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`TIFFANY N. NORTH, State Bar No. 228068
`County Counsel, County of Ventura
`JEFFREY E. BARNES, State Bar No. 212154
`Chief Assistant County Counsel
`DAVID EDSALL JR., State Bar No. 266883
`Assistant County Counsel
`david.edsall@ventura.org
`800 South Victoria Avenue
`Ventura, California 93009-1830
`Telephone: (805) 654-2596
`Fax: (805) 654-2185
`
`Attorneys for Plaintiff County of Ventura
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`
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
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`COUNTY OF VENTURA,
`
` Plaintiff,
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` v.
`
`UNITED STATES FOREST SERVICE;
`KARINA MEDINA, District Ranger,
`United States Forest Service; TOM
`VILSACK, Secretary of Agriculture,
`United States Department of Agriculture;
`and UNITED STATES FISH AND
`WILDLIFE SERVICE,
`
` Defendants.
`
`))
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`
`
`
`
`Case No. 2:22-cv-02802
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`(National Environmental Policy Act,
`42 U.S.C. § 4321 et seq.;
`Administrative Procedure Act, 5
`U.S.C. § 551 et seq.; Endangered
`Species Act, 16 U.S.C. § 1531 et
`seq.; National Forest Management
`Act, 16 U.S.C. § 1604; Healthy
`Forest Restoration Act, 16 U.S.C.
`§§ 6591b & 6591d; and The
`Roadless Area Conservation Rule, 36
`C.F.R. §§ 294.12 & 294.13)
`
`
`)
`)
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 2 of 44 Page ID #:2
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`JURISDICTION AND VENUE
`1. This Court has jurisdiction over this action pursuant to title 28 of the United
`States Code (hereafter “U.S.C.”), section 1331 (federal question), 28 U.S.C. § 1346
`(United States as a defendant), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act,
`“APA”). The federal statutes and rules at issue in this case include the National
`Environmental Policy Act (“NEPA”; 42 U.S.C. §§ 4321-4370h), the Endangered
`Species Act (“ESA”; 16 U.S.C. § 1536), the Healthy Forest Restoration Act (“HFRA”;
`16 U.S.C. §§ 6591b & 6591d), the Roadless Area Conservation Rule (“Roadless Rule”;
`Roadless Area Conservation Final Rule, 66 Federal Register 3,244 (Jan. 12, 2001) (to be
`codified in 36 C.F.R. pt. 294),1/ and the National Forest Management Act (“NFMA”; 16
`U.S.C. § 1604). This Court has authority to grant the requested relief pursuant to 28
`U.S.C. §§ 2201-2202 (declaratory and injunctive relief) and 5 U.S.C. §§ 701-706 (APA).
`2. Venue lies in this Court pursuant to 28 U.S.C. § 1391(e)(1) because Plaintiff
`County of Ventura is located in this District, Defendants reside in this District, and a
`substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in
`this District. This case challenges approval of a logging project located in Ventura
`County, California.
`
`INTRODUCTION
`3. Plaintiff challenges the United States Forest Service’s authorization of the
`Reyes Peak Forest Health and Fuels Reduction Project (“Reyes Peak Project” or
`“Project”) located on Pine Mountain in Los Padres National Forest. The Project will
`involve logging and mastication of more than 750 acres of public land, including in the
`Sespe-Frazier Inventoried Roadless Area (“IRA”). Plaintiff County of Ventura,
`
`
`1/ The Roadless Rule appears in the 2001-2004 editions of the Code of Federal
`Regulations (“C.F.R.”), at 36 C.F.R. §§ 294.10-14. In 2005, it was replaced by the State
`Petitions Rule. (70 Fed. Reg. 25,654 (May 13, 2005).) When that replacement was set
`aside the following year, the Roadless Rule was reinstated. (California ex rel. Lockyer
`v. USDA (N.D. Cal. 2006) 459 F.Supp.2d 874, aff’d (9th Cir. 2009) 575 F.3d 999.)
`However, the General Printing Office has thus far not conformed the current published
`Code accordingly. This complaint includes citations to 36 C.F.R. part 294.
`1
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 3 of 44 Page ID #:3
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`including its residents and employees, as well as visitors to the County, regularly use the
`Reyes Peak area for cultural, educational, scientific, aesthetic, and recreational purposes,
`and seeks to prevent the area’s wild character from being harmed by the Project. The
`Forest Service intends to log thousands of trees in the Project area, including an
`unlimited number of old-growth trees as large as sixty-four inches in diameter.
`Furthermore, the agency plans to masticate old-growth chaparral, a shrub dominated
`ecosystem that is native to the area and is important for wildlife. Mastication means a
`tractor-like machine is used to chop the chaparral into small chips.
`4. Reyes Peak is one of the most biologically-diverse hotspots in Los Padres
`National Forest. Pine Mountain hosts the greatest diversity of coniferous tree species in
`Ventura County, which occur next to large expanses of rare old-growth chaparral.
`Moreover, Reyes Peak contains the only “sky island” near Santa Barbara or Los
`Angeles, meaning it provides unique habitat to higher-elevation species that cannot
`survive in the nearby lowland regions. The Reyes Peak and Pine Mountain ridgeline
`form the northern rim of the Sespe watershed, at over 7,000 feet elevation. The ridge is
`home to over 400 species of native plants, including dozens that are rare or sensitive. It
`is also home to an abundance of wildlife including the endangered California condor,
`California spotted owl, northern goshawk, and several sensitive bat species.
`5. The Reyes Peak Project is also located entirely within ancestral lands of the
`Chumash people, and Pine Mountain (known by its traditional name of “Opnow”) is a
`sacred peak that is significant to the spiritual and religious beliefs of the Chumash. The
`Project area contains culturally significant sites, as well as items like grinding bowls and
`medicinal plants that could be destroyed by the Project. Tribal members also visit Pine
`Mountain and Reyes Peak for prayer and ceremony, and the Project would permanently
`alter the landscape where they pray.
`6. The Forest Service violated the NEPA when approving the Reyes Peak Project.
`The agency wrongly relied on categorical exclusions (“CEs”) instead of conducting an
`environmental assessment (“EA”) or preparing an environmental impact statement
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 4 of 44 Page ID #:4
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`(“EIS”), thereby short-circuiting public involvement and the consideration of
`alternatives. This matters because alternatives to the Project could have avoided harm to
`the wild character of the Project area and the cultural sites it contains.
`7. Moreover, the Forest Service ignored the requirements of the CEs that were
`relied upon. All Forest Service CEs, which are found at 36 C.F.R. § 220.6, require what
`is called “scoping.” (36 C.F.R. § 220.4(e); 36 C.F.R. § 220.6(c).) Scoping is how the
`Forest Service ensures that the public is provided notice of, and the ability to comment
`on, any Forest Service project. Here, the Forest Service did not state in its scoping letter
`that the agency intended to rely upon the CE found at 36 C.F.R. § 220.6(e)(6), and
`consequently the public was not properly notified that the agency would be using that
`particular CE. The Forest Service is therefore in violation of its own regulations and
`cannot proceed under 36 C.F.R. § 220.6(e)(6).
`8. Furthermore, 36 C.F.R. § 220.6(e)(6) cannot be used for the Project because
`36 C.F.R. § 220.6(e)(6) does not authorize commercial thinning. It also does not
`authorize the logging of large trees that contain dwarf mistletoe, or the removal of snags
`or downed wood.
`9. The Forest Service likewise ignored the requirements of the other CEs it relied
`upon — 16 U.S.C. §§ 6591b, 6591d. In order for the Forest Service to utilize these
`HFRA statutory CEs, the agency must maximize the retention of old-growth and large
`trees, consider the best available scientific information, and develop and implement the
`project using a collaborative process. Here, the Forest Service wrongly authorized the
`logging of old-growth and large trees, ignored the best available science with respect to
`maintaining the integrity of the area’s forest and chaparral ecosystem, failed to
`collaborate with local Native American tribes and other community stakeholders when
`developing the Project, and violated the terms of Los Padres National Forest’s Land and
`Resource Management Plan (“Forest Plan”).
`10. An EA or EIS is also required here because NEPA regulations preclude the
`use of CEs when there are “extroardinary circumstances” present. (36 C.F.R.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 5 of 44 Page ID #:5
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`§ 220.6(b), (c).) “Extraordinary circumstances” exist here because the Project may
`cause serious harm to local “resource conditions” including Native American religious
`and cultural sites, rare wildlife, and a proposed wilderness area and the Sespe-Frazier
`IRA. (Ibid.) To the degree that there is uncertainty regarding impacts to these
`resources, further analysis is required under NEPA. (Forest Service Handbook
`1909.15.31.2 [“If the degree of potential effect raises uncertainty over its significance,
`then an extraordinary circumstance exists, precluding use of a categorical exclusion”].)
`11. Wildlife impacts were also wrongly ignored under the ESA. The Project area
`is home to the endangered California condor, which uses large trees for roosting. The
`United States Fish and Wildife Service (“FWS”), when concluding that the Project
`would “not likely adversely affect” condors or their critical habitat, asserted that “[o]ne
`of the project goals is to retain larger trees throughout the project area.” (FWS ESA
`section 7 Consultation Concurrence Letter (“FWS Concurrence”) at 5.) The Project, as
`approved, however, allows large trees (up to sixty-four inches in diameter) that contain
`dwarf mistletoe to be logged, and places no limit on the amount of such trees that can be
`cut and removed. It was therefore not possible for the FWS to ensure that the Project
`would not adversely affect important condor roosting trees.
`12. In addition, the Sespe-Frazier IRA is protected by the Roadless Rule. This
`Rule forbids logging in any IRA except in very limited circumstances, such as the
`logging of small diameter trees. (36 C.F.R. § 294.13.) Here, the Forest Service violated
`the Roadless Rule by authorizing the unlimited logging of trees up to sixty-four inches in
`diameter in the Sespe-Frazier IRA, thereby failing to protect the IRA’s wild character.
`13. Moreover, the Project violates NFMA, which requires that projects in
`National Forests be consistent with the Forest’s Forest Plan. (16 U.S.C. § 1604(i).) The
`Reyes Peak Project contravenes the Forest Plan for Los Padres National Forest because
`the removal of trees and shrubs from the Project area fails to protect the area’s “High
`Scenic Integrity” and its “undeveloped character and natural appearance.” (See, e.g.,
`Los Padres National Forest Plan, part 3, standards 9 and 10.) In addition, the Project
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 6 of 44 Page ID #:6
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`does not adhere to the Forest Plan’s findings regarding safeguarding communities from
`wildfire because the Project is not located within the defense zone or threat zone of the
`wildland urban interface (“WUI”). (See, e.g., Los Padres National Forest Plan, part 3,
`standard 7.)
`14. Finally, the HFRA provisions at issue in this case (16 U.S.C. §§ 6591b,
`6591d), in order to ensure agency accountability, require annual reports containing “a
`description of all acres (or other appropriate unit) treated through projects carried out
`under [these CEs].” (16 U.S.C. § 6591b(g).) As far as Plaintiff is aware, not a single
`annual report has yet been prepared or submitted as HFRA requires.
`15. Plaintiff brings this case seeking declaratory relief that: the Forest Service
`violated NEPA, the Roadless Area Conservation Rule, NFMA, HFRA, and the APA in
`approving the Reyes Peak Project; the FWS violated the ESA and APA in concluding
`that the Project is not likely to adversely affect California condors or their critical
`habitat; and the Forest Service and Tom Vilsack, Secretary of Agriculture, violated the
`HFRA and the APA in failing to issue annual reports pertaining to the use of CEs as
`required by HFRA. Plaintiff seeks to have this Court declare unlawful, vacate, and set
`aside the Forest Service’s Decision approving the Reyes Peak Project and the FWS’s
`decision that the Reyes Peak Project is not likely to adversely affect California condors
`or their critical habitat. Plaintiff also seeks injunctive relief to remedy Defendants’
`violations.
`
`PARTIES
`16. Plaintiff County of Ventura is a legal subdivision of the State of California.
`Pursuant to Government Code section 23004, it has the authority to file lawsuits. It has
`a population of approximately 843,000 people.
`17. Plaintiff County of Ventura, including its residents and employees, as well as
`visitors to the County, have used and enjoyed the tracts of forest and lands where the
`Reyes Peak Project is set to occur. Plaintiff County of Ventura’s present and future
`interests in and use of the Reyes Peak Project area are and will be directly and
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 7 of 44 Page ID #:7
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`irreparably adversely affected by the challenged decision. Pine Mountain is a very high
`value recreation site for both day use and family camping. It attracts visitors from a
`multi-county area including Ventura, Santa Barbara, Kern, and Los Angeles Counties
`who fill the dozens of campsites nearly every weekend of camping season. It provides
`many highly popular recreational activities: family camping, hiking, bird and wildlife
`watching, backpacking, rock climbing, star gazing, cross country skiing, hunting,
`firewood gathering, and regional trailhead access. The project would all but eliminate
`the recreational value of the area during its construction phase, and the proposed
`substantial mature tree removal would permanently significantly degrade the most
`attractive feature of this pristine area. Visitors to Pine Mountain patronize local
`businesses, particularly in the Ojai Valley and rural gateway communities. Impairing
`the recreational appeal of Pine Mountain will economically harm local businesses in
`gateway communities.
`18. Adverse effects include but are not limited to: (1) impacts to native plants and
`wildlife and their habitats within and around the Project area; (2) harm to ancestral lands
`of the Chumash people and culturally sensitive and/or sacred resources; (3) impaired
`aesthetic value of forest lands, trails, and landscapes; (4) loss of scientific study and
`viewing opportunities; and (5) reduction and impairment of recreational opportunities.
`A favorable ruling from this Court would redress these harms.
`19. In addition, Plaintiff, including its residents and employees, as well as
`visitors to the County, have an interest in ensuring that Defendants comply with all
`applicable laws, regulations, and procedures pertaining to the management of national
`forest lands. Because Defendants’ actions approving the Project violate the law, a
`favorable decision by this Court will redress the actual and imminent injury to Plaintiff.
`20. Defendant United States Forest Service is a federal government agency
`within the Department of Agriculture, which holds the National Forests in trust for the
`American people and is responsible for actions in the Reyes Peak Project area.
`/ / /
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 8 of 44 Page ID #:8
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`21. Defendant Karina Medina is a District Ranger for Los Padres National Forest
`and signed the decision memo (“Decision Memo”) approving the Reyes Peak Project on
`September 30, 2021. She is included in this action in her official capacity.
`22. Defendant Tom Vilsack is the Secretary of Agriculture within the United
`States Department of Agriculture and is charged with responsibilities under HFRA. He
`is included in this action in his official capacity.
`23. Defendant United States Fish and Wildlife Service is the federal agency
`within the Department of Interior charged with responsibility for conserving endangered
`and threatened species under the Endangered Species Act, for enforcing and
`implementing the ESA, and for complying with the APA in connection with the
`Service’s ESA actions.
`
`LEGAL FRAMEWORK
`THE ADMINISTRATIVE PROCEDURE ACT
`24. The APA allows persons and organizations to challenge final agency actions
`in the federal courts. (5 U.S.C. §§ 702, 704.)
`25. The APA declares that a court shall hold unlawful and set aside agency
`actions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
`accordance with law. (5 U.S.C. § 706(2)(A).)
`THE NATIONAL ENVIRONMENTAL POLICY ACT
`26. Congress enacted NEPA, 42 U.S.C. §§ 4321-4370h, to, among other things,
`“encourage productive and enjoyable harmony between man and his environment” and
`to promote government efforts “that will prevent or eliminate damage to the
`environment.” (Id. at § 4321.) As a general matter, NEPA requires that federal agencies
`analyze and disclose to the public the environmental impacts of their actions. (Id. at §
`4332(2)(C).)
`27. To this end, the Council on Environmental Quality (“CEQ”) has promulgated
`regulations implementing NEPA. Among other things, the rules are intended to “tell
`federal agencies what they must do to comply with the procedures and achieve the goal
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 9 of 44 Page ID #:9
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`of [NEPA],” to “insure that environmental information is available to public officials
`and citizens before decisions are made and before actions are taken,” and to ensure
`“better decisions” and “foster excellent action.” (40 C.F.R. § 1500.1(a)-(c) (1978).)2/
`Moreover, “[a]ccurate scientific analysis, expert agency comments, and public scrutiny
`are essential to implementing NEPA.” (Ibid.)
`28. NEPA and its implementing regulations promulgated by the CEQ require
`federal agencies to prepare an EIS for “major Federal actions significantly affecting the
`quality of the human environment.” (42 U.S.C. § 4332(2)(C).)
`29. If an agency is unsure whether a proposed action may have significant
`environmental effects, it may prepare a shorter document called an “environmental
`assessment” to determine if the proposed action will have significant environmental
`effects and whether an EIS is necessary. (40 C.F.R. § 1501.4(c) (1978).)
`30. When conducting environmental analysis pursuant to an EA or EIS, an
`agency must consider alternatives to the proposed action. (See, e.g., 40 C.F.R. §
`1508.9(b) (1978).)
`31. In narrow situations, neither an EA nor an EIS is required, and federal
`agencies may invoke a “categorical exclusion” from NEPA. (40 C.F.R. § 1501.4(a)
`(1978).)
`32. A “categorical exclusion” is defined as “a category of actions that the agency
`has determined, in its agency NEPA procedures (§ 1507.3 of this chapter), normally do
`not have a significant effect on the human environment.” (40 C.F.R. § 1508.4 (1978).)
`The Forest Service’s established CEs can be found at 36 C.F.R. § 220.6.
`
`
`2/ Scoping for the Reyes Peak Project began on May 27, 2020. On July 16, 2020, the
`Council on Environmental Quality issued new NEPA regulations at 40 C.F.R. Part 1500,
`replacing previous regulations from 1978. (See 85 Fed. Reg. 43304 (July 16, 2020),
`available at https://www.federalregister.gov/documents/2020/07/16/2020-15179/update-
`to-the-regulations-implementing-the-procedural-provisions-of-the-national-
`environmental.) The new NEPA regulations specifically provide that they “apply to any
`NEPA processes begun after September 14, 2020.” (40 C.F.R. § 1506.13.) Because the
`NEPA process for this matter began before September 14, 2020, and because the agency
`relied on the 1978 regulations when approving the Project, the 1978 regulations apply
`here.
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`Case 2:22-cv-02802 Document 1 Filed 04/27/22 Page 10 of 44 Page ID #:10
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`33. Here, the Forest Service relies in part on 36 C.F.R. § 220.6(e)(6), which
`applies to “[t]imber stand … improvement activities that do not include the use of
`herbicides or do not require more than 1 mile of low standard road construction.” (36
`C.F.R. § 220.6(e)(6).) “Examples include, but are not limited to: (i) Girdling trees to
`create snags; (ii) Thinning or brush control to improve growth or to reduce fire hazard
`including the opening of an existing road to a dense timber stand; (iii) Prescribed
`burning to control understory hardwoods in stands of southern pine; and (iv) Prescribed
`burning to reduce natural fuel build-up and improve plant vigor.” (Ibid.) “Timber stand
`improvement” is defined in the Forest Service Manual to only include the following
`practices: “1. Release and weeding. 2. Precommercial thinning. 3. Pruning. 4.
`Control of understory vegetation. 5. Fertilization. 6. Animal damage control.” (Forest
`Service Manual, chapter 2470.)
`34. If a project appropriately falls under an adopted CE, the agency generally
`need not prepare further analysis. (California v. Norton (9th Cir. 2002) 311 F.3d 1162,
`1175 (“Norton”).) However, an agency adopting a CE must “provide for extraordinary
`circumstances in which a normally excluded action may have a significant
`environmental effect.” (40 C.F.R. 1508.4.) If extraordinary circumstances are present,
`use of a CE is improper. (Norton, supra, 311 F.3d at p. 1175.)
`35. The Forest Service’s regulations include a list of seven resource conditions
`that must be considered in determining whether “extraordinary circumstances” related to
`a proposed action make the use of a CE inappropriate, and include the following:
`(i) Federally listed threatened or endangered species or designated critical habitat,
`species proposed for Federal listing or proposed critical habitat, or Forest Service
`sensitive species;
`(ii) Flood plains, wetlands, or municipal watersheds;
`(iii) Congressionally designated areas, such as wilderness, wilderness study areas,
`or national recreation areas;
`(iv) Inventoried roadless area or potential wilderness area;
`(v) Research natural areas;
`(vi) American Indians and Alaska Native religious or cultural sites; and
`(vii) Archaeological sites, or historic properties or areas. (36 C.F.R. § 220.6(b).)
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`36. If a “cause-effect” relationship between the proposed action and these
`resource conditions exists, it is the “degree of the potential effect of a proposed action on
`these resource conditions that determines whether extraordinary circumstances exist.”
`(36 C.F.R. § 220.6.)
`37. The Forest Service’s Handbook provides: “If the degree of potential effect
`raises uncertainty over its significance, then an extraordinary circumstance exists,
`precluding use of a categorical exclusion.” (Forest Service Handbook 1909.15.31.2.)
`38. If there is substantial evidence in the record that exceptions “may apply,” use
`of the CE is prohibited. (Norton, supra, 311 F.3d at p. 1177.)
`39. In addition, Forest Service regulations identify classes of actions that
`“normally” require preparation of an EIS, and these include “[p]roposals that would
`substantially alter the undeveloped character of an inventoried roadless area.” (36
`C.F.R. § 220.5(a)(2).)
`40. The Forest Service’s regulations require “scoping” prior to the use of a CE.
`(See 36 C.F.R. § 220.6(c) [determination of potential for significant effects must be
`“based on scoping”]; 36 C.F.R. § 220.4 [“Scoping is required for all Forest Service
`proposed actions, including those that would appear to be categorically excluded from
`further analysis and documentation in an EA or an EIS (§ 220.6)”].)
`41. “Scoping” is the “early and open process for determining the scope of issues
`to be addressed and for identifying the significant issues related to a proposed action.”
`(40 C.F.R. § 1501.7 (1978); see also 36 C.F.R. § 220.6(c).) As discussed in the Forest
`Service Handbook, “scoping is important to discover information that could point to the
`need for an EA or EIS versus a CE.” (Forest Service Handbook, § 1909.15, sec. 31.3.)
`42. If, “based on scoping, it is uncertain whether the proposed action may have a
`significant effect on the environment,” the agency “must prepare an EA.” (36 C.F.R. §
`220.6(c).) If “the proposed action may have a significant environmental effect,” then the
`agency “must prepare an EIS.” (36 C.F.R. § 220.6(c).)
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`43. In addition to the Forest Service’s regulatory CEs, Congress has created
`statutory CEs that the Forest Service may use. For purposes of this case, the statutory
`CEs can be found in HFRA at 16 U.S.C. §§ 6591b and 6591d.
`44. When using 16 U.S.C. § 6591b or 16 U.S.C. § 6591d, the Forest Service
`must “maximize the retention of old-growth and large trees, as appropriate for the forest
`type, to the extent that the trees promote stands that are resilient to insects and disease,”
`must “consider the best available scientific information to maintain or restore the
`[forest’s] ecological integrity, including maintaining or restoring structure, function,
`composition, and connectivity,” the project must be “developed and implemented
`through a collaborative process that includes multiple interested persons representing
`diverse interests and is transparent and nonexclusive, and the project must “be consistent
`with the land and resource management plan.” (16 U.S.C. § 6591b; 16 U.S.C. § 6591d.)
`Even if a project falls within a statutory CE, the presence of “extraordinary
`circumstances” can preclude use of the CE. (16 U.S.C. § 6591d(c)(4).)
`45. HFRA’s statutory CEs also require “an annual report on the use of
`categorical exclusions under [6591b and 6591d] that includes a description of all acres
`(or other appropriate unit) treated through projects carried out under [these sections].”
`(16 U.S.C. § 6591b(g); 16 U.S.C. § 6591d(g).) To fulfill the legislature’s oversight
`authority, HFRA requires the Forest Service to submit these annual reports to various
`Congressional committees as well as the Government Accountability Office. (16 U.S.C.
`§ 6591b(g)(2).)
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`THE ENDANGERED SPECIES ACT
`46. Section 7 of the ESA requires each federal agency, in consultation with the
`FWS, to insure that any action authorized, funded, or carried out by the agency is not
`likely to: (1) jeopardize the continued existence of any threatened or endangered species
`or (2) result in the destruction or adverse modification of the critical habitat of such
`species. (16 U.S.C. § 1536(a)(2).)
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`47. If listed or proposed species may be present in the project area, the federal
`agency must prepare a “biological assessment” to determine whether the listed species
`may be affected by the proposed action. (50 C.F.R. § 402.12.)
`48. If the agency determines that its proposed action may affect any listed species
`or critical habitat, the agency must normally engage in “formal consultation” with the
`FWS. (50 C.F.R. § 402.14.) However, an agency need not initiate formal consultation
`if, as a result of the preparation of a biological assessment or as a result of informal
`consultation with the FWS, the agency determines, with the written concurrence of the
`FWS, that the proposed action is not likely to adversely affect any listed species or
`critical habitat. (Ibid.)
`49. If the FWS concludes that the proposed action “will jeopardize the continued
`existence” of a listed species, a “biological opinion” must outline “reasonable and
`prudent alternatives.” (16 U.S.C. § 1536(b)(3)(A).) If the biological opinion concludes
`that the action is not likely to jeopardize the continued existence of a listed species, and
`will not result in the destruction or adverse modification of critical habitat, the FWS
`must provide an “incidental take statement,” specifying the amount or extent of such
`incidental taking on the species, any “reasonable and prudent measures” that the FWS
`considers necessary or appropriate to minimize such impact, and setting forth the “terms
`and conditions” that must be complied with by the agency to implement those measures.
`(16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).)
`50. In fulfilling its obligation to ensure that its actions do not jeopardize the
`continued existence of any endangered species or destroy or adversely modify its critical
`habitat, the federal agency is required to use the best scientific and commercial data
`available. (16 U.S.C. § 1536(a)(2).)
`THE ROADLESS AREA CONSERVATION RULE
`51. Inventoried roadless areas “comprise only 2% of the land base in the
`continental United States,” but “provide many social and ecological benefits.” (66 Fed.
`Reg. at 3,245.) For example, these remnant undeveloped areas “provide clean drinking
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`water and function as biological strongholds for populations of threatened and
`endangered species, . . . provide large, relatively undisturbed landscapes that are
`important to biological diversity and the long-term survival of many at-risk species . . .
`[and] provide opportunities for dispersed outdoor recreation, opportunities that diminish
`as open space and natural settings are developed elsewhere.” (Ibid.)
`52. In 2001, in order “to protect and conserve inventoried roadless areas on
`National Forest System lands,” the Forest Service established the Roadless Area
`Conservation Rule. (Roadless Area Conservation Final Rule, 66 Fed. Reg. 3,244 (Jan.
`12, 2001).) To achieve its intent, the Roadless Rule “prohibits road construction,
`reconstruction, and timber harvest in inventoried roadless areas because [these activities]
`have the greatest likelihood of altering and fragmenting landscapes, resulting in
`immediate, long-term loss of roadless area values and characteristics.” (Ibid.)
`53. The Forest Service may, however, ap