throbber
Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 1 of 28
`
`Meriel L. Darzen, OSB # 113645
`(503) 525-2725  meriel@crag.org
`Erin Hogan-Freemole, OSB # 212850
`(503) 234-0788 erin@crag.org
`CRAG LAW CENTER
`3141 E. Burnside St.
`Portland, Oregon 97214
`Fax: (503) 296-5454
`
`Nicholas S. Cady (OSB # 113463)
`Tel: 541-434-1463
`Email: nick@cascwild.org
`Cascadia Wildlands
`P.O. Box 10455
`Eugene, Oregon 97440
`
`
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`MEDFORD DIVISION
`
`KLAMATH-SISKIYOU WILDLANDS
`CENTER, CASCADIA WILDLANDS,
`OREGON WILD, and SODA MOUNTAIN
`WILDERNESS COUNCIL,
`
`
`Plaintiffs,
`
`v.
`
`UNITED STATES BUREAU OF LAND
`MANAGEMENT,
`
`
`
`
`Defendant.
`
`Case No.
`
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`(Environmental Matters –
`Violations of Federal Land Policy and
`Management Act; National Environmental
`Policy Act; Administrative Procedure Act)
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 2 of 28
`
`NATURE OF ACTION
`
`Plaintiffs Klamath-Siskiyou Wildlands Center (“KS Wild”), Cascadia Wildlands,
`
`1.
`
`Oregon Wild, and Soda Mountain Wilderness Council (“SMWC”) (collectively “Plaintiffs”),
`
`bring this challenge under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., to
`
`the final administrative action of the Bureau of Land Management, Medford District, Ashland
`
`Field Office (“BLM” or “Defendant”). In issuing the Lost Antelope Environmental Assessment
`
`(“EA”), Finding of No Significant Impact (“FONSI”), and Decision Record (“DR”) for the Lost
`
`Antelope Vegetation Management Project (“Project”) in the Lost Antelope Project Area
`
`(“Project Area”), Defendant acted arbitrarily, capriciously, and contrary to the Federal Land
`
`Policy Management Act (“FLPMA”), 43 U.S.C. §§ 302 et seq., and the National Environmental
`
`Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h.
`
`2.
`
`The DR authorized a timber sale within the Lost Antelope Vegetation
`
`Management Project on BLM-administered lands located in the Little Butte Creek watershed in
`
`Jackson County northeast of Medford, Oregon. The DR is the first decision to implement timber
`
`sale activities contemplated in the Lost Antelope EA.
`
`3.
`
`This action seeks: 1) a declaration that the BLM violated FLPMA by authorizing
`
`a Project that is inconsistent with the applicable Resource Management Plan; 2) a declaration
`
`that the BLM violated NEPA and its implementing regulations by failing to take a hard look at,
`
`and adequately disclose and consider the projects effects on, fire risk and hazard and northern
`
`spotted owl habitat; and 3) the vacatur and remand of the Project to the BLM.
`
`4.
`
`The requested relief is necessary to preserve the status quo, to prevent illegal
`
`agency action, and to forestall irreparable injury to the environment.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—2
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 3 of 28
`
`5.
`
`Should Plaintiffs prevail, Plaintiffs will seek attorneys’ fees and costs pursuant to
`
`the Equal Access to Justice Act, 28 U.S.C. § 2412, and/or any other applicable authorities.
`
`JURISDICTION AND VENUE
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
`
`6.
`
`Plaintiffs’ 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.
`
`7.
`
`Plaintiffs have exhausted their administrative remedies by timely participation
`
`throughout the agency’s timber sale planning process. The challenged agency action is subject to
`
`this Court’s review under 5 U.S.C. §§ 702, 704, and 706. Defendant has waived sovereign
`
`immunity in this action pursuant to 5 U.S.C. § 702.
`
`8.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the Project
`
`area is located within this judicial district. Defendant maintains an office in this judicial district.
`
`9.
`
`This case is properly filed in the Medford Division pursuant to Local Rule 3-2
`
`because the timber sale Project area, and Defendant’s office where the decision was signed, are
`
`located in Jackson County. The events and omissions giving rise to this claim occurred and the
`
`property that is subject to this action is situated in the Medford Division.
`
`Plaintiffs
`
`PARTIES
`
`
`10.
`
`Plaintiff KLAMATH-SISKIYOU WILDLANDS CENTER (“KS Wild”) is a
`
`domestic non-profit corporation organized and existing under the laws of the State of Oregon.
`
`KS Wild’s main office is in Ashland, Oregon. KS Wild has over 3,500 members and supporters
`
`in more than 10 states, with most members concentrated in southern Oregon and northern
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—3
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 4 of 28
`
`California. On behalf of its members, KS Wild advocates for the forests, wildlife, and waters of
`
`the Rogue and Klamath Basins and works to protect and restore the extraordinary biological
`
`diversity of the Klamath-Siskiyou region of southwest Oregon and Northwest California. KS
`
`Wild uses environmental law, science, education, and collaboration to help build healthy
`
`ecosystems and sustainable communities. Through its campaign work, KS Wild strives to protect
`
`the last wild areas and vital biological diversity of the Klamath-Siskiyou region. KS Wild is a
`
`leader in protecting Oregon’s public lands and forests, and routinely participates in commenting,
`
`monitoring, and litigation affecting public lands in Oregon. KS Wild is a membership
`
`organization and has members who would be irreparably injured by implementation of the Lost
`
`Antelope DR and timber sale.
`
`11.
`
`Plaintiff CASCADIA WILDLANDS is an Oregon non-profit organization based
`
`in Eugene, Oregon. Representing over 12,000 members and supporters, Cascadia Wildlands is
`
`devoted to the conservation of the Cascadia Bioregion, which extends from northern California
`
`to southeastern Alaska. Cascadia Wildlands uses a combination of education, organizing,
`
`outreach, litigation, advocacy, and collaboration to defend wild places and promote sustainable,
`
`restoration-based forestry. Cascadia Wildlands’ members use the Lost Antelope timber sale area
`
`for a variety of professional and personal pursuits including viewing threatened and endangered
`
`species and their habitat. Implementation of the Lost Antelope DR and timber sale would
`
`irreparably harm the interests of Cascadia Wildlands and its members.
`
`12.
`
`Plaintiff OREGON WILD is a non-profit corporation with approximately 7,000
`
`members and supporters throughout the state of Oregon and the Pacific Northwest. Oregon Wild
`
`and its members are dedicated to protecting and restoring Oregon’s lands, wildlife, and waters as
`
`an enduring legacy. Oregon Wild members use the Lost Antelope Project area for hiking,
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—4
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 5 of 28
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`recreation, bird watching, nature appreciation, and other recreational and professional pursuits.
`
`Implementation of the Lost Antelope DR and timber sale would irreparably harm the interests of
`
`Oregon Wild and its members.
`
`13.
`
`Plaintiff SODA MOUNTAIN WILDERNESS COUNCIL (“SMWC”) is a non-
`
`profit organization incorporated in Oregon and headquartered near Ashland, Oregon. SMWC has
`
`approximately 325 members and mails its newsletter to about ten times that many supporters,
`
`with most members and supporters concentrated in southern Oregon and northwestern
`
`California. SMWC is dedicated to protecting and restoring wildlands and preserving the
`
`outstanding biodiversity and biological connectivity of the botanically significant Siskiyou
`
`Mountains where they join the Cascade Range in southwest Oregon and northwest California.
`
`SMWC monitors federal public land activities to ensure that management complies with relevant
`
`federal laws, including environmental laws. SMWC also proposes designations that would better
`
`protect the area. SMWC has a specific interest in the lands in southwest Oregon managed by the
`
`BLM pursuant to the Oregon and California Revested Lands Sustained Yield Management Act
`
`(“O&C Act”), 43 U.S.C. § 2601; it monitors the Medford and Klamath Falls Resource Area
`
`BLM projects on O&C lands in near the Cascade-Siskiyou National Monument. SMWC
`
`educated the public and elected officials, wrote comments, and otherwise advocated for the
`
`designation of the Cascade-Siskiyou National Monument, which is directly adjacent to the Lost
`
`Antelope planning area.
`
`14.
`
`Plaintiffs have organizational interests in the proper and lawful management of
`
`the public lands managed by the Medford District BLM. Plaintiffs have actively participated in
`
`the Project’s administrative process by reviewing BLM proposals and documents, conducting
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—5
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 6 of 28
`
`field exams, and submitting timely written comments regarding proposed BLM management
`
`activities.
`
`15.
`
`Plaintiffs and their members, supporters, and staff would sustain injury to their
`
`aesthetic, educational, recreational, spiritual, and scientific interests if the Lost Antelope timber
`
`sale proceeds as authorized. Plaintiffs and their members, supporters, and staff have concrete
`
`plans to return to the area where the sale is located. Unless this Court grants the requested relief,
`
`Plaintiffs and their members, supporters, and staff will be adversely and irreparably harmed by
`
`the logging of old-growth forest stands located within Lost Antelope timber sale units.
`
`Defendant
`
`16.
`
`Defendant UNITED STATES BUREAU OF LAND MANAGEMENT (“BLM”)
`
`is an agency within the United States Department of the Interior and is charged with managing
`
`public lands and resources in accordance and compliance with federal laws and regulations. It
`
`issued the Lost Antelope EA and associated FONSI and DR authorizing the Lost Antelope
`
`timber sale.
`
`
`
`
`
`Administrative Procedure Act (APA)
`
`LEGAL BACKGROUND
`
`17.
`
`The APA confers a right of judicial review on any person adversely affected by
`
`agency action within the meaning of a relevant statute. 5 U.S.C. § 702. Agency action made
`
`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.
`
`18.
`
`Upon review under the APA, a court shall “hold unlawful and set aside agency
`
`action * * * found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—6
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 7 of 28
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`accordance with law * * *.” 5 U.S.C. § 706(2). Furthermore, when an agency has acted without
`
`observance of the procedure required by law, that action will be set aside. 5 U.S.C. § 706(2)(D).
`
`
`
`Federal Land Policy and Management Act (FLPMA)
`
`19.
`
`Congress enacted the Federal Land Policy and Management Act in 1976, in part
`
`“to provide for the management, protection, development, and enhancement of the public lands.”
`
`Pub. L. 94-579; see also 43 U.S.C. § 1701 et seq. Congress enacted FLPMA to ensure that the
`
`present and future use of public lands be “projected through a land use planning process.” 43
`
`U.S.C. § 1701(a)(2). In FLPMA, Congress expressed its belief that our public lands should “be
`
`managed in a manner that will protect the quality of scientific, scenic, historical, environmental,
`
`air and atmospheric, water resource and archeological values.” 43 U.S.C. § 1701(A)(8).
`
`20.
`
`FLPMA requires the BLM to develop land use plans called “resource
`
`management plans” (“RMPs”) that govern the use of the land BLM manages. 43 U.S.C. § 1712.
`
`Once a resource management plan has been developed, the BLM is required to manage its lands
`
`in compliance with the plan and ensure that any site-specific projects conform to the RMP. 43
`
`U.S.C. § 1732; 43 C.F.R. § 1610.5-3(a).
`
`21.
`
`The BLM issued the Southwestern Oregon RMP for the Ashland Resource Area
`
`of the Medford BLM District in 2016. The final 2016 Southwestern Oregon RMP (“2016 RMP”)
`
`applies to the Lost Antelope Project and the timber sale authorized by the DR.
`
`22.
`
`The 2016 RMP allocates varying amounts of land to six different land use
`
`categories, including late-successional reserves (“LSR”), riparian reserves, and the Harvest Land
`
`Base (“HLB”). The HLB land use allocation is managed for sustained-yield timber harvest,
`
`balanced with other applicable objectives and directives. The LSRs are managed to, inter alia,
`
`develop, maintain, and promote northern spotted owl nesting, roosting and foraging habitat.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—7
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 8 of 28
`
`
`National Environmental Policy Act (NEPA)
`
`
`
`23.
`
`Congress enacted the National Environmental Policy Act 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 simulate 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.
`
`24.
`
`To accomplish these purposes, NEPA and its implementing regulations set forth
`
`procedures designed to (1) ensure that federal agencies take a “hard look” at the environmental
`
`consequences of their proposed actions, and (2) foster meaningful public participation.
`
`25.
`
`The Council on Environmental Quality (“CEQ”) has promulgated uniform
`
`regulations to implement NEPA that are binding on all federal agencies, including the BLM. 42
`
`U.S.C. § 4342; 40 C.F.R. §§ 1500 et seq (1978) (“1978 CEQ regulations”). During the Trump
`
`Administration, the CEQ regulations were modified (“2020 CEQ regulations”).
`
`26.
`
`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 It provides that the policy of the Biden Administration is to, inter alia, be guided by best
`
`available science, improve public health, and protect our environment. EO 13990 directs the
`
`heads of all federal agencies to immediately review all existing regulations, orders, 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.
`
`
`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—8
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 9 of 28
`
`27.
`
`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 2020 CEQ regulations are the first item on President Biden’s
`
`list.
`
`28.
`
`In response to EO 13990, the Secretary of the Interior issued 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.” Thus, the 1978 regulations apply to the Lost Antelope Project.
`
`29.
`
`NEPA requires all federal agencies 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). This detailed statement, known as the Environmental Impact Statement, or EIS,
`
`must describe the environmental impacts of the proposed action and alternatives to the proposed
`
`action. Id. An EIS must “provide full and fair discussion of significant environmental impacts
`
`and shall 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. §§
`
`1508.11, 1502.1.
`
`30.
`
`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.” 42 U.S.C. § 4332(2)(E).
`
`
`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—9
`
`
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 10 of 28
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`31.
`
`In determining whether a proposed action may “significantly” impact the
`
`environment, both the context and intensity of the action must be considered. 40 C.F.R. §
`
`1508.27. In evaluating intensity, federal agencies must consider numerous “significance” factors,
`
`including impacts that may be both beneficial and adverse; the degree to which the proposed
`
`action affects public health or safety; any unique characteristics of the geographic area such as
`
`proximity to historic or cultural resources, parks lands, prime farmlands, wetlands, wild and
`
`scenic rivers or ecologically critical areas; the degree to which the effects on the quality of the
`
`human environment are likely to be highly controversial; the degree to which the possible effects
`
`on the human environment are highly uncertain or involve unique or unknown risks; the degree
`
`to which the action may establish a precedent for future actions with significant effects or
`
`represents a decision in principle about a future consideration; whether the action is related to
`
`other actions with individually insignificant but cumulatively significant impacts; the degree to
`
`which the action may adversely affect districts, sites, highways, structures, or objects listed in or
`
`eligible for listing in the National Register of Historic Places or may cause loss or destruction of
`
`significant scientific, cultural, or historical resources; the degree to which the action may
`
`adversely affect an endangered or threated species or its habitat that has been determined to be
`
`critical under the Endangered Species Act of 1973; and whether the action threatens a violation
`
`of Federal, State, or local law or requirements imposed for the protection of the environment. 40
`
`C.F.R. §§ 1508.27(b)(1)-(10).
`
`32.
`
`If an agency is unsure if a federal action will have a significant effect on the
`
`human environment, it must prepare an Environmental Assessment (“EA”) to determine if an
`
`EIS is required. 40 C.F.R. § 1501.4.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—10
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 11 of 28
`
`33.
`
`After analyzing a proposed action, an agency may determine that it will have no
`
`significant impact on the environment and decide to implement it. For an agency’s decision to be
`
`considered reasonable, a decision record and finding of no significant impact (“DR/FONSI”)
`
`must be issued containing sufficient evidence and analysis to show the decision is reasonably
`
`supported by the facts. The agency must show a rational connection between the facts found and
`
`the decision rendered. If the agency fails to consider important aspects of the problem in its
`
`NEPA analysis, its decision is arbitrary and capricious.
`
`34.
`
`To support an agency determination of non-significance, NEPA documents must
`
`consider the direct, indirect, and cumulative environmental impacts of a proposed action. 40
`
`C.F.R. § 1508.8. Direct effects are caused by the action and occur at the same time and place as
`
`the proposed project. 40 C.F.R. § 1508.8(a). Indirect effects are caused by the action and are later
`
`in time or farther removed in distances but are still reasonably foreseeable. 40 C.F.R. §
`
`1508.8(b). Both types of impacts include “effects on natural resources and on the components,
`
`structures, and functioning of affected ecosystems,” as well as “aesthetic, historic, cultural,
`
`economic, social or health [effects].” 40 C.F.R. § 1508. Cumulative impact results when the
`
`“incremental impact of the action [is] added to other past, present, and reasonably foreseeable
`
`future actions” undertaken by any person or agency. 40 C.F.R. § 1508.7.
`
`35.
`
`NEPA requires that environmental information be available to public officials and
`
`citizens before agency decisions are made and before any actions occur to implement the
`
`proposed project. 40 C.F.R. § 1500.1(b). The information released must be of high quality and
`
`sufficient to allow the public to question the agency rationale and understand the agency’s
`
`decision-making process. Id.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—11
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 12 of 28
`
`36.
`
`40 C.F.R. § 1502.20 provides that “[a]gencies are encouraged to tier their
`
`environmental impact statements to eliminate repetitive discussions of the same issues and to
`
`focus on the actual issues ripe for decision at each level of environmental review (§ 1508.28).” A
`
`subsequent environmental assessment “shall concentrate on the issues specific to the subsequent
`
`action.” Id.
`
`37.
`
`Courts view tiered analyses as a whole when determining whether they
`
`adequately address all impacts and may reject such environmental review where none of the
`
`documents address significant issues. Under NEPA, an agency cannot minimize an activity’s
`
`environmental impact by adopting a broad scale analysis and marginalizing the activity’s site-
`
`specific impact.
`
`FACTUAL AND ADMINISTRATIVE BACKGROUND
`
`
`
`
`
`The Lost Antelope Project
`
`38.
`
`On or about October 16, 2020, the Ashland Field Office of the Medford District
`
`of the BLM published the scoping notice for the Lost Antelope Vegetative Management Project.
`
`The scoping notice described the Project as contemplating 1,300 acres of commercial timber
`
`harvest logging activities.
`
`39.
`
`The Lost Antelope project area is in southwest Oregon, located in the Wildland
`
`Urban Interface (WUI) zone for communities such as Lost Creek, and directly adjacent to the
`
`Cascade-Siskiyou National Monument, which was designated by President Clinton in 2000 and
`
`expanded by President Obama in 2017. The Cascade-Siskiyou National Monument contains
`
`important intact forest habitat and is the only National Monument designated to protect the
`
`outstanding biological diversity of the area.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—12
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 13 of 28
`
`40.
`
`The scoping notice described the project as being designed to achieve
`
`management direction relating to: 1) timber harvest in the Harvest Land Base; 2) hazardous fuels
`
`reduction; and 3) timber harvest in the Late Successional Reserve.
`
`41.
`
`On November 12, 2020, Plaintiffs submitted timely scoping comments on the
`
`Project. The scoping comments raised concerns about the effects of regeneration harvest on fire
`
`hazard, the impacts of logging on northern spotted owls and other resident species, and the need
`
`to conform to the 2016 RMP, among other concerns.
`
`42.
`
`On or about June 1, 2021, the Ashland Field Office of the Medford District of the
`
`BLM posted a notification letter and a version of the Lost Antelope Environmental Assessment
`
`to the BLM e-planning website, triggering a 30-day commenting period on the Lost Antelope
`
`EA. The initial posted version of the June 2021 EA included the BLM interdisciplinary team’s
`
`tracked comments throughout the document.
`
`43. Within a few days BLM removed the previously posted version of the EA and
`
`posted a new version of the Lost Antelope EA without tracked comments. BLM did not initiate a
`
`new 30-day comment period.
`
`44.
`
`The EA described the purposes of the Project as including “manage activity fuels
`
`and natural hazardous fuels to modify the fuel profile… and reduce potential fire behavior and
`
`severity;” and, in LSRs, “limit … silviculture treatments… to those that do not preclude or delay
`
`by 20 years or more the development of northern spotted owl nesting-roosting habitat in the
`
`stand and in adjacent stands, as compared to development without treatment.”
`
`45.
`
`The EA described the needs for the Project as including “increase stand-level fire
`
`resistance and decrease stand-level fire hazard from current conditions” and “develop spotted
`
`owl nesting-roosting habitat in the LSR-Dry LUA.”
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—13
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 14 of 28
`
`46.
`
`The Lost Antelope EA analyzed four alternatives, which included a “no action”
`
`alternative and three “action” alternatives with varying levels of timber harvest in different land
`
`allocations.
`
`47.
`
`Plaintiffs submitted timely comments on the Lost Antelope EA. In the comments,
`
`Plaintiffs raised concerns about the BLM’s intent to log in Late Successional Reserves and to
`
`remove northern spotted owl habitat in the LSRs via that logging. Plaintiff raised concerns that
`
`the Forest Service intended to proceed with spotted owl habitat removal in LSRs despite its
`
`modeling showing that the proposed logging would delay the establishment of canopy cover
`
`necessary for development of spotted owl nesting and roosting habitat by more than two decades.
`
`48.
`
`Plaintiffs also raised concerns that forest canopy removal followed by
`
`establishment of artificial plantations will increase fire risk and hazard.
`
`49.
`
`On August 31, 2021, the Ashland Field Office of the Medford District of the
`
`BLM published a final Lost Antelope EA (“Final EA”).
`
`50.
`
`The Final EA acknowledged that the proposed logging would increase fire hazard
`
`in “regeneration harvesting” logging units within and near the WUI in both the short term and
`
`long term but did not provide a site-specific, detailed analysis of this issue. Rather, the Final EA
`
`stated that the BLM had sufficiently analyzed fire risk and hazard in the programmatic EIS for
`
`the 2016 RMP, to which the Lost Antelope EA tiers.
`
`51.
`
`On August 31, 2021, BLM also published a Finding of No Significant Impact
`
`(“FONSI”) and separate Decision Record (“DR”). The DR authorizes the Lost Antelope timber
`
`sale (“timber sale”), which provides for, inter alia, 476 acres of timber harvest, including 112
`
`acres of regeneration harvest in the HLB, and 169 acres of selection harvest in LSR lands. These
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—14
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 15 of 28
`
`476 acres of timber harvest will produce approximately 5.4 million board feet (“MMbf”) of
`
`timber.
`
`52.
`
`The DR notes that the “other activities analyzed in the EA but not included in this
`
`decision, may be included under future decisions at a later date.”
`
`
`
`Northern Spotted Owl Habitat and Late Successional Reserve Logging
`
`53.
`
`The northern spotted owl (Strix occidentalis caurina) is a medium-sized, dark
`
`brown owl with a barred tail, white spots on the head and breast, and dark brown eyes
`
`surrounded by prominent facial disks. The northern spotted owl occupies late-successional and
`
`old-growth forest habitat from southern British Columbia through Washington, Oregon, and
`
`California as far south as Marin County, including the Lost Antelope project area.
`
`54.
`
`Spotted owls rely on older forest habitats because they generally contain the
`
`structures and characteristics required for the owl’s essential biological functions of nesting,
`
`roosting, foraging, and dispersal. These structures include: a multi-layered and multi-species tree
`
`canopy dominated by large overstory trees; moderate to high canopy closure; a high incidence of
`
`trees with large cavities and other types of deformities; numerous large snags; an abundance of
`
`large, dead wood on the ground; and open space within and below the upper canopy for owls to
`
`fly. Forested stands with high canopy closure also provide thermal cover as well as protection
`
`from predation. This habitat is known as “nesting, roosting, and foraging” or “NRF” habitat.
`
`55.
`
`Due to concerns over widespread habitat loss and modification as well as the lack
`
`of regulatory mechanisms to protect the species, the United States Fish and Wildlife Service
`
`(“FWS”) listed the northern spotted owl as “threatened” under the Endangered Species Act on
`
`June 26, 1990. 16 U.S.C. § 1533(a); Determination of Threatened Status for the Northern
`
`Spotted Owl, 55 Fed. Reg. 26,114 (June 26, 1990) (codified at 50 C.F.R. § 17.11(h)).
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—15
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 16 of 28
`
`56.
`
`Critical habitat was designated for the species in 1992 and revised in 2008.
`
`Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the
`
`Northern Spotted Owl; Final Rule, 73 Fed. Reg. 47,325 (Aug. 13, 2008). A draft revised
`
`northern spotted owl critical habitat rule was published on March 8, 2012 and finalized on
`
`December 4, 2012. Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
`
`for the Northern Spotted Owl: Final Rule, 77 Fed. Reg. 71,876 (December 4, 2012).
`
`57.
`
`The 2012 critical habitat rule states that “primary constituent elements” of
`
`northern spotted owl critical nesting and roosting habitat
`
`typically include a moderate to high canopy cover (60 to over 80 percent); a multilayered,
`multispecies canopy with large (greater than 30 in (76 cm) dbh) overstory trees; a high
`incidence of large trees with various deformities (e.g., large cavities, broken tops,
`mistletoe infections, and other evidence of decadence); large snags; large accumulations
`of fallen trees and other woody debris on the ground; and sufficient open space below the
`canopy for northern spotted owls to fly.
`
`77 Fed. Reg. 71,905.
`
`58.
`
`The Medford District of the BLM is within the range of the northern spotted owl.
`
`The 2016 RMP designated areas within the Medford District as LSR and those areas are
`
`governed by the RMP.
`
`59.
`
`Per the RMP, LSRs are managed to develop, maintain, and promote northern
`
`spotted owl nesting, roosting and foraging habitat.
`
`60.
`
`The RMP prohibits logging in LSRs that precludes or delays by 20 years or more
`
`the development of northern spotted owl nesting-roosting habitat in the stand and in adjacent
`
`stands, as compared to development without treatment. Rather, the RMP directs treatments in
`
`these habitat reserves “to speed the development of northern spotted owl nesting-roosting habitat
`
`or improve the quality of northern spotted owl nesting-roosting habitat in the stand or in the
`
`adjacent stand in the long term.”
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—16
`
`
`
`Crag Law Center
`3141 E Burnsi

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