Full opinion text
MEMORANDUM ORDER AND OPINION GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND ENJOINING BARK BEETLE PROJECT IN COLVILLE NATIONAL FOREST QUACKENBUSH, Senior District Judge. Before the court is Plaintiffs’ Motion for Summary Judgment (Ct.Rec.59), Defendant-Intervenor Vaagen Brothers Lumber’s Motion for Summary Judgment (Ct. Rec.50), the Motion for Summary Judgment filed by all other Defendants (“the Federal Defendants”) (Ct.Rec.46), and various related motions. The court held a hearing on these motions on June 25, 2001. Plaintiffs were represented by Mark Wilson. The Federal Defendants were represented by William Beatty and Val Black. The Defendant-Intervenor was represented by Robert Maynard and Rocco Trep-piedi. TABLE OF CONTENTS I. Background. 1112 II. Summary Judgment Standard of Review.1113 III. Procedural Challenges.1114 A. Standing .1114 B. Exhaustion.1114 C. Abandonment of Claims.1114 D. Scope of the Record .1114 IV. The Merits of the Summary Judgment Motions .1116 A. Standard of Review for Administrative Decisions.1116 B. Scope of the Statement of Purpose (Second Claim).1117 C. The Breadth and Nature of the Alternatives Considered (Second Claim, Third Claim) .1118 D. Analysis of Project’s Effects.1121 1. Effects of the Project on Specific Environmental Elements.1121 a. Fuels and Fire.1121 b. Vegetation.1122 c. Watershed.1123 d. Fisheries.1123 e. Wildlife. 1124 f. Soils.1125 2. Cumulative Impacts Analysis (Seventh, Eighth, and (Ninth Claims).... 1127 E. The Role of Financing and the Lack of Disclosure (Fifth Claim).1132 V. The Need For and the Scope of the Injunction .1135 VI. Conclusion. I. Background This case is on remand from the Ninth Circuit Court of Appeals for a consideration of the merits of the pending cross-motions for summary judgment. As explained in this court’s earlier orders, this case concerns what is known as the Douglas-fir Bark Beetle Project (the “Project”), a timber harvest and restoration project adopted by the Colville National Forest (the “CNF”) and the Idaho Panhandle National Forest. The Project is the response of the United States Forest Service (the “USFS”) to an outbreak of the Douglas-fir bark beetle in Eastern Washington and Northern Idaho forests. The Douglas-fir bark beetle is an insect that targets and kills Douglas firs by boring into the bark of a tree. The beetle lays eggs which hatch into larvae that tunnel around the tree, eventually girding and killing it. The beetle is native to this region but the beetle population is cyclical and prone to periodic “outbreaks” in which the population soars and large numbers of trees are killed. Eastern Washington and Northern Idaho forests have suffered from such an outbreak. The ice and snow storms that swept over the region during the 1996-1997 winter severely damaged many trees, rendering them susceptible to beetle attack. By the summer of 1998, the USFS had identified a booming beetle population and a large number of dead or dying Douglas fir. In the winter months of 1998, it began preparing a Draft Environmental Impact Statement (the “Draft EIS”) to address the problem. The Draft EIS was released for public comment in January 1999. The Draft EIS set forth five different possible courses of action: the mandatory “no-action” alternative under which nothing would be done to respond to the outbreak, and five alterna- .1141 tives which offered various blends of timber harvest and restoration projects. After considering and responding to the comments of more than 200 individuals and organizations, the Federal Defendants issued the Final Environmental Impact Statement (the “FEIS”) in June 1999. FEIS, II-l, II-2. The FEIS contains seven alternatives, the five in the Draft EIS and two others that were added in response to public comments: a harvest/restoration alternative that would focus on protecting private lands from beetles and wildfire, and a “restoration-only” alternative that would involve the same restoration projects as other “action” alternatives but would eliminate the proposed logging element of the Project. The FEIS analyzes the Project as it relates to both the CNF and the Idaho Panhandle National Forest. For the Newport Ranger District of the CNF and two districts of the Idaho forest, the FEIS analyzes the potential effects of the various alternatives on vegetation, sensitive plant species, watershed, fisheries, soil, fire, air quality, wildlife, recreation, scenery, and finances. Each district is analyzed separately. This case concerns only the Newport Ranger District of the CNF. On June 11, 1999, Robert Vaught, the then-Forest Supervisor of the CNF issued a Rule of Decision (“the ROD”) in which he adopted Alternative D of the FEIS for implementation in the CNF. Alternative D identifies 47 problem areas which the USFS had determined to be infested or likely to be infested by the bark beetle. Alternative D addressed those problem areas through a number of methods, including “selective” and “regenerative” harvest of over 4,600 acres, prescribed burning of another 3,269 acres, and treatment of fire fuel on 1,493 acres by “lopping and scattering” dead or dying trees. Much of the proposed harvest and treatment, however, was contingent upon whether 'the beetle actually spread to all of the areas that Federal Defendants predicted it would spread to. FEIS, 11-16 to -19. Alternative D also includes a number of restorative projects. On the harvested acres, the USFS would plant tree species that are resistant to the bark beetle and were historically predominant in the CNF, such as the white pine, western larch, and ponderosa pine. The USFS would also remove 8.8 miles of road in the CNF, reconstruct another 14 miles, and improve three stream crossings in order to lessen the impact on CNF watersheds. No new roads would be built as a result of the Project. FEIS, 11-19. Plaintiff Kettle Range Conservation Group, along with other organizations, appealed the decision to implement Alternative D to the Regional Forester. The appeal was denied on September 29, 1999. (Ct.Rec. 48, Tab A.) In the months that have passed since the publication of the FEIS and ROD, Federal Defendants have determined that the bark beetle has not spread as quickly or as far as the FEIS anticipated. Accordingly, the Project has been scaled back considerably in the CNF. Federal Defendants have also made various adjustments to harvest methods, Project maps, and other items since the publication of that FEIS and the ROD. They have not, however, made the Project changes public through another draft EIS. Plaintiffs filed suit in this court on February 1, 2000, alleging numerous violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370, and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600-1612. Plaintiffs ask this court to either enjoin the Project’s implementation in the CNF or to order the Federal Defendants to prepare a supplemental EIS that addresses the numerous changes made to the Project since its adoption in June 1999. (Second Amended Complaint, Ct.Rec. 43.) Plaintiffs, Federal Defendants, and De-fendanb-Intervenor have each filed a cross-motion for summary judgment. At the first hearing on these motions, on June 7, 2000, this court expressed concern that Plaintiffs had not established standing. The court ordered supplemental briefing on the issue and did not reach the merits of the cross-motions. As part of their supplemental materials, Plaintiffs submitted additional declarations to establish standing. This court ruled that Plaintiffs were not entitled to submit the late declarations, that the prior declaration did not establish standing, and that therefore this court did not have jurisdiction over the case. Plaintiffs appealed the rejection of the additional declarations. The Ninth Circuit reversed this court on the issue of the admissibility of the additional declarations and remanded for further hearing on the cross-motions. The court has held that hearing and now issues its opinion on the merits of those motions. II. Summary Judgment Standard of Review The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the material facts before the court. See Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). The moving party is entitled to summary judgment when, viewing the evidence and the inferences arising therefrom in favor of the nonmoving party, there are no genuine issues of material fact in dispute. See Fed.R.Civ.P. 56(c). The moving party does not have to disprove matters on which the opponent will bear the burden of proof at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.E.2d 202 (1986). III. Procedural Challenges In the briefing, Federal Defendants and Defendanb-Intervenor (collectively, “the Defendants”) have raised numerous procedural challenges to Plaintiffs’ claims. The court must address those challenges before it may consider the substance of Plaintiffs’ claims. A. Standing There is no dispute amongst the parties that the belated declarations submitted by the Plaintiffs establish standing under Article III of the U.S. Constitution. This court agrees that the declarations establish standing and that it has jurisdiction to consider the merits of this case. B. Exhaustion Federal Defendants claim in their response brief that Plaintiffs have not administratively exhausted all of their claims and therefore should be barred from arguing to this court the unexhausted claims. Specifically, Federal Defendants claim that Plaintiffs did not challenge on appeal the Federal Defendants’ consideration of sensitive plants, gray wolves, bald eagles, lynx, wolverines, or grizzly bears. (Ct. Rec.80, p. 4.) Federal Defendants are correct that Plaintiffs can present only those claims that they have completely exhausted through the USFS administrative processes. See generally Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). They are incorrect, however, in their conclusion that Plaintiffs did not appeal the review of the mammal species listed above. Plaintiffs have submitted a section of the administrative appeal which addresses the analysis of the wolf, lynx, wolverine, and grizzly bear. Plaintiffs have not, however, exhausted their claim that the Federal Defendants failed to adequately consider the effects of the Project on sensitive plants and sensitive plant habitat. They argue that they did exhaust that claim, but the pages of their appeal that they cite do not discuss sensitive plants. Nor has this court found any discussion of sensitive plants in its review of the appeal. The court therefore may not consider the claim that the effects on sensitive plants were not adequately considered. See Kleissler v. United States Forest Service, 183 F.3d 196, 202 (3rd Cir.1999). It should be noted, however, that this is not a great loss to Plaintiffs’ case, as the FEIS quite clearly states that no plants classified as sensitive plants are known to exist anywhere in the areas subject to the CNF portion of the Project. FEIS, III—683 to -685. C. Abandonment of Claims In their brief in support of summary judgment, Plaintiffs stated that they “do not press, in this motion, the First, Fourth and Sixth Claims for Relief set forth in their Second Amended Complaint.” (Ct. Rec.60, p. 3.) Plaintiffs then stated in their response to Defendant-Intervenor’s motion for summary judgment that they “will ask the court by separate motion to dismiss” those claims. (Ct.Rec. 84 at 2.) Plaintiffs moved at the summary judgment hearing to dismiss those claims and the court granted the motion at that time. D. Scope of the Record Both Plaintiffs and Federal Defendants have submitted affidavits which attempt to expand upon the voluminous administrative record. Each of these affidavits is the subject of a motion to strike. Plaintiffs have offered two declarations. One is that of Timothy Ingalsbee, the co-director of the Cascadia Fire Ecology Education Project. Plaintiffs have since withdrawn the declaration. (Ct.Rec.105, p. 4.) Plaintiffs also offer the declaration of Elizabeth Allen. Allen has attached to her declaration a group of logging applications. The applications, which were submitted to State of Washington by private landowners in the winter and spring of 1999, involve lands in or near the Project’s analysis area. (Ct.Rec.63.) Federal Defendants have moved to strike the declaration and Defendant-Intervenor has joined in the motion. (Ct.Ree.71.) Defendant-Intervenor, meanwhile, offers the declaration of Brett Winterowd, a professional forester who provides consulting services to Defendant-Intervenor and other timber companies. Winterowd seeks to inform the court as to the condition of Defendant-Intervenor’s privately owned forest and its vulnerability to forest fire. Plaintiffs have moved to strike this declaration. (Ct.Rec.103.) All the parties to this litigation, and this court, agree that this case raises the procedural question of whether the Federal Defendants adequately considered all of the environmental effects of the Project before adopting it. As such, the record of the decisionmaking process is paramount. This court’s task is to determine whether that record is sufficient under the applicable law. Winterowd’s declaration, therefore, is not relevant to the determination of whether the FEIS is in compliance with NEPA. However, it is relevant for the purposes of whether an injunction would be proper to remedy any NEPA violations. See, e.g., Alaska Wilderness Recreation & Tourism v. Morrison, 67 F.3d 723, 732 (9th Cir.1995). It will therefore be admitted for that limited purpose. Allen’s declaration presents a different issue. Allen presents numerous private logging applications that were filed and approved in the Project area during the period that the Project was under consideration. Most of these private projects were not analyzed in the FEIS despite a requirement that agencies consider such projects in their environmental analysis. See 40 C.F.R. § 1508.7; discussion, infra. The information is therefore highly relevant to a determination of whether the USFS considered all of the information that was available. Defendants argue that no matter how relevant the information is, it is still not admissible. According to Defendants, this court can only consider documents outside the record when 1) the agency’s explanation is so inadequate that it frustrates review; 2) the agency has relied on materials not included in the record; 3) it is necessary to explain complex terms or subject matter; or 4) there is a strong showing of bad faith or improper behavior. See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-39 (9th Cir.1988), as amended by 867 F.2d 1244 (9th Cir.1989). However, Defendants have overlooked the Ninth Circuit’s further statement in Animal Defense Council that “[t]he court’s inquiry outside the record is limited to determining whether the agency has considered all of the relevant factors....” Id. at 1436. Allen’s declaration and the attachments to it bear directly on whether the agency considered all of the relevant factors and therefore the court will consider its contents. Without this information, the court would never be able to determine whether the Federal Defendants adequately considered all of the relevant private projects in the area. Plaintiffs’ Motion to Strike (Ct.Rec.103) is DENIED. Federal Defendants’ Motion to Strike (Ct.Rec.71) is DENIED. IV. The Merits of the Summary Judgment Motions A. Standard of Review for Administrative Decisions The parties are in substantial disagreement about what standard of review this court should apply when reviewing Plaintiffs’ claims. Defendants argue that this court should apply a highly deferential standard, and look only for agency action that was “arbitrary or capricious.” Plaintiffs, on the other hand, argue that this court should determine whether the Federal Defendants acted reasonably. Both of them are partially correct. Defendants are correct that, in general, this court must grant substantial deference to the decisions and actions of the Federal Defendants in adopting and implementing the Project. NEPA “does not mandate particular results, but simply describes the necessary process” that an agency must follow in issuing an EIS. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Accordingly, when an agency reaches a decision based on its expert review of the facts, a reviewing court should determine only whether the decision was “arbitrary or capricious.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). In other words, “the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.’ ” Id., quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The “reasonableness” standard Plaintiffs urge this court to apply is merely an exception to the generally applicable rule stated in Marsh, supra. As noted in Alaska Wilderness Recreation and Tourism Assoc. v. Morrison, 67 F.3d 723, 727 (9th Cir.1995), the “reasonable” standard of review applies only to those “rare” cases in which the agency’s decision raises legal, not factual, questions. Thus, for example, when an agency’s decision is based largely on its interpretation of a Congressional statute, a court should apply the “reasonableness” standard. See id. By contrast, when the agency has used its expertise to resolve factual disputes and choose among several different alternative avenues of action, the “arbitrary or capricious” standard applies. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1331 (9th Cir.1992); Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 809 (9th Cir.1999). That said, each of these standards of review apply to certain aspects of this case. Most of Plaintiffs’ claims concern whether the analysis in the FEIS and the election of Alternative D violated NEPA and the NFMA. The analysis and the election of Alternative D are intensely factual and highly dependent upon the application of agency expertise. The court will therefore apply the “arbitrary or capricious” standard to the claims bearing on the sufficiency of the analysis and the wisdom of choosing Alternative D. Under that standard, if the court is “satisfied that [the USFS] has taken a ‘hard look’ at [the Project’s] environmental consequences, [this court’s] review is at an end.” City of Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142, 1151 (9th Cir.1995), quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992). The court will apply the “reasonableness” standard to two of Plaintiffs’ claims. One of Plaintiffs’ claims touches on whether the statement of purpose and need set forth in the FEIS is overly narrow. The Ninth Circuit has indicated that the proper standard of review for such a claim is “reasonableness.” Friends of Southeast’s Future v. Morrison, 158 F.3d 1059, 1066—67 (9th Cir.1998). Plaintiffs have also requested that this court determine whether the Federal Defendants violated NEPA by not issuing a supplemental or replacement EIS when it became clear the beetle outbreak was not a serious as anticipated. The Ninth Circuit has indicated that because that a review of a decision not to issue a supplemental EIS involves primarily legal questions, courts should apply the reasonableness standard. See Friends of Southeast’s Future, supra, 153 F.3d at 1062; Alaska Wilderness, supra, 67 F.3d at 727. B. Scope of the Statement of Ptirpose (Second Claim) Plaintiffs claim that the Federal Defendants violated NEPA by setting forth a statement of purpose and need that effectively eliminated any alternative that did not include timber harvest as part of the Project. The challenged statement, found in the FEIS under the heading “Purpose and Need for Action,” is as follows: The purpose of this project is to respond to the Douglas-fir beetle outbreak by restoring vegetation and aquatic ecosystems utilizing timber harvest and the recovered value to accomplish the restoration objectives. FEIS, 1-9. The statement proceeds to discuss the need to replace stands of Douglas fir with historically dominant species, improve fisheries, reduce fire fuels, and recover the value of the dead and dying Douglas firs. However, it is the initial statement of purpose that Plaintiffs challenge. Plaintiffs’ argument is that by including timber harvest as part of the purpose or need of the Project, the statement of purpose automatically renders any non-harvest alternative dead on arrival because it is inherently at odds with the Project’s stated purpose. Thus, Plaintiffs argue, the Federal Defendants have violated the requirement that an EIS “rigorously explore and objectively evaluate all reasonable alternatives ...” 40 C.F.R. § 1502.14(a). Plaintiffs’ claim has some support in Ninth Circuit case law. In the City of Carmel-by-the-Sea v. United States Department of Transportation, 123 F.3d 1142, (9th Cir.1995), the court held that “the stated goal of a project necessarily dictates the range of ‘reasonable’ alternatives and an agency cannot define its objectives in unreasonably narrow terms.” Id. at 1155, citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). The question, then, is whether the stated purpose in this case was too narrow. As discussed earlier, the court will apply the less deferential “reasonableness” standard when reviewing this claim. See id.; Friends of Southeast’s Future, supra, 153 F.3d at 1066-67. This court is not aware of any case in which the Ninth Circuit found a statement of purpose to be unreasonably narrow. In fact, the court has found reasonable much more restrictive statements of purpose than the one at issue in this case. In Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800 (9th Cir.1999), for example, the USFS had negotiated a land swap with Weyerhauser Company in which the company agreed to transfer several thousand acres of privately-owned land adjacent to federal property in exchange for a smaller parcel of federal property. See id. at 803. After the deal was struck, the USFS prepared an EIS with the following statement of purpose: to “consolidate ownership and enhance future resource conservation and management by exchanging parcels of National Forest System and Weyerhauser land.” Id. at 812. Even though this statement of purpose essentially ruled out any alternatives that did not closely resemble the deal between the USFS and Weyerhauser, the court found that it was reasonable in light of the regional forestry plan, which had a goal of creating consolidated land ownership patterns. See id. at 812-13. Similarly, in Friends of Southeast’s Future, supra, the Ninth Circuit also found the USFS had acted reasonably when it issued an EIS with the stated purpose of “providing 89 MMBF of timber to meet market demand,” even though the statement of purpose also explicitly foreclosed any and all consideration of an alternative which would provide a lesser amount of timber to the market. 153 F.3d at 1066— 67. By contrast, the statement of purpose in this case, while it presupposes an element of logging, does not restrict the Project to logging at a minimum number of board feet or engaging in a particular transaction. Rather, the statement of purpose leaves considerable room for the development of alternatives with varying degrees of timber harvest. In fact, a review of the harvest alternatives reveals that' the amount of logging under the alternatives ranged from 1521 acres under Alternatives B, C, and E, to 3384 acres under Alternative F, to 4762 acres under Alternative D. FEIS, II — 9 to 11-26. Given the nature of the statements held reasonable under Muckleshoot and Friends, this court holds that the statement of purpose and need in this case was also reasonable. C. The Breadth and Nature of the Alternatives Considered (Second Claim, Third Claim) Plaintiffs claim that the Federal Defendants violated NEPA by failing to consider a wider array of alternatives. This claim focuses on the fact that the Draft EIS contained only the “no action” alternative, which is required under 40 C.F.R. § 1502.14(d), and four “action” alternatives that included varying levels of timber harvest. As noted earlier, the court reviews this claim to determine if the range of alternatives was the result of an arbitrary or capricious decision by the Federal Defendants. See Carmel-by-the-Sea, supra, 123 F.3d at 1150. In other words, the court will determine if the agency has taken a “hard look” at what the range of possible alternatives should be. See Muckleshoot, supra, 177 F.3d at 814. The claim is based on the requirement that an EIS “rigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). This regulation does not require an agency to “consider an infinite range of alternatives, only reasonable or feasible ones.” Carmel-by-the-Sea, supra, 123 F.3d at 1155. According to Plaintiffs, the fact that the Federal Defendants did not include a non-harvest “action” alternative in the Draft EIS shows that they did not consider all options that may have been reasonable or feasible. Plaintiffs rely heavily upon Muckleshoot, supra, to bolster their claim. In that case, it may be recalled, the USFS had struck a land-swap deal with Weyer-hauser prior to issuing an EIS on the matter. The EIS analyzed three alternatives: the mandatory “no action” alternative, and two alternatives the Ninth Circuit called “virtually identical.” 177 F.3d at 813. Prior to issuing the draft EIS in that case, the USFS preliminarily eliminated three other alternatives, including one which would have put deed restrictions on the land transferred to Weyerhauser. Id. The USFS in that case apparently never reconsidered the preliminarily rejected alternatives in the final EIS despite federal regulations which favored the imposition of deed restrictions. Id. at 813-14. The Ninth Circuit found that the USFS had not taken a “hard look” at the possible range of alternatives and enjoined -the swap accordingly. See id. at 814. Plaintiffs argue that the Federal Defendants violated the Muckleshoot principles in this case. In Plaintiffs’ eyes, the alternatives set forth in the Draft EIS in this case were also “virtually identical” to one another because they were all a mix of timber harvest, underburning, and restoration. Defendants offer two responses. First, Defendants argue that the Draft EIS did contain a “restoration only” option. This contention reads far too much in the Draft EIS. The Draft EIS, in fact, briefly mentioned that the USFS had considered but preliminarily rejected an “aquatic restoration” alternative that did not include timber harvest “because it would not address any of the effects of the Douglas-fir beetle infestation will have on timber stands, fire risk, wildlife habitat, scenery, or other forest components.” Draft EIS, 11-31. The Draft EIS simply did not invite comment on a “restoration only” alternative option — it expressly stated that such an option had been “eliminated” from consideration. It should be noted, however, that this treatment of alternatives is permitted under the NEPA regulations, which provide that “for alternatives which were eliminated from detailed study, [the agency shall] briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a). Defendants more successfully distinguish Muckleshoot on the grounds that the alternatives considered were not “virtually identical.” Although all of the “action” alternatives included an element of harvest, the level of harvest and the areás proposed to be harvested under the alternative varied. Alternative B, for example, was “designed to treat only the units which include known 1998 beetle infestations” and specifically avoided trying to predict where the beetle would move to next. FEIS, II-9. Alternative C targeted the same areas as Alternative B, but would have accomplished the goal without constructing new roads and via different logging methods on certain units to reduce the amount of environmental damage. FEIS, 11-13. Alternative E was also a variation on Alternative B but would have resulted in logging only dead or dying trees (versus some green trees) and prohibiting all logging in old growth. FEIS, 11-20. Alternative D, on the other hand, sought to treat both the areas that were infested in 1998 and the areas that were likely to become infested in 1999 and 2000. FEIS, II — 16. Alternative D also proposed more prescribed burning than the other three “action” alternatives but added more miles of road obliteration and improvement, as well. FEIS, 11-15. These alternatives were not virtually identical. Nor do they demonstrate the Federal Defendants were attempting to guide the EIS toward a desired goal, as appeared to be the case in Muckleshoot. Moreover, unlike in Muckleshoot, the agency did resurrect, in the FEIS, alternatives that it had previously rejected without comment. The FEIS contains extensive analysis of two alternatives that were excluded from the Draft EIS but were added to the FEIS in response to public comments. One, Alternative F, would have concentrated the logging and fuel treatment on those areas closest to homes and private property adjacent to the CNF. FEIS, 11-23. The other, Alternative G, would have eliminated commercially logging entirely and performed all fire fuel treatment by under-burning and manual thinning, pruning, and lopping of some trees. FEIS, 11-37. Both of these alternatives, while ultimately rejected, received a full analysis equal to the other alternatives. The court cannot say that the Federal Defendants did not give the range of alternatives a “hard look,” especially considering that they developed two new alternatives to respond to public comment. Plaintiffs argue that this was nonetheless a violation of the Forest Service Manual, which provides that “when timber harvest is proposed primarily for the purpose of ... forest stewardship ... practical and feasible non-harvest options ... must be analyzed in the environmental analysis process.” (Ct.Ree.60, App.G-9, p. 6.) This mandate, Plaintiffs urge, was violated when a non-harvest option was not put forth for comment in the Draft EIS. That argument goes nowhere. First, this section from the Manual states only that a non-harvest option shall be considered at some time in the EIS process, not necessarily in a draft document. Alternative G was a non-harvest option and it was considered in detail in the FEIS. Second, the Ninth Circuit has held that the Forest Service Manual does not have the binding power of law on the USFS because the Manual is a statement of policy, not a regulation. See Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 897 (9th Cir.1996). Plaintiffs also contend that the Federal Defendants violated NEPA when they failed to reissue the Draft EIS with Alternatives F and G open to public comment. Plaintiffs attempt to support this argument with citations to NEPA’s implementing regulations, but those regulations give them very little to stand on. 40 C.F.R. § 1502.9(a) provides that a draft EIS must strive “to fulfill and satisfy the fullest extent possible the requirements” for a final EIS. The regulation continues, “if a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion.” Plaintiffs apparently do not contend — nor could they — that the Draft EIS in this case precluded all meaningful analysis of the issues. Rather, they contend that because a draft EIS should resemble a final EIS, the creation of a new alternative dictates the need for a new EIS. Plaintiffs reach this conclusion by combining 40 C.F.R. § 1502.9(a) with 40 C.F.R. § 1503.4(a)(2), which provides that, when an agency is responding to public comments, it may “develop and evaluate alternatives not previously given serious consideration by the agency.” According to Plaintiffs, this means that a final EIS can elaborate on an alternative that was given short shrift in the draft EIS, but cannot develop an alternative that was briefly mentioned in the draft but was preliminarily eliminated as a possible alternative. Alternatives falling into this second category, Plaintiffs argue, must be described in a new draft EIS under 40 C.F.R. § 1502.9(a). Plaintiffs also point out that the Draft EIS in this case refers only to the brief consideration and rejection of an “aquatic restoration” alternative while the eventual Alternative G involved much more than simply aquatic restoration — and therefore was allegedly a completely new alternative. Plaintiffs’ reading of the regulations, while arguably plausible, contradicts the plain language of the statutes. 40 C.F.R. § 1502.9(a) provides only that a draft EIS must be redrafted and reissued when it is so inadequate that it precludes meaningful analysis. It does not indicate that an agency must rework its draft if it later realizes an alternative it preliminarily rejected should be more fully developed. It simply does not require a new EIS in that case unless the EIS cannot support meaningful analysis without a full exposition of the preliminarily rejected alternative. By no means did the Draft EIS in this case fail that test. In addition, a plain reading of 40 C.F.R. § 1503.4(a)(2) shows that it means almost exactly the opposite of what Plaintiffs contend it means. The regulation makes it clear that an agency may revive in the final EIS an alternative that it had “not previously given serious consideration” in the draft. This means that something which was dismissed out of hand, in a short paragraph, can be reevaluated based on public comment. The restoration-only alternative that the USFS briefly mentioned in the Draft EIS in this case was properly revived and evaluated in the FEIS. The fact that Alternative G was apparently broader than the alternative mentioned in the Draft EIS does not mean that they were in fact different options — at the core they share the same key feature, restoration without timber harvest. Contrary to Plaintiffs’ contentions, this reading of the regulations does not stifle the give-and-take between agencies and the public that the EIS process is designed to provide. If anything, it encourages agencies to take public comments seriously and, if necessary, reconsider options it previously thought unviable. If an agency had to refile an EIS every time it felt compelled by public comment to reconsider a previously dismissed alternative, the agency “as a practical matter [might] become hostile to modifying the alternatives to be responsive to earlier public comment.” State of California v. Block, 690 F.2d 753, 771 (9th Cir.1981). The Federal Defendants took a “hard look” at a wide range of alternatives, and they did not violate the NEPA regulations by developing and evaluating Alternative G without redrafting the Draft EIS. They therefore did not act arbitrarily or capriciously with regard to the breadth and nature of the alternatives that they considered in the Draft EIS and the FEIS. D. Analysis of Project’s Effect Plaintiffs’ seventh, eighth, and ninth claims allége that the Federal Defendants performed a defective analysis of the effects the Project would have on various elements of the environment. These claims are most easily understood and analyzed when broken down into two groups of claims: the contention that the FEIS did not adequately analyze the effects that the Project itself would have and the allegation that the FEIS did not adequately consider the cumulative effects of past, current, and reasonably foreseeable public and private projects. 1. Effects of the Project on Specific Environmental Elements Plaintiffs challenge the basic adequacy of the FEIS analysis of how the various alternatives would affect fuels and fire, vegetation, fisheries, wildlife, watershed, and soils. These claims strike at the heart of agency expertise, and thus the USFS’s analysis enjoys the greatest amount of deference from this court. This court is limited to determining if the analysis was arbitrary or capricious; if the agency gave the analysis a “hard look,” the court must defer. See Carmel-by-the-Sea, supra, 123 F.3d at 1150-1151. In performing this analysis, the court will look separately at the analysis for each element. a. Fuels and Fire One of the stated reasons for the adoption of the Project was to address the increased fire fuel and fire risk that was presented by the beetle outbreak. Draft EIS, II — 10. As a result, the subject of fire and fuel received extensive treatment in the FEIS, consuming 15 pages of analysis for the Newport Ranger District alone. FEIS, III-765 to III-780. Those 15 pages begin with an extensive history of wildfire in the area, including the build-up of fire fuel over the last several decades, and proceeds into a discussion of flame length and fire intensity. The analysis also describes the methodology used to predict fire risk and intensity, and then proceeds to describe how each alternative would affect those variables. Included in the analysis is a separate chart of projected flame length over the next 130 years for each of Alternative A (“no action”), Alternative G (“restoration only”), and a group consisting of Alternatives B through F (“action” alternatives containing elements of timber harvest). Plaintiffs’ challenges to this analysis are twofold. First, they argue that the FEIS failed to take into consideration the effect of microclimates on fire risk — that is, the effect that temperatures, wind, humidity, and so forth can have on the risk that a particular fire will start in a particular area. The FEIS does not address these factors site-by-site, but it does go into great detail on how fires will be affected by the types of trees in the area, the diameter of the fuel, the paths that fires have historically taken in the region, and the number of trees dead and dying in a particular area. The court cannot say that in these circumstances that the USFS did not take a “hard look” at effects that the Project would have on fuels and risk of fire. Plaintiffs’ second complaint about the fire analysis is actually not a complaint about the analysis at all, but a complaint about the role of fire in the selection of Alternative D. Plaintiffs point to the fact that the FEIS states in numerous places that alternatives which include timber harvest would actually increase the short-term risk of fire and result in longer flame lengths in the short term, and would not result in a lower risk in the longer term than the non-harvest alternatives. The fuel and fire analysis states, for example, salvage logging would increase potential flame lengths over the short term; this is because when these trees are harvested, all fuel would be on the ground instead of accumulating more slowly as under the no action alternative. FEIS, III — 777. Many other such statements are scattered throughout the FEIS and ROD. See, e.g., ROD Summary of FEIS at p. 34 (“areas treated with salvage harvest would continue to trend toward conditions that favor higher intensity wild-land fires”); FEIS, App. A, A-75 (“even with lop and scatter methods, because of the relative rapid decay of fine fuels, the intensities of potential fires may not be very different from the No Action Alternative after several years”). Yet these statements do not demonstrate that the fire analysis itself was lacking. If anything, they tend to show that the FEIS gave a candid and honest appraisal of the fact that logging would actually increase the risk of wildfire. The statements do not indicate that the USFS gave fire and fuels anything other than a “hard look.” b. Vegetation The vegetation analysis focuses on the types of trees in the Newport Ranger District, and the likely effect that the various alternatives would have on the future composition of the stands in the forest. This section again begins with an analysis of how the Project analysis area, which was historically a diverse stand dominated by western larch and western white pine, became a landscape in which the Douglas fir is the most common tree. In order to put greater perspective on the differences between the current forest and the historical composition, the FEIS divides the Newport Ranger District into several different “biological settings” that represent different types of forest in the District (such as “Douglas-fir/grand fir with huckleberry”). The FEIS also discusses how Douglas fir are comparatively short-lived and susceptible to the bark beetle and root diseases. FEIS, III — 664 to HI-674. The analysis then launches into a discussion of how each of the alternatives would affect the makeup of the forest, with particular emphasis on how the “action” alternatives would remove Douglas fir and replace them with longer-lived, later-stage species such as larch, ponderosa pine, and white pine. The FEIS also includes a table of how each alternative would affect the makeup of the forests. FEIS, III — 676 to III-681. While Plaintiffs have stated a claim that this analysis is incorrect, they did not elaborate on it in the briefing. Indeed, the analysis is at least a “hard look” at the types of trees in the District, the benefits of moving toward a more diverse stand of timber in the area, and the extent to which each alternative will advance stand diversity- c. Watershed Plaintiffs also complain that the FEIS does not take a “hard look” at the effect the various alternatives would have on the watersheds within the Newport Ranger District. The court disagrees. The FEIS contains an extensive analysis of the watersheds in the area, their conditions, the reasons they are in their current state, and the effects that the proposed logging and restoration projects would have on the watersheds. Plaintiffs are correct that the FEIS admits that most of the creeks in the area are “functioning at risk,” but also makes clear that the current watershed problems are due to past federal, state, and private timber management projects, as well as ongoing development and farming. FEIS, III-713 to III-717. The key question for this court to consider is not whether the watershed is currently in poor condition but whether the FEIS adequately considered the possible effects of the Project on that watershed. To that end, the FEIS applied a methodology called WATSED to determine the amount of sediment that the alternatives would contribute to the streams. That analysis included a consideration of the various types of action involved, including logging, underburning, road reconstruction, culvert upgrading, and road reconstruction. FEIS, III — 720 to 724. This analysis was then applied to each individual watershed for each of the alternatives. FEIS, III — 726 to III-738. The overall effect on each watershed was then summarized. FEIS, III-739. Plaintiffs’ problem appears to be not with the rigidity of the analysis but rather with the conclusion of the FEIS that all of the “action” alternatives would actually reduce sediment because they all include substantial reconstruction of roads that create sediment problems. FEIS, III — 739. Plaintiffs’ argument is, essentially, that common sense indicates that extensive logging of the type contained in the Project must have some negative effect on sediment. As noted several times in this opinion already, however, this court’s task is to ensure the USFS followed the procedures outlined in NEPA, not to quarrel or pick apart the agency’s substantive conclusions. The watershed analysis is thorough and demonstrates that the USFS took a “hard look” at the effects the Project would have on watersheds. The court cannot say that the analysis was arbitrary or capricious. d. Fisheries The closely related analysis of fisheries was similarly comprehensive. That analysis includes a list of all Newport area watersheds and the various species of fish species found in each. It also includes an analysis of which of the watersheds has been harmed in the past by road construction, burning, and timber harvest within the riparian zone. FEIS, III — 746 to IU-751. In order to determine what effects the alternatives would have on fisheries, the FEIS analyzes whether the alternatives would have any effect on habitat components such as stream temperature, habitat diversity, cover complexity, channel stability, and sediment rates. FEIS, III-752 to III — 753. For each alternative and each watershed, the FEIS analyzes whether there would be any long-term or short-term effects on fish habitat or specific fish species. FEIS, III-756 to III-764. The analysis concludes that because the alternatives all include extensive watershed restoration projects and would not harvest any timber in riparian zones, any risks to fish populations would be small and short-term, although some alternatives would be better than others. FEIS, III-763. In some cases, the fish habitat would improve because of the restoration projects. Plaintiffs’ contention is that the USFS did not conduct a separate fish survey for the FEIS or rely on any other recent fish survey. In particular, Plaintiffs are concerned about the bull trout, a “threatened” species which the FEIS states is found only in one Project watershed, Indian Creek. Plaintiffs point out that when they requested a copy of the fish surveys in the area, the Federal Defendants provided only limited surveys and gave confusing responses to Plaintiffs’ requests. There is no doubt that the Federal Defendants were less than forthcoming about which fish surveys they had used to support their statements in the FEIS regarding what type of fish were in which creek. (Ct.Ree.61, App.G-34, G-38.) However, this court does not believe that a precise analysis of exact fish population data would have added significantly to the FEIS analysis, which properly focused on fish habitat. If there will not be any net adverse effects on habitat, it does not matter how many fish are living in the habitat. The focus is on whether the habitat analysis was arbitrary or capricious. The court holds that it was not; the FEIS constitutes a “hard look” at fisheries in the analysis area. e. Wildlife As for the impacts of the Project on wildlife, the FEIS provides a separate analysis of each alternative’s potential effects on the “species of concern” that are known or suspected to live in the analysis area. Those species include a number of threatened or endangered species. The analyses for each species focus on where the animals are known to exist and considers whether the known locations are within the areas scheduled for logging or burning under the alternatives. In most cases, the FEIS concludes that the Project will have “no effect” on the particular species because they are not known to use the areas slated for logging or burning. FEIS, III-787 to III — 800. For grizzly bears, gray wolves, and the Canada lynx, the FEIS concludes that the Project may, but is not likely to, affect populations of these animals. FEIS, III-787 to III — 791. Plaintiffs challenge the analysis for only a few species. As to the bald eagle, Plaintiffs point out that the FEIS states both that the eagles do not use any habitat in the Project area and also that the eagles forage near Bead Lake, whose watershed is partially within the Project area. Plaintiffs contend this is clear contradiction. However, the FEIS is quite clear that “the project does not alter habitat along the Pend Oreille River corridor nor in the perch areas around Bead Lake” and that “the project is not adjacent to known nests or roost areas.” FEIS, III-789. The court has no reason to doubt this conclusion or the FEIS analysis of the Project’s impact on the bald eagle. As to the lynx, which was proposed for a “threatened” species listing at the time of the FEIS and has since been listed as such, the FEIS states that Alternative D would adversely impact lynx denning habitat in the short term. The result would be that there may be “a one to five year avoidance” of those areas by the lynx but that there would be no long-term effects for lynx and it would be unlikely to jeopardize the lynx’s continued existence. FEIS, III — 790 to III-791. Plaintiffs’ only challenge to this analysis appears to be that they doubt the FEIS’s conclusion that there will only be a short-term avoidance and that there will not be any effect on lynx survival. Once again, Plaintiffs challenge the substance of the decision and not the process. The court finds nothing arbitrary or capricious about the analysis of the Project’s effects on the lynx. Plaintiffs also contend that the Federal Defendants failed to consult with the United States Fish & Wildlife Service regarding the Project’s effects on threatened and endangered species before they adopted the Project. Plaintiffs appear to have made a factual error. The USFS submitted their highly detailed assessment of the Project’s effects on threatened and endangered species to the U.S. Fish & Wildlife Service on June 2, 1999, after what they indicate were several discussions of the issues. (Ct.Rec.48, App.F.) The U.S. Fish & Wildlife Service concurred with the USFS’s assessment on June 3, 1999. (Ct. Rec.48, App.H.) The ROD was not signed until June 11, 1999, and it specifically noted that the U.S. Fish & Wildlife Service had previously concurred. ROD at 17. There is no reason for this court to believe that the Project had been adopted before the USFS received the concurrence. Plaintiffs’ remaining claims regarding the wildlife analysis all focus on whether there was adequate consideration of the cumulative impacts that this Project would have on wildlife when combined with other projects in the analysis area. That claim is discussed later in this opinion as part of the general claim that the cumulative impacts analysis was inadequate. As for the claim that the analysis of the Project’s isolated effects on wildlife was inadequate, this court finds that the USFS took a “hard look” at what effects the Project would have on wildlife. f. Soils The soils analysis is a different story, however. The FEIS acknowledges that there are two sets of soil problems within areas slated for harvest as part of the Project. First, several units suffer from “detrimental soil conditions,” including “compaction, detrimental puddling, displacement, burned soils, erosion, and mass wasting.” FEIS 11-741. Logging tends to exacerbate these problems. Second, the soil in many of the units suffers from a potassium deficiency. Trees without enough potassium tend to be stunted and may be more susceptible to root rot. FEIS, III-740 to III-741. Logging can greatly affect the amount of potassium in the soil because trees store potassium in their trunks, branches and foliage. In addition, certain logging methods cause greater erosion, thus worsening the potassium problem. FEIS, III-741 to III-742. The exact extent of these problems, however, appears to be unknown. When preparing the FEIS, the USFS did not observe or test the soil conditions at each site. Rather, with regard to detrimental soil conditions, Using a combination of aerial photo interpretation, and data from the district’s road databases, the existing condition for each was estimated. Using factors developed by the Idaho Panhandle National Forest soil monitoring data, the extent of detrimental condition was estimated. Units that may exceed standards, or may be close to exceeding the standard were identified.... The pre-sale forester would be responsible to verify actual unit conditions and insure that the unit layout would meet the standards. FEIS, III-741 (emphasis added). This was the sole basis for determining which units might have detrimental soil conditions and therefore required special harvesting methods. There is nothing before this court to indicate that the USFS performed any individual, on-ground inspection of the soil conditions in a particular unit. The analysis of the potassium levels in the soil was equally speculative. The FEIS gives the following summary of the potassium analysis: Soils developed on the Prichard and St. Regis geologic formations are potentially potassium limited. A map of proposed project units was overlaid on a map of geologic formations to determine which units occurred on the Prichard and St. Regis geologic formations. FEIS, III-741 to III-742. This analysis of the soil conditions in each of the units served as the basis for determining what logging methods would be permitted or prescribed for each individual unit. Those with suspected detrimental soil conditions or possible poor potassium levels were assigned skyline or helicopter harvesting, which “would cause little or no increase in detrimental soil disturbance.” FEIS III-744. Harvests in areas with suspected low potassium levels were assigned harvest methods in which the branches of the trees would be left behind to leach out as much potassium as possible back into the soil. FEIS III-743. Defendants argue that this analysis of the problem was sufficient because the USFS took a conservative approach to assigning harvesting methods by assigning the least detrimental harvesting methods to units that were only suspected of having detrimental soil conditions or low potassium levels. The problem with this argument is that because the USFS did not obtain detailed analysis of the soils, there was no way for it to know with any certainty whether it had considered all of the problematic soils within the bounds of the CNF portion of the Bark Beetle Project. It is possible, for example, that certain units stated for harvest under Alternative D could suffer from detrimental soil conditions that could not be detected from a helicopter or potassium deficiencies that could not be detected by looking at a map of geologic formations. The USFS’s analysis would not have caught such a problem and thus would not have indicated that a unit which such a problem should be harvest via skyline or helicopter. In addition, even for the units which the USFS identified as having detrimental soil conditions or low potassium, it is possible that the USFS underestimated the effect that logging, even via skyline or helicopter methods, would have the unit. For example, the soil in at least two of the units in the Project was suspected by the USFS to exceed the regional forestry standards for detrimental soil conditions. These units were slated for harvest anyway, under the following rationale: The Regional Standard says that, if a site currently exceeds the standard, it can be treated if the treatment results in a net reduction in detrimental soil conditions. The use of existing skid trails and subsoiling would result in a net reduction, thereby meeting the soil quality standards. FEIS, III-741. In other words, the USFS decided, without ever setting foot on the most severely damaged units, that the units could be logged because the harvest would actually improve the soil. The court does not doubt that it is possible that the harvest could improve the soil. However, it is also within the realm of possibility that a particular unit could have such overwhelming detrimental soil conditions that it should not be the target of any harvest at all. The USFS did not countenance this possibility, nor did it even visit the sites it believed would exceed the regional standards to determine if the regional standard would in fact be complied with. The shortcomings in the USFS analysis are all directly tied to the fact that they did not take the time to walk the areas that they planned to harvest. Instead, based on assumptions, geological maps, and aerial photographs, they estimated the condition of each unit, tried to determine which units might exceed established standards, and projected potassium levels. FEIS, III-741 to III-742. As the Ninth Circuit has held, General statements about “possible” effects and “some risk” do not constitute a “hard look” absent a justification regarding why more definitive information could not provided. Neighbors of Cuddy Mountain, supra, 137 F.3d at 1380, citing Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754, 764 (9th Cir.1996). There is no indication in the FEIS why the necessary data could not be obtained. Indeed, it would be difficult for the USFS to show that it could not have sent its own foresters onto its own lands to observe the soil conditions and test the potassium levels on the areas subject to logging in the Project. They apparently planned to do so sometime in the future. They should have done it before they completed the FEIS. The failure to do so is a violation of NEPA because it shows that USFS did not give a “hard look” at the effects of the Project on the soils in the analysis area. This court will consider in a later section whether an injunction is appropriate to remedy the violation. 2. Cumulative Impacts Analysis (Seventh, Eighth, and Ninth Claims) Plaintiffs also claim that Federal Defendants failed to adequately consider the cumulative effects on the environment from the actions of past, present, and reasonably foreseeable actions on federal, state, and privately owned lands. NEPA regulations require that all agencies consider these “cumulative impacts.” 40 C.F.R. § 1502.25(a)(2). The regulations define “cumulative impact” as the impact of 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 (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can occur from individually minor but collectively significant action taking place over a period of time. 40 C.F.R. § 1508.7 (emphasis added). The Ninth Circuit has regularly invoked this rule in enjoining agency projects. In Carmel-by-the-Sea, supra, the agency’s final EIS listed and briefly addressed a number of foreseeable projects that would impact the same area as the agency project, but failed to discuss how all of the projects, together would cumulatively affect the environment. See 123 F.3d 1142. This violation led to a Ninth Circuit order requiring the agency to perform the proper analysis. See id. at 1161. In Muckleshoot, supra, the USFS had noted some other projects that could result in a cumulative impact with the proposed project but the agency had not provided sufficient detail of what that impact might be. See 177 F.3d at 810-11. In addition, it had effectively neglected to even consider a related USFS project that was “all but certain” to occur. Id. at 811-12. The Ninth Circuit enjoined the project in part because the USFS’s cumulative impacts analysis was too general. The FEIS in this case shares several problems with the analyses considered in those cases. First, it is clear that the USFS did not undertake a diligent search for pending or approved state and private timber projects in the Newport analysis area. The analysis area, it should be noted, encompasses both federally-owned land and land owned by either the State of Washington or by private entities. The FEIS states that a full 40% of the analysis area is either private or state-owned. FEIS, III-775. An agency must provide, at an absolute minimum* a list of all ongoing or reasonably foreseeable projects in the EIS. See Carmel-by-the-Sea, supra, 123 F.3d at 1142. In this case, the FEIS does list a few “ongoing and foreseeable” projects that are “within the boundaries of cumulative effects analysis