ForestKeeper v. La Price (270 F. Supp. 3d 1182, 2017)

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT; PLAINTIFF’S MOTION TO ADMIT EXTRA-RECORD EVIDENCE; DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S EXTRA-RECORD EVIDENCE; AND PLAINTIFF’S MOTION TO STRIKE THE DECLARATION OF JEFFREY R. CORDES

- Anthony W. Ishii, SENIOR DISTRICT JUDGE

This is a National Environmental Policy Act (“NEPA”) and National Forest Management Act (“NFMA”) case filed by Plaintiff Sequoia Forest Keeper (“SF Keeper” or “Plaintiff’) against the United States Forest Service (“Forest Service”) and various Forest Service employees in their official capacities (collectively, “Defendants”) to halt the Frog Timber sale Project (“Frog Project” or “Frog”). Sierra Forest Products (“SF Products”), the corporation with the contract to carry out the Frog Project, is an Intervenor-Defendant. SF Keeper has brought a civil action for declaratory and injunctive relief, which stems from Defendants’ ongoing actions related to the Frog Project, permitting commercial logging and other activities in what SF Keeper maintains is core habitat for the Pacific Fisher (“Fisher”) in the Greenhorn Mountains of the Sequoia National Forest. Fishers are a mammalian species that have been classified as a “sensitive species.”

SF Keeper maintains, inter alia, that the Forest Service has failed to adequately analyze the impacts of the planned logging practices on the Fisher. SF Keeper argues that Defendants’ Supplemental Information Report (“SIR”) dated April 12, 2017 is insufficient and that at a minimum, Defendants should have prepared a rigorous supplement to the 2013 Environmental Assessment or prepared an Environmental Impact Statement (“EIS”) due to “significant changes” since 2013. Defendants maintain, inter alia, that the SIR is sufficient and that the Frog Project would have only minimal, short-term effects on individual Fishers, if any, and will ensure that habitat in the area can better withstand drought, fires, and insects in the future. This in turn would benefit the Fishers in the long term by protecting their habitat from potentially extreme destruction on a vast scale. Defendants, SF Products and SF Keeper have filed cross motions for summary judgment. For the reasons that follow, Defendants’ and SF Products’ motions for summary judgment will be granted.

I. CROSS-MOTIONS FOR SUMMARY JUDGMENT

PROCEDURAL BACKGROUND

The complaint commencing this action was filed on June 1, 2016, and sought a declaration that Defendants had violated NEPA with respect to. both the Frog- and Ranchería Projects, that the Forest Service be required to “supplement their NEPA analyses and submit Environmental Impact Statements for both Projects and that the Forest Service be enjoined from further activity until the EIS’s are complete. Doc. No. 1. On July 7, 2016, SF Keeper filed a motion for preliminary injunction, permanent injunction' and summary judgment. Doc. No. 8. On July 31, 2016, SF Keeper filed a notice of withdrawal of its motion for preliminary injunction in light of the Forest Service’s decision to halt the Projects. Doc. No. 17. The motions for permanent injunction and partial summary judgment remained. On September 22, 2016, this Court denied SF Keeper’s motion for partial summary judgment and injunctive relief without prejudice. Doc. No. 24. On January 5, 2017, this Court granted SF Products’ motion to intervene.

On April 20, 2017, Defendants filed a notice of determination to prepare a supplemental environmental analysis of the Ranchería Forest Restoration Project. Doc. No. 42. Thereafter, on May 9, 2017, SF Keeper filed a First Amended Complaint dropping the Ranchería Project and focusing only on the Frog Project. Doc. No. 46. SF Keeper seeks a declaration that Defendants, have violated NEPA and the NFMA, and an order that Defendants must supplement the Frog NEPA analysis in a supplemental Environmental Assessment or an EIS before they can authorize any further implementation of the Frog Project. Id. The parties then filed cross-motions for summary judgment, which are now before this Court.

FACTUAL BACKGROUND

1. The Fisher and its Habitat

The Fisher is a forest-dwelling mammal in a family that includes weasels, mink, martens, and otters. They are about the size of a large house-cat and are light brown to dark blackish-brown. 74' Fed. Reg. 22710, 22714 (April 18, 2016). PSMFO 1. Fisher occurrence is consistently associated with low- to mid-elevation coniferous and mixed conifer and hardwood forests with characteristics of late-successional forests (large-diameter trees, coarse downed wood, and singular features of large snags, tree cavities, or deformed trees). Id. PSMFO 2. Fishers are associated with moderate to dense forest canopy. The most consistent predictor of Fisher occurrence at large . spatial scales was moderate to high amounts of contiguous canopy cover rather than specific habitat type. Research has suggested that inadequate canopy cover limits Fisher distribution across forest-types and ecore-gions. F00282. PSUMF 3. The greatest risk to Fisher habitat loss comes from uncharacteristically [severe] wildfires. SF_16; F_227. DSUMF 169.

2.Fisher Population Numbers and Sensitive Species Designation

The Southern Sierra Nevada native population of Fishers is small and is geographically separated from the remainder of the Fishers in the west coast States. 74 Fed. Reg. at 22716. PSMFO 4. Estimates for the Southern Sierra -Nevada population range from a low of 100 to a high of 500 individuals, with a recent 2016 estimate of 256 female Fishers based on available habitat, and other estimates from 2011 of 125-250 adult Fishers to fewer than 300 adult Fishers and 276-359 Fishers, including juveniles and adults. Id. PSMFO 5. Fishers have been listed by the Forest Service as a sensitive species since 1984. F00270. PSUMF 8. .

• The Forest Service defines “sensitive species” as those plant and animal species identified by a Regional Forester for which population viability is a concern as evidenced by significant current or predicted downward trend in numbers or density. SF1508 (Forest Service Manual 2670.5) PSUMF 9. In 2004, the U.S. Fish and Wildlife Service (“US Fish and Wildlife Service” or “USFWS”) determined that Fishers warranted federal protection under the Endangered Species Act (“ESA”). 69 Fed. Reg. 18,770 (Apr. 3, 2004), and ten years later proposed a rule to list Fishers as “threatened” under the ESA. 79 Fed. Reg. 60,419 (Oct. 7, 2014). PSUMF 10. Recently, US Fish and Wildlife Service withdrew its listing proposal. 81 Fed. Reg. 22,710 (Apr. 18, 2016). PSUMF 11.

3. Timber Project Geographic Locations

The Frog and Ranchería Project areas are located in Tulare and Kern Counties in the Greenhorn Mountains of the Sequoia National Forest, just north and south of the community of Alta Sierra, California. F00033;' SF0047 (showing the projects in relationship, to other Forest Service projects -in. the Greenhorn Mountains). PSUMF 6. The “Core 2” area for Fisher conservation, which includes the Greenhorn Mountains, has the highest recorded Fisher occupancy rates, highest predicted average habitat quality, and highest genetic diversity of Fishers in the Southern Sierra.Nevada Assessment Area. SF0158. PSUMF 7.

4, Proposed Beneftts of the Frog Project

When trees grow closely together, they compete for limited water, sunlight, and nutrients, which causes reduced growth and canopy' development. F_40, 75, 155. DSUMF 61. As initially' proposed, Frog would thin trees on 1,620 acres of the Sequoia National Forest in an area 26 miles southeast of Porterville, .California, and far outside of the Giant Sequoia National Monument. F_9. DSMFO 62. The Frog project area contains dense, overcrowded trees characterized by stagnant growth, low diversity, high potential mortality from insects and drought, and high fire risk.. F_34. DSMFO 63. The Forest Service has determined that current fuel loads in the project area pose a high risk of catastrophic loss of property, natural resources, and possibly even .life. SF_21. DSUMF 167. By implementing Frog, surface fuels would decrease 40 to 80 percent, thereby limiting the size and severity of wildfires in the project area. SF_21. DSUMF 168. By thinning stands in the Frog project area, the Forest Service seeks to promote the growth of healthy, diverse trees and complex forest structures that would benefit wildlife and withstand insects, drought, and fires. The Forest Service also seeks to remove hazard trees that pose a risk to public safety along roads, trails, and other improvements in the area. F-39-40. DSUMF 64.

5. Initial Approval of the Frog Project by the Forest Service

Pursuant to NEPA, 42 U.S.C. § 4332, the Forest Service analyzed Frog in an Environmental Assessment, responded to public comments, and approved the project in 2001 with a Finding of No Significant Impact (“FONSI”). F_9, 45. DSUMF 65. The Forest Service issued its original decision to proceed with the Frog Project on February 5, 2001, -supported by the 2000 Frog Environmental Assessment. F02402. PSUMF 13. The McNally Fire burned across 150,000 acres, including portions of the project area. Frog was. thus modified to include salvage harvest on-190 acres of fire-damaged trees. In addition, because the McNally Fire changed the distribution of spotted owl, 180 acres of Frog were set aside as a spotted owl Protected Activity Center. F_9-10, F_35-36. DSUMF 66. Salvage harvest operations on Frog were completed in 2003. F_10. DSUMF 67.

6. Overview of Sierra Forest Products’ Logging Work on the Frog Project

[Intervenor-Defendant] SF Products holds the Frog Thinning Timber Sale contract, which was originally executed in 2001. First Decl. of Larry Duysen ¶ 19 (Dkt. .12. First Duysen Deck). SF Products was awarded the Frog Thinning contract in October 2001, shortly after initial project development. First Duysen Deck ¶ 23. DISUMF 1. SF Products began implementing the contract, harvesting on 190 acres by 2003. First Duysen Deck ¶ 19.

One hundred ninety acres were logged after a fire, which left 1,260 acres available in timber sale units (F00079), including 855 acres of. Fisher habitat. F00315. The Frog Timber Sale contract, held by [SF Products], includes 780 acres, some of which have already been logged. SF1549; see also SF1553 (map, showing and listing 603 cut and 177 un-cut acres, including 66 acres of uncut Fisher habitat). Much of the Frog Project has not been cut, advertised, or sold. Id. (see units labeled as “Frog II”). PSUMF 18. The Revisions 1.

Work stopped in October 2006 due to an injunction. Id. DISUMF 2. SF Products resumed operations in 2015. Second Du-ysen Decl. ¶ 4. As of the end of the 2015 operating season, SF Products had completed over 83% of the harvest and only 157 acres remain to be harvested. Id. DISUMF 3. SF Products intends to resume the Frog Thinning work [in late September 2017], when restrictions relating to Fisher are lifted. Second Duysen Decl. ¶ 4. SF Products plans to employ about eight loggers to conduct the harvest, along with three to four truck drivers, and will use the material to keep its 120 mill workers on the job. Id. ¶7. DISMFO 5. In addition to the Frog Thinning contract,- another contract, “Frog II,” will be sold to implement the Frog Project. Second Du-ysen Decl. ¶ 8. SF Products expects to bid on Frog II and is the likely purchaser of the second sale on the project. Id. ¶¶ 8, 23. DISMFO 6. SF Products’s wood supply is highly tenuous. Second Duysen Decl. ¶ 10. A halt to the project that could result from vacatur threatens the ability of the mill to keep operating at current levels and could result in layoffs or payroll reductions. Id. The mill is important to the economy of Tulare County. First Duysen Decl. ¶ 7. DISMFO 7.

7. Litigation Regarding the Fisher

On January 27, 2005, a group of Plaintiffs, including SF Keeper, filed suit against various projects that eventually included the Frog Project. See Sierra Club v. Bosworth, 465 F.Supp.2d 931, 935 (Aug. 25, 2006). PSUMF 14. In 2006, the U.S. District Court for the Northern District of California enjoined further activity on the Frog project. Of particular concern was a finding by the Fish and Wildlife Service that the Fisher may meet the criteria for listing under the Endangered Species Act. F_10; Sierra Club v. Bosworth, N.D. Cal. Case No. 05-397 CRB, ECF No. 210, at 13. DSUMF 68. Several conservation groups concerned with Fisher protection have filed suit to challenge the US Fish and Wildlife Service’s decision not to list the Fisher as a threatened or endangered species. That decision has been challenged in Federal court. See Center for Biological Diversity v. U.S. Fish and Wildlife Service, No. 3:16-CV-06040, 2016 WL 6138102 (N.D. Cal., Oct. 19, 2016) (Complaint). PSUMF 12.

On August 25, 2006, Judge Breyer of United States District Court for the Northern District of California issued an order that permanently enjoined the several timber sale projects in that case, which included the Frog Project, the adjacent Ice Tractor, Ice Helicopter, Saddle, and White River projects, “until a satisfactory supplemental NEPA review has been conducted concerning the recent and significant new information on the Pacific Fisher.” Sierra Club, 465 F.Supp.2d at 942. PSUMF 15.

8. 2012 Biological Evaluation

The Forest Service convened an interdisciplinary team to complete an extensive review of scientific studies and literature and assess potential effects of Frog on the Fisher, culminating in a 2012 Biological Evaluation that spanned 100 pages. FJ254-58. DSMFO 69. The analysis in Frog’s 2012 Fisher Biological Evaluation was incorporated into a revised Environmental Assessment and several project design features to minimize impacts on Fisher. SF_17; F_219, 262, 274, 295-96, 304, 309, 336, 623. DSUMF 70. According to Frog’s 2012 Biological Evaluation for the Fisher, the baseline vegetation for areas outside of. the Frog project units—including most areas in the seventh order watersheds overlapping the Frog project—used an Existing Vegetation (or “EVEG”) layer from 2001 to 2003. F_269, 297, 330; Cordes ¶ 24 & n.5. DSMFO 128.

The Forest Service issued a Finding of No Significant Impact in 2013 after finding that Frog would not result in a loss of viability or contribute to factors that lead to federal protection of the Fisher under the Endangered Species Act (“ESA”) and involved only a light to moderate change in Fisher habitat on a small proportion of available habitat. F_5, 45. DSUMF 76. The Forest Service also found that Frog provided long-term benefits to the Fisher by reducing the risk of severe wildfires, which could permanently destroy Fisher habitat, and by promoting the growth and re-growth of understory vegetation and increasing available rest sites, tree size, and layered groups of trees. F_5-6, 337. DSUMF 77.

9. 2013 Lift of the Injunction on the Frog Project

In response to the court’s order, on May 14, 2013, the Forest Service issued a letter and four documents, which are relevant to the issues in this case:' (1) A letter affirming the February 5, 2001, Decision Notice for the Frog Project Area Analysis Environmental Assessment (F00001); (2) An updated Finding of No Significant Impact for Revision 1 (SF00009); (3) Revision 1 to the Environmental Assessment for the 2000 Frog Project Area Analysis (F00024); and (4) A Supplemental Biological Evaluation (BE) for Fisher & Maps—Appendix A to Rev. 1 of the Environmental Assessment (F00251). PSUMF 16.

Shortly thereafter, on May 17, 2013, the Forest Service asked Judge Breyer to lift the injunction; and in response, on May 31, 2013, the plaintiffs filed a “Statement of Non-Opposition to Defendants’ Motion for Relief from Judgment,” in which they included the following statement:

While this may respond to the narrow scope of Plaintiffs’ procedural claim regarding significant new information, concerns remain about the substantive impacts of the Frog Project to Pacific Fishers, and the ongoing threats to the population .viability of this rare species^ as a result of U.S. Forest Service commercial logging projects that unnecessarily remove mature. trees- and substantially reduce forest canopy cover in occupied Pacific Fisher areas. Plaintiffs are also concerned about apparent inaccuracies in the fire effects analysis in the revised Frog, Project [Environmental Assessment], specifically, the [Environmental Assessttent’s] substantial overstatement of expected tree mortality in a wildland fire under current stand, conditions. Plaintiffs will continue to review the record and other supporting documentation for the Frog Project, and any other future projects, and hereby reserve the right to file an amended complaint challenging Defendants’ decision to affirm the 2001 Frog Project Decision Notice and Finding of No Significant Impact.

SF1545, PSUMF 17. The 2006 injunction on Frog was lifted on July 13, 2013, Sierra Club v. Bosworth, N.D. Cal. Case No. 05-397 CRB, ECF Nos. 251, 253 DSUMF 78.

10. SF Keeper’s 2014-2016 Correspondence with the Forest Supervisor

Ón March 27, 2014, SF Keeper and others sent a letter to Sequoia National Forest Supervisor Kevin Elliott asking,the Forest .Service to re-analyze the Frog, Ranchería, and other projects based on three new studies not cited in each projects’ respective NEPA analyses. SF1371. PSUMF 45. In a letter dated May 14, 2014, Forest Supervisor Kevin Elliott responded, and stated .that “I conclude that a revision to our environmental documents for the current and past projects listed in your letter is not necessary.” SF1360. PSUMF 46. On January 11, 2016, SF Keeper and others sent a second letter to Forest Supervisor Kevin Elliott, requesting that the Forest Service re-analyze the Frog and Ranchería Projects and supple^ ment their NEPA analyses based on new scientific information not cited in the projects’ respective NEPA analyses. SF1341. PSMFO 47. In a letter, dated January 22, 2016, Forest Supervisor Kevin Elliott acknowledges Receipt of the January 11, 2016 letter, stating that “I may not get a response to you by the end of February, but I will get a response to you.” SF1359. PSUMF 48. .

11. The Fish and Wildlife Service Withdrew Its Request to List Fishers as a Threatened Species in April 2016

The Fish and Wildlife Service withdrew its proposal to list the Fisher as a threatened species after receiving further data from peer reviewers and the public and completing further analysis. 81 Fed. Reg. 22,710, 22,721 (Apr. 18, 2016). DSUMF 80. The Fish and Wildlife Service found no “indication that Fishers or their habitat in the west coast States are responding negatively to the' stressors to which they are exposed to a significant degree at either the population or rangewide scales, nor are they likely to do so in the foreseeable future.” 81 Fed. Reg. 22,710, 22,710 (Apr. 18, 2016). DSUMF 81. The Fish and Wildlife Service found that, while individual Fishers might possibly be affected to some degree by thinning and other forest-management efforts, there is no evidence, such activities “are causing Fisher to decline across its. range currently, or that suggests an expected decline across its range in the future.” 81 Fed. Reg. 22,710, 22,721 (Apr. 18, 2016). DSUMF 82.

12. SF. Keeper’s Suit to Compel Supplemental NEPA Review of the Frog Project and Suspension of Frog by the Forest Service

On June 1, 2016, SF Keeper sued the Forest Service to compel supplemental NEPA review of the Frog project based on two Fisher studies and recent tree mortality. One month later, SF Keeper moved for partial summary judgment and a permanent injunction. Dkt. # 8. PSUMF 20. Shortly thereafter, the Forest Service elected to suspend Frog to collect and analyze updated tree-mortality information. EOF Nos. 1, 8, 17 & 18 at 6-7. DSUMF 83.

13. Tree Mortality

In July of 2016, the Forest Service acknowledged the massive ’die-off of trees resulting from the drought in the Southern Sierras, reporting that 66 million trees had succumbed as a result. SF0093. PSUMF 31. “On the Sequoia National Forest,- an estimated 7.2 million conifer trees died over an area of 224,000 acres in the period between October 2015 and May 2016 alone.” SF0063. PSUMF 32. “This historic tree mortality is creating rapidly changing landscape conditions on the Sequoia National Forest, and updated data on existing vegetation in the area is needed to fully understand the impacts the die-off is having on Fisher habitat.” SF0063. PSUMF 33, In August of 2016, the human-caused Cedar Fire began and eventually burned across more than 29,000 acres of the Greenhorn Mountains just south of the Frog Project. See SF0010, SF0047 (map). PSUMF 34. The Cedar Fire burned to the south of the seventh order watersheds overlapping the Frog project. SF_43, 47. DSUMF 127. In November of 2016, the Forest Service reported that an additional 36 million trees had died since May of 2016, for a total of over 102 million, with most located the southern and central Sierra Nevada region. SF1287. PSMFO 35.

“Trees will continue to die throughout California despite the winter 2016/2017 precipitation. Typically, it takes one to three years after an above-normal precipitation year before trees regain their natural defenses against bark beetles.” SF0048. PSUMF 36.. Forest Service “scientists expect to see continued elevated levels of tree mortality during 2017 in dense forest stands, stands impacted by root diseases or other stress agents and in areas with higher levels of bark beetle activity.” SF1287. PSUMF 37. Further, a NASA study found that “Tree mortality was higher than expected for large diameter trees, suggesting an acceleration of old-tree mortality. ..” SF1576. PSMFO 38. A recent Forest Service map provides a dramatic illustration of the progression of tree mortality in the Southern Sierra Nevada from 2014 to 2016. SF1580. PSUMF 39. Frog’s Environmental Assessment states that the latest forest stand data for the Frog Project area was collected in 2010. F00062. PSUMF 19.

“[T]ree mortality has not been uniform across the Sierra Nevada.” SF-1328. DSMFO 85. “A great deal, of scientific literature and professional expertise indicates that active forest management.. .is necessary to minimize the extent of drought- and beetle-induced tree mortality and also to mitigate the adverse impacts from mortality that [have] already occurred.” SF_1329. DSMFO.86. “Given the serious risks associated with inaction and lack of forest management, [the Forest Service] must simultaneously study and manage the land. SF_1329. DSMFO 87.

In August 2016, SF Keeper sent letters to Forest Supervisors in the Sierra Nevada asserting that recent tree mortality required halting numerous forest-management projects and 'withdrawing their supporting NEPA documents. The Regional Forester for the Pacific Southwest Region responded on August 30, 2016, stating that SF Keeper’s “sweeping and drastic” request was not appropriate as a matter of law or policy. SF_1331, 1329. DSUMF 84.

14. Forest Service Collected Images in Mid-2016 Which Show Habitat Relevant to Fishers

To assess Frog in light of recent tree mortality, the Forest Service collected high resolution aerial images of the Sequoia National Forest in mid-July 2016. Using this data, the Forest Service updated the agency’s geographic-information-system map of vegetation (termed “Existing Vegetation”, or “EVEG”), which, among other things, shows California Wildlife Habitat Relationship Program (“CWHR”) habitat. SF_11, 19, 47a (ECF No. 41-4); Cordes Decl. ¶¶8-9. DSMFO 90. CWHR includes detailed information about habitat components important to Fisher, such as tree species, size, and canopy density. SF_47a (ECF No. 41-4), F_274; Cordes Decl. ¶ 9. DSMFO 91, The complex and labor-intensive process of converting' the July 2016 images into EVEG took several months. ECF No. 29, at 2; SF_1298; Cordes Decl. ¶¶ 8, 16 & n.4; U.S. Forest Serv., Existing Vegetation Classification, Mapping and Inventory Technical Guide Version 2.0, at 3-13 (June 2016) (detailing the EVEG creation process), available at https://www.fs.fed.us/emc/rig/documents/ protocols/vegClassMapInv/EVTG_v2-0_ June2015.pdf. (last visited May 26, 2017). DSMFO 92.

Aerial Detection Surveys tally the number of dead trees observed during flights over millions of acres across the entire state of California. SF_1287; Cordes Decl. ¶¶ 16-17; U.S. Forest Serv., Aerial Detection Survey Methodology, https://www.fs. usda.gov/detail/r5/forest-grasslandhealth/? cid=stelprdb5429568 (last visited May 26, 2017). DSMFO 129. Aerial Detection Surveys occurred in different regions across California from May to September 2016. Cordes Decl. ¶¶ 11-15 & Ex. 2-3; U.S. Forest Serv.,' Aerial Survey 2016, at 2, available • at https://www.fs.usda.gov/ InterneVFSE_DOCUMENTS/fseprd 539536.pdf (last visited May 26, 2017). DSMFO 130, The Forest Service used satellite imagery to confirm that any difference in vegetation in the project area between July and October 2016 was de minimis. SF_47a (ECF No. 41-4); Cordes Decl. ¶ 8.-DSMFO 131.

15. SF Keeper’s Motions Denied in September 2016

This Court denied SF Keeper’s motions for partial summary judgment and a permanent injunction without prejudice on September 21, 2016, finding that SF Keeper “ha[d] not demonstrated either success on the merits or a substantial likelihood 'of success on the merits under the facts- of the case as they now stand.” This Court also held that the Forest Service already gave adequate consideration to the study authored by James D. Garner, Selection of Distributed Habitat, by Fishers (Martes Pennanti) in the Sierra National Forest (master’s thesis, May 2013). ECF No. 24, at 14-16. DSUMF 88.. In denying SF Keeper’s motions, this Court further noted that “the sort of controversy that appears to underlie, this action—a controversy typified by differences in opinion on the values of mutually. recognized long and short term goals and risks—is not proper subject matter for determination by a district court in an action under NEPA.” ECF No. 24, at 16. DSUMF 89.

16. Conservation Biology Institute Analysis in Late 2016-Early 2017

In December- of 2016, the Forest Service told the parties and this Court that it had completed its collection and processing of tree-mortality data and transmitted the data to its contractor for analysis. Suppl. JSR- at 4 (Dkt #29). PSUMF 40. The Forest Service contracted with its Fisher experts, the Conservation Biology Institute (“CBI”), to further analyze and .process the data to determine current Fisher habitat suitability levels and distribution in the Sequoia National Forest, with an anticipated completion date of January 31» 2017. Id. PSUMF -41. In December 2016, the Forest Service provided the new EVEG layer to CBI to update a separate map of the southern Sierra Nevada (termed a “management grid”) published in the 2016 Fisher Strategy, SF_1298. DSUMF 93. The Fisher Strategy’s management grid system divides the landscape into a grid of hexagons, each of which covers 2,660 acres and is classified as suitable (green), potentially suitable (yellow), or unsuitable (red). SF_171, 176. DSUMF 94. In the Fisher Strategy’s management grid system, describing a hexagon as “suitable” merely reflects a “statistical characterization” as to whether the area within the hexagon is “representative of areas used... by breeding females.” It is a “proxy., .at coarse, landscape scales” and “is not accurate at fine scales.” SF_7, 174 n.12. DSUMF 96.

On February 27, 2017, and in a subsequent March 1, 2017, addendum, SF Keeper submitted an additional letter to the Forest Service, which requested a response to additional new circumstances and information. SF1278 & SF1265. PSUMF 49.

After CBI ran the Forest Service’s updated EVEG information through its model for the, management grid system, draft results showed many green hexagons were now yellow. SF-1294-95. DSUMF 96. After CBI ran the Forest Service’s updated EVEG information through its model for the management grid system, CBI suggested that the model’s definition of “suitability” may be too narrow, and further concluded that its method for classifying hexagons needed further refinement to account for data from different time periods. CBI thus advised against using hexagon-suitability classes or numerical targets for green hexagons in the analysis of forest-management projects. SF_1288, 1298, 55. DSMFO 97.

In March 2017, CBI issued interim guidance for applying the Fisher Strategy’s principles, goals, and objectives to forest-management projects. SF_54. DSUMF 98. CBI completed its analysis and determined that 92.5% (49/58) of suitable hexagons, each representing the size of an average female Fisher territory, had become unsuitable as Fisher habitat. SF1292. PSMFO 42. But CBI also found significant problems with the datasets it used for its Fisher habitat suitability model, and cautioned that the results should not be applied until vegetation data could be updated. SF1298. PSUMF 43. CBI also cautioned: “how Fishers are actually responding to these recent changes in forest structure is currently unknown, as. field data from Fishers using such a post-mortality landscape are as of yet unavailable.” Id. PSUMF 44.

In CBI’s March 2017 guidance, CBI advised-that, notwithstanding ongoing research and the reality that updated vegetation data inevitably lags project analysis, “increasing the resilience of the remaining patches of large living conifers will- be important for the long-term persistence of the Fisher population.” SF_54, 56. DSMFO 99, CBI’s March 2017 guidance outlined an approach for evaluating whether projects are likely to enhance forest health while avoiding adverse impacts to Fishers. SF_57. DSMFO 100. CBI’s March 2017 guidance also outlined an approach for evaluating projects on three spatial scales—the project (stand) scale, the Fisher home range (hexagon) scale, and the Fisher population (Core) scale. SF-57-59. DSUMF 101. In CBI’s parlance, a “hexagon” or “cell” or “home range” is the approximate size of a female Fisher breeding territory, which is about 4 square miles or 2,560 acres. SF-171. DSUMF 102. The “seventh order watershed” scale is roughly equivalent to the size of a Fisher home range or hexagon. SF_9, 27. DSMFO 103.

In CBI’s parlance, a “Core” is a contiguous area of Fisher habitat in which Fishers can establish home ranges and comingle as a population. SF-144. DSUMF 104. Frog is located in “Core Area 2,” which covers 213,321 acres. SF_31. DSMFO 105. CBI’s March 2017 guidance outlined an approach for evaluating projects that considered potential impacts to “moderate and high-capability CWHR 2.1 habitat,” as well as “high-value reproductive habitat.” SF-57-59. DSMFO 106. High-value reproductive habitat (or “CBI habitat”) is largely a subset of CWHR 2.1 related to areas used by breeding female Fishers. SF-56-57, 182, 193, 247, 47a (ECF No. 41-4). DSUMF 107. CBI’s March 2017 guidance outlined an approach for evaluating projects that considered ground disturbance in affected hexagons using recommended Fisher-tolerance thresholds adapted from William J. Zielinski et al., An assessment of Fisher (Pekania pennanti) tolerance to forest management intensity on the landscape, 310 FOREST ECOL. & MGMT 821 (Oct. 10, 2013). SF_59, 56. DSUMF 108.

17. Forest Service’s 2017 Announcement of Delaying the Forest Plan Revisions

On March 20, 2017, the Forest Service announced that it would delay the schedule of Forest Plan Revisions for the Sequoia and Sierra National Forest to “consider changed vegetation conditions” related to the extraordinary die-off of trees in the Southern Sierras and issue a new supplemental Draft Environmental Impact Statement in early 2018. 2nd Voss Dec., Exhibit A. PSUMF 50.

18. Southern Sierra Fisher Conservation Strategy’s March 2017Amendment

On or about March 28, 2017, the authors of the Southern Sierra Fisher Conservation Strategy (also known as the Fisher Technical Team) issued an interim amendment to the Fisher Conservation Strategy, titled Changed Circumstances and Implementation of the Southern Sierra Nevada Fisher Conservation Strategy Note from the Authors, March 2017. SF0054. PSMFO 51. amendment addresses application of the conservation strategy to project implementation, considering the substantial changes to structural components of Fisher habitat in light of the massive die-off of trees in the Southern Sierras. SF0054-59. PSMFO 52.

The Fisher Technical Team acknowledged a number of concerns related to the recent changed circumstances related to the massive die-off of trees from the drought:

The habitat analyses, models, and recommendations in the Strategy were based on vegetation conditions during its preparation, as reflected in datasets updated mostly as of 2012. However, sinee then, dramatic changes have occurred in Sierra Nevada mixed conifer forests due to drought and extraordinary tree mortality. The Strategy could not have anticipated nor account for such changes. SF0054.

PSUMF 53. The Fisher Technical Team also cautioned:

There is no available research or direct observations concerning how massive changes in tree cover due to drought and insect mortality, including death in even' the largest tree classes, may affect Fisher habitat use or population processes. There is also no direct evidence indicating how Fishers will respond to management actions being implemented by land managers in response to this mortality event. SF0054.'

PSUMF 54.

Citing fundamental weaknesses in the combination of datasets used to support the hexagon management grid system used by the Forest Service to track Fisher habitat suitability at the landscape, level, the Fisher Technical Team stated that the landscape model was unreliable:

Until these .issues are rectified, we do not recommend applying the original management grid system to evaluate the changes to unsuitable, potentially suitable, and suitable cells at this time. We also do not recommend applying the conservation targets, nor the Strategy description of target cells, at this time. SF0055.

PSMFO 55. According to the Fisher Conservation Strategy’s altered specifications, project-level analysis should now:

• Avoid treating two or more adjacent cells in a-manner that reduces connectivity of-remaining high reproductive habitat value (CWHR 4D, 5M, 5D, and 6) within and between cells.

• When treating cells within or adjacent to recently disturbed areas (e.g. severely burned or highly impacted by drought mortality), protect and promote connectivity within and between cells, and focus treatment on increasing resilience of remaining suitable habitat. SF0056.

PSMFÓ 56. Moreover,' according to the strategy’s altered specifications, project-level analysis should provide a more rigorous analysis at the “Stand scale”:

Stand scale—-this scale represents the availability of individual habitat features within the project area, Structural characteristics such as canopy cover or large tree availability should be evaluated for the proposed action and any alternatives, with availability of the structural characteristics projected into the future both with and without a simulated fire. Select habitat characteristics relevant to the project area based on available research and strategy recommendations. The importance of habitat elements such as canopy cover, large tree and snag availability, and hardwood basal area has been repeatedly supported. Other factors, such as the acreage of moderate .and high capability habitat as defined by CWHR 2,1,. and high value reproductive habitat (CWHR 4D, 5M, 5D, and 6) should also be included; We suggest evaluating at least the following:

• canopy coyer.

• large trees and snags

• hardwood basal area and total basal area

• remaining CWHR high reproductive value habitat pockets/refugia

• connectivity between pockets of high value reproductive habitat, as indicated by presence of other moderate and high capability habitat as defined by CWHR 2.1 ■

Compare the current and projected availability of these elements under the management alternatives, as well as with and without wildfire, using FVS software. Note that FVS projections for canopy cover in particular are unlikely to align with SSNFCS recommendations (which are based on remotely-sensed metrics). One approach to addressing this issue has the following four steps: 1) compare the current FVS modeled value to the current EVEG value; 2) project stand characteristics forward using FVS; 3) measure the change in FVS from current to projected; 4) add or subtract this change from the current -EVEG value and use the resulting number as the likely future condition If possible, compare the trajectory of these habitat elements, in the project area, .with the projected changes in fire characteristics such as flame length and torching index under the different alternatives.

Consider the cost vs, benefit of management alternatives, and look for opportunities to modify prescriptions to minimize negative impacts, while recognizing that short-term risk may be necessary to meet longer term conservation and resiliency objectives. SF0057-58.

PSUMF 57.

19. The Forest Service’s Supplemental Information Report of April 2017

On April 12, 2017, the Forest Service issued a SIR and supporting materials,to document the agency’s analysis of whether Frog will affect the environment in a significant manner or to a significant extent not already considered by the project’s 2013 Environmental Assessment. SF_l-47. DSMFO 109, The SIR and its supporting materials predicted a slight drop (three percent) in canopy compared to baseline conditions, which were updated to reflect tree mortality since the 2018 Environmental Assessment. SF_8-9, 19-27; Cordes Decl. ¶¶ 7-8. DSUMF 110.

The SIR and its supporting materials predicted slight, short-term reductions in moderate and high-capability CWHR2.1 habitat and high-value reproductive habitat. SF_9, 25-27. DSUMF . 111. At the home-range scale, the SIR and its supporting materials calculated only minor shifts in moderate and high-capability CWHR2.1 habitat and high-value reproductive habitat without any significant barriers to Fisher movement. SF_9, 27-29. DSUMF 112. At the Core scale, the SIR and its supporting materials determined that Frog and other projects combined would affect only 4 percent of the 109,919 acres of moderate and high-capability Fisher habitat, and only 3 percent of the 71,662 acres of high-value reproductive Fisher habitat, taking into account the 2016 Cedar Fire. SF_10-12, 31, 36-37. DSUMF 118; .

The SIR and its supporting materials determined that ground disturbance from Frog and other projects would not exceed recommended thresholds in affected hexagons. SF_35-36. DSUMF 114. In issuing the SIR, the Forest Service recognized that tree mortality may continue for 1 to 3 years and was “likely to further lower habitat quality” generally. SF_9. DSUMF 115. In issuing the SIR, the Forest Service found “no indication that implementation of the ‘Frog Project would ⅞ significantly impact or.. .contribute to a loss of viability of Fishers.” SF_9-10. DSUMF 116, In issuing the. SIR, the Forest-Service found that the Frog project area contains only a tiny percentage of habitat within the relevant Fisher Core, and the units are small and. scattered throughout a wide geographic expanse.. SF_10. DSMFO 117.

In issuing the SIR, the Forest Service concluded that treatments would not render any unit unsuitable for Fishers, as defined by the CWHR 2.1 habitat model. SF_10; F_274. DSUMF118. In issuing the SIR, the Forest Service found that tree mortality is confined to lower elevations of the project area and underscores the need to maintain and promote resilience among the-.remaining -living trees. SF_10, 14-15; Cordes Decl. ¶ 10 & Ex. 1. DSMFO 119. The SIR considered field reports on the project’s silvicultural, prescriptions and fuel treatments based on updated tree-mortality information. SF_2, 14-18. DSMFO 120.

According to the Revised Frog Project Fuels Review 2017, “If left untreated, surface fuel accumulations will increase in existing and future areas of mortality. This increase, in fuel loading will cause additional mortality in the event of an uncontrolled wildfire.” SF_14. DSUMF 121. According to the 2017 Frog Project Silvicultural Review, tree mortality “makes the need to increase the resilience of the remaining stands of green trees urgent,” and “the Frog project is expected to result in a healthier, more resilient stand of trees.” SF_16. DSUMF 122.

Research indicates that “the risk of taking no action [is] a greater threat to Fisher and their habitat than a series of modeled fuels reduction projects with activities similar to the Frog Project.” SF_21. DSUMF 123. Frog’s 2013 Environmental Assessment and 2017 SIR and their supporting documents refer to “2010” as the existing condition or baseline. In - other words, “2010” does not literally refer to calendar year 2010—it is “Year 0” of project implementation. F_299, 304, 309; SF-20-21, 24-25, 28-29, 42, 44; Cordes Decl. ¶ 7 & n.2. DSUMF 124.

Because the SIR uses updated EVEG data that reflects recent mortality, canopy closure in “2010” is reduced from levels previously analyzed, showing approximately 45 percent, instead of 51 percent canopy closure in CWHR 2.1 habitat. F_192, 299; SF_l-3, 11, 19-20, 47a (ECF No. 41-4); Cordes'Decl. ¶ 7 & n.2. DSMFO 125, The Forest Service projected updated, existing canopy closure into the future using different scenarios (implementation, no-action, wildfire) and spatial scales. See, e.g., SF.58-59, 20-21, 28-29, 42-45. DSUMF 126. The SIR and its supporting materials show canopy changes across all project units and watersheds. SF_21, 29. DSMFO 159. The SIR and its supporting docu-merits show that any reduction in canopy closure across Frog’s units will be far less than 30 percent (in absolute terms) in high-reproductive Fisher habitat. SF_21, 47a (ECF No. 41-4), 57; see also Cordes Decl. ¶20 & Ex. 4 (showing changes in canopy closure in mature forest habitat on a unit-by-unit basis). DSMFO 164.

20. Forest Service’s Decision in 2017 to Proceed with the Froff Project but Requiring Supplemental 'NEPA Analysis for the Ranche-ría Project

On April 12, 2017, the Forest Service issued its determination riot to supplement; its NEPA analysis, and decided to proceed with the Frog Project. SF0001. PSUMF 22. Logging in the Frog Project area may commence [in late September 2017] at the earliest. SF0064. PSUMF 23.

Also on April 12, 2017, the Forest Service issued its determination that supplemental NEPA analysis must be prepared and the that the existing Ranchería Project’s Decision Notice and Finding of No Significant Information must be reconsidered in light of new circumstances and information. Dkt.# 42-1 at 13. PSUMF 24. It stated that suspension of the Ranchería timber sale contract shall remain in place while this supplemental NEPA analysis and reconsideration are being conducted, and all implementation of the existing Decision Notice for the Ranchería Project is stayed .until a further determination is made, Id. PSUMF 25. “Impacts of the Ranchería Project have not yet been fully analyzed, and will be addressed in more detail in supplemental NEPA analysis because of mortality within the project area and because of the project’s location with respect to the Cedar Fire area.” SF1261. PSUMF 26. The Ranchería Project area is located several miles to the south of the Cedar Fire area. See SF0047 (map of projects in relation to Cedar Fire). PSUMF 27. Other projects in the vicinity of the Frog Project include the Summit Project, the Ranchería Project, and the Bull Run Project. SF0038. PSMFO 28.

21. Spear Creek Project

Even though the Spear Creek Project has not yet been finalized, the Forest Service released very specific plans to proceed with this 1,250 to 1,500 acre project since November of 2016. See SF1314-15 (discussing specifics about both the Bull Run and specific size and form of the Spear Creek project). PSMFO 29. On May 1, 2017, the Forest Service issued a second scoping notice for the Spear Creek Project, which proposes the. same exact .project along the same roads as described during- initial scoping. See Voss Dec., Exhibit D (describing the same treatments as the original proposal and showing a map bn the last page, which is identical to the one in SF1323, released with initial sebp-ing). PSUMF 30.

When the SIR was prepared, the proposed Spear Creek Roadside Hazard Tree Project did not have specific acreage or prescriptions. SF_11. DSMFO 153. The Forest Service found that including Spear Creek at the home-range scale was unnecessary because it will not overlap with hexagons affected by the Frog project and thus will not contribute to the 13 percent Conservation Strategy threshold for mechanical treatments. SF_11. DSUMF 154 The Forest Service found that including Spear Creek at the Core scale was unnecessary because the project would primarily fell hazard trees along roads, which are considered lower quality habitat for Fishers. SF_11, 37; Cordes Decl. ¶ 27. DSMFO 155. Summit CE, Bull Run, and Spear Creek will each receive their own environmental review and analysis, including consideration of cumulative effects. Second Voss Decl. (ECF No. 47-3) Ex. D. at 3; Cordes Decl. ¶27. DSMFO 156.

22. Sequoia National Forest Plan

The Sequoia National Forest Plan includes a Desired Condition that “[wjithin known or estimated female Fisher home ranges outside the [Wildland Urban Interface] (“WUI”), a minimum Of 50 percent of the forested área has‘at least 60 percent canopy cover. Where home range information is lacking, use HUC 6 watershed as the analysis area for.this, desired condition.” Record of Decision (“ROD”) for the 2004 SNFPA, Appendix A at 41. Located in the Administrative Record as “AUR” (available upon request) just below SF1151. Relevant pages provided as Voss Dec., Exhibit C. PSUMF 58. The Sequoia National Forest Plan Standard for thinning projects requires that

For mechanical thinning treatments in mature forest habitat (CWHR types 4M, 4D, 5M, 5D, and 6) outside WUI defense zones:

• Design projects to avoid reducing preexisting canopy cover by more than -30 percent within the treatment unit. Percent is measured in absolute terms (for example, canopy cover at 80 percent should not be reduced.below 50 percent.)

Voss Dec., Exhibit C (ROD for the SNFPA, Appendix A at 50). PSUMF 59.

The SIR’s presentation of canopy changes is the same format used in the 2013 Environmental Assessment. Pl.’s Mot. Summ. J. (ECF No. 47), at 35; FJ299, 323, 2027, 2050; SFJ20, 28. DSUMF 160. In its comments on the 2013 Environmental Assessment, SF Keeper never contended that the 2013 Environmental Assessment’s presentation of canopy changes was inconsistent with the 2004 Sierra Nevada Forest Plan Amendment. F_1690-97. DSUMF 161. Alsofin its comments on the 2013 Environmental Assessment, SF Keeper claimed the 2004 Sierra Nevada Forest Plan Amendment was illegal and should not be applied to Frog. F_1692. DSMFO 162.

In the SIR and its supporting documents, the Forest Service affirmed that Frog was designed pursuant to the 2004 Sierra Nevada Forest Plan Amendment, which implemented specific standards and guidelines that would be beneficial in conserving habitat for species such as the Fisher, including provisions for maintenance of canopy closure. SF_36. DSUMF 163. Minor adjustments in project implementation noted in the .Frog Project Fuels Review will reduce the possibility of adverse effects. SF_15. DSUMF 165. The underlying data for the Forest Service’s SIR and its supporting materials were disclosed and available to SF Keeper at all times. EOF No. 35, at 1; EOF No. 41-3, at 2. DSMFO 166.

23. Frog’s Project Design Features

The Frog Project is a mechanical thinning project, which includes 26 treatment units .located in mature forest habitat (CWHR types 4M, 4D, 5M, 5D,.and 6) and is located outside the WUI and WUI defense zones. , SF0022. PSMFO 60. Frog’s project design features include retaining at least 40 percent canopy cover. F_274, 304, 309. DSMFO 71. Frog’s project design features include retaining all trees over 30 inches in diameter at breast height (“dbh”) and all hardwoods greater than or equal to 12 inches dbh (except hazard trees), which would ensure adequate trees within the size range used by Fishers for rest sites. F_219. DSMF072.

Frog’s project design features include retaining at least 180 square feet of basal area per acre, which exceeds the 150 square feet per acre suggested by the CBI in the Southern Sierra Nevada Fisher Conservation Strategy (“Fisher Strategy”) published in 2016. F_262; SF-193. DSMFO 73. Frog’s project design features include retaining oak trees, which provide important habitat for Fishers and their prey. F-295-96. DSUMF 74. Frog’s project design features include imposing a “limited operating period” to avoid project activity when female Fishers and their offspring are least mobile and most vulnerable. F_623, 336. DSUMF 75. There now remain 1,027 acres of Frog to be treated, and about 500 of these acres are in Fisher habitat. SF_63, 42, 8. DSUMF 79. .

The Forest Service found that during the years between Frog’s 2010 stand exams and July 2016, moderate and high-capability CWHR 2.1 habitat in the project area declined by only 2 percent, thus making new stand exams unnecessary. SF_47a, 8, SF_2; Cordes Decl. ¶ 10. DSMFO 132. The Frog Project is treating fir stands between 6,500 and 8,000 feet in elevation, where mortality levels are much lower and the proposed treatments are expected to lower the competitive stress on individual trees and lessen future mortality. SF_16. DSMFO 133.

The risk of a fire happening under adverse conditions in the Frog project area is very high. The type of treatments planned would create low surface fuel loads, significantly decreasing the probability of uncharacteristically severe wildfire effects while sustaining large trees and dense canopy cover suitable for Fisher habitat. SF_21. DSUMF 134. Core Area 2 covers a wide geographic area, encompassing a number of different habitat types at different elevations which are not impacted equally by the current mortality event. SF_10. DSUMF 135.

24. The Forest Service’s Findings on Fisher Dispersal Routes During Frog

The Forest Service found that Frog’s treatments would not cause barriers to movement across the Fisher home ranges (or “cells”) overlapping the project area. SF_27. DSUMF 136. Connectivity between home ranges will be maintained throughout the implementation of Frog by design criteria, including riparian zones and no treatments areas. The inclusion of untreated areas along steep sloped regions and riparian corridors will maintain habitat connectivity and Fisher dispersal routes both within and outside of the Frog project area. SF_28. DSUMF 137. Frog will use existing timber landings to minimize disruption of the vegetative covers used for dispersal of Fishers. Dense cover is also retained along stream corridors and other features outside of the units. SF_28. DSUMF 138.

The Forest Service identified and assessed Frog’s effects on Fisher habitat characteristics in the project area, including canopy closure and other Fisher habitat components in the CWHR classification system, such as tree types and tree size. SFJ22-25. DSMFO 139. Tree size and canopy correlate with basal area. SF_17. DSMFO 140. CBI’s March 2017 guidance document describes a “stand scale” analysis as representing “the availability of individual habitat features within the project area.” SF_57. DSMFO 141. CBI’s March 2017 guidance document recognizes that “short-term risk may be necessary to meet longer term conservation and resiliency objectives.” SF_58. DSUMF 142.

25. The Forest Service’s Review of the Cedar Fire Area

The Forest Service compared Vegetation levels before and after the Cedar Fire to identify areas of habitat change at or above 50 percent. The Forest Service excluded these areas from calculations of CWHR 2.1 and high-value reproductive habitat. SF_11, 47a (ECF No. 41-4).' DSUMF 143. The Forest Service found that the' Cedar Fire resulted in a loss of less than 5 percent of both CWHR 2.1 and CBI habitat in Fisher Core Area 2 and concluded that the effects of the fire alone were not likely to threaten the viability of the sub-population. SF_10. DSUMF Í44. The Forest Service determined that Fishers south of the Cedar Fire area may be at greater risk in the long-term due to isolation. SF-10. DSÚMF 145. The Frog project sits north of the Cedar Fire and remains connected with the Core Area 2 of the Sierra Fisher sub-population. SF-46-47. DSMFO 146.

Vegetation, data are not updated systematically and frequently enough to predict changed habitat for project.planning purposes. SF-55, 1261; Cordes Decl. ¶21. DSMFO 147. The Forest -Service appraised ongoing mortality qualitatively at the cumulative-effects scale, and found that Frog would not significantly impact or contribute to a loss of Fisher viability in Gore Area 2. SF-9-10; Cordes Decl. ¶ 21. DSMFO 148. The Forest Service expects that implementing Frog will help curb the mortality rates observed at lower elevations in the project area. SF_10; Cordes Decl. ¶ 22. DSMFO, 149. In the SIR, the Forest Service confirmed that any impacts to Fishers from further mortality would be monitored and addressed as new vegetation data becomes available. SF„10; Cordes Decl. ¶ 22. DSMFO 150.

Some available estimates of tree mortality rates provide ranges of 2,000 to 14,000 dead trees per square mile within 6.5 square mile grid cells. SF-1274, 1276. DSUMF 151. The Forest Service and its experts recognize the dramatic extent of tree mortality across the landscape, as well as uncertainty about how Fisher population processes writ large might respond over time. SF-9-10, 64. DSUMF 157. Frog consists of 26 small, scattered units with less than 1 square mile of Fisher habitat combined. SF_42, 63, 8. DSUMF 152. Frog’s treatments are well understood and are not so uncertain or unknown as to present potentially ,significant effects. SFJL261; Cordes Decl. ¶25. DSMFO 158.

LEGAL STANDARD

A. NEPA Requirements

“NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions. 42 U.S.C. §§ 4321, 4331. Its purpose is to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their proposed actions before deciding to proceed.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citing to Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). To do so, an agency may prepare an Environmental Assessment—a “concise public document” that briefly provides sufficient evidence for the agency either to issue a Finding of No Significant Impact (also referred to as a “FONSI”), or an Environmental Impact Statement (also referred to as an “EIS”) that further analyzes significant impacts on the environment. See 40 C.F.R. §§ 1501.4, 1508.9. “Although NEPA establishes procedures by which agencies must consider the environmental impacts of their actions, it does not dictate the substantive results of agency decision making.” Native Ecosystems Council, 697 F.3d at 1051.

Under NEPA, an agency must supplement an Environmental Assessment or EIS if new information shows “that the remaining action will ‘affec[t] the quality of the human environment’ in a significant manner or to a significant extent not already considered.” Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (alteration in original, citation omitted). “[A]n agency need not supplement an EIS every time new information -comes to light after the EIS is finalized.” Id. at 373, 109 S.Ct. 1851; see also Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d 445, 459 (9th Cir. 2016) (same). “To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information, outdated by the time a decision is made.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851; see also Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 554-55, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (“Administrative consideration of evidence. . .always creates a gap between-the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed].... If Upon the coming down of the order litigants might demand reheárings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little, hope that the administrative process could ever be consummated in an order that wpuld not be subject to reopening.”) (citation omitted); Japanese Vill., LLC, 843 F.3d at 466 (same).

When new information surfaces, an agency may satisfy NEPA by “carefully considering] the information, evaluating] its impact, and supporting] its decision not to supplement.. .with a statement of explanation or additional data” i.e., a Supplemental Information Report. Animal Def. Council v. Hodel, 840 F.2d 1432, 1439-40 (9th Cir. 1988), modified, 867 F.2d 1244 (9th Cir.1989); see also Price Rd. Neighborhood Ass’n, Inc. v. U.S. Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997) (citing to Animal Def. Counsel and noting that “agency decision not to supplement EIS in light of new information was reasonable where agency ‘carefully considered the information, evaluated its impact, and supported its decision not to supplement with a statement of explanation.”’)

B. Summary Judgment Under the APA for Agency Decisions Under NEPA

Section 706 of the Administrative Procedure Act (“APA”) governs judicial review of agency decisions made pursuant to NEPA. 5 U.S.C. § 706; City of Sausalito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004). Summary judgment is governed by the APA’s “arbitrary and capricious standard” instead of the typical summary judgment standard that determines whether there are disputed issues of material fact. See Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir. 2015) (“We review the grant of summary judgment de novo, thus reviewing directly the agency’s action under the [APA’s] arbitrary and capricious standard.”); Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (“As mentioned previously, this case involves review of a final agency determination under the [APA] therefore, resolution of this matter does not require fact finding on behalf of this court. Rather, the court’s review is limited to the administrative record .... ”)

Under the APA, the reviewing court may set aside agency actions only if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Nw. Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1132 (9th Cir. 2006) (same). “An agency’s action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency’s decision is’so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency’s decision is contrary to the governing law.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 746 F.3d 970, 974 (9th Cir. 2014), on reh’g en banc, 795 F.3d 956 (9th Cir. 2015) (citation omitted).

“The arbitrary or capricious standard is a deferential standard of review under which the agency’s action carries a presumption of regularity. Although the court’s inquiry must be searching and careful,... the ultimate standard of review is a narrow one. Thus, [e]ven when an agency explains its decision with le