Woodpecker Lawsuit

8/7/2019 Woodpecker Lawsuit

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Rachel M. Fazio (CA Bar No. 187580)P.O. Box 697Cedar Ridge, CA 95924(530) [email protected]

Sarah Uhlemann (WA Bar No. 41164)Center for Biological DiversityP.O. Box 31001Seattle, WA 98103-9998(206) [email protected] *Application of pro hac vice admission pending

Justin Augustine (CA Bar No. 235561)Center for Biological Diversity

351 California St., Suite 600San Francisco, CA 94104(415) 436-9682Fax: (415) 436-9683

[email protected]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIA

EARTH ISLAND INSTITUTE and CENTER FOR BIOLOGICALDIVERSITY,

Plaintiffs,

v.

TERRI MARCERON, in her official capacityas Forest Supervisor for the Lake TahoeBasin Management Unit, and UNITEDSTATES FOREST SERVICE, an agency of the Department of Agriculture,

Defendants.

Case No.

COMPLAINT FOR DECLARATORYAND INJUNCTIVE RELIEF

Case 2:11-at-00190 Document 1 Filed 02/11/11 Page 1 of 18
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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INTRODUCTION

1. Through this action, Plaintiffs Earth Island Institute and Center for Biological Diversity

challenge the Angora Fire Restoration Project (Angora Project) in the Lake Tahoe Basin Management

Unit (LTBMU) of the United States Forest Service. The Angora Project proposes to log 1,398 acresof rare snag forest habitat (dense mature and old forest that has experienced moderate to high-intensity

wildland fire) on national forest lands near the south side of Lake Tahoe in California and will include

the construction of 7.7 miles of roads and 23 new landing areas or forest openings.

2. In 2007, the Angora fire burned the Project area at varying intensities. Burned forest

provides essential habitat for many fire-dependent species, including the declining black-backed

woodpecker. This species requires moderately to severely burned forest habitat, including a very high

density of large snags or dead trees, for nesting and foraging. The Angora Project will eliminate about

70% of the last remaining black-backed woodpecker suitable habitat currently available in the Lake

Tahoe Basin Management Unit. According to the Forest Services overestimate, this leaves sufficient

habitat for about 23 pairs of black-backed woodpeckers (EA, pp. 3.6-65 through 3.6-66); though the

scientific studies cited in the Angora EA on this issue show the remaining habitat would support far

fewer pairs than thisas few as 2 to 4 pairs. Yet, whether 23 pairs or 4 pairs would remain after the

planned logging, the Forest Service has never determined the minimum viable population of black-

backed woodpeckers on the LTBMU or whether the Angora project would push black-backed

woodpecker populations below this critical threshold and threaten the populations viability across the

LTBMU.

3. In addition, and unlike most salvage logging projects that send wood to mills for lumber,

most of the large snags that would be logged in the Angora Project, which currently provide extremely

rare and important habitat, would be sent to biomass facilities and burned to generate energy.Greenhouse gas emissions from the Angora Project would be substantial. In addition to the greenhouse

gases released during logging from soil disturbance, burning of unwanted materials on-site, equipment

use, and transportation of the biomass, burning wood to produce biomass energy emits substantial

amounts of greenhouse gases as much as burning coal. The Forest Service failed to fully consider all



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greenhouse gas emissions from the Angora Project along with their potential impacts and writes off

these emissions as insignificant.

4. This action arises under, and alleges violation of, the National Environmental Policy Act

(NEPA), 42 U.S.C. 4321 et seq. ; the National Forest Management Act (NFMA), 16 U.S.C. 1600 et seq. ; and the Administrative Procedure Act (APA), 5 U.S.C. 501 et seq. ; and the statutes

implementing regulations. Specifically, this action challenges the Angora Fire Restoration Project

Decision Notice and Finding of No Significant Impact (FONSI) issued by Terri Marceron, Forest

Supervisor for the Lake Tahoe Basin Management Unit, and the United States Forest Service (referred to

collectively as Defendants or Forest Service). Plaintiffs may seek temporary, preliminary, or

permanent injunctions against all or portions of the federally approved activities challenged herein to

forestall irreparable injury to the environment and to Plaintiffs interests, and any other such relief as the

Court deems appropriate.

JURISDICTION

5. Jurisdiction over this action is conferred by 28 U.S.C. 1331 (federal question), 2201

(declaratory relief), and 2202 (injunctive relief). This cause of action arises under the laws of the United

States, including NEPA, NFMA, the APA, and implementing regulations established pursuant to these

federal statutes. An actual, justiciable controversy exists between Plaintiffs and Defendants. The

requested relief is proper under 28 U.S.C. 2201 and 2202, and 5 U.S.C. 705 and 706.

VENUE

6. Venue in this Court is proper under 28 U.S.C 1391 and 1392. The actions challenged

in this case, including the Decision Notice and FONSI, were developed and issued by Defendants in the

Lake Tahoe Basin Management Unit, which is headquartered in South Lake Tahoe, California, located in

El Dorado County. Additionally, land subject to the challenged decisions is located in this judicialdistrict. Venue therefore properly vests in this district.

PARTIES

7. Plaintiff Earth Island Institute (EII) is a nonprofit corporation organized under the laws

of the state of California. EII is headquartered in Berkeley, California. EIIs mission is to develop and



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support projects that counteract threats to the biological and cultural diversity that sustains the

environment. Through education and activism, these projects promote the conservation, preservation

and restoration of the Earth. One of these projects is the John Muir Projectwhose mission is to protect

all federal public forestlands from commercial exploitation, that undermines and compromises science- based ecological management. EII is a membership organization with over 15,000 members in the U.S.,

over 3,000 of whom use and enjoy the National Forests of California for recreational, educational,

aesthetic, spiritual, and other purposes. EII, through its John Muir Project, has recently appealed

numerous timber sales on National forests in the Sierra Nevada, including the Angora Project, which if

implemented would adversely affect the interests of their members. EII through its John Muir Project

has a longstanding interest in protection of national forests. EIIs John Muir Project and EII members

actively participate in governmental decisionmaking processes with respect to national forest lands in

California and rely on information provided through the NEPA processes to increase the effectiveness of

their participation.

8. Earth Island Institutes members include individuals who regularly use the forests of the

LTBMU, and the Angora fire area in particular, for scientific study, recreational enjoyment, aesthetic

beauty, and nature photography. These members interests will be irreparably harmed by the planned

logging in the Angora fire area, as they will no longer be able to scientifically study these areas in their

natural (pre-logging) state, take nature photographs of the area in its natural (pre-logging) state, or enjoy

the aesthetic beauty of the unlogged snag forest habitat in its natural state.

9. Plaintiff Center for Biological Diversity (the Center) is a non-profit corporation with

offices in San Francisco, Los Angeles, and Joshua Tree, California; Nevada; Oregon; Washington;

Arizona; New Mexico; Alaska; and Washington, D.C. The Center is actively involved in species and

habitat protection issues throughout North America and has more than 42,000 members, including manymembers who reside and recreate in California. One of the Centers primary missions is to protect and

restore habitat and populations of imperiled species, including from the impacts of logging and climate

change.



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10. The Centers members and staff include individuals who regularly use and intend to

continue to use the Lake Tahoe Basin Management Unit, including the lands and waters that were

burned in the Angora fire and are now planned for logging as part of the Angora Project. These members

and staff use the area for observation, research, aesthetic enjoyment, and other recreational, scientific,spiritual, and educational activities. Many of the Centers staff and members use the area to observe and

study imperiled species like the black-backed woodpecker that, since the Angora fire burned, can be

found in Angora Project area. These members interests will be irreparably harmed by the planned

logging in the Angora fire area, as they will no longer be able to visit and enjoy this area in its unlogged

state, nor will they be able to observe or attempt to observe the black-backed woodpecker or other

species which use and are dependent on this area in its unlogged state.

11. This suit is brought by EII and the Center on behalf of themselves and their adversely

affected members and staff. Plaintiffs and their members present and future interests in and use of the

Angora Project area and the waters therein are and will be directly and adversely affected by the

challenged decision. Those adverse effects include, but are not limited to: (1) impacts to native plants

and wildlife and their habitats within and around the Angora Project area from logging, biomass

removal, soil compaction, noise, and human presence; (2) impacts to riparian areas and water quality; (3)

reduction and impairment of recreation opportunities; (4) impaired aesthetic value of forest lands, trails,

and landscapes caused by Defendants logging; (5) loss of scientific study opportunities with regard to

black-backed woodpecker use of unlogged post-fire habitat; and (6) broad impacts of climate change

within and outside the project area. In addition, Plaintiffs and their members and staff have an interest in

ensuring that Defendants comply with all applicable laws, regulations, and procedures pertaining to the

management of national forest lands.

12. Because Defendants actions approving the Angora Project violate several procedural and substantive laws, a favorable decision by this Court will redress the actual and imminent injury to

Plaintiffs.

13. Both Plaintiffs participated in the administrative process culminating in the issuance of

Angora Project Decision Notice and FONSI by submitting comments on the Draft Environmental



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Assessment (EA) for the Project. Both Plaintiffs also submitted administrative appeals of the Decision

Notice and FONSI, and on October 7, 2010 both appeals were denied. As such, Plaintiffs have exhausted

all available administrative remedies.

14. Defendant Terri Marceron is the Forest Supervisor for the Lake Tahoe BasinManagement Unit and is sued in her official capacity. Ms. Marceron is directly responsible for forest

management in the LTBMU and for ensuring that all resource management decisions comply with

applicable laws and regulations. Ms. Marceron signed the Decision Notice challenged here. Ms.

Marceron officially resides in South Lake Tahoe, California.

15. Defendant United States Forest Service is an agency of the United States Department of

Agriculture. The Forest Service is responsible for the administration and management of the federal

lands subject to this action, including the implementation of NEPA, NFMA, the APA, and the statutes

implementing regulations.

LEGAL BACKGROUND

A. The National Environmental Policy Act

16. The National Environmental Policy Act (NEPA) is our basic national charter for

protection of the environment. 40 C.F.R. 1500.1(a). NEPAs twin aims are to ensure that federal

agencies consider the environmental impacts of their proposed actions and to ensure that agencies

inform the public that environmental concerns have been considered.

17. NEPA requires responsible [federal] officials to prepare an environmental impact

statement (EIS) to consider the effects of each major Federal action[ ] significantly affecting the

quality of the human environment. 42 U.S.C. 4332(2)(C)(i). To determine whether the impacts of a

proposed action are significant enough to warrant preparation of an EIS, the agency may prepare an

environmental assessment (EA).18. Under NEPAs implementing regulations, an agencys EA must include brief

discussions of the need for the proposal, of the alternatives . . ., [and] of the environmental impacts of

the proposed action and the alternatives. 40 C.F.R. 1508.9. The EA must take a hard look at the



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impacts, and if the agency decides the impacts are not significant, must supply a convincing statement of

reasons why.

19. Further, NEPAs implementing regulations require that the agency shall identify any

methodologies used and shall make explicit reference by footnote to the scientific and other sourcesrelied upon for conclusions, and shall ensure the scientific accuracy and integrity of environmental

analysis. Id. 1502.24. The agency must disclose if information is incomplete or unavailable and

explain the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable

significant adverse impacts. Id. 1502.22(b)(1). Further, the agency must directly and explicitly

respond to dissenting scientific opinion. Id. 1502.9(b).

20. Finally, an agency must prepare an EIS for any action that has individually insignificant

but cumulatively significant impacts. 40 C.F.R. 1508.27(b)(7). A cumulative impact is defined as the

impact on the environment which results from the incremental impact of the action when added to other

past, present, and reasonably foreseeable future actions regardless of what agency . . . or person

undertakes such other actions. Cumulative impacts can result from individually minor but collectively

significant actions taking place over a period of time. Id. 1508.7.

B. The National Forest Management Act

21. The National Forest Management Act (NFMA) establishes the statutory framework for

management of the National Forest System. NFMA requires the Forest Service to develop a Land and

Resource Management Plan (Forest Plan) for each national forest, including the Lake Tahoe Basin

Management Unit.

22. A forest plan provides for multiple use management of the national forest including

management for recreation, range, timber, wildlife and fish, and wilderness uses. 16 U.S.C. 1604(e)(1).

Specifically, NFMA requires that all forest plans provide for diversity of plant and animalcommunities. Id. 1604(g)(3)(E).

23. Pursuant to NFMA, all site-specific actions taken within a national forest must be

consistent with the applicable forest plan. Id. 1604(i).



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24. In 1982, the Forest Service promulgated regulations implementing NFMA. The

regulations required that [f]ish and wildlife habitat [on national forest lands] shall be managed to

maintain viable populations of existing native . . . vertebrate species in the planning area. 36 C.F.R.

219.19 (1982). This requirement is known as the wildlife viability requirement, or viabilityrequirement of the 1982 NFMA regulations.

25. In 2000, the NFMA regulations were replaced with new regulations, which state that

previous requirements of the 1982 regulations, including the wildlife viability requirement, remain as

enforceable requirements so long as they are incorporated into the forest plan at issue.

FACTUAL BACKGROUND

A. The Lake Tahoe Basin Management Unit and Its Wildlife

26. The Lake Tahoe Basin Management Unit (LTBMU) covers approximately 150,000

acres of federally owned land surrounding Lake Tahoe. The LTBMU was created so Forest Service

could manage the area with a special focus on Lake Tahoe.

27. The U.S. Forest Service manages the LTBMU as a distinct national forest, and all NFMA

requirements apply. Accordingly, in 1988, the Forest Service issued a Land and Resource Management

Plan for the Lake Tahoe Basin Management Unit (1988 LTBMU Forest Plan). The 1988 LTBMU

Forest Plan (page III-22) explicitly incorporated the wildlife viability requirement of the 1982 NFMA

regulations, requiring that the Forest Service must manage habitat to, at the least, maintain viable

populations of existing native and desired nonnative species. Management indicator species (MIS) have

been selected to monitor the effects of management practicesThese indicator species represent groups

of species with similar habitat requirements; thus, management of these species to maintain viable

population levels should also provide for viable populations of the remaining species in the group they

represent. See also LTBMU FP pp. IV-11 and IV-18.28. In 2004 the Forest Service issued the Sierra Nevada Forest Plan Amendment (2004

Amendment) that amended 11 forest plans across the Sierra Nevada mountains, including the 1988

LTBMU Forest Plan. The 2004 Amendment stated that provisions in the forest-wide forest plans, such



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as the 1988 LTBMU Forest Plan, that were not explicitly replaced by the 2004 Amendment continued to

remain in effect.

29. The 2004 Amendment was prepared pursuant to the 1982 NFMA regulations and

incorporated the wildlife viability requirement. Earth Island Inst. v. U.S. Forest Serv. , 442 F.3d 1147,1173 (9th Cir. 2006).

30. In 2007, the Forest Service issued the Sierra Nevada Forests Management Indicator

Species Amendment (2007 MIS Amendment), which amended the lists of MIS species in each of the

national forests in the Sierra Nevada, including the LTBMU, to create a consistent list of MIS species for

all Sierra Nevada national forests.

31. The 2007 Amendment repeatedly and explicitly makes clear that the wildlife viability

requirements in forest-wide forest plans in the Sierra Nevada, such as the 1988 LTBMU Forest Plan,

remain as requirements and are in no way affected, modified, or eliminated by the 2007 MIS

Amendment.

32. The 2007 MIS Amendment (p. 48) states that [n]one of the alternatives creates, modifies,

or eliminates any substantive protection measures for wildlife or habitat (emphasis in original). The

2007 Amendment (p. 9) then repeatedly addresses the continuing force and effect of the NFMA wildlife

viability requirement, stating that wildlife species will also continue to be protected by the general

viability requirements of the NFMA implementing regulations, and stresses (p. 56) that [m]anagement

for conservation of all species, regardless of whether they are designated as MIS or not, is governed by

the forest plan standards and guidelines and various laws, including the general viability requirements of

the [NFMA] implementing regulations (emphasis added). The 2007 MIS Amendment (p. 351) goes

on to insist that [s]afeguards to maintain diversity of plant and animal species are provided by

management objectives and standards & guidelines in each Forest Plan (emphasis added), and thenflatly states (p. 338): This Amendment does not change the viability requirements. The viability

requirements at the planning area scale are described under the first paragraph of the 1982 36 CFR

219.19; these have already been met in each forest plan, as revised. Forests will continue to ensure that

the project-level viability requirements are met. Further, the 2007 MIS Amendment (pp. 348-349)



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concludes that there will be no adverse environmental consequences to species merely by changing the

MIS list for the Sierra Nevada forests because all substantive protective measures will remain in

place.

33. Wildfire is natural and common to the Lake Tahoe Basin. The Forest Service estimatesthat, historically, fires burned through the area every 5 to 32 years. EA at 1-3. The ecosystem evolved to

depend on regular fires to maintain ecological characteristics.

34. For example, black-backed woodpeckers ( Picoides arcticus ) are highly dependant on

post-fire forests for survival. The birds feed largely on larvae of wood-boring beetles and select large,

dead trees or snags for foraging and nesting. Suitable habitat for the species is recent moderate-

intensity and high-intensity burned areas within dense, mature, and old-growth conifer forest, also

known as snag forest habitat. The species does not generally use post-fire areas that have been logged.

Further, the species will typically only use a burned area for eight years after the fire occurs and then

moves to other habitat as the forest naturally returns to a green forest ecosystem. Each black-backed

woodpecker pair generally requires 100 to 400 acres of recent, unlogged snag forest habitat, the amount

varying based upon several factors including time since a fire and density of large snags.

35. Due to its dependence on this rare forest type, the black-backed woodpecker is

vulnerable to local and regional extinction from post-fire logging, according to U.S. Forest Service

scientists.

36. The black-backed woodpecker has declined in the Sierra Nevada due to fire exclusion and

post-fire logging policies, and now only a few hundred pairs remain in California.

37. Because of the black-backed woodpeckers selectivity and dependence on burned forest,

the Forest Service, in the 2007 MIS Amendment, selected the species as an MIS to represent the viability

of other post-fire forest dependant species in all national forests of the Sierra Nevada, including theLTBMU.

B. The Angora Project

38. In July of 2007, a fire burned approximately 3,100 acres of land south of Lake Tahoe.

Tragically, over 200 homes were burned at the periphery of the fire, many of which burned in slow-



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moving low-intensity fire that burned through pre-fire fuels treatment projects implemented just a few

years before by the Forest Service. This fire, named the Angora fire, burned in a typical mosaic pattern

with areas burning variously at high, moderate, and low intensity. Of the 3,100 acres that burned, just

under 1,000 acres burned in sufficiently dense and mature forest and at sufficient intensity(moderate/high to high) to create high quality suitable habitat for the black-backed woodpecker. EA at

3.6-67.

39. Immediately following the fire and to ensure public safety, the Forest Service removed

hazard trees and implemented other mitigation along roads and trails, using the agencys Categorical

Exclusion authority under NEPA. The hazard tree removal was scheduled for completion in the summer

of 2010. EA at 1-2.

40. In March of 2010, the Forest Service issued the Draft Angora Fire Restoration Project

Environmental Assessment (EA) considering a proposal to log the fire area, and in July of 2010, the

agency issued a Final EA, Decision Notice, and Finding of No Significant Impact (FONSI) for the

Project.

41. The Angora Project would log 1,398 acres of snag forest habitat, i.e., high quality suitable

black-backed woodpecker habitat, and would involve ground-based and aerial-based logging systems, as

well as hand treatments to remove the areas biomass. The Project would include the construction of 7.7

miles of new roads and 23 new landing areas or forest openings where all trees would be removed.

42. The Forest Service considered only two alternatives the no action alternative in which

the Project area would remain untreated and the action alternative chosen.

43. Following the Angora fire, there is currently less than 1,000 acres of moderate- and high-

intensity burned forest that constitute high quality suitable habitat for black-backed woodpeckers, and

the Angora Project, under the chosen alternative, would remove about 70% of that habitat. EA at 3.6-67.Only two other fires have occurred in the LTBMU in recent years, and both were much smaller than the

Angora fire. Because these two other fires occurred more than eight years ago, they will no longer

provide suitable habitat for black-backed woodpeckers as of 2011, which means that the remaining acres



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of suitable habitat in the Angora Fire area represents all of the remaining black-backed woodpecker high

quality suitable habitat on the entire LTBMU.

44. Even under the Forest Services estimate, the remaining acres of unlogged habitat would

support, at most, only 23 pairs of black-backed woodpeckers, based upon 713 acres of combined highquality suitable habitat and lower-quality habitat that would remain unlogged in the Angora project. EA,

pp. 3.6-65 through 3.6-66. This, however, is based upon the inaccurate assumption that one pair needs

only 30 acres of burned forest habitat, which stems from a misrepresentation of the Saab et al. (2002)

study, and a failure to apply the correct territory sizes found in recent studies, which are cited in the

Angora EA. Accurate estimates, based upon studies cited in the Angora EA (Hutto and Gallo 2006,

Dudley 2005, Dudley and Saab 2007, Saab et al. 2007) show that, if the planned logging occurred, the

remaining habitat would support far fewer than 23 pairs, and as few as 2-4 pairs, since one pair generally

requires at least 100 to 400 acres, or more, of unlogged burned forest. Yet the Forest Service failed to

determine whether the planned logging would threaten the viability of black-backed woodpecker

populations on the LTBMU by pushing them below the minimum viable population threshold on the

LTBMU. Nor did the Forest Service even identify what the minimum viable population on the LTBMU

is.

45. Further, during the Angora Draft EA comment period, Dr. Chad Hanson submitted

comments for Plaintiff Earth Island Institute criticizing the agencys black-backed woodpecker analysis.

First, Dr. Hanson stated that the EA (p. 3.6-66) misrepresented a 2006 study by Hutto and Gallo by

claiming that the study concluded that the extent to which [post-fire logging] reduces [black-backed

woodpecker] nesting habitat is not entirely predictable when, in fact, that study found numerous black-

backed woodpecker nests in unlogged burned forest and zero nests in logged areas. Second, Dr. Hanson

stated that the EA (p. 3.6-69) misrepresented several reports and studies by claiming that they concluded that black-backed woodpecker populations in the Sierra Nevada are currently stable when, in fact, not

one of the studies or reports cited makes any such conclusion.

46. The Forest Services Response to Comments (EA pp. 28-29) for the Angora Project failed

to provide any response to either of these central comments by Dr. Hanson. With regard to the latter of



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these two comments, the Response to Comments (p. 29) merely restated the EAs erroneous conclusion,

claiming that current dataindicate that the distribution of black-backed woodpecker populations in

the Sierra Nevada is stable, flatly refusing to respond to expert scientific opinion concluding that none

of the cited studies made any such finding.47. In addition to disturbing the local forest ecosystem, the Angora project will also

contribute substantial amounts of global-warming causing carbon into the atmosphere. The project will

remove 1,398 acres of live, dead, and downed trees and other forest materials. EA at 1-14. Much of this

forest material would be shipped to two biomass facilities located in Loyalton, California and Carson

City, Nevada, where the material would be burned to generate biomass energy. Both biomass plants,

located roughly 80 miles and 25 miles from the Angora project area respectively, were closed as of

August 2010, and it remains unclear where and how far the biomass would now be sent.

48. Logging, transporting, and burning trees and other forest biomass to generate energy emit

substantial amounts of greenhouse gases. In fact, burning woody biomass for energy results in higher

carbon emissions per unit of energy generated than burning fossil fuels, including coal, oil, or natural

gas.

49. As is required by NEPA, the Forest Service attempted to calculate the Projects

greenhouse gas emissions. The agency concluded that the Angora Project would release 59,272 metric

tons (mt) of carbon dioxide equivalent (CO 2e) by adding emissions from the decomposition of

biomass in the Angora Project area and from the eventual burning of Projects biomass at biomass

energy facilities, when carbon stored in the forest materials is released.

50. However, the agency failed to consider several substantial contributions to the Projects

total greenhouse gas emissions. Specifically, the agency failed to consider emissions from trucks and

equipment used to log, construct roads, and chip biomass on-site. The agency failed to consider emissions from transporting the trees to the biomass facilities many miles from the project area. The

agency failed to calculate the substantial amount of carbon released from soil respiration during logging

and the forests reduced capacity for carbon sequestration after logging. Further, in calculating the total

cubic feet of biomass that will be removed from the project area and burned at biomass facilities, the



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agency counted only the biomass (and thus eventual emissions) from the standing trees that remain, and

excluded all downed wood in the project area, even though downed wood may be removed for energy

generation.

51. The agency also failed to adequately explain how it calculated emissions and makesseveral unsupported assumptions. For example, without explanation, the agency assumes the biomass

energy produced from the Project would offset energy otherwise produced from fossil fuels, and thus

unfairly offsets emissions estimates despite increasing energy demand.

52. Both Plaintiffs timely appealed the Forest Services Angora Project decision, and on

October 7, 2010, the Forest Services Appeal Reviewing denied the appeal.

53. The Forest Services own science concludes that: a) there is not a present fire risk within

the Angora fire area due to the recency of the Angora fire and the low fuel levels; b) there will not be any

significant potential for fire within the Angora fire area for at least several years, even if no action is

taken; c) the only woody material with any significant relevance to wildland fire behavior and intensity

is small-diameter trees, logs, and branches less than about 10 inches in diameter; and d) the only

effective way to protect homes from wildland fire is to reduce the ignitability of the home itself (a

homeowner responsibility) and reduce brush and small-diameter fuels within at most 200 feet of

individual homes and administrative structures. All or nearly all of the Project Area is beyond the 200-

foot zone around homes, and the suitable black-backed woodpecker habitat at issue is not adjacent to

homes within the 200-foot zone but, rather, is hundreds of yards, or more than a mile, away.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEFViolation of NFMA and the APA

Failure to Ensure Species Viability

54. Plaintiffs incorporate by reference all preceding paragraphs.

55. The 1982 version of the NFMA regulations at 36 C.F.R. 219 were used to prepare the

1988 Lake Tahoe Basin Management Unit Forest Plan, and the wildlife viability requirement of 36

C.F.R. 219 was incorporated into the 1988 LTBMU Forest Plan. The Lake Tahoe Basin Management



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28COMPLAINT

Units site-specific decisions must be made in accordance with the 1982 NFMA regulations viability

requirements. 36 C.F.R. 219.19 (1982).

56. Defendants violated the NFMA regulations by failing to demonstrate that the Forest

Service is maintaining viable populations of the black-backed woodpecker, a Management Indicator Species (MIS), on the LTBMU national forest, and by failing to determine that the Angora logging

project would not threaten the viability of black-backed woodpecker populations on the LTBMU.

57. Nowhere in the Angora EA, Decision Notice, or FONSI did Defendants make a specific

finding that the Angora Project would not threaten the viability of black-backed woodpecker populations

on the LTBMU, or that the extremely small number of black-backed woodpeckers that would remain on

the LTBMU after implementation of the Angora logging project would be sufficient to maintain a viable

population on the LTBMU national forest.

58. Where Defendants have relied on a habitat-suitability or habitat-capability analysis in lieu

of actual data on black-backed woodpecker population numbers on the LTBMU, it has done so without

sufficient basis. Specifically, Defendants made their decision to proceed with the Angora logging

project, and remove 70% of the existing high quality suitable black-backed woodpecker habitat on the

entire LTBMU national forest, without information on how much habitat is required by the species to

support viable populations on the LTBMU, without identifying how many birds are necessary to

constitute a viable population on the LTBMU, and without identifying the methodology used to

determine how sufficient suitable habitat will remain to ensure and maintain viable populations in the

Lake Tahoe Basin Management Unit.

59. Defendants failure to ensure viability of the black-backed woodpecker as required by the

Forest Plan, NFMA, and NMFAs implementing regulations, 36 C.F.R. 212.12(d); 219.19; 219.26, is

arbitrary, capricious, an abuse of discretion, in excess of statutory authority and limitations, and not inaccordance with the law and procedures required by law. 5 U.S.C. 706(2).



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28COMPLAINT

SECOND CLAIM FOR RELIEFViolation of NEPA and the APA

Failure to Ensure Scientific Accuracy and Integrity and Failure to Directly Respond to DissentingScientific Opinion with Regard to the Black-backed Woodpecker


61. Pursuant to NEPA, the Forest Service must ensure scientific accuracy and integrity in

NEPA documents. 40 C.F.R. 1502.24. The Forest Service must also directly and explicitly respond to

dissenting scientific opinion. Id. 1502.9(b).

62. The Forest Service failed to ensure scientific accuracy and integrity by misrepresenting

the Hutto and Gallo (2006) study with regard to the impacts of post-fire logging on black-backed

woodpecker nesting, by using inaccurate estimates of territory size (thereby overestimating pairs of

black-backeds that would remain), and by wrongly claiming that several studies concluded that current

black-backed woodpecker populations in the Sierra Nevada are stable. The Forest Service also failed

to directly and explicitly respond to Dr. Hansons dissenting scientific opinion notifying the agency

about these misrepresentations.

63. Defendants decision to implement the Angora Project without ensuring scientific

accuracy and integrity, and without directly and explicitly responding to dissenting scientific opinion,

with regard to the black-backed woodpecker violates NEPA and its regulations and was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law under the APA. 5 U.S.C.

706(2).

THIRD CLAIM FOR RELIEFViolation of NEPA and the APA

Failure to Take a Hard Look, Ensure Scientific Integrity, and Disclose Methodology with Regardto Greenhouse Gas Emissions


65. Pursuant to NEPA, Defendants must take a hard look at the consequences,

environmental impacts, and adverse effects of proposed actions. 42 U.S.C. 4332(2)(C); 40 C.F.R.

1508.9. Further, the Forest Service must ensure scientific accuracy and integrity in NEPA documents

and must also clearly divulge its methodologies for key findings. Id. 1502.24.



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28COMPLAINT

66. The Forest Service failed to evaluate all impacts of the Angora Project by failing to fully

and accurately calculate greenhouse gas emissions from the Angora Project and by failing to disclose the

methodology it used for its greenhouse gas emission calculations.

67. Defendants decision to implement the Angora Project without taking a hard look atenvironmental impacts, without ensuring scientific accuracy and integrity, and without disclosing

methodologies with regard to greenhouse gas emissions violates NEPA and its regulations was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law under the APA. 5 U.S.C.

706(2).

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Court:

1. Declare that Defendants violated NEPA, NFMA, the APA, and implementing regulations

in preparing and approving the Angora Project EA, Decision Notice, and FONSI;

2. Enjoin Defendants from awarding or implementing the Angora Project, except for

removal of small-diameter material (trees, branches, and logs less than 12 inches in diameter) within 200

feet of existing homes or administrative structures, until Defendants have complied with NEPA,

NFMA, the APA, and implementing regulations;

3. Award Plaintiffs their costs and attorneys fees under the Equal Access to Justice Act; and

4. Grant Plaintiffs such other and further relief as the Court deems just and equitable.

Respectfully submitted,Dated: February 11, 2011

/s/ Rachel M. Fazio____ Rachel M. Fazio (CA Bar No. 187580)P.O. Box 697Cedar Ridge, CA 95924(530) [email protected]

Justin Augustine (CA Bar No. 235561)Center for Biological Diversity351 California St., Suite 600San Francisco, CA 94104

mailto:[email protected]:[email protected]


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Documents

Woodpecker Lawsuit