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Greenpeace, Inc. v. Cole

April 27, 2010

GREENPEACE, INC., AND CASCADIA WILDLANDS PROJECT, PLAINTIFFS,
v.
FORREST COLE, IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR THE TONGASS NATIONAL FOREST, DENNIS BSCHOR, IN HIS OFFICIAL CAPACITY AS ALASKA REGIONAL FORESTER, AND THE U.S. FOREST SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Ralph R. Beistline United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs Greenpeace, Inc., and Cascadia Wildlands Project ("Plaintiffs") challenge the United States Forest Service's approval of four timber sale projects in the Tongass National Forest, claiming violations of the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the 1997 Tongass National Forest Land and Resource Management Plan ("Forest Plan"). Plaintiffs seek declaratory and injunctive relief, at Docket 52, to prevent environmental injury, particularly to deer and wolf populations within the forest. Defendants oppose at Docket 55 and seek summary judgment in their favor on all of the issues raised.

II. FACTUAL BACKGROUND

The Tongass National Forest covers nearly 17 million acres across southeast Alaska, extending approximately 500 miles north to south and 120 miles east to west. Pursuant to the requirements of NFMA, the Forest Service adopted the Forest Plan in 1997. There are four projects challenged in this case which were approved pursuant to the 1997 Forest Plan: Scott Peak, Overlook, Traitors Cove, and Soda Nick. For each of the four projects, the Forest Service conducted an extensive environmental analysis, including either an environmental impact statement ("EIS") or an environmental assessment ("EA").

A. The Forest Plan

The 1997 Forest Plan was adopted based on a Final Environmental Impact Statement ("FEIS"). The 1997 FEIS discussed the planning process and analysis used to develop the Forest Plan, described and analyzed the alternatives considered in detail, and discussed public objections to the plan. The Forest Plan was modified in January 2008, but the 2008 amendment does not apply to the projects at issue in this case. The 1997 Forest Plan, 1997 FEIS, and associated documents are included as part of the Administrative Record for the four challenged projects.

The 1997 Forest Plan sets forth a number of "Forest-Wide Standards and Guidelines."*fn1 Forest-Wide Standard and Guideline WILD112.II.B reads as follows:

Provide the abundance and distribution of habitat necessary to maintain viable populations of existing native and desirable introduced species well-distributed in the planning area.*fn2

Guideline WILD112 XI.A.3 sets 13 deer per square mile as the necessary density to "maintain sustainable wolf populations" due to the fact that deer are a crucial prey for wolves.*fn3 The Forest Service later adopted 18 deer per square mile guideline as the minimum to support hunting and wolves.*fn4

B. The Deer Model

The Tongass National Forest uses a deer winter habitat capability model ("Deer Model") to produce a relative ranking of habitat suitability for Sitka black-tailed deer and, by extension, Alexander Archipelago wolves.*fn5 The model is based on variables affecting winter habitat, a primary limiting factor on deer populations.*fn6 The variables include vegetation type, typical winter snow level, elevation zone, and aspect (south, north, east, and west-facing slope).*fn7

This ranking is expressed as a habitat suitability index ("HSI") score. The HSI scores are used to estimate habitat carrying capacity; that is, how many deer the area can support. In order to estimate habitat capability, the HSI score is multiplied by a constant, referred to as the "deer multiplier," to produce an estimate of deer carrying capacity for a given area.*fn8

In 1995, the Forest Service convened a group of deer experts, including employees from the Forest Service, the Alaska Department of Fish and Game ("ADF&G"), and the U.S. Fish & Wildlife Service ("FWS"), to refine the deer model. The panel adopted a deer multiplier of seventy-five deer per square mile, based on deer density information and nutritionally-based estimates.*fn9

In 1996, a second panel of wildlife biologists recommended modifying the model to better reflect available data on deer harvest levels and deer pellet group studies.*fn10 The range of HSI scores was adjusted to 0 to 1.3, and the deer multiplier was increased to 125 deer per square mile.*fn11 This model was used in the 1997 Forest Plan FEIS.

In September 1997, four biologists brought to the Forest Service's attention a recent paper by Dave Person (the "Person study") comparing pellet group surveys with the Forest Service's deer model.*fn12 The Person study suggested that 100 deer per square mile would be a more accurate deer multiplier.*fn13 In August 2002, the Tongass National Forest Supervisor formally adopted the 100 deer per square mile deer multiplier.*fn14 The Forest Service has since used a deer multiplier of 100 deer per square mile forest-wide and also in its analysis of the four projects challenged here.*fn15

C. The VolStrata Vegetation Classification System

"VolStrata" refers to the vegetation classification system that the Forest Service used in its Deer Model for the four projects at issue.*fn16 Vegetation is a crucial element of suitable deer habitat. Vegetation, along with elevation zone, aspect, and typical snow level, formed the basis for the HSI scores included in the 1997 Deer Model.*fn17

Before the VolStrata System was adopted, forested lands in the Tongass National Forest were classified by volume class, which was referred to as "Tim-Type" or "TIMTYP."*fn18 The Forest Service's use of TIMTYP was successfully challenged in court by an environmental group, which claimed that it was an insufficiently reliable way of categorizing timber volume.*fn19 In the 1997 Forest Plan the Forest Service replaced the TIMTYP volume class system with a volume strata classification system (i.e., VolStrata), which used the same data as the TIMTYP system but classified that data differently.*fn20

In 2005, two Forest Service employees published a paper proposing a new vegetation model which became known as the "Size- Density" model. The new Size-Density model had not been sufficiently validated at the time the projects at issue were undergoing review.*fn21 Because the new Size-Density model was not ready for use, ...


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