PLAINTIFFS' MOTION AND MEMORANDUM FOR SUMMARY JUDGMENT AND by 8be89c015e72c297

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									     KRISTEN L. BOYLES (CSB #158450)     THE HONORABLE ELIZABETH D. LAPORTE
 1
     Earthjustice
 2   705 Second Avenue, Suite 203
     Seattle, WA 98104-1711
 3   (206) 343-7340
     (206) 343-1526 [FAX]
 4   kboyles@earthjustice.org
 5
     TIMOTHY J. PRESO (MSB #5255)
 6   Earthjustice
     209 South Willson Avenue
 7   Bozeman, MT 59715
     (406) 586-9699
 8   (406) 586-9695 [FAX]
 9   tpreso@earthjustice.org

10   THOMAS S. WALDO (ASB #9007047)
     Earthjustice
11   325 Fourth Street
     Juneau, AK 99801-1145
12   (907) 586-2751
13   (907) 463-5891[FAX]
     twaldo@earthjustice.org
14
     Attorneys for Plaintiffs
15   The Wilderness Society, et al.
16   GREGORY C. LOARIE (CSB #215859)
17   Earthjustice
     426 Seventeenth Street, 5th Floor
18   Oakland, CA 94612
     (510) 550-6725
19   (510) 550-6749 [FAX]
     gloarie@earthjustice.org
20

21   Local Counsel for Plaintiffs
     The Wilderness Society, et al.
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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY        Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF       705 Second Ave., Suite 203
                                                          Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL              (206) 343-7340
 1
                           UNITED STATES DISTRICT COURT
 2                   FOR THE NORTHERN DISTRICT OF CALIFORNIA

 3   PEOPLE OF THE STATE OF CALIFORNIA,       )   Case No. 05-03508-EDL related to
     et al.,                                  )
 4                                            )
                       Plaintiffs,            )
 5
                                              )
 6         v.                                 )
                                              )
 7   UNITED STATES DEPARTMENT OF              )
     AGRICULTURE, et al.,                     )
 8                                            )
 9                     Defendants.            )
                                              )
10   THE WILDERNESS SOCIETY, et al.,          )   Case No. 05-04038-EDL
                                              )
11                     Plaintiffs,            )   PLAINTIFFS’ MOTION AND
                                              )   MEMORANDUM FOR SUMMARY
12         v.                                 )   JUDGMENT AND DECLARATORY
13                                            )   AND INJUNCTIVE RELIEF
     UNITED STATES FOREST SERVICE, et al.,    )
14                                            )   Date: July 25, 2006
                       Defendants.            )   Time: 9:00 a.m.
15                                            )   Courtroom: E
                                              )   Judge: The Hon. Elizabeth D. LaPorte
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     ________________________________________ )
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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                  Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                 705 Second Ave., Suite 203
                                                                    Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL                        (206) 343-7340
                                                         TABLE OF CONTENTS
 1

 2   NOTICE OF MOTION....................................................................................................................1

 3   INTRODUCTION ...........................................................................................................................1

 4   JURISDICTION ..............................................................................................................................3
 5   FACTUAL BACKGROUND..........................................................................................................3
 6   STANDARDS OF REVIEW...........................................................................................................3
 7   ARGUMENT...................................................................................................................................4
 8
               I.         AN ENVIRONMENTAL IMPACT STATEMENT IS REQUIRED TO
 9                        EVALUATE REASONABLE ALTERNATIVES TO THE ROADLESS
                          REPEAL. .................................................................................................................4
10
                          A. Standard of Review.................................................................................................... 6
11
                          B. The Roadless Rule FEIS Was Written to Advance a Different Purpose
12                           and Does Not Consider Reasonable Alternatives to the Roadless Repeal.............. 6
13
                                     1.         An EIS must consider all reasonable alternatives consistent
14                                              with the purpose and need for the action. ........................................7

15                                   2.         The purpose and need for the Roadless Repeal differed
                                                significantly from that of the Roadless Rule FEIS. .........................8
16
                                     3.         The changed purpose and need required the consideration
17                                              of new alternatives that had never been considered in an
                                                EIS..................................................................................................11
18

19                        C. The Roadless Repeal Is Not Categorically Excluded From NEPA. .....................14

20                        D. Future EISs for Possible State Petitions Cannot Remedy the Lack of an
                             EIS for the Roadless Repeal....................................................................................15
21
               II.        THE FOREST SERVICE VIOLATED THE ENDANGERED SPECIES
22                        ACT........................................................................................................................16
23                        A. Standard of Review..................................................................................................16
24                        B. The ESA Requires All Federal Agencies to Ensure That Their Actions Do
25                           Not Harm Threatened and Endangered Species or Their Habitat.........................17

26                        C. The Forest Service Must Consult on the Roadless Repeal Because It Is an
                             “Agency Action” That “May Affect” Listed Species. ...........................................19
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                               705 Second Ave., Suite 203
                                                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - i -                                                                (206) 343-7340
                                     1.         Under Ninth Circuit precedent, the Roadless Repeal is an
 1
                                                agency action within the meaning of ESA § 7...............................19
 2
                                     2.         The Roadless Repeal may affect threatened and endangered
 3                                              species and adversely modify their critical habitat. .......................20

 4                                   3.         The Forest Service did not consult on the Roadless Repeal. .........21
 5             III.       THE ROADLESS REPEAL IS AN IRRATIONAL, UNSUPPORTED
                          AGENCY REVERSAL IN LIGHT OF THE FOREST SERVICE’S
 6                        STATUTORY OBLIGATIONS............................................................................25
 7
                          A. Standard of Review..................................................................................................25
 8
                          B. The Forest Service Has a Fundamental Duty to Protect the Values of
 9                           Roadless Areas.........................................................................................................26

10                        C. The 2001 Roadless Rule Flowed From the Forest Service’s Underlying
                             Duties. 28
11
                                     1.         Forest health, threatened and endangered species, and clean
12
                                                water...............................................................................................28
13
                                     2.         Cost of maintaining roads ..............................................................29
14
                                     3.         Need for a national rule..................................................................30
15
                          D. The 2005 Roadless Repeal Deviates From Carefully-Crafted Agency
16                           Policy Without Adequate Explanation, Especially in Light of the Forest
                             Service’s Substantive Duties. ..................................................................................31
17
               IV.        THIS COURT SHOULD REINSTATE THE ROADLESS AREA
18
                          CONSERVATION RULE. ....................................................................................34
19
     CONCLUSION..............................................................................................................................39
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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                               705 Second Ave., Suite 203
                                                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - ii -                                                               (206) 343-7340
                                                    TABLE OF AUTHORITIES
 1

 2                                                                 CASES

 3   Alaska Wilderness Recreation & Tourism Association v. Morrison,
            67 F.3d 723 (9th Cir. 1995) .......................................................................................7, 8, 14
 4
     Alsea Valley Alliance v. Department of Commerce,
 5
            358 F.3d 1181 (9th Cir. 2004) ...........................................................................................35
 6
     American Bioscience, Inc. v. Thompson,
 7         269 F.3d 1077 (D.C. Cir. 2001) .........................................................................................35
 8   American Tunaboat Association v. Baldrige,
           738 F.2d 1013 (9th Cir. 1984) .....................................................................................33, 34
 9

10   Amoco Prod. Co. v. Village of Gambell,
          480 U.S. 531 (1987).....................................................................................................34, 35
11
     Arizona Cattle Growers’ Association v. U.S. Fish and Wildlife Service,
12         273 F.3d 1229 (9th Cir. 2001) ...........................................................................................26
13
     Ashley Creek Phosphate Co. v. Norton,
14          420 F.3d 934 (9th Cir. 2005) ...............................................................................................5

15   Atchinson v. Wichita Board of Trade,
            412 U.S. 800 (1973).....................................................................................................33, 34
16

17   Bob Marshall Alliance v. Hodel,
          852 F.2d 1223 (9th Cir. 1988) .............................................................................................7
18
     Bonnichsen v. United States,
19         367 F.3d 864 (9th Cir. 2004) .............................................................................................26
20   Bowman Transport, Inc. v. Arkansas-Best Freight System, Inc.,
21        419 U.S. 281 (1974)...........................................................................................................33

22   Burlington Truck Lines, Inc. v. United States,
            371 U.S. 156 (1962)...........................................................................................................31
23
     Center for Biological Diversity v. U.S. Forest Service,
24
            349 F.3d 1157 (9th Cir. 2003) .............................................................................................6
25
     Churchill County v. Norton,
26         276 F.3d 1060 (9th Cir. 2001), amended by 282 F.3d 1055 (9th Cir. 2002).......................6

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                        Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                       705 Second Ave., Suite 203
                                                                                                          Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - iii -                                                      (206) 343-7340
     Citizens for a Better Henderson v. Hodel,
 1
            768 F.2d 1051 (9th Cir. 1985) .............................................................................................7
 2
     City of Carmel-by-the-Sea v. U.S. Department of Transportation,
 3           123 F.3d 1142 (9th Cir. 1997) .........................................................................................7, 8

 4   Conner v. Burford,
           848 F.2d 1441 (9th Cir. 1988) .........................................................................16, 18, 19, 22
 5

 6   Defenders of Wildlife v. U.S. Environmental Protection Agency,
           420 F.3d 946 (9th Cir. 2005) .................................................................................16, 26, 27
 7
     General Chemical Corp. v. United States,
 8         817 F.2d 844 (D.C. Cir. 1987) ...........................................................................................25
 9
     Greater Boston Television Corp. v. FCC,
10          444 F.2d 841 (D.C. Cir. 1971) ...........................................................................................31

11   Greenpeace v. National Marine Fisheries Service,
           80 F. Supp.2d 1137 (W.D. Wash. 2000)......................................................................17, 19
12

13   Greenpeace v. National Marine Fisheries Service,
           106 F. Supp.2d 1066 (W.D. Wash. 2000)..........................................................................18
14
     High Sierra Hikers Association v. Blackwell,
15          390 F.3d 630 (9th Cir. 2004) .............................................................................................35
16   Idaho Sporting Congressional v. Alexander,
17          222 F.3d 562 (9th Cir. 2000) .............................................................................................37

18   Kootenai Tribe v. Veneman,
           313 F.3d 1094 (9th Cir. 2002) ................................................................................... passim
19
     Marbled Murrelet v. Babbitt,
20         83 F.3d 1068 (9th Cir. 1996) .............................................................................................36
21
     Metcalf v. Daley,
22          214 F.3d 1135 (9th Cir. 2000) ...........................................................................................15

23   Methow Valley Citizens Council v. Regional Forester,
           833 F.2d 810 (9th Cir. 1987), rev’d on other grounds, 490 U.S. 332 (1989) ......................8
24

25   Motor Vehicle Manufacturer Association v. State Farm Mutual
           Automobile Insurance Co.,
26         463 U.S. 29 (1983).................................................................................................25, 26, 33

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                     Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                    705 Second Ave., Suite 203
                                                                                                       Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - iv -                                                    (206) 343-7340
     National Parks & Conservation Association v. Babbitt,
1
            241 F.3d 722 (9th Cir. 2001) .......................................................................................35, 36
2
     National Wildlife Federation v. FEMA,
3           345 F. Supp.2d 1151 (W.D. Wash. 2004)....................................................................20, 22

4    National Wildlife Federation v. National Marine Fisheries Service,
            422 F.3d 782 (9th Cir. 2005) .............................................................................................36
5

6    National Wildlife Federation v. U.S. Army Corps of Engineers,
            384 F.3d 1163 (9th Cir. 2004) ...........................................................................................27
7
     National Wildlife Federation v. Coleman,
8           529 F.2d 359 (5th Cir. 1976) .............................................................................................20
9
     Natural Resources Defense Council v. Southwest Marine, Inc.,
10          236 F.3d 985 (9th Cir. 2000) .............................................................................................39

11   Natural Resources Defense Council v. U.S. Forest Service,
            421 F.3d 797 (9th Cir. 2005) .....................................................................................6, 7, 39
12

13   Neighbors of Cuddy Mountain v. U.S. Forest Service,
           137 F.3d 1372 (9th Cir. 1998) ...........................................................................................37
14
     Northcoast Environmental Center v. Glickman,
15         136 F.3d 660 (9th Cir. 1998) ...............................................................................................6
16   Northern Spotted Owl v. Hodel,
17          716 F. Supp. 479 (W.D. Wash. 1988)................................................................................34

18   Northwest Ecosystem Alliance v. Rey,
           No. 04-844P, 2006 WL. 44361 (W.D. Wash. Jan. 9, 2006) ..............................................37
19
     ONRC Action v. Bureau of Land Management,
20        150 F.3d 1132 (9th Cir. 1998) ...........................................................................................35
21
     Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation,
22           138 F. Supp.2d 1228 (N.D. Cal. 2001) ........................................................................18, 36

23   Pacific Rivers Council v. Thomas,
             30 F.3d 1050 (9th Cir. 1994) .................................................................................18, 19, 36
24

25   Paulsen v. Daniels,
            413 F.3d 999 (9th Cir. 2005) .......................................................................................37, 38
26

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                     Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                    705 Second Ave., Suite 203
                                                                                                       Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - v -                                                     (206) 343-7340
     Portland Audubon Society v. Endangered Species Committee,
 1
            984 F.2d 1534 (9th Cir. 1993) ...........................................................................................11
 2
     Sierra Club v. Marsh,
 3           816 F.2d 1376 (9th Cir. 1987) .....................................................................................17, 36

 4   Tennessee Valley Authority v. Hill,
           437 U.S. 153 (1978).....................................................................................................17, 36
 5

 6   Thomas v. Peterson,
          753 F.2d 754 (9th Cir. 1985) .......................................................................................18, 36
 7
     Thompson v. Department of Labor,
 8        885 F.2d 551 (9th Cir. 1989) .......................................................................................11, 12
 9
     United States v. Munsingwear, Inc.,
10          340 U.S. 36 (1950).............................................................................................................38

11   Weinberger v. Romero-Barcelo,
           456 U.S. 305 (1982)...........................................................................................................35
12

13   Wyoming v. U.S. Department of Agriculture,
          277 F. Supp.2d 1197 (D. Wyo. 2003), vacated, 414 F.3d 1207 (10th Cir. 2005) .......22, 24
14
     Wyoming v. U.S. Department of Agriculture,
15        414 F.3d 1207 (10th Cir. 2005) .........................................................................................38
16                                                                 STATUTES
17
     5 U.S.C. § 551(13) ...........................................................................................................................3
18
     5 U.S.C. § 706........................................................................................................................ passim
19
     16 U.S.C. § 470..............................................................................................................................28
20

21   16 U.S.C. § 473-82 ........................................................................................................................26

22   16 U.S.C. §§ 528-31 ......................................................................................................................27

23   16 U.S.C. § 551..........................................................................................................................1, 26
24
     16 U.S.C. § 1271............................................................................................................................27
25
     16 U.S.C. § 1531..............................................................................................................................1
26
     16 U.S.C. § 1536(a)(2).................................................................................................16, 17, 18, 19
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                             705 Second Ave., Suite 203
                                                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - vi -                                                             (206) 343-7340
 1
     16 U.S.C. § 1536(b)(3)(A).............................................................................................................17
 2
     16 U.S.C. § 1540(g) .......................................................................................................................16
 3
     16 U.S.C. §§ 1600-1687 ................................................................................................................26
 4
     16 U.S.C. § 1604(a) .......................................................................................................................27
 5

 6   16 U.S.C. § 1604(g)(3)(B) .......................................................................................................27, 32

 7   16 U.S.C. § 1604(g)(3)(E)(i) and (iii)............................................................................................27
 8   25 U.S.C. § 3001............................................................................................................................28
 9
     33 U.S.C. § 1323(a) .......................................................................................................................27
10
     42 U.S.C. § 4321..............................................................................................................................1
11
     42 U.S.C. § 300..............................................................................................................................27
12

13   42 U.S.C. § 4332(2) .........................................................................................................................4

14   42 U.S.C. § 7401............................................................................................................................27

15                                                             REGULATIONS
16   40 C.F.R. § 1502.13 .........................................................................................................................8
17
     40 C.F.R. § 1502.14 .........................................................................................................................7
18
     40 C.F.R. § 1502.14(a).....................................................................................................................7
19
     40 C.F.R. § 1502.14(d) ....................................................................................................................9
20

21   50 C.F.R. § 402.02 ...................................................................................................................19, 20

22   50 C.F.R. Part 402..........................................................................................................................24

23   50 C.F.R. § 402.13 .........................................................................................................................18
24
     50 C.F.R. § 402.14 .............................................................................................................17, 18, 22
25

26

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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                             705 Second Ave., Suite 203
                                                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - vii -                                                            (206) 343-7340
                                                             MISCELLANEOUS
 1

 2   51 Fed. Reg. 19,926 (June 3, 1986) .........................................................................................20, 24

 3   65 Fed. Reg. 67,514 (Nov. 9, 2000)...............................................................................................26
 4   66 Fed. Reg. 3,243 (Jan. 12, 2001) ........................................................................................ passim
 5
     68 Fed. Reg. 41,864 (July 15, 2003)..............................................................................................38
 6
     68 Fed. Reg. 75,136 (Dec. 30, 2003) .................................................................................23, 38, 39
 7
     69 Fed. Reg. 42,636 (July 16, 2004)..............................................................................................23
 8

 9   70 Fed. Reg. 25,654 (May 13, 2005) ..................................................................................... passim

10   Fed. R. Civ. P. 56(a) ........................................................................................................................1

11   Fed. R. Civ. P. 56(c) ........................................................................................................................3
12   Charles F. Wilkinson and H. Michael Anderson, Land and Resource Planning in the
13          National Forests (1987)......................................................................................................27

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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                                             705 Second Ave., Suite 203
                                                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - viii -                                                           (206) 343-7340
                                          NOTICE OF MOTION
1

2           Pursuant to Fed. R. Civ. P. 56(a), plaintiffs The Wilderness Society et al. (“TWS”)

3    respectfully move this Court for summary judgment and declaratory and injunctive relief. The

4    Court has scheduled a hearing for July 25, 2006 at 9:00 a.m.
5           TWS asks the Court to declare the Final Rule, Special Areas; State Petitions for
6
     Inventoried Roadless Area Management (“Roadless Repeal), 70 Fed. Reg. 25,654 (May 13,
7
     2005) invalid pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
8
     seq.; the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.; and the Administrative
9

10   Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Plaintiffs further ask the Court to issue an

11   injunction (1) vacating and setting aside the Roadless Repeal; (2) reinstating the Roadless Area

12   Conservation Rule (“Roadless Rule”), 66 Fed. Reg. 3,243 (Jan. 12, 2001); and (3) prohibiting
13
     federal defendants U.S. Forest Service et al. from undertaking any actions in violation of the
14
     Roadless Rule until they comply with applicable legal requirements.
15
            This motion is based on the accompanying memorandum, the pleadings previously filed
16
     with the Court, the declarations, exhibits, and other papers submitted herewith, the
17

18   memorandum, declarations, exhibits, and other papers submitted by the State of California et al.

19   in the related case,1 and such other evidence as the Court deems appropriate.
20                                          INTRODUCTION
21          Roadless National Forest lands represent some of the last unprotected remnants of the
22

23   1
       TWS’s case is related to People of the State of California et al. v. U.S. Dep’t of
24   Agriculture, No. 05-03508-EDL (“States’ Action”). By agreement and request of the Court,
     plaintiffs in both cases have coordinated their summary judgment briefing as much as possible.
25   TWS will incorporate by reference certain arguments advanced in the States’ Action and will use
     materials submitted in the States’ Action, if necessary, instead of submitting duplicate copies.
26
     Additionally, the States and TWS are submitting Joint Excerpts of the Administrative Records
27   for the Court’s convenience.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                             Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                            705 Second Ave., Suite 203
                                                                               Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 1 -                             (206) 343-7340
     United States’ once-vast forested wildlands. These relatively unspoiled areas provide the habitat
1

2    and migration corridors essential for healthy populations of elk, moose, deer, grizzly bears, and a

3    host of other wildlife species. Roadless areas provide the clean water necessary to protect
4    dwindling populations of salmon, steelhead, and other native fish and aquatic species. Roadless
5
     areas also provide unique hiking, fishing, and other recreational opportunities not found in more
6
     developed national forest areas.
7
            This case is about those roadless areas and about what kind of protection, if any, we give
8

9    to our last, pristine public lands. This case is also about how federal agencies make and unmake

10   regulatory decisions. In 2001, at the end of an extensive administrative process, the Forest

11   Service adopted the Roadless Rule, a rule that, with specified exceptions, “prohibit[ed] road
12   construction, reconstruction, and timber harvest in inventoried roadless areas because they have
13
     the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term
14
     loss of roadless values and characteristics.” 66 Fed. Reg. at 3,244.
15
            But 2001 also brought a change in the Executive Branch, and, on May 13, 2005, the
16

17   Forest Service repealed the Roadless Rule and replaced it with a process in which states may

18   petition the Forest Service to adopt rules specific to roadless areas within their state. In sharp

19   contrast to the process leading to the adoption of the Roadless Rule, for the Roadless Repeal, the
20   Forest Service engaged in no environmental analysis under NEPA, nor did the agency comply
21
     with the consultation requirements of the ESA. Plaintiffs challenge both those failings.
22
     Additionally, while a federal agency has the discretion to change its mind about regulations,
23
     when doing so, it must engage in rational, internally consistent reasoning that is supported by
24

25   substantial evidence. Such reasoned decisionmaking is missing from the Forest Service’s

26   Roadless Repeal. Plaintiffs challenge this failing as well. For these violations of law, TWS

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 2 -                                (206) 343-7340
     seeks declaratory and injunctive relief, including reinstatement of the 2001 Roadless Rule.
1

2                                             JURISDICTION

3           TWS challenges a final agency action as defined by the APA, 5 U.S.C. § 551(13), and the

4    Court has jurisdiction over this action pursuant to 5 U.S.C. § 706. Plaintiffs have standing
5    because their members regularly use and enjoy roadless areas across the nation. The injury to
6
     plaintiffs caused by federal defendants’ violations of NEPA, ESA, and the APA can be remedied
7
     by the relief sought in this action. See Declarations of Irene Alexakos (Feb. 14, 2006), Michael
8
     Anderson (Feb. 14, 2006), David Bayles (Feb. 20, 2006), David Beebe (Feb. 15, 2006), Corrie
9

10   Bosman (Feb. 22, 2006), Doug Heiken (Feb. 15, 2006), Ryan Henson (Feb. 17, 2006), Marv

11   Hoyt (Feb. 21, 2006), Marcel LaPerriere (Feb. 16, 2006), Erik Molvar (Feb. 21, 2006), Jonathan

12   Oppenheimer (Feb. 16, 2006), Carl Siechert (Feb. 22, 2006), Suzanne Stone (Feb. 23, 2006),
13
     Barbara Ullian (Feb. 22, 2006), and David Werntz (Feb. 22, 2006), filed concurrently.2
14
                                        FACTUAL BACKGROUND
15
            TWS adopts and incorporates by reference the “Factual and Procedural Background”
16
     section of the States’ Summary Judgment Motion (Feb. 24, 2006) at 6-14.
17

18                                      STANDARDS OF REVIEW

19          Summary judgment must be granted where “there is no genuine issue as to any material

20   fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
21   Plaintiffs’ motion raises purely legal issues based on an administrative record, rendering
22
     summary judgment appropriate.
23
            Judicial review of plaintiffs’ claims is governed by the APA, 5 U.S.C. § 706(2). Under
24

25
     2
      TWS has not submitted a standing declaration for each of the twenty environmental plaintiffs;
26
     however, TWS is prepared to do so to support all environmental plaintiffs’ standing if the Court
27   desires.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 3 -                               (206) 343-7340
     the APA, courts are to set aside agency action that is “arbitrary, capricious, an abuse of
1

2    discretion, or otherwise not in accordance with law,” or found to be “without observance of

3    procedure required by law.” 5 U.S.C. § 706(2)(A), (D). The standards of review for each of
4    TWS’s claims are discussed in the respective arguments below.
5
                                                ARGUMENT
6
     I.     AN ENVIRONMENTAL IMPACT STATEMENT IS REQUIRED TO EVALUATE
7           REASONABLE ALTERNATIVES TO THE ROADLESS REPEAL.

8           The Forest Service must prepare an environmental impact statement (“EIS”) for the
9    purpose of considering reasonable alternatives to the Roadless Repeal. When the Forest Service
10
     proposed to repeal the Roadless Rule, the agency identified a number of concerns prompting it to
11
     take action. However, the agency put before the public but a single proposal to address these
12
     concerns: the wholesale repeal of the rule and its replacement with a state petition process.
13

14   There are other reasonable alternatives, retaining the basic rule, that would address the agency’s

15   stated concerns as least as well as the Roadless Repeal, with less adverse impact to the

16   environment. One option is to expand or amend the list of exceptions to the rule to address
17   concerns that the rule is too inflexible, rather than casting aside the entire rule. Another
18
     alternative is to allow states to submit petitions to opt out of the rule. While the agency retains
19
     the ultimate discretion to choose rationally among these alternatives, NEPA requires the agency
20
     to disclose them, to discuss their impacts, and to accept public comment on them in an EIS,
21

22   before taking action. This is one of the most fundamental requirements of NEPA, and the Forest

23   Service violated it here.

24          As a threshold matter, there can be no serious dispute that a rule of this type is generally a
25
     “major Federal action significantly affecting the quality of the human environment” requiring an
26
     EIS under NEPA. 42 U.S.C. § 4332(2)(C). The Ninth Circuit held that an EIS was required for
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 4 -                                (206) 343-7340
     the adoption of the Roadless Rule initially, even though it was a rule that would “leave nature
1

2    alone.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1115 (9th Cir. 2002). It would make no

3    sense to require compliance with NEPA to take an action that protects the environment, like
4    adoption of the Roadless Rule, but to exempt an action that may cause significant adverse effects
5
     to the environment, like the Repeal. This would contradict the purpose of NEPA, which “is first
6
     and foremost to protect the natural environment.” Id. at 1123. See also Ashley Creek Phosphate
7
     Co. v. Norton, 420 F.3d 934, 945 (9th Cir. 2005) (“Each of NEPA’s various procedural
8

9    provisions is designed to further that goal of environmental protection.”).

10          Perhaps recognizing this contradiction, the Forest Service addressed NEPA compliance

11   explicitly in the Federal Register notice promulgating the Roadless Repeal and advanced three
12   justifications for its refusal to prepare an EIS: (1) the impacts would be the same as those of the
13
     “no action alternative” disclosed in the Roadless Rule Final Environmental Impact Statement
14
     (“FEIS”); (2) the final rule repealing the Roadless Rule is categorically excluded from NEPA
15
     because it is merely procedural; and (3) the Forest Service would fully consider the
16

17   environmental impacts of any rulemaking resulting from state petitions at the time any such

18   rulemaking occurred. AR SPR-095, Roadless Repeal, 70 Fed. Reg. 25,654, 25,660 (May 13,

19   2005).3 None of these arguments can withstand scrutiny.
20

21

22   3
       The Forest Service has filed an administrative record that both state and environmental
23   plaintiffs believe is incomplete, and plaintiffs have a joint motion to complete the administrative
     record before the Court. For this opening brief, TWS refers to the documents in the record as
24   currently produced in the following manner: documents that can be found in the record are cited
     by Administrative Record number, document name, and internal page number (i.e., AR SPR-
25   043, FRWG, Final Recommendations (March 26, 2003) at 2). Documents not in the record are
     cited by exhibit number submitted concurrently with this motion (Environmental Plaintiffs’ Exh.
26
     1-2). Documents cited many times, such as the Federal Register notice for the Roadless Repeal,
27   will be cited by AR number only the first time the citation appears and by title thereafter.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                 Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                705 Second Ave., Suite 203
                                                                                   Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 5 -                                 (206) 343-7340
            A.      Standard of Review
1

2           Review for compliance with NEPA occurs under the provision of the APA that

3    authorizes courts to set aside agency actions adopted “without observance of procedure required

4    by law.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 810 n.27 (9th Cir. 2005)
5    (quoting 5 U.S.C. § 706(2)(D)); Center for Biological Diversity v. U.S. Forest Serv., 349 F.3d
6
     1157, 1165 (9th Cir. 2003). The question of whether the Roadless Rule FEIS provides adequate
7
     analysis to support the 2005 Roadless Repeal is addressed under a “rule of reason” standard:
8
            We apply a “rule of reason” standard when reviewing the adequacy of an
9
            agency’s EIS, asking “whether an EIS contains a reasonably thorough discussion
10          of the significant aspects of the probable environmental consequences.” Churchill
            County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001), amended by 282 F.3d
11          1055 (9th Cir. 2002). Under this standard, we make “a pragmatic judgment
            whether the EIS’s form, content and preparation foster both informed decision-
12          making and informed public participation.” Id.
13   Natural Res. Def. Council, 421 F.3d at 810 n.27. The question of whether the Forest Service
14
     may invoke a categorical exclusion to avoid compliance with NEPA is, in this case, primarily a
15
     legal issue based on undisputed facts. In these cases, the court applies a “reasonableness”
16
     standard of review, which is less deferential than the “arbitrary and capricious” standard
17

18   applicable to factual or technical determinations within the agency’s expertise. Northcoast

19   Envt’l Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir. 1998).

20          B.      The Roadless Rule FEIS Was Written to Advance a Different Purpose and Does
                    Not Consider Reasonable Alternatives to the Roadless Repeal.
21
            The Forest Service’s first asserted justification for refusing to prepare an EIS for the
22

23   Roadless Repeal is that the impacts of the repeal “are essentially those disclosed and discussed

24   for the no action alternative displayed in the [Roadless Rule] FEIS.” Roadless Repeal, 70 Fed.
25   Reg. at 25,660. The FEIS does not provide adequate documentation for the Roadless Repeal,
26
     however, because that FEIS was written for a different purpose and does not analyze reasonable
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 6 -                               (206) 343-7340
     alternatives to the Repeal in light of the agency’s new underlying goals. Even if it were true that
1

2    the “no action alternative” in the FEIS adequately discloses the impacts of the Roadless Repeal,4

3    it misses the point. The point is that a new EIS is needed to analyze alternatives to the Roadless
4    Repeal that reflect the Repeal’s underlying purposes.
5
                    1.      An EIS must consider all reasonable alternatives consistent with the
6                           purpose and need for the action.

7           In an EIS, agencies must “[r]igorously explore and objectively evaluate all reasonable

8    alternatives” to a proposed decision with potentially significant environmental consequences.
9
     40 C.F.R. § 1502.14(a). The study of alternatives to an agency’s proposed course of action is the
10
     “heart” of an EIS. City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th
11
     Cir. 1997) (quoting 40 C.F.R. § 1502.14).
12
            The goal of the statute is to ensure that federal agencies infuse in project planning
13
            a thorough consideration of environmental values. The consideration of
14          alternatives requirement furthers that goal by guaranteeing that agency
            decisionmakers have before them and take into proper account all possible
15          approaches to a particular project (including total abandonment of the project)
            which would alter the environmental impact and the cost-benefit balance. …
16          Informed and meaningful consideration of alternatives—including the no action
            alternative—is ... an integral part of the statutory scheme.
17

18   Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995)

19   (quoting Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988)) (emphasis

20   removed). “The existence of a viable but unexamined alternative renders an environmental
21   impact statement inadequate.” Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057
22
     (9th Cir. 1985). See also Natural Res. Def. Council, 421 F.3d at 813.
23

24
     4
       Plaintiffs do not concede this point. First, the Roadless Rule FEIS does not disclose the
25   impacts of adopting a state petition process. Second, circumstances have changed since the FEIS
     was published such that the “no action alternative” no longer reflects 2005 baseline conditions in
26
     the absence of the Roadless Rule. TWS joins in the States’ argument on this point. See States’
27   Motion for Summary Judgment at 27-29.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 7 -                              (206) 343-7340
            The scope of reasonable alternatives is determined by the “underlying purpose and need”
1

2    for the agency’s action. City of Carmel-by-the-Sea, 123 F.3d at 1155 (quoting 40 C.F.R.

3    § 1502.13); Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815-16 (9th Cir.
4    1987), rev’d on other grounds, 490 U.S. 332 (1989). If the underlying purpose of the action
5
     changes, the range of reasonable alternatives to the action may change as well, and a new EIS
6
     may be required. See Alaska Wilderness Recreation & Tourism Ass’n, 67 F.3d at 729-30
7
     (holding supplemental EIS required to consider new alternatives where purpose changed from
8

9    meeting timber volume requirements of specific contract to meeting general forest plan goals).

10   While the agency retains discretion as to which among the reasonable alternatives to select in its

11   final decision, the EIS must disclose the effects of all the reasonable alternatives. See id. at 730
12   (“While we cannot predict what impact the elimination of the [long-term] contract will have on
13
     the Forest Service’s ultimate land use decisions, clearly it affects the range of alternatives to be
14
     considered.”).
15
                      2.    The purpose and need for the Roadless Repeal differed significantly from
16                          that of the Roadless Rule FEIS.
17
            As required by NEPA regulations, 40 C.F.R. § 1502.13, the FEIS for the original
18
     Roadless Rule states its underlying purpose and need explicitly: “The purpose of this action is to
19
     conserve and protect the increasingly important values and benefits of roadless areas by …
20
     prohibiting activities that have the greatest likelihood of degrading desirable characteristics of
21

22   inventoried roadless areas….” AR RACR-4609, Roadless Rule FEIS (Nov. 2000) at 1-14. The

23   FEIS continues:
24          This action is needed because:
25
        •   Road construction, reconstruction, and timber harvest activities in inventoried roadless
26          can directly threaten the fundamental characteristics of these areas by altering natural
            landscapes, including habitat fragmentation and changes in native plant and animal
27          communities;
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 8 -                                (206) 343-7340
        •   Budget constraints permit only a small portion of the Agency road system to be
1
            effectively managed; and
2       •   National concern over roadless area management continues to generate controversy,
            including costly and time-consuming appeals and litigation.
3
     FEIS at 1-14 to 1-15. The FEIS proceeds to explain that a national rule is needed, because
4

5    “[l]ocal land management planning efforts may not always recognize the cumulative national

6    significance of inventoried roadless areas and the values they represent, especially given the

7    increasing development of the nation’s landscape.” Id. at 1-15.
8           Consistent with these purposes, the FEIS considered four principal alternatives, with four
9
     variations applicable to the Tongass National Forest in Alaska. Id. at 2-3 to 2-12. The first was
10
     the “no action” alternative required by NEPA. 40 C.F.R. § 1502.14(d). The other three
11
     alternatives and Tongass variations all involved a national rule to conserve roadless areas; none
12

13   of them included any type of state petition process. FEIS at 2-3 to 2-12. In the face of a

14   challenge to these alternatives, the Ninth Circuit held that the agency’s purposes were

15   reasonable, that the alternatives were specifically designed to achieve these purposes, and that
16
     the alternatives provided a legally adequate range of choices in light of these purposes. Kootenai
17
     Tribe, 313 F.3d at 1120-23 (reversing preliminary injunction of Roadless Rule because “[t]he
18
     Forest Service’s consideration of the three alternatives was adequate….”).
19
            The Forest Service significantly changed its underlying purposes when it proposed and
20

21   adopted the Roadless Repeal, and the reasonable alternatives changed accordingly. Because

22   there was no EIS for the decision, there was no formal statement of purpose and need, but the
23   agency explained its purposes in the Federal Register notice adopting the Roadless Repeal.
24
     There, the agency identified numerous purposes, reiterating the core purposes stated in the
25
     Roadless Rule FEIS, but adding significant new concerns that led the agency to propose a
26
     different course of action. The agency reasserted its “commitment to the objective of conserving
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 9 -                              (206) 343-7340
     inventoried roadless area values in the [National Forest System]” and reaffirmed the principal
 1

 2   purpose of the Roadless Rule, which was to “address those activities having the greatest

 3   likelihood of altering, fragmenting, or otherwise degrading roadless area values and
 4   characteristics.” Roadless Repeal, 70 Fed. Reg. at 25,654. See also id. at 25,655 (expressing
 5
     Department’s commitment to “conserving and managing inventoried roadless areas”). The
 6
     agency stated in general terms that its goals were “to improve protection and accomplishment of
 7
     management objectives…,” and “to design an improved system for protecting roadless areas.”
 8

 9   Id. at 25,658. The notice also describes numerous other goals that led to the new rule: to

10   “enhanc[e] roadless area values and characteristics,” id. at 25,654, 25,656; to correct the

11   ostensibly inflexible “one-size-fits-all” approach of the original rule, id. at 25,656; to provide
12   access for active management “to restore or maintain habitat conditions for the management of
13
     some fish and wildlife species,” id. at 25,654; to collaborate with states to recognize local
14
     situations and resolve unique management challenges, id. at 25,655; and to address concerns
15
     raised by the parties that filed lawsuits challenging the original rule. Id. at 25,654. The concerns
16

17   raised in the litigation included:

18           the sufficiency and the accuracy of the information available for public review
             during the rulemaking process; the inclusion of an estimated 2.8 million acres of
19           roaded lands in the inventoried roadless area land base; the denial of requests to
             lengthen the public review period; the denial of cooperating agency status
20           requested by several Western States; the sufficiency of the range of alternatives
21           considered in the rulemaking process; the need for flexibility and exceptions to
             allow for needed resource management activities; and the changes made in the
22           final rule after the closure of the public comment period. Concerns were also
             expressed about applying one set of standards uniformly to every inventoried
23           roadless area.
24   Id. Though not grouped this way by the agency, these various purposes fall into four general
25
     categories: (1) conserving or enhancing roadless areas; (2) providing more flexibility than the
26
     original rule; (3) providing for more collaboration with states; and (4) addressing perceived flaws
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 10 -                               (206) 343-7340
     in the procedure followed for adopting the original rule.
 1

 2                   3.     The changed purpose and need required the consideration of new
                            alternatives that had never been considered in an EIS.
 3
              Notwithstanding these multiple concerns and goals, the agency proposed only one option
 4
     to address them: the complete repeal of the Roadless Rule and its replacement with a state
 5

 6   petition process. This was not the only alternative that would adequately address these

 7   underlying purposes. Other options identified by the public and by the agency itself would meet

 8   all of these goals with less adverse impact to the environment. NEPA requires the agency to
 9
     consider such alternatives in an EIS before adopting a new rule.
10
              One obvious alternative would be to expand the exceptions contained in the original rule,
11
     or otherwise refine the rule, to address various concerns raised about it. This was the direction
12
     the Forest Service originally announced. On May 4, 2001, the U.S. Department of Agriculture
13

14   (“USDA”) issued a press release announcing that it would “allow[] the current Rule to go into

15   effect on May 12, 2001 with amendments to be proposed in June.” AR SPR-002, USDA
16   Remarks on Roadless Rule (May 4, 2001). The agency actions were “aimed at protecting the
17
     principles of the rule, correcting data errors, and addressing concerns raised by the court, local
18
     communities, tribes, and state governments.” Id. On the same day, the USDA filed a status
19
     report, accompanied by a sworn declaration from the Chief of the Forest Service, in the U.S.
20
     District Court for the District of Idaho explaining the agency’s actions in greater detail. The
21

22   status report explained that the USDA “is developing proposed amendments to the Rule that will

23   seek to maintain the protections embodied in the current rule” while addressing other concerns.
24   Environmental Plaintiffs’ Exh. 1, Federal Defendants’ Status Report with attached Declaration of
25
     Dale Bosworth (May 4, 2001) at 3.5 The Forest Service Chief explained that the USDA and
26

27   5
         The USDA Status Report and Bosworth Declaration at Exh. 1 were not included in the
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 11 -                              (206) 343-7340
     Forest Service would:
 1

 2          propose amendments to the regulation which will (1) retain the Rule’s principles
            against timber harvesting and road building within our National Forest System;
 3          (2) address the concerns which have been expressed by States, Tribes, local
            communities, and this Court with regard to the process through which the Rule
 4          was promulgated; and (3) examine possible modifications to the Rule’s present
            exceptions in order to augment local participation while seeking to maintain the
 5
            roadless area values and characteristics which the current Rule protects.
 6
     Id. at ¶ 4. These options could address all of the purposes stated in the Federal Register notices
 7
     eventually published in connection with the Roadless Repeal, with less adverse impact to the
 8
     environment. NEPA requires agencies to consider alternatives such as these in an EIS.
 9

10          This was similar to the recommendation of the Forest Roads Working Group (“FRWG”),

11   a multi-stakeholder collaborative process supported by the Forest Service to address the debate

12   over the Roadless Rule. The Group consisted of conservation groups, sportspersons, members of
13
     the forest products industry, and outdoor recreation business. AR SPR-043, FRWG Final
14
     Recommendations (March 26, 2003) at 1. The Forest Service encouraged and participated in this
15
     process. See, e.g., AR SPR-018, Letter from Dale Bosworth, Chief, U.S. Forest Service, to
16
     James Range (Nov. 7, 2001). After conducting a dialogue attended by over 40 people with
17

18   diverse interests, FRWG Final Recommendations at 4, the Group recommended retaining the

19
     administrative record filed with this Court, but clearly should have been. They are public
20
     documents from the key decisionmakers explaining in detail the agency’s actions announced in
21   the May 4, 2001 press release that was included in the record. It is implausible that, in the
     decision process, the decisionmakers could have considered their press release but not their own
22   more detailed statements explaining their actions, particularly a sworn declaration signed by one
     of them. Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir.
23   1993) (“The ‘whole record’ includes everything that was before the agency pertaining to the
24   merits of its decision.”); Thompson v. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (“The
     ‘whole’ administrative record, therefore, consists of all documents and materials directly or
25   indirectly considered by agency decisionmakers and includes evidence contrary to the agency’s
     position.”) (emphasis in original). Plaintiffs request that the Court consider the Status Report,
26   including the Bosworth Declaration, as part of the record.
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 12 -                             (206) 343-7340
     Roadless Rule, but recognized that many participants in the process “felt that the current
 1

 2   exceptions are neither broad enough nor sufficiently flexible to accommodate legitimate, local

 3   needs and concerns.” Id. at 16. Accordingly, the Group recommended convening an advisory
 4   committee that would address:
 5
            (a) the structure of the rule and its decision-making process, including questions
 6          such as the relevance of geographic and historical differences among areas, the
            importance of current forest plan designations, and appropriate means of
 7          considering local needs and perspectives; (b) management approaches for
            addressing recreational vehicle impacts; (c) fire and fuels management policy;
 8          (d) access to public and private lands for ecosystem improvements;
 9          (e) mechanisms to assure the accuracy of [Roadless Area Conservation Rule]
            coverage; and (f) policies that can reduce pressures on the IRAs by improved
10          management of roaded areas.

11   Id. at 20. The Forest Service, however, failed to analyze such an alternative.

12          Another obvious alternative would be to retain the original Roadless Rule, but permit
13
     states to petition for exceptions to it or to opt out altogether. This was also a Forest Service idea
14
     reflected in the record. On June 9, 2003, the agency issued a press release proposing this
15
     alternative:
16
            The USDA Forest Service will propose for public review an amendment to the
17
            rule to identify how Governors may seek relief for exceptional circumstances,
18          such as to protect public health and safety or reduce wildfire risks to communities
            and critical wildlife habitat. These exceptions will clarify and augment
19          exceptions already present in the rule. The rule will remain unchanged in states
            where Governors choose not to seek relief for exceptional circumstances.
20
     AR SPR-045, News Release (June 9, 2003).
21

22          These ideas are not mutually exclusive. A reasonable alternative might retain the core

23   rule while expanding the exceptions, refining the coverage, and/or providing for a state petition

24   process. Public comments on the proposed Roadless Repeal supported an EIS that would
25
     consider such alternatives. AR SPR-081, Content Analysis Team, Issues Narrative (April 8,
26
     2005) at 1-17) (“The absence of public meetings and of alternatives to the proposed rule was the
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 13 -                               (206) 343-7340
     issue most often raised.”); see also id. at 2-21 to 2-22, 2-46 to 2-47.
 1

 2           Each of these alternatives would meet the agency’s purposes as described in the Federal

 3   Register notices proposing and adopting the Roadless Repeal. Indeed, they would fit the
 4   purposes better in many respects. For example, one major set of concerns about the original
 5
     Roadless Rule involved perceived deficiencies in the FEIS process, such as allegedly insufficient
 6
     information, allegedly insufficient time to comment, the denial of cooperating agency status to
 7
     some states, and an allegedly inadequate range of alternatives. A more responsive way to
 8

 9   address these concerns would be by preparing a new EIS that specifically addresses perceived

10   deficiencies – not by repealing the rule in its entirety.

11           Notwithstanding the high level of public interest in a process that would consider less
12   extreme approaches to achieve the agency’s stated objectives, the Forest Service refused to
13
     prepare an EIS or to evaluate publicly any alternatives other than the course of action selected by
14
     the agency internally. When an agency changes its purposes in a way that changes the
15
     reasonable alternatives to the proposed action, a new EIS is required. See Alaska Wilderness
16

17   Recreation & Tourism Ass’n, 67 F.3d at 729-30. The agency’s reliance on the FEIS is misplaced

18   because that FEIS was prepared for a different purpose and did not address reasonable

19   alternatives in light of the agency’s new purposes.
20           C.      The Roadless Repeal Is Not Categorically Excluded From NEPA.
21
             The Forest Service’s second stated reason for refusing to prepare an EIS is that the
22
     Roadless Repeal “is merely procedural in nature and scope and, as such, has no direct, indirect,
23
     or cumulative effect on the environment.” Roadless Repeal, 70 Fed. Reg. at 25,660. Contrary to
24

25   this assertion, the Roadless Repeal is not “merely procedural.” It repealed a rule that the

26   defendants themselves have described in this litigation as providing “substantive site-specific

27   management direction and allocations for 58.5 million acres of federal lands.” Opposition to
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 14 -                             (206) 343-7340
     Plaintiffs’ Joint Motion to Compel Completion of Admin. Record at 11 (Feb. 21, 2006)
 1

 2   (emphasis added). It is not plausible to argue that the adoption of the rule was substantive while

 3   its repeal was merely procedural. If the adoption of the Roadless Rule in the first instance
 4   required an EIS, as held in Kootenai Tribe, 313 F.3d at 1114-15, then clearly the repeal of the
 5
     same rule cannot be categorically excluded. TWS joins in the argument of the States on this
 6
     point. See States’ Summary Judgment Motion at 19-23.
 7
               D.      Future EISs for Possible State Petitions Cannot Remedy the Lack of an EIS for
 8                     the Roadless Repeal.
 9
               Finally, the Forest Service argues that “subsequent State-specific inventoried roadless
10
     area rulemaking may be proposed in the future, at which time, the Forest Service would fully
11
     consider the environmental effects of that rulemaking in compliance with National
12
     Environmental Policy Act (NEPA) procedures.” Roadless Repeal, 70 Fed. Reg. at 25,660. The
13

14   possible future preparation of state-specific EISs does not remedy the lack of an EIS for the

15   Roadless Repeal because NEPA requires an agency to prepare an EIS before taking action. See

16   Metcalf v. Daley, 214 F.3d 1135, 1141-45 (9th Cir. 2000) (agency violated NEPA by committing
17
     to action before preparing environmental assessment). Here, the agency has already repealed the
18
     Roadless Rule without having considered the alternatives in an EIS, and it is proceeding with
19
     actions that would have violated the Roadless Rule. See, e.g., Hoyt Decl. at ¶¶ 11-12. Even if
20
     the agency later prepares EISs for state-specific actions – a possibility that is by no means
21

22   certain – it will be too late to assess alternatives to the Roadless Repeal. Further, many of the 39

23   states with national forest roadless areas may never submit petitions, and the substantive
24   protections of the Roadless Rule will have been lost without the consideration of reasonable
25
     alternatives.6 TWS joins in the argument of the States on this point. See States’ Summary
26

27   6
         A state’s decision not to submit a petition will not necessarily indicate a lack of concern for
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                 Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                705 Second Ave., Suite 203
                                                                                   Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 15 -                                (206) 343-7340
     Judgment Motion at 29-34.
 1

 2   II.    THE FOREST SERVICE VIOLATED THE ENDANGERED SPECIES ACT.

 3          TWS also seeks to remedy federal defendants’ failure to comply with one of the most

 4   important requirements of the Endangered Species Act – the obligation of all federal agencies
 5   under § 7(a)(2) to “insure that any action … by such agency … is not likely to jeopardize” a
 6
     species protected by the Act. 16 U.S.C. § 1536(a)(2). In particular, the Forest Service has failed
 7
     to consult with either the United States Fish and Wildlife Service (“FWS”) or the National
 8
     Marine Fisheries Service (“NMFS”), as the ESA requires, and obtain biological opinions
 9

10   concerning the effects of the Roadless Repeal on threatened and endangered species. When the

11   Roadless Rule was originally promulgated, the Forest Service consulted with FWS and NMFS,

12   but it failed to do so when it repealed this protective rule. That failure violates the ESA.7
13
            A.      Standard of Review
14
            This Court reviews the failure of the Forest Service to comply with the mandates of the
15
     ESA under the arbitrary, capricious, and contrary to law standard of the APA, 5 U.S.C.
16
     § 706(2)(A); see Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir. 1988). “Agency decisions
17

18   may not, of course, be inconsistent with the governing statute.” Defenders of Wildlife v. U.S.

19   Environmental Protection Agency, 420 F.3d 946, 959 (9th Cir. 2005), citing 5 U.S.C. § 706(2)(A)

20   (instructing courts to “set aside” agency action “not in accordance with law”). The meaning of
21

22   roadless areas. The petition process is time-consuming, expensive, and uncertain to produce
     results. It is also risky, for even a successful petition does not guarantee the requested level of
23   protection, only that a rulemaking will be initiated. Moreover, state-by-state petitions cannot
     ensure the landscape-wide protection that the Forest Service originally determined was needed.
24
     7
       The Court has jurisdiction over this claim under the ESA citizen suit provision, 16 U.S.C.
25   § 1540(g). All plaintiffs except Biodiversity Conservation Alliance, Environmental Protection
     Information Center, Forests Forever, Greenpeace, and National Audubon Society sent a 60-day
26
     notice letter of intent to sue on June 8, 2005 (attached as Exhibit A to TWS’s Complaint); those
27   five groups do not join in this claim.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 16 -                              (206) 343-7340
     “agency action” under the ESA is a legal issue reviewed de novo by this Court. See Greenpeace
 1

 2   v. NMFS, 80 F. Supp.2d 1137, 1144 (W.D. Wash. 2000) (“Greenpeace I”).

 3          B.      The ESA Requires All Federal Agencies to Ensure That Their Actions Do Not
                    Harm Threatened and Endangered Species or Their Habitat.
 4
            The U.S. Supreme Court has called the ESA “the most comprehensive legislation for the
 5

 6   preservation of endangered species ever enacted by any nation.” Tennessee Valley Auth. v. Hill,

 7   437 U.S. 153, 180 (1978). “The plain intent of Congress in enacting [the ESA] was to halt and

 8   reverse the trend toward species extinction, whatever the cost.” Id. at 184. The ESA reflects “a
 9
     conscious decision by Congress to give endangered species priority over the ‘primary missions’
10
     of federal agencies.” Id. at 185. To accomplish this goal, the ESA includes both substantive and
11
     procedural provisions designed to protect and recover imperiled species.
12
            For federal actions, the heart of the ESA is section 7(a)(2), which requires that every
13

14   federal agency insure that its actions are not likely to “jeopardize” a listed species or “adversely

15   modify” its critical habitat. 16 U.S.C. § 1536(a)(2). The obligation to “insure” against a
16   likelihood of jeopardy or adverse modification requires the agencies to give the benefit of the
17
     doubt to endangered species and to place the burden of risk and uncertainty on the proposed
18
     action. See Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987). To ensure that this strict
19
     substantive mandate is carried out, agencies must engage in a consultation process with the
20
     appropriate expert wildlife agency on the impacts of any federal action to listed species.
21

22          The formal consultation process commences when a federal agency determines that a

23   proposed federal action “may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a).
24   Consultation is complete when NMFS or FWS issues a “biological opinion” that determines if
25
     the action is likely to jeopardize the species. If so, the opinion may specify alternatives that will
26
     avoid jeopardy while still allowing the agency to proceed with the action. 16 U.S.C.
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 17 -                               (206) 343-7340
     § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(5)-(6); (h)(3); (i)(1)-(2). NMFS or FWS may also
 1

 2   suggest modifications to the action to limit negative impacts even when it concludes that

 3   jeopardy is unlikely. Id.; 50 C.F.R. § 402.13. Under this framework, federal actions that may
 4   affect a listed species may not proceed unless and until the federal agency insures, through
 5
     completion of the consultation process with the issuance of a biological opinion, that the action is
 6
     not likely to cause jeopardy. See 16 U.S.C. § 1536(a); 50 C.F.R. §§ 402.13, 402.14; Conner, 848
 7
     F.2d at 1455. In carrying out these duties, agencies are required to use the best scientific
 8

 9   information available. 16 U.S.C. § 1536(a)(2).

10          The Ninth Circuit, and this Court, have emphasized that strict compliance with the ESA’s

11   procedures is critical to the success of the ESA, because only through the consultation process
12   can the effects of agency action on listed species be fully and objectively evaluated. See Thomas
13
     v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985); PCFFA v. U.S. Bureau of Reclamation, 138 F.
14
     Supp.2d 1228, 1248-50 (N.D. Cal. 2001); Greenpeace v. NMFS, 106 F. Supp.2d 1066, 1073
15
     (W.D. Wash. 2000) (“Greenpeace II”). Accordingly, scrupulous adherence to the letter and spirit
16

17   of the ESA consultation process is to be strictly enforced by the courts.

18          [T]he strict substantive provisions of the ESA justify more stringent enforcement
            of its procedural requirements, because the procedural requirements are designed
19          to ensure compliance with the substantive provisions . . .. If a project is allowed
            to proceed without substantial compliance with those procedural requirements,
20          there can be no assurance that a violation of the ESA’s substantive provisions will
21          not result. The latter is, of course, impermissible.

22   Thomas, 753 F.2d at 764 (emphasis in original); see also Pacific Rivers Council v. Thomas, 30

23   F.3d 1050, 1056-57 (9th Cir. 1994) (enjoining logging, grazing, and road-building activities for
24   failure to reinitiate consultation on forest plans upon listing of salmon species).
25
            Consultation under the ESA must encompass all aspects of the agency action. 50 C.F.R.
26
     § 402.14(c) (agency must consider effects of action “as a whole”). The law does not allow
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 18 -                               (206) 343-7340
     agencies to segment agency action into separate components to be viewed in isolation.
 1

 2   Greenpeace I, 80 F. Supp.2d at 1146 (“an agency may not unilaterally relieve itself of its full

 3   legal obligations under the ESA by narrowly describing the agency action at issue in a biological
 4   opinion.”).
 5
            C.      The Forest Service Must Consult on the Roadless Repeal Because It Is an
 6                  “Agency Action” That “May Affect” Listed Species.

 7          There are only three facts material to TWS’s motion under ESA § 7(a)(2), and they are

 8   beyond dispute. First, the Roadless Repeal is a final agency action. Second, the Roadless
 9
     Repeal may affect species protected under the ESA. Third, the Forest Service has not
10
     determined, in consultation with NMFS and FWS, whether the Roadless Repeal is likely to
11
     jeopardize the continued existence of threatened and endangered species. Under the ESA, the
12
     Forest Service must initiate consultation with NMFS and FWS on the Roadless Repeal.
13

14                  1.      Under Ninth Circuit precedent, the Roadless Repeal is an agency action
                            within the meaning of ESA § 7.
15
            There can be no serious dispute in this case that the Roadless Repeal is an “agency
16
     action” under the ESA. “Agency action” is defined in § 7(a)(2) as “any action authorized,
17

18   funded, or carried out by” a federal agency. 16 U.S.C. § 1536(a)(2). Regulations implementing

19   section 7 broadly define the scope of agency actions subject to consultation:

20          [A]ll activities or programs of any kind authorized, funded, or carried out, in
            whole or in part, by Federal Agencies in the United States or upon the high seas.
21          Examples include, but are not limited to: (a) actions intended to conserve listed
22          species or their habitat; (b) the promulgation of regulations; (c) the granting of
            licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or
23          (d) actions directly or indirectly causing modifications to the land, water, or air.

24   50 C.F.R. § 402.02 (defining “action”) (emphasis added). The Ninth Circuit, following U.S.
25   Supreme Court precedent, has consistently construed “agency action” broadly, see Pacific Rivers
26
     Council v. Thomas, 30 F.3d at 1054-55; Conner, 848 F.2d at 1453, and agencies regularly
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 19 -                             (206) 343-7340
     consult on the promulgation of regulations. See, e.g., National Wildlife Fed’n v. FEMA, 345 F.
 1

 2   Supp.2d 1151, 1169 (W.D. Wash. 2004) (consultation required on FEMA’s flood insurance

 3   regulations). The Forest Service’s repeal of the 2001 Roadless Rule is a federal agency action
 4   subject to the ESA.
 5
                    2.     The Roadless Repeal may affect threatened and endangered species and
 6                         adversely modify their critical habitat.

 7          The ESA consultation process is triggered whenever a federal action “may affect” a listed

 8   species. The threshold for such a determination is exceedingly low. “Any possible effect,
 9
     whether beneficial, benign, adverse or of an undetermined character, triggers the formal
10
     consultation requirement . . . .” 51 Fed. Reg. 19,926, 19,949 (June 3, 1986); Final ESA Section 7
11
     Consultation Handbook (Mar. 1998) (“Consultation Handbook,” excerpts submitted as
12
     Environmental Plaintiffs’ Exh. 2), at xvi (defining “may affect” as “the appropriate conclusion
13

14   when a proposed action may pose any effects on listed species . . . .”) (emphasis in original). As

15   noted, even indirect effects (such as the private development that might be expected to occur
16   after a new federal highway is built) must be evaluated through the ESA consultation process.
17
     See National Wildlife Federation v. Coleman, 529 F.2d 359, 373 (5th Cir. 1976); Consultation
18
     Handbook at 4-18, 4-26; 50 C.F.R. § 402.02.
19
            Promulgation and implementation of the Roadless Repeal unquestionably “may affect”
20
     threatened and endangered species and their designated critical habitat.
21

22          Roadless areas function as biological strongholds and refuges for many species.
            Of the nation’s species currently listed as threatened, endangered, or proposed for
23          listing under the Endangered Species Act, approximately 25% of the animal
            species and 13% of the plant species are likely to have habitat within inventoried
24          roadless areas on National Forest System lands. Roadless areas support a
25          diversity of aquatic habitats and communities, providing or affecting habitat for
            more than 280 threatened, endangered, proposed, and sensitive species. More
26          than 65% of all Forest Service sensitive species are directly or indirectly affected
            by inventoried roadless areas.
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 20 -                             (206) 343-7340
     AR RACR-5796, Roadless Rule, 66 Fed. Reg. 3,243, 3,245 (Jan. 12, 2001). For threatened and
 1

 2   endangered salmon and steelhead, “[i]nventoried roadless areas are key to recovery of salmon

 3   and steelhead in decline, providing habitat to protect species until longer-term solutions can be
 4   developed for migration, passage, hatchery, and harvest problems associated with the decline of
 5
     anadromous fish.” Id. at 3,247.
 6
            Inventoried roadless areas provide clean drinking water and “function as biological
 7
     strongholds for populations of threatened and endangered species. They provide large, relatively
 8
     undisturbed landscapes that are important to biological diversity and the long-term survival of
 9

10   many at risk species.” Id. at 3,245. The Roadless Rule FEIS took special note of the importance

11   of roadless areas to the conservation of threatened grizzly bears in the lower 48 states and
12   included a map showing the roadless areas in various designated grizzly bear recovery zones.
13
     FEIS at 3-137 – 3-139. See also FEIS, Appendix C (Summary of Threatened, Endangered, and
14
     Proposed Species). The Roadless Repeal, with its removal of protections against road building
15
     and timber harvest in these areas that are critically important to the survival of many threatened
16

17   and endangered species, easily trips the “may affect” trigger for ESA § 7(a)(2) consultation.

18                  3.      The Forest Service did not consult on the Roadless Repeal.

19          The Forest Service did not consult under ESA § 7(a)(2) on the issuance or
20   implementation of the Roadless Repeal. This failure to consult on an action that “may affect”
21
     listed species violates the Endangered Species Act.
22
            The failure to consult stands in sharp contrast to the consultation that occurred for the
23
     promulgation of the 2001 Roadless Rule. Pursuant to ESA § 7(a)(2), the Forest Service prepared
24

25   a biological evaluation of the effects on threatened and endangered species and their designated

26   critical habitat from the Roadless Rule and consulted with both NMFS and FWS.

27          Both agencies concurred with the determination in the biological evaluation that all of the
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 21 -                             (206) 343-7340
     action alternatives analyzed in the biological evaluation may affect, but are not likely to
 1

 2   adversely affect threatened or endangered species or adversely modify designated critical habitat;

 3   are not likely to jeopardize proposed species or adversely modify proposed critical habitat; and
 4   may beneficially affect threatened, endangered, and proposed species and critical habitat.
 5
     Roadless Rule, 66 Fed. Reg. at 3,271.
 6
              For the repeal of the same rule, the Forest Service failed to engage in any similar process.
 7
     To the contrary, the record provided to date by the Forest Service contains only a single
 8

 9   document prepared by the Forest Service to determine whether the agency needed to consult

10   under ESA § 7. See AR SPR-084, Determination for Threatened, Endangered, and Proposed

11   Species (April 18, 2005). This document makes two crucial errors. First, it relies on the 2003
12   district court injunction of the Roadless Rule in Wyoming v. U.S. Dep’t of Agric., 277 F.
13
     Supp.2d 1197 (D. Wyo. 2003), vacated, 414 F.3d 1207 (10th Cir. 2005),8 to state that the repeal
14
     of the rule has an effect only “on paper.” Determination for Threatened, Endangered, and
15
     Proposed Species at 1. Second, it describes the state petition process as “merely procedural in
16

17   nature.” Id. at 2. Based on these two characterizations of the Roadless Repeal, the Forest

18   Service determined that the repeal would have “no effect” on threatened or endangered species.

19   Id.
20            This analysis, such as it is, improperly segments the Roadless Repeal into two parts, see
21
     50 C.F.R. § 402.14(c). The law does not allow agencies to segment agency action into separate
22
     components to be viewed in isolation. Conner, 848 F.2d at 1453; National Wildlife Fed’n v.
23
     FEMA, 345 F. Supp.2d at 1176 (responding to FEMA argument that the flood insurance
24

25   program itself did not affect salmon by noting “[t]he regulations implementing Section 7(a)(2) of

26
     8
27       For a description of the Wyoming injunction, see States’ Motion for Summary Judgment at 11.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 22 -                              (206) 343-7340
     the ESA require an action agency to consider ‘the effects of the action as a whole.’”). The
 1

 2   Roadless Repeal eliminated the Roadless Rule and replaced it with a state petition process in one

 3   coordinated action. Moreover, as discussed above with respect to NEPA, the repeal of the
 4   substantive Roadless Rule protections is a substantive action. “By altering how the Forest
 5
     Service manages inventoried roadless areas, the Roadless Rule will have a demonstrable impact
 6
     on the physical environment.” Kootenai Tribe, 313 F.3d at 1115. The same, of course, is true of
 7
     the Roadless Repeal; it is not a merely a paper exercise.
 8

 9          Nor can the Forest Service hide behind the district court injunction to insist that repeal of

10   the Roadless Rule had no effect. The Wyoming district court injunction was entered in July

11   2003, over two years after the Roadless Rule was promulgated and five years after road-building
12   was temporarily halted in roadless areas. While the Forest Service acquiesced to the lower court
13
     decision, the Wyoming district court injunction was not the final legal word on the Roadless
14
     Rule; the ruling and injunction had been appealed to the Tenth Circuit, and the outcome of that
15
     appeal was far from certain. The defendants themselves acknowledged this uncertainty in the
16

17   record. See AR SPR-062, Proposed Roadless Repeal, 69 Fed. Reg. 42,636, 42,637 (July 16,

18   2004) (proposed rule based in part on “legal uncertainty”). Indeed, the Forest Service adopted a

19   temporary exemption from the Roadless Rule for the Tongass National Forest after the Wyoming
20   injunction in an attempt to ensure that the Tongass would not be covered “if the roadless rule
21
     were to be reinstated by court order.” AR TRS-0401_ii 301, 68 Fed. Reg. 75,136, 75,138
22
     (Dec. 30, 2003).
23
            It was also uncertain whether the Wyoming district court’s injunction could preclude
24

25   application of the Roadless Rule nationwide, given that its reasoning conflicted on many points

26   with the Ninth Circuit’s decision in Kootenai Tribe, a ruling that upheld the Roadless Rule

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 23 -                              (206) 343-7340
     against many of the same challenges raised a year later in the Wyoming case. Compare
 1

 2   Kootenai Tribe, 313 F.3d at 1115-20 (addressing NEPA process claim), at 1120-24 (addressing

 3   range of alternatives claim) with Wyoming, 277 F. Supp.2d at 1218-20 (NEPA process claim), at
 4   1222-26 (range of alternatives claim).
 5
            With conflicting decisions about both the validity of the Roadless Rule and the effect of
 6
     the Wyoming injunction, the Forest Service’s “no effect” determination was based purely on the
 7
     speculation that the injunction would remain in place. But “any possible effect” triggers
 8

 9   consultation, 51 Fed. Reg. at 19,949 (emphasis added), and the outright repeal of the rule, even

10   in the face of an unclear legal situation, is a possible effect. The “may affect” threshold for

11   consultation is extremely low for good reasons. The consultation process, using the best
12   available science, examines the environmental baseline, cumulative effects, and direct and
13
     indirect impacts of the action, and it is through the consultation process that more specific
14
     effects – beneficial or harmful – are examined and analyzed. See 50 C.F.R. Part 402. Unlike the
15
     Wyoming district court injunction, which was not legally certain, the Forest Service’s repeal of
16

17   the Roadless Rule removed any uncertainty about what protections roadless areas did or did not

18   enjoy. The effect of the Roadless Rule was to banish all doubt and open these areas up for

19   development, and, given the importance of roadless areas to imperiled species, that effect easily
20   meets the “may affect” threshold.9 The Forest Service cannot rely on the Wyoming district court
21
     injunction to avoid its ESA duties.
22

23

24

25   9
      The Wyoming injunction did not stop the Forest Service from reviewing the Roadless Repeal’s
26   impact on Civil Rights and Environmental Justice (AR SPR-079) and from performing a cost-
     benefit analysis of the repeal (AR SPR-073).
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 24 -                              (206) 343-7340
     III.   THE ROADLESS REPEAL IS AN IRRATIONAL, UNSUPPORTED AGENCY
 1
            REVERSAL IN LIGHT OF THE FOREST SERVICE’S STATUTORY
 2          OBLIGATIONS.

 3          Underlying the procedural legal violations discussed above is a fundamental failure of

 4   rational agency decisionmaking. The Forest Service is bound by many substantive statutes – all
 5   of which, with one focus or another, direct the Forest Service to care for the resources found on
 6
     our nation’s public forests. When the Forest Service promulgated the 2001 Roadless Rule, the
 7
     agency took those duties into account and explained why the Roadless Rule was needed; it gave
 8
     lots of reasons why the Roadless Rule was needed to fulfill its statutory mandates. When the
 9

10   Forest Service reversed course and repealed the Roadless Rule, the agency’s silence was

11   deafening. The Forest Service failed to explain how repeal of the rule would meet the agency’s

12   substantive obligations or how it would otherwise address the concerns that led to the initial
13
     adoption of the rule. Nor could the Forest Service offer these explanations, given the negative
14
     impact of repealing the Roadless Rule’s protections. Because the Roadless Repeal is “internally
15
     inconsistent and inadequately explained,” General Chem. Corp. v. United States, 817 F.2d 844,
16
     857 (D.C. Cir. 1987), the Court should invalidate it as arbitrary and capricious.
17

18          A.      Standard of Review

19          Under the APA, this Court must reverse the Roadless Repeal if it finds the decision

20   “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
21   § 706(2)(A). Specifically, an agency decision is unlawful if the agency has acted contrary to
22
     controlling statutes, has failed to consider all relevant factors, has “offered an explanation for its
23
     decision that runs counter to the evidence before the agency,” or has not articulated “a rational
24
     connection between the facts found and the choice made.” Motor Vehicle Mfr. Ass’n v. State
25

26   Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation omitted). More importantly here,

27   “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                 Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                705 Second Ave., Suite 203
                                                                                   Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 25 -                                (206) 343-7340
     the change beyond that which may be required when an agency does not act in the first instance.”
 1

 2   Id. at 42.

 3           “Also, internally contradictory agency reasoning renders resulting action ‘arbitrary and
 4   capricious;’ such actions are not founded on a reasoned evaluation of the relevant factors.”
 5
     Defenders of Wildlife, 420 F.3d at 959, citing Arizona Cattle Growers’ Ass’n v. U.S. Fish and
 6
     Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001) (internal quotation omitted). The decision
 7
     must also be supported by substantial evidence. “We must set aside the Secretary’s decision if it
 8

 9   was ‘arbitrary’ or ‘capricious’ because the decision was based on inadequate factual support.

10   See 5 U.S.C. § 706(2)(A). We review the full agency record to determine whether substantial

11   evidence supports the agency’s decision….” Bonnichsen v. United States, 367 F.3d 864, 879-80
12   (9th Cir. 2004).
13
             B.         The Forest Service Has a Fundamental Duty to Protect the Values of Roadless
14                      Areas.

15           The Forest Service faces numerous clear statutory mandates in administering the National
16   Forest System. The National Forest System is comprised of 155 national forests, 20 national
17
     grasslands and various other lands across the United States. See 65 Fed. Reg. 67,514 (Nov. 9,
18
     2000). The Forest Reserve Act of 1897 (also known as the “Organic Administration Act”)
19
     established the protection of national forests. 16 U.S.C. §§ 473-82, 551. Under the Organic
20
     Administration Act, the Secretary of Agriculture “may make such rules and regulations … to
21

22   regulate [the forests’] occupancy and use and to preserve the forests thereon from destruction.”

23   Id. at § 551.
24           Congress revisited national forest management in the Multiple-Use Sustained Yield Act
25
     (“MUSYA”), 16 U.S.C. §§ 528-31, and the National Forest Management Act (“NFMA”),
26
     16 U.S.C. §§ 1600-1687. MUSYA set forth multiple-use goals for national forests; the forests
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
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     “shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish
 1

 2   purposes.” 16 U.S.C. § 528. NFMA enacted requirements to “develop, maintain, and … revise

 3   land and resource management plans” for national forests. 16 U.S.C. § 1604(a). NFMA
 4   contains substantive requirements; for example, the Forest Service must provide for diversity of
 5
     plant and animal communities. 16 U.S.C. § 1604(g)(3)(B). The Forest Service also must “insure
 6
     that timber will be harvested from National Forest System lands only where soil, slope, or other
 7
     watershed conditions will not be irreversibly damaged” and protection is afforded to “streams,
 8

 9   streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in

10   water temperatures … and deposits of sediment” so that serious and adverse effects of water

11   conditions or fish habitat will not result. 16 U.S.C. § 1604(g)(3)(E)(i) and (iii).10
12          The Forest Service’s administration of national forest lands is bound by other federal
13
     statutes as well. The Endangered Species Act, discussed above, directs all federal agencies to
14
     insure that their actions do not jeopardize threatened and endangered species or adversely modify
15
     their designated critical habitat. See generally Defenders of Wildlife, 420 F.3d at 950-51. The
16

17   Clean Water Act mandates that all federal agencies comply with water quality standards. See

18   33 U.S.C. § 1323(a); National Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163,

19   1167 (9th Cir. 2004). National forest lands contain streams that violate water quality standards
20   and must be restored. See Roadless Rule FEIS at 3-50 (“Many states have identified impaired
21
     stream segments on NFS lands and they are working with the Forest Service to determine how to
22
     reduce pollutant impacts….”). The Clean Air Act, 42 U.S.C. § 7401 et seq., the Wild and Scenic
23
     Rivers Act, 16 U.S.C. § 1271 et seq., the Safe Water Drinking Act, 42 U.S.C. § 300 et seq., and
24

25
     10
       For a full discussion of the history and legal context of Forest Service authority, see Charles F.
26
     Wilkinson and H. Michael Anderson, Land and Resource Planning in the National Forests 15-66
27   (1987).

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
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     many other “environmental” statutes all place legal duties on the Forest Service. Non-
 1

 2   environmental statutes, such as the National Historic Preservation Act, 16 U.S.C. § 470 et seq.,

 3   and the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq., also
 4   direct the Forest Service’s actions.
 5
            C.      The 2001 Roadless Rule Flowed From the Forest Service’s Underlying Duties.
 6
            When the Forest Service adopted the Roadless Rule, the agency focused on its concerns
 7
     for the natural resources of our nation’s forests, imperiled species on those forests, clean water
 8
     and watershed health, the agency’s inability to maintain the existing road system, and the need
 9

10   for a national rule, as opposed to forest-by-forest or state-by-state protections. Consideration of

11   these issues stemmed from the Forest Service’s fundamental legal responsibilities in managing

12   our nation’s public forests.
13
                    1.      Forest health, threatened and endangered species, and clean water
14
            The purpose of the Forest Service’s 2001 Roadless Rule was to “prohibit[] road
15
     construction, reconstruction, and timber harvest in inventoried roadless areas because they have
16
     the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term
17

18   loss of roadless area values and characteristics.” Roadless Rule, 66 Fed. Reg. at 3,244. The

19   Forest Service noted that it was responsible for the health, diversity, and productivity of the

20   nation’s forests and grasslands “to meet the needs of present and future generations.” Id.
21          The Forest Service focused on the ecological characteristics of roadless areas.
22
     “Inventoried roadless areas provide clean drinking water and function as biological strongholds
23
     for populations of threatened and endangered species. They provide large, relatively undisturbed
24
     landscapes that are important to biological diversity and the long-term survival of many at risk
25

26   species.” Id. at 3,245. These undeveloped wildlands provide secure habitat for numerous

27   sensitive wildlife species, including fisher, marten, mountain lion, elk, and wolverine. See

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 28 -                              (206) 343-7340
     Roadless Rule FEIS at 3-142 to 3-145. For many rare and hard-pressed wildlife species,
 1

 2   National Forest roadless areas are a final refuge. From condors of the southern California

 3   mountains, to grizzly bears and wolves near Yellowstone National Park, to migratory songbirds
 4   among the Appalachian hardwoods, many species would no longer exist – or would be severely
 5
     depleted – but for National Forest roadless areas. See id. at 3-162, 3-179 to 3-184, Appendix C.
 6
     The Forest Service highlighted high quality or undisturbed soil, water, and air, public drinking
 7
     water, diversity of plant and animal communities, habitat for imperiled species, recreation, and
 8
     high quality scenery among the prominent roadless area values. Id.
 9

10            In promulgating the Roadless Rule, the Forest Service also noted the particular

11   importance of roadless areas to watershed protection on National Forest System lands. Although
12   inventoried roadless areas represent less than 2% of the land base of the United States, “[o]verall,
13
     National Forest System watersheds provide about 14% of the total water flow of the nation,
14
     about 33% of water in the West.” Roadless Rule FEIS at 3-46. “Of the watersheds on National
15
     Forest System land, 661 contain inventoried roadless areas and 354 of those watersheds serve as
16

17   source areas of drinking water used by millions of people across the nation.” Roadless Rule,

18   66 Fed. Reg. at 3,246. The Forest Service also noted the importance of roadless areas for

19   salmon, steelhead, and other aquatic species. “In addition to their ecological contributions to
20   healthy watersheds, many inventoried roadless areas function as biological strongholds and
21
     refuges for a number of species and play a key role in maintaining native plant and animal
22
     communities and biological diversity.” Id. at 3,247. See States’ Summary Judgment Motion at
23
     37-38.
24

25                   2.      Cost of maintaining roads

26            The Forest Service also focused on the costs of maintaining roads. “[T]he size of the

27   existing forest road system and attendant budget constraints prevent the agency from managing
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 29 -                             (206) 343-7340
     its road system to the safety and environmental standards to which it was built.” 66 Fed. Reg. at
 1

 2   3,244. The Forest Service discussed its maintenance backlog and the increased costs of roadless

 3   area activities, see id. at 3,245-46; the agency estimated that its nationwide road maintenance and
 4   repair backlog at more than $8.4 billion – and growing. See FEIS at 1-5; see also 66 Fed. Reg. at
 5
     3,246 (because less than 20% of annual upkeep needs are funded, “the cost of fixing
 6
     deteriorating roads increases exponentially every year”). TWS incorporates the discussion in the
 7
     States’ Summary Judgment Motion at 38-39.
 8

 9                  3.      Need for a national rule

10          The Forest Service considered the need for a national rule versus local decisionmaking.

11   66 Fed. Reg. at 3,246. Because the Forest Service had “the responsibility to consider the ‘whole

12   picture’” regarding national forest management, id., the Forest Service found that management
13
     decisions for roadless areas made on a case-by-case basis at the forest or regional level would not
14
     fulfill the agency’s responsibilities. “[T]he nation-wide results of these [incremental] reductions
15
     could be a substantial loss of quality and quantity of roadless area values and characteristics over
16
     time.” Id. The agency specifically discussed its duties to protect watersheds and threatened and
17

18   endangered species. Id. at 3,246-47. The Forest Service concluded that adoption of the Roadless

19   Rule “ensures that inventoried roadless areas will be managed in a manner that sustains their
20   values now and for future generations.” Id. at 3,247.
21
            Previously, the Forest Service concluded that local decision-making – national forest by
22
     national forest – was a fundamental problem with roadless area management:
23
            Regardless of how well informed individual decisions may be at the local level,
24          any new road building in inventoried roadless areas still results in a loss of
25          roadless characteristics .… [W]hen these individual decisions are aggregated
            over time, and throughout the country … ecological and social outcomes resulting
26          from the loss of roadless areas may become substantial.

27   FEIS at 1-15. Nothing in the record counters this conclusion.

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
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            D.      The 2005 Roadless Repeal Deviates From Carefully-Crafted Agency Policy
 1
                    Without Adequate Explanation, Especially in Light of the Forest Service’s
 2                  Substantive Duties.

 3          The Forest Service’s Roadless Repeal deviates from the above-described carefully crafted

 4   agency policy for managing inventoried roadless areas without adequate explanation. The
 5   Roadless Repeal does not explain how it will protect roadless areas and the clean water and
 6
     wildlife found within roadless areas. The Roadless Repeal does not explain how it will fulfill the
 7
     Forest Service’s legal obligations to provide for the health, diversity, and productivity of the
 8
     nation’s forests and grasslands; how it will prevent nationwide reduction in roadless area values;
 9

10   how it will protect watersheds; and how it will address fiscal considerations.

11          The courts have long recognized the importance of insisting on the reasoned exercise of

12   agency discretion. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971)
13
     (judicial scrutiny of agency decisions facilitates the “evenhanded application of law, rather than
14
     impermissible whim, improper influence, or misplaced zeal” and “furthers the broad public
15
     interest of enabling the public to repose confidence in the process as well as the judgments of its
16
     decision-makers.”). Through arbitrary and capricious review, the APA mandates basic fairness
17

18   and rationality in agency decision-making. As the Supreme Court noted, “unless we make the

19   requirements for administrative action strict and demanding, expertise, the strength of modern
20   government, can become a monster which rules with no practical limits on its discretion.”
21
     Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962) (quotation omitted)
22
     (emphasis in original).
23
            There is nothing in the administrative record that explains how the 2005 Roadless Repeal
24

25   meets the concerns addressed by the original Roadless Rule, or how the repeal meets the

26   underlying obligations of the Forest Service. For example, the Forest Service’s Roadless Repeal

27   harms the ability of the agency to protect plant and animal diversity on national forest lands, as
28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 31 -                              (206) 343-7340
     required by NFMA, see 16 U.S.C. § 1604(g)(3)(B), including by removing protection from areas
 1

 2   that serve as refugia for salmon, steelhead, bull trout, and other native fish species, and that

 3   provide a critical refuge for such rare and sensitive species as grizzly bears, lynx, and
 4   wolverines. See Roadless Rule FEIS at 3-160 to 3-169. The Roadless Repeal also fails to
 5
     protect watersheds from harmful water temperatures and sedimentation. These are substantive
 6
     duties under NFMA that the Forest Service must obey.
 7
            While the agency certainly has some discretion as to how it complies with those duties, it
 8

 9   does not have discretion to ignore those duties. In its explanation for repealing the Roadless

10   Rule, published in the Federal Register, the Forest Service acknowledged the need to conserve

11   roadless areas and to “address those activities having the greatest likelihood of altering,
12   fragmenting, or otherwise degrading roadless area values and characteristics,” Roadless Repeal,
13
     70 Fed. Reg. at 25,654. The Forest Service also stated that its objective for the repeal was “a
14
     responsible and balanced approach to re-examining the roadless rule in an effort to address []
15
     concerns while enhancing roadless area values and characteristics.” Id. Despite these
16

17   statements, the Forest Service never even begins to explain how the repeal of the rule and/or the

18   adoption of a state petition process will address these concerns. The Forest Service also fails to

19   discuss how the repeal will address the $8.4 billion road maintenance backlog. Instead, the
20   agency’s entire discussion focuses on a laundry list of criticisms leveled against the rule. See id.
21
     at 25,654-61.
22
            This discussion is entirely one-sided. It fails completely to address the relevant – and
23
     compelling – factors that caused the agency to adopt the rule in the first place. The failure to
24

25   consider relevant factors will normally render an agency action arbitrary under the APA, but this

26   is particularly true where, as here, the agency has reversed a previous course of action adopted

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                               705 Second Ave., Suite 203
                                                                                  Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 32 -                               (206) 343-7340
     after a thorough analysis of all the factors. See Motor Vehicle Mfr. Ass’n, 463 U.S. at 42. The
 1

 2   record is devoid of any evidence of the Forest Service considering “enhancing roadless area

 3   values and characteristics.” 70 Fed. Reg. at 25,654. In reviewing this decision, the Court cannot
 4   “supply a reasoned basis for the agency’s action that the agency itself has not given….”
 5
     Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974).
 6
     Instead, “the agency’s path [must] be reasonably discerned.” Id. at 286.
 7
            Further, there is no evidence, substantial or otherwise, to support the Roadless Repeal’s
 8

 9   stated concern for protecting roadless areas. Indeed, “even though an agency decision may have

10   been supported by substantial evidence, where other evidence in the record detracts from that

11   relied upon by the agency we may properly find that the agency rule was arbitrary and
12   capricious.” American Tunaboat Ass’n v. Baldrige, 738 F.2d 1013, 1016 (9th Cir. 1984) (citing
13
     Bowman Transp., 419 U.S. at 284 (agency decision supported by substantial evidence may still
14
     be arbitrary and capricious)); see Atchinson v. Wichita Board of Trade, 412 U.S. 800, 808 (1973)
15
     (where agency modifies or overrides precedents or policies, it has the “duty to explain its
16

17   departure from prior norms”). There is no such substantial evidence here.

18          The only evidence in the record, aside from the public comments, that discusses the

19   impacts of repealing the Roadless Rule in any thoughtful way comes not from the Forest Service,
20   but rather from the recommendations of the Forest Roads Working Group (“FRWG”). AR SPR-
21
     043, FRWG, Final Recommendations (March 26, 2003). The FRWG recommended retaining
22
     the 2001 Roadless Rule.
23
            The FRWG maintains and re-emphasizes its strong belief that the protection of
24
            [inventoried roadless areas] and their values and characteristics requires a national
25          policy foundation and management structure to ensure consistency and minimize
            the cumulative, incremental loss of those values and characteristics. The existing
26          [Roadless Rule] recognizes and implements this important principle.
            Accordingly, while the FRWG believes improvements to the [Roadless Rule] may
27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 33 -                             (206) 343-7340
            be warranted over time, and acknowledges that other stakeholders are proposing
 1
            revisions to the rule, we recommend that the existing rule be retained and
 2          implemented while the effects and desirability of potential improvements and
            revisions are considered through a deliberative process.
 3
     Id. at 5. In light of the strong evidence that supported the original Roadless Rule, the only entity
 4
     that actually gave thoughtful consideration to roadless area management concluded that the rule
 5

 6   should be retained. Despite this strong stance, the Forest Service ignored the very process it

 7   promoted on this issue.

 8          An agency acts arbitrarily and capriciously when it ignores the analysis of its experts.
 9
     See Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 483 (W.D. Wash. 1988). Here, the Forest
10
     Service ignored the findings and recommendations of its own prior environmental analysis on
11
     the Roadless Rule; it ignored the recommendations of the stakeholder group it supported to study
12
     roadless area management issues; and it failed to produce later analyses that contradicted any of
13

14   these findings. See American Tunaboat Ass’n, 738 F.2d at 1016-17 (court overturned agency

15   regulations because the agency ignored a comprehensive database compiled by trained agency
16   personnel). Because the 2005 Roadless Repeal is an irrational and unsupported reversal of
17
     agency action in light of the Forest Service’s statutory obligations, it should be vacated.
18
     IV.    THIS COURT SHOULD REINSTATE THE ROADLESS AREA CONSERVATION
19          RULE.
20          To remedy defendants’ violations of NEPA, the ESA, and the APA, this Court should
21   award plaintiffs injunctive relief setting aside the challenged Roadless Repeal, reinstating the
22
     2001 Roadless Rule, and prohibiting the defendants from undertaking any actions in violation of
23
     the Roadless Rule until they comply with applicable legal requirements.
24
            The bases for injunctive relief in the federal courts “are irreparable injury and inadequacy
25

26   of legal remedies.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987).

27   “Environmental injury, by its nature, can seldom be adequately remedied by money damages and

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 34 -                              (206) 343-7340
     is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently
 1

 2   likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect

 3   the environment.” Id. at 545.
 4           Here each of plaintiffs’ claims warrants an injunctive remedy. “In the NEPA context,
 5
     irreparable injury flows from the failure to evaluate the environmental impact of a major federal
 6
     action.” High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir. 2004); see also
 7
     National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 738 n.18 (9th Cir. 2001)
 8

 9   (“[B]ecause NEPA is a purely procedural statute, the requisite harm is the failure to follow the

10   appropriate procedures.”). While every NEPA violation does not dictate injunctive relief, “the

11   presence of strong NEPA claims gives rise to more liberal standards for granting an injunction.”
12   High Sierra Hikers Ass’n, 390 F.3d at 642 (quotations and citation omitted).
13
             In addition, plaintiffs bring their NEPA claim, as well as their challenge to the Forest
14
     Service’s irrational reversal of position in the Roadless Repeal, pursuant to the APA. See ONRC
15
     Action v. Bureau of Land Management, 150 F.3d 1132, 1135 (9th Cir. 1998) (NEPA claims must
16

17   be brought under APA). Where, as here, a plaintiff “prevails on its APA claim, it is entitled to

18   relief under that statute, which normally will be a vacatur of the agency’s order.” American

19   Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001); see also Alsea Valley
20   Alliance v. Department of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004) (“[V]acatur of an
21
     unlawful agency rule normally accompanies a remand.”); 5 U.S.C. § 706(2) (providing for
22
     “reviewing court” to “hold unlawful and set aside” illegal agency action).
23
             The ESA imposes an even stronger demand for injunctive relief. In enacting the ESA,
24

25   Congress “foreclosed the exercise of the usual discretion possessed by a court of equity.”

26   Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982). “Congress has spoken in the plainest

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                                 Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                                705 Second Ave., Suite 203
                                                                                   Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 35 -                                (206) 343-7340
     of words, making it abundantly clear that the balance has been struck in favor of affording
 1

 2   endangered species the highest of priorities, thereby adopting a policy which it described as

 3   ‘institutionalized caution.’” Sierra Club v. Marsh, 816 F.2d at 1383. Accordingly, the traditional
 4   test for injunctive relief is not the test under the ESA. See, e.g., Tennessee Valley Auth., 437
 5
     U.S. at 173, 193-95; National Wildlife Fed’n v. NMFS, 422 F.3d 782, 793-94 (9th Cir. 2005)
 6
     (affirming preliminary injunction that required the Army Corps of Engineers to take affirmative,
 7
     protective measures at dams on Columbia and Snake Rivers in absence of valid biological
 8
     opinion); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (“Congress has
 9

10   determined that under the ESA the balance of hardships always tips sharply in favor of

11   endangered or threatened species.”). Pending completion of consultation, the law is clear that
12   injunctive relief should issue to protect listed species. See Pacific Rivers Council, 30 F.3d at
13
     1056-57 (enjoining all national forest management activities that “may affect” listed fish pending
14
     completion of consultation); Thomas, 753 F.2d at 764-65 (reversing district court’s denial of
15
     injunction blocking construction of a timber road pending consultation); PCFFA v. U.S. Bureau
16

17   of Reclamation, 138 F. Supp.2d at 1247-50 (enjoining certain irrigation deliveries pending

18   completed consultation).

19          Applying these principles, the Court should issue an injunction vacating and setting aside
20   the Roadless Repeal. Even beyond the irreparable harm that flows from uninformed agency
21
     decision-making, see National Parks & Conservation Ass’n, 241 F.3d at 738 n.18, the
22
     defendants’ actions have already caused irreparable environmental harm in the form of road
23
     construction that has scarred a formerly pristine roadless area in the Caribou-Targhee National
24

25   Forest in Idaho. See Hoyt Decl. at ¶¶ 11-12 and attached exhibits. The defendants’ challenged

26   regulatory actions threaten even more irreparable environmental injury in the near future due to

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 36 -                              (206) 343-7340
     threatened expansion of a phosphate mine into this same Idaho roadless area; see id. at ¶ 13,
 1

 2   logging in an Oregon roadless area that has already been approved by the Forest Service, see

 3   Ullian Decl. at ¶ 19 and attached exhibit; and planned road construction and logging across
 4   portions of eight roadless areas in Minnesota, see State Plaintiffs’ Exhibits 13-14 – all of which
 5
     would have been illegal under the Roadless Rule. In Alaska’s Tongass National Forest, the
 6
     agency has adopted a five-year timber sale schedule that focuses heavily on roadless areas. It
 7
     includes 24 timber sale projects in roadless areas, two of which have already been approved, that
 8

 9   were prohibited by the Roadless Rule. See Bosman Decl. at ¶ 6.

10          These severe environmental impacts are more than sufficient to justify injunctive relief

11   vacating and setting aside the Roadless Repeal. See Idaho Sporting Cong. v. Alexander, 222
12   F.3d 562, 569 (9th Cir. 2000) (noting that imminent and continuing logging activities presented
13
     “evidence of environmental harm ... sufficient to tip the balance in favor of injunctive relief”);
14
     Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372, 1382 (9th Cir. 1998) (“The old
15
     growth forests plaintiffs seek to protect would, if cut, take hundreds of years to reproduce.”)
16

17   (citation omitted); cf. Kootenai Tribe, 313 F.3d at 1125 (reversing injunction against Roadless

18   Rule and holding that “the public’s interest in preserving precious, unreplenishable resources

19   must be taken into account in balancing the hardships”).
20          Under controlling Ninth Circuit precedent, the Court should fill the resulting regulatory
21
     void by reinstating the 2001 Roadless Rule. “The effect of invalidating an agency rule is to
22
     reinstate the rule previously in force.” Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005);
23
     see also Northwest Ecosystem Alliance v. Rey, No. 04-844P, 2006 WL 44361 at *6-*7 (W.D.
24

25   Wash. Jan. 9, 2006) (setting aside 2004 revisions to national forest management requirements

26   and reinstating 2001 management requirements). Here, the 2001 Roadless Rule is “the rule

27

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 37 -                              (206) 343-7340
     previously in force,” Paulsen, 413 F.3d at 1008, and should be reinstated by this Court.
 1

 2   Moreover, plaintiffs’ request that the Court enjoin defendants from taking any action in violation

 3   of the Roadless Rule to ensure that the existing irreplaceable natural legacy of National Forest
 4   roadless areas remains protected pending defendants’ compliance with federal law.11
 5
            Finally, plaintiffs wish to make clear their request that in reinstating the Roadless Rule,
 6
     the Court should make effective the original Roadless Rule that extended its prohibitions on road
 7
     construction and logging to Alaska’s Tongass National Forest – the largest National Forest in the
 8

 9   United States – rather than the version of the Roadless Rule that arose after the defendants

10   promulgated an interim exemption excluding the Tongass from the rule. Reinstating the original

11   2001 Roadless Rule, absent the Tongass exemption, is appropriate because of the short-term
12   duration that was intended for that exemption. On December 30, 2003, the defendants amended
13
     the Roadless Rule to “temporarily exempt” the Tongass National Forest in Alaska. AR TRS-
14
     0401_ii 301, 68 Fed. Reg. 75,136 (Dec. 30, 2003). This temporary exemption would last “until
15
     the Department promulgates a subsequent final rule concerning the application of the roadless
16

17   rule within the State of Alaska … .” Id. The defendants had, five months earlier, published an

18   advance notice of proposed rulemaking to solicit comments on precisely such a rule. Id.; see

19   AR TRS-0401_wo_t051, 68 Fed. Reg. 41,864 (July 15, 2003). The adoption of the Roadless
20   Repeal in 2005 mooted out the need for any Alaska-specific final rule. 70 Fed. Reg. at 25,659
21
     (“This rule thus negates the need for the further Tongass-specific rulemaking anticipated by the
22

23   11
        The Wyoming district court’s former injunction against the 2001 Roadless Rule should play no
24   role in this Court’s remedial analysis. The Wyoming court’s ruling and injunction were vacated
     by the 10th Circuit precisely to ensure that “the rights of the defendant-intervenors” in that
25   litigation – many of whom are plaintiffs here – “are preserved.” Wyoming v. U.S. Dep’t of
     Agric., 414 F.3d 1207, 1213 n.6 (10th Cir. 2005). The very purpose of such a vacatur is “to
26
     prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.”
27   United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950).

28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 38 -                             (206) 343-7340
     2003 rule.”).
 1

 2          It would be inappropriate to revert to the temporary Tongass exemption because that

 3   exemption was never intended to last the additional length of time that will be required for the
 4   Forest Service to correct the procedural and substantive deficiencies in the Roadless Repeal. In
 5
     adopting the temporary exemption, the Forest Service emphasized that it would apply only “in
 6
     the short term,” and that during that time the roadless areas of the Tongass would be “sufficiently
 7
     protected under the Tongass Forest Plan….” See 68 Fed. Reg. at 75,138. The Ninth Circuit
 8

 9   subsequently struck down the Tongass Forest Plan on grounds that the EIS for the plan was

10   inadequate and that the plan was based on a substantial error that “fatally infected its balance of

11   economic and environmental considerations….” Natural Res. Def. Council, 421 F.3d at 816.
12   There is no basis for concluding that adequate short-term protection exists for the roadless areas
13
     of the Tongass, and it would be inappropriate to reinstate the temporary Tongass exemption.
14
     Plaintiffs urge the Court to exercise its discretion to reinstate the original, permanent rule. See
15
     Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir. 2000) (“District
16

17   courts have broad latitude in fashioning equitable relief when necessary to remedy an established

18   wrong.”) (quotations and citation omitted).

19                                             CONCLUSION
20          For the reasons discussed above and in the States’ Summary Judgment Motion, TWS
21

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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                               Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                              705 Second Ave., Suite 203
                                                                                 Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 39 -                              (206) 343-7340
     asks the Court to grant it declaratory and injunctive relief.
 1

 2          Respectfully submitted this 24th day of February, 2006.

 3

 4                                                  /s/ Kristen L. Boyles
                                                    KRISTEN L. BOYLES (CSB #158450)
 5
                                                    Earthjustice
 6                                                  705 Second Avenue, Suite 203
                                                    Seattle, WA 98104-1711
 7                                                  (206) 343-7340
                                                    (206) 343-1526 [FAX]
 8                                                  kboyles@earthjustice.org
 9
                                                    TIMOTHY J. PRESO (MSB #5255)
10                                                  Earthjustice
                                                    209 South Willson Avenue
11                                                  Bozeman, MT 59715
                                                    (406) 586-9699
12                                                  (406) 586-9695 [FAX]
13                                                  tpreso@earthjustice.org

14                                                  THOMAS S. WALDO (ASB #9007047)
                                                    Earthjustice
15                                                  325 Fourth Street
                                                    Juneau, AK 99801-1145
16                                                  (907) 586-2751
17                                                  (907) 463-5891[FAX]
                                                    twaldo@earthjustice.org
18
                                                    Attorneys for Plaintiffs The Wilderness Society,
19                                                  California Wilderness Coalition, Forests Forever
                                                    Foundation, Northcoast Environmental Center,
20
                                                    Oregon Natural Resources Council Fund, Sitka
21                                                  Conservation Society, Siskiyou Regional Education
                                                    Project, Biodiversity Conservation Alliance, Sierra
22                                                  Club, National Audubon Society, Greater
                                                    Yellowstone Coalition, Center for Biological
23                                                  Diversity, Environmental Protection Information
                                                    Center, Klamath-Siskiyou Wildlands Center,
24
                                                    Defenders of Wildlife, Pacific Rivers Council, Idaho
25                                                  Conservation League, Humane Society of the
                                                    United States, Conservation NW, and Greenpeace
26

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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                              Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                             705 Second Ave., Suite 203
                                                                                Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 40 -                             (206) 343-7340
                                     GREGORY C. LOARIE (CSB #215859)
 1
                                     Earthjustice
 2                                   426 Seventeenth Street, 5th Floor
                                     Oakland, CA 94612
 3                                   (510) 550-6725
                                     (510) 550-6749 [FAX]
 4                                   gloarie@earthjustice.org
 5
                                     Local Counsel for Plaintiffs
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28   PLAINTIFFS’ MOTION AND MEMORANDUM FOR SUMMARY                  Earthjustice
     JUDGMENT AND DECLARATORY AND INJUNCTIVE RELIEF                 705 Second Ave., Suite 203
                                                                    Seattle, WA 98104
     Case Nos. 05-03508-EDL and 05-04038-EDL - 41 -                 (206) 343-7340

								
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