. We have tabbed the pages we cite.

4. The conference was attended by representatives of, among other agencies, the Federal Highway Administration ("FHWA"), the U.S. Environmental Protection Agency ("EPA"), the Army Corps of Engineers, the Commmission, PennDOT, the Pennsylvania Department of Environmental Resources, the Southwestern Pennsylvania Regional Planning Commission, the Allegheny, Fayette, and Washington County Planning Commissions, and the City of Pittsburgh Department of Planning.

5. The judicial review section of the APA provides in part:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

. . .

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

. . .

In making the foregoing determinations, the court shall review the whole record or those parts of its cited by a party, and due account shall be taken of the rule of prejudicial error.

5 U.S.C. § 706.

6. Plaintiffs cite the "general judicial review standards" of the APA in passing on page 42 of their brief in support of final injunctive relief. Defendants do not cite the APA in their 89 page summary judgment brief, though they do so in their reply brief.

7. The Third Circuit has found the principle of according deference to agency interpretations of statutes misapplied under certain circumstances. For example, deference is not justified when the agency's interpretation is inconsistent with the statutory mandate, Dept. of the Navy v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988), cert. dismissed, 488 U.S. 881, 109 S. Ct. 632, 102 L. Ed. 2d 170 (3d Cir. 1988); when the agency interprets a general statute, id.; when the agency has no special expertise in the area, id.; or when the agency interprets another agency's statute or resolves a conflict between its own statute and that of another agency, Dept. of the Navy v. FLRA, 836 F.2d 1409, 1410 (3d Cir. 1988).

8. The court does not cite the APA in Township of Springfield. Concord Township cites the APA, but does not involve review of an EIS; it concerns review of a decision not to prepare an EIS at all. As the court there notes, this implicates a standard of review based on reasonableness. 625 F.2d at 1073-74.

9. FHWA regulations take much the same approach. "Action" is defined as "A highway or transit project proposed for FHWA or UMTA funding." 23 C.F.R. § 771.107(b) (1993). 'The provisions of this regulation and the CEQ regulation apply to actions where the [Federal Highway] Administration exercises sufficient control to condition the permit or project approval. Actions taken by the applicant which do not require Federal approvals, such as preparation of a regional transportation plan are not subject to this regulation." 23 C.F.R. § 771.109(a)(1) (1993).

10. The Court went even further in Kleppe. Even when several related proposals are actually pending before an agency, the agency might properly approve one project without a cumulative EIS; if other related projects are later approved, the agency could consider the cumulative impact of the first at that time. 427 U.S. at 414 n. 26, 96 S. Ct. at 2733.

Citing Kleppe, the Fifth Circuit has stated that "each element of the plan when proposed will be subject to such analysis, and as we have held, the analysis at that time should take into consideration any prior approved projects which affect the environment as part of the existing background of the proposal." Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 438 (5th Cir.1981) (emphasis added).

11. The Agencies have studied the traffic impact of the I-70 to Route 51 road two miles north of the terminus on Route 51. They have also studied and made plans to mitigate the effects of the additional traffic the new road will add to Route 51. ARBD 27 at IV-9 to IV-13.

12. This subsection states in full:

Cumulative impact is 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 (1993) (italics in original).

13. While not conclusive evidence of relatedness, plaintiffs' claim is lent credence by the fact that one federal agency, the United States Fish and Wildlife Service, favored an environmental impact study of the entire I-70 to Pittsburgh corridor. ARBD 32 at 5; ARBD 28 at VIII-35. The remaining federal and three state agencies support the project as set forth in the FEIS.

In addition, we note that the court of appeals in Save Barton Creek, 950 F.2d at 1140, went on to carry out a segmentation analysis even though it had already found the absence of federal involvement to trigger NEPA's requirements.

14. In many of the cases cited by the parties, and certainly in this case, cumulative impact and segmentation claims are different sides of the same coin, segmentation being the term used to describe the positive act of dividing related projects, and failure to consider cumulative impact being the corresponding act of omission. We consider the claims to have the same prospective legal consequences in this case: the possibility of remand to the Agencies for additional study.

15. As stated by the court:

To determine the appropriate scope for an EIS courts have considered such factors as whether the proposed segment (1) has logical termini, (2) has substantial independent utility, (3) does not foreclose the opportunity to consider alternatives, and (4) does not irretrievably commit federal funds for closely related projects.

Piedmont Heights, 637 F.2d at 439.

16. Courts routinely cite and follow these FHWA regulations in segmentation cases, but they have not been described as mandatory. See, e.g., Coalition on Sensible Transportation, Inv. v. Dole, 826 F.2d 60, 68 (D.C.Cir.1987) (a "number of courts have relied on the same or closely similar factors in their segmentation determinations," without actually citing this regulation itself) (emphasis added); Save Barton Creek, 950 F.2d at 1140 and n. 15 ("Segmentation becomes suspect . . . only after an evaluation of such factors as" those "embodied" in the FHWA's regulations) (emphasis added); Dickman v. City of Santa Fe, 724 F. Supp. 1341, 1345 (D.N.M.1989) ("A number of factors" which courts have considered in segmentation analysis "derive from" 23 C.F.R. 771.111(f)). The FHWA regulations echo the four factors identified in Piedmont Heights, with the exception of the "irretrievable commitment of federal funds," element of the test.

Courts still cite the Piedmont Heights factors, alone or with the FHWA regulations, in describing agency responsibility to consider impacts from related projects. See, e.g. Save Barton Creek, 950 F.2d at 1140; Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298-99 (D.C.Cir. 1987).

The court reviews this background chiefly for the sake of clarity. Plaintiffs ultimately rely only on 23 C.F.R. § 771.111(f)(1) and (3).

17. Plaintiffs do not challenge the validity of the southern terminus.

18. "Judges are neither scientists nor technicians; if judicial review of agency decisionmaking is to be productive and profitable, courts must insist that litigants provide them with sufficient information and analysis to assess critically the validity of the allegedly improper agency action." Lower Alloways Creek Township v. Public Service Elec. & Gas Co., 687 F.2d 732, 743 (3d Cir.1982).

19. The Court will order the letter filed.

20. Compare Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Commission, 869 F.2d 719, 725 (3d Cir.1989), where the Third Circuit "determined that the CEQ guidelines are not binding on an agency that has not expressly adopted them." See also Lower Alloways Creek Township v. Public Service Electric & Gas Co., 687 F.2d 732, 740 (3d Cir.1982) (CEQ regulations are "guidance" in interpreting NEPA language).

21. Thus, the element of the FHWA regulations that plaintiffs did not specifically challenge is included in the analysis under the CEQ regulations, which obviously overlap in their application. See 23 C.F.R. § 771.111(f)(2).

22. As the D.C. Circuit has found,

It is inherent in the very concept of a highway network that each segment will facilitate movement in many others; if such mutual benefits compelled aggregation, no project could be said to enjoy independent utility. The proper question is whether one project will serve a significant purpose even if a second related project is not built.

Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 69 (D.C.Cir.1987). See also Save Barton Creek, 950 F.2d at 1142 ("All proposed highways, when constructed, must eventually connect to an existing highway. Every roadway section that is added to a highway network is dependent upon and connected to the rest of the network.").

23. Intervenors challenge plaintiffs' preservation of this issue, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S. Ct. 1197, 1216, 55 L. Ed. 2d 460 (1978). Vermont Yankee cautions courts against allowing manipulation of these types of claims by commentators who half-heartedly raise questions during the administrative process, and then claim in court that the agency did not fully consider the alternatives they "raised." See Lake Erie Alliance, 526 F. Supp. at 1072.

The forcefulness with which the plaintiffs raised the Route 51 South upgrade alternative is indeed questionable. It appears that the only time this option was suggested to the Agencies outside of general public comment was in a November 2, 1992 letter from Raymond Reaves, Director of the Allegheny County Planning Department, to the Commission. See Pls' Supplement to Administrative Record, Doc. No. 29, Ex. 3. It is not clear whether or to what extent plaintiffs pursued this suggestion. Nevertheless, because this suggestion was communicated directly to the Commission by a person in a position intimately related to transportation planning, we will review plaintiffs' claim.

24. CEQ regulations provide that, "for alternatives which were eliminated from detailed study, [agencies shall] briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a) (1993).

25. The Third Circuit once found that "the four-volume FEIS itself attests to the attention paid to alternatives and mitigative measures." Township of Springfield, 702 F.2d at 442. We make a similar observation about the two-volume FEIS submitted in this case.

26. "Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988).

27. We recognize, as defendants point out, the inconsistency of plaintiffs' indictment of the traffic conditions on Route 51 North. Earlier in their brief plaintiffs argued in favor of an upgrade of Route 51 South as an unstudied alternative to the I-70 to Route 51 road. Route 51 South carries vehicles to the same congested Route 51 North. This observation drains some significance from their allegation of the seriousness of the congestion problem.

3. The CESA protects endangered species within their habitat in California. The CESA, however, differs from the ESA in several respects. It does not provide the same protection as the ESA because it does not include the federal definitions of "harm" or "harass" in its definition of the term "take." (Moore, Tr. 8/17/94 at 148.) In fact, unlike the ESA, the CESA is neither interpreted nor explained by any regulations which define key terms used in ire prmnsions. (PLs." Ex. 334 at III-2.) Moreover. the CESA makes no provision for designating or protecting critical habitat for a species, nor does it expressly include habitat modification as a type of prohibited taking. (Id.)

4. Under the ESA, the term "threatened species" means any species which is likely to become in danger of extinction within the foreseeable future through all or a significant portion of its range. 16 U.S.C. § 1532.

5. Alcids are wing-propelled diving seabirds that subsist on small ocean fish. (Carter, Tr. 8/15/94 at 58-59; Nelson, Tr. 8/16/94 at 18.)

6. The marbled murrelet's nesting habits were a mystery until relatively recently. (Nelson, Tr. 8/16/94 at 15; Carter, Tr. 8/15/94 at 58, 67-68.) The first marbled murrelet nest was discovered in 1974. (Nelson, Tr. 8/16/94 at 13, 53; Carter, Tr. 8/15/94 at 66-68.) A second nest was not found until 1989. (Nelson, Tr. 8/16/94 at 28.) Since that time, only 71 nests have been discovered in the Pacific Northwest, of which only nine were in California. (Id. at 25, 90.)

7. A "stand" is a contiguous grouping of trees that exhibit characteristics suitable for marbled murrelet nesting. (Moore, Tr. 8/17/94 at 158.)

8. In an attempt to minimize the significance of its logging operations in southern Humboldt County, Pacific Lumber has estimated that only 71 marbled murrelets inhabit the coastal near-shore waters between Eureka and Pillar Point, California during the summer breeding seasons. (Pls.' Ex. 334, Table V-2, see also Carter, Tr. 8/15/94 at 85-86.)

9. According to the DFG's June 1991 "Status Review of the Marbled Murrelet," the remaining marbled murrelet population in California is so fragile that, unless it is allowed to regenerate, the entire population could be eliminated by a single off-shore catastrophic event, such as an oil spill, from the effects of gill-netting, or from the loss of the murrelets' principal food source during an El Nino-type oceanic event. (Pls.' Ex. 251 at 3.)

10. Under the ESA, "critical habitat" is defined as "the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection[.]" 16 U.S.C. § 1532(5)(A); 50 C.F.R. § 424.02(d). When the marbled murrelet was listed as a "threatened species" on September 28, 1992, the USF & WS lacked sufficient information to perform the required analyses of the environmental and economic impact of a critical habitat designation for the species. 57 Fed.Reg. 45328, 45336 (Oct. 1, 1992). At the time, the USF & WS stated that it needed to "carefully study all known occupied sites and other suitable areas, in order to determine which physical or biological features are in fact essential to the conservation of the murrelet." (Id.) The MMRT is part of this effort.

11. The Secretary of the Interior may permit the taking of a protected species "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). Such takings cannot occur, however, until an applicant submits, and receives approval of, a habitat conservation plan as outlined in 16 U.S.C. § 1539(a)(2). On October 11, 1993, Pacific Lumber submitted a draft habitat conservation plan ("HCP") for the preservation of the marbled murrelet on its property in Humbolds County to the DFG and USF & WS in connection with the company's application for an "incidental take" permit for the marbled murrelet under § 1539(a)(2). (Pls.' Ex. 334.) Pacific Lumber's HCP contains a numerical ranking system that the company devised "as a means to quantitatively evaluate the potential suitability and importance of areas of timber [on Pacific Lumber property for nesting marbled murrelets." (Id. at VII-2.) The suitability of Pacific Lumber's property as nesting habitat for the marbled murrelet is ranked on a scale from 0 to 5, with 5 being the most suitable and important habitat based on the size of the trees in the stand and the density of canopy closure. (Id.) Pacific Lumber has developed a map of its property applying the suitability rankings in the HCP. (Pls.' Ex. 329.) On this map, the proposed harvest area of THP-237 is ranked 5, while the proposed retention area is ranked 4. (Id.)

12. An approved timber harvest plan is required by the State of California as a prerequisite to the conduct of commercial timber operations within the state. (Miller, Tr. 8/16/94 at 152.)

13. When THP-237 was originally filed with the CDF, the marbled murrelet was not yet protected by either state or federal law. However, the California Fish and Game Commission had already received a petition requesting state listing of the marbled murrelet as a threatened species under CESA, and the DFG was in the process of conducting a 12 month review of the species' status in accordance with § 2704.6 of CESA. (Pls.' Ex. 251 at 7.)

14. Defendant's Exhibit 818 is a map of THP-237, as amended.

15. The PSG Protocol is the generally accepted scientific methodology employed to determine whether marbled murrelets are located in, or making use of, a particular inland forested site for nesting purposes. (Nelson, Tr. 8/16/94 at 27-28.) The PSG Protocol has been adopted for use by the United States Forest Service, the United States Bureau of Land Management, and the state fish and wildlife agencies of Washington, Oregon and California. (Id. at 29, 32-34; Pls.' Exs. 272, 273, 274 and 277.) In addition, on March 5, 1992, the California Board of Forestry adopted the PSG Protocol for use by CDF and DFG to determine whether a proposed timber harvest plan will result in a "take" of a marbled murrelet where there is evidence of an active marbled murrelet site in or adjacent to the THP area, or where there is evidence of a potential impact to a marbled murrelet from the proposed logging operations. 14 C.C.R. §§ 919.11 and 1036.1. According to Ken Moore ("Moore"), a wildlife biologist with the California DFG, the DFG believes that the PSG Protocol "is the best thing out there that anybody has been able to produce that will give the highest probability to find marbled murrelets in any given inland site." (Moore, Tr. 8/17/94 at 135.) Given the PSG Protocol's nearly universal acceptance by the scientific community and public agencies charged with enforcing the ESA, the court finds that the PSG Protocol fulfills the requirements set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

16. The court will refer to the PSG's 1991, 1992, 1993 and 1994 protocols collectively as the "PSG Protocol." Where specific references to a particular protocol are necessary, the court will include the year of the protocol.

17. In fact, because marbled murrelet nests are so difficult to find, their nests have been found in only a small percentage of the forests classified as "occupied" by the PSG Protocol. (Nelson, Tr. 8/16/94 at 54.)

18. The PSG Protocol defines "potential habitat" as: (1) mature and old-growth coniferous forests; and (2) younger coniferous forests that have deformations or structures suitable for nesting. (Pls.' Ex. 277 at 3.) The second part of this definition was added in 1994 after marbled murrelets were observed in younger coniferous forests. (40-80 years old) in Washington and Oregon. (Id.)

19. The PSG Protocol defines a "survey" as "the process of determining marbled murrelet presence, absence, and occupancy of a stand by conducting survey visits." (Pls.' Ex. 277 at 3.) A "survey visit" is a single two hour survey completed by one surveyor at one survey station. (Id.)

20. The 1993 PSG Protocol notes that "occupied behaviors" have been recorded in only three percent of the closed canopy sites that have been surveyed. (Pls.' Ex. 274 at 11-12.)

21. According to the PSG Protocol, "subcanopy behaviors in a stand, while not necessarily indicating nesting, means either nesting could occur at some time, or the stand could be used for purposes other than nesting that are essential to the life history of the bird." (Pls.' Ex. 277 at 13.)

22. "Canopy height" is defined as the height of the tallest trees that can be seen from a survey station. (Nelson, Tr. 8/16/94 at 48.)

23. Stations 1 through 9 extend from the northern boundary of THP-237 through the Owl Creek forest to a point almost one mile north. (Def's. Ex. 841.) Stations 10, 11, 13 and 14 are located in the proposed harvest area. (Id.) Stations 15, 16, 17, 18 and 19 are located to the south of THP-237. (Id.) Stations 12 and 16 are located just outside the western edge of THP-237 in an area that has previously been harvested. (Id.;Pls.' Ex. 292.) A map of Pacific Lumber's survey stations is attached as Appendix A.

24. All of the surveyors were certified by the State of California as qualified to perform marbled murrelet surveys. (Kerns, Tr. 9/7/94 at 23-24.) Pacific Lumber's employees became certified as marbled murrelet observers "because the company asked us to." (Beck, Tr. 8/16/94 at 204-05.)

25. WRM is a proprietorship owned by Pacific Lumber's expert witness, Steven Kerns, and his wife. (Kerns, Tr. 9/7/94 at 167.) Although Kerns was proffered by Pacific Lumber as an expert on the marbled murrelet, he does not have either a masters or doctorate degree in biology (he has an undergraduate degree in anthropology and biology), he never observed a marbled murrelet until 1988, and he did not become a certified marbled murrelet surveyor until 1993. (Id. at 118.) Moreover, all of Kerns' marbled murrelet research has been conducted exclusively for Pacific Lumber. (Id. at 118-19.) Since 1990, Kerns' firm, WRM, has been paid $ 942,000.00 to conduct marbled murrelet research for Pacific Lumber. (Tr. 9/8/94 at 161-62.) Additionally, WRM is given the use of a house in Pacific Lumber's company town, Scotia, California virtually free of charge. (Herman, Tr. 9/6/94 at 165-66; Kerns, Tr. 9/6/94 at 243.) When WRM personnel attend professional conferences, Pacific Lumber pays all of their travel costs. (Kerns, Tr. 9/7/94 at 164-65.)

26. Station 16 was the only station surveyed in Owl Creek on April 29, 1992. If more stations had been surveyed on this date, it is likely that more information would be available about the behavior of the 16 murrelets detected by Denison, and other murrelets that may have been present in the Owl Creek stand on that day.

27. Plaintiffs' Exhibit 292 is a compilation of the original survey data sheets from the 1992 survey season. Some, but not all, of the data sheets in Plaintiffs' Exhibit 292 are also designated alphabetically. Wherever possible, the court will refer to a particular survey data sheet by its numerical and alphabetical designation. If the data sheet does not have an alphabetical designation, the court will refer to the survey sheet as Plaintiffs' Exhibit 292, but the date of the survey and the survey station also will be referenced.

28. The significance of Fortna's "jet sound" detection is not reduced because he did not see a marbled murrelet. As previously noted, very few marbled murrelet detections in California are visual detections. Also, several Pacific Lumber surveyors indicated that June 8, 1992 was a day with 100 percent cloud cover and heavy fog. One surveyor even indicated that the fog "cut what visibility there was down to nothing." (Pls.' Ex. 292-P.)

29. In fact, Fortna's original "jet sound" survey sheet is no longer in existence. Pacific Lumber's Chief of Forestry, Ray Miller, testified at the trial that Fortna's original survey sheet was "lost." (Miller, Tr. 8/16/94 at 168.) Miller replaced the original "jet sound" survey sheet with another survey sheet that he personally filled out, except Miller changed the new survey sheet to indicate "No Detections." (Id. at 165-66; Pls.' Ex. 41.) On the second day of trial, Pacific Lumber produced a copy of a survey data sheet for Station 17 on June 8, 1992 which indicates "No Detections;" however, somebody has written: 'This ain't my writing!" underneath the words "No Detections." (Pls.' Ex. 292-Q.)

30. Moore is one of the DFG biologists responsible for determining whether a "take" of a protected species will occur during the implementation of a proposed timber harvest plan. During the trial, Moore testified that it was customary for Pacific Lumber to submit wildlife survey data, a map of survey stations, an aerial photograph of the affected timber harvest plan area, along with the narrative summary of survey results to the DFG, and for the DFG and Pacific Lumber to consult about the wildlife survey results before the DFG would approve timber harvest operations. (Moore, Tr. 8/17/94 at 124-28.) In this instance, Miller's letter did not enclose either survey data sheets or aerial photographs of THP-237, nor were any consultations held regarding the survey results.

31. Moore received Miller's letter on Saturday, June 20, 1992, the day after harvesting began, and immediately sent a response to Pacific Lumber via facsimile. (Moore, Tr. 8/17/94 at 127-29, 132-33; Pls.' Ex. 10.) On that Saturday, Moore was not aware that harvesting operations had begun the day before in THP-237, and he did not become aware of it until he was called in from the field on Monday, June 22, 1992 to discuss the logging. (Id. at 130, 150-51.)

32. Despite the PSG Protocol's recommendations that surveyors should avoid placing survey stations near loud noise sources, both Goggin and Conrad indicated that creek noise in the vicinity of Stations 20 and 21 had an adverse impact on their surveys. (Pls.' Ex. 292.)

33. Herman is also the person who was ultimately responsible for the conduct of Pacific Lumber's marbled murrelet surveys in THP-237.

34. It is not surprising that the surveyors failed to find eggshell fragments in the vicinity of Station 7. There has never been a marbled murrelet detection at Station 7. In fact, some of the Pacific Lumber surveyors who have visited the site have commented that it is questionable marbled murrelet habitat because of its elevation, the presence of corvids, and almost complete canopy closure. (Pls.' Exs. 292-A, 292-C, 292-P and 292-S.)

35. During the trial, Penney testified that, after he was finished surveying at Station 6 on July 11, 1994, he was called at home by Tad Diaz ("Diaz"), the head supervisor for WRM's Marbled Murrelet Team, and told that he would have to go back to Station 6 the following day to "review" his detection. (Id. at 113-14.) According to Penney, Diaz told him the detection was "a real big deal" and "the lawyers would be all over this." (Id.) Only July 12, 1994, Penney was made to revisit the site and write out a narrative of his detection. (Id. at 119-22; Pls.' Ex. 278, 290 and 291.) During the drive back to Station 6, Diaz told Penney there was "politics" involved in the marbled murrelet study at THP-237 and "there's a lot of money tied up in this stand." (Penney, Tr. 8/18/94 at 117-18.) While at Station 6, Diaz informed Penney that ground searches would be conducted in the area of Station 6, but he said "we'll probably lose our contract if we find anything." (Id. at 132-33.) Penney was told not to tell anyone of his conversation with Diaz. (Id. at 122.) In spite of what was obviously an attempt on behalf of Pacific Lumber to encourage Penney to reconsider this July 11, 1994 detection, Penney's account of this detection was never wavered. (Id. at 120.)

36. One week after Penney observed the marbled murrelets flying below the canopy at Station 6, Penney detected the bird's distinctive wing beats, another indication of "occupied behavior," while surveying in oc. (Penney, Tr. 8/18/94 at 111-13.) Penney indicated this detection on his survey from however, when attempted to hand in the form to WRM, he was told by his supervisor, John Eldridge, that he was not allowed to write down a detection unless he actually saw a marbled murrelet or heard it vocalizing. (Id.) Penney had to fill out a second survey sheet, this time omitting any reference to his detection of the marbled murrelet's distinctive wing beats. (Id.)

37. During the trial, Pacific Lumber's expert witnesses, Speich and Kerns, maintained that the proposed harvest area of THP-237 contained less suitable habitat for the marbled murrelet than the proposed retention area. (Speich, Tr. 9/8/94 at 47, 54, 64-65; Kerns, Tr. 9/7/94 at 47-48, 101.) Their testimony on this issue, however, is entirely contradicted by Pacific Lumber's HCP, which Speich and Kerns helped prepare for the company, and Pacific Lumber's map of the most suitable nesting habitat for the marbled murrelet on company property. (Pls.' Exs. 329 and 334.) The map, which was produced for the first time on September 7, 1994, the second to last day of the trial, identifies the proposed harvest area of THP-237 as some of the most suitable habitat for the marbled murrelet on Pacific Lumber's property. (Speich, Tr. 9/87/94 at 146-52; Pls.' Ex. 329.) Theproposed retention area, however, is classified as less suitable than the proposed harvest area. (Pls.' Ex. 329.) After carefully conparing the testimony of Speich and Kerns with Pacific Lumber's map and HCP, the court finds that the testimony of Speich and Kerns on the issue of suitable habitat lacks credibility.

38. David Fortna's June 8, 1992 "jet sound" data sheet was never provided to the DFG, and the DFG was not informed of its existence; instead, the DFG was given the substitute form filled in by Miller which incorrectly indicated that "no detections" had been made. (Miller, Tr. 8/16/94 at 167-69.)

39. For example, while surveying at Statin 10 on April 30, 1992, NRM surveyor Sean McAllister recorded two audible detections of marbled murrelets engaging in unknown behavior at a height of 50 meters. (Pls.' Ex. 292-Q.) McAllilster noted on his original survey sheeet that "heavy fog, nearby creek noicse may have affected further detections." (Id.) McAllister's original notation was changed to "havey fog, creek noise" on the survey sheet that Pacific Lumber submitted to theDFG and EPIC. (Pls.' Ex. 293-Q.) Similarly, on the same day, NRM surveyor Dirk Embree recorded seven audible detections of marbled murrelets were "fairly close, but in fog." (Id.) He also noted: "Foggy, rainy, windy, near creek, all these had definite impact on survey." (Id.) Embree's notations were altered in the sheet that Pacific Lumber turned over to the DFG. In what is obviously different handwriting, the note section on the second survey sheet was changed to read: "[birds] way up in fog. . . . thefog, rain, wind all had an impact on detections. Visibility as low as 100m." (Pls.' Ex. 293-T.) Also, after surveying at Station 11 on June 2, 1992. McAllister noted on his original survey sheet: "Mature stand of redwood and Douglas Fir, 2'-8' dbh[.] Good MaMu nest characteristics but NO DETECTIONS[.]" (Pls.' Ex. 292-M.) McAllister also noted the presence of a stellar jay. (Id.) During Pacific Lumber's "replication" process, McAllister's notations about the stand's characteristics and the presence of a predator species were deleted. (Id.) The survey sheet that Pacific Lumber turned over to theDFG simply indicated that McAllister made "NO DETECTIONS." (Id.) Stations 10, 11 and 14 are all in the proposed harvest area.

40. This figure does not include any money which Pacific Lumber paid Kerns for appearing and testifying at trial. Additionally, WRM's marbled murrelet work has been performed exclusively for Pacific Lumber. (Kerns, Tr. 9/7/94 at 118-19.)

41. During the trial, Kerns denied that he has acted as an advocate for Pacific Lumber. However, during cross-examination, Kerns demonstrated a lack of objectivity when he complained about the DFG's lack of "sensitivity" to the economic realities of the logging industry. Kerns testified:

I think members of the Department lack sensitivity to the reality of what has to happen in the field when they ask for certain mitigations and certain research projects. . . . I think what they fail to realize at times is that when you are not supported by the government and you have to earn your own living, you have to run in the black. And that . . . you have to produce something from the ground to do that. If you demand so much from them that you put them in red, you will put them out of business. And I think a state agency should be receptive to that. And I'm speaking not as a biologist, but [as] a citizen of this state who has witnessed a hardship in our area because a lot of people have gone out of business.

(Kerns, Tr. 9/7/94 at 162-63.)

42. This figure does not include money paid to Speich for appearing and testifying at trial.

43. Pursuant to 50 C.F.R. § 17.31(a), threatened species are entitled to the same protection as endangered species. See also 16 U.S.C. § 1533(d).

44. One NRM surveyor even noted that he observed a northern spotted owl being "mobbed by stellar jays as it came out of the clear cut area to the north" of THP-237. (Pls.' Ex. 292, Station 2, June 9, 1992.)

45. Even under the traditional balancing of the equities test, EPIC has demonstrated that a permanent injunction is warranted in this case. Pacific Lumber may not be forever foreclosed from harvesting THP-237. If Pacific Lumber can establish through reliable surveys, conducted by an independent and impartial third party in strict compliance with the PSG Protocol, that THP-237 is not "occupied" by the marbled murrelet, it could seek to have the injunction lifted or modified. Also, Pacific Lumber could submit, and receive approval of, a habitat conservation plan in accordance with 16 U.S.C. § 1539(a)(2). Although Pacific Lumber has already submitted a draft HCP to the DFG and USF & WS, to the extent that this HCP is based on the survey techniques employed by Pacific Lumber at THP-237, the court believes that its reliability is highly suspect.

25 ELR 21288 | Environmental Law Reporter | copyright © 1995 | All rights reserved