Michael W. Graf (CA Bar # 136172)
227 Behrens Street
El Cerrito CA 94530
Telephone: (510) 525-7222
Facsimile: (510) 525-1208
Rachel M. Fazio (CA Bar # 187580)
P.O. Box 697
Cedar Ridge, CA 95924
Telephone: (530) 273-9290
Facsimile: (530) 273-9260
Attorneys for Plaintiffs Forest Issues Group,
California Native Plant Society, California Indian Basketweavers Association,
Sierra Foothills Audubon Society, and South Yuba River Citizens League
Patrick Gallagher (CA Bar No.146105)
Sierra Club
85 Second Street
San Francisco, CA 94104
Telephone: (415) 977-5709
Facsimile: (415) 977-5793
Attorney for Plaintiff Sierra Club - Mother Lode Chapter
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FOREST ISSUES GROUP, CALIFORNIA NATIVE PLANT SOCIETY, CALIFORNIA INDIAN BASKETWEAVERS ASSOCIATION, SIERRA CLUB - MOTHER LODE CHAPTER, SIERRA FOOTHILLS AUDUBON SOCIETY, and SOUTH YUBA RIVER CITIZENS LEAGUE, non-profit organizations,
Plaintiffs,
v.
STEVEN EUBANKS, in his official capacity as Forest Supervisor; SAM WILBANKS in his official capacity as District Ranger; and UNITED STATES FOREST SERVICE,
Defendants)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
JURISDICTION
1. This Court has jurisdiction over this action by virtue of 28 U.S.C. § 1331 (action arising under the laws of the United States) and 5 U.S.C. § 702 (Administrative Procedure Act). An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a). This Court may grant declaratory relief and additional relief, including an injunction, pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. §§ 705 and 706. The defendants’ violations of NEPA and NFMA are subject to judicial review under the APA, 5 U.S.C. § 702.
2. As described below, plaintiffs have exhausted all administrative remedies available to them, pursuant to 36 C.F.R. Part 215.18(c). Final agency action exists that is subject to this Court's review under the APA, 5 U.S.C. § 702.
SUMMARY OF LEGAL CHALLENGE
3. This is an action brought pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 472a(g), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., challenging the decision by defendants (“Forest Service”) to approve the Cottonwood Fire Vegetation Management Project (“Cottonwood Project” or “Project”) within the Tahoe National Forest. Plaintiffs and other groups brought an earlier legal challenge to this Project heard in this Court in 2001. See Californians for Alternatives to Toxics v. Dombeck, Case No. S-00-2016 LKK/JFM (E.D. Cal. 2001).
4. The Cottonwood Project proposes to spray two types of toxic herbicides, triclopyr and glyphosate, on approximately 13,500 acres of Forest Service land on which conifers and associated post-fire vegetation are currently recovering from the 1994 Cottonwood Fire. The Cottonwood Project proposes to replace the natural process of post-fire succession with an intensive, chemically based approach that is not essential to achieve the project purpose and that will likely impair the development of quality old forest habitat for sensitive wildlife species. The Forest Service's rationale for the Cottonwood project has changed from its original 1995 emphasis to ensure the survival of conifer seedlings. Today, 10 years later, replanted seedlings are thriving amidst nitrogen fixing and mutualistic post-fire shrub species such as ceanothus and manzanita. However, the Forest Service now says it must “accelerate” conifer growth by eliminating natural post-fire successional vegetation. As set forth below, the Cottonwood Project violates a number of laws and should be set aside.
5. The Cottonwood Project does not comply with the substantive law controlling Forest Service management of this area, including the requirements of NFMA, the Tahoe National Forest Land and Resource Management Plan ("Tahoe Forest Plan"), the Region 5 Final Environmental Impact Statement for Vegetation Management for Reforestation ("1989 Region 5 FEIS"), the Cottonwood Fire Restoration Environmental Impact Statement ("1995 Cottonwood Fire FEIS") and the 2001 Sierra Nevada Forest Plan Amendment FEIS and ROD ("2001 Framework") as amended by the 2004 Sierra Nevada Forest Plan Amendment FSEIS and ROD ("2004 Framework.") The Cottonwood Project fails to demonstrate that herbicide use -- and the elimination of the post-fire succession process -- is "essential" to "accelerate" the development of old forest habitat. The Forest Service also fails to establish that conifers are being adversely affected by shrubs, nor why widespread herbicide applications are either cost effective or likely to lead to reduced fire risk.
6. The Cottonwood Project also does not comply with the informational requirements of NFMA, the Tahoe Forest Plan or the 2001 and 2004 Framework decisions, and thus cannot ensure that the site-specific and cumulative impacts that will occur from this and other past, present and reasonably foreseeable future projects will maintain the diversity and continued viability of plant and animal species, 16 U.S.C. 1604 § 6(g) (3)(B), 36 C.F.R. § 219 et. seq..
7. The Cottonwood Project also does not comply with NEPA because it fails to take a hard look at alternatives to widespread herbicide use, fails to consider the cumulative impacts of a herbicide-based Forest Service reforestation policy in the Tahoe National Forest, nor adequately analyzes a number of project-level environmental impacts. Throughout its analysis, the Forest Service fails to use the best available science, present accurate information, or accurately describe the environmental setting, which would demonstrate that planted conifers are surviving and growing beyond the Forest Service’s original expectations as set forth in the 1995 Cottonwood Fire FEIS. In short, Cottonwood Project fails to provide the necessary information or analysis to foster informed decision making, contrary to NEPA.
VENUE
8. Venue lies in this judicial district by virtue of 28 U.S.C. § 1391(e) because a substantial part of the events or omissions giving rise to the claims occurred here, the Cottonwood Project site is located here, and several of the plaintiffs and defendants are based here.
RELATED CASE STATUS
9. This action is related to a prior action filed in this same judicial district Californians for Alternatives to Toxics et al. v. Dombeck, No. Civ. S-00-2016.
INTRA-DISTRICT ASSIGNMENT
10. Assignment to the Sacramento Division of this Court is proper by virtue of Local Rule 3-
120(d) because the action arises in Sierra County. In addition, the Tahoe National Forest Supervisor Steven Eubanks is headquartered in Nevada City, California, in Nevada County. Finally, the Sierraville Ranger District is located in Sierra County, California.
PARTIES
11. The plaintiffs in this action are:
1. The Forest Issues Group (FIG) is a non-profit organization made up of citizens committed to a healthy Tahoe National Forest. FIG provides community education and public review of U.S. Forest Service management of the Tahoe National Forest. The Forest Issues Group has demonstrated in its oral and written comments, multiple site visits and ongoing interaction with the Tahoe National Forest that it can not support the environmental analysis in the FEIS and Record of Decision for the Cottonwood Action
2. The California Native Plant Society ("CNPS") is a state wide nonprofit organization of nearly 10,000 members, both professional botanists and laypersons, dedicated to the preservation of California's rich native botanical heritage. The mission of the California Native Plant Society is to increase the understanding and appreciation of California's native plants and to preserve them in their natural habitat through scientific activities, education, and conservation. CNPS members work closely with Forest Service personnel and other State and Federal agencies to manage and conserve botanical resources. CNPS is particularly concerned with the conservation of California's rare and endemic plant species and threatened plant communities.
3. California Indian Basketweavers Association ("CIBA") is a state wide intertribal and nonprofit organization of approximately 800 members. CIBA's purpose is to preserve, promote, and perpetuate California Indian basketweaving traditions while providing a healthy physical, social, spiritual, and economic environment for basketweavers. Weaving and use of baskets has been a core element of the spiritual and material culture of California Indian tribes for millennia. Continuation of the basketweaving tradition is essential to the continued survival of California Indian culture. Many plants used for traditional purposes, for basketry, food, medicine, or ceremonial purposes are disappearing because of fire suppression, herbicide use in forestry, and other types of habitat alterations. CIBA works to halt the misuse of herbicides on public and private forest lands while promoting alternative, environmentally sustainable forest management policies and practices. To these ends, CIBA educates government policy makers, resource managers, and the public, while supporting native communities in their efforts to influence local resource management decisions that affect their environment and health.
4. Sierra Foothills Audubon Society (“SFAS”) is a local chapter of the National Audubon Society serving Placer, Nevada, Yuba and El Dorado counties. The mission of its over 1000 members includes protecting wildlife and natural places.
5. The Sierra Club-Mother Lode Chapter (“Sierra Club”) encompasses the Sierra Nevada and Cascade ranges from Yosemite to the Oregon boarder. The chapter's 20,000 members desire that the National Forests be managed to enhance forest ecology and provide appropriate fuels treatments near communities.
6. The South Yuba River Citizens League (“SYRCL”) is a community-based educational nonprofit corporation committed to the protection, preservation and restoration of the entire Yuba Watershed. SYRCL works to fulfill its mission by aggressively seeking environmental solutions through the tools of education, organization, collaboration, litigation and legislation.
12. Plaintiffs’ members live and/or work near the site of the Cottonwood Project in the Tahoe National Forest. They use, on a continuing and ongoing basis, the resources in and surrounding the Tahoe National Forest near the Project site for recreational, scientific, aesthetic, educational, wildlife and botanical preservation, conservation and other purposes such as camping, hiking, botanizing, bird watching, other wildlife observation, study, contemplation, photography and general enjoyment of the beauty of the wildlife, land, and other resources in the area. These individuals intend to continue using and enjoying these resources in the future.
13. In order to safeguard these interests and to carry out their respective missions, plaintiffs and their members have been and continue to be actively involved in planning and resource use issues in Sierra Nevada national forests in general and the Tahoe National Forest in particular. Plaintiffs have been party to all administrative proceedings and reviews of the Cottonwood Project since its inception. Plaintiffs provided timely comments on the Cottonwood Draft Environmental Impact Statement (“DEIS”) and filed timely administrative appeals from the Cottonwood Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”), which were denied by the Forest Service.
14. The Forest Service’s decision to approve the Cottonwood Project in violation of NEPA, NFMA and the APA, as alleged below, has harmed and injured, and is continuing to harm and injure, the above-described interests of plaintiffs and their members by causing irreversible harmful effects upon the forest habitat contained within the Cottonwood Project area and by adversely affecting the plant and wildlife species that depend upon that habitat. Additionally, defendants’ actions deny plaintiffs’ members their right to have the laws of the land implemented and enforced, and the satisfaction and peace of mind associated with witnessing the enforcement of this Nation’s environmental protection laws. Plaintiffs’ injuries would be redressed by the relief sought herein. Plaintiffs have no adequate remedy at law.
15. The defendants in this action, collectively referred to as “the Forest Service,” are:
1. Defendant United States Forest Service is an agency within the Department of Agriculture charged with management of the National Forest System.
2. Defendant Steven T. Eubanks is the Supervisor for the Tahoe National Forest and the appeal decision officer who made the final decision to approve the Cottonwood Project. He is sued in his official capacity.
3. Defendant Sam Wilbanks is the District Ranger for the Sierraville Ranger District of the Tahoe National Forest, in which the project area is located. Defendant Wilbanks signed the ROD and is sued in his official capacity.
FACTUAL BACKGROUND
16. On February 23, 2005, defendant Steven Eubanks, Forest Supervisor for the Tahoe National Forest, denied Plaintiffs’ Appeal and upheld District Ranger Sam Wilbanks’ February 23, 2005 approval of the Cottonwood Project. The Cottonwood Project is located east of Sierraville and south of Loyalton, California, in Sierra County. The entire Project is located within the Feather River Watershed. The Project proposes to spray triclopyr and glyphosate on approximately 13,500 acres of post-fire forest recovery habitat in the eastern Sierra Nevada.
Historical Background of Cottonwood Project
17. The Cottonwood Project is proposed within the area of the 1994 Cottonwood Fire, which burned 46,800 acres. In June 1995, the Forest Service approved the Cottonwood Fire Restoration Final Environmental Impact Statement (“1995 Cottonwood Fire FEIS” ) and Record of Decision. The 1995 Cottonwood Fire FEIS proposed to restore the burned area by planting conifers, creating fuelbreaks for fire protection and implementing detailed monitoring to ensure that project objectives were being met. Subsequent to the 1995 Cottonwood Fire FEIS, the District planted approximately 20,000 acres with conifer seedlings. An additional 10,000 acres have reseeded naturally.
18. The 1995 Cottonwood Fire FEIS states that the “major resource management emphases are regulated intensive even-aged timber production on suitable timber sites and forage production to increase range carrying capacity.” The 1995 Cottonwood Fire FEIS predicted tree growth using the SYSTUM-1 model, and was based on the model prediction that replanting would result in trees 59.1 feet in height with a diameter of 13.7 inches after 100 years. (See 1995 Cottonwood Fire FEIS, p. 3-6.)
19. The 1995 Cottonwood Fire FEIS acknowledges the potential value of conifer-shrub interaction:
These shrubs typically form brushfields that persist for ten to 100 years before conifers are able to overtop them and shade them out; however, during the life of these brushfields, the shrubs are improving the soil, enhancing the soil environment for conifers. They support mycorrhizal fungi that enhances conifer growth (Kaufman and Martin 1991), they build the soil organic layer through deposition of plant parts and, in the case of snowbrush, it converts atmospheric nitrogen to a soil-borne form that is available to other plants. (Conrad, et. al. 1985). Some shrubs, such as manzanita, host mycorrhizae with many of the same fungal species as pines. These shrubs can play an important role in establishing populations of mycorrhizal fungi and other soil organisms in recently burned areas. (Amaranthus and Perry, 1987).
(1995 Cottonwood Fire FEIS, p. 3-2.)
20. The 1995 Cottonwood Fire FEIS proposed vegetation management to clear away competing brush, but only where necessary to ensure the survival of planted seedlings. (p. 1-7.) The FEIS does not endorse any particular type of vegetation management and does not discuss the necessity or environmental impacts of using herbicides to accomplish the project purpose.
21. Since the 1994 Cottonwood Fire, planted and naturally reseeding conifers have regrown in the area amidst nitrogen-fixing shrubs of the genus Ceanothus, and greenleaf manzanita, a vegetation pattern typical of the natural post-fire succession process. The Forest Service states that seedlings were planted at a 16 to 18 foot spacing so that conifer stands would develop into a widely spaced, fire resistant forest. However, in many places naturally reseeding conifers are growing with greater density at levels exceeding the desired stocking level of 170 conifers per acre. Overall, the Forest Service states that stocking levels over the majority of the area are adequate to meet minimum stocking levels of 75 trees per acre. The Forest Service has also hand grubbed approximately 10,000 acres and planted 850 acres with bitterbrush.
22. The Forest Service has still not yet complied, however, with many of the other requirements of the 1995 Cottonwood Fire FEIS, including approximately 12 post fire rehabilitation projects with ongoing monitoring standards. Many of the required projects were intended to reduce the potential for wildfire in the two decades following the Cottonwood fire. For example, the Forest Service stated that it could reduce fire risk in the Project area by constructing and maintaining 47 miles of shaded fuelbreaks along constructed roads and ridge lines. (1995 Cottonwood Fire FEIS, p. 1-6.) However, the FEIS fails to describe whether or not these preventive measures required by the 1995 Cottonwood Fire FEIS have been implemented, and the Forest Service’s FOIA responses indicate that such measures have in fact not been implemented. Many of these actions such as fuel break construction or underburns would be on-going now and would have provided crucial information for the Forest Service to consider in assessing future risk. Instead, as set forth below, the Forest Service’s determination that herbicide use is “essential” without having implemented and monitored the efficacy of these protective measures violates NFMA and NEPA.
23. Soon after replanting began, but before the construction of any fuel breaks or other mitigation measures required by the 1995 Cottonwood Fire FEIS, the Forest Service began scoping under NEPA for a more intense management alternative based on establishing even-aged plantations through repeated applications of herbicides. In December 1998, the Forest Service released the Cottonwood Fire Vegetation Management Environmental Assessment (“2000 EA”) for public review as required by NEPA. On May 3, 2000, the Forest Service issued a Decision Notice and Finding of No Significant Impact (2000 DN/FONSI), which selected modified Alternative 3 authorizing the spraying of herbicides on approximately 10,900 acres.
24. For discussion of herbicide impacts, the EA tiered to the Region 5 Final Environmental Impact Statement for Vegetation Management for Reforestation ("1989 R5 VMR EIS"), which generally analyzed and disclosed the environmental impacts of herbicide use in Sierra. In addition, the EA tiered to the 1995 Cottonwood Fire EIS on non-herbicide issues. 40 C.F.R. § 1502.21.
25. Plaintiffs’ appealed the Forest Service’s approval of spraying herbicides, which the Forest Service denied on August 3, 2000. Plaintiffs and other groups subsequently brought suit against the Forest Service in the United States District Court, Eastern District, in Sacramento, California. The Court issued an Order on April 28, 2001, which granted the plaintiffs’ motion for summary judgment and request for injunctive relief. The Court found that the Forest Service had violated NEPA in several respects and enjoined the Forest Service from implementing the Cottonwood Project until they had complied with NEPA requirements as discussed in the Court Order, as set forth below:
1. The Court found evidence on the record that the proposed project would increase the rate of spread of cheatgrass in the Cottonwood area and that several occurrences of cheat grass were already known within the project area. The court found that the Forest Service was unreasonable in not evaluating the impact of herbicides on the spread of noxious weeds in the Cottonwood Project area.
2. The Court found that the Forest Service had erred by failing to consider a “no action” alternative that permitted the Forest Service, after planting of conifers in the Project area, to “wait and see” about the survival of the conifer seedlings the Forest Service had identified as struggling. The Court found that the basic policy objective of the Cottonwood Project was the survival of the conifer seedlings. The Court also noted that it was not self-evident that a “wait and see” approach would harm or interfere with seedling survival. The Court thus ordered the Forest Service to consider this no action alternative.
3. The Court also found that the Forest Service had not assessed the full range of environmental impacts due to herbicide exposure and thus held that an SEIS would be required to analyze the endocrine-disrupting properties, immunotoxicity and neurotoxicity caused by the herbicides to be used in the Cottonwood Project area.
4. The Court found that the Forest Service had failed to analyze the potential effects of herbicide breakdown products, including pyridinol, a metabolite of triclopyr.
5. The Court found that the Forest Service was required to analyze the potential cumulative effects of activities conducted under the Quincy Library Group Pilot Project in relation to the Cottonwood Project, because the maintenance of defensible fuel profile zones (DFPZs) under the QLG was a cumulative impact that must receive a “hard look” by the Forest Service.
6. The Court also granted injunctive relief based on plaintiffs’ showing of potential harm and the Forest Service’s failure to show how it would be harmed. In particular the Court found that plaintiffs had offered evidence contradicting defendants' conclusions that 1) the survival of the conifer seedling is threatened by brush growth in the Cottonwood burn area and 2) denuding the soil will not impair the growth of conifer seedlings.
Procedural History of the Cottonwood Project
26. In December 2003, the Forest Service circulated a draft Environmental Impact Assessment (“DEIS”) for the Cottonwood Project, on which plaintiffs provided timely and substantive comments. Among other comments, plaintiffs argued that the Forest Service had not supported its finding that herbicides were “essential” to achieve project objectives, and that the Forest Service explanations and methodology to establish that herbicides were essential was flawed and therefore contrary to both NEPA and NFMA requirements. Plaintiffs requested that the Forest Service take a harder look at the “wait and see” alternative since the evidence indicated that conifers were growing well amidst nitrogen fixating and mutualistic shrub species such as ceanothus or manzanita.
27. On February 23, 2005, the District Ranger of the Tahoe National Forest, Sam Wilbanks, approved the Cottonwood Project FEIS with a Record of Decision (2005 Cottonwood FEIS and ROD), which adopted the Forest Service’s preferred Alternative Three. Alternative Three proposes widespread herbicide application on approximately 13,5000 acres across the Project area. The ROD states that if “herbicides are not used, the recovery of forest values will be substantially delayed in the project area, thus leaving it more vulnerable to wildfire for a longer period.” ROD, p. 3.
28. Plaintiffs filed a timely appeal of the District Ranger’s decision on April 18, 2005. On June 2, 2005, the Forest Supervisor Steve Eubanks denied Plaintiffs’ appeal. Plaintiffs thereafter brought this litigation to challenge the Forest Service’s decision.
Description of Cottonwood Project
29. The stated purpose of the Cottonwood Project is to “accelerate the development of a biologically and structurally diverse forest on 13,500 acres...that were burned in the Cottonwood Fire, by reducing competing vegetation to ensure conifer survival and increased growth.” (2005 Cottonwood FEIS, p. 1-6.) The 2005 Cottonwood FEIS states that:
By undertaking the proposed action and shortening the process of succession, the area could begin to function as a coniferous forest in approximately 50 years, with conifers approximately 14 inches in diameter and 59 feet tall, rather than a brushfield.
Id. The 2005 ROD states that the primary purpose of the Project is to “accelerate the development of the native conifer forest” in the Project area so as to “reduce the amount of time the recovering forest is highly vulnerable to another destructive wildfire” and to “recover the benefits of a mature forest ecosystem sooner.” (ROD, p. 2.)
30. The 2005 Cottonwood FEIS purports to analyze four alternatives: (1a) the original "no action" alternative from the 2000 EA; (1b) the Court-ordered "no action" alternative requiring the Forest Service to “wait and see” how the planted conifers are doing in the field ; (2) the original proposed action from the 2000 EA and (3) the proposed action/preferred alternative. The 2005 ROD selected alternative 3, the proposed action, as the Cottonwood Project.
31. The Cottonwood Project proposes to treat approximately 13,500 acres with two herbicides, triclopyr and glyphosate. Treatments are proposed on from 1,450 to 3,850 acres per year over a five year period. The Forest Service states that herbicide treatments that do not reduce brush cover down to 20 to 40% will require repeat herbicide treatments. The Forest Service envisions that a third of spayed area will require repeated herbicide applications. Overall, the Cottonwood Project will result in 3.5 to 7 million pounds of herbicides being applied to the Cottonwood burn area.
32. The Forest Service does not distinguish between the original management emphasis of the Cottonwood Project reforestation, to produce timber for wood fiber, and the new direction under the 2001 and 2004 Framework, to develop old forest habitat. (2005 Cottonwood FEIS, p. 1-18.) However, the 2005 Cottonwood FEIS states that because the Project Area “would develop a more even-aged vegetation structure than a natural stand, it is not known at this time how much of the areas planted with conifers would provide suitable habitat for late seral stage wildlife species, and develop the vertically and horizontally complex vegetation characteristics of a late seral stage forest.” (2005 Cottonwood FEIS, p. 3-104.)
33. The Cottonwood Project proposes “no treatment” buffer zones of 25 feet around streams and 50 feet around seeps and springs in the Project Area. The Project proposes glyphosate use outside the no treatment zone, and triclopyr use within 100 feet of the no-treatment zone for perennial streams or seeps and springs, within 25 feet of the no-treatment zone for intermittent streams with riparian vegetation, and anywhere outside the no-treatment zone for intermittent streams without riparian vegetation. (2005 Cottonwood FEIS, p. 1-13 - 1-14.)
34. The Cottonwood Project area contains suitable habitat for a number of plant and wildlife species, including management indicator species (“MIS”) and other sensitive or rare species such as Northern goshawk, willow-flycatcher, Sierra Nevada red fox, Sierra snowshoe hare, pallid bat, Townsend’s bat, black bear, mule deer, mountain quail, blue grouse, wild turkey, mountain yellow-legged frog, foothill yellow-legged frog and northwestern pond turtle. In addition, the Project area contains habitat for a number of cavity nesting and song bird species including black-headed grosbeak, Pacific-slope flycatcher, winter wren, house wren, song sparrow, yellow warbler, wood duck, Wilson's warbler, Lincoln's sparrow, calliope hummingbird, mountain bluebird, cassin's finch, mountain white-crowned sparrow, and red-breasted nuthatch. Finally, the Project area contains suitable habitat for at least 13 local threatened, endangered, proposed and sensitive plants ("TEPS"), including known occurrences of Ivesia aperta var. aperta, several occurrences of Clarkia stellata, and several occurrences of Trifolium lemmonii.
Forest Service Use of a “Reference Stand” to Show that Herbicides are Essential
35. To support its position that herbicides are “essential” to meet project purposes, the Forest Service compared growth measurements of 580 conifer seedlings surveyed in 2002 to the measured growth of a “reference stand” of 20 year old plantation pines located in relatively deep soils at the base of a large watershed within 20 to 30 yards of a perennial stream. The FEIS states that if the growth of a Cottonwood unit was less than that of the reference stand, and showed no signs of approaching it in the near future, the Cottonwood unit was given a high priority for herbicide treatment. (2005 FEIS, App. D-8.) For the majority of Cottonwood units, however, the Forest Service simply reviewed ground level photos to estimate shrub cover, then assigned a priority ranking based on these photo assessments.
36. To measure reference stand growth rates, the Forest Service estimated the age of internodal branch whorls and then measured the distance between such nodes. The FEIS refers to the reference stand as either 16 or 18 years of age at the time of measurement. (See 2005 Cottonwood FEIS, App. D-5 - D-7.) In addition to the Forest Service’s inability to confirm precisely which age of growth it was measuring, the Forest Service discounted the fact that the measured growth in the reference stand occurred in different years and under different environmental conditions than those of young conifers in the high priority Cottonwood burn areas.
37. In estimating the growth rates of conifers in the post-fire burn area, the Forest Service does not explain how trees were surveyed or the age of such trees. This methodological lapse was exacerbated when the Forest Service measured many trees as having zero growth in their first or even second years because it could not locate the internodal tree growth. This procedure raises a strong likelihood that the Forest Service overestimated the ages of many of the young conifers, thereby further undermining the accuracy and credibility of the Forest Service’s findings.
38. The Forest Service relies on its reference stand comparison to conclude that conifers growing in the Cottonwood Project are under severe competition with shrubs, demonstrated by growth rates that are ostensibly lower that the plantation pines in the chosen reference stand. The Forest Service then concluded that, without intervention, the re-establishment of the forest could be delayed by 50 to 70 years. (2005 Cottonwood FEIS, p. 1-7.)
39. The Forest Service also states that herbicides are “essential” because other alternative forms of vegetation removal are not feasible. The Forest Service states that herbicides are three times as cost-effective due because manual or mechanical treatments must be conducted annually, which is not operationally feasible.
Results of Plaintiffs’ 2003 Field Survey of Conifer Growth
40. In August 2003, plaintiffs conducted their own survey of conifer growth on units within the Cottonwood Project area (“2003 Survey”). The 2003 Survey sampled 183 plots on 10 high-priority sites in summer 2003, included the systematic measurement of over 300 crop trees. The 2003 Survey shows that, on sites designated by the Forest Service as “high priority” for herbicide treatment, the height, leader, and diameter growth of crop pine trees growing in association with ceanothus in the Cottonwood Project area is larger than the growth of trees growing away from ceanothus. The 2003 Survey showed no evidence that the brush species were seriously depressing the conifers, as claimed by the Forest Service. Moreover, the 2003 Survey indicates that conifer internodal growth in high priority areas is actually exceeding the objectives of growth for conifer seedlings as modeled by the Forest Service in the 1995 Cottonwood Fire FEIS.
41. The 2003 Survey is the only field-marked independently-verifiable set of conifer and shrub growth measurements that exists to measure the effect of shrub presence of conifer growth in the Cottonwood Project area. The Forest Service bases its decision to use herbicides on the assumption that ceanothus and shrubs are competing with and thus limiting conifer growth. The 2003 Survey directly addresses this issue and demonstrates that the Forest Service’s conclusion is unsupported. Moreover, the 2003 Survey provides information that is more relevant to the issue of whether herbicides are essential than the Forest Service’s faulty data comparison between conifers growing in the Cottonwood burn area and the 20 year old plantation pine trees growing in the Forest Service’s reference stand. Despite the relevance and importance of the 2003 Survey, however, the Forest Service did not include it as part of the FEIS, and, in its response to comments, generally ignored the implications of the Survey that conifer growth was actually being enhanced rather than inhibited by the presence of post-fire vegetation such as ceanothus or manzanita.
STATUTORY AND REGULATORY FRAMEWORK
The National Forest Management Act and Forest Planning Documents Controlling the Cottonwood Project
42. NFMA requires the Secretary of Agriculture to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). These land and resource management plans (“forest plans”) “guide all natural resource management activities” on the national forests. 36 C.F.R. § 219.1(b). NFMA requires that "resource plans and permits contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans." 16 U.S.C. Sec. 1604 (i). Consequently, all Forest Service projects must be consistent with the governing forest plans.
43. Forest plans promulgated pursuant to NFMA must, among other things, “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives . . . .” 16 U.S.C. § 1604(g)(3)(B). To carry out NFMA’s diversity requirement, the 1982 regulations placed an affirmative obligation on the Forest Service to manage fish and wildlife habitat so as “to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” 36 C.F.R. § 219.19. A “viable population” is “one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.” Id. These requirements are still applicable to Sierra Nevada forests since the 2004 Framework amendment process was adopted pursuant to the 1982 planning regulations. Accordingly, the 1982 NFMA planning regulations govern defendants’ actions in this case.
44. The Forest Service’s actions on the Cottonwood Project are also subject to the 1989 USDA Forest Service Region 5 FEIS and ROD for Vegetation Management for Reforestation (1989 R5 VMR EIS and ROD.) The 1989 R5 VMR was based on the Forest Service’s finding that vegetation management -- the control of competing or potentially competing plants -- is needed during reforestation because competition from brush or herbaceous plants typically prevents achieving “timber yield objectives.” See 1989 R5 VMR EIS, p. S-1. The 1989 R5 VMR EIS (p. S-2) defines reforestation as the “reestablishment of trees and promotion of stand growth to achieve sustained yields of timber and maintain adequate numbers of trees growing at rates that will provide desired levels of multiple use benefits.” The 1989 R5 VMR FEIS (p. 1-1) also states that a primary objective of reforestation is to establish trees on burned forest lands “capable of sustained yields of wood fiber.” Elsewhere, the 1989 R5 VMR FEIS (p. 1-4) states that “vegetation management is often needed to meet timber yield objectives.” The 1989 R5 VMR FEIS found that “[a]reawide treatments, as opposed to spot treatments, have the greatest impact on the diversity of vegetation” and that the “emphasis on achieving higher timber yields may reduce flexibility in selecting methods to improve vegetation diversity or to minimize adverse effects.” (Id., p. S-22, Table S-5.)
45. The 1989 R5 VMR FEIS sums up the potential reduction in vegetative diversity due to herbicide applications:
In general, vegetation management activities could reduce species diversity on the site in two ways: 1) killing plants; and 2) reducing the time required for young trees to occupy a site. The time compression could reduce the opportunity for the full spectrum of floral species or vegetative conditions to occur on a given site. The initial reduction in vegetation diversity on a treatment site can result from loss of species, some species becoming less abundant or even rare, and reduced distribution of species....Changes in the relative abundance of species is the most common effect of vegetation management for restoration.’
(1989 R5 VMR FEIS, p. 4-21.)
46. The 1989 R5 VMR FEIS analysis assumes that future Forest Service management will be based on even-aged, plantation forestry as the appropriate model.
Over many decades, most of the 6 million acres of National Forest land that are expected to be allocated by the Forest land management plans primarily to timber production would come under even-aged management. The stand rotation length (which is the maximum stand age) would range from 50 years to more than 150 years, with an average harvest age of about 85 years.
(1989 R5 VMR FEIS, p. 3-11.)
47. The Forest Service’s chosen preferred Alternative 1 emphasized local management flexibility but emphasized that herbicides should only be used where “essential” to meet the project purpose:
This Alternative allows the use of all vegetation management methods for controlling competing vegetation to ensure adequate seedling establishment and growth of young trees. However, herbicides are to be used only where essential to achieve the resource management objectives.
1989 R5 VMR ROD, p. 9. (emphasis added.)
48. The 1989 R5 VMR ROD and FEIS each state that triclopyr, one of two herbicides proposed for use on the Cottonwood Project, is among the herbicides posing the “greatest risk.” (See e.g., 1989 R5 VMR ROD, p. 4.) The 1989 R5 VMR FEIS requires the agency to “avoid, where possible, culturally important plants, or plant collection areas.” (1989 EIS, V. II, p. 2-30, Table 2-7.) The 1989 R5 VMR FEIS (p. 4-136) lists a number of adverse environmental effects that cannot be avoided, including 1) adverse effects to species diversity due to species reduction, changes in relative abundance of species and changes in species distribution; 2) adverse effects on the quality, quantity and distribution of wildlife habitat on treated sites; and 3) adverse effects due to soil erosion, compaction and topsoil displacement on treated sites.
49. In 1998, the Forest Service initiated a process to develop new management direction for several urgent problem areas with Sierra Nevada-wide significance, including: old forest ecosystems and associated species; aquatic, riparian, and meadow ecosystems and associated species; and fire and fuels management. Thus, the Forest Service launched the Sierra Nevada Framework for Conservation and Collaboration. The Forest Service undertook a collaborative approach in developing the EIS, with active involvement by the U.S. Fish and Wildlife Service, the U.S. Environmental Protection Agency, and numerous other state and federal agencies. At that time, the Forest Service Chief Mike Dombeck directed that
The strategy will stand on the solid foundation of the best available science. Our goal is to ensure the ecological sustainability of the entire Sierra Nevada ecosystem and the communities that depend on it.” This FEIS addresses how national forests in the Sierra Nevada and Modoc Plateau can contribute to the broad goal of ecosystem sustainability, a goal that requires actions of agencies and individuals beyond the Forest Service for success.
2001 Framework FEIS, Vol. 1, Summary, p. 2. (emphasis added.)
50. On January 12, 2001, the Forest Service released the Sierra Nevada Forest Plan Amendment Final Environmental Impact Statement (“2001 Framework FEIS”) and Record of Decision (“2001 Framework ROD”) (together the “2001 Framework”). In the 2001 Framework, the Forest Service adopted Modified Alternative 8 as set forth in the 2001 Framework FEIS as a programmatic amendment to all eleven Sierra Nevada national forest plans.
51. The 2001 Framework was designed to protect and restore old forest ecosystems and aquatic, riparian, and meadow ecosystems throughout the eleven Sierra Nevada national forests, while also addressing concerns regarding the risk of catastrophic wildfire. The 2001 Framework balanced the need to reduce the risk of catastrophic wildfire and the new direction to protect old forests and wildlife. The 2001 Framework established a system of “Old Forest Emphasis Areas” covering approximately 40 percent of national forest lands in the Sierra Nevada, which would be managed specifically to protect and restore old forest habitat and associated species.
52. The goal of the 2001 Framework was to establish a new Forest Service emphasis on ecosystem management, as opposed to timber yield. As set forth in the 2001 Framework FEIS:
Uncertainty about the possible effects of management activities on wildlife habitat is a dominant concern in Modified Alternative 8. Management direction is designed to address uncertainty and increase confidence that management actions will not adversely affect wildlife habitat. Modified Alternative 8 has the same basic components as Alternative 8; however, it provides more spatially explicit California spotted owl and fisher conservation strategies and better integration of these strategies with its aquatic management and fire and fuels management strategies. Modified Alternative 8 provides for species conservation while addressing fire and fuels management. Vegetation treatments are limited to those designed for fire hazard reduction, maintenance activities, or public health and safety.
2001 Framework FEIS, Vol. 1, Summary, p. 2. (emphasis added.)
53. In 2004, the Forest Service adopted the Sierra Nevada Forest Plan Amendment Final Supplemental Environmental Impact Statement (“2004 Framework FSEIS”) and Record of Decision (“2004 Framework ROD”) (together the “2004 Framework”). The 2004 Framework amended the 2001 Framework by allowing the logging of larger trees and the creation of specific defensible fuel protection zones in order to protect local communities from wildfire.
54. The Purpose and Need given for the 2004 Framework revision states: “The purpose of the proposed action is to adjust existing management direction to better achieve the goals of SNFPA.”(2004 Framework FSEIS, p. 2). Thus, the original goals of SNFPA to protect and improve wildlife habitat quality, and to emphasize ecological sustainability as primary management objective, still stand. Furthermore, the 2001 Framework was identified, in the 2004 revision FSEIS, as a source of “the best available science” relative to Sierra Nevada management. 2004 Framework FSEIS p. 67.
National Environmental Policy Act (NEPA)
55. NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1. Its purposes include: “To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation.” 42 U.S.C. § 4321.
56. To accomplish these purposes, NEPA requires all agencies of the federal government to prepare a “detailed statement” that discusses the environmental impacts of, and reasonable alternatives to, all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This statement is commonly known as an environmental impact statement (“EIS”). In Californians for Alternatives to Toxics v. Dombeck, Case No. S-00-2016 LKK/JFM (E.D. Cal. 2001), the Court found that the Cottonwood Project amounts to a major federal action subject to NEPA.
57. The EIS process is intended “to help public officials make decisions that are based on understanding of environmental consequences, and to take actions that protect, restore, and enhance the environment” and to “insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b)-(c). NEPA "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Pursuant to NEPA, "[a]n agency must candidly disclose in its EIS the risks posed by its proposed action. Otherwise, the EIS cannot serve its purpose of informing the decisionmaker and the public before the decision to proceed is made." Friends of the Earth v. Hall, 693 F. Suppl 904, 937 (W.D. Wash. 1988) (emphasis in original). The EIS must also inform the decision maker of the full range of responsible opinions on environmental effects. Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (1971). An EIS which fails to disclose and respond to "the opinions held by well respected scientists concerning the hazards of the proposed action ... is fatally deficient." Friends of Earth, 693 F. Suppl. at 934.
58. The agency must prepare a supplemental EIS when there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c) (1) (ii). A federal agency has an affirmative obligation to continue gathering and evaluating new information that is relevant to the environmental impacts of ongoing actions. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-1024 (9th Cir. 1980); Headwaters v. Bureau of Land Management, 914 F.2d 1174, 1177 ((9th Cir. 1990) NEPA requires that the agency take a 'hard look' at the new information to determine whether an SEIS is necessary. The reviewing court should consider "the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data." Id. An "agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a 'hard look at the environmental effects of [its] planned action, even after a proposal has received initial approval.'" Friends of the Clearwater v. Dombeck, 222 F. 3d 552, 557 (9th Cir. 2000).
59. To determine whether the effects of an agency action will be “significant,” an agency must consider a number of factors including whether the action affects public health or safety; the geographic area has “unique characteristics” such as proximity to park lands, wetlands, wild and scenic rivers, or “ecologically critical areas”; “the effects on the quality of the human environment are likely to be highly controversial”; the possible effects on the environment “are highly uncertain” or involve “unique or unknown risks”; “the action may establish a precedent for future actions with significant effects”; or “the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(2)-(9). The CEQ regulations further provide that: “Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. § 1508.27(b)(7).
60. The heart of the environmental impact statement is the consideration of alternatives. 40 C.F.R. § 1502.14(a); Fuel Safe Washington v. FERC, 389 F.3d 1313 (9th Cir. 2004). All reasonable alternatives "must be rigorously explore[d] and objectively evaluate[d]." 40 C.F.R. § 1502.14(a). Further, the Ninth Circuit has stated that the "touchstone" for courts reviewing challenges to an EIS under NEPA "is whether an EIS's selection and discussion of alternatives fosters informed decision-making and informed public participation." Center for Biological Diversity v. United States Forest Serv., 349 F.3d 1157 (9th Cir. 2003).
61. NEPA requires that an EIS "specify the underlying purpose and need" for any project that it proposes. 40 CFR 1502.13. Under NEPA, the required environmental documentation insures the integrity of the agency process by forcing the agency “to face those stubborn, difficult to answer objections without ignoring them or sweeping them under the rug.” Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1049 (2d Cir. 1985). An EIS is not an opportunity to justify an action, but rather a forum to "provide full and fair discussion of significant environmental impacts and [to] inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. Thus, a stated purpose that does not allow for such discussion is invalid under NEPA. See Westlands Water District v. United States Dep't of the Interior, 376 F.3d 853, 867 (9th Cir. 2004). An agency must also not define its project purpose so narrowly as to preclude consideration of reasonable alternatives. See Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 812-14 (9th Cir. 1999.)
FIRST CLAIM FOR RELIEF
(Violation of NFMA and 1989 R5 VMR EIS and ROD:
Failure To Demonstrate that Herbicides are Essential to the Project Purpose)
62. NFMA requires that "resource plans and permits contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans." 16 U.S.C. Sec. 1604 (i). The 1989 USDA Forest Service Region 5 FEIS and ROD for Vegetation Management for Reforestation establishes the land management policy for reforestation for commercial wood production in the Pacific Southwest Region. Under this policy, the Forest Service may only use herbicides as part of reforestation efforts where essential to achieve the resource management objectives. See e.g., 1989 R5 VMR ROD, p. 9. In approving the Cottonwood Project the Forest Service has not met this standard in a number of ways.
63. The Forest Service never identifies why it is essential to use herbicides to “accelerate the development of old forest characteristics.” See 2005 ROD, p. 2. The Forest Service never defines its criteria to determine how widespread herbicide spraying across the landscape would accelerate or hinder the development of old forest, nor does the Forest Service offer any criteria to determine which old forest characteristics were being accelerated. The 2005 Cottonwood FEIS itself states that it is uncertain whether the type of even-aged plantations proposed to be “accelerated” in the Cottonwood Project will ever provide old forest habitat due to the lack of diverse habitat and spatially complex vegetation characteristics of old forest ecosystems.
64. Rather than assess how removal of the vegetation crucial to the natural fire cycle would “accelerate” the development of old forest habitat for wildlife species, the Forest Service based its determination on a comparison of tree heights between conifers growing in post-burn areas within the Cottonwood burn area and a “reference stand” of 20 year old plantation pines. This assessment fails to account for numerous other factors that make up quality old forest habitat, including species diversity, absence of non-native, invasive species, multiple canopy layers and natural soil and mycorrhizal processes. Nothing in the record supports the idea that the Forest Service’s single minded emphasis on growing uniform tracts of conifer pine plantations will “accelerate” the growth of either the biological or structural diversity essential to old forest habitat. Since herbicides will impair rather than accelerate such diversity, they are not “essential” to achieving the objectives of the Cottonwood Project.
65. Further, the Forest Service’s use of the “reference stand” is an inappropriate basis to support the need to “accelerate” the natural post-fire succession process to old forest habitat for wildlife species. The Forest Service’s reference stand has been intensively managed on a repeated basis, with the objective not to create quality wildlife habitat, but rather to increase through manipulation of the landscape the growth of conifers for wood fiber production. The Forest Service has not provided any evidence that this level of intensive management using repeated applications of herbicides and other invasive treatments is “essential” to accelerate the development of quality old forest habitat for wildlife and recreation.
66. The Forest Service also fails to demonstrate how herbicides are essential because the results of the 2003 Survey indicate that actual release trees regrowing on the Cottonwood Fire area are doing better growing adjacent to shrub species such as ceanothus or manzanita than those growing away from shrubs. Moreover, the 2003 Survey shows that these conifers are actually exceeding the growth rates that were proposed as meeting project objectives by the Forest Service in the 1995 Cottonwood Fire FEIS. This evidence shows that shrub presence has helped conifer growth, lending support to the overwhelming scientific evidence that a mutually beneficial relationship exists among these post-fire successional species. The Forest Service has provided no response as to why herbicides to remove shrubs are “essential” where conifers are doing better in the presence than in the absence of shrubs and are exceeding the Forest Service’s own models for acceptable growth. The Forest Service provides no explanation for why it has replaced the target growth rate set forth in the 1995 Cottonwood Fire FEIS (p. 3-6) with a rate that is twice as fast. The Forest Service’s actions in altering the acceptable growth rate for reforesting conifers is arbitrary and thus contrary to law.
67. Further, the Forest Service’s methodology and analysis in comparing the growth of Cottonwood Fire seedlings and the Forest Service reference stand is flawed and thus cannot support the finding that herbicides are “essential.” The Forest Service’s reference stand measures different years, under different environmental conditions and under different management regimes than that of the planted conifer seedlings. Due to its poor methodology, the Forest Service was only able to approximate and not able to identify the actual age for which internodal growth on reference stand trees was measured. Moreover, the 2005 FEIS contains inconsistent and contradictory references to the age of the reference stand trees.
68. Further, in measuring the growth rate of the post-fire conifers on the Cottonwood Project, the Forest Service’s data indicates the Forest Service likely characterized some trees as one to two years older than they were, leading to a false conclusion that these trees were growing at a lower growth rate. The Forest Service also failed to explain whether or how it differentiated between release trees and trees that would be thinned in the future in its survey of seedling growth rates. The Forest Service’s failure to provide any baseline to measure growth of only trees that will be retained over time prevents if from finding that herbicides are essential to the project purpose.
69. The Forest Service also fails to support its finding that herbicides are “essential” to reduce fire risk. The Forest Service acknowledges that the Project itself will actually increase fire risk, and evidence in the record indicates that intensively managed plantations are more likely than other natural growing vegetative cycles to pose a fire risk. The increased fire risk posed by plantations is further exacerbated by invasive weeds, a predicted outcome of intense management and expected to occur as a consequence of the Cottonwood Project.
70. In contrast, the Forest Service fails to provide evidence that conifers currently overtopping the shrub vegetation pose a higher short-term fire risk or that herbicides are essential to the ability of the naturally growing forest to avoid a crown fire that eliminates dominant trees. Further, the Forest Service has failed to implement a number of mitigation measures required under the 1995 Cottonwood FEIS that were designed to reduce fire risk by creating a network of defensible fuel profile zones across the Project Area. Since the Forest Service has not taken these measures, it cannot find that herbicides are the only means to reduce fire risk.
71. The Forest Service also fails to support its finding that herbicides are “essential” due to the infeasibility of other methods to control competing vegetation such as manual or mechanical clearing. The Forest Service cost calculations are flawed since they assume, without any basis, that manual release treatments would require numerous repeated treatments where herbicides would not, and because they fail to consider the actual costs of repeat herbicide treatments envisioned by the 2005 Cottonwood FEIS and ROD. The Forest Service has also failed to produce any evidence that the creation network of defensible fuel profile zones to reduce fire risk in the Project Area was or is now economically or practically infeasible .
72. Under NFMA, the Forest Service must make its decisions in compliance with applicable Forest Planning documents. The Region 5 Policy is not to use herbicides except where essential to meet project objectives. As set forth above, the Forest Service has not adequately found that herbicides are essential to meet the project objectives. The Forest Service ultimately bases its determination on essentiality on the “experience” of its foresters. These opinions by Forest Service employees do not overcome the legal and factual deficiencies in the Forest Service methodology. Thus, the Forest Service’s decision to apply herbicides on the Cottonwood Project is contrary to NFMA and should be set aside.
SECOND CLAIM FOR RELIEF
(Violation of NFMA: Failure To Ensure Diversity
and Viability of Plant and Wildlife Species)
73. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
74. Under NFMA, the Forest Service must “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives . . . .” 16 U.S.C. § 1604(g)(3)(B). NFMA regulations require the Forest Service to manage fish and wildlife habitat so as “to maintain viable populations of existing native and desired non-native vertebrate species” that are “well distributed in the planning area” and that habitat must be adequately distributed so that “a minimum number of reproductive individuals...can interact with others in the planning area.” 36 C.F.R. § 219.19.
75. To ensure that forest biological diversity is maintained, NFMA requires that the Forest Service identify Indicator Species, monitor their population trends, and evaluate each project alternative in terms of the impact on both Indicator Species habitat and Indicator Species populations.
76. The Cottonwood Project violates the NFMA requirement to “provide for diversity of plant and animal communities for all species.” 16 U.S.C. § 1604(g)(3)(B). The Forest Service lacks current monitoring information, as set forth below and as required by NFMA, the NFMA regulations and by Appendix E of the 2001 Framework. The Cottonwood Project proposes to eliminate species diversity by creating conifer plantations in which other native vegetation is eliminated by herbicides. The Forest Service has not monitored population trends of management indicator and other sensitive or at-risk species and thus has no information upon which to determine that it may apply herbicides across a large portion of the Project area and still maintain species diversity. The record indicates that the elimination of the natural post-fire succession will limit species diversity, contrary to NFMA requirements. See e.g. 36 C.F.R. § 219. 26; 1989 R5 VMR FEIS, p. 4-21.
77. The Forest Service can also not ensure the viability of the aquatic species foothill yellow-legged frog, mountain yellow-legged frog and northwestern pond turtle. The 2004 Framework ROD provides management direction that pesticide applications should be designed to avoid adverse effects to foothill yellow-legged frogs and mountain yellow-legged frogs within 500 feet of known occupied sites for these species. The 2001 Framework also states that these protections should also ensure protection for the northwestern pond turtle. Here, however, the Forest Service has no current monitoring information on these species, yet proposes to apply harmful pesticides within 25 feet of riparian areas that could be occupied by these species. The Cottonwood Project does not ensure that herbicides will not adversely affect these species nor does it take into account the fact that each species habitat includes foraging and dispersal areas that are well outside the 25 to 125 feet buffers generically proposed by the Forest Service. The Forest Service also acknowledges that, in the absence of valid monitoring data, it must assume that the species is present in the action area.
78. The strict restrictions against pesticide exposure to these species is based on the Forest Service’s own findings that aquatic species in the Sierra are also exposed to unknown levels of cumulative pesticide drift from the Central Valley, thereby precluding the Forest Service from identifying a “safe” level of pesticide exposure to these species from the Cottonwood Project.
THIRD CLAIM FOR RELIEF
(Violation of NFMA and 2001 and 2004 FRAMEWORK:
Failure To Comply with Monitoring Requirements for SAR/ MIS Species)
79. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
80. NFMA requires that planning alternatives shall be stated and evaluated in terms of both amount and quality of habitat and of animal population trends of the management indicator species. 36 C.F.R. § 219.19; 16 U.S.C.§1600-1614. NFMA requires a quantitative estimate of outputs and services along with a determination of measured prescriptions and effects including significant changes in the productivity of the land. 36 C.F.R. § 219.12 (k). 36 C.F.R. § 219.12(d) requires, among other things, that “[e]ach Forest Supervisor shall obtain and keep current inventory data appropriate for planning and managing the resources under his or her administrative jurisdiction.” Other NFMA regulations require the Forest Service to create inventories with quantitative data that make possible the evaluation of diversity in terms of its prior and present condition. 36 C.F.R. § 219.26. Cumulative impacts assessment for MIS and species at risk (“SAR”) must review, analyze and present "hard" quantitative data on the impact to various species at the project level, then considered at the forest plan boundary, where the Tahoe National Forest identified this spatial scale for monitoring at the Plan level. 36 C.F.R. § 219.27 (g) provides that to the extent practicable, the Forest Service shall preserve and enhance the diversity of plant and animal communities and species to a level at least as great as that which would be expected in a natural forest. See also Forest Service Manual §§ 2621.5; 2620.3 (3). Regional Policy further requires that where required surveys have not been completed, suitable habitat must be assumed occupied by the species to be protected.
81. In addition, the 2001 Framework requires annual “population monitoring” of certain designated MIS and SAR in all Sierra Nevada national forests. This requirement was adopted in the 2004 Framework. The Forest Service acknowledges that “[m]any uncertainties exist about the status and fate of [management indicator species] and species at risk. Basic information on distribution, population status, and habitat relationships is lacking for most [management indicator species] and species at risk, creating uncertainties about the adequacy of and necessity for various conservation measures.” See 2001 Framework FEIS, Vol. 4, App. E-62; Id. at E-63 (“[T]his monitoring package meets the legal requirement to monitor MIS.”) The lack of overall “basic information” on species population trends has continued through the planning process for the 2004 Framework. Meanwhile, the Tahoe National Forest has not produced any monitoring reports specific to either the Forest or the Cottonwood Project area since at least 1996.
82. The 2001 Framework Appendix E sets forth a number of species that occur or could occur with in the Cottonwood Project that must be monitored on an annual basis. Here, the Forest Service has not conducted the required population monitoring for any of these species. The lack of required management indicator species monitoring exists region-wide, forest-wide, and with respect to specific projects. Here, the Forest Service has not completed the requisite monitoring under either the Tahoe Forest Plan or the 2001 Framework for a number of MIS or sensitive/rare species, including the Northern goshawk, willow-flycatcher, Sierra Nevada red fox, Sierra snowshoe hare, pallid bat, Townsend’s bat, black bear, mule deer, mountain quail, blue grouse, and wild turkey. In addition, the Forest Service lacks monitoring information on a host of bird species including black-headed grosbeak, Pacific-slope flycatcher, winter wren, house wren, song sparrow, yellow warbler, wood duck, Wilson's warbler, Lincoln's sparrow, calliope hummingbird, mountain bluebird, cassin's finch, mountain white-crowned sparrow, and red-breasted nuthatch. The Forest Service has also failed to monitor for sensitive aquatic species including mountain yellow-legged frog, foothill yellow-legged frog and northwestern pond turtle. Finally, the Forest Service lacks monitoring information for a number of threatened, endangered, proposed and sensitive plants ("TEPS") species that are thought to occur in the Cottonwood Project area.
83. Forest Service projects such as Cottonwood must be consistent with the forest plan applicable to that particular national forest. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e). The Cottonwood Project is not consistent with the forest plan for the Tahoe National Forest, however, because the Forest Service has not complied with the management indicator species and SAR population monitoring requirements of the 2001 Framework FEIS, as adopted by the 2004 Framework. The Forest Service’s approval of the Cottonwood Project therefore violated NFMA, 16 U.S.C. § 1604(i), and was also arbitrary and capricious, an abuse of discretion, and without observance of procedure required by law, within the meaning of the APA, 5 U.S.C. § 706(2).
FOURTH CLAIM FOR RELIEF
(Violation of NFMA: Inconsistency With Forest Planning Documents)
84. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
85. The 2004 Framework ROD requires that any pesticide applications within 500 feet of occupied sites for the foothill yellow-legged frog and mountain yellow-legged frog be designed to avoid any adverse effects. The 2004 Framework SFEIS also establishes default buffers zones around streams in order to protect riparian conservation areas. Perennial streams require a 300-foot buffer, on each side of the stream, measured from the bankfull edge of the stream. Intermittent or seasonal streams require a 150-foot buffer, on each side of the stream, measured from the bankfull edge of the stream.
86. The 2001 Framework requires the Forest Service to minimize or eliminate direct and indirect impacts from management activities on threatened, endangered, proposed and sensitive plants ("TEPS") unless the activity is designed to maintain or improve plant populations. (2004 Framework, Vol. 1, p. 366). At least 13 TEPS species are either known to exist or are suspected to occur within the Cottonwood Project area because there is suitable habitat. Appendix E of the 2001 Framework requires monitoring and surveying for these species.
87. Since TEPS plants are dependent upon fire for their long term viability, any actions that result in permanent elimination of post-fire habitat (such as reforestation), would not be in compliance with this direction. Activities associated with reforestation (including fire suppression and herbicide use) have adverse impacts on these species. Since the Forest Service lacks information regarding the location of TEPS species, it cannot ensure that these plant populations will be maintained or improved by the Cottonwood Project.
88. The Forest Service’s failure to implement these required actions as part of the Cottonwood Project is inconsistent with the 2001 and 2004 Framework and thus contrary to NFMA. 16 U.S.C. § 1604(i).
FIFTH CLAIM FOR RELIEF
(Violation of the APA: Forest Service Decision-making and Appeal
Response is Arbitrary and Capricious and/or Abuse of Discretion)
89. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
90. A reviewing court shall hold unlawful and set aside agency action found to be arbitrary, capricious, or otherwise not in accordance with the law, and should compel agency action illegally withheld or unreasonably delayed. 5 U.S.C. § 706. The APA requires an agency to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made." An agency’s decision under the APA must be “based on a consideration of the relevant factors.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut Auto. Ins. Co., 463 U.S. 29, 43 (1983).
91. The decision made by the Forest Service in the Cottonwood Project, and its response denying plaintiffs’ appeal of the Forest Service’s decision, has no substantial basis in the record and is arbitrary and capricious and an abuse of discretion in violation of the APA, 5 U.S.C. § 706(2).
SIXTH CLAIM FOR RELIEF
(Violation of NEPA and APA: Failure to Analyze Significant Cumulative Impacts of Forest Service Reforestation Policy/Unlawful Tiering to Forest Planning Documents)
92. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
93. NEPA requires that an EIS consider the cumulative impacts of the proposed federal agency action together with past, present and reasonably foreseeable future actions, including all federal and non-federal activities. 40 C.F.R. § 1508.7. Cumulative impact “is the impact on the environment which results from the incremental impact of the action when added to other past, present or reasonably foreseeable future actions.” Id.
94. CEQ regulations allow the Forest Service to "tier" the environmental analysis in a specific project to a previously completed program-level EIS. See 40 C.F.R. § 1508.28. However, the existence of a programmatic EIS for a forest plan does not preclude the need for a cumulative impact analysis of programs, policies or activities that were not considered in the prior programmatic document. Instead, a subsequent EIS is required where a project has the potential to cause impacts not previously addressed in prior NEPA documents.
95. The Cottonwood Project purports to tier off prior Forest Service planning documents. However, none of these planning documents has conducted a cumulative impact assessment of the Forest Service’s new herbicide-based reforestation policy, as proposed in the 2005 Cottonwood FEIS, which states that herbicides are “essential” to accelerate the growth of old forest ecosystems and reduce fire risk. These are programmatic planning objectives determined at the regional level in the 2001 and 2004 Framework decisions. Neither of these planning processes, however, conducted a cumulative impact assessment of the impacts of using herbicides to achieve these programmatic goals. In contrast, the 1995 Cottonwood Fire FEIS states that Forest Service release treatments should be implemented to ensure conifer survival, and was based on an overall project objective to ensure an adequate supply of timber, not to create old forest habitat. Further, the 1989 programmatic review for herbicide use in the Sierra Nevada assumed that reforestation projects would be predominantly even-aged management, with average rotation cycles of 85 years. (1989 R5 VMR FEIS, p. 3-11.) Thus, the Forest Service lacks any programmatic review for the use of herbicides to accelerate the growth of old forest ecosystems, as opposed to pine tree plantations.
96. The 2005 Cottonwood FEIS does not consider the cumulative impacts of the Cottonwood Project in connection with other projects that would occur were the Forest Service to proceed to use herbicides as the first option to “accelerate” growth for reforestation projects by eliminating the natural succession process. Since the Forest Service goal for this project would apply to most reforestation projects and units in the Tahoe National Forest and to the QLG pilot project, the Forest Service’s decision to use herbicides must be assessed at the programmatic level, based on the new information and new Forest planning objectives that have been developed since the 1989 R5 FEIS. Since the 2005 Cottonwood FEIS fails to take a hard look at the cumulative effects of the Cottonwood Project considered in conjunction with implementation of other reforestation and fuel reduction projects within the Tahoe National Forest and as part of the QLG pilot project, it fails to comply with NEPA, 42 U.S.C. § 4332(2)(C), and NEPA’s implementing regulations, and is also arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law within the meaning of the APA, 5 U.S.C. § 706(2).
SEVENTH CLAIM FOR RELIEF
(Violation of NEPA and APA: Failure to Take a Hard Look at Alternatives)
97. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
98. NEPA requires that federal agencies consider all reasonable alternatives to their proposed actions. Agencies must, "study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E); 40 C.F.R. §§ 1501.2(c), 1507.2.
99. The discussion of alternatives to the proposed action "is the heart of the environmental impacts statement." 40 C.F.R. § 1502.14. "[I]t should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." Id.
100. An EIS is not an opportunity to justify an action, but rather a forum to "provide full and fair discussion of significant environmental impacts and [to] inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. Thus, a stated purpose that does not allow for such discussion is invalid under NEPA.
101. In Californians for Alternatives to Toxics v. Dombeck, Case No. S-00-2016 LKK/JFM (E.D. Cal. 2001), the Court ordered the Forest Service to take a hard look at a no-action alternative that would occur after the planting of Cottonwood burn area, which would adopt a “wait-and-see approach” to the survival of the seedlings the Forest Service had identified as struggling. The Court noted in its opinion that the “wait and see” alternative was not necessarily contrary to the basic policy objective of the Cottonwood Project - the survival of the conifer seedlings.
102. Despite the Court’s mandate and despite applicable NEPA law, the Forest Service has never completed a follow-up assessment to determine whether planted conifers are surviving or can survive in the absence of further release activities. Further, as set forth above, the Forest Service also never conducted a meaningful on-the-ground analysis to determine whether the presence of post-fire succession shrubs is actually inhibiting conifer development. The Forest Service’s failure to take a hard look at this alternative violates NEPA.
103. The Forest Service has also not taken a hard look at alternatives that would accomplish conifer thinning and brush clearing without the use of herbicides. In dismissing non-herbicide alternatives for release as economically infeasible, the Forest Service failed to take a look at the actual costs of manual or mechanical release treatments that would be needed based on a direct analysis of conifer-shrub growth interaction – as presented in the 2003 Survey – as opposed to an abstract and flawed comparison with a reference stand of plantation pines.
104. The Forest Service has also interpreted its project purpose – to accelerate the development of an old growth forest – in a manner that unreasonably limits the range of alternatives. Here, the Forest Service has interpreted its project objective as requiring the Cottonwood Project to accelerate the height of conifers, without considering alternatives that would actually accelerate the development of an old forest ecosystem through the improvement and maintenance of habitat to ensure forest species diversity.
105. The Forest Service has also not considered alternatives to achieving its fuel reduction goals, particularly the alternative of implementing fuel reduction measures required by the 1995 Cottonwood Fire FEIS. The Forest Service’s failure to take a hard look at whether these fuel reduction measures would meet the project purposes is contrary to NEPA and is arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law within the meaning of the APA, 5 U.S.C. § 706(2).
EIGHTH CLAIM FOR RELIEF
(Violation of NEPA and APA: Information Deficiencies; Failure to Provide Accurate Description of the Environmental Setting; Failure to Use Accurate or Useful Data)
106. NEPA, 42 U.S.C. § 4332 (2)(c), and its implementing regulations require the Forest Service to ”insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement." 40 C.F.R. § 1502.24. In its EIS, the Forest Service must rely upon high quality data and independently evaluate it for accuracy.
107. The Forest Service's review of environmental impacts must provide a detailed description of the environment likely to be affected by this project. 40 C.F.R. Section 1502.15. Further, NEPA requires that the environmental review document contain high-quality information and accurate scientific analysis. 40 C.F.R. § 1500.1(b). If there is incomplete or unavailable relevant data, the Forest Service must disclose this fact. 40 C.F.R. § 1502.22. A cost-benefit analysis is not required under NEPA, but when one is provided, it must not be biased, conclusory, or misleading. 40 C.F.R. § 1502.23.
108. The 2005 Cottonwood FEIS and ROD relies on unsound methodology, poor science, arbitrarily selective studies, and mathematical errors. Such analysis cannot be the basis for informed decisionmaking or public participation. 40 C.F.R. § 1502.1. The Forest Service also failed to properly disclose and analyze in the EIS conflicting scientific data and responsible opposing views. 40 C.F.R. § 1502.9(b). These methodological and informational deficiencies include, but are not limited to:
1. Failure to establish an objective and scientifically defensible rate of growth for young conifers against which the Forest Service and public could measure the need for management intervention;
2. Failure to create, present and analyze studies that would inform the public regarding the basis of the Forest Service’s decision that herbicides are essential to meet project objectives;
3. Failure to establish criteria for assessing whether herbicide applications actually can “accelerate” the growth of old forest ecosystems;
4. Failure to present methodology and information crucial for the public to assess the accuracy of studies that were conducted by the Forest Service purporting to show that herbicides are “essential” for meeting project purposes;
5. Inclusion of self-contradictory or inconsistent information, assertions or statements in Cottonwood Project planning documents, from which the public has no ability to assess the accuracy of the Forest Service’s analysis;
6. Presentation of information in Cottonwood Project planning documents that contradicts or is inconsistent with prior information presented in the 1995 Cottonwood Fire FEIS, including changes in project objectives and changes in growth projections for planted conifer seedlings despite use of the same “model” for both projects;
7. Use of models that do not incorporate relevant information into their predictive methodology;
8. Failure to collect monitoring information on MIS, SAR and other sensitive species necessary to provide accurate information as to the impacts of the Cottonwood Project on plants and wildlife;
9. Failure to present accurate cost feasibility information and analysis, thereby preventing an accurate assessment of release alternatives;
10. Failure to provide information on the cumulative impacts of herbicide use as a preferred method of reforestation in the Tahoe National Forest or information regarding how plantations managed with herbicides can provide habitat quality for species diversity in the Project area; and
11. Failure to provide an accurate description of the environmental setting relating to the survival rate and relative growth of planted conifers with respect to the presence or absence of post-fire successional shrub species.
109. Conclusory statements unsupported by quality empirical or experimental data, scientific authorities, or explanatory information afford no basis for a comparison of alternatives. Since the Forest Service's analysis of the need for the project and the projected outcomes and impacts of different alternatives is not based on scientifically accurate or reliable data, the decisions made in the 2005 Cottonwood FEIS and ROD were not fully informed and thus contrary to NEPA and are arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law within the meaning of the APA, 5 U.S.C. § 706(2).
NINTH CLAIM FOR RELIEF
(Violation of NEPA and APA: Failure to Analyze
Significant Environmental Impacts of Cottonwood Project)
110. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
111. NEPA requires that federal agencies consider, analyze and disclose the environmental impacts of a project, including direct and indirect effects, the relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity and any irreversible or irretrievable commitments of resources. 40 C.F.R. § 1502.16; see also 40 C.F.R. §§ 1508.7, 1508.8.
112. NEPA also requires that an EIS consider the cumulative impacts of the proposed federal agency action together with past, present and reasonably foreseeable future actions, including all federal and non-federal activities. 40 C.F.R. § 1508.7. Cumulative impact “is the impact on the environment which results from the incremental impact of the action when added to other past, present or reasonably foreseeable future actions.” Id.
113. In this case, the FEIS fails to take a hard look at the significant impacts of the Cottonwood Project herbicide applications on 1) worker safety; 2) species diversity and Management Indicator Species (MIS) in the Project area; 3) listed, rare or sensitive plant species; 4) aquatic amphibians and reptiles susceptible to pesticide exposure; 5) increasing the presence of exotic weeds such as cheat grass; and 6) increasing fire risk.
114. The 2005 Cottonwood FEIS fails to assess the potentially significant cumulative risk to workers applying herbicides in the Cottonwood Project, who are especially susceptible to receiving hazardous doses of herbicides. The FEIS relies on incorrect chemical data and fails to consider overall cumulative effects due to different exposure pathways.
115. The 2005 Cottonwood FEIS fails to assess the potentially significant impacts of the Cottonwood Project on MIS, sensitive species or SAR, as set forth in the Tahoe Forest Plan and/or Appendix E of the 2001 Framework, and overall species diversity in the Project area. As set forth above, the Forest Service lacks current monitoring information regarding these species population trends or habitat needs. The FEIS does not analyze how the Cottonwood Project area can offer viable habitat for these species if treated with repeat applications of herbicides. The record indicates that intensively managed plantations such as the Forest Service’s reference stand do not provide quality habitat for wildlife due to the lack of vegetative species and structural diversity.
116. The 2005 Cottonwood FEIS fails to assess the potentially significant impacts of the Cottonwood Project on threatened, endangered, proposed and sensitive plants ("TEPS"). The Tahoe National Forest contains a number of TEPS species, 13 of which are either known to exist or are suspected to occur within the Cottonwood Project area because there is suitable habitat. Despite the Forest Service’s lack of monitoring, the 2005 Cottonwood FEIS acknowledges that the project area contains at least two occurrences of Ivesia aperta var. aperta, several occurrences of Clarkia stellata, and several occurrences of Trifolium lemmonii. The Forest Service also failed to survey for any sensitive riparian plant species. For these and other unmonitored species, the Forest Service has not adequately assessed how herbicide applications and repeat release treatments will not eliminate TEPS populations within the Cottonwood Project.
117. The 2005 Cottonwood FEIS fails to assess the potentially significant impacts of the Cottonwood Project on aquatic species foothill yellow-legged frog, mountain yellow-legged frog and northwestern pond turtle. As set forth above, the 2001 and 2004 Framework require 500 foot buffers, or, in the alternative, specifically designed treatments that will avoid any adverse effects. The Cottonwood Project proposes to apply herbicides within 25 feet of aquatic areas, thus leading to inevitable contamination in the case of thunderstorms or spray drift. Further, this narrow buffer overlaps with these species’ terrestrial range adjacent to their aquatic habitats. The Forest Service also does not assess how pesticide exposures may act cumulatively with exposures to pesticide drift from the Central Valley. In particular, the Forest Service errs in determining that such exposures would not be cumulative, since it lacks any evidence for this conclusion and because plaintiffs have identified toxic breakdown products that are common to the herbicides used in the Cottonwood Project and pesticides that are deposited through pesticide drift from the Central Valley. The Forest Service also fails to analyze the evidence presented that the herbicide products proposed for use in the Cottonwood Project, including active ingredients, breakdown products, inert ingredients and surfactants, are potentially neurotoxic, immunotoxic and endocrine disruptors to these aquatic species at extremely low doses, particularly in combination with each other and other pesticides or chemicals to which these species may be exposed.
118. The 2005 Cottonwood FEIS also fails to assess the potentially significant impacts of removing native vegetation on the potential to increase fire danger in the project area, despite the evidence showing that such fires are more likely to occur the more that the Forest Service attempts to manipulate the forest in the project area. Further, the models used by the Forest Service to predict future fire risk do not correspond to the evidence in the record.
119. The 2005 Cottonwood FEIS fails to assess the potentially significant impacts of the Cottonwood Project on the spread of exotic weeds, particularly cheat grass. The Court’s decision in Californians for Alternatives to Toxics v. Dombeck, Case No. S-00-2016 LKK/JFM (E.D. Cal. 2001) required the Forest Service to provide a more comprehensive assessment in light of evidence in the record that cheat grass was a likely consequence of herbicide application removing post-fire successional vegetation. Instead of providing this analysis, the Forest Service has essentially restated its prior and unsupported conclusion that herbicides have a low risk of increasing noxious or invasive exotic weeds. The Forest Service’s incorrect determination is contradicted by the record and, moreover, prevents the Forest Service from presenting an accurate and informative discussion regarding the essentiality of herbicides to establish an old forest ecosystem and the potential increase in fire risk from herbicide treatments.
120. The Forest Service’s failure to consider, analyze and disclose adequately the environmental impacts of the Cottonwood Project violates NEPA, see 40 C.F.R. §§ 1502.16; 1508.7, 1508.8, and is arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law within the meaning of the APA, 5 U.S.C. § 706(2).
TENTH CLAIM FOR RELIEF
(Violation of NEPA and APA:
Failure to Provide Adequate Responses to Comments)
121. Plaintiffs reallege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.
122. The Forest Service has an obligation under NEPA to respond to comments both individually and collectively in the FEIS. 40 C.F.R. § 1503.4. The Forest Service must respond: (1) by modifying alternatives, including the proposed action; (2) by developing and evaluating alternatives not previously considered by the agency; (3) supplement, improve, or modify its analysis; or (4) make factual corrections. If the agency feels that no further response is necessary, it must "explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position . . . ." 40 C.F.R. § 1503.4 (a)(1-5).
123. The Forest Service took no action in response to plaintiffs’ comments submitted during the administrative process, yet did not provide adequate explanation as to why plaintiffs’ comments did not warrant further analysis or information. Further, the Forest Service failed to respond to opposing expert viewpoints on a range of issues relating to the need for herbicides and the impacts of the proposed action. The Forest Service’s failure to provide adequate responses is contrary to NEPA and is arbitrary, capricious, an abuse of discretion and not in accordance with law within the meaning of the APA, 5 U.S.C. § 706(2).
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that the Court grant the following relief:
1. Issue a declaratory judgment that:
a. The Forest Service’s action in approving the ROD and FEIS for the Cottonwood Fire Vegetation Management Project fails to comply with the procedures and requirements of NEPA, 42 U.S.C. §§ 4321-4370(d) and the CEQ regulations, 40 C.F.R. §§ 1500-1517.7;
b. The Forest Service’s action in approving the Cottonwood Project and the Record of Decision and FEIS for the Cottonwood Fire Vegetation Management Project fails to comply with the procedures and requirements of NFMA, 42 U.S.C. § 16 U.S.C. § 1604 and other controlling forest planning documents;
c. The Forest Service’s action in approving the Cottonwood Project and the Record of Decision and FEIS for the Cottonwood Fire Vegetation Management Project is arbitrary, capricious, an abuse of discretion, not in accordance with the law, and/or without observance of procedures required by law, and thus contrary to the APA, 5 U.S.C. § 706(2).
2. A judgment and order enjoining the Forest Service from implementing the Cottonwood Project pending the issuance of an EIS and ROD that comply with NEPA and NFMA;
3. For costs of suit herein, including attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 or other authority; and
4. For such other and further relief as the court deems proper and just.
Respectfully submitted July 29, 2005
__/s/___________________
Michael W. Graf (CA Bar # 136172)
227 Behrens Street
El Cerrito CA 94530 Telephone: (510) 525-7222
Facsimile: (510) 525-1208
Rachel M. Fazio (CA Bar # 187580)
P.O. Box 697
Cedar Ridge, CA 95924
Telephone: (530) 273-9290
Facsimile: (530) 273-9260
Attorneys for Plaintiffs Forest Issues Group, California Native Plant Society, California Indian Basketweavers Association, Sierra Foothills Audubon Society, and South Yuba River Citizens League
Patrick Gallagher (CA Bar No.146105)
Sierra Club
85 Second Street
San Francisco, CA 94104
Telephone: (415) 977-5709 Facsimile: (415) 977-5793
Attorneys for Plaintiff Sierra Club, Mother Lode Ch.
Final Cottonwood Complaint.wpd