Full opinion text
ORDER I. Introduction The Plaintiff in this case, Forest Service Employees for Environmental Ethics, seeks review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, of federal agency actions and the associated planning documents relating to the use of chemical fire retardant to fight wildfires on United States Forest Service lands. Plaintiffs Second Amended Complaint alleges claims under the National Environmental Policy Act (“NEPA”) (Count I) and the Endangered Species Act (“ESA”) (Counts II-IV). The planning documents challenged are the Forest Service’s Environmental Assessment, Decision Notice, and Finding of No Significant Impact; and the Biological Opinions issued by the Fish and Wildlife Service and NOAA’s National Marine Fisheries Service (“NOAA Fisheries”). Plaintiff asks the Court to declare that the agencies have violated the relevant statutes and to set aside the challenged documents. Plaintiff seeks injunctive relief compelling the agencies to comply with the law, and also requests an award of reasonable fees, costs, and expenses, including attorney’s fees. The case is now resolved on the parties’ cross-motions for summary judgment for the reasons set forth below. II. Background A. The 2003 Case This legal dispute originated in a 2003 case in which Plaintiff sued the Forest Service, claiming that the agency should conduct a NEPA analysis and consult with the Fish and Wildlife Service pursuant to ESA § 7 regarding its use of chemical fire retardant. Forest Service Employees for Environmental Ethics v. United States Forest Service, 397 F.Supp.2d 1241 (D.Mont.2005) (the “2003 case”). Summary judgment was granted in favor of the Plaintiff on both the NEPA and ESA claims. In its discussion of the agency’s failure to comply with NEPA, this Court concluded that “[i]t is probable that substantial questions are raised here as to the environmental impact of the annual dumping of millions of gallons of chemical fire retardant on national forests.” 397 F.Supp.2d at 1254. The Court ordered the Forest Service to comply with NEPA, leaving it to the agency to determine whether an environmental impact statement is necessary or an environmental assessment will suffice. In the ESA context, the Court rejected the Forest Service’s argument that post-hoc, case-by-case consultation through the regulatory emergency consultation procedure is sufficient to satisfy the requirements of the ESA. The Court ordered the Forest Service to begin formal consultation with the Fish and Wildlife Service. Id. at 1257. The Court did not enjoin the continued use of chemical fire retardant. The Forest Service did not diligently pursue compliance with the judgment. Unable to meet the Court’s original deadline for NEPA compliance of August 8, 2007, the Forest Service sought and received an extension until October 10, 2007. Forest Service Employees for Environmental Ethics v. United States Forest Service, 530 F.Supp.2d 1126, 1127 (D.Mont. 2008). On October 10, 2007, the Forest Service issued an Environmental Assessment (USFS AR 337). Id. at 1128. Plaintiff filed a motion for contempt on the same day, arguing the Forest Service had failed to meet the Court’s deadline because it had not fully complied with NEPA. Id. The agency attempted to moot the contempt motion by hastily filing a Decision Notice and Finding of No Significant Impact on October 11, 2007 (USFS AR 326). Id. The Forest Service then sought to justify its untimely compliance by placing the blame on the ESA agencies, claiming it could not complete its analysis and issue a decision notice until formal ESA consultation was complete. Id. at 1129-1130. The Court was not persuaded by the Forest Service’s argument, in large part because the record showed that the ESA agencies had not completed consultation due to the Forest Service's incomplete, insincere, and untimely efforts to comply with the law and the Court’s orders. 530 F.Supp.2d at 1131-1134. The Court also expressed doubt about the sufficiency of the Forest Service’s Environmental Assessment, noting that but for the contrary insistence of the ESA agencies, the Forest Service would have conducted an assessment of only the narrow question of its continued use of the 2000 Guidelines, rather than the proper Court-ordered analysis of the use of retardant generally. Id. at 1134-1135. A contempt hearing was set for February 26, 2008. Eight days before the hearing, on February 18, 2008, the Forest Service issued an amended Decision Notice and Finding of No Significant Impact accepting the reasonable and prudent alternatives established by the ESA agencies. USFS AR 341. The Court held the contempt hearing as scheduled and issued an order afterward in which it denied the motion for contempt on the ground that the contempt power may be used only to coerce compliance with the law and court orders, and may not be used for punitive reasons. Doc. No. 157, CV 03-165-M-DWM. Finding that the Forest Service had complied with the judgment by performing a NEPA analysis and consulting with the ESA agencies, the Court dismissed the 2003 case on March 12, 2008. Doc. No. 160, CV 03-165-M-DWM. Three weeks later, on April 2, 2008, Plaintiffs filed this action challenging the NEPA and ESA documents that resulted from the Forest Service’s compliance. B. The Forest Service’s Use of Chemical Fire Retardant The Forest Service has used chemical retardants to fight wildfires on federal lands since at least 1955. USFS AR 337 at 9. Today, fire retardant solutions are 85 percent water, with the remainder consisting mostly of inorganic fertilizer along with thickeners and corrosion inhibitors. Id. at 10. Retardant is used primarily in the western part of the country; it is not commonly used in the Northeast or Midwest, and is used periodically in the Southeast. Id. at 8. C. The Forest Service’s ESA Consultation The Forest Service consulted under the ESA with both the Fish and Wildlife Service and NOAA Fisheries. USFS AR 339 at 1; USFS AR 1075 at 1. The ESA agencies issued programmatic biological opinions, defining the action area as all National Forest System lands (totaling 192 million acres) together with a buffer area surrounding those lands. USFS AR 339 at 10-11; USFS AR 1075 at 17. According to the Fish and Wildlife Service, “[t]he size of this buffer is dependant upon the species in question and the likelihood of said species being exposed to fire retardant when applied on [National Forest System] lands.” USFS AR 339 at 11. NOAA Fisheries defined the action area “broadly to encompass lands and waters of the United States with particular emphasis on [Forest Service] lands and adjacent properties.” USFS AR 1075 at 17. The ESA agencies assumed that any listed species within the action area could potentially be affected by the use of fire retardant, resulting in a significant number of listed species included in the analyses: 27 species for NOAA Fisheries and 387 species for the Fish and Wildlife Service. USFS AR 1075 at 18-19; USFS AR 339 at 11-20. 1. The NOAA Fisheries Biological Opinion NOAA Fisheries issued its first Biological Opinion on October 9, 2007. USFS AR 338. The agency issued an amended Biological Opinion in June of 2008 to correct typographical errors in the original. USFS AR 827. The agency amended its opinion again to include an analysis for the recently-listed Oregon Coast coho salmon, and issued the currently operative Biological Opinion on July 25, 2008. USFS AR at 1075. The Biological Opinion concludes that the Forest Service’s use of fire retardant is likely to jeopardize the continued existence of all 27 listed species examined by NOAA Fisheries, and likely to destroy or adversely modify critical habitat for 23 of those species. Id. at 140. NOAA Fisheries went on to identify a reasonable and prudent alternative that “must be implemented in its entirety” to avoid jeopardy to the 27 listed species and prevent destruction or adverse modification of their habitat. USFS AR 1075 at 141. The reasonable and prudent alternative contains the following provisions: 1. The Forest Service must evaluate the toxicity of two retardant formulations that have not yet been studied, and must similarly evaluate any new formulations, and report the results to NOAA Fisheries within two years. 2. The Forest Service must perform toxicological studies on all currently approved long-term fire retardants to evaluate acute and sub-lethal impacts on fish. The Forest Service must work with NOAA Fisheries to develop a research plan within one year. 3. The Forest Service must develop guidance for on-site assessment of waterways in which retardant is dropped. 4. The Forest Service must implement a policy requiring personnel to report to NOAA Fisheries on all drops in waterways, including information on the amount of retardant dropped, the area affected, whether the drop was accidental or intentional, the expected direct and indirect impacts, and the results of field evaluation of the affected waterway. 5. The Forest Service must provide NOAA Fisheries with a biannual summary of the cumulative impacts of the Forest Service’s continued use of fire retardant. USFS AR 1075 at 141-143. There is no incidental take statement in the NOAA Fisheries Biological Opinion. The agency explained that uncertainty over where and to what extent retardant will be used made it impossible to supply an incidental take statement: The [Forest Service] applies long-term fire retardants in response to emergency circumstances. The goal of this program-level Opinion is to evaluate the impacts to [NOAA Fisheries’] listed resources from the [Forest Service’s] broad use of aerially applied fire retardants. Since specific emergency actions and the scope of [the Forest Service’s] response to those emergencies cannot be predicted, it is not possible to identify specific take that could occur. Instead, this Opinion anticipates the general effects that would occur from the [Forest Service’s] use of aerially applied long-term fire retardants across the landscape. This Opinion does not exempt incidental take of listed fish or wildlife species from the prohibitions of section 9 of the ESA for the [Forest Service’s] use of aerially applied long-term fire retardants. USFS AR 1075 at 143-144. NOAA Fisheries goes on to explain that it will authorize take on a case-by-case basis each time the use of fire retardant has the potential to affect listed species. The agency intends for the emergency consultation regulation to be invoked in each such instance. The Biological Opinion states: In the event incidental take is anticipated during the emergency response, [NOAA Fisheries’] Regional Office can advise the [Forest Service] of ways to minimize the take. Generally, however, an incidental take statement in an emergency consultation does not include reasonable and prudent measures or terms and conditions to minimize take, except where an agency has an ongoing action related to the emergency. The incidental take statement, however, would document the recommendations given to the [Forest Service] to minimize take during information [sic] consultation, the success of the agency in carrying out these recommendations and the effects of the emergency on the listed resources, and determine whether the emergency action “is not likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, or is not likely to destroy or adversely modify the critical habitat of such species, [sic] USFS AR 1075 at 144. NOAA Fisheries also made a non-binding “conservation recommendation” encouraging the Forest Service to employ flight navigation and guidance technology to avoid misapplication of retardants in waterways. USFS AR 1075 at 144. 2. The Fish and Wildlife Service Biological Opinion The Fish and Wildlife Service issued its Biological Opinion on February 15, 2008. Like NOAA Fisheries, the Fish and Wildlife Service prepared a programmatic Biological Opinion; the analysis covers 387 listed species, and the agency concluded that the proposed action will result in jeopardy and/or destruction or adverse modification of critical habitat for 45 listed species. USFS AR 339 at 1, 11-20. The consultation was coordinated from the agency’s Washington, D.C. headquarters, with specialists from each regional office contributing to the analysis for the species on which they have the most expertise. The Fish and Wildlife Service began its analysis by applying what it calls a “coarse filter” to all 387 listed species. The coarse filter was intended to allow the agency to make a preliminary jeopardy determination for each species. USFS AR 339 at 21. The coarse filter analysis began by breaking the listed species into the following taxonomic groups: plants, invertebrates, fishes, amphibians, reptiles, birds and mammals. Id. The agencies then used existing literature to identify subgroups based on heightened vulnerability to exposure to fire retardant. The following subgroups were selected for closer analysis: legumes, aquatic invertebrates, freshwater mussels, terrestrial invertebrates, and ruminants. Id. The Forest Service then considered the potential effects of fire retardant on the groups and subgroups by applying a four-step analysis. First, the agency considered the range and distribution of the species. USFS AR 339 at 21. Well-distribut- ed species with many populations were deemed at low risk of jeopardy. Id. The agency next considered the likelihood that a species would be exposed to fire retardant during a fire. Id. The third step asks whether exposure of a species to retardant is likely to result in take. Id. at 22. Finally, for those species for which the Fish and Wildlife Service concluded that take may occur, the agency went on to ask whether the amount of take would be likely to jeopardize the continued existence of the species. Id. This “coarse filter” analysis yielded a preliminary determination that 181 species were not likely to be jeopardized by the Forest Service’s continued use of fire retardant. Id. at 11. The Fish and Wildlife Service sought more detailed analysis of the 206 remaining species from its regional and field offices. USFS AR 339 at 22. The agency also distributed the list of 181 species for which the coarse filter yielded a “no jeopardy” determination, so that its regional and field offices could “ground truth” the coarse filter and conduct more analysis where needed. Id. at 22-23. The process resulted in additional analysis for 11 of the 181 species given a preliminary “no jeopardy” finding, together with detailed analysis for all 206 species for which the coarse filter found some potential for jeopardy. Id. at 23. The end result was a determination by the Fish and Wildlife Service that the aerial application of fire retardant on federal lands is likely to result in jeopardy or destruetion/adverse modification of critical habitat for 45 species, while 342 species are not likely to be jeopardized or to suffer destruction or adverse modification of critical habitat. Id. at 23-29, 39-41. The Fish and Wildlife Service then set forth a reasonable and prudent alternative that, when “added to the action as proposed,” is expected to avoid jeopardy and adverse modification to any species. USFS AR 339 at 118-120. The reasonable and prudent alternative requires the Forest Service to develop species-specific measures to be implemented during fire response emergencies. Id. at 119. The measures must include preparation of current maps of the distribution of listed species, prioritization of fuel reduction near critical habitat, guidance encouraging the use of less toxic retardants, and emergency consultation procedures during a wildfire response. Despite the imposition of this reasonable and prudent alternative, the Fish and Wildlife Service makes clear that its Biological Opinion “in no way limits the actions that an incident commander deems necessary to undertake during a fire emergency response.” USFS AR 339 at 120. The Fish and Wildlife Service did not include an incidental take statement in its Biological Opinion. USFS AR 339 at 120. Instead, the agency expects take to be authorized through emergency consultation on a case-by-case basis: As the [Forest Service] implements them action in each National Forest, the [Forest Service] must work with local Fish and Wildlife Service offices to conduct local level stepped-down consultations to determine the amount or extent of incidental take and to obtain incidental take statements from the Fish and Wildlife Service.... Therefore, at minimum, if fire retardant is used in the vicinity of listed species or critical habitat, the [Forest Service] must conduct consultation under the emergency procedures as stated in the regulations at [50 C.F.R. § 402.05]. Id. D. The Forest Service’s NEPA Compliance The Forest Service prepared an Environmental Assessment analyzing the following proposed action: “The Forest Service proposes to continue the aerial application of chemical fire retardant to fight fires on National Forest system lands and to permanently adopt the Guidelines for Aerial Delivery of Retardant or Foam near Waterways, which were established in 2000.” USFS AR 337 at 3. The stated purpose and need for the proposed action is “to allow the Forest Service to maintain the ability to rapidly reduce wildfire intensities and rates of spread until ground forces can safely take suppression action throughout the duration of an incident without harming fish and aquatic habitat.” Id. at 8. The Forest Service analysis describes the action area as all National Forest System lands, covering 193 million acres. Id. at 7. The Forest Service considered two alternatives in detail. Alternative 1 (the “no action” alternative) is to discontinue the aerial application of chemical fire retardant on National Forest lands. USFS AR 337 at 15. Alternative 2 is the proposed action, continuing retardant use and adopting the 2000 Guidelines. Id. Then-Forest Service Chief Abigail Kimbell issued a Decision Notice and Finding of No Significant Impact adopting Alternative 2 as modified by the inclusion of the reasonable and prudent alternatives imposed by the ESA agencies. USFS AR 341 at 4. In reaching the conclusion that the action would not significantly impact the affected area, the Forest Service relied on the fact that accidental delivery into a waterway is an uncommon occurrence: “Based on the low frequency of 14 accidents over 8 years and approximately 128,000 aerial drops, the likelihood of retardant entering a waterway is small.” USFS AR 337 at 23. Because Chief Kimbell concluded that the action “will not have a significant impact on the quality of the human environment considering the context and intensity of impacts,” the Forest Service did not undertake a more detailed analysis through the preparation of an environmental impact statement. USFS AR 341 at 11. E. Plaintiffs Claims Count I of the Second Amended Complaint alleges that the Forest Service violated NEPA when it concluded in its Environmental Assessment that the proposed action would not have a significant impact and decided not to prepare an environmental impact statement. Plaintiff also claims that the analysis in the Environmental Assessment does not comply with the requirements of the statute, and that the Forest Service should have developed alternatives to the use of chemical fire retardant. The remaining counts are brought under the ESA. Counts II and III claim NOAA Fisheries and the Fish and Wildlife Service violated the ESA by failing to include incidental take statements in their biological opinions. In Count IV, Plaintiff alleges the Fish and Wildlife Service’s reliance on its reasonable and prudent alternative is arbitrary and capricious because the reasonable and prudent alternative will not prevent jeopardy. Count V alleges that the Fish and Wildlife Service violated the ESA because it did not consider the effects of the action on the value of critical habitat for recovery. Plaintiffs make a series of claims under Count VI, saying the Fish and Wildlife Service violated the ESA by failing to (1) address the effects of related activities; (2) adequately assess the environmental baseline; and (3) consider the aggregate effects of the use of retardant and other human activities. III. Analysis A. Legal Standards Applicable to All Claims 1. Standard of APA Review Agency decisions may be set aside under the APA only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)(A), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). Agency action can be set aside “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Alvarado Community Hospital v. Shalala, 155 F.3d 1115, 1122 (9th Cir.1998). The court must ask “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... [The court] also must determine whether the [agency] articulated a rational connection between the facts found and the choice made. [The] review must not rubber-stamp ... administrative decisions that [the court deems] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108, 1119 (9th Cir.2004) (internal citations and quotations omitted). 2. Summary Judgment Standard Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985) (citation omitted). Summary judgment is appropriate in this case because the issues presented address the legality of the Federal Defendants’ actions based on the administrative record and do not require resolution of factual disputes. B. NEPA (Count I) 1. Legal Standard NEPA is intended to focus the attention of the government and the public on the likely environmental consequences of a proposed agency action. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Act “places on the agency the obligation to consider every significant aspect of the environmental impact of the proposed action” and “ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citations omitted). NEPA imposes procedural obligations on government agencies. “NEPA does not work by mandating that agencies achieve particular substantive environmental results.” Marsh, 490 U.S. at 371, 109 S.Ct. 1851. NEPA dictates the necessary procedure an agency must follow, but does not state any requirements relating to the outcome of the agency’s decision making process. Robertson v. Methow Valley Cit izens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires a federal agency to prepare an environmental impact statement detailing the environmental impacts of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This obligation includes the duty to consider “[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). “If several actions have a cumulative environmental effect, ‘this consequence must be considered in an [environmental impact statement].’ ” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir.1998) (quoting Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1378 (9th Cir.1998)). To assist in determining whether an environmental impact statement is necessary, an agency may prepare an environmental assessment. 40 C.F.R. § 1508.9. An environmental assessment is a less detailed analysis that includes a brief discussion of the need for the proposal, the alternatives under consideration, the environmental impacts of the proposed action and alternatives, and a listing if the agencies and individuals consulted. 40 C.F.R. § 1508.9(b). If the environmental assessment shows that the proposal will not have a -significant impact, the agency may issue a finding of no significant impact under 40 C.F.R. § 1508.13. If the agency determines that the proposed action will significantly impact the environment, it must go on to prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C). The environmental impact statement must describe the environmental impacts of the proposed agency action, any adverse environmental impacts of the proposed action that cannot be avoided, and alternatives to the proposed action which were considered by the agency. Robertson, 490 U.S. at 349, 109 S.Ct. 1835. The scope and nature of the direct, indirect, and cumulative impacts analysis is a matter committed to the sound discretion of the agency. Kleppe v. Sierra Club, 427 U.S. 390, 413-14, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). If the nature and scope of the analysis is challenged, the reviewing court may only examine whether “the agency has taken a ‘hard look’ at the environmental consequences.” Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754, 763 (9th Cir.1996) (quoting Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718). A court may not interject itself within the area of discretion of the executive as to the choice of the action to be taken; only if the agency’s analysis of the environmental impact is “arbitrary and capricious” or “contrary to the procedures required by law” can the reviewing court conclude that the agency did not take the requisite “hard look.” Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718; Inland Empire, 88 F.3d at 763. 2. Plaintiffs NEPA Arguments Plaintiff makes three arguments in support of the NEPA claim. First, Plaintiff challenges the scope of the Forest Service’s analysis. Plaintiff maintains that for the agency to fully examine the indirect and cumulative impacts of the proposal and any connected actions, the Forest Service must prepare an analysis of the impact of all fire suppression activity on federal lands, and may not confine its analysis to the use of aerially applied fire retardant. Plaintiff also challenges the adequacy of the analysis in the environmental impact statement, saying the Forest Service failed to sufficiently evaluate the effects of the proposed action on fish and water quality and failed to discuss how the reasonable and prudent alternatives will mitigate the harm to listed fish and plants. Plaintiffs final argument in support of the NEPA claim argues that the Forest Service erred in its finding that the proposed action will not have a significant impact on the environment, and that the Forest Service should have proceeded to analyze the proposal in greater detail in an environmental impact statement. a. The Scope of the Forest Service’s NEPA Analysis A common thread running through Plaintiffs NEPA and ESA arguments is the Plaintiffs insistence that the proper scope of analysis is not confined to the Forest Service’s use of fire retardant, but should extend to the effects of fire suppression generally on National Forest System lands. Here Plaintiff expresses that view in the context of arguments that the Forest'Service failed to analyze the indirect effects of fire retardant use and failed to analyze significant impacts of cumulative and connected actions. i. Indirect Effects Indirect effects are “caused by the action and are later in time or farther removed in the distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b). Plaintiff argues that the use of aerial fire retardant results in smaller fires, “meaning] that fire’s natural role in forest ecosystems is diminished or even eliminated.” Pl.’s Resp. Br. (Doc. No. 36) at 5. According to Plaintiff, the Forest Service should have analyzed fire’s diminished role in the ecosystem as an indirect effect of the action. This contention is supported by reference to a private 1994 study commissioned by the Forest Service assessing the comparative risks posed by uncontrolled wildfires and the use of chemical fire retardant, USFS AR 194. Plaintiff focuses on a single sentence in the study’s section on “Evaluation of Relative Risks,” in which the authors write, “Data accumulated over the past few decades have shown that continual fire suppression may have more adverse effects to ecosystems than wildfires.” USFS AR 194 at 23. Plaintiffs emphasis is misplaced because as the Defendants point out, the study speaks of the effects of fire suppression generally, not the use of fire retardant in particular. Moreover, Plaintiff overlooks the statement in the next paragraph that “[f]ire suppression chemicals may, in fact, leave less permanent effects on an ecosystem than some physical fire suppression activities[.]” Id. At best, Plaintiff can point to a single statement that fire suppression may be more harmful than wildfires, which does not translate into a conclusion that the use of fire retardant alone causes harmful indirect effects in the form of less fire. This Court did not require — and the Forest Service did not perform — an analysis of the agency’s fire suppression practices generally. Plaintiff wants an analysis of an effect without any evidence that it is caused by the proposed action. NEPA imposes no such requirement. The Defendants are entitled to summary judgment on this point. ii. Cumulative Impacts of Connected Actions An agency must consider an action’s cumulative impact, which 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!.]” 40 C.F.R. § 1508.7. In assessing impacts an agency is required to take into account connected actions, which are “closely related” to the proposed action. Connected actions include “independent parts of a larger action [that] depend on the larger action for justification.” 40 C.F.R. § 1508.25(a)(l)(iii). Plaintiff argues that the use of fire retardant should be considered as a connected action together with every other activity associated with fire suppression, and that the cumulative impact of all activities comprising the Forest Service’s fire suppression regime must be considered together in the NEPA analysis. The Defendants concede that the Forest Service did not analyze the effects of fire suppression activity generally, but argue the agency has “considerable discretion” in determinating the proper scope of its NEPA analysis. Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985). The Ninth Circuit uses an “independent utility” test for deciding whether actions are connected for the purpose of NEPA review. Earth Island, Institute v. United States Forest Service, 351 F.3d 1291, 1305 (9th Cir.2003). Each side claims support for its position in the Ninth Circuit’s discussion of the test in Northwest Resource Information Center v. National Marine Fisheries Service, 56 F.3d 1060 (9th Cir.1995). Northwest Resource involved a challenge to an agency decision relating to the operation of dams, reservoirs, and other structures in the Federal Columbia River Power System. At the time the Army Corps of Engineers relied on three major tactics to help juvenile salmon migrate through the system: river flow improvement, spill control, and surface transportation of fish past the dams. 56 F.3d at 1063. In response to the ESA listing of salmon species, the Corps issued an environmental impact statement on the effects of its plan to improve river flow to benefit the fish. Id. at 1065. The environmental impact statement assumed the transportation program would continue and did not address the transportation program or its effects in the analysis. Id. The plaintiffs then challenged the document, arguing that the failure to address the transportation program in the analysis violated NEPA because the transportation program and the river flow improvement program were connected actions. In reaching its conclusion, the court in Northwest Resource considered a series of Ninth Circuit cases. The discussion includes elements favorable to each party’s position in this case. The first case cited is Thomas, in which the court held that a logging project and a road to provide access to the timber were connected actions because “the timber sales cannot proceed without the road, and the road would not be built but for the contemplated timber.” 56 F.3d at 1068 (quoting Thomas, 753 F.2d at 758). Next the court discussed Sylvester v. U.S. Army Corps of Engineers, 884 F.2d 394 (9th Cir.1989), where the court held that a golf course and the accompanying proposed resort were not connected actions under NEPA because “each could exist without the other, although each would benefit from the other’s presence.” 56 F.3d at 1068 (quoting Sylvester, 884 F.2d at 400). The Sylvester court explained that while the road and logging project in Thomas were “links in the same bit of chain,” the golf course and resort were “separate segments] of chain.” 884 F.2d at 400. The Northwest Resource court then went on to consider Trout Unlimited v. Morion, 509 F.2d 1276, 1285 (9th Cir. 1974), in which a dam and reservoir project and a subsequent phase involving disposition of the reservoir’s irrigation capacity were found not to be connected actions. The Trout Unlimited court explained that a subsequent phase of development is a connected action only when “[t]he dependency is such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken.” 509 F.2d at 1285. The final case mentioned is Daly v. Volpe, 514 F.2d 1106 (9th Cir.1975), where the court held that the impact of one segment of a larger highway project could be considered apart from the rest of the highway because the segment had independent utility. After considering these cases, the Northwest Resource court concluded that the transportation program and the river flow improvement program were not connected actions. 56 F.3d at 1068. The court analogized the case to Sylvester and Daly, stating, “The Corps would continue the transportation program with or without flow improvements. And, the Corps would explore flow improvements with or without the transportation program.” Id. Plaintiff seizes upon that language as compelling a finding of connectedness here, because while fire suppression could exist without fire retardant, fire retardant would not exist without fire suppression. Quoting Trout Unlimited, Plaintiff contends it would be “irrational, or at least unwise,” to use fire retardant unless the “subsequent” step of ground force fire suppression actions were not also undertaken. Plaintiff tries to cast the issues in the light most favorable to its position by suggesting that the two actions up for consideration are the use of fire retardant on one hand and fire suppression generally on the other. Framing the issue in that way allows the Plaintiff to argue that fire retardant would not exist without fire suppression. The trouble with Plaintiffs argument is that the “other firefighting actions” to which Plaintiff refers are not a single action that can be lumped under the heading “fire suppression.” The Forest Service’s policy of suppressing wildfire is comprised of a series of actions, including ground crews, hand tools, water trucks, bulldozers, helitack crews, smokejumpers, and fire retardant, among others. Although these actions are all related to each other, none of them individually is contingent on the existence of any of the others. The closing paragraph of the court’s analysis in Northwest Resources is on point: [W]e cannot agree ... that the transportation program and the flow improvement measures are so interdependent as parts of the larger action of improving the survival of the salmon that they must be addressed in the same NEPA document. On this rationale, measures involving harvest limits, hatchery releases, and habitat maintenance are also interdependent parts of every action taken to benefit the salmon. While we cannot allow an agency to segregate its actions in order to support a contention of minimal environmental impact, we also cannot force an agency to aggregate diverse actions to the point where problems must be tackled from every angle at once. 56 F.3d at 1069 (citation omitted). Just as river flow improvement is one of many actions taken to benefit salmon, fire retardant is one of many tactics used to fight wildfires. The Forest Service is not required to treat fire retardant and other firefighting tactics as connected actions. This conclusion is consistent with the ruling in the 2003 case, which directed the Forest Service to prepare a NEPA analysis of the agency’s use of fire retardant, not the agency’s broader policy of fire suppression. If the Forest Service had analyzed all fire suppression tactics as connected actions, the scope of the NEPA discussion would have swallowed the issue of fire retardant and mandated, among other things, consideration of a “no action” alternative consisting of the cessation of all fire suppression activities on federal lands. That is not the NEPA analysis that was ordered or that the law requires. The scope of the Environmental Assessment is adequate. The Federal Defendants are entitled to summary judgment on this point. b. Adequacy of the Forest Service’s Analysis Plaintiffs next argument challenges the adequacy of the Forest Service’s NEPA analysis. Here Plaintiff argues that the Forest Service’s analysis is inadequate even under the lower standards of what must be included in an Environmental Assessment. This argument challenges the depth of the Environmental Assessment’s analysis, while the next section deals with Plaintiffs closely related contention that Forest Service’s finding of no significant impact was arbitrary and capricious, and that the agency should prepare an environmental impact statement. Plaintiff contends the Forest Service failed to adequately evaluate the effects on the action on fish and plants, and failed to evaluate the mitigation measures (reasonable and prudent alternatives). i. Analysis of the Effect on Fish The discussion of the effects on fish is inadequate, Plaintiff argues, because the Forest Service’s NEPA documents ignore the fact that drops in waterways will continue to occur and have significant adverse consequences. The Forest Service discusses the effects of fire retardant drops on fish and aquatic habitat in the Environmental Assessment. USFS AR 337 at 20-24. The analysis recognizes risks to fish from retardant drops, describes the factors affecting mortality, recites the provisions of the 2000 Guidelines intended to limit drops in waterways, and provides data indicating that drops in waterways in infrequent relative to the total number of drops (“14 accidents over 8 years”). Id. The discussion is brief, but the regulations require nothing more. 40 C.F.R. § 1508.9. The Forest Service’s discussion of the effects on fish is adequate. ii. Analysis of the Effect on Plants The Environmental Assessment contains much less discussion of the effects of the action on listed plants. The Environmental Assessment’s analysis of the effects on vegetation amounts to a few sentences, and contains no discussion of the risk of invasion by non-native species that the Fish and Wildlife Service concluded is the greatest risk to listed plants from exposure to fire retardant. USFS AR 337 at 25. The Defendants say that the discussion is contained elsewhere in the record, pointing to the Biological Opinion by the Fish and Wildlife Service and the Finding of No Significant Impact. Relying on Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir.2006) (“EPIC”), the Defendants argue it is permissible for it to incorporate the Biological Opinion’s analysis of the effects on listed plants. In EPIC, the plaintiff challenged the Forest Service’s decision not prepare an environmental impact statement, arguing that the agency improperly relied on a “no jeopardy” finding from the biological opinion. 451 F.3d at 1012. The court held that while NEPA and the ESA have different standards, the Forest Service is not required to disregard the findings of a biological opinion. Id. The court went on to observe that the Forest Service did not rely solely on the “no jeopardy” finding, but on “all of the analysis in the [biological opinion], as well as numerous other sources of information,” in making its finding of no significant impact. Id. EPIC stands for the proposition that an action agency may consider the analysis contained in the biological opinion, as well as other information in the record, in reaching its decision. Nonetheless, Plaintiff correctly observes that EPIC does not allow an action agency to completely ignore an issue in its NEPA documents so long as the matter is discussed in adequate detail in a biological opinion, but that is not the situation here. The Forest Service incorporated by reference into its Decision Notice and Finding of No Significant Impact the analysis contained in the Fish and Wildlife Service’s Biological Opinion. USFS AR 341 at 2. It also included the full text of the reasonable and prudent alternative. Id. at 6-7. Finally, in recognition of the Biological Opinion’s finding that invasion by non-native species is the greatest risk to listed plants from exposure to retardant, the Forest Service discussed that concern in the Decision Notice Finding of No Significant Impact. The agency briefly discusses the preliminary findings of a study of vegetative change following retardant drops on Mount Jumbo, noting “an increase in invasive species,” and states that the findings are consistent with two other studies considered in the preparation of the Environmental Assessment. Id. at 10. The Forest Service then summarize its mitigation plan, including monitoring and non-native species removal. Id. The Forest Service’s discussion of the effects on listed plants is brief but adequate. The record contains a sufficient analysis of the effects on listed plants in the Fish and Wildlife Service Biological Opinion, and the Forest Service acknowledges, incorporates, and briefly expands upon that analysis in its NEPA documents. The discussion contained in the NEPA documents is not extensive, but there is sufficient reference to the issues at hand and the places in the record where a more detailed discussion can be found. The discussion adequately meets the less exacting standards of an environmental assessment, iii. Analysis of the Reasonable and Prudent Alternatives Plaintiff argues that the Forest Service failed to adequately analyze the effectiveness of the reasonable and prudent alternatives in its NEPA documents. It criticizes the Forest Service for providing a “mere listing of mitigation measures, without supporting analytical data,” which the court in National Parks and Conservation Association v. Babbitt, 241 F.3d 722, 734 (9th Cir.2001), held is not sufficient to support a finding of no significant impact. The point does not advance the Plaintiffs position because there was no biological opinion in National Parks, and thus no other place to go to find the required analysis. Here, the Forest Service explicitly relies on the biological opinions and the analyses contained therein. USFS AR 341 at 2. The fact that the Forest Service did not include a detailed analysis of the effectiveness of the reasonable and prudent alternatives in its NEPA documents does not necessarily mean that the agency failed to sufficiently analyze the problem. Plaintiffs briefing suggests that its concerns over the adequacy of the discussion of the reasonable and prudent alternatives are indistinguishable from its argument that the proposed action will have significant impacts that are not alleviated by the reasonable and prudent alternatives. Plaintiff writes: The problem is that no where — not in the [Environmental Assessment], not in the [Finding of No Significant Impact], not in the [administrative record] — does the Forest Service analyze the use of aerial fire retardant pursuant to the [reasonable and prudent alternatives], i.e., “in place,” as required by EPIC. For example, the Forest Service asserts that “maps will give incident commanders an effective tool to implement fire suppression tactics that will better protect [listed plants].” FS SJ at 4. But the [administrative record] includes no maps, thus neither the [Forest Service] (nor anyone elfse) can judge their accuracy. The [Forest Service] has not assessed how faithfully incident commanders use the maps during fire fighting. The [Forest Service] claims mitigation “by prioritizing lands with [listed plants] for fuel reductions, when practical ...” FS SJ at 4 (emphasis added). What lands? What fuel reduction practices? What effects will the fuel reduction practices themselves have upon the threatened and endangered plans [sic]? When is it “practical” to carry out these practices, and when not? These basic questions remain unanswered. The [Forest Service] claims it will use “water or less toxic fire retardants, when practical ...” FS SJ at 4 (emphasis added). When? Where? How much? And what constitutes “practical”? Pl.’s Resp. Br. (Doc. No. 36) at 4-5. These are questions that would be answered by the more detailed analysis that comes with an environmental impact statement. Plaintiffs argument has as much to do with whether the reasonable and prudent alternatives will effectively mitigate as it does with whether they are adequately discussed. The issue is the same whether it is cast in terms of the Forest Service’s alleged failure to take a hard look at the reasonable and prudent alternatives, or in terms of the agency’s alleged failure to prepare an environmental impact significant to analyze impacts that Plaintiff believes will not be alleviated by the reasonable and prudent alternatives. For that reason, the claim analysis must proceed to the Plaintiffs next argument, and to consideration of whether the Forest Service’s decision not to prepare an environmental impact statement is arbitrary and capricious. c. The Forest Service’s Decision Not to Prepare an Environmental Impact Statement In reviewing an action agency’s decision not to prepare an environmental impact statement, a reviewing court focuses on the reasonableness of the agency’s conclusion that the action will have no significant adverse impact on the environment. Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). “If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an [environmental impact statement] is unreasonable.” Id. The decision not to prepare an environmental impact statement must be explained in “a convincing statement of reasons why potential effects are insignificant.” Id. (quoting the Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir.1985)). An agency’s statement of the reasons for its decision informs the court’s consideration of whether the agency took the requisite “hard look.” Id. Whether a proposed action will have a significant impact on the environment requires consideration of the action’s context and intensity. Native Ecosystems Council v. United States Forest Service, 428 F.3d 1233, 1239 (9th Cir.2005); 40 C.F.R. § 1508.27. An action’s intensity is evaluated based on ten factors, only one of which is clearly invoked in the Plaintiffs briefing, i.e., “[t]he degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.” 40 C.F.R. § 1508.27(b)(9). Any one of the ten factors standing alone may be sufficient to require preparation of an environmental impact statement. National Parks, 241 F.3d at 731. Plaintiff insists the Forest Service should have prepared an environmental impact statement because the proposed action will have significant effects on listed fish and listed plants. The argument on this point is that the Forest Service’s Finding of No Significant Impact cannot be reconciled with the determinations of the Fish and Wildlife Service and NOAA Fisheries that the proposal is likely to jeopardize several dozen listed species; it is impossible, Plaintiff argues, for an action to jeopardize the continued existence of many listed species while not impacting the environment in any significant way. With respect to fish, Plaintiff points to several places in the Fish and Wildlife Service and NOAA Fisheries Biological Opinions discussing the potential harmful effects on fish and water quality resulting from the introduction of fire retardant into waterways. The Fish and Wildlife Service discusses the effects in its Biological Opinion at USFS AR 339 at 32 (stating that “accidental delivery into a waterway has the highest potential for adverse effects to aquatic organisms,” and citing a study’s finding that “an accidental spill in a waterway would lead to substantial mortality”); USFS AR 339 at 36 (“Entry of ammonia into waterways containing [immobile invertebrates such as mussels] could have a severe effect.”); and USFS AR 339 at 89 (“Direct mortality of listed fish is anticipated, as well as sub-lethal physiological responses that effect survival (harass). The fire retardants are likely to kill macroinvertebrate food items ... resulting in significant habitat degradation that affects breeding and foraging (harm).”); USFS AR 339 at 107 (“The hardest to measure and potentially most significant effects of fire retardant could be long-term, sub-lethal impacts to fish.”). The Biological Opinion from NOAA Fisheries contains similar statements at USFS AR 1075 at 127 (discussing a study’s finding that “fire retardant misapplications have biologically significant effects to fish communities”); and USFS AR 1075 at 132 (“The hardest to measure, and potentially most significant effects of fire retardant misapplication could be the sub-lethal impacts to fish and the duration of the unpacts to critical habitat.”). In discussing the heightened vulnerability of fish during certain life stages, the Forest Service stated in its Biological Evaluation, “Accidental introduction of these chemicals into an aquatic system during a salmonid swim-up period could cause significant mortality and be catastrophic to a local population, especially if that population were threatened or endangered[.]” USFS AR 222 at 9. Plaintiff has identified similar language in the record indicating that the proposal is likely to harm certain plant species. Among those species are the Mariposa Pussy-Paws (C. pulchellum), for which the Fish and Wildlife Service’s Biological Opinion issued a jeopardy finding, stating, “The proposed action would lead to a substantial reduction in the number of C. pulchellum, a substantial reduction in range by removing this site as suitable habitat for C. pulchellum, and it would preclude the recovery of C. pulchellum.” USFS AR 339 at 44. Similar conclusions appear in the Fish and Wildlife Service’s Biological Opinion at USFS AR 339 at 45 (stating that a single retardant drop on the Slender-horned Spineflower could cause a nonnative species invasion that “would represent an appreciable reduction in the distribution of this species”); USFS AR 339 at 46 (a retardant drop on the California Dandelion could result in a non-native species invasion that is likely to “adversely modify or destroy critical habitat”); USFS AR at 47 (“a fire retardant drop that promotes non-native plant species could result in significant effects” on Munz’s Onion); USFS AR 339 at 48-49 (same risk of significant effects from non-native invasion to seven listed plant species). The Fish and Wildlife Service concluded that the proposed action was likely to jeopardize each of these plant species. USFS AR 339 at 39^41. Defendants accuse the Plaintiff of “cherry picking]” information in the record to support its position, a practice the court in Native Ecosystems found insufficient to demonstrate the type of significant impact that requires an environmental impact statement. 428 F.3d at 1240. Defendants say the mere suggestion in the record of some negative effects on listed species is not evidence of a significant impact, citing EPIC, 451 F.3d at 1010. In EPIC the court explained that NEPA directs an agency to “consider the degree of adverse effect on a species, not the impact on individuals of that species.” Id. The Defendants’ reliance on EPIC and Native Ecosystems ignores a critical distinction, which is that the biological opinions in this case contain jeopardy findings for many fish and plant species. This is not a case like EPIC, in which the Fish and Wildlife Service made a “no jeopardy” finding, 451 F.3d at 1012; nor is this case like Native Ecosystems, which did not involve any species listed under the ESA and therefore has no application to a claim under § 1508.27(b)(9). 428 F.3d at 1236 n. 4. Here, the ESA agencies found that jeopardy and/or adverse modification are likely to occur, and then issued reasonable and prudent alternatives that will, in the judgment of the agencies, alleviate those harms. Thus, in the context of the particular factor invoked by the Plaintiff, the question for the Court is whether the Forest Service has provided a convincing statement of reasons that adequately explains its finding that the reasonable and prudent alternatives will prevent the action from having a significant adverse impact on listed species or critical habitat. To the Plaintiff, the ESA agencies’ findings that the proposed action is likely to jeopardize listed fish and plants leave the Forest Service no discretion; an environmental impact statement must be prepared. The Defendants disagree, arguing that the ESA agencies’ jeopardy/adverse modification findings do not compel preparation of an environmental impact statement because (1) the likelihood of a drop in a waterway is very low and (2) the Forest Service incorporated the reasonable and prudent alternatives required by the ESA agencies, which are intended to alleviate the risk of jeopardy or adverse modification. The Forest Service’s explanation for its decision not to prepare an environmental impact statement is contained in the Decision Notice and Finding of No Significant Impact, USFS AR 341. With regard to the effects on listed species, the Forest Service stated: The decision should not jeopardize the continued existence of any endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species act of 1973. The aerial application of fire retardant will conform to the [2000 Guidelines] and the reasonable and prudent alternatives from [the ESA agencies’] biological opinions. The [ESA agencies’] biological opinions affirm that by incorporating the reasonable and prudent alternatives into the final decision, the alternative action will avoid the likelihood of jeopardizing the continued existence of listed species or destroying or adversely modifying critical habitat. USFS AR 341 at 12. The Decision Notice and Finding of No Significant Impact also contains a recitation of the reasonable and prudent alternatives imposed by the ESA agencies and incorporated into the decision. Id. at 4-9. In the Environmental Assessment, the Forest Service explained that the likelihood of fire retardant affecting aquatic species is “small” due to “the low frequency of 14 accidents over 8 years and approximately 128,000 aerial drops.” USFS AR 337 at 23. It is not difficult to discern the Forest Service’s reasoning; the agency relies almost entirely on the analyses in the biological opinions and the expected success of the reasonable and prudent alternatives in concluding that the proposed action is not likely to have a significant impact on listed species. The adoption of mitigation measures can in some instances justify an agency’s decision not to prepare an environmental impact statement, but only where the measures “constitute an adequate buffer against the negative impacts that may result from the authorized activity.” National Parks, 241 F.3d at 733-734. The reasonable prudent alternatives issued in this case do not provide the requisite buffer. Both ESA agencies issued mitigation measures that place no meaningful restrictions on the decisions of incident commanders, despite the agencies’ conclusions that such decisions involving fire retardant can have disastrous effects on listed species. See USFS AR 339 at 120 (Fish and Wildlife Service making clear that its Biological Opinion “in no way limits the actions that an incident commander deems necessary to undertake during a fire emergency response”); USFS AR 1075 at 141-143 (listing of the provisions of NOAA Fisheries’ reasonable prudent alternative contains no restrictions on retardant use). By failing to impose any binding restrictions on the use of fire retardant where it may affect listed species or critical habitat, the ESA agencies have failed to alleviate the risk of jeopardy to listed species. It therefore remains likely that the action will “adversely affect an endangered or threatened species or its habitat that has been determined to be critical,” 40 C.F.R. § 1508.27(b)(9), and the adverse effect will be of such a severe degree that jeopardy or adverse modification is likely to occur for some species. These are significant impacts that require the preparation of an environmental impact statement, and the Forest Service’s failure to prepare one under these circumstances is a violation of NEPA. The Plaintiff is entitled to summary judgment on Count I, the NEPA claim, because the jeopardy findings of the ESA agencies constitute significant impacts that are not alleviated by the reasonable and prudent alternative, requiring the preparation of an environmental impact statement. The Forest Service’s finding on this issue is set aside and the Environmental Assessment is reminded to the agency for further proceedings consistent with the law. C. ESA (Counts II-VI) 1. Legal Standard Section 7(a)(2) of the Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service or the NOAA Fisheries Service to ensure that any action authorized, funded or carried out by the agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in destruction or adverse modification of critical habitat for such species. 16 U.S.C. § 1536(a)(2). The statute and its implementing regulations establish a framework for assessing the impacts of a proposed activity on listed species. 16 U.S.C. § 1536; 50 C.F.R. Part 402. An agency proposing an action must first