Case 6:21-cv-01225-AA Document 1 Filed 08/18/21 Page 1 of 33
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`Nicholas S. Cady (OSB # 113463)
`Cascadia Wildlands
`P.O. Box 10455
`Eugene, Oregon 97440
`Tel: 541-434-1463
`Email: nick@cascwild.org
`
`Meriel L. Darzen (OSB #113645)
`Crag Law Center
`3141 E. Burnside Street
`Portland, Oregon 97214
`Tel: 503-525-2725
`Email: meriel@crag.org
`
`Attorneys for Plaintiffs
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`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF OREGON
`EUGENE DIVISION
`
`
`
`CASCADIA WILDLANDS, an Oregon non-
`profit corporation; OREGON WILD, an
`Oregon non-profit corporation,
`
` Plaintiffs,
`
`
`
`
` vs.
`
`UNITED STATES FOREST SERVICE, a
`federal agency,
`
`
` Defendant.
`
`
`
`
`
`
`
`
`
`Civ. Case No.
`
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`(Violations of National Environmental
`Policy Act, Endangered Species Act,
`Freedom of Information Act, and
`Administrative Procedure Act)
`
`
`INTRODUCTION
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`1.
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`Cascadia Wildlands and Oregon Wild (“Plaintiffs”) bring this civil action for
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`declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§
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`701–706, for claims arising under the laws of the United States, including the National
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`Case 6:21-cv-01225-AA Document 1 Filed 08/18/21 Page 2 of 33
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`Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the Endangered Species
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`Act, 16 U.S.C. §§ 1531 et seq. (“ESA”), regarding the unlawful actions of the United States
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`Forest Service (“Forest Service” or “Defendant”).
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`2.
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`In 2020, fires burned through various Forest Service timber sale project areas
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`throughout the Willamette National Forest. These fires burned at a variety of severities, and
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`affected parts of the forest that were slated for previously approved but unimplemented timber
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`sales. These areas included parts of two unimplemented projects that Plaintiffs participated in
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`developing: the Green Mountain Project and the Lang Dam Project.
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`3.
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`The Green Mountain Project was in large part designed to mimic the effects of
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`fire on the landscape and involved logging of live green trees. The Forest Service reasoned that
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`because “[p]ast logging practices and fire exclusion have resulted in dense, uniform species
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`stands,” commercial logging was designed to mitigate these negative impacts by mimicking
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`“natural disturbance patterns” and restore these stands by thinning and adding more snags and
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`downed wood. Additionally, the project was designed to create “early seral habitat,” or post-fire
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`habitat, because it was lacking on the landscape.
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`4.
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`The Forest Service signed a final record of decision for the Green Mountain
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`project in 2017.
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`5.
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`The Lang Dam project was designed to use commercial thinning to restore forest
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`stands that had high tree-density, only moderate amounts of downed wood, and few snags.
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`Again, the logging prescriptions targeted live trees and were designed to mimic the effects of a
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`mixed severity fire that would result in natural mortality and density reduction while creating a
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`substantial amount of downed wood and snags.
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`6.
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`Both projects affected resident endangered species and required ESA Section 7
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`consultation.
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`7.
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`At the time fires burned through these areas in 2020, portions of these two
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`projects remained unimplemented.
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`8.
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`The 2020 fires drastically changed the Green Mountain and Lang Dam project
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`areas. The fires reduced tree density and created snags and downed wood.
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`9.
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`Across the project area, the fires created substantial amount of complex early-
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`seral habitat.
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`10.
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`In other words, the fires naturally created much of the habitat conditions the
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`Forest Service’s Green Mountain and Lang Dam projects were designed to mimic.
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`11.
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`After the fires were contained, the Forest Service “repackaged” several timber
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`sales from the Green Mountain and Lang Dam projects and changed the logging prescriptions
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`from restoration thinning to post-fire clearcutting and salvage logging.
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`12.
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`These changes were made without any public process, NEPA analysis, or ESA
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`consultation. Plaintiffs happened to discover that the logging was occurring and connected the
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`dots to the previous projects.
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`13.
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`In the wake of this discovery, Plaintiffs requested records pertaining to the
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`changes from the Forest Service.
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`14.
`
`The Forest Service did not provide the requested documents and stopped
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`responding to Plaintiffs’ email inquiries.
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`15.
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`The Forest Service removed the documents and project files associated with the
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`Green Mountain and Lang Dam timber sales from the Forest Service website.
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`16.
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`On June 7, 2021, Cascadia Wildlands submitted a Freedom of Information Act
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`(“FOIA”) request for records pertaining to the project changes. This request was acknowledged
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`by the Forest Service, but the agency has yet to produce any documents.
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`17.
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`The post-fire logging on the Lang Dam and Green Mountain projects must be
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`analyzed under NEPA. The ongoing post-fire logging has impacts on the human and natural
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`environment that have not been considered in any existing NEPA document. Further, the post-
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`fire landscape in which this logging is currently taking place has never been analyzed by the
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`Forest Service in any NEPA document.
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`18.
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`The 2020 fires and the changes from green tree prescriptions to post-fire salvage
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`amount to significant new information and changed circumstances that require supplementation
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`of Green Mountain and Long Dam NEPA documents and reinitiation of ESA consultation.
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`19.
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`Plaintiffs seek declaratory and injunctive relief to redress the injuries caused by
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`these violations of laws and prevent the irreparable degradation of these post-fire complex seral
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`habitats which the Forest Service previously claimed were needed in the Green Mountain and
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`Long Dam project areas.
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`20.
`
`Further, Defendant has violated FOIA by failing to provide any responsive
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`documents to Cascadia Wildlands’ request for records relating to the project changes in the wake
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`of the 2020 fires. The Forest Service acknowledged the request, but to date has failed to provide
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`any responsive documents or definitely state when it might do so. Accordingly, the Forest
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`Service is unlawfully withholding the records by failing to search for and provide all responsive
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`records as required by FOIA.
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`21.
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`By initiating this action, Plaintiff seeks to: 1) obtain a declaration that post-fire
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`modification of these existing projects violates NEPA; 2) obtain a declaration that Defendant’s
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`failure to reinitiate Section 7 consultation violates the ESA; 3) obtain a declaration that
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`Defendants’ failure to timely make determinations on the FOIA request is unlawful under FOIA,
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`5 U.S.C. § 552(a)(6)(A); 4) order the Forest Service to search for and produce all responsive
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`records to the FOIA request sought in this action by a reasonable date certain; and 5) enjoin the
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`Forest Service, its contractors, assigns, and other agents from moving forward with any further
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`activity within these project areas unless and until this court determines that the violations of law
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`set forth herein have been corrected.
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`JURISDICTION AND VENUE
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`22.
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`Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 (federal
`
`question), 2201 (injunctive relief), 2202 (declaratory relief), and 28 U.S.C. § 1346 (United States
`
`as a defendant). This cause of action arises under the laws of the United States, including the
`
`Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., the National Environmental
`
`Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., Freedom of Information Act (FOIA), 5 U.S.C. §
`
`552(a)(4)(B), and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. An actual,
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`justiciable controversy exists between Plaintiffs and Defendant, and the requested relief is
`
`therefore proper under 28 U.S.C. § 1651, 28 U.S.C. §§ 2201-02, and 5 U.S.C. §§ 701-06.
`
`23.
`
`Venue in this court is proper under 26 U.S.C. § 1391 because all or a substantial
`
`part of the events or omissions giving rise to the claims herein occurred within this judicial
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`district, Plaintiffs and Defendant reside in this district, and the public lands and resources at issue
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`are located in this district. Plaintiffs Cascadia Wildlands and Oregon Wild have offices in
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`Eugene, Oregon. Pursuant to Local Rule 3-2(b), this case is properly filed in the Court’s Eugene
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`Division in Eugene, Oregon.
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`PARTIES
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`24.
`
`Plaintiff CASCADIA WILDLANDS is a non-profit corporation headquartered in
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`Eugene, Oregon, with approximately 12,000 members and supporters throughout the United
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`States. Cascadia Wildlands educates, agitates, and inspires a movement to protect and restore
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`wild ecosystems in the Cascadia Bioregion, extending from Northern California up into Alaska.
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`Cascadia Wildlands envisions vast old-growth forests, rivers full of salmon, wolves howling in
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`the backcountry, and vibrant communities sustained by the unique landscapes of the Cascadia
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`Bioregion. Cascadia Wildlands’ members have used and will continue to use the Lang Dam and
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`Green Mountain Project area for activities such as hiking, bird watching, camping, swimming,
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`fishing, foraging, photography, and other recreational and professional pursuits.
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`25.
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`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 North Fork Overlook area for hiking,
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`recreation, bird watching, nature appreciation, and other recreational pursuits. The interests of
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`Oregon Wild and its members will be irreparably impaired if the North Fork Overlook sale is
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`allowed to proceed without compliance with our federal environmental laws.
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`26.
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`Defendant UNITED STATES FOREST SERVICE is an agency or
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`instrumentality of the United States and is charged with managing the public lands and resources
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`of the Willamette National Forest in accordance and compliance with federal laws and
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`regulations.
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`APPLICABLE LAW
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`National Environmental Policy Act (NEPA)
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`27.
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`Congress enacted NEPA in 1969, directing all federal agencies to assess the
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`environmental impacts of proposed actions that “significantly affect the quality of the human
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`environment.” 42 U.S.C. § 4332(2)(C).
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`28.
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`The Council on Environmental Quality (“CEQ”) promulgated regulations
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`implementing NEPA and elaborating on the requirements of an EIS. 42 U.S.C. § 4342
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`(establishing CEQ); 40 C.F.R. §§ 1500–1508 (2019) (CEQ’s 1978 NEPA regulations). CEQ
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`modified the NEPA regulations by final rule on July 16, 2020. 40 C.F.R. §§ 1500–1508 (2020).
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`29.
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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. The policy statement of EO 13990 provides that the policy of the Biden Administration is
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`to, inter alia, listen to the science and to improve public health and protect our environment. EO
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`13990 directs the heads of all agencies to immediately review all existing regulations, orders,
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`guidance documents, policies, and any similar agency actions promulgated, issued, or adopted
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`between January 20, 2017, and January 20, 2021 that are inconsistent with the policy statement.
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`30.
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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. The modification to the
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`CEQ regulations is on the list.
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`31.
`
`The heads of some executive agencies and departments already have taken action
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`pursuant to EO 13990. See, e.g., Secretary of the Interior Order (“SO”) No. 3399: Department-
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`Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-
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`Making Process. SO 3399 provides that “Bureaus/Offices will not apply the 2020 Rule in a
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`manner that would change the application or level of NEPA that would have been applied to a
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`proposed action before the 2020 Rule went into effect on September 14, 2020.” A similar
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`directive applicable to the Forest Service/U.S. Department of Agriculture may be forthcoming.
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`32.
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` NEPA’s disclosure goals are two-fold: (1) to ensure that the agency has carefully
`
`and fully contemplated the environmental effects of its action and (2) to ensure that the public
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`has sufficient information to meaningfully participate in the decision-making process.
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`33.
`
`NEPA’s first requirement that federal agencies prepare an Environmental Impact
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`Statement (EIS) “serves NEPA’s ‘action-forcing’ purpose” of “ensur[ing]” that federal
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`decisionmakers “will have available, and will carefully consider, detailed information concerning
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`significant environmental impacts” before approving new projects.
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`34.
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`An EIS is a “detailed statement” that must describe (1) the “environmental impact
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`of the proposed action,” (2) any “adverse environmental effects which cannot be avoided should
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`the proposal be implemented,” (3) alternatives to the proposed action, (4) “the relationship
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`between local short term uses of man’s environment and the maintenance and enhancement of
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`long-term productivity,” and (5) any “irreversible or irretrievable commitment of resources
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`which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332.
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`35. When it is not clear whether an action requires the preparation of an EIS, the
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`regulations direct agencies to prepare a document known as an Environmental Assessment
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`(“EA”) in order to determine whether an EIS is required. 40 C.F.R. §§ 1501.5(b), 1508.1(h)
`
`(2020).
`
`36.
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`If based on an EA, an agency determines that an action may have a significant
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`environmental impact, the agency must prepare an EIS. 40 C.F.R. § 1501.3 (2020). If the agency
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`determines that the impacts will not be significant, the agency must prepare a Finding of No
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`Significant Impact (“FONSI”). 40 C.F.R. § 1501.6 (2020).
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`37.
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`NEPA's second requirement promotes transparency, ensuring that environmental
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`information is available to public officials and citizens before agencies make final decisions or
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`any actions occur to implement proposed projects. 40 C.F.R. § 1500.1 (2020).
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`38.
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`Even after an agency has completed an EIS or an EA, NEPA requires it to prepare
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`a new or supplemental analysis where significant new information relevant to environmental
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`concerns and bearing on the proposed action or its impacts arises, or where the agency makes
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`substantial changes to the proposed action that are relevant to environmental concerns. This
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`mandate is present in both the 1978 CEQ regulations as well as the 2020 CEQ regulations. See
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`40 C.F.R. § 1502.9(c)(1) (2019); 40 C.F.R. § 1502.9(d)(1) (2020).
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`Freedom of Information Act (FOIA)
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`39.
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`FOIA’s basic purpose is government transparency. It establishes the public’s right
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`to access all federal agency records unless such records may be withheld pursuant to one of nine,
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`narrowly construed FOIA exemptions. 5 U.S.C. § 552(b)(1)-(9).
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`40.
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`FOIA imposes strict and rigorous deadlines on federal agencies when they receive
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`a request for records pursuant to FOIA. Specifically, an agency must determine whether to
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`disclose responsive records and notify the requester of its determination within 20 working days
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`of receiving a FOIA request, and it must make records “promptly” available, unless it can
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`establish that certain unusual circumstances are present and/or that it may lawfully withhold
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`records, or portions thereof, from disclosure. 5 U.S.C.§ 552(a)(3)(A), (a)(6).
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`41.
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`Also within 20 working days, the agency must inform the requester that it has a
`
`right to appeal the agency’s determination. Id. § 552(a)(6)(A)(i).
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`42.
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`FOIA places the burden on the agency to prove that it may withhold responsive
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`records from a requester. 5 U.S.C.§ 552(a)(4)(B).
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`43.
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`Congress has specified limited circumstances in which federal agencies may
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`obtain more time to make the determination that is required by 5 U.S.C. § 552(a)(6)(A)(i).
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`44.
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`First, an agency may toll the 20-working-day deadline to seek additional
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`information or clarification from a requester, but that tolling period ends when the agency
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`receives such information or clarification. 5 U.S.C.§ 552(a)(6)(A).
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`45.
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`Second, an agency may extend the 20-working-day deadline for an additional 10
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`working days by giving a written notice to the requester that sets forth “unusual circumstances”
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`to justify a deadline extension, which also requires that it provide the date by which the agency
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`expects to make the determination. 5 U.S.C.§ 552(a)(6)(B)(i). However, to invoke such “unusual
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`circumstances,” the agency must provide the requester with “an opportunity to limit the scope of
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`the request so that it may be processed within [20 working days] or an opportunity to arrange
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`with the agency an alternative time frame for processing the request or a modified request.” Id. §
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`552(a)(6)(B)(ii). In addition, when asserting unusual circumstances, the agency “shall make
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`available its FOIA Public Liaison” to “assist in the resolution of any disputes between the
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`requester and the agency.” Id.
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`46.
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`FOIA requires each agency to make reasonable efforts to search for records in a
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`manner that is reasonably calculated to locate all records that are responsive to the FOIA request.
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`5 U.S.C.§ 552(a)(3)(C)-(D).
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`47.
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`FOIA requires federal agencies to expeditiously disclose requested records, 5
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`U.S.C.§ 552, and mandates a policy of broad disclosure of government records. Any inquiry
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`under FOIA brings with it a strong presumption in favor of disclosure.
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`48.
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`The United States district courts have jurisdiction “to enjoin the agency from
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`withholding agency records and to order the production of any agency records improperly
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`withheld from the complainant.” 5 U.S.C.§ 552(a)(4)(B).
`
`49.
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`Alternatively, an agency’s response to a FOIA request is subject to judicial review
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`under the APA, which confers a right of judicial review on any person who is adversely affected
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`by an agency action, 5 U.S.C. § 702, and authorizes district courts to compel agency action that
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`is unlawfully withheld or unreasonably delayed. Id. § 706(1). District courts must set aside any
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`agency action that is found to be “arbitrary, capricious, an abuse of discretion or otherwise not in
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`accordance with law.” Id. § 706(2)(A).
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`Endangered Species Act (ESA)
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`50.
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`Congress enacted the ESA, in part, “to provide a means whereby the ecosystems
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`upon which endangered species and threatened species depend may be conserved.” 16 U.S.C.
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`§ 1531(b).
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`51.
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`To achieve this purpose, the Secretaries of Commerce and the Interior are
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`responsible for administering and enforcing the ESA. See 16 U.S.C. § 1532(15).
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`52.
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`The Secretaries of Commerce and the Interior delegated this responsibility to the
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`National Marine Fisheries Service (“NMFS”) and the United States Fish and Wildlife Service
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`(“FWS”), respectively (collectively, the “wildlife agencies”). 50 C.F.R. § 402.02(b).
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`53.
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`“Endangered Species” is defined as 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).
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`54.
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`In addition to the responsibilities of the Secretaries, all federal departments must
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`seek to conserve threatened and endangered species. 16 U.S.C. § 1531(c)(1). Section 7 of the
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`ESA establishes that federal agencies have a substantive obligation to “insure that any action
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`authorized, funded, or carried out by such agency...is not likely to jeopardize the continued
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`existence of any endangered species or threatened species or result in the adverse modification of
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`habitat of such species...determined...to be critical....” 16 U.S.C. § 1536(a)(2).
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`55.
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`To meet this substantive duty, Section 7 imposes procedural requirements on
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`federal agencies. In particular, federal agencies must engage in consultation (“Section 7
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`Consultation”) with either or both wildlife agencies before undertaking a discretionary action
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`that may affect listed species or critical habitat. 16 U.S.C. § 1536(a)(2).
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`56.
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`A federal agency must comply with the procedural requirements of Section 7
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`Consultation for endangered species. 16 U.S.C. § 1536. For Section 7 consultation, a federal
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`agency must determine whether a proposed action may affect listed species or critical habitat. 16
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`U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
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`57.
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`Both the action agency and the wildlife agency must ensure that an action is “not
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`likely to jeopardize the continued existence of any [listed] species or resulting in the destruction
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`or adverse modification of [critical habitat]. 16 U.S.C. § 1536(a)(2).
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`58.
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`Federal agencies must use the best scientific and commercial data available to
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`comply with their obligations under Section 7. 16 U.S.C. § 1536(a)(2).
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`59.
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`Reinitiation of Section 7 consultation is required where discretionary Federal
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`involvement or control is retained or authorized by law, and if, either new information reveals
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`effects on a listed species or critical habitat not previously considered, or if the original action is
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`modified in a manner that causes an affect not previously considered. 50 C.F.R. § 402.16(a)(2),
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`(3).
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`60.
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`The duty to reinitiate consultation lies with both the action agency and the
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`wildlife agency. Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th
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`Cir. 2008).
`
`Administrative Procedure Act
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`61.
`
`The Administrative Procedure Act (APA) confers a right of judicial review on any
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`person adversely affected by federal agency action. 5 U.S.C. § 702. Upon review, the court
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`shall “hold unlawful and set aside agency actions . . . found to be arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
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`STATEMENT OF FACTS
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`Holiday Farm Fire
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`62.
`
`The 2020 wildfire season drastically affected the Willamette National Forest. The
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`Holiday Farm Fire began on September 7, 2020, encompassed 173,439 acres of primarily mixed
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`conifer forest, burned in a mosaic pattern through most of the area, and the majority burned with
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`low and moderate severity.
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`63.
`
`On September 30, 2020, the Forest Service assembled a Burned Area Emergency
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`Response team, composed of specialists in soils, geology, hydrology, engineering, botany,
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`recreation, archaeology, fisheries, and GIS to begin assessing the post-fire effects to critical
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`values on Forest Service lands.
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`64.
`
`Given the mosaic burn pattern of the Holiday Farm Fire, the mixed-conifer
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`landscape throughout the burn area was affected in a variety of ways.
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`65.
`
`In areas where the fire burned at moderate to high severity, the fire created
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`complex early seral stands, which the Forest Service has previously determined was lacking
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`across the landscape given past and ongoing fire suppression practices.
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`66.
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`The fires also created downed wood and snags, or standing dead trees, or
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`damaged trees that will die over the next 10-20 years and provide critical habitat for older forest
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`species.
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`67.
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`The fire also impacted soils. Soil burn severity (SBS) is the primary characteristic
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`driving post-fire soil erosion response and sediment delivery.
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`68. Within the Holiday Farm Fire burned area, 63% of mapped areas on Forest
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`Service managed lands experienced high and moderate SBS. Across this area, long-term soil
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`productivity was identified as a critical value with a high risk of damage or loss.
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`69.
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`Concerning geology and landslide risk, the Forest Service concluded that “there is
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`an elevated risk of instability in the form of rockfall and debris flows across much of the burned
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`area.” The Forest Service concluded that “[t]he cumulative risk of various types of slope
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`instability, sediment bulking, and channel flushing is high along many slopes and drainages in
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`and below the burned area following the Holiday Farm Fire.”
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`70.
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`Concerning hydrology, the Forest Service concluded that the “[p]rimary
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`watershed response is expected to include an initial flush of ash and burned materials, erosion in
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`drainages and on steep slopes in the burned area, increased peak flows and sediment transport
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`and deposition, and debris flows. These responses will likely lead to increased water quality
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`concerns for municipal and domestic drinking water providers within and downstream of the
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`fire.”
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`71.
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`Concerning wildlife, the Holiday Farm Fire occurred within the range of northern
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`spotted owl (NSO), a species that is listed as threatened under the Endangered Species Act.
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`72.
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`In designated critical habitat for the NSO, 1,684 acres burned with high severity,
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`totaling 12% of the critical habitat in the fire area) and 10,740 acres burned with moderate
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`severity totaling 77% of the critical habitat in the fire area).
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`73.
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`Threats include additional loss of habitat in the fire area due to blowdown, mass
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`soil movement, flooding, and insects and disease. Each of these threats could result in additional
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`mortality to remaining live trees and further reduce NSO suitable habitat and usable critical
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`habitat and threaten the viability of nesting territories.”
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`74.
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`“Streams and rivers affected by the Holiday Farm Fire support runs of federally
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`listed Upper Willamette spring Chinook salmon (threatened), Upper Willamette steelhead trout
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`(threatened), and bull trout (threatened).”
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`75.
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`Critical habitat for these species occurs across the fire-impacted region. Potential
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`post-fire effects in select tributaries of the McKenzie River, Middle Fork Willamette River, and
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`Upper Willamette River include: increase in peak flows laden with debris potentially leading to
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`increase in accelerated channel scour and hillslope erosional processes, increase in fine sediment
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`leading to direct mortality of eggs and fry and decrease of habitat elements such as pools, and
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`increase in the likelihood of other negative effects to habitat from increased flow interaction with
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`infrastructure.”
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`76.
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`Post-fire logging has occurred in, and is proposed for, areas affected by the
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`Holiday Farm Fire.
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`77.
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`The Willamette National Forest has approved a roadside commercial logging
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`project that will log approximately 20,000 acres.
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`78.
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`Additional adjacent post-fire logging is being implemented by the Bureau of Land
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`Management, private forest managers, and the Oregon Department of Transportation.
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`Green Mountain Project
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`79.
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`The Green Mountain project area consists of approximately 99,051 acres along
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`the South Fork McKenzie River within the McKenzie River Ranger District.
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`80.
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`The Green Mountain project (as originally approved) would have treated 4,364
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`acres including 1,458 acres of commercial thinning and 901 acres of commercial thinning along
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`waterways. It also included 262 acres of regeneration harvest and 333 acres of gaps (complete
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`tree removal), and 288 acres of dominant tree release. It also included 10.2 miles of new
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`temporary road construction.
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`81.
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`The project had three purposes: (1) provide a sustainable supply of timber, (2)
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`increase habitat complexity, and (3) shift age class and structural diversity.
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`82.
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`The Forest Service concluded that logging was needed within the Green Mountain
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`project area because “[p]ast logging practices and fire exclusion have resulted in dense, uniform
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`species stands.”
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`83.
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`The Green Mountain project was designed to shift the age class of existing forests
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`or create forests that are 0-15 years in age through large scale regeneration harvest, which would
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`create “early seral habitat,” or post-fire habitat, because it was lacking on the landscape.
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`84.
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`The Forest Service determined that at any given point in time 5-20 percent of the
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`landscape should be early seral habitat and that only .1 percent of the Green Mountain Project
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`Area was early seral habitat. The proposed logging would have increased this percentage to 7
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`percent and thus help return the area within its natural range of variability.
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`85.
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`The Green Mountain project decision also approved 901 acres of logging along
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`waterways in the project area.
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`86.
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`The project would have affected Upper Willamette River Spring Chinook Salmon
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`and Bull Trout, both species listed as threatened under the Endangered Species Act.
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`87.
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`Specifically, the project as approved was likely to adversely impact Chinook
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`salmon and bull trout and will adversely impact both species’ designated critical habitats.
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`88.
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`The Forest Service consulted with both NFMS and FWS regarding impacts to
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`listed species. NMFS required nonnegotiable terms and conditions for the Project, including
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`strict erosion and sediment control.
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`89.
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`The FWS further recommended ongoing bull trout population monitoring to
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`ensure occupancy.
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`90.
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`The Green Mountain Project also negatively impacts the northern spotted owl and
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`designated critical habitat for the northern spotted owl.
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`91.
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`The Forest Service also consulted with FWS regarding effects of the project, as
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`proposed, to northern spotted owl.
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`92.
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`FWS determined that the proposed logging was “likely to adversely affect”
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`northern spotted owl and “likely to adversely affect” its designated critical habitat.
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`93.
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`FWS issued a Biological Opinion for the Green Mountain project in 2012 and the
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`project was granted an incidental take permit for up to two owl sites. Id. at 25.
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`94.
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`The Green Mountain Project included Project Design Features (PDFs), that were
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`developed to reduce the environmental effects of the proposed activities and to ensure that the
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`agency would implement project activities to comply with standards and guidelines, goals,
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`objectives, conservation strategies, and Best Management Practices.
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`95.
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`The Green Mountain PDFs were also intended to reduce the known harms that the
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`Green Mountain Project would inevitably have on the species that inhabit it.
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`Case 6:21-cv-01225-AA Document 1 Filed 08/18/21 Page 18 of 33
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`96.
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`Plaintiffs participated extensively in the administrative pro