UNITED STATES DISTRICT COURT
Before the Court are Plaintiff=s Motion for Summary Judgment (Ct. Rec. 209); Defendant Vaagen Bros. Lumber=s [AVaagen@] Motions to Modify Injunction (Ct. Rec. 206), to Shorten Time (Ct. Rec. 212) and to Dismiss (Ct. Rec. 219); Defendant-Intervenor Clearwater Land Exchange=s [ACLE@] Joinder in Vaagen's Motion to Dismiss (Ct. Rec. 224), and Motion for Amendment of Judgment (Ct. Rec. 164). Plaintiffs are represented by Marianne Dugan and Marcia M. Meade; Defendant Bureau of Land Management [ABLM@] by Assistant United States Attorney James Shively; Defendant Vaagen by Scott Horngren and James S. Craven; and Defendant-Intervenor CLE by Paul Turcke and Mark A. Ellingsen. Background This citizen suit challenges a land exchange designated as WAOR 50525, which involves trading 44 parcels of federal land consisting of 4,502 acres for approximately 26,000 acres of private land in eastern Washington. Plaintiffs Kettle Range Conservation Group [AKRCG@] and Inland Empire Public Lands Council [AIEPLC@] bring this action under the National Environmental Policy Act [ANEPA@], codified at 42 U.S.C. ' 4321et seq. and the Federal Land Policy and Management Act [AFLPMA@], codified at 43 U.S.C. ' 1701et seq. On December 1, 1995, BLM entered into the above-described exchange with CLE, a broker specializing in such public-for-private trades. After announcement of the agreement, Plaintiffs KRCG and IEPLC commented, raising a number of concerns. There is no dispute over the purpose of privatizing the lands. They would be acquired by loggers, and once out of federal control, subject to logging under state practices. On September 23, 1996 BLM issued an Environmental Assessment [AEA@] accompanied by a Finding of No Significant Impact [AFONSI@]. Ct. Rec. 4, ex. B. Plaintiffs found several allies during the process. The Washington State Department of Fish and Wildlife [AWDFW@] commented and, while supporting the exchange in principle and not objecting to most of the parcels being included, registered opposition to inclusion of 15 parcels, ranking them as to their relative importance as "low concern," "medium concern," and "high concern." Ct. Rec. 4, ex. S. This comment was not expressly addressed in the EA. See 40 C.F.R. ' 1502.9(b) (imposing duty to disclose "any responsible opposing view"). A BLM biologist conducted a field survey of 18 of the parcels in 1993 and recommended retention of five or possibly six. Ct. Rec. 4, ex. R. This recommendation was not addressed in the EA. BLM gave consideration to the retention issue and took it up with CLE. CLE advised that the transaction was so complex and the parties to it so numerous that it was likely the entire arrangement would crumble if any significant retention occurred. Ct. Rec. 4, ex. M. BLM decided to go forward as planned. This action followed on June 2, 1997. On June 6, 1997, the Court denied Plaintiffs= Motion for a Preliminary Injunction. Ct. Rec. 51. Immediately thereafter, BLM transferred 2,010 acres pursuant to the exchange agreement. On August 25, 1997, the Court granted in part CLE=s Motion to Intervene. Ct. Rec. 60. Intervention was limited to participation in the injunctive phase of the action. Plaintiffs took an interlocutory appeal, which was decided on December 3, 1997 when the Circuit upheld denial of injunctive relief. In early May 1998, BLM transferred additional acreage, leaving only about eight percent of the package untransferred. By Order entered May 20, 1998, the Court granted partial summary judgment in favor of Plaintiffs and on that same date ordered prospective injunctive relief effectuating the grant of partial summary judgment. Ct. Rec. 152-53. The matter was remanded to BLM with directions to take into account the availability of alternatives, the cumulative effects of the exchange, and the potential impact on the Northern Goshawk. The Court denied Plaintiff's request for rescisionary relief. Over 90% of the exchange had been completed by then, and the former public lands were now held by various private entities. Denial was premised on three grounds: (1) the record did not adequately support the premise that rescision was in the public interest; (2) more equitable means of preserving the status quo were available to Plaintiffs; i.e., joining the private landowners as parties; and (3) the private landowners were necessary parties. Ct. Rec. 153. Plaintiffs again appealed. BLM did not cross-appeal the grant of partial summary judgment or the entry of injunctive relief. On July 20, 1998, the Circuit denied Plaintiff's motion for emergency injunctive relief. Kettle Range v. United States Bureau of Land Mgmt., 150 F.3d 1083 (9th Cir. 1998) (per curiam). The court in Kettle Range agreed that this Court properly declined to direct rescision because the remedy would have destroyed vested rights of absent parties; i.e., the current owners of the previously-federal lands who thus far had been strangers to this litigation. Id. at 1086-87. Because of this feature, the absent landowners were deemed necessary parties within the meaning of Rule 19. Id. In the meantime, BLM was complying with the remand order. A Revised Draft Environment Assessment ["RDEA"] issued on August 28, 1998. Ct. Rec. 182. After a comment period, BLM decided to confirm the prior EA with a Final Environmental Assessment ["FEA"] and to proceed as originally planned. The Record of Decision was entered on November 10, 1998. Ct. Rec. 202. On December 11, 1998, the Court granted Plaintiff's motion to join Vaagen as a defendant, and entered an injunction prohibiting felling trees and roadbuilding until the hearing on Plaintiffs' motion for Summary Judgment scheduled for December 24, 1998. Discussion The FEA addresses the concerns raised in the prior summary judgment orders. Ct. Rec. 152, 161. Among the more notable highlights are: 1. WDFW has withdrawn its opposition and now supports the exchange as proposed. FEA at 9; id. at Appendices III & V. WDFW has always supported the acquisition side of the coin, and re-evaluating its priorities, now supports the disposal side as well. 2. The work of the BLM biologist who voiced objection to the release of six parcels has been reviewed and found unsupported. FEA at 9. 3. BLM has considered retaining the 17 parcels that were the subject of WDFW comments and the BLM biologist's study; i.e., the "partial retention alternative." Id. This alternative was rejected largely because the acquisition of shrubsteppe habitat would be only 20 to 25% of that contemplated under the exchange as proposed; insufficient land area to provide the envisioned benefits of acquiring habitat of this character. Id. at 31-32; see also, id. at Appendix IV (comment from United States Geological Survey explaining mechanics of shrubsteppe vegetation cycle and need for large contiguous holdings). 4. When the EA issued, the Northern Goshawk was a candidate for listing under the Endangered Species Act ["ESA"]. It has since been downgraded from candidate status to a "species of concern." Id. at 19. There are no known nesting sites on the exchange parcels. Id. There is no reason to believe that the exchange would contribute toward the bird again being considered a candidate for ESA protection. Id. at 38-40. 5. The "overall cumulative impacts" have been addressed. Id. at 43-44. The FEA is a substantial improvement over the earlier version, but as Plaintiffs point out, it remains open to criticism. Plaintiffs seize on the rule that ad hoc justifications may not be employed to defend a decision already made. 40 C.F.R. ' 1502.2(g). Plaintiffs' criticisms include, inter alia: (1) the range of alternatives considered is too narrow; (2) the impact of logging once the land is in private hands is misstated; (3) public access has been mischaracterized; and (4) the agency has failed to take into account the importance of small wildlife "refugia." Not every contention need be reached, but some of the more important points raised include the following.! Plaintiffs argue that "[s]ignificance cannot be avoided by . . . breaking [an action] down into small component parts." Blue Mountains Biodiversity Project v. Blackwood, ___ F.3d ___, 1998 WL 828124, slip op. at 7 (9th Cir. Dec. 2, 1998). That is an accurate statement of the law, but has no application under these facts. Future exchanges are in the contemplative stage. Contemplated action is not proposed action, and does not trigger NEPA requirements. Kleppe v. Sierra Club, 427 U.S. 390, 404-06 (1976).! Plaintiffs assert that the FEA fails to disclose WDFW's prior stance during the initial comment period. That is inaccurate. WDFW's March 9, 1996 comment is appended to the FEA. FEA, Appendix III.! Plaintiffs contend that the FEA's failure to mention the 1993 advisory drafted by the Eastside Forests Scientific Society Panel ["EFSSP"] that "all remaining LS/OG blocks and fragments are ecologically significant" violates the NEPA duty to disclose "any responsible opposing view." 40 C.F.R. ' 1502.9(b). The EFSSP report also notes, however, that a stand of less than 100 acres is "too small to provide for the basic needs of many LS/OG-associated species." Ct. Rec. 66, Exhibit JJ at 7.! In a related vein, Plaintiffs contend that inadequate attention to the value of "refugia" ignores the impacts on old-growth-reliant species. The factual problem with this position is that it is generally recognized that a tract of less than 100 acres of old growth is thought by most (including, as indicated above, EFSSP) not to be biologically meaningful to most species dependent on this habitat. To the extent that refugia are important to small animals and reptiles, invertebrates and plant life, the FEA acknowledges the point. FEA at 33. The topic of refugia was not ignored. BLM simply came to a different conclusion than that urged by Plaintiffs.! Plaintiffs are critical because BLM has adopted an LS/OG definition not shared by EFSSP. Unless arbitrary and capricious, scientific methodology is committed to the judgment of the agency. Inland Empire Lands Council v. Schultz, 992 F.2d 977, 981-82 (9th Cir. 1993).! Plaintiffs urge that the FEA leaves one to "speculate as to how long the newly-consolidated tracts will take to reach a stage where they can maintain viable populations of LOS-reliant species." Probably a long time. Some of the Stevens County acquisition is forested land (about 3,000 acres). Ct. Rec. 66, Exhibit FF at 5. However, most of the acquired parcels other than the riparian lands are scabland, and have been since the Ice Age.
Id. There is probably no document, be it an EA, or a novel, or a judicial opinion, that could not benefit from just one more rewrite. However, the objective here is not perfection, but NEPA compliance. When compliance occurs is based on a rule of reason and proportionality. National Resources Defense Council v. Hodel, 624 F. Supp. 1045, 1052 (D. Nev. 1985), aff'd, 819 F.2d 927 (9th Cir. 1987). The FEA has considered an appropriate range of alternatives, and explains why the one chosen was selected. The fact that the end result remains the same does not in itself render the document suspect. Nor is the fact that BLM did not examine each of the eleven alternatives addressed in minute detail necessarily a flaw. Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1994) (agency entitled to establish reasonable parameters of inquiry). The FEA is not perfect, but appears to be a bona fide effort to comply with the remand order. An agency in BLM's position must exercise its expertise in addressing reasonably foreseeable impacts, but Plaintiffs are demanding "crystal ball" performance. That is not required. See Inland Empire Lands Council, supra, 992 F.2d at 981-82. The strongest point Plaintiffs make is that BLM sloughed off the opinion of its own biologist without offering any supporting data. See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998). It is true that his opinions were dismissed summarily, but taken in context, the FEA states why the biologist's ultimate recommendations were rejected. BLM considered retaining the parcels that were the subject of his study under the "partial retention alternative." FEA at 9. The reasons stated for rejecting this alternative are plausible. Id. at 31-32. BLM gave these lands the requisite hard look. Every case has at least one dominant theme, and the theme here lies in the agency's desire to acquire rather than dispose of, which probably explains why BLM does not address in detail every possible mode of disposition; e.g., interagency cooperative management with the Forest Service, and acquiring easements facilitating access to these mostly landlocked parcels. See FEA at 12. Acquisition of shrubsteppe drove this transaction. That was at the heart of BLM's decision, and has been at the heart of Plaintiffs' objection. Plaintiffs are taking a procedural statute and attempting to wield it to accomplish substantive ends. Scabland has ecological value too, and BLM was not given a monolithic mandate, but rather directed to take into account all of the varied factors which go into multiple use decisions, including economics, recreation, commercial interests, future community needs, and wildlife habitat. 43 U.S.C. ' 1716(a). Old growth forest is doubtless a shrinking resource requiring much time to regenerate, but the same is true of shrubsteppe. It is not being made any more, and it is being eroded by loss to agriculture and development. FEA at 22. BLM deems the acquisition and effective management of shrubsteppe to be "the highest conservation priority in eastern Washington." Id. BLM considers the shrubsteppe ecosystem to be "one of the ten most endangered ecosystems in the nation." Id. Given its statutory mandate, placing emphasis on these concerns is well within the agency's legitimate policy-making role. All courts are required to do in a NEPA proceeding is ensure that an agency has disclosed and considered. Once an agency has disclosed and considered in a manner that is neither arbitrary nor capricious, what course of action it chooses as a policy matter is beyond judicial purview. Association of Pub. Agency Customers v. Bonneville Power, 126 F.3d 1158, 1183 (9th Cir. 1997). One cannot lose sight of the fact that this was never a slam-dunk case where it was manifestly apparent that the agency had abdicated its responsibilities. In fact, Plaintiffs lost their initial bid at injunctive relief both here, and before the Circuit. It was only after the facts had been fully marshaled that the significance of BLM's failure to disclose the WDFW study shone through. As long as the matter was being remanded to correct that defect, the agency was directed to consider other issues as well although, standing alone, they may not have warranted remand. The objective of litigation such as this is to put federal agencies on notice that: (1) citizen groups are watching; and (2) courts will back them up when they are right. That objective has been served. Defendants have not cross-moved for summary judgment, but Plaintiffs agree that given the posture of the case, this is an either/or situation, and if they are not granted summary judgment, it would follow that Defendants should be. IT IS HEREBY ORDERED: 1. Plaintiff=s Motion for Summary Judgment (Ct. Rec. 209) is DENIED. 2. Summary judgment is GRANTED in favor of all Defendants. 3. The injunction entered against BLM on May 20, 1998 is DISSOLVED. 4. The injunction entered against Vaagen on December 11, 1998 is DISSOLVED. 5. Vaagen's Motion to Modify Injunction (Ct. Rec. 206) is DENIED. 6. Vaagen's Motion to Shorten Time (Ct. Rec. 212) is DENIED. 7. Vaagen's Motion to Dismiss (Ct. Rec. 219) is DENIED. 8. CLE's Joinder in Vaagen's Motion to Dismiss (Ct. Rec. 224) is DENIED. 9. CLE's Motion for Amendment of Judgment (Ct Rec. 164) is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to enter this order, enter judgment thereon, provide copies to counsel, and close this file.
DATED this 8th day of January 1999
Original signed by ROBERT H. WHALEY United States District Court Q:\Civil\1997\kettle-range.SJ.order.wpd |