`
`Meriel L. Darzen, OSB # 113645
`(503) 525-2725 meriel@crag.org
`Oliver J. H. Stiefel, OSB # 135436
`(503) 227-2212 oliver@crag.org
`CRAG LAW CENTER
`3141 E. Burnside St.
`Portland, Oregon 97214
`Fax: (503) 296-5454
`
`
`Attorneys for Plaintiff Klamath Forest Alliance
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`MEDFORD DIVISION
`
`KLAMATH FOREST ALLIANCE, a
`California non-profit corporation;
`
`
`Plaintiff,
`
`v.
`
`SCOTT J. BLOWER, in his official capacity
`as Wild Rivers District Ranger; MERV
`GEORGE JR., in his official capacity as
`Rogue River-Siskiyou National Forest
`Supervisor; and the UNITED STATES
`FOREST SERVICE,
`
`
`
`
`Defendants.
`
`Case No. 1:21-cv-00781
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`(5 U.S.C. § 706(2))
`
`(Environmental Matters –
`Endangered Species Act, National Forest
`Management Act, National Environmental
`Policy Act, and Administrative Procedure
`Act)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 2 of 29
`
`NATURE OF ACTION
`
`Plaintiff Klamath Forest Alliance (“KFA”) brings this challenge under the
`
`1.
`
`Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, to the final administrative actions
`
`of Scott J. Blower, Merv George Jr., and the United States Forest Service (collectively “Forest
`
`Service” or “Defendants”). In approving the Decision Memorandum (“DM”) for the Slater Fire
`
`Safe Re-entry Project (“Slater Roadside Project” or “Project”) on the Rogue River-Siskiyou
`
`National Forest (“Forest” or “RRSNF”), Defendants acted arbitrarily, capriciously, and contrary
`
`to the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h, the National
`
`Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–1614, and the Endangered Species Act
`
`(“ESA”), 16 U.S.C. §§ 1531–1544.
`
`2.
`
`The DM authorizes the felling of “danger” trees (also called “hazard” trees)
`
`affected by the 2020 Slater Fire along approximately 146 miles of identified travel corridors, and
`
`the restoration and rehabilitation of site conditions through site-specific seeding and planting of
`
`native grasses, shrubs, and trees in identified roadsides and other areas affected by high intensity
`
`burn.
`
`3.
`
`Under NEPA, the Forest Service did not prepare an Environmental Impact
`
`Statement (“EIS”) or even a less intensive Environmental Assessment (“EA”), and instead
`
`approved the Project pursuant to two Categorical Exclusions (“CE”). CEs apply to categories of
`
`actions that the Forest Service has determined pose no significant environmental effects, either
`
`individually or cumulatively. The Forest Service approved the roadside tree felling portions of
`
`the Project pursuant to a CE applicable to “repair and maintenance” of roads. 36 C.F.R.
`
`§ 220.6(d)(4). The Forest Service approved the restoration and rehabilitation portions of the
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—2
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 3 of 29
`
`Project pursuant to a CE applicable to “post-fire rehabilitation activities.” Id. § 220.6(e)(11).
`
`KFA does not challenge the restoration and rehabilitation portions of the Project.
`
`4.
`
`KFA challenges the application of the “road repair and maintenance” CE to a
`
`project of this magnitude. Along 85 miles of road—covering approximately 4,106 acres—trees
`
`would be felled if they are (1) within 200 feet of the roadway, and (2) pose some hazard risk in
`
`the next five years. Most of these felled trees would be removed pursuant to commercial timber
`
`sale contracts, producing an estimated 30 million board feet of timber. The Forest Service has
`
`failed to articulate a rational explanation as to why such a major “salvage” logging project
`
`constitutes “road repair and maintenance” such that the Forest Service may avoid preparation of
`
`an EIS or even an EA.
`
`5.
`
`KFA acknowledges that felling of some danger trees along some travel corridors
`
`is necessary for the safety of the public and agency personnel, and the Forest already has
`
`conducted operations to address specific danger trees that pose immediate threats to human life
`
`and property pursuant to an emergency response. Now, however, the Forest Service has planned
`
`and authorized a major logging project targeting tens of thousands of trees posing no immediate
`
`hazard risk. Before approving a project of this magnitude, the Forest Service is obligated to
`
`prepare an EIS or EA.
`
`6.
`
`Proper review under an EIS or EA would force the Forest Service to take a “hard
`
`look” at the Project’s environmental impacts, including impacts to ESA-listed northern spotted
`
`owls and important habitat classified as “Late Successional Reserves.” In fact, the Forest Service
`
`concedes that the Project is “likely to adversely affect” owls, but failed to inform the public and
`
`decisionmaker of the scope and magnitude of the impacts or consider any alternatives that would
`
`lessen such impacts. Nor did the Forest Service engage in required consultation with the expert
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—3
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 4 of 29
`
`wildlife agency, the U.S. Fish and Wildlife Service, pursuant to Section 7 of the ESA. And the
`
`Forest Service did not evaluate the Project’s impacts to Late Successional Reserves at all.
`
`7.
`
`KFA respectfully requests this Court to vacate the DM and remand to the Forest
`
`Service for preparation of an EIS or EA for a full and fair analysis of the Project’s impacts.
`
`8.
`
`If necessary, KFA intends to seek narrowly tailored injunctive relief during the
`
`pendency of this litigation to protect sensitive species and their habitats but which would still
`
`permit the felling of any remaining hazardous trees posing an imminent risk along essential
`
`public travel corridors.
`
`9.
`
`Should it prevail, KFA will seek attorneys’ fees and costs pursuant to the Equal
`
`Access to Justice Act, 28 U.S.C. § 2412, the ESA, 16 U.S.C. § 1540(g)(4), and/or any other
`
`applicable authorities.
`
`JURISDICTION AND VENUE
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
`
`10.
`
`Plaintiff’s claims present a federal question. A present, actual, and justiciable controversy exists
`
`between the parties. The requested relief for a declaratory judgment is proper under 28 U.S.C.
`
`§ 2201, and the requested injunctive relief is proper under 28 U.S.C. § 2202.
`
`11.
`
`Plaintiff exhausted its administrative remedies by submitting scoping comments.
`
`The challenged agency action is subject to this Court’s review under 5 U.S.C. §§ 702, 704, and
`
`706. Defendants have waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.
`
`12.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the Project
`
`area is located within this judicial district. Defendants maintain an office in this judicial district.
`
`13.
`
`This case is properly filed in the Medford Division pursuant to Local Rule 3-2
`
`because a substantial part of the Project area, and Defendants’ office where the decision was
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—4
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 5 of 29
`
`signed, are located in Josephine County. A substantial part of the events or omissions giving rise
`
`to this claim occurred and the property that is subject to this action is situated in the Medford
`
`Division.
`
`Plaintiff
`
`PARTIES
`
`
`14.
`
`Plaintiff KLAMATH FOREST ALLIANCE (“KFA”) is a non-profit community
`
`organization founded in 1989, based in Orleans, California. KFA has 500 members and
`
`supporters. Its mission is to promote sustainable ecosystems and sustainable communities of the
`
`Klamath-Siskiyou Mountain region. KFA participates in forest planning through agency
`
`engagement, substantive comments, and collaboration. KFA uses law, science, place-based
`
`knowledge and conservation advocacy to defend the biodiversity, wildlife, waters, and mature
`
`forests of the Klamath-Siskiyou bioregion. KFA’s members and supporters use and enjoy the
`
`Project area and would be irreparably harmed if the Project moves forward.
`
`15.
`
`Plaintiff’s members and supporters regularly visit and enjoy the Forest, including
`
`the Project area, and intend to do so again in the near future. The members and supporters
`
`appreciate the aesthetics of the Forest, including its waters and wildlife, and use the area to
`
`engage in recreational, scientific, and spiritual activities, such as hunting, hiking, camping,
`
`fishing, photography, watershed research, and observing wildlife.
`
`16.
`
`Plaintiff has organizational interests in the proper and lawful management of the
`
`Forest. Plaintiff and its members and supporters have participated extensively in relevant
`
`administrative actions and have actively participated in the Project’s administrative process.
`
`17.
`
`Plaintiff, its members, supporters, and staff would sustain injury to aesthetic,
`
`educational, recreational, spiritual, and scientific interests if the Project proceeds as authorized.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—5
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 6 of 29
`
`Plaintiff, its members, supporters, and staff have concrete plans to return to the area where the
`
`Project is proposed. Unless this Court grants the requested relief, Plaintiff, its members,
`
`supporters, and staff will be adversely and irreparably harmed by the Project.
`
`Defendants
`
`18.
`
`Defendant SCOTT J. BLOWER is the Wild Rivers District Ranger for the Forest.
`
`Mr. Blower is the Responsible Official for the Project, and he signed the Decision Memorandum,
`
`constituting the final administrative action. As Wild Rivers District Ranger, Mr. Blower has the
`
`responsibility to ensure that the Project is consistent with applicable laws and regulations.
`
`Plaintiff brings this action against Mr. Blower in his official capacity.
`
`19.
`
`Defendant MERV GEORGE JR. is the Forest Supervisor for the Forest. Upon
`
`information and belief, Mr. George authorized Mr. Blower to sign the Decision Memorandum.
`
`As Forest Supervisor, Mr. George has the responsibility to ensure that all projects on the Forest
`
`are consistent with applicable laws and regulations. Plaintiff brings this action against Mr.
`
`George in his official capacity.
`
`20.
`
`Defendant the UNITED STATES FOREST SERVICE is an agency within the
`
`United States Department of Agriculture entrusted with the management of our national forests.
`
`The Forest Service is headquartered in Washington, D.C., and it has nine regions across the
`
`country. The national forests of Oregon are in Region 6. All or a significant portion of the
`
`actions and omissions alleged in this Complaint occurred in Region 6.
`
`
`
`National Environmental Policy Act
`
`
`LEGAL BACKGROUND
`
`21.
`
`Congress enacted NEPA to “declare a national policy which will encourage
`
`productive and enjoyable harmony between man and his environment; to promote efforts which
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—6
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 7 of 29
`
`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.
`
`22.
`
`To accomplish these purposes, NEPA requires all agencies of the federal
`
`government to prepare a “detailed statement” for all “major federal actions significantly affecting
`
`the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Commonly known as the
`
`Environmental Impact Statement or EIS, the detailed statement must describe, inter alia, the
`
`adverse environmental impact of the proposed action and alternatives to the proposed action. Id.
`
`23.
`
`NEPA further requires federal agencies to “study, develop, and describe
`
`appropriate alternatives to recommended courses of action in any proposal which involves
`
`unresolved conflicts concerning alternative uses of available resources.” Id. § 4332(2)(E).
`
`24.
`
`The Council on Environmental Quality (“CEQ”) promulgated regulations
`
`implementing NEPA and elaborating on the requirements of an EIS. 42 U.S.C. § 4342
`
`(establishing CEQ); 40 C.F.R. §§ 1500–1508 (2019) (CEQ’s NEPA regulations). CEQ modified
`
`the NEPA regulations by final rule on July 16, 2020. 40 C.F.R. §§ 1500–1508 (2020).
`
`25.
`
`On his first day of office, President Biden issued Executive Order 13990:
`
`Protecting Public Health and the Environment and Restoring Science to Tackle the Climate
`
`Crisis.1 The policy statement of EO 13990 provides that the policy of the Biden Administration
`
`is to, inter alia, listen to the science and to improve public health and protect our environment.
`
`EO 13990 directs the heads of all agencies to immediately review all existing regulations, orders,
`
`
`1 Available at https://www.whitehouse.gov/briefing-room/presidential-
`actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-
`science-to-tackle-climate-crisis/
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—7
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 8 of 29
`
`guidance documents, policies, and any similar agency actions promulgated, issued, or adopted
`
`between January 20, 2017, and January 20, 2021 that are inconsistent with the policy statement.
`
`26.
`
`The Biden Administration provided a non-exclusive list of agency actions that the
`
`heads of relevant agencies will review in accordance with EO 13990. See Fact Sheet: List of
`
`Agency Actions for Review.2 The modification to the CEQ regulations is on the list.
`
`27.
`
`The heads of some executive agencies and departments already have taken action
`
`pursuant to EO 13990. See, e.g., Secretary of the Interior Order (“SO”) No. 3399: Department-
`
`Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-
`
`Making Process.3 SO 3399 provides that “Bureaus/Offices will not apply the 2020 Rule in a
`
`manner that would change the application or level of NEPA that would have been applied to a
`
`proposed action before the 2020 Rule went into effect on September 14, 2020.” A similar
`
`directive applicable to the Forest Service/U.S. Department of Agriculture may be forthcoming.
`
`28.
`
`Under the 2020 NEPA regulations, agencies are to determine the appropriate level
`
`of NEPA review for a given project. 40 C.F.R. § 1501.3 (2020). Agencies must determine
`
`whether the proposed action: (1) Normally does not have significant effects and is categorically
`
`excluded; (2) is not likely to have significant effects or the significance of the effects is unknown
`
`and is therefore appropriate for an environmental assessment (“EA”); or (3) is likely to have
`
`significant effects and is therefore appropriate for an EIS. Id.
`
`29.
`
`CEQ regulations direct federal agencies to identify in their NEPA procedures
`
`certain categories of actions that normally do not require preparation of an EA or EIS. See 40
`
`C.F.R. § 1501.4(a) (2020); 40 C.F.R. § 1508.4 (2019). The Forest Service promulgated a series
`
`
`2 Available at https://www.whitehouse.gov/briefing-room/statements-
`releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/
`3 Available at https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3399-508_0.pdf
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—8
`
`
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 9 of 29
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`of categorical exclusions pursuant to the previous version of the CEQ regulations, which defined
`
`“categorical exclusion” as a “category of actions which do not individually or cumulatively have
`
`a significant effect on the human environment and which have been found to have no such effect
`
`by a federal agency in implementation of these regulations. 40 C.F.R. § 1508.4 (2019); 57 Fed.
`
`Reg. 43,180 (Sept. 18, 1992) (establishing categories); 73 Fed. Reg. 43,084 (July 24, 2008)
`
`(placing established categories under Forest Service NEPA regulations at 36 C.F.R. Part 220).
`
`30.
`
`36 C.F.R. § 220.6(a) provides that a proposed action may be categorically
`
`excluded from further analysis and documentation in an EIS or EA only if there are no
`
`extraordinary circumstances related to the proposed action and if it is within one of the
`
`categories established by the Secretary or it is within a category listed in Section 220.6(d) and
`
`(e).
`
`31.
`
`36 C.F.R. § 220.6(b) lists the resource conditions that should be considered in
`
`determining whether extraordinary circumstances related to a proposed action warrant further
`
`analysis and documentation in an EA or EIS, including “Federally listed threatened or
`
`endangered species or designated critical habitat, species proposed for Federal listing or
`
`proposed critical habitat, or Forest Service sensitive species.” Id. § 220.6(b)(1)(i). According to
`
`36 C.F.R. § 220.6(b)(2), the “mere presence of one or more of the resource conditions does not
`
`preclude use of a categorical exclusion; it is the existence of a cause-effect relationship between
`
`a proposed action and the potential effect on these resource conditions, and if such a relationship
`
`exists, the degree of potential effect of a proposed action on these resource conditions that
`
`determines whether extraordinary circumstances exist.”
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—9
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 10 of 29
`
`32.
`
`36 C.F.R. § 220.6(d) lists the categories of actions for which a project or case file
`
`and decision memo are not required. One such category is the repair and maintenance of roads,
`
`trails, and landline boundaries. Id. § 220.6(d)(4). Examples include, but are not limited to:
`
`(i)
`
`(ii)
`
`(i)
`
`(i)
`
`(i)
`
`Authorizing a user to grade, resurface, and clean the culverts of an
`established National Forest System road;
`
`Grading a road and clearing the roadside of brush without the use of
`herbicides;
`
`Resurfacing a road to its original condition;
`
`Pruning vegetation and cleaning culverts along a trail and grooming the
`surface of the trail; and
`
`Surveying, painting, and posting landline boundaries.
`
`
`
`33.
`
`36 C.F.R. § 220.6(e) lists the categories of actions for which a project or case file
`
`and decision memo are required. One such category is post-fire rehabilitation activities, not to
`
`exceed 4,200 acres (such as tree planting, fence replacement, habitat restoration, heritage site
`
`restoration, repair of roads and trails, and repair of damage to minor facilities such as
`
`campgrounds). Id. § 220.6(e)(11).
`
`34.
`
`Another such category is salvage of dead and/or dying trees not to exceed 250
`
`acres, requiring no more than ½ mile of temporary road construction. 36 C.F.R. § 220.6(e)(13).
`
`Examples include, but are not limited to:
`
`(i)
`
`(ii)
`
`35.
`
`Harvest of a portion of a stand damaged by a wind or ice event and construction
`of a short temporary road to access the damaged trees; and
`
`Harvest of fire-damaged trees.
`
`Forest Service regulations require “scoping” for all Forest Service proposed
`
`actions, including those that would be categorically excluded from further analysis and
`
`documentation in an EA or EIS. 36 C.F.R. § 220.4(e)(1). “If the responsible official determines,
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—10
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 11 of 29
`
`based on scoping, that it is uncertain whether the proposed action may have a significant effect
`
`on the environment,” the Forest Service must prepare an EA. 36 C.F.R. § 220.4(e)(2). “If the
`
`responsible official determines, based on scoping, that the proposed action may have a
`
`significant environmental effect,” the Forest Service must prepare an EIS. Id.
`
`National Forest Management Act (NFMA)
`
`36.
`
`The Forest is part of the National Forest System and is therefore subject to NFMA
`
`and its planning regulations.
`
`37.
`
`Pursuant to NFMA, management of National Forests occurs at two levels: forest
`
`and project. At the forest level, 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).
`
`38.
`
`The Forest Service, which manages the National Forest System, uses these plans,
`
`called “forest plans,” to guide all natural resource management activities, including use of the
`
`land for outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. 36
`
`C.F.R. § 219.1 (2000); 16 U.S.C. § 1604(e)(1). A forest plan is a broad, long-term programmatic
`
`planning document for the entire forest, containing goals and objectives for individual units of
`
`the forest and providing standards and guidelines for management of forest resources.
`
`39.
`
`At the project level, once a forest plan is in place, site-specific actions or
`
`“projects” are planned and evaluated by the Forest Service. Each site-specific project must be
`
`consistent with the governing forest plan. 16 U.S.C. § 1604(i).
`
`40.
`
`In 1989 and 1990, the Forest Service adopted the Siskiyou and Rogue National
`
`Forest Land and Resource Management Plans, respectively (collectively “Forest Plan”), which
`
`provides standards and guidelines for project-level planning within the Forest.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—11
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 12 of 29
`
`41.
`
`In 1994, the Forest Service and the Bureau of Land Management adopted the
`
`Record of Decision for the Northwest Forest Plan (“NWFP”). The NWFP established
`
`management requirements for all Forest Service and Bureau of Land Management land within
`
`the range of the northern spotted owl. The NWFP contains mandatory standards relating to the
`
`protection of northern spotted owls.
`
`42.
`
`The Forest is within the range of the northern spotted owl; the Forest Plan has
`
`been amended to include the management direction included in the NWFP.
`
`43.
`
`All management activities, actions, and projects on the Forest must comply with
`
`the Forest Plan and NWFP. In the event that there are differences in management direction
`
`between the two documents, the more restrictive of the two documents governs.
`
`Endangered Species Act
`
`
`44.
`
`Congress enacted the ESA “to provide a means whereby the ecosystems upon
`
`which endangered species and threatened species depend may be conserved” and to “provide a
`
`program for the conservation of such endangered species and threatened species, and to take
`
`such steps as may be appropriate.” 16 U.S.C. § 1531(b).
`
`45.
`
`To achieve these purposes, the Secretaries of Commerce and the Interior are
`
`responsible for administering and enforcing the ESA. 16 U.S.C. § 1532(15). The Secretaries of
`
`Commerce and the Interior delegated this responsibility to the National Marine Fisheries Service
`
`(“NMFS”) and the Fish and Wildlife Service (“FWS”) (collectively, the “Services”),
`
`respectively. 50 C.F.R. § 402.02(b). FWS administers the ESA as to terrestrial and freshwater
`
`species, and NFMS administers the ESA as to marine species.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—12
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 13 of 29
`
`46.
`
`The ESA makes it unlawful to “take” any “endangered” species and certain
`
`“threatened” species for which protective regulations have been promulgated. 16 U.S.C.
`
`§§ 1538(a)(1), 1533(d).
`
`47.
`
`Take means to “harass, harm, pursue, hunt, wound, kill, trap, capture, or collect or
`
`attempt to engage in any such conduct” with a listed species. 16 U.S.C. § 1532(19). Harm means
`
`“an act which actually kills or injures wildlife. Such act may include significant habitat
`
`modification or degradation where it actually kills or injures wildlife by significantly impairing
`
`essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3.
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`48.
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`An “endangered species” is “any species which is in danger of extinction
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`throughout all or a significant portion of its range . . . .” 16 U.S.C. §1532(6). A “threatened
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`species” is “any species which is likely to become endangered within the foreseeable future
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`throughout all or a significant portion of its range.” 16 U.S.C. §1532(20).
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`49.
`
`Section 7 of the ESA imposes substantive and procedural obligations on federal
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`agencies like the Forest Service. Substantively, Section 7 provides that federal agencies must
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`“insure that any action authorized, funded, or carried out by such agency * * * is not likely to
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`jeopardize the continued existence of any endangered species or threatened species or result in
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`the adverse modification of habitat of such species * * * determined * * * to be critical.” 16
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`U.S.C. § 1536(a)(2).
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`50.
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`Procedurally, Section 7 requires federal agencies (the “action agency”) to engage
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`in consultation with the applicable Service before undertaking a discretionary action that may
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`affect listed species or critical habitat. 16 U.S.C. § 1536(a)(2).
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`51.
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`Section 7 consultation is either informal or formal. Informal consultation is a
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`process designed to help the action agency determine whether to engage in formal consultation.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—13
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 14 of 29
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`40 C.F.R. § 402.13. If the action agency determines that the proposed action may affect, but is
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`“not likely to adversely affect” (“NLAA”) listed species or critical habitat, and the appropriate
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`Service concurs in writing, formal consultation is not required. 50 C.F.R. § 402.14(b)(1).
`
`52.
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`If the action agency decides that the action may affect, and is likely to adversely
`
`affect (“LAA”) a listed species, the action agency must engage in formal consultation with the
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`appropriate Service. 50 C.F.R. § 402.14(a). Formal consultation also is required if the consulting
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`agency does not concur in writing with the action agency’s NLAA determination. 50 C.F.R.
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`§ 402.14(b).
`
`53.
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`During formal consultation, the appropriate Service must “formulate its biological
`
`opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize
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`the continued existence of listed species or result in the destruction or adverse modification of
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`critical habitat.” 50 C.F.R. § 402.14(g)(4). The biological opinion (“BiOp”) must be based on the
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`best available science and commercial data. 16 U.S.C. § 1536(a)(2).
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`54.
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`The BiOp must include: A summary of the information on which the BiOp is
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`based; a detailed discussion of the environmental baseline of the listed species and critical
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`habitat; a detailed discussion of the effects of the action on listed species and critical habitat; and
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`the Service’s “jeopardy” opinion. 50 C.F.R. § 402.14(h)(1).
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`55.
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`In formulating its “jeopardy” opinion, the Service must, inter alia, add the effects
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`of the action and cumulative effects to the environmental baseline. 50 C.F.R. § 402.14(g).
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`56.
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`If the Service determines that the action is “likely to jeopardize the continued
`
`existence of a listed species or result in the destruction or adverse modification of critical
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`habitat,” the BiOp must include reasonable and prudent alternatives. Id. § 402.14(h)(1)(2).
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—14
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 15 of 29
`
`57.
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`The Service must issue an incidental take statement to the action agency if after
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`formal consultation, the Service concludes that the proposed action will result in take but is not
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`likely to jeopardize a listed species or adversely modify critical habitat. 16 U.S.C. § 1536(b)(4).
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`The incidental take statement must specify: The impact, i.e., the amount or extent, of the
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`incidental taking on the species; reasonable and prudent measures necessary or appropriate to
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`minimize the impact; and terms and conditions that must be complied with by the action agency
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`to implement the specified measures. 16 U.S.C. § 1536(b)(4)(C); 50 C.F.R. § 402.14(i).
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`58.
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`If the level of incidental take authorized by the incidental take permit is exceeded,
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`either the action agency or the Service must reinitiate formal consultation. 50 C.F.R. § 402.16.
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`59. Where emergency circumstances mandate the need to consult in an expedited
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`manner, consultation may be conducted informally through alternative procedures. 50 C.F.R.
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`§ 402.05(a). This provision applies to situations involving acts of God, disasters, casualties,
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`national defense, or security emergencies, etc. Id.
`
`60.
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`Formal consultation must be initiated as soon as practicable after the emergency is
`
`under control. Id. § 402.05(b).
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`61.
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`After the initiation of consultation, the action agency shall not make any
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`irreversible or irretrievable commitment of resources which has the effect of foreclosing the
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`formulation or implementation of any reasonable and prudent alternative. 16 U.S.C. § 1536(d).
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`Administrative Procedure Act
`
`
`62.
`
`The APA confers a right of judicial review on any person adversely affected by
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`agency action within the meaning of a relevant statute. 5 U.S.C. § 702. Agency action made
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`reviewable by statute and final agency action for which there is no other adequate remedy in
`
`court are subject to judicial review. 5 U.S.C. § 704.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—15
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Filed 05/21/21 Page 16 of 29
`
`63.
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`Upon review under the APA, a court shall “hold unlawful and set aside agency
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`action * * * found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
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`accordance with law * * *.” 5 U.S.C. § 706(2). Furthermore, when an agency has taken action
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`without observance of the procedure required by law, that action will be set aside. 5 U.S.C.
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`§ 706(2)(D).
`
`FACTUAL BACKGROUND
`
`The Rogue River-Siskiyou National Forest is located in Southern Oregon and
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`64.
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`Northern California and ranges from the crest of the Cascade Range west into the Siskiyou
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`Mountains, covering almost 1.8 million acres. The name “Rogue River” commemorates the
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`Takelma tribe, whose defense of their homeland led early French-Canadian trappers to call them
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`les Coquins, meaning “the Rogues.”
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`65.
`
`The Siskiyou Forest Reserve was established by President Theodore Roosevelt in
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`1905, and the Reserve was designated as the Siskiyou National Forest in 1907. The name
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`“Siskiyou” is a Cree word for “bob-tailed horse” (bestowed in 1828 by French Canadians
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`working for the Hudson Bay Company). The formerly separate Rogue River and Siskiyou
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`National Forests were administratively combined in 2004.
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`66.
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`The varied geological substrate and the climatic extremes of the Siskiyou
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`Mountains provide a range of niches for a rich diversity of geologic material. The Siskiyou
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`Mountains present a biological treasure trove of varied and unique species. There are 28 different
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`coniferous species, and numerous rare and endemic plants found in the Siskiyous.
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`67.
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`The Forest is home to numerous fish and wildlife species, including coastal
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`marten, coho salmon, and northern spotted owl.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—16
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`Case 1:21-cv-00781-CL Document 1 Fil