Case 2:11-At-00190 Document 1 Filed 02/11/11 Page 1 of 18

Case 2:11-at-00190 Document 1 Filed 02/11/11 Page 1 of 18
1 Rachel M. Fazio (CA Bar No. 187580)

P.O. Box 697
2 Cedar Ridge, CA 95924
3 (530) 273-9290
rfazio@nccn.net
4
Sarah Uhlemann (WA Bar No. 41164)
5 Center for Biological Diversity
P.O. Box 31001
6
Seattle, WA 98103-9998
7 (206) 327-2344
suhlemann@biologicaldiversity.org
8 *Application of pro hac vice admission pending
9
Justin Augustine (CA Bar No. 235561)
351 California St., Suite 600
11 San Francisco, CA 94104
(415) 436-9682
12 Fax: (415) 436-9683
13 jaugustine@biologicaldiversity.org
14 Attorneys for Plaintiffs
15
16 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA
17
18
EARTH ISLAND INSTITUTE and Case No.
19 CENTER FOR BIOLOGICAL
20 DIVERSITY,
COMPLAINT FOR DECLARATORY
Plaintiffs, AND INJUNCTIVE RELIEF
21
v.
22
23 TERRI MARCERON, in her official capacity

as Forest Supervisor for the Lake Tahoe
24 Basin Management Unit, and UNITED
STATES FOREST SERVICE, an agency of
25
the Department of Agriculture,
26 Defendants.
27
28
COMPLAINT
1
1 INTRODUCTION
2 1. Through this action, Plaintiffs Earth Island Institute and Center for Biological Diversity
3 challenge the Angora Fire Restoration Project (“Angora Project”) in the Lake Tahoe Basin Management
4 Unit (“LTBMU”) of the United States Forest Service. The Angora Project proposes to log 1,398 acres
5 of rare “snag forest habitat” (dense mature and old forest that has experienced moderate to high-intensity
6 wildland fire) on national forest lands near the south side of Lake Tahoe in California and will include
7 the construction of 7.7 miles of roads and 23 new “landing areas” or forest openings.
8 2. In 2007, the Angora fire burned the Project area at varying intensities. Burned forest
9 provides essential habitat for many fire-dependent species, including the declining black-backed
10 woodpecker. This species requires moderately to severely burned forest habitat, including a very high
11 density of large “snags” or dead trees, for nesting and foraging. The Angora Project will eliminate about
12 70% of the last remaining black-backed woodpecker suitable habitat currently available in the Lake
13 Tahoe Basin Management Unit. According to the Forest Service’s overestimate, this leaves sufficient
14 habitat for about 23 pairs of black-backed woodpeckers (EA, pp. 3.6-65 through 3.6-66); though the
15 scientific studies cited in the Angora EA on this issue show the remaining habitat would support far
16 fewer pairs than this—as few as 2 to 4 pairs. Yet, whether 23 pairs or 4 pairs would remain after the
17 planned logging, the Forest Service has never determined the minimum viable population of black-
18 backed woodpeckers on the LTBMU or whether the Angora project would push black-backed
19 woodpecker populations below this critical threshold and threaten the populations’ viability across the
20 LTBMU.
21 3. In addition, and unlike most salvage logging projects that send wood to mills for lumber,
22 most of the large snags that would be logged in the Angora Project, which currently provide extremely
23 rare and important habitat, would be sent to biomass facilities and burned to generate energy.
24 Greenhouse gas emissions from the Angora Project would be substantial. In addition to the greenhouse
25 gases released during logging from soil disturbance, burning of unwanted materials on-site, equipment
26 use, and transportation of the biomass, burning wood to produce biomass energy emits substantial
27 amounts of greenhouse gases – as much as burning coal. The Forest Service failed to fully consider all
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COMPLAINT
2
1 greenhouse gas emissions from the Angora Project along with their potential impacts and writes off
2 these emissions as insignificant.
3 4. This action arises under, and alleges violation of, the National Environmental Policy Act
4 (“NEPA”), 42 U.S.C. §§ 4321 et seq.; the National Forest Management Act (“NFMA”), 16 U.S.C. §§
5 1600 et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 501 et seq.; and the statutes’
6 implementing regulations. Specifically, this action challenges the Angora Fire Restoration Project
7 Decision Notice and Finding of No Significant Impact (“FONSI”) issued by Terri Marceron, Forest
8 Supervisor for the Lake Tahoe Basin Management Unit, and the United States Forest Service (referred to
9 collectively as “Defendants” or “Forest Service”). Plaintiffs may seek temporary, preliminary, or
10 permanent injunctions against all or portions of the federally approved activities challenged herein to
11 forestall irreparable injury to the environment and to Plaintiffs’ interests, and any other such relief as the
12 Court deems appropriate.
13 JURISDICTION
14 5. Jurisdiction over this action is conferred by 28 U.S.C. §§ 1331 (federal question), 2201
15 (declaratory relief), and 2202 (injunctive relief). This cause of action arises under the laws of the United
16 States, including NEPA, NFMA, the APA, and implementing regulations established pursuant to these
17 federal statutes. An actual, justiciable controversy exists between Plaintiffs and Defendants. The
18 requested relief is proper under 28 U.S.C. §§ 2201 and 2202, and 5 U.S.C. §§ 705 and 706.
19 VENUE
20 6. Venue in this Court is proper under 28 U.S.C §§ 1391 and 1392. The actions challenged
21 in this case, including the Decision Notice and FONSI, were developed and issued by Defendants in the
22 Lake Tahoe Basin Management Unit, which is headquartered in South Lake Tahoe, California, located in
23 El Dorado County. Additionally, land subject to the challenged decisions is located in this judicial
24 district. Venue therefore properly vests in this district.
25 PARTIES
26 7. Plaintiff Earth Island Institute (“EII”) is a nonprofit corporation organized under the laws
27 of the state of California. EII is headquartered in Berkeley, California. EII’s mission is to develop and
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COMPLAINT
3
1 support projects that counteract threats to the biological and cultural diversity that sustains the
2 environment. Through education and activism, these projects promote the conservation, preservation
3 and restoration of the Earth. One of these projects is the John Muir Project—whose mission is to protect
4 all federal public forestlands from commercial exploitation, that undermines and compromises science-
5 based ecological management. EII is a membership organization with over 15,000 members in the U.S.,
6 over 3,000 of whom use and enjoy the National Forests of California for recreational, educational,
7 aesthetic, spiritual, and other purposes. EII, through its John Muir Project, has recently appealed
8 numerous timber sales on National forests in the Sierra Nevada, including the Angora Project, which if
9 implemented would adversely affect the interests of their members. EII through its John Muir Project
10 has a longstanding interest in protection of national forests. EII’s John Muir Project and EII members
11 actively participate in governmental decisionmaking processes with respect to national forest lands in
12 California and rely on information provided through the NEPA processes to increase the effectiveness of
13 their participation.
14 8. Earth Island Institute’s members include individuals who regularly use the forests of the
15 LTBMU, and the Angora fire area in particular, for scientific study, recreational enjoyment, aesthetic
16 beauty, and nature photography. These members’ interests will be irreparably harmed by the planned
17 logging in the Angora fire area, as they will no longer be able to scientifically study these areas in their
18 natural (pre-logging) state, take nature photographs of the area in its natural (pre-logging) state, or enjoy
19 the aesthetic beauty of the unlogged snag forest habitat in its natural state.
20 9. Plaintiff Center for Biological Diversity (“the Center”) is a non-profit corporation with
21 offices in San Francisco, Los Angeles, and Joshua Tree, California; Nevada; Oregon; Washington;
22 Arizona; New Mexico; Alaska; and Washington, D.C. The Center is actively involved in species and
23 habitat protection issues throughout North America and has more than 42,000 members, including many
24 members who reside and recreate in California. One of the Center’s primary missions is to protect and
25 restore habitat and populations of imperiled species, including from the impacts of logging and climate
26 change.
27
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1 10. The Center’s members and staff include individuals who regularly use and intend to
2 continue to use the Lake Tahoe Basin Management Unit, including the lands and waters that were
3 burned in the Angora fire and are now planned for logging as part of the Angora Project. These members
4 and staff use the area for observation, research, aesthetic enjoyment, and other recreational, scientific,
5 spiritual, and educational activities. Many of the Center’s staff and members use the area to observe and
6 study imperiled species like the black-backed woodpecker that, since the Angora fire burned, can be
7 found in Angora Project area. These members’ interests will be irreparably harmed by the planned
8 logging in the Angora fire area, as they will no longer be able to visit and enjoy this area in its unlogged
9 state, nor will they be able to observe or attempt to observe the black-backed woodpecker or other
10 species which use and are dependent on this area in its unlogged state.
11 11. This suit is brought by EII and the Center on behalf of themselves and their adversely
12 affected members and staff. Plaintiffs and their members’ present and future interests in and use of the
13 Angora Project area and the waters therein are and will be directly and adversely affected by the
14 challenged decision. Those adverse effects include, but are not limited to: (1) impacts to native plants
15 and wildlife and their habitats within and around the Angora Project area from logging, biomass
16 removal, soil compaction, noise, and human presence; (2) impacts to riparian areas and water quality; (3)
17 reduction and impairment of recreation opportunities; (4) impaired aesthetic value of forest lands, trails,
18 and landscapes caused by Defendants’ logging; (5) loss of scientific study opportunities with regard to
19 black-backed woodpecker use of unlogged post-fire habitat; and (6) broad impacts of climate change
20 within and outside the project area. In addition, Plaintiffs and their members and staff have an interest in
21 ensuring that Defendants comply with all applicable laws, regulations, and procedures pertaining to the
22 management of national forest lands.
23 12. Because Defendants’ actions approving the Angora Project violate several procedural and
24 substantive laws, a favorable decision by this Court will redress the actual and imminent injury to
25 Plaintiffs.
26 13. Both Plaintiffs participated in the administrative process culminating in the issuance of
27 Angora Project Decision Notice and FONSI by submitting comments on the Draft Environmental
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5
1 Assessment (“EA”) for the Project. Both Plaintiffs also submitted administrative appeals of the Decision
2 Notice and FONSI, and on October 7, 2010 both appeals were denied. As such, Plaintiffs have exhausted
3 all available administrative remedies.
4 14. Defendant Terri Marceron is the Forest Supervisor for the Lake Tahoe Basin
5 Management Unit and is sued in her official capacity. Ms. Marceron is directly responsible for forest
6 management in the LTBMU and for ensuring that all resource management decisions comply with
7 applicable laws and regulations. Ms. Marceron signed the Decision Notice challenged here. Ms.
8 Marceron officially resides in South Lake Tahoe, California.
9 15. Defendant United States Forest Service is an agency of the United States Department of
10 Agriculture. The Forest Service is responsible for the administration and management of the federal
11 lands subject to this action, including the implementation of NEPA, NFMA, the APA, and the statutes’
12 implementing regulations.
13 LEGAL BACKGROUND
14 A. The National Environmental Policy Act
15 16. The National Environmental Policy Act (“NEPA”) is “our basic national charter for
16 protection of the environment.” 40 C.F.R. § 1500.1(a). NEPA’s twin aims are to ensure that federal
17 agencies consider the environmental impacts of their proposed actions and to ensure that agencies
18 inform the public that environmental concerns have been considered.
19 17. NEPA requires “responsible [federal] officials” to prepare an environmental impact
20 statement (“EIS”) to consider the effects of each “major Federal action[ ] significantly affecting the
21 quality of the human environment.” 42 U.S.C. § 4332(2)(C)(i). To determine whether the impacts of a
22 proposed action are significant enough to warrant preparation of an EIS, the agency may prepare an
23 environmental assessment (“EA”).
24 18. Under NEPA’s implementing regulations, an agency’s EA must include “brief
25 discussions of the need for the proposal, of the alternatives . . ., [and] of the environmental impacts of
26 the proposed action and the alternatives.” 40 C.F.R. § 1508.9. The EA must take a “hard look” at the
27
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1 impacts, and if the agency decides the impacts are not significant, must supply a convincing statement of
2 reasons why.
3 19. Further, NEPA’s implementing regulations require that the agency “shall identify any
4 methodologies used and shall make explicit reference by footnote to the scientific and other sources
5 relied upon for conclusions,” and shall ensure the scientific accuracy and integrity of environmental
6 analysis. Id. § 1502.24. The agency must disclose if information is incomplete or unavailable and
7 explain “the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable
8 significant adverse impacts.” Id. § 1502.22(b)(1). Further, the agency must directly and explicitly
9 respond to dissenting scientific opinion. Id. § 1502.9(b).
10 20. Finally, an agency must prepare an EIS for any action that has “individually insignificant
11 but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). A cumulative impact is defined as “the
12 impact on the environment which results from the incremental impact of the action when added to other
13 past, present, and reasonably foreseeable future actions regardless of what agency . . . or person
14 undertakes such other actions. Cumulative impacts can result from individually minor but collectively
15 significant actions taking place over a period of time.” Id. § 1508.7.
16 B. The National Forest Management Act
17 21. The National Forest Management Act (“NFMA”) establishes the statutory framework for
18 management of the National Forest System. NFMA requires the Forest Service to develop a Land and
19 Resource Management Plan (“Forest Plan”) for each national forest, including the Lake Tahoe Basin
20 Management Unit.
21 22. A forest plan provides for multiple use management of the national forest including
22 management for recreation, range, timber, wildlife and fish, and wilderness uses. 16 U.S.C. § 1604(e)(1).
23 Specifically, NFMA requires that all forest plans “provide for diversity of plant and animal
24 communities.” Id. § 1604(g)(3)(E).
25 23. Pursuant to NFMA, all site-specific actions taken within a national forest must be
26 consistent with the applicable forest plan. Id. § 1604(i).
27
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1 24. In 1982, the Forest Service promulgated regulations implementing NFMA. The
2 regulations required that “[f]ish and wildlife habitat [on national forest lands] shall be managed to
3 maintain viable populations of existing native . . . vertebrate species in the planning area.” 36 C.F.R. §
4 219.19 (1982). This requirement is known as the “wildlife viability requirement”, or “viability
5 requirement” of the 1982 NFMA regulations.
6 25. In 2000, the NFMA regulations were replaced with new regulations, which state that
7 previous requirements of the 1982 regulations, including the wildlife viability requirement, remain as
8 enforceable requirements so long as they are incorporated into the forest plan at issue.
9 FACTUAL BACKGROUND
10 A. The Lake Tahoe Basin Management Unit and Its Wildlife
11 26. The Lake Tahoe Basin Management Unit (“LTBMU”) covers approximately 150,000
12 acres of federally owned land surrounding Lake Tahoe. The LTBMU was created so Forest Service
13 could manage the area with a special focus on Lake Tahoe.
14 27. The U.S. Forest Service manages the LTBMU as a distinct national forest, and all NFMA
15 requirements apply. Accordingly, in 1988, the Forest Service issued a Land and Resource Management
16 Plan for the Lake Tahoe Basin Management Unit (“1988 LTBMU Forest Plan”). The 1988 LTBMU
17 Forest Plan (page III-22) explicitly incorporated the wildlife viability requirement of the 1982 NFMA
18 regulations, requiring that the “Forest Service must manage habitat to, at the least, maintain viable
19 populations of existing native and desired nonnative species. Management indicator species (MIS) have
20 been selected to monitor the effects of management practices…These indicator species represent groups
21 of species with similar habitat requirements; thus, management of these species to maintain viable
22 population levels should also provide for viable populations of the remaining species in the group they
23 represent”. See also LTBMU FP pp. IV-11 and IV-18.
24 28. In 2004 the Forest Service issued the Sierra Nevada Forest Plan Amendment (“2004
25 Amendment”) that amended 11 forest plans across the Sierra Nevada mountains, including the 1988
26 LTBMU Forest Plan. The 2004 Amendment stated that provisions in the forest-wide forest plans, such
27
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1 as the 1988 LTBMU Forest Plan, that were not explicitly replaced by the 2004 Amendment continued to
2 remain in effect.
3 29. The 2004 Amendment was prepared pursuant to the 1982 NFMA regulations and
4 incorporated the wildlife viability requirement. Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147,
5 1173 (9th Cir. 2006).
6 30. In 2007, the Forest Service issued the Sierra Nevada Forests Management Indicator
7 Species Amendment (“2007 MIS Amendment”), which amended the lists of MIS species in each of the
8 national forests in the Sierra Nevada, including the LTBMU, to create a consistent list of MIS species for
9 all Sierra Nevada national forests.
10 31. The 2007 Amendment repeatedly and explicitly makes clear that the wildlife viability
11 requirements in forest-wide forest plans in the Sierra Nevada, such as the 1988 LTBMU Forest Plan,
12 remain as requirements and are in no way affected, modified, or eliminated by the 2007 MIS
13 Amendment.
14 32. The 2007 MIS Amendment (p. 48) states that “[n]one of the alternatives creates, modifies,
15 or eliminates any substantive protection measures for wildlife or habitat” (emphasis in original). The
16 2007 Amendment (p. 9) then repeatedly addresses the continuing force and effect of the NFMA wildlife
17 viability requirement, stating that wildlife species “will also continue to be protected by… the general
18 viability requirements of the NFMA implementing regulations”, and stresses (p. 56) that “[m]anagement
19 for conservation of all species, regardless of whether they are designated as MIS or not, is governed by
20 the forest plan standards and guidelines and various laws, including the general viability requirements of
21 the [NFMA] implementing regulations…” (emphasis added). The 2007 MIS Amendment (p. 351) goes
22 on to insist that “[s]afeguards to maintain diversity of plant and animal species are provided by
23 management objectives and standards & guidelines in each Forest Plan” (emphasis added), and then
24 flatly states (p. 338): “This Amendment does not change the viability requirements. The viability
25 requirements at the planning area scale are described under the first paragraph of the 1982 36 CFR
26 219.19; these have already been met in each forest plan, as revised. Forests will continue to ensure that
27 the project-level viability requirements are met…”. Further, the 2007 MIS Amendment (pp. 348-349)
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1 concludes that “there will be no adverse environmental consequences to species merely by changing the
2 MIS list for the Sierra Nevada forests” because “all substantive protective measures will remain in
3 place”.
4 33. Wildfire is natural and common to the Lake Tahoe Basin. The Forest Service estimates
5 that, historically, fires burned through the area every 5 to 32 years. EA at 1-3. The ecosystem evolved to
6 depend on regular fires to maintain ecological characteristics.
7 34. For example, black-backed woodpeckers (Picoides arcticus) are highly dependant on
8 post-fire forests for survival. The birds feed largely on larvae of wood-boring beetles and select large,
9 dead trees or “snags” for foraging and nesting. Suitable habitat for the species is recent moderate-
10 intensity and high-intensity burned areas within dense, mature, and old-growth conifer forest, also
11 known as “snag forest habitat”. The species does not generally use post-fire areas that have been logged.
12 Further, the species will typically only use a burned area for eight years after the fire occurs and then
13 moves to other habitat as the forest naturally returns to a green forest ecosystem. Each black-backed
14 woodpecker pair generally requires 100 to 400 acres of recent, unlogged snag forest habitat, the amount
15 varying based upon several factors including time since a fire and density of large snags.
16 35. Due to its dependence on this rare forest type, the black-backed woodpecker is
17 “vulnerable to local and regional extinction” from post-fire logging, according to U.S. Forest Service
18 scientists.
19 36. The black-backed woodpecker has declined in the Sierra Nevada due to fire exclusion and
20 post-fire logging policies, and now only a few hundred pairs remain in California.
21 37. Because of the black-backed woodpecker’s selectivity and dependence on burned forest,
22 the Forest Service, in the 2007 MIS Amendment, selected the species as an MIS to represent the viability
23 of other post-fire forest dependant species in all national forests of the Sierra Nevada, including the
24 LTBMU.
25 B. The Angora Project
26 38. In July of 2007, a fire burned approximately 3,100 acres of land south of Lake Tahoe.
27 Tragically, over 200 homes were burned at the periphery of the fire, many of which burned in slow-
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1 moving low-intensity fire that burned through pre-fire fuels treatment projects implemented just a few
2 years before by the Forest Service. This fire, named the Angora fire, burned in a typical mosaic pattern
3 with areas burning variously at high, moderate, and low intensity. Of the 3,100 acres that burned, just
4 under 1,000 acres burned in sufficiently dense and mature forest and at sufficient intensity
5 (moderate/high to high) to create high quality suitable habitat for the black-backed woodpecker. EA at
6 3.6-67.
7 39. Immediately following the fire and to ensure public safety, the Forest Service removed
8 “hazard trees” and implemented other mitigation along roads and trails, using the agency’s Categorical
9 Exclusion authority under NEPA. The hazard tree removal was scheduled for completion in the summer
10 of 2010. EA at 1-2.
11 40. In March of 2010, the Forest Service issued the Draft Angora Fire Restoration Project
12 Environmental Assessment (“EA”) considering a proposal to log the fire area, and in July of 2010, the
13 agency issued a Final EA, Decision Notice, and Finding of No Significant Impact (“FONSI”) for the
14 Project.
15 41. The Angora Project would log 1,398 acres of snag forest habitat, i.e., high quality suitable
16 black-backed woodpecker habitat, and would involve ground-based and aerial-based logging systems, as
17 well as hand treatments to remove the area’s biomass. The Project would include the construction of 7.7
18 miles of new roads and 23 new “landing areas” or forest openings where all trees would be removed.
19 42. The Forest Service considered only two alternatives – the no action alternative in which
20 the Project area would remain untreated and the action alternative chosen.
21 43. Following the Angora fire, there is currently less than 1,000 acres of moderate- and high-
22 intensity burned forest that constitute high quality suitable habitat for black-backed woodpeckers, and
23 the Angora Project, under the chosen alternative, would remove about 70% of that habitat. EA at 3.6-67.
24 Only two other fires have occurred in the LTBMU in recent years, and both were much smaller than the
25 Angora fire. Because these two other fires occurred more than eight years ago, they will no longer
26 provide suitable habitat for black-backed woodpeckers as of 2011, which means that the remaining acres
27
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1 of suitable habitat in the Angora Fire area represents all of the remaining black-backed woodpecker high
2 quality suitable habitat on the entire LTBMU.
3 44. Even under the Forest Service’s estimate, the remaining acres of unlogged habitat would
4 support, at most, only 23 pairs of black-backed woodpeckers, based upon 713 acres of combined high
5 quality suitable habitat and lower-quality habitat that would remain unlogged in the Angora project. EA,
6 pp. 3.6-65 through 3.6-66. This, however, is based upon the inaccurate assumption that one pair needs
7 only 30 acres of burned forest habitat, which stems from a misrepresentation of the Saab et al. (2002)
8 study, and a failure to apply the correct territory sizes found in recent studies, which are cited in the
9 Angora EA. Accurate estimates, based upon studies cited in the Angora EA (Hutto and Gallo 2006,
10 Dudley 2005, Dudley and Saab 2007, Saab et al. 2007) show that, if the planned logging occurred, the
11 remaining habitat would support far fewer than 23 pairs, and as few as 2-4 pairs, since one pair generally
12 requires at least 100 to 400 acres, or more, of unlogged burned forest. Yet the Forest Service failed to
13 determine whether the planned logging would threaten the viability of black-backed woodpecker
14 populations on the LTBMU by pushing them below the minimum viable population threshold on the
15 LTBMU. Nor did the Forest Service even identify what the minimum viable population on the LTBMU
16 is.
17 45. Further, during the Angora Draft EA comment period, Dr. Chad Hanson submitted
18 comments for Plaintiff Earth Island Institute criticizing the agency’s black-backed woodpecker analysis.
19 First, Dr. Hanson stated that the EA (p. 3.6-66) misrepresented a 2006 study by Hutto and Gallo by
20 claiming that the study concluded that “the extent to which [post-fire logging] reduces [black-backed
21 woodpecker] nesting habitat is not entirely predictable” when, in fact, that study found numerous black-
22 backed woodpecker nests in unlogged burned forest and zero nests in logged areas. Second, Dr. Hanson
23 stated that the EA (p. 3.6-69) misrepresented several reports and studies by claiming that they concluded
24 that black-backed woodpecker populations in the Sierra Nevada are currently “stable” when, in fact, not
25 one of the studies or reports cited makes any such conclusion.
26 46. The Forest Service’s Response to Comments (EA pp. 28-29) for the Angora Project failed
27 to provide any response to either of these central comments by Dr. Hanson. With regard to the latter of
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1 these two comments, the Response to Comments (p. 29) merely restated the EA’s erroneous conclusion,
2 claiming that “current data…indicate that the distribution of black-backed woodpecker populations in
3 the Sierra Nevada is stable”, flatly refusing to respond to expert scientific opinion concluding that none
4 of the cited studies made any such finding.
5 47. In addition to disturbing the local forest ecosystem, the Angora project will also
6 contribute substantial amounts of global-warming causing carbon into the atmosphere. The project will
7 remove 1,398 acres of live, dead, and downed trees and other forest materials. EA at 1-14. Much of this
8 forest material would be shipped to two biomass facilities located in Loyalton, California and Carson
9 City, Nevada, where the material would be burned to generate biomass energy. Both biomass plants,
10 located roughly 80 miles and 25 miles from the Angora project area respectively, were closed as of
11 August 2010, and it remains unclear where and how far the biomass would now be sent.
12 48. Logging, transporting, and burning trees and other forest biomass to generate energy emit
13 substantial amounts of greenhouse gases. In fact, burning woody biomass for energy results in higher
14 carbon emissions per unit of energy generated than burning fossil fuels, including coal, oil, or natural
15 gas.
16 49. As is required by NEPA, the Forest Service attempted to calculate the Project’s
17 greenhouse gas emissions. The agency concluded that the Angora Project would release 59,272 metric
18 tons (“mt”) of carbon dioxide equivalent (“CO2e”) by adding emissions from the decomposition of
19 biomass in the Angora Project area and from the eventual burning of Project’s biomass at biomass
20 energy facilities, when carbon stored in the forest materials is released.
21 50. However, the agency failed to consider several substantial contributions to the Project’s
22 total greenhouse gas emissions. Specifically, the agency failed to consider emissions from trucks and
23 equipment used to log, construct roads, and chip biomass on-site. The agency failed to consider
24 emissions from transporting the trees to the biomass facilities many miles from the project area. The
25 agency failed to calculate the substantial amount of carbon released from soil respiration during logging
26 and the forest’s reduced capacity for carbon sequestration after logging. Further, in calculating the total
27 cubic feet of biomass that will be removed from the project area and burned at biomass facilities, the
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1 agency counted only the biomass (and thus eventual emissions) from the standing trees that remain, and
2 excluded all downed wood in the project area, even though downed wood may be removed for energy
3 generation.
4 51. The agency also failed to adequately explain how it calculated emissions and makes
5 several unsupported assumptions. For example, without explanation, the agency assumes the biomass
6 energy produced from the Project would offset energy otherwise produced from fossil fuels, and thus
7 unfairly offsets emissions estimates despite increasing energy demand.
8 52. Both Plaintiffs timely appealed the Forest Service’s Angora Project decision, and on
9 October 7, 2010, the Forest Service’s Appeal Reviewing denied the appeal.
10 53. The Forest Service’s own science concludes that: a) there is not a present fire risk within
11 the Angora fire area due to the recency of the Angora fire and the low fuel levels; b) there will not be any
12 significant potential for fire within the Angora fire area for at least several years, even if no action is
13 taken; c) the only woody material with any significant relevance to wildland fire behavior and intensity
14 is small-diameter trees, logs, and branches less than about 10 inches in diameter; and d) the only
15 effective way to protect homes from wildland fire is to reduce the ignitability of the home itself (a
16 homeowner responsibility) and reduce brush and small-diameter fuels within at most 200 feet of
17 individual homes and administrative structures. All or nearly all of the Project Area is beyond the 200-
18 foot zone around homes, and the suitable black-backed woodpecker habitat at issue is not adjacent to
19 homes within the 200-foot zone but, rather, is hundreds of yards, or more than a mile, away.
20 CLAIMS FOR RELIEF
21 FIRST CLAIM FOR RELIEF

Violation of NFMA and the APA
22 Failure to Ensure Species Viability
23
24 54. Plaintiffs incorporate by reference all preceding paragraphs.

25 55. The 1982 version of the NFMA regulations at 36 C.F.R. § 219 were used to prepare the
26 1988 Lake Tahoe Basin Management Unit Forest Plan, and the wildlife viability requirement of 36
27 C.F.R. § 219 was incorporated into the 1988 LTBMU Forest Plan. The Lake Tahoe Basin Management
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1 Unit’s site-specific decisions must be made in accordance with the 1982 NFMA regulation’s viability
2 requirements. 36 C.F.R. § 219.19 (1982).
3 56. Defendants violated the NFMA regulations by failing to demonstrate that the Forest
4 Service is maintaining viable populations of the black-backed woodpecker, a Management Indicator
5 Species (“MIS”), on the LTBMU national forest, and by failing to determine that the Angora logging
6 project would not threaten the viability of black-backed woodpecker populations on the LTBMU.
7 57. Nowhere in the Angora EA, Decision Notice, or FONSI did Defendants make a specific
8 finding that the Angora Project would not threaten the viability of black-backed woodpecker populations
9 on the LTBMU, or that the extremely small number of black-backed woodpeckers that would remain on
10 the LTBMU after implementation of the Angora logging project would be sufficient to maintain a viable
11 population on the LTBMU national forest.
12 58. Where Defendants have relied on a habitat-suitability or habitat-capability analysis in lieu
13 of actual data on black-backed woodpecker population numbers on the LTBMU, it has done so without
14 sufficient basis. Specifically, Defendants made their decision to proceed with the Angora logging
15 project, and remove 70% of the existing high quality suitable black-backed woodpecker habitat on the
16 entire LTBMU national forest, without information on how much habitat is required by the species to
17 support viable populations on the LTBMU, without identifying how many birds are necessary to
18 constitute a viable population on the LTBMU, and without identifying the methodology used to
19 determine how sufficient suitable habitat will remain to ensure and maintain viable populations in the
20 Lake Tahoe Basin Management Unit.
21 59. Defendants’ failure to ensure viability of the black-backed woodpecker as required by the
22 Forest Plan, NFMA, and NMFA’s implementing regulations, 36 C.F.R. §§ 212.12(d); 219.19; 219.26, is
23 arbitrary, capricious, an abuse of discretion, in excess of statutory authority and limitations, and not in
24 accordance with the law and procedures required by law. 5 U.S.C. § 706(2).
25
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COMPLAINT
15
1 SECOND CLAIM FOR RELIEF

Violation of NEPA and the APA
2 Failure to Ensure Scientific Accuracy and Integrity and Failure to Directly Respond to Dissenting
3 Scientific Opinion with Regard to the Black-backed Woodpecker

5 61. Pursuant to NEPA, the Forest Service must ensure scientific accuracy and integrity in
6 NEPA documents. 40 C.F.R. § 1502.24. The Forest Service must also directly and explicitly respond to
7 dissenting scientific opinion. Id. § 1502.9(b).
8 62. The Forest Service failed to ensure scientific accuracy and integrity by misrepresenting
9 the Hutto and Gallo (2006) study with regard to the impacts of post-fire logging on black-backed
10 woodpecker nesting, by using inaccurate estimates of territory size (thereby overestimating pairs of
11 black-backeds that would remain), and by wrongly claiming that several studies concluded that current
12 black-backed woodpecker populations in the Sierra Nevada are “stable”. The Forest Service also failed
13 to directly and explicitly respond to Dr. Hanson’s dissenting scientific opinion notifying the agency
14 about these misrepresentations.
15 63. Defendants’ decision to implement the Angora Project without ensuring scientific
16 accuracy and integrity, and without directly and explicitly responding to dissenting scientific opinion,
17 with regard to the black-backed woodpecker violates NEPA and its regulations and was arbitrary,
18 capricious, an abuse of discretion, or otherwise not in accordance with law under the APA. 5 U.S.C. §
19 706(2).
20 THIRD CLAIM FOR RELIEF
Violation of NEPA and the APA
21
Failure to Take a Hard Look, Ensure Scientific Integrity, and Disclose Methodology with Regard
22 to Greenhouse Gas Emissions

24 65. Pursuant to NEPA, Defendants must take a “hard look” at the consequences,
25 environmental impacts, and adverse effects of proposed actions. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §
26 1508.9. Further, the Forest Service must ensure scientific accuracy and integrity in NEPA documents
27 and must also clearly divulge its methodologies for key findings. Id. § 1502.24.
28
COMPLAINT
16
1 66. The Forest Service failed to evaluate all impacts of the Angora Project by failing to fully
2 and accurately calculate greenhouse gas emissions from the Angora Project and by failing to disclose the
3 methodology it used for its greenhouse gas emission calculations.
4 67. Defendants’ decision to implement the Angora Project without taking a “hard look” at
5 environmental impacts, without ensuring scientific accuracy and integrity, and without disclosing
6 methodologies with regard to greenhouse gas emissions violates NEPA and its regulations was arbitrary,
7 capricious, an abuse of discretion, or otherwise not in accordance with law under the APA. 5 U.S.C. §
8 706(2).
9 PRAYER FOR RELIEF
10 Plaintiffs respectfully request that this Court:
11 1. Declare that Defendants violated NEPA, NFMA, the APA, and implementing regulations
12 in preparing and approving the Angora Project EA, Decision Notice, and FONSI;
13 2. Enjoin Defendants from awarding or implementing the Angora Project, except for
14 removal of small-diameter material (trees, branches, and logs less than 12 inches in diameter) within 200
15 feet of existing homes or administrative structures, until Defendants have complied with NEPA,
16 NFMA, the APA, and implementing regulations;
17 3. Award Plaintiffs their costs and attorneys fees under the Equal Access to Justice Act; and
18 4. Grant Plaintiffs such other and further relief as the Court deems just and equitable.
19
20 Respectfully submitted,
Dated: February 11, 2011
21
/s/ Rachel M. Fazio____
22 Rachel M. Fazio (CA Bar No. 187580)
P.O. Box 697
23
Cedar Ridge, CA 95924
24 (530) 273-9290
rfazio@nccn.net
25
Justin Augustine (CA Bar No. 235561)
26
Center for Biological Diversity
27 351 California St., Suite 600
San Francisco, CA 94104
28
COMPLAINT
17
1 (415) 436-9682
Fax: (415) 436-9683
2 jaugustine@biologicaldiversity.org
3
Sarah Uhlemann (WA Bar No. 41164)
P.O. Box 31001
5 Seattle, WA 98103-9998
(206) 327-2344
6
suhlemann@biologicaldiversity.org
7 * Application of pro hac vice pending
8 Attorneys for Plaintiffs

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COMPLAINT
18

Case 2:11-At-00190 Document 1 Filed 02/11/11 Page 1 of 18

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1 Rachel M. Fazio (CA Bar No. 187580)

14 Attorneys for Plaintiffs

16 IN THE UNITED STATES DISTRICT COURT

23 TERRI MARCERON, in her official capacity

2 these emissions as insignificant.

9 collectively as “Defendants” or “Forest Service”). Plaintiffs may seek temporary, preliminary, or

12 Court deems appropriate.

24 district. Venue therefore properly vests in this district.

22 management of national forest lands.

3 all available administrative remedies.

8 Marceron officially resides in South Lake Tahoe, California.

14 A. The National Environmental Policy Act

18 inform the public that environmental concerns have been considered.

19 17. NEPA requires “responsible [federal] officials” to prepare an environmental impact

23 environmental assessment (“EA”).

24 18. Under NEPA’s implementing regulations, an agency’s EA must include “brief

9 respond to dissenting scientific opinion. Id. § 1502.9(b).

15 significant actions taking place over a period of time.” Id. § 1508.7.

16 B. The National Forest Management Act

24 communities.” Id. § 1604(g)(3)(E).

26 consistent with the applicable forest plan. Id. § 1604(i).

5 requirement” of the 1982 NFMA regulations.

10 A. The Lake Tahoe Basin Management Unit and Its Wildlife

13 could manage the area with a special focus on Lake Tahoe.

23 represent”. See also LTBMU FP pp. IV-11 and IV-18.

5 1173 (9th Cir. 2006).

9 all Sierra Nevada national forests.

6 depend on regular fires to maintain ecological characteristics.

25 B. The Angora Project

2 quality suitable habitat on the entire LTBMU.

25 one of the studies or reports cited makes any such conclusion.

4 of the cited studies made any such finding.

20 energy facilities, when carbon stored in the forest materials is released.

7 unfairly offsets emissions estimates despite increasing energy demand.

20 CLAIMS FOR RELIEF

21 FIRST CLAIM FOR RELIEF

24 54. Plaintiffs incorporate by reference all preceding paragraphs.

2 requirements. 36 C.F.R. § 219.19 (1982).

4 Service is maintaining viable populations of the black-backed woodpecker, a Management Indicator

11 population on the LTBMU national forest.

12 58. Where Defendants have relied on a habitat-suitability or habitat-capability analysis in lieu

20 Lake Tahoe Basin Management Unit.

1 SECOND CLAIM FOR RELIEF

4 60. Plaintiffs incorporate by reference all preceding paragraphs.

23 64. Plaintiffs incorporate by reference all preceding paragraphs.

3 methodology it used for its greenhouse gas emission calculations.

9 PRAYER FOR RELIEF

10 Plaintiffs respectfully request that this Court:

16 NFMA, the APA, and implementing regulations;

8 Attorneys for Plaintiffs

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