Greenpeace, Inc. et al v. Cole et al

ORDER RE SUMMARY JUDGMENT MOTIONS - 1
3:08-CV-0162-RRB
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 3:08-cv-0162-RRB
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiffs 	Greenpeace, 	Inc., 	and 	Cascadia 	Wildlands 	Project
(“Plaintiffs”) 	challenge 	the 	United 	States 	Forest 	Service’s
approval 	of 	four 	timber 	sale 	projects 	in 	the 	Tongass 	National
Forest, 	claiming 	violations 	of 	the 	National 	Environmental 	Policy
Act (“NEPA”), the National Forest Management Act (“NFMA”), and the
1997 	Tongass 	National 	Forest 	Land 	and 	Resource 	Management 	Plan
(“Forest Plan”). Plaintiffs seek declaratory and injunctive relief,
GREENPEACE, INC., and CASCADIA
WILDLANDS PROJECT,
Plaintiffs,
vs.
FORREST COLE, in his official
capacity as 	Forest Supervisor
for the Tongass National
Forest, DENNIS BSCHOR, in his
official capacity as Alaska
Regional Forester, and the
U.S. FOREST SERVICE,
Defendants.
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ORDER RE SUMMARY JUDGMENT MOTIONS - 2
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at Docket 52, to prevent environmental injury, particularly to deer
and wolf populations within the forest. Defendants oppose at Docket
55 	and 	seek 	summary 	judgment 	in 	their 	favor 	on 	all 	of 	the 	issues
raised.
II. FACTUAL BACKGROUND
The 	Tongass 	National 	Forest 	covers 	nearly 	17 	million 	acres
across southeast Alaska, extending approximately 500 miles north to
south and 120 miles east to west. Pursuant to the requirements of
NFMA, the Forest Service adopted the Forest Plan in 1997. There are
four projects challenged in this case which were approved pursuant
to the 1997 Forest Plan: Scott Peak, Overlook, Traitors Cove, and
Soda 	Nick. 	For 	each 	of 	the 	four 	projects, 	the 	Forest 	Service
conducted an extensive environmental analysis, including either an
environmental 	impact 	statement 	(“EIS”) 	or 	an 	environmental
assessment (“EA”).
A. 	The Forest Plan
The 	1997 	Forest 	Plan 	was 	adopted 	based 	on 	a 	Final
Environmental 	Impact 	Statement 	(“FEIS”). 	The 	1997 	FEIS 	discussed
the planning process and analysis used to develop the Forest Plan,
described and analyzed the alternatives considered in detail, and
discussed 	public 	objections 	to 	the 	plan. 	The 	Forest 	Plan 	was
modified in January 2008, but the 2008 amendment does not apply to
the 	projects 	at 	issue 	in 	this 	case. 	The 	1997 	Forest 	Plan, 	1997
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1 AR 10_006459.
2 AR 10_006739.
3 AR 10_006743.
4 AR 10_00004 at 2-155.
5 See AR 10_007428-32.5.
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3:08-CV-0162-RRB
FEIS, 	and 	associated 	documents 	are 	included 	as 	part 	of 	the
Administrative Record for the four challenged projects.
The 	1997 	Forest 	Plan 	sets 	forth 	a 	number 	of 	“Forest-Wide
Standards 	and 	Guidelines.” 1 	Forest-Wide 	Standard 	and 	Guideline
WILD112.II.B reads as follows:
Provide 	the 	abundance 	and 	distribution 	of 	habitat
necessary 	to 	maintain 	viable 	populations 	of 	existing
native and desirable introduced species well-distributed
in the planning area. 2
Guideline 	WILD112 	XI.A.3 	sets 	13 	deer 	per 	square 	mile 	as 	the
necessary density to “maintain sustainable wolf populations” due to
the 	fact 	that 	deer 	are 	a 	crucial 	prey 	for 	wolves. 3 	The 	Forest
Service 	later 	adopted 	18 	deer 	per 	square 	mile 	guideline 	as 	the
minimum to support hunting and wolves. 4
B. The Deer Model
The 	Tongass 	National 	Forest 	uses 	a 	deer 	winter 	habitat
capability 	model 	(“Deer 	Model”) 	to 	produce 	a 	relative 	ranking 	of
habitat suitability for Sitka black-tailed deer and, by extension,
Alexander 	Archipelago 	wolves. 5 	The 	model 	is 	based 	on 	variables
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6 Id.
7 Id.
8 In other words, an HSI score of 0.8 multiplied by a deer
multiplier of 100 results in an estimated carrying capacity of 80
deer per square mile.
9 Id. at 7.
ORDER RE SUMMARY JUDGMENT MOTIONS - 4
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affecting 	winter 	habitat, 	a 	primary 	limiting 	factor 	on 	deer
populations. 6 The variables include vegetation type, typical winter
snow 	level, 	elevation 	zone, 	and 	aspect 	(south, 	north, 	east, 	and
west-facing slope). 7
This 	ranking 	is 	expressed 	as 	a 	habitat 	suitability 	index
(“HSI") score. The HSI scores are used to estimate habitat carrying
capacity; that is, how many deer the area can support. In order to
estimate 	habitat 	capability, 	the 	HSI 	score 	is 	multiplied 	by 	a
constant, 	referred 	to 	as 	the 	“deer 	multiplier,” 	to 	produce 	an
estimate of deer carrying capacity for a given area. 8
In 1995, the Forest Service convened a group of deer experts,
including employees from the Forest Service, the Alaska Department
of 	Fish 	and 	Game 	(“ADF&G”), 	and 	the 	U.S. 	Fish 	& 	Wildlife 	Service
(“FWS”), 	to 	refine 	the 	deer 	model. 	The 	panel 	adopted 	a 	deer
multiplier 	of 	seventy-five 	deer 	per 	square 	mile, 	based 	on 	deer
density information and nutritionally-based estimates. 9
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10 AR 10_007430.
11 See AR 603_2251 at 5; AR 10_007430; AR 603_2267 at 1.
12 AR 603_2264 at 29-33.
13 Id.
14 AR 30_0803 at 3.
15 See e.g., AR 30_0631.
ORDER RE SUMMARY JUDGMENT MOTIONS - 5
3:08-CV-0162-RRB
In 	1996, 	a 	second 	panel 	of 	wildlife 	biologists 	recommended
modifying 	the 	model 	to 	better 	reflect 	available 	data 	on 	deer
harvest 	levels 	and 	deer 	pellet 	group 	studies. 10 	The 	range 	of 	HSI
scores 	was 	adjusted 	to 	0 	to 	1.3, 	and 	the 	deer 	multiplier 	was
increased to 125 deer per square mile. 11 This model was used in the
1997 Forest Plan FEIS.
In 	September 	1997, 	four 	biologists 	brought 	to 	the 	Forest
Service’s 	attention 	a 	recent 	paper 	by 	Dave 	Person 	(the 	“Person
study”) 	comparing 	pellet 	group 	surveys 	with 	the 	Forest 	Service’s
deer 	model. 12 	The 	Person 	study 	suggested 	that 	100 	deer 	per 	square
mile would be a more accurate deer multiplier. 13 In August 2002, the
Tongass 	National 	Forest 	Supervisor 	formally 	adopted 	the 	100 	deer
per square mile deer multiplier. 14 The Forest Service has since used
a deer multiplier of 100 deer per square mile forest-wide and also
in its analysis of the four projects challenged here. 15
C. The VolStrata Vegetation Classification System
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16 AR 10_007428-32.
17 Id.
18 AR 30_Dec2005FEIS_ROD_Vol_I at 3-102; AR 10_007316.
19 AR 10_007316-17.
20 AR 30_Dec2005FEIS_ROD_Vol_I at 3-102.
ORDER RE SUMMARY JUDGMENT MOTIONS - 6
3:08-CV-0162-RRB
“VolStrata” 	refers 	to 	the 	vegetation 	classification 	system
that 	the 	Forest 	Service 	used 	in 	its 	Deer 	Model 	for 	the 	four
projects 	at 	issue. 16 	Vegetation 	is 	a 	crucial 	element 	of 	suitable
deer 	habitat. 	Vegetation, 	along 	with 	elevation 	zone, 	aspect, 	and
typical snow level, formed the basis for the HSI scores included in
the 1997 Deer Model. 17
Before the VolStrata System was adopted, forested lands in the
Tongass National Forest were classified by volume class, which was
referred 	to 	as 	“Tim-Type” 	or 	“TIMTYP.” 18 	The 	Forest 	Service’s 	use
of TIMTYP was successfully challenged in court by an environmental
group, which claimed that it was an insufficiently reliable way of
categorizing 	timber 	volume. 19 	In 	the 	1997 	Forest 	Plan 	the 	Forest
Service 	replaced 	the 	TIMTYP 	volume 	class 	system 	with 	a 	volume
strata classification system (i.e., VolStrata), which used the same
data as the TIMTYP system but classified that data differently. 20
In 	2005, 	two 	Forest 	Service 	employees 	published 	a 	paper
proposing a new vegetation model which became known as the “Size-
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21 See AR 603_0647 at 3-139; AR 603_1208.
22 16 U.S.C. §§ 1604(a).
23 16 U.S.C. §§ 1604(I).
24 16 U.S.C. § 1604(g)(3)(B).
ORDER RE SUMMARY JUDGMENT MOTIONS - 7
3:08-CV-0162-RRB
Density” 	model. 	The 	new 	Size-Density 	model 	had 	not 	been
sufficiently 	validated 	at 	the 	time 	the 	projects 	at 	issue 	were
undergoing 	review. 21 	Because 	the 	new 	Size-Density 	model 	was 	not
ready for use, the Forest Service employed the VolStrata system in
evaluating these four projects.
III. GOVERNING PROVISIONS
A. 	NFMA
The National Forest Management Act, 16 U.S.C. §§ 1600 et seq.,
requires the Forest Service to develop and maintain forest resource
management plans. 22 After a forest plan is developed, all subsequent
agency 	actions 	must 	comply 	with 	NFMA 	and 	the 	governing 	forest
plan. 23 Substantively, NFMA requires that forest plans “provide for
diversity of plant and animal communities based on the suitability
and capability of the specific land area.” 24
B. 	NEPA
The 	National 	Environmental 	Policy 	Act, 	42 	U.S.C. 	§§ 	4321 	et
seq., contains additional procedural requirements. Its purpose is
to 	ensure 	the 	decision-maker 	will 	have 	detailed 	information 	on
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25 Ecology Center v. Castaneda, 574 F.3d 652, 656-57 ( 9th
Cir. 2009) (citing Inland Empire Pub. Lands Council v. U.S. Forest
Serv., 88 F.3d 754, 758 (9th Cir. 1996)).
26 Ecology Center at 657.
27 Ecology 	Center 	at 	657 	(quoting 	Neighbors 	of 	Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002)).
28 Ecology 	Center 	at 	657 	(quoting 	Neighbors 	of 	Cuddy
Mountain at 1070).
29 Earth Island Institute v. U.S. Forest Service, 442 F.3d
1147, 1172 (9th Cir. 2006), cert. denied, 127 S. Ct. 1829 (2007),
abrogated 	on 	other 	grounds, 	Winter 	v. 	Natural 	Resources 	Defense
Council, Inc., 129 S. Ct. 365 (2008).
30 See 40 C.F.R. §§ 1501.3, 1501.4.
ORDER RE SUMMARY JUDGMENT MOTIONS - 8
3:08-CV-0162-RRB
environmental 	impacts 	and 	to 	provide 	that 	information 	to 	the
public. 25 	The 	Forest 	Service 	must 	prepare 	an 	Environmental 	Impact
Study (EIS), which identifies environmental effects and alternative
courses of action, when undertaking any management project. 26 “‘In
contrast to NFMA, NEPA exists to ensure a process, not to mandate
particular 	results.’” 27 	Under 	NEPA, 	the 	agency 	need 	only 	take 	a
“hard look” at its proposed action. 28 However, the EIS “must respond
explicitly 	and 	directly 	to 	conflicting 	views 	in 	order 	to 	satisfy
NEPA’s procedural requirements.” 29
In 	order 	to 	determine 	whether 	an 	EIS 	is 	required, 	NEPA
regulations 	allow 	an 	agency 	to 	prepare 	a 	more 	limited 	document,
known as an environmental assessment (“EA”). 30 An EA is a “concise
public document” that “briefly provide[s] sufficient evidence and
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31 40 C.F.R. 1508.9(a).
32 40 C.F.R. §§ 1501.4(e), 1508.13.
33 Ecology 	Center 	at 	656 	(citing 	Lands 	Council 	v. 	McNair,
537 F.3d 981, 987 (9th Cir. 2008) (en banc)).
34 5 U.S.C. § 706(2)(A).
35 Ecology Center at 656 (citing Lands Council at 987).
ORDER RE SUMMARY JUDGMENT MOTIONS - 9
3:08-CV-0162-RRB
analysis 	for 	determining 	whether 	to 	prepare 	an 	[EIS].” 31 	If 	the
agency 	determines 	on 	the 	basis 	of 	the 	EA 	that 	an 	EIS 	is 	not
required, it must then issue a “finding of no significant impact”
(“FONSI”), 	which 	is 	a 	document 	“briefly 	presenting” 	the 	reasons
that 	the 	agency 	action 	will 	not 	have 	a 	significant 	impact 	on 	the
human environment. 32
IV. STANDARD OF REVIEW
The 	Administrative 	Procedure 	Act 	(“APA”) 	governs 	judicial
review of decisions under NEPA and NFMA. 33 Under the APA, an agency
decision will be set aside only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 34
The Court’s review under the arbitrary and capricious standard
is 	narrow, 	and 	the 	Court 	may 	not 	substitute 	its 	own 	judgment 	for
that of the agency. 35 Rather, the Court will reverse a decision as
arbitrary 	and 	capricious 	only 	if 	1) 	the 	agency 	relied 	on 	factors
Congress 	did 	not 	intend 	it 	to 	consider, 	2) 	entirely 	failed 	to
consider 	an 	important 	aspect 	of 	the 	problem, 	or 	3) 	offered 	an
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36 Id (citations omitted).
37 Docket 52 at 47.
ORDER RE SUMMARY JUDGMENT MOTIONS - 10
3:08-CV-0162-RRB
explanation that runs counter to the evidence before the agency or
is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise. 36
V. 	DISCUSSION
Plaintiffs seek a declaratory judgment that the Forest Service
violated NEPA, NFMA, and the 1997 Forest Plan in approving each of
the 	four 	timber 	projects. 	Plaintiffs 	also 	seek 	a 	permanent
injunction against the projects until the alleged violations have
been remedied. 37 The Court will address each allegation in turn.
A. 	The 	Forest 	Service’s 	Approval 	of 	the 	Projects 	Does 	Not
Violate NEPA
Plaintiffs claim the Forest Service violated NEPA by failing
to respond to and disclose opposing views regarding application of
the 	deer 	multiplier 	and 	use 	of 	the 	VolStrata 	vegetation
classification system. The Court disagrees.
1. 	The Forest Service’s Use of the Deer Multiplier and
Discussion Thereof Complies With NEPA
Plaintiffs assert that the Forest Service erred in calculating
the 	deer 	multiplier, 	and 	that 	it 	has 	failed 	to 	correct 	or 	even
address 	this 	alleged 	mistake 	in 	its 	approval 	of 	the 	timber
projects. According to Plaintiffs, the Forest Service “has been on
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38 Docket 52 at 22.
39 AR 31_1386 at 3.
40 AR 31_1386 at 4.
ORDER RE SUMMARY JUDGMENT MOTIONS - 11
3:08-CV-0162-RRB
notice since at least August of 2005 that it is applying the Deer
Multiplier 	incorrectly.” 38 	The 	specific 	“error” 	alleged 	by
Plaintiffs 	is 	that, 	when 	the 	Forest 	Service 	adjusted 	the 	deer
multiplier 	from 	125 	to 	100, 	it 	should 	also 	have 	adjusted 	the
highest possible HSI score from 1.3 to 1.0.
In 	support 	of 	this 	allegation, 	Plaintiffs 	cite 	several
sources, two of which are of particular note. The first is a June
15, 2006 letter from Doug Larsen of the ADF&G, in which Mr Larsen
makes the following comments regarding the deer model:
[The 	Person 	Study] 	analysis 	showed 	that 	[...] 	[a]n 	HSI
score of 1 corresponded to a density of 100 deer/mi2. At
the time of the analysis in 1996, an HSI score of 1.0 was
the highest score possible. Subsequently, the highest HSI
score was increased to 1.3. Therefore, the 100 deer/mi2
used by Person would now apply to an HSI score of 1.3. 39
Based 	on 	the 	Person 	Study, 	Mr. 	Larsen 	suggested 	that 	the 	Forest
Service 	“[a]dopt 	the 	deer 	multiplier 	of 	100 	deer/mi2 	(the 	only
empirically derived value available).” 40
The 	second 	important 	source 	cited 	by 	Plaintiffs 	is 	an 	April
27, 2007 letter from the State of Alaska, which contains comments
on 	the 	then-proposed 	Tongass 	Land 	and 	Resource 	Management 	Plan
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41 AR 31_01357 at 30.
42 Docket 55 at 30-31.
ORDER RE SUMMARY JUDGMENT MOTIONS - 12
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Amendment and Draft Environmental Impact Statement. In that letter,
the State said
It 	is 	unclear 	whether 	the 	USFS 	is 	using 	the 	deer 	HSI
model 	correctly. 	The 	1997 	description 	of 	the 	model 	and
its 	application 	was 	incorrect 	with 	respect 	to 	the 	deer
multiplier. The highest HSI value (whether it is scaled
to 	1.0 	or 	1.3) 	should 	correspond 	to 	a 	density 	of 	100
deer/mi 2.41
According 	to 	Plaintiffs, 	the 	Forest 	Service 	did 	not 	adequately
address 	these 	concerns 	when 	it 	approved 	the 	four 	projects
challenged in this suit.
The 	Forest 	Service 	responds 	that 	its 	use 	of 	the 	0-1.3 	HSI
scale and 100 deer per square mile multiplier was not in error, but
was rather the result of its own scientifically derived judgment to
which the Court owes deference. 42 After having reviewed the relevant
documents, 	the 	Court 	has 	determined 	that 	the 	Forest 	Service’s
application 	of 	the 	deer 	multiplier 	represents 	a 	bona 	fide
scientific disagreement with the Plaintiffs’ position, rather than
simply an “error.”
Using the scale adopted by the Forest Service, the estimated
deer population for the most highly-rated habitat, a 1.3 on the HSI
scale, would be 1.3 times 100, or 130 deer per square mile. Before
the Forest Service lowered the deer multiplier from 125 to 100, the
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43 See AR 603_2264 at 32-33.
44 AR 31_01357 at 30.
45 AR 31_1386 at 4.
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most highly-rated habitat would have been estimated to have 162.5
deer, 	or 	1.3 	times 	125. 	When 	the 	Forest 	Service 	lowered 	the
multiplier 	to 	100, 	it 	did 	so 	on 	the 	basis 	of 	the 	Person 	study,
which suggested lowering the multiplier to 100 but did not suggest
adjustment of the HSI scale. 43
Plaintiffs have established that some experts dissent from the
1.3 HSI/100 deer multiplier standards. The State of Alaska’s view
as reflected in its April 27, 2007 letter is that the highest rated
habitat 	should 	have 	a 	maximum 	estimate 	of 	100 	deer/square 	mile. 44
The 2006 letter from the Department of Fish and Game is less clear
in prescribing adjustments to the deer multiplier. While Mr. Larsen
of the ADF&G says that the Forest Service should “[a]dopt the deer
multiplier 	of 	100 	deer/mi2” 45 , 	nowhere 	in 	his 	letter 	does 	he
indicate whether the highest HSI score should be scaled down from
1.3.
While 	there 	is 	clearly 	a 	legitimate 	scientific 	disagreement
regarding 	the 	proper 	calculation 	of 	deer 	density 	in 	the 	Tongass
National 	Forest, 	this 	Court’s 	role 	“is 	simply 	to 	ensure 	that 	the
Forest Service made no ‘clear error of judgment’ that would render
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46 Lands Council at 993.
47 Lands Council, 537 F.3d at 1000 (citations omitted).
ORDER RE SUMMARY JUDGMENT MOTIONS - 14
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its 	action 	‘arbitrary 	and 	capricious.’” 46 	The 	Forest 	Service’s
calculation 	of 	the 	HSI 	scale 	and 	deer 	multiplier 	is 	not 	a 	clear
error 	of 	judgment. 	The 	1.3 	HSI/125 	deer 	multiplier 	figures 	were
derived from the 1996 panel of Tongass deer experts and adopted in
the 	1997 	Forest 	Plan, 	which 	recommended 	a 	maximum 	density 	for
optimal habitat of 162.5 deer per square mile. The later decision
to 	adjust 	the 	deer 	multiplier 	down 	to 	100 	deer/square 	mile 	was
based on the Person study recommendations. Both the 1996 panel and
the 	Person 	study 	employed 	sound 	scientific 	principles, 	and 	the
Forest Service’s reliance on their conclusions was not “arbitrary
and capricious.”
“‘[W]hen specialists express conflicting views, an agency must
have 	discretion 	to 	rely 	on 	the 	reasonable 	opinions 	of 	its 	own
qualified 	experts 	even 	if, 	as 	an 	original 	matter, 	a 	court 	might
find contrary views more persuasive.’” 47 The Forest Service relied
on 	the 	reasonable 	opinions 	of 	its 	own 	experts 	in 	formulating 	the
HSI 	scale 	and 	deer 	multiplier. 	The 	Court 	will 	not 	substitute 	its
own scientific judgment for that of the Forest Service experts.
Furthermore, Plaintiffs’ objection that the Forest Service did
not 	adequately 	respond 	to 	their 	concerns 	regarding 	the 	deer
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48 See 	AR 	30_Dec2005_Scott 	PeakFEIS_ROD_Vol_2 	at 	C26-C48
(Greenpeace et al. comment letter), C49-C66 (Response to Greenpeace
et al. comment letter).
49 AR 30_0941 at 11-13.
50 Docket 55, Exhibit 19 at 15.
51 AR 31_1277 at D111-12.
52 AR 32_00400 at 2-3.
ORDER RE SUMMARY JUDGMENT MOTIONS - 15
3:08-CV-0162-RRB
multiplier 	and 	HSI 	scale 	is 	ill-founded. 	The 	Forest 	Service
responded to their objections rather extensively in Appendix C to
the Scott Peak Project EIS, 48 with further discussion in the appeal
deciding 	officer’s 	recommendations 	regarding 	the 	Scott 	Peak
Project 49 	and 	Overlook 	Project 50 . 	Those 	earlier 	responses 	to
Plaintiffs’ comments were later cited in Appendix D to the EA for
the 	Traitor’s 	Cove 	project, 51 	and 	the 	Appeal 	deciding 	Officer’s
Recommendation 	regarding 	the 	Soda 	Nick 	Project 52 . 	Although
Plaintiffs 	argue 	that 	the 	Forest 	Service’s 	responses 	were 	not
substantive, 	the 	Court 	has 	reviewed 	the 	responses 	and 	determined
that 	they 	were 	detailed 	and 	adequately 	addressed 	Plaintiffs’
arguments on the basis of scientific studies.
2. 	The 	Forest 	Service’s 	Use 	of 	the 	VolStrata 	System
and Discussion Thereof Complies With NEPA
Plaintiffs 	next 	claim 	that 	the 	Forest 	Service 	failed 	to
respond 	substantively 	to 	Plaintiffs’ 	concerns 	regarding 	the
VolStrata 	Vegetation 	Classification 	System. 	According 	to
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53 Docket 52 at 35.
54 AR 32_0411 at 10.
55 AR 32_0411 at 11.
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Plaintiffs, 	“the 	Vol-Strata 	dataset 	is 	not 	correlated 	to 	deer
habitat quality because the dataset focuses on total timber volume
and not forest structure, which determines a forest stand’s value
as 	habitat 	for 	deer.” 53 	In 	support 	of 	this 	assertion, 	Plaintiffs
cite, among other sources, a 2006 letter from the ADF&G:
Vol-Strata 	may 	incorrectly 	identify 	some 	high 	volume
forest 	stands 	important 	for 	ecosystem 	function 	. 	. 	. 	.
For deer and other wildlife it would actually be better
to use the old Tim-Type classification until the [Size-
Density] model is ready to be implemented. 54
The ADF&G suggested either adopting the new Size-Density Model or
reverting to the TIMTYP System. 55
Just as it was not a “clear error of judgment” for the Forest
Service 	to 	rely 	on 	its 	own 	scientific 	conclusions 	regarding 	the
deer multiplier, it was not a clear error for the Forest Service to
employ 	the 	Vol-Strata 	System. 	At 	the 	time 	that 	the 	four 	projects
were approved, the Forest Service had essentially three choices of
systems 	for 	evaluating 	timber 	volume 	and 	structure: 	TIMTYP, 	Vol-
Strata, or Size-Density. The reliability of TIMTYP has already been
successfully 	challenged 	in 	court 	proceedings. 	As 	for 	the 	Size-
Density system, the ADF&G acknowledged that it was not “ready to be
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56 AR 10-009292.
57 AR 30_Dec2005FEIS_ROD_Vol_2 at C54.
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implemented.” Therefore, it was reasonable for the Forest Service
to conclude that Vol-Strata was the best tool then available.
Nor can it fairly be said that the Forest Service has failed
to 	acknowledge 	Plaintiffs’ 	concerns 	regarding 	the 	Vol-Strata
System. 	The 	Forest 	Service 	discussed 	the 	potential 	weaknesses 	of
the VolStrata System in the 1997 FEIS, shortly after its adoption:
Volume 	class 	is 	often 	a 	poor 	surrogate 	for 	habitat
quality, 	although 	it 	is 	one 	component 	used 	to 	model
habitat and is available in our resource inventory[...]
However 	many 	other 	habitat 	considerations 	are 	used 	to
identify 	habitat 	quality[...] 	These 	include 	elevation,
aspect, 	vegetation, 	forest 	type, 	successional 	stage 	of
vegetation 	development, 	travel 	corridors, 	landscape
position 	(beach, 	riparian, 	and 	estuary), 	human
influences, and other factors. 56
In the Scott Peak EIS, the Forest Service also acknowledged “that
timber 	volume 	and 	forest 	structure 	are 	not 	interchangeable
attributes.” 57 	Thus, 	the 	Forest 	Service 	acknowledged 	the
imperfections 	of 	the 	VolStrata 	System, 	but 	compensated 	for 	those
deficiencies by taking other factors into account when classifying
deer 	habitat. 	Moreover, 	in 	approving 	the 	challenged 	timber
projects, 	the 	Forest 	Service 	clearly 	stated, 	though 	not 	at 	great
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58 AR 30_Dec2005FEIS_ROD_Vol_2 at C53-C54.
59 AR 31-01277 at D-110.
60 Docket 52 at 28.
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length, 	its 	reasons 	for 	using 	the 	VolStrata 	System 	rather 	than
either TIMTYP 58 or Size-Density. 59
The Forest Service’s adoption of the new Size-Density system
the 2008 Forest Plan Amendment is obviously a tacit acknowledgment
that the VolStrata System no longer represents the state of the art
in 	vegetation 	classification. 	However, 	it 	was 	reasonable 	for 	the
Forest to conclude at the time the projects were approved that the
VolStrata 	System 	was 	superior 	to 	any 	other 	available. 	As 	noted
above, 	the 	NEPA 	only 	requires 	the 	Forest 	Service 	to 	take 	a 	“hard
look” at the environmental consequences of the proposed projects.
It does not mandate any specific scientific process for evaluating
that 	impact. 	The 	Forest 	Service’s 	use 	and 	discussion 	of 	the 	Vol-
Strata System met the NEPA standard.
3. 	Plaintiffs’ Further Objections Under NEPA Are Ill-
Founded.
Plaintiffs 	further 	allege 	that 	the 	EISs 	and 	EAs 	at 	issue 	do
not disclose “the many shortcomings of the Deer Model to determine
accurately 	deer 	habitat 	capability.” 60 	The 	Administrative 	Record
does 	not 	support 	this 	assertion. 	The 	Forest 	Service 	discussed
several potential shortcomings of the Deer Model, including 1) the
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61 AR 33_0336 at 51,
62 AR 10_009767.
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fact 	that 	the 	Deer 	Model 	does 	not 	address 	“the 	fragmentation 	of
large 	blocks 	of 	timber, 	the 	maintenance 	of 	travel 	corridors, 	and
the 	effects 	of 	roading” 61 ; 	2) 	that 	HSI 	alone 	is 	not 	a 	sufficient
predictor of actual deer population, because it fails to take into
account “severe winters, disease, predation, and hunting” 62 ; and 3)
the limitations of the VolStrata System, as discussed above.
A thorough review of the record shows that the Forest Service
used 	the 	Deer 	Model 	to 	estimate 	deer 	population, 	but 	that 	it 	did
not 	rely 	solely 	upon 	that 	model 	in 	analyzing 	deer 	habitat.
Moreover, 	the 	Forest 	Service 	acknowledged 	the 	weaknesses 	of 	the
deer 	model 	in 	the 	EISs 	and 	EAs 	at 	issue 	here. 	Had 	the 	Forest
Service relied solely on a deficient deer model, or had it obscured
the 	deficiencies 	of 	that 	model, 	then 	the 	projects 	would 	not 	pass
muster 	under 	NEPA. 	That 	simply 	is 	not 	the 	case 	here. 	The 	Forest
Service 	took 	the 	sufficient 	“hard 	look” 	at 	the 	strengths 	and
weaknesses of the Deer Model, and therefore complied with NEPA.
B. 	The 	Forest 	Service’s 	Approval 	of 	the 	Projects Complies
with NFMA.
Plaintiffs allege that the Forest Service violated the NFMA in
two different ways. First, Plaintiffs argue that the Forest Service
did not employ the “best available science” standard in evaluating
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63 Docket 52 at 35.
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the 	projects, 	as 	required 	by 	36 	C.F.R. 	§ 	219.35(a) 	(2000). 	They
also claim that the projects do not comply with the Forest Plan, as
required by NFMA.
1. 	The 	Forest 	Service 	Applied 	the 	Best 	Available
Science 	Standard 	in 	its 	Approval 	of 	the 	Timber
Projects
Plaintiffs 	assert 	that 	“the 	Forest 	Service 	never 	makes 	any
claim that it considered the ‘best available science’ standard in
its management decisions.” 63 Essentially, Plaintiffs argue that the
Forest 	Service’s 	explanations 	of 	its 	scientific 	reasoning 	are
insufficient 	without 	a 	specific 	finding 	that 	its 	reasoning
represents the “best available science”, or without a discussion of
that particular legal standard.
The Court disagrees. As noted in the above discussion of the
Deer Model and VolStrata System, the Forest Service stated clearly
the 	reasons 	why 	it 	chose 	to 	use 	certain 	scientific 	methods, 	data
and calculations in evaluating the projects. No one could read the
EISs 	and 	EAs 	at 	issue 	in 	this 	case 	and 	doubt 	that 	the 	Forest
Service believes it has relied on the best available science. The
Forest 	Service’s 	failure 	to 	employ 	the 	phrase 	“best 	available
science” within the Administrative Record is therefore irrelevant.
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64 Docket 52 at 39.
65 AR 10_006739.
66 537 F.3d at 998.
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2. 	The 	Forest 	Service 	Complied 	with 	the 	1997 Forest
Plan Standards and Guidelines
Plaintiffs 	assert 	that 	the 	projects 	violate 	the 	1997 	Forest
Plan 	Standards 	and 	Guidelines 	because 	the 	VolStrata 	System 	“does
not accurately describe the value of forest stands as deer winter
habitat.” 64 	According 	to 	Plaintiffs, 	due 	to 	this 	inaccuracy, 	the
timber 	projects 	violate 	the 	Forest 	Plan 	guideline 	which 	requires
the Forest Service to “[p]rovide the abundance and distribution of
habitat 	necessary 	to 	maintain 	viable 	populations 	of 	existing
native” species. 65 Plaintiffs cite Lands Council, which states that
“use 	of 	habitat 	as 	a 	proxy 	[for 	species 	population] 	may 	be
arbitrary and capricious” if “the record indicates that the Forest
Service 	based 	its 	habitat 	calculations 	on 	outdated 	or 	inaccurate
information.” 66
As 	noted 	above, 	the 	Forest 	Service 	adopted 	the 	VolStrata
System 	after 	much 	study 	and 	deliberation. 	Of 	course, 	the 	Forest
Service has moved on to the more advanced Size-Density model since
the projects were approved. Plaintiffs cite this fact as evidence
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67 AR 603_0647 at 3-192.
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3:08-CV-0162-RRB
that 	the 	VolStrata 	System 	is 	unreliable, 	noting 	that 	the 	Size-
Density model results in a lower estimate of HSI values. 67
The Court has held above that the Forest Service’s decision to
use 	the 	VolStrata 	System 	was 	a 	reasonable 	one 	given 	the
alternatives available at the time the projects were approved. The
mere fact that the Forest Service no longer uses VolStrata does not
prove its unreliability. Both VolStrata and Size-Density are used
merely 	as 	tools 	for 	estimating 	deer 	habitat; 	neither 	one 	could
possibly 	be 	perfect, 	but 	both 	were 	developed 	by 	expert 	wildlife
biologists 	and 	are 	based 	on 	sound 	scientific 	principles. 	And 	as
noted above, the Forest Service did not rely on VolStrata alone in
evaluating 	the 	impact 	of 	the 	projects 	on 	deer 	population.
Therefore, its reliance on the VolStrata System was not “arbitrary
and capricious”, and did not violate the Forest Plan guidelines.
V. CONCLUSION
The 	Forest 	Service 	took 	a 	“hard 	look” 	at 	the 	environmental
impact of the four timber projects challenged here, as required by
NEPA. The Forest Service evaluated the Deer Model and the VolStrata
System 	on 	the 	basis 	of 	what 	it 	deemed 	to 	be 	the 	best 	available
science, including the studies and conclusions of biologists both
within the Forest Service and without. These conclusions were not
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3:08-CV-0162-RRB
a “clear error of judgment,” and complied with the substantive and
procedural requirements of NEPA, NFMA, and the Forest Plan. Summary
Judgment is therefore GRANTED in favor of defendants. Plaintiffs’
Motion 	for 	Summary 	Judgment 	at 	Docket 	52 	is 	accordingly 	DENIED.
Defendants’ 	Motion 	at 	Docket 	61 	to 	strike 	the 	declaration 	of
Dr. Victor Van Ballenberghe is DENIED AS MOOT because Plaintiffs’
claims 	are 	insufficient 	even 	if 	the 	declaration 	is 	taken 	into
account.
IT IS SO ORDERED.
ENTERED this 27 th day of April, 2010.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
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