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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
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
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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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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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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
60. Plaintiffs incorporate by reference all preceding paragraphs.
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
64. Plaintiffs incorporate by reference all preceding paragraphs.
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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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
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