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)
`
`
`
`
`
`
`
`
`
`
`

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`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 2 of 28
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`NATURE OF ACTION
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`Plaintiffs Klamath-Siskiyou Wildlands Center (“KS Wild”), Cascadia Wildlands,
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`1.
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`Oregon Wild, and Soda Mountain Wilderness Council (“SMWC”) (collectively “Plaintiffs”),
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`bring this challenge under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., to
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`the final administrative action of the Bureau of Land Management, Medford District, Ashland
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`Field Office (“BLM” or “Defendant”). In issuing the Lost Antelope Environmental Assessment
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`(“EA”), Finding of No Significant Impact (“FONSI”), and Decision Record (“DR”) for the Lost
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`Antelope Vegetation Management Project (“Project”) in the Lost Antelope Project Area
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`(“Project Area”), Defendant acted arbitrarily, capriciously, and contrary to the Federal Land
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`Policy Management Act (“FLPMA”), 43 U.S.C. §§ 302 et seq., and the National Environmental
`
`Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h.
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`2.
`
`The DR authorized a timber sale within the Lost Antelope Vegetation
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`Management Project on BLM-administered lands located in the Little Butte Creek watershed in
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`Jackson County northeast of Medford, Oregon. The DR is the first decision to implement timber
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`sale activities contemplated in the Lost Antelope EA.
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`3.
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`This action seeks: 1) a declaration that the BLM violated FLPMA by authorizing
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`a Project that is inconsistent with the applicable Resource Management Plan; 2) a declaration
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`that the BLM violated NEPA and its implementing regulations by failing to take a hard look at,
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`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.
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`4.
`
`The requested relief is necessary to preserve the status quo, to prevent illegal
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`agency action, and to forestall irreparable injury to the environment.
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`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
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`5.
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`Should Plaintiffs prevail, Plaintiffs will seek attorneys’ fees and costs pursuant to
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`the Equal Access to Justice Act, 28 U.S.C. § 2412, and/or any other applicable authorities.
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`JURISDICTION AND VENUE
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
`
`6.
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`Plaintiffs’ claims present a federal question. A present, actual, and justiciable controversy exists
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`between the parties. The requested relief for a declaratory judgment is proper under 28 U.S.C.
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`§ 2201, and the requested injunctive relief is proper under 28 U.S.C. § 2202.
`
`7.
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`Plaintiffs have exhausted their administrative remedies by timely participation
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`throughout the agency’s timber sale planning process. The challenged agency action is subject to
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`this Court’s review under 5 U.S.C. §§ 702, 704, and 706. Defendant has waived sovereign
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`immunity in this action pursuant to 5 U.S.C. § 702.
`
`8.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the Project
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`area is located within this judicial district. Defendant maintains an office in this judicial district.
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`9.
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`This case is properly filed in the Medford Division pursuant to Local Rule 3-2
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`because the timber sale Project area, and Defendant’s office where the decision was signed, are
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`located in Jackson County. The events and omissions giving rise to this claim occurred and the
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`property that is subject to this action is situated in the Medford Division.
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`Plaintiffs
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`PARTIES
`
`
`10.
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`Plaintiff KLAMATH-SISKIYOU WILDLANDS CENTER (“KS Wild”) is a
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`domestic non-profit corporation organized and existing under the laws of the State of Oregon.
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`KS Wild’s main office is in Ashland, Oregon. KS Wild has over 3,500 members and supporters
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`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
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`California. On behalf of its members, KS Wild advocates for the forests, wildlife, and waters of
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`the Rogue and Klamath Basins and works to protect and restore the extraordinary biological
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`diversity of the Klamath-Siskiyou region of southwest Oregon and Northwest California. KS
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`Wild uses environmental law, science, education, and collaboration to help build healthy
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`ecosystems and sustainable communities. Through its campaign work, KS Wild strives to protect
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`the last wild areas and vital biological diversity of the Klamath-Siskiyou region. KS Wild is a
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`leader in protecting Oregon’s public lands and forests, and routinely participates in commenting,
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`monitoring, and litigation affecting public lands in Oregon. KS Wild is a membership
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`organization and has members who would be irreparably injured by implementation of the Lost
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`Antelope DR and timber sale.
`
`11.
`
`Plaintiff CASCADIA WILDLANDS is an Oregon non-profit organization based
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`in Eugene, Oregon. Representing over 12,000 members and supporters, Cascadia Wildlands is
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`devoted to the conservation of the Cascadia Bioregion, which extends from northern California
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`to southeastern Alaska. Cascadia Wildlands uses a combination of education, organizing,
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`outreach, litigation, advocacy, and collaboration to defend wild places and promote sustainable,
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`restoration-based forestry. Cascadia Wildlands’ members use the Lost Antelope timber sale area
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`for a variety of professional and personal pursuits including viewing threatened and endangered
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`species and their habitat. Implementation of the Lost Antelope DR and timber sale would
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`irreparably harm the interests of Cascadia Wildlands and its members.
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`12.
`
`Plaintiff OREGON WILD is a non-profit corporation with approximately 7,000
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`members and supporters throughout the state of Oregon and the Pacific Northwest. Oregon Wild
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`and its members are dedicated to protecting and restoring Oregon’s lands, wildlife, and waters as
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`an enduring legacy. Oregon Wild members use the Lost Antelope Project area for hiking,
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`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.
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`Implementation of the Lost Antelope DR and timber sale would irreparably harm the interests of
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`Oregon Wild and its members.
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`13.
`
`Plaintiff SODA MOUNTAIN WILDERNESS COUNCIL (“SMWC”) is a non-
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`profit organization incorporated in Oregon and headquartered near Ashland, Oregon. SMWC has
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`approximately 325 members and mails its newsletter to about ten times that many supporters,
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`with most members and supporters concentrated in southern Oregon and northwestern
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`California. SMWC is dedicated to protecting and restoring wildlands and preserving the
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`outstanding biodiversity and biological connectivity of the botanically significant Siskiyou
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`Mountains where they join the Cascade Range in southwest Oregon and northwest California.
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`SMWC monitors federal public land activities to ensure that management complies with relevant
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`federal laws, including environmental laws. SMWC also proposes designations that would better
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`protect the area. SMWC has a specific interest in the lands in southwest Oregon managed by the
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`BLM pursuant to the Oregon and California Revested Lands Sustained Yield Management Act
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`(“O&C Act”), 43 U.S.C. § 2601; it monitors the Medford and Klamath Falls Resource Area
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`BLM projects on O&C lands in near the Cascade-Siskiyou National Monument. SMWC
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`educated the public and elected officials, wrote comments, and otherwise advocated for the
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`designation of the Cascade-Siskiyou National Monument, which is directly adjacent to the Lost
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`Antelope planning area.
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`14.
`
`Plaintiffs have organizational interests in the proper and lawful management of
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`the public lands managed by the Medford District BLM. Plaintiffs have actively participated in
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`the Project’s administrative process by reviewing BLM proposals and documents, conducting
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`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
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`field exams, and submitting timely written comments regarding proposed BLM management
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`activities.
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`15.
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`Plaintiffs and their members, supporters, and staff would sustain injury to their
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`aesthetic, educational, recreational, spiritual, and scientific interests if the Lost Antelope timber
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`sale proceeds as authorized. Plaintiffs and their members, supporters, and staff have concrete
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`plans to return to the area where the sale is located. Unless this Court grants the requested relief,
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`Plaintiffs and their members, supporters, and staff will be adversely and irreparably harmed by
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`the logging of old-growth forest stands located within Lost Antelope timber sale units.
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`Defendant
`
`16.
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`Defendant UNITED STATES BUREAU OF LAND MANAGEMENT (“BLM”)
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`is an agency within the United States Department of the Interior and is charged with managing
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`public lands and resources in accordance and compliance with federal laws and regulations. It
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`issued the Lost Antelope EA and associated FONSI and DR authorizing the Lost Antelope
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`timber sale.
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`
`
`
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`Administrative Procedure Act (APA)
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`LEGAL BACKGROUND
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`17.
`
`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
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`court are subject to judicial review. 5 U.S.C. § 704.
`
`18.
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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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`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
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`observance of the procedure required by law, that action will be set aside. 5 U.S.C. § 706(2)(D).
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`
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`Federal Land Policy and Management Act (FLPMA)
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`19.
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`Congress enacted the Federal Land Policy and Management Act in 1976, in part
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`“to provide for the management, protection, development, and enhancement of the public lands.”
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`Pub. L. 94-579; see also 43 U.S.C. § 1701 et seq. Congress enacted FLPMA to ensure that the
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`present and future use of public lands be “projected through a land use planning process.” 43
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`U.S.C. § 1701(a)(2). In FLPMA, Congress expressed its belief that our public lands should “be
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`managed in a manner that will protect the quality of scientific, scenic, historical, environmental,
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`air and atmospheric, water resource and archeological values.” 43 U.S.C. § 1701(A)(8).
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`20.
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`FLPMA requires the BLM to develop land use plans called “resource
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`management plans” (“RMPs”) that govern the use of the land BLM manages. 43 U.S.C. § 1712.
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`Once a resource management plan has been developed, the BLM is required to manage its lands
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`in compliance with the plan and ensure that any site-specific projects conform to the RMP. 43
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`U.S.C. § 1732; 43 C.F.R. § 1610.5-3(a).
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`21.
`
`The BLM issued the Southwestern Oregon RMP for the Ashland Resource Area
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`of the Medford BLM District in 2016. The final 2016 Southwestern Oregon RMP (“2016 RMP”)
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`applies to the Lost Antelope Project and the timber sale authorized by the DR.
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`22.
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`The 2016 RMP allocates varying amounts of land to six different land use
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`categories, including late-successional reserves (“LSR”), riparian reserves, and the Harvest Land
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`Base (“HLB”). The HLB land use allocation is managed for sustained-yield timber harvest,
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`balanced with other applicable objectives and directives. The LSRs are managed to, inter alia,
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`develop, maintain, and promote northern spotted owl nesting, roosting and foraging habitat.
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`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
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`
`National Environmental Policy Act (NEPA)
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`
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`23.
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`Congress enacted the National Environmental Policy Act to “declare a national
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`policy which will encourage productive and enjoyable harmony between man and his
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`environment; to promote efforts which will prevent or eliminate damage to the environment and
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`biosphere and simulate the health and welfare of man; [and] to enrich the understanding of the
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`ecological systems and natural resources important to the Nation.” 42 U.S.C. § 4321.
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`24.
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`To accomplish these purposes, NEPA and its implementing regulations set forth
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`procedures designed to (1) ensure that federal agencies take a “hard look” at the environmental
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`consequences of their proposed actions, and (2) foster meaningful public participation.
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`25.
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`The Council on Environmental Quality (“CEQ”) has promulgated uniform
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`regulations to implement NEPA that are binding on all federal agencies, including the BLM. 42
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`U.S.C. § 4342; 40 C.F.R. §§ 1500 et seq (1978) (“1978 CEQ regulations”). During the Trump
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`Administration, the CEQ regulations were modified (“2020 CEQ regulations”).
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`26.
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`On his first day of office, President Biden issued Executive Order 13990:
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`Protecting Public Health and the Environment and Restoring Science to Tackle the Climate
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`Crisis.1 It provides that the policy of the Biden Administration is to, inter alia, be guided by best
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`available science, improve public health, and protect our environment. EO 13990 directs the
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`heads of all federal agencies to immediately review all existing regulations, orders, guidance
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`documents, policies, and any similar agency actions promulgated, issued, or adopted between
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`January 20, 2017 and January 20, 2021 that are inconsistent with the policy statement.
`
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`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
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`27.
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`The Biden Administration provided a non-exclusive list of agency actions that the
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`heads of relevant agencies will review in accordance with EO 13990. See Fact Sheet: List of
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`Agency Actions for Review.2 The 2020 CEQ regulations are the first item on President Biden’s
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`list.
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`28.
`
`In response to EO 13990, the Secretary of the Interior issued Order (“SO”) No.
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`3399: Department-Wide Approach to the Climate Crisis and Restoring Transparency and
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`Integrity to the Decision-Making Process.3 SO 3399 provides that “Bureaus/Offices will not
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`apply the 2020 Rule in a manner that would change the application or level of NEPA that would
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`have been applied to a proposed action before the 2020 Rule went into effect on September 14,
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`2020.” Thus, the 1978 regulations apply to the Lost Antelope Project.
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`29.
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`NEPA requires all federal agencies to prepare a “detailed statement” for all
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`“major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.
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`§ 4332(2)(C). This detailed statement, known as the Environmental Impact Statement, or EIS,
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`must describe the environmental impacts of the proposed action and alternatives to the proposed
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`action. Id. An EIS must “provide full and fair discussion of significant environmental impacts
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`and shall inform decisionmakers and the public of the reasonable alternatives which would avoid
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`or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. §§
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`1508.11, 1502.1.
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`30.
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`NEPA further requires federal agencies to “study, develop, and describe
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`appropriate alternatives to recommended courses of action in any proposal which involves
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`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
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`

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`Case 1:21-cv-01647-CL Document 1 Filed 11/11/21 Page 10 of 28
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`31.
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`In determining whether a proposed action may “significantly” impact the
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`environment, both the context and intensity of the action must be considered. 40 C.F.R. §
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`1508.27. In evaluating intensity, federal agencies must consider numerous “significance” factors,
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`including impacts that may be both beneficial and adverse; the degree to which the proposed
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`action affects public health or safety; any unique characteristics of the geographic area such as
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`proximity to historic or cultural resources, parks lands, prime farmlands, wetlands, wild and
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`scenic rivers or ecologically critical areas; the degree to which the effects on the quality of the
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`human environment are likely to be highly controversial; the degree to which the possible effects
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`on the human environment are highly uncertain or involve unique or unknown risks; the degree
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`to which the action may establish a precedent for future actions with significant effects or
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`represents a decision in principle about a future consideration; whether the action is related to
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`other actions with individually insignificant but cumulatively significant impacts; the degree to
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`which the action may adversely affect districts, sites, highways, structures, or objects listed in or
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`eligible for listing in the National Register of Historic Places or may cause loss or destruction of
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`significant scientific, cultural, or historical resources; the degree to which the action may
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`adversely affect an endangered or threated species or its habitat that has been determined to be
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`critical under the Endangered Species Act of 1973; and whether the action threatens a violation
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`of Federal, State, or local law or requirements imposed for the protection of the environment. 40
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`C.F.R. §§ 1508.27(b)(1)-(10).
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`32.
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`If an agency is unsure if a federal action will have a significant effect on the
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`human environment, it must prepare an Environmental Assessment (“EA”) to determine if an
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`EIS is required. 40 C.F.R. § 1501.4.
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`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
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`33.
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`After analyzing a proposed action, an agency may determine that it will have no
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`significant impact on the environment and decide to implement it. For an agency’s decision to be
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`considered reasonable, a decision record and finding of no significant impact (“DR/FONSI”)
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`must be issued containing sufficient evidence and analysis to show the decision is reasonably
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`supported by the facts. The agency must show a rational connection between the facts found and
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`the decision rendered. If the agency fails to consider important aspects of the problem in its
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`NEPA analysis, its decision is arbitrary and capricious.
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`34.
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`To support an agency determination of non-significance, NEPA documents must
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`consider the direct, indirect, and cumulative environmental impacts of a proposed action. 40
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`C.F.R. § 1508.8. Direct effects are caused by the action and occur at the same time and place as
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`the proposed project. 40 C.F.R. § 1508.8(a). Indirect effects are caused by the action and are later
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`in time or farther removed in distances but are still reasonably foreseeable. 40 C.F.R. §
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`1508.8(b). Both types of impacts include “effects on natural resources and on the components,
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`structures, and functioning of affected ecosystems,” as well as “aesthetic, historic, cultural,
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`economic, social or health [effects].” 40 C.F.R. § 1508. Cumulative impact results when the
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`“incremental impact of the action [is] added to other past, present, and reasonably foreseeable
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`future actions” undertaken by any person or agency. 40 C.F.R. § 1508.7.
`
`35.
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`NEPA requires that environmental information be available to public officials and
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`citizens before agency decisions are made and before any actions occur to implement the
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`proposed project. 40 C.F.R. § 1500.1(b). The information released must be of high quality and
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`sufficient to allow the public to question the agency rationale and understand the agency’s
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`decision-making process. Id.
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`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
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`36.
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`40 C.F.R. § 1502.20 provides that “[a]gencies are encouraged to tier their
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`environmental impact statements to eliminate repetitive discussions of the same issues and to
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`focus on the actual issues ripe for decision at each level of environmental review (§ 1508.28).” A
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`subsequent environmental assessment “shall concentrate on the issues specific to the subsequent
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`action.” Id.
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`37.
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`Courts view tiered analyses as a whole when determining whether they
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`adequately address all impacts and may reject such environmental review where none of the
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`documents address significant issues. Under NEPA, an agency cannot minimize an activity’s
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`environmental impact by adopting a broad scale analysis and marginalizing the activity’s site-
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`specific impact.
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`FACTUAL AND ADMINISTRATIVE BACKGROUND
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`
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`
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`The Lost Antelope Project
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`38.
`
`On or about October 16, 2020, the Ashland Field Office of the Medford District
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`of the BLM published the scoping notice for the Lost Antelope Vegetative Management Project.
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`The scoping notice described the Project as contemplating 1,300 acres of commercial timber
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`harvest logging activities.
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`39.
`
`The Lost Antelope project area is in southwest Oregon, located in the Wildland
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`Urban Interface (WUI) zone for communities such as Lost Creek, and directly adjacent to the
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`Cascade-Siskiyou National Monument, which was designated by President Clinton in 2000 and
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`expanded by President Obama in 2017. The Cascade-Siskiyou National Monument contains
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`important intact forest habitat and is the only National Monument designated to protect the
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`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
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`40.
`
`The scoping notice described the project as being designed to achieve
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`management direction relating to: 1) timber harvest in the Harvest Land Base; 2) hazardous fuels
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`reduction; and 3) timber harvest in the Late Successional Reserve.
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`41.
`
`On November 12, 2020, Plaintiffs submitted timely scoping comments on the
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`Project. The scoping comments raised concerns about the effects of regeneration harvest on fire
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`hazard, the impacts of logging on northern spotted owls and other resident species, and the need
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`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
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`BLM posted a notification letter and a version of the Lost Antelope Environmental Assessment
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`to the BLM e-planning website, triggering a 30-day commenting period on the Lost Antelope
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`EA. The initial posted version of the June 2021 EA included the BLM interdisciplinary team’s
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`tracked comments throughout the document.
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`43. Within a few days BLM removed the previously posted version of the EA and
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`posted a new version of the Lost Antelope EA without tracked comments. BLM did not initiate a
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`new 30-day comment period.
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`44.
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`The EA described the purposes of the Project as including “manage activity fuels
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`and natural hazardous fuels to modify the fuel profile… and reduce potential fire behavior and
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`severity;” and, in LSRs, “limit … silviculture treatments… to those that do not preclude or delay
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`by 20 years or more the development of northern spotted owl nesting-roosting habitat in the
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`stand and in adjacent stands, as compared to development without treatment.”
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`45.
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`The EA described the needs for the Project as including “increase stand-level fire
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`resistance and decrease stand-level fire hazard from current conditions” and “develop spotted
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`owl nesting-roosting habitat in the LSR-Dry LUA.”
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`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
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`46.
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`The Lost Antelope EA analyzed four alternatives, which included a “no action”
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`alternative and three “action” alternatives with varying levels of timber harvest in different land
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`allocations.
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`47.
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`Plaintiffs submitted timely comments on the Lost Antelope EA. In the comments,
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`Plaintiffs raised concerns about the BLM’s intent to log in Late Successional Reserves and to
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`remove northern spotted owl habitat in the LSRs via that logging. Plaintiff raised concerns that
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`the Forest Service intended to proceed with spotted owl habitat removal in LSRs despite its
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`modeling showing that the proposed logging would delay the establishment of canopy cover
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`necessary for development of spotted owl nesting and roosting habitat by more than two decades.
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`48.
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`Plaintiffs also raised concerns that forest canopy removal followed by
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`establishment of artificial plantations will increase fire risk and hazard.
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`49.
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`On August 31, 2021, the Ashland Field Office of the Medford District of the
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`BLM published a final Lost Antelope EA (“Final EA”).
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`50.
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`The Final EA acknowledged that the proposed logging would increase fire hazard
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`in “regeneration harvesting” logging units within and near the WUI in both the short term and
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`long term but did not provide a site-specific, detailed analysis of this issue. Rather, the Final EA
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`stated that the BLM had sufficiently analyzed fire risk and hazard in the programmatic EIS for
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`the 2016 RMP, to which the Lost Antelope EA tiers.
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`51.
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`On August 31, 2021, BLM also published a Finding of No Significant Impact
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`(“FONSI”) and separate Decision Record (“DR”). The DR authorizes the Lost Antelope timber
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`sale (“timber sale”), which provides for, inter alia, 476 acres of timber harvest, including 112
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`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
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`476 acres of timber harvest will produce approximately 5.4 million board feet (“MMbf”) of
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`timber.
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`52.
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`The DR notes that the “other activities analyzed in the EA but not included in this
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`decision, may be included under future decisions at a later date.”
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`
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`Northern Spotted Owl Habitat and Late Successional Reserve Logging
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`53.
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`The northern spotted owl (Strix occidentalis caurina) is a medium-sized, dark
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`brown owl with a barred tail, white spots on the head and breast, and dark brown eyes
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`surrounded by prominent facial disks. The northern spotted owl occupies late-successional and
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`old-growth forest habitat from southern British Columbia through Washington, Oregon, and
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`California as far south as Marin County, including the Lost Antelope project area.
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`54.
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`Spotted owls rely on older forest habitats because they generally contain the
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`structures and characteristics required for the owl’s essential biological functions of nesting,
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`roosting, foraging, and dispersal. These structures include: a multi-layered and multi-species tree
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`canopy dominated by large overstory trees; moderate to high canopy closure; a high incidence of
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`trees with large cavities and other types of deformities; numerous large snags; an abundance of
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`large, dead wood on the ground; and open space within and below the upper canopy for owls to
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`fly. Forested stands with high canopy closure also provide thermal cover as well as protection
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`from predation. This habitat is known as “nesting, roosting, and foraging” or “NRF” habitat.
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`55.
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`Due to concerns over widespread habitat loss and modification as well as the lack
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`of regulatory mechanisms to protect the species, the United States Fish and Wildlife Service
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`(“FWS”) listed the northern spotted owl as “threatened” under the Endangered Species Act on
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`June 26, 1990. 16 U.S.C. § 1533(a); Determination of Threatened Status for the Northern
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`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
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`56.
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`Critical habitat was designated for the species in 1992 and revised in 2008.
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`Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the
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`Northern Spotted Owl; Final Rule, 73 Fed. Reg. 47,325 (Aug. 13, 2008). A draft revised
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`northern spotted owl critical habitat rule was published on March 8, 2012 and finalized on
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`December 4, 2012. Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
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`for the Northern Spotted Owl: Final Rule, 77 Fed. Reg. 71,876 (December 4, 2012).
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`57.
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`The 2012 critical habitat rule states that “primary constituent elements” of
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`northern spotted owl critical nesting and roosting habitat
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`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.
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`77 Fed. Reg. 71,905.
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`58.
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`The Medford District of the BLM is within the range of the northern spotted owl.
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`The 2016 RMP designated areas within the Medford District as LSR and those areas are
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`governed by the RMP.
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`59.
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`Per the RMP, LSRs are managed to develop, maintain, and promote northern
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`spotted owl nesting, roosting and foraging habitat.
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`60.
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`The RMP prohibits logging in LSRs that precludes or delays by 20 years or more
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`the development of northern spotted owl nesting-roosting habitat in the stand and in adjacent
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`stands, as compared to development without treatment. Rather, the RMP directs treatments in
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`these habitat reserves “to speed the development of northern spotted owl nesting-roosting habitat
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`or improve the quality of northern spotted owl nesting-roosting habitat in the stand or in the
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`adjacent stand in the long term.”
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—16
`
`
`
`Crag Law Center
`3141 E Burnsi