Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 1 of 30
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`Oliver J. H. Stiefel, OSB # 135436
`(503) 227-2212 ½ oliver@crag.org
`Meriel L. Darzen, OSB # 113645
`(503) 525-2725 ½ meriel@crag.org
`CRAG LAW CENTER
`3141 E. Burnside St.
`Portland, Oregon 97214
`Fax: (503) 296-5454
`
`
`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
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`EUGENE DIVISION
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`CASCADIA WILDLANDS, an Oregon non-
`profit corporation; OREGON WILD, an
`Oregon non-profit corporation; and
`WILLAMETTE RIVERKEEPER, an
`Oregon non-profit corporation;
`
`
`Plaintiffs,
`
`v.
`
`DAVID WARNACK, in his official capacity
`as Willamette National Forest Supervisor; and
`the UNITED STATES FOREST SERVICE,
`
`
`Defendants.
`
`Case No.
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`(5 U.S.C. § 706(2))
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`(Environmental Matters –
`National Forest Management Act,
`National Environmental Policy Act, and
`Administrative Procedure Act)
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`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 2 of 30
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`NATURE OF ACTION
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`Plaintiffs Cascadia Wildlands, Oregon Wild, and Willamette Riverkeeper
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`1.
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`(collectively, “Cascadia”) bring this challenge under the Administrative Procedure Act (“APA”),
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`5 U.S.C. §§ 701–706, to the final administrative actions of David Warnack and the United States
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`Forest Service (collectively “Forest Service” or “Defendants”). In approving the Decision
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`Memorandum (“DM”) for the Willamette 2020 Fires Roadside Danger Tree Reduction Project
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`(“2020 Roadside Project” or “Project”) on the Willamette National Forest (“Forest”), Defendants
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`acted arbitrarily, capriciously, and contrary to the National Environmental Policy Act (“NEPA”),
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`42 U.S.C. §§ 4321–4370h, and the National Forest Management Act (“NFMA”), 16 U.S.C.
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`§§ 1600–1614.
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`2.
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`The DM authorizes the cutting of “danger” trees along approximately 404 miles
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`of National Forest System roads within the footprint of the 2020 Holiday Farm, Beachie Creek,
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`and Lionshead fires. Most of the identified roads receive very low traffic volumes (if any), and
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`most of the trees targeted for cutting pose no immediate risk (if any). The DM simply states,
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`without specific support, that there is an urgency to act, but does not explain why a more
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`searching and careful analysis could not be completed that balances ecological and social trade-
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`offs. Instead, the Forest Service rushed to authorize logging operations, including commercial
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`“salvage” logging, across thousands of acres of the Forest.
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`3.
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`Under NEPA, the Forest Service did not prepare an Environmental Impact
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`Statement (“EIS”) or even a less intensive Environmental Assessment (“EA”), and instead
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`approved the Project pursuant to a Categorical Exclusion (“CE”). CEs apply to categories of
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`actions that the Forest Service has determined pose no significant environmental effects, either
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—2
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`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

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`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 3 of 30
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`individually or cumulatively. The Forest Service approved the Project pursuant to a CE
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`applicable to “repair and maintenance” of roads: 36 C.F.R. § 220.6(d)(4).
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`4.
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`Cascadia challenges the Forest Service’s reliance on the road “repair and
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`maintenance” CE for this Project. The Forest Service proposes to salvage log, through numerous
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`individual timber sales, thousands of acres across the Project area. The Forest Service has failed
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`to articulate a rational explanation as to why such a major salvage logging project constitutes
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`routine road “repair and maintenance” when the Project targets tens of thousands of trees. Before
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`approving a project of this magnitude, the Forest Service is obligated to prepare an EIS or EA.
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`5.
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`Proper review under an EIS or EA would force the Forest Service to take the
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`required “hard look” at the Project’s environmental impacts, including impacts to ESA-listed
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`northern spotted owls and salmonids, and important habitat classified as “Riparian Reserves.” In
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`fact, the Forest Service concedes that the Project is “likely to adversely affect” northern spotted
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`owls, but failed to inform the public and decisionmaker of the scope and magnitude of the
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`impacts or consider any alternatives that would lessen such impacts.
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`6.
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`Cascadia respectfully requests this Court to vacate the DM and remand to the
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`Forest Service for preparation of an EIS or EA for a full and fair analysis of the Project’s
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`impacts.
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`7.
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`If necessary, Cascadia intends to seek narrowly tailored injunctive relief during
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`the pendency of this litigation to protect sensitive species and their habitats.
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`8.
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`Should it prevail, Cascadia will seek attorneys’ fees and costs pursuant to the
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`Equal Access to Justice Act, 28 U.S.C. § 2412, and/or any other applicable authorities.
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`///
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`///
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—3
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`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

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`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 4 of 30
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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
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`9.
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`Cascadia’s 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.
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`10.
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`Cascadia exhausted its administrative remedies by submitting scoping comments.
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`The challenged agency action is subject to this Court’s review under 5 U.S.C. §§ 702, 704, and
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`706. Defendants have waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.
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`11.
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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. Defendants maintain an office in this judicial district.
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`Plaintiffs Cascadia Wildlands, Oregon Wild, and Willamette Riverkeeper maintain offices in this
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`District.
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`12.
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`This case is properly filed in the Eugene Division pursuant to Local Rule 3-2
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`because a substantial part of the Project area, and Defendants’ office where the decision was
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`signed, are located in Lane County. A substantial part of the events or omissions giving rise to
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`this claim occurred and the property that is subject to this action is situated in the Eugene
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`Division.
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`Plaintiffs
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`PARTIES
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`13.
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`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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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—4
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 5 of 30
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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 Project area for
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`activities such as hiking, bird watching, camping, swimming, fishing, foraging, photography, and
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`other recreational and professional pursuits.
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`14.
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`Plaintiff OREGON WILD is a non-profit corporation with approximately 20,000
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`members and supporters throughout the state of Oregon and the Pacific Northwest. Oregon Wild
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`is headquartered in Portland, Oregon and maintains field offices in Bend, Eugene, and
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`Enterprise, Oregon. Oregon Wild’s mission is to protect and restore Oregon’s wildlands,
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`wildlife, and waters as an enduring legacy. Oregon Wild’s wilderness, old-growth forest, and
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`clean rivers/watersheds programs protect pristine drinking water, unparalleled recreation
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`opportunities, and fish and wildlife habitat across Oregon.
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`15.
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`Plaintiff WILLAMETTE RIVERKEEPER is a non-profit corporation
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`headquartered on the Willamette River in Portland, Oregon. Willamette Riverkeeper serves as
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`the eyes, ears, and voice of the Willamette River. For more than 20 years, the organization’s sole
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`mission has been to protect and restore the Willamette River’s water quality, habitats for
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`wildland and aquatic species, and resources. Willamette Riverkeeper believes that a river with
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`good water quality and abundant natural habitat, safe for fishing and swimming, is a basic public
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`right. Willamette Riverkeeper engages in public outreach and education, advocacy with agencies,
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`agency administrative processes, habitat restoration, Superfund cleanup, Clean Water Act
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`compliance, and where necessary, litigation. Here, where the Project’s impacts will negatively
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`affect basin water quality, essential water quality functions, and fish and wildlife habitat,
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`Willamette Riverkeeper joins as a Plaintiff to protect the organization’s and its members’
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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 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 6 of 30
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`interests in the North Santiam, Santiam, and McKenzie Rivers, which are important tributaries of
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`the Willamette River, and within the Project area. Willamette Riverkeeper brings this action on
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`behalf of itself and its affected staff, and its nearly 2,500 members.
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`16.
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`Plaintiffs’ staff, members, and supporters regularly visit and enjoy the Forest,
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`including the Project area, and intend to do so again in the near future. The staff, members, and
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`supporters appreciate the aesthetics of the Forest, including its waters and wildlife, and use the
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`area to engage in recreational, scientific, and spiritual activities, such as hunting, hiking,
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`camping, fishing, photography, watershed research, and observing wildlife.
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`17.
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`Plaintiffs have organizational interests in the proper and lawful management of
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`the Forest. Plaintiffs, and their members, supporters, and staff have participated extensively in
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`relevant administrative actions and have actively participated in the Project’s administrative
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`process.
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`18.
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`Plaintiffs, and their members, supporters, and staff would sustain injury to
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`aesthetic, educational, recreational, spiritual, and scientific interests if the Project proceeds as
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`authorized. Plaintiffs, and their members, supporters, and staff have concrete plans to return to
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`the area where the Project is proposed. Unless this Court grants the requested relief, Plaintiffs,
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`and their members, supporters, and staff will be adversely and irreparably harmed by the Project.
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`Defendants
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`19.
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`Defendant DAVID WARNACK is the Forest Supervisor for the Forest. Mr.
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`Warnack is the Responsible Official for the Project, and he signed the Decision Memorandum,
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`constituting the final administrative action. As Forest Supervisor, Mr. Warnack has the
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`responsibility to ensure that all projects on the Forest are consistent with applicable laws and
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`regulations. Plaintiff brings this action against Mr. Warnack in his official capacity.
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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 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 7 of 30
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`20.
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`Defendant the UNITED STATES FOREST SERVICE is an agency within the
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`United States Department of Agriculture entrusted with the management of our national forests.
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`The Forest Service is headquartered in Washington, D.C., and it has nine regions across the
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`country. The national forests of Oregon are in Region 6. All or a significant portion of the
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`actions and omissions alleged in this Complaint occurred in Region 6.
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`LEGAL BACKGROUND
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`
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`National Environmental Policy Act
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`21.
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`Congress enacted NEPA to “declare a national policy which will encourage
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`productive and enjoyable harmony between man and his environment; to promote efforts which
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`will prevent or eliminate damage to the environment and biosphere and stimulate the health and
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`welfare of man; [and] to enrich the understanding of the ecological systems and natural resources
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`important to the Nation.” 42 U.S.C. § 4321.
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`22.
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`To accomplish these purposes, NEPA requires all agencies of the federal
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`government to prepare a “detailed statement” for all “major federal actions significantly affecting
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`the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Commonly known as the
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`Environmental Impact Statement or EIS, the detailed statement must describe, inter alia, the
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`adverse environmental impact of the proposed action and alternatives to the proposed action. Id.
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`23.
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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.” Id. § 4332(2)(E).
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`24.
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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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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—7
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`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 8 of 30
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`(establishing CEQ); 40 C.F.R. §§ 1500–1508 (2019) (CEQ’s NEPA regulations). CEQ modified
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`the NEPA regulations by final rule on July 16, 2020. 40 C.F.R. §§ 1500–1508 (2021).
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`25.
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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 The policy statement of EO 13990 provides that the policy of the Biden Administration
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`is to, inter alia, listen to the science and to improve public health and protect our environment.
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`EO 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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`26.
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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 modification of the CEQ regulations and guidance document
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`procedures is the first item on President Biden’s list.
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`27.
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`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.3 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.”
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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/
`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
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—8
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
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`

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`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 9 of 30
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`28.
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`A similar directive applicable to the Forest Service/U.S. Department of
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`Agriculture is forthcoming.
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`29.
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`Under the 2020 NEPA regulations, agencies are to determine the appropriate level
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`of NEPA review for a given project. 40 C.F.R. § 1501.3 (2021). Agencies must determine
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`whether the proposed action: (1) Normally does not have significant effects and is categorically
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`excluded; (2) is not likely to have significant effects or the significance of the effects is unknown
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`and is therefore appropriate for an environmental assessment (“EA”); or (3) is likely to have
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`significant effects and is therefore appropriate for an EIS. Id.
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`30.
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`CEQ regulations direct federal agencies to identify in their NEPA procedures
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`certain categories of actions that normally do not require preparation of an EA or EIS. See 40
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`C.F.R. § 1501.4(a) (2021); 40 C.F.R. § 1508.4 (2019). The Forest Service promulgated a series
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`of categorical exclusions pursuant to the previous version of the CEQ regulations, which defined
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`“categorical exclusion” as a “category of actions which do not individually or cumulatively have
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`a significant effect on the human environment and which have been found to have no such effect
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`by a federal agency in implementation of these regulations. 40 C.F.R. § 1508.4 (2019); 57 Fed.
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`Reg. 43,180 (Sept. 18, 1992) (establishing categories); 73 Fed. Reg. 43,084 (July 24, 2008)
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`(placing established categories under Forest Service NEPA regulations at 36 C.F.R. Part 220).
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`31.
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`36 C.F.R. § 220.6(a) provides that a proposed action may be categorically
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`excluded from further analysis and documentation in an EIS or EA “only if there are no
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`extraordinary circumstances related to the proposed action” and if it is within one of the
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`categories established by the Secretary or it is within a category listed in Section 220.6(d) and
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`(e).
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—9
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 10 of 30
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`32.
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`36 C.F.R. § 220.6(b) lists the “resource conditions” that should be considered in
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`determining whether extraordinary circumstances related to a proposed action warrant further
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`analysis and documentation in an EA or EIS, including “Federally listed threatened or
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`endangered species or designated critical habitat, species proposed for Federal listing or
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`proposed critical habitat, or Forest Service sensitive species.” Id. § 220.6(b)(1)(i). According to
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`36 C.F.R. § 220.6(b)(2), the “mere presence of one or more of the resource conditions does not
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`preclude use of a categorical exclusion; it is the existence of a cause-effect relationship between
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`a proposed action and the potential effect on these resource conditions, and if such a relationship
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`exists, the degree of potential effect of a proposed action on these resource conditions that
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`determines whether extraordinary circumstances exist.”
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`33.
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`36 C.F.R. § 220.6(d) lists the categories of actions for which a project or case file
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`and decision memo are not required. One such category is the repair and maintenance of roads,
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`trails, and landline boundaries. Id. § 220.6(d)(4). Examples include, but are not limited to:
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`(i)
`
`(ii)
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`Authorizing a user to grade, resurface, and clean the culverts of an
`established National Forest System road;
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`Grading a road and clearing the roadside of brush without the use of
`herbicides;
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`(iii) Resurfacing a road to its original condition;
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`(iv)
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`Pruning vegetation and cleaning culverts along a trail and grooming the
`surface of the trail; and
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`Surveying, painting, and posting landline boundaries.
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`(v)
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`34.
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`36 C.F.R. § 220.6(e) lists the categories of actions for which a project or case file
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`
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`and decision memo are required. One such category is salvage of dead and/or dying trees not to
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`exceed 250 acres, requiring no more than ½ mile of temporary road construction. 36 C.F.R.
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`§ 220.6(e)(13). Examples include, but are not limited to:
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—10
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`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 11 of 30
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`(i)
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`(ii)
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`35.
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`Harvest of a portion of a stand damaged by a wind or ice event and construction
`of a short temporary road to access the damaged trees; and
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`Harvest of fire-damaged trees.
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`Forest Service regulations require “scoping” for all Forest Service proposed
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`actions, including those that would be categorically excluded from further analysis and
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`documentation in an EA or EIS. 36 C.F.R. § 220.4(e)(1). “If the responsible official determines,
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`based on scoping, that it is uncertain whether the proposed action may have a significant effect
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`on the environment,” the Forest Service must prepare an EA. 36 C.F.R. § 220.4(e)(2). “If the
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`responsible official determines, based on scoping, that the proposed action may have a
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`significant environmental effect,” the Forest Service must prepare an EIS. Id.
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`36.
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`NEPA regulations allow for “tiering.” Tiering “refers to the coverage of general
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`matters in broader [EISs] or [EAs] (such as national program or policy statements) with
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`subsequent narrower [EISs] or [EAs] (such as regional or basin-wide program [EISs] or
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`ultimately site-specific [EISs]) incorporating by reference the general discussions and
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`concentrating solely on the issues specific to the [EIS] subsequently prepared.” 40 C.F.R.
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`§ 1508.1(ff) (2021).
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`37.
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`Under 40 C.F.R. § 1501.11(a) (2021), “agencies should tier their [EISs] and
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`[EAs] when it would eliminate repetitive discussions of the same issues, focus the actual issues
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`ripe for decision, and exclude from consideration issues already decided or not yet ripe at each
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`level of environmental review.” Under 40 C.F.R. § 1501.11(c) (2021), “[t]iering is appropriate
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`when the sequence from an [EIS] or [EA] is (1) From a programmatic, plan, or policy [EIS] or
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`[EA] to a program, plan, or policy statement or assessment of lesser or narrower scope or to a
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`site-specific [EIS] or [EA]”[;] (2) From an [EIS] or [EA] on a specific action at an early stage
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`(such as need and site selection) to a supplement (which is preferred) or a subsequent [EIS] or
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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 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 12 of 30
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`[EA] at a later stage (such as environmental mitigation). Tiering in such cases is appropriate
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`when it helps the lead agency to focus on the issues that are ripe for decision and exclude from
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`consideration issues already decided or not yet ripe.”
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`National Forest Management Act (NFMA)
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`38.
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`The Forest is part of the National Forest System and is therefore subject to NFMA
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`and its planning regulations.
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`39.
`
`Pursuant to NFMA, management of National Forests occurs at two levels: forest
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`and project. At the forest level, NFMA requires the Secretary of Agriculture to “develop,
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`maintain, and, as appropriate, revise land and resource management plans for units of the
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`National Forest System.” 16 U.S.C. 1604(a).
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`40.
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`The Forest Service, which manages the National Forest System, uses these plans,
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`called “forest plans,” to guide all natural resource management activities, including use of the
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`land for outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. 36
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`C.F.R. § 219.1 (2000); 16 U.S.C. § 1604(e)(1). A forest plan is a broad, long-term programmatic
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`planning document for the entire forest, containing goals and objectives for individual units of
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`the forest and providing standards and guidelines for management of forest resources.
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`41.
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`At the project level, once a forest plan is in place, site-specific actions or
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`“projects” are planned and evaluated by the Forest Service. Each site-specific project must be
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`consistent with the governing forest plan. 16 U.S.C. § 1604(i).
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`42.
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`In 1990, the Forest Service adopted the Willamette National Forest Land and
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`Resource Management Plan (“Forest Plan”), which provides standards and guidelines for
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`project-level planning within the Forest.
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—12
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 13 of 30
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`43.
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`In 1994, the Forest Service and the Bureau of Land Management adopted the
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`Record of Decision for the Northwest Forest Plan (“NWFP”). The NWFP established
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`management requirements for all Forest Service and Bureau of Land Management land within
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`the range of the northern spotted owl. The NWFP contains mandatory standards relating to the
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`protection of northern spotted owl.
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`44.
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`The Forest is within the range of the northern spotted owl; the Forest Plan has
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`been amended to include the management direction included in the NWFP.
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`45.
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`All management activities, actions, and projects on the Forest must comply with
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`the Forest Plan and NWFP. In the event that there are differences in management direction
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`between the two documents, the more restrictive of the two documents governs.
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`Administrative Procedure Act
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`46.
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`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.
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`47.
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`Upon review under the APA, a court shall “hold unlawful and set aside agency
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`action * * * found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
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`accordance with law * * *.” 5 U.S.C. § 706(2). Furthermore, when an agency has taken action
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`without observance of the procedure required by law, that action will be set aside. 5 U.S.C.
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`§ 706(2)(D).
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`///
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`///
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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 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 14 of 30
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`FACTUAL BACKGROUND
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`The Willamette National Forest stretches along the western slopes of the Oregon
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`48.
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`Cascades, extending from the Mt. Jefferson area east of Salem to the Calapooya Mountains
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`northeast of Roseburg, and covering nearly 1.8 million acres.
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`49. With elevations ranging from 900 feet along the Santiam River to over 10,000
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`feet at the summits of Mt. Jefferson and the Three Sisters, the lands in the Forest exhibit a wide
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`variety of geologic and topographic features. The Forest is home to numerous fish and wildlife
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`species, including several salmonid species and northern spotted owl.
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`50.
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`The 2020 fire season dramatically impacted the Forest. The Holiday Farm Fire
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`started on September 7 during a strong east wind event and burned approximately 173,393 acres
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`in the McKenzie River watershed. The fire burned a mosaic pattern through most of the area, and
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`the majority burned with low and moderate severity. The fire was declared contained on October
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`29, 2020.
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`51.
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`The Beachie Creek Fire began on August 16, 2020. The historic windstorm on
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`September 7 caused rapid spread through the Willamette and Mt. Hood National Forests. Before
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`containment on October 31, 2020, the fire burned 193,573 acres in the North Fork Santiam River
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`and Little North Fork Santiam River drainages.
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`52.
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`Sparked by lightning, the Lionshead Fire began on August 16, 2020 on the
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`Confederated Tribes of Warm Springs Reservation. The historic windstorm on September 7,
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`2020 caused rapid spread onto the Willamette, Deschutes, and Mt. Hood National Forests. The
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`fire burned 204,469 acres within the Breitenbush River, headwaters of the North Santiam River,
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`and Upper Clackamas River watersheds.
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`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—14
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 15 of 30
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`53.
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`In total, the three fires burned approximately 176,000 acres of National Forest
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`System lands.
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`54.
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`There are about 550 miles of National Forest System roads within the perimeter
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`of the fires. Approximately 404 miles of roads, along 362 road segments, are included in the
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`Project.
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`55.
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`National Forest System roads receive administrative designations regarding their
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`“operational maintenance level” (“ML”), which refers to the degree of maintenance required and
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`the level of service the road provides. ML 1 roads have been placed in storage for at least one
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`year between intermittent uses. These roads are labeled as “closed” on administrative maps. It is
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`unlawful for the general public to drive on a road labeled as “closed” on administrative maps.
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`Some of the road segments included in the Project are ML 1 (closed) roads (11 out of 362).
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`56. ML 2 roads are open for use by high clearance vehicles for dispersed recreation
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`and specialized commercial haul. The majority of roads included in the Project are ML 2 roads
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`(328 out of 364).
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`57. ML 3, 4, and 5 roads are open for use by passenger cars for general use, with ML
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`5 roads providing the highest degree of user comfort and ordinarily receiving the most use by the
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`general public. Only 4 out of 362 road segments are ML 5 roads. Only 1 out of 362 are ML 4
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`roads, and 18 out of 362 are ML 3 roads.
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`58.
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`The roads in the Project area have varying levels of fire-killed, partially burned,
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`or green trees depending on how severely the fires burned in the area. Based on the Rapid
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`Assessment of Vegetation Condition after Wildfire (RAVG) mapping data, about 45% of the
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`roads (190 miles) burned at a very low severity (0% to 25% basal area mortality). 49 miles of the
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`roads burned at low severity (25% to 50% basal area mortality). 66 miles of the roads burned at
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—15
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 16 of 30
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`moderate severity (50% to 75% basal area mortality). About 110 miles of the roads burned at a
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`high severity (75% to 100% basal area mortality).
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`59.
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`A “danger tree,” according to the Forest Service, is any tree, or portion of a tree
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`that could cause injury or death to people or property because of damage or defect. The Project
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`authorizes the cutting of all “danger trees” along all 404 road miles, regardless of the burn
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`severity of the area, if they are within one tree height distance of the road and meeting additional
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`criteria.
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`60.
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`For example, the criteria specify that all trees with no green needles are to be cut.
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`The Forest Service’s criteria also identify trees to be cut based on crown volume scorch, or the
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`percentage of the pre-fire crown (a tree’s branches and needles) scorched by the fire. For
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`example, Doug-Fir trees with greater than 65% crown volume scorch are identified to be cut.
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`61.
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`The Forest Service’s criteria are based on internal agency guidance documents,
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`which provide parameters for assessing (1) the trees that pose a high, moderate, or low likelihood
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`of failure, and (2) the living trees that are likely to die within three years of a fire: Region 6’s
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`Field Guide for Danger-Tree Identification and Response along Forest Roads and Work Sites in
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`Oregon and Washington (Filip et al. 2017) and Post-Fire Assessment of Tree Status and Marking
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`Guidelines for Conifers in Oregon and Washington (Hood et al. 2020). Neither of these two
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`internal guidance documents have been subject to public review and scrutiny pursuant to NEPA.
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`62.
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`The DM authorizes the cutting of trees that not only pose a high likelihood of
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`failure, but also trees that may pose some risk of failure within 10 years.
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`63.
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`For example, agency guidance stipulates that recent dead, large (greater than 20”)
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`Doug-Fir and Cedar with no failure indicators have a low likelihood of failure within five years.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—16
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 6:21-cv-01227-MC Document 1 Filed 08/18/21 Page 17 of 30
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`Yet, the Project identifies these trees for cutting. These trees do not pose any immediate public
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`safety threat.
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`64.
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`The probability of any tree that the Forest Service proposes to cut falling across
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`the road is close to zero. The probability of any tree tha