WPCn 2TBJ ZCourierCourierCG TimesCG Times BoldX@`7X@HP LaserJet 4LHPLAS4L.PRS4Xx6X@\&FX@3|THPDJ540C.PRSXx6X@X@2D(,X>*DDefault ParaA@|gDefault Paragraph FontPG2A@A@_ D,2 D,A@' ' #XX2PQXP##I2PQP#1^b$A@A@|gDefault Paragraph FontPG2A@A@_II D,2 D,A@''#XX2PQXP##I2PQP#2^b$A@A@|gDefault Paragraph FontPG2A@A@_ee D,2 D,A@X01Í ÍX0Í Í2IY0 EMI  MXx6X@X@<6X9`+CourierXXX2PQXP%2A`Arial (TT)XI2PQP%2A`Arial (TT)XX2PQXP%2A`Arial (TT)XI2PQP%2A`Arial (TT)X P7XP* p`CG TimesXX\L PXP*4\L  p`0Dutch 801RomanSpeedoXX P7XP* p`CG TimesXX P7XP* p`CG TimesXX P 7XP* p`CG TimesXX P 7XP* p`CG TimesXX P 7XP* p`CG TimesXX P 7XP* p`CG TimesX#|H"4|J~ ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYdCdddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXYXXXYYx|X~Y~Y|XddddddddC8C8C8C8oNd|8|H~8<|8dtddddHHJlLlLlLkN|H|8~8dddddddXXXd~8dJkN~8ddxddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhddCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzzzNd88YYYzYzzzzCCdddddddzzzzzzzzzzzzzzzzzzzNNNNNNNdddddddddddddddddddd888888888888YYYYYYYYYYYYYYYYYYYzzzzzzzzzzzzzzzzzzzzCs~CzCddYC\   pxtll\tll@\@\`L2-lX{Y7i ZYfl?xxx,Q!x6X@`7X@6(8wC;,WXw PE37XPt(7zC;,(Xz_ pi7X6V"G($,nhG PE37hP"4|J~ ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYddddCdddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXYYXYYXddddddooL8N8N8N8r`o8P8N8ppoddXXYpLoNpLoNPDCopoopodXYXo8oYoNCdddoCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsddCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzzNY88YYYzYzzzzCCdddddddzzzzzzzzzzzzzzzzzzzNNNNNNNYYYYYYYYYYYYYYYYYYYY888888888888YYYYYYYYYYYYYYYYYYYzzzzzzzzzzzzzzzzzzzzCzNzNddYC\   pxtll\tll@\@\`L"m+O6^$(8<><q*"xxxxWWxxxWWkkxxx[nten;s3+$q<Jr-3~kajJ&"qlxl Y #X P7WXP#X0Í ÍX8Í Í#Xw PE37WXP#R#X\L PWXP#PLAINTIFFS' REPLY BRIEF RE: OLD GROWTH VIOLATIONS ؆William A. Rossbach Elizabeth A. Brennan ROSSBACH BRENNAN, P.C. P.O. Box 8988, Hellgate Station Missoula MT 59807 (406) 5435156 Laurence ("Laird") J. Lucas William M. Eddie LAND AND WATER FUND OF THE ROCKIESppGN P.O. Box 1612 Boise, Idaho 83701 (208) 3427024 Attorneys for Plaintiffs  Y  * IN THE UNITED STATES DISTRICT COURT  Xz $ .FOR THE DISTRICT OF MONTANA ă  Yc 4 MISSOULA DIVISION ă THE WILDERNESS SOCIETY, IDAHO9)  Y CONSERVATION LEAGUE, INLAND 9) @Case No. 97208MLBE EMPIRE PUBLIC LANDS COUNCIL, 9)@ ECOLOGY CENTER, FRIENDS OF 9)@  Y CLEARWATER, IDAHO RIVERS 9)@ PLAINTIFFS' REPLY/  Y UNITED, and CLEARWATER hh29)@ OPPOSITION BRIEF  Y BIODIVERSITY PROJECT,hh29)@ ON MOTIONS FOR PARTIAL  Y ` `  #*hh29)@ SUMMARY JUDGMENT  Y ` `  #Plaintiffs, hh29)@ AND INJUNCTIVE RELIEF  Ym ` `  #*hh29)@ RE: OLD GROWTH  YW vs.` `  #*hh29) @ VIOLATIONS ` `  #*hh29) DALE BOSWORTH, Regional Forester;9) @ JAMES CASWELL, Forest Supervisor,9) Clearwater National Forest; and U.S.9) FOREST SERVICE, an agency of hh29) the U.S.` `  #*hh29) ` `  #*hh29) ` `  #Defendants.hh29) __________________________________________) [%0*0*0*  Y   6 INTRODUCTION ă Federal Defendants oppose Plaintiffs' Old Growth Motions and seek summary judgment in their favor, by relying on the Clearwater National Forest's 1998 Old Growth Status Report. They represent to the Court that this 1998 Old Growth Report is based on the "most current information available," and that 199,600 acres, or 11% of the Clearwater National Forest, meets the old growth habitat definitions, thus exceeding the 10% Forest Plan requirement. See Fed. Defs' Old Growth Brief (dated 3/16/99), pp. 13, 1617.  Y, However, these representations are demonstrably and knowingly false , based on the Forest Service's own data, and they raise serious questions about the Forest Service's lack of candor with this Court. Detailed review of the Clearwater National Forest's old growth inventory and timber stand databases, which were used for the 1998 Old Growth Report, reveals that the agency  Y has counted as "old growth" at least 45,441 acres of timber stands which patently do not satisfy its own old growth definitions. As set forth in detail in the accompanying Declaration of Amy Haak, a Geographic Information Services (GIS) expert who has examined the Forest Service data, the 1998 Old Growth Report overstates current old growth habitat on the Clearwater National Forest in at least the following ways: 1.` ` It includes 415 isolated timber stands less than 25 acres in size, totalling 5,903 acres, despite the Forest Plan's explicit requirement that such isolated stands of fewer than 25 acres cannot be considered old growth. See Haak Decl.,  2530 & Exh. A. 2.` ` The 1998 Report includes 10,723 acres of groundverified stands which the Clearwater timber database classifies as "nonforest," "saplings," "small trees," or "small sawtimber," and which thus do not qualify as old growth timber. Id.,  3139.A&0*((Ԍ3.` ` The report counts another 25,145 acres of stands similarly classified in the Forest Service's database through photointerpretation or other analysis, which cannot meet minimum threshold size or age criteria for old growth, according to Forest Service definitions. Id.,  4051. 4.` ` Most amazingly, the 1998 Old Growth Report includes some 3,670 acres of timber stands which have been clearcut or otherwise intensively logged, eliminating the stands' old growth characteristics. Id.,  5256 & Exh. F. Subtracting these stands from the acreage reported in the 1998 Old Growth Report  Y leaves, at most, 154,159 acres or 8.5% of the forest as meeting the old growth habitat definitions far below the Forest Plan's 10% requirement. See Haak Decl.,  1924 & Table 1. And these are not the only flaws in the 1998 Old Growth Report. For example, some 32,500 acres of remaining old growth stands are less than 80 acres in size, which is below the "preferred minimum" in the Forest Plan; and another 6,170 acres of stands have been partially harvested or are laced with 225 miles of forest roads. See Haak Decl.,  5960 & Exhs. G & H. The Forest Service's "guesstimate" of 37,000 acres of old growth in the SelwayBitterroot Wilderness is also highly suspect, since the agency has used outdated satellite information to derive this number yet has better stand identification data and photo interpretation results available, which it apparently did not use because this information would likely show even less old growth in the Wilderness Area. See Haak Decl.,  6165. As the U.S. Courts of Appeals have now confirmed three times in the past year, timber projects must strictly adhere to Forest Plan mandates, under the National Forest Management Act's "consistency" requirement and the Forest Service bears the burden of?&0*(( demonstrating this consistency. See Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372 (9th Cir. 1998); Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998); and Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999) (all finding timber sales unlawful for lack of consistency with Forest Plans). Counting clearcuts, bare rock, saplings, and small isolated stands as "old growth" hardly satisfies this burden, or meets Forest Plan and NFMA requirements. It certainly does not ensure that adequate habitat exists for old growthdependent wildlife species, which is the underlying rationale for the Forest Plan's old growth habitat requirements. In summary, to avoid admitting that old growth has fallen far below the Clearwater Forest Plan's minimum 10% requirement, the Forest Service has perpetrated a gross misrepresentation of its own data upon Plaintiffs, the public, and this Court. The agency's data reveal that the Clearwater National Forest has significantly less old growth habitat than required by the Forest Plan and NFMA. Plaintiffs thus ask the Court to enter permanent injunctive relief halting any further logging of old growth or nearold growth habitat, until the 10% requirement is clearly satisfied; and to impose other appropriate sanctions for the Forest Service's cynical disregard of the facts and law in this case.  Y 8 ARGUMENT ă  X  XI.X` ` THE 1998 OLD GROWTH REPORT INTENTIONALLY OVERSTATES  Xw OLD GROWTH ON THE CLEARWATER NATIONAL FOREST (#` Plaintiffs' opening submissions on their Old Growth Motions established that, based on November 1997 data provided to them under the Freedom of Information Act by the Forest Service, old growth habitat on the Clearwater National Forest was substantially less than the 10% figure required by the Clearwater Forest Plan instead, the best information available to Plaintiffs then suggested old growth habitat was in the range of 79% of the('0*(( forest as of November 1997. Plaintiffs also showed how the Forest Service has leaned heavily on "estimates" of old growth, which have typically been found through field verification to overstate actual old growth habitat on the order of 50%. See Plaintiffs' Opening Brief Re: Old Growth Violations, and Plaintiffs' Old Growth Separate Statement (both filed 1/14/99). In response, Defendants have relied on the 1998 Old Growth Report to show they meet the Forest Plan 10% standard. See Fed. Defs' Old Growth Brief, pp. 13; Federal Defendants' Old Growth Separate Statement (both dated March 16, 1999). The 1998 Old Growth Report states that a total of 199,600 acres on the Clearwater qualify as "old growth  Y habitat," or 11% of the forest. Y #Xw PE37WXP#эThis figure includes an estimated 37,000 acres of old growth in the SelwayBitterroot Wilderness, and 26,022 acres of estimated old growth identified as "TSMRS" stands. Id.  See 1998 Old Growth Report, A.R. Programmatic, Vol. VII, Doc. 54. The Federal Defendants have also assured the Court that the 1998 Old Growth Report reflects the most current information available, dating from summer 1998, as contained in the "old growth inventory" and timber stand databases maintained by the Clearwater. See Fed. Defs' Old Growth Brief, pp. 1617. Hence, they contend that the Court must accept and defer to the conclusion in the 1998 Old Growth Report that 11% of the Clearwater fulfills the old growth habitat standards, and thus meets Forest Plan requirements. Id. In order to evaluate these assertions, Plaintiffs requested from the Forest Service the old growth inventory and other GIS and timber stand databases maintained by the Clearwater National Forest, as well as aerial photography taken by the Forest Service of the North Fork district (location of the Fish Bate timber sale). See Haak Decl.,  1318. These materials"b0*(( are all part of the agency record, and provide the basis for the old growth acreage set forth in the 1998 Old Growth Report. See 1998 Old Growth Report; see also A.R. Flood Review, Vol. 12, Doc. 350 (aerial photographs of Clearwater National Forest). Plaintiffs' GIS expert, Amy Haak of Conservation Geography in Boise, analyzed this Forest Service information using computerized GIS technologies. See Haak Decl.,  821. She compared the Clearwater's old growth inventory with the detailed stand information contained in the Clearwater's GIS and timber stand databases. Id.. Utilizing the Clearwater Forest Plan's definitions for old growth habitat, as well as the "North Idaho Old Growth Guidelines" which have been employed by the Forest Service to identify old growth on the forest, she analyzed the characteristics of the stands listed in the Clearwater's old growth inventory for consistency with those standards. Id.. It must be emphasized that Ms. Haak  Y and Plaintiffs have not engaged in any new interpretation of data or aerial photography, but have simply analyzed the Forest Service's own data and interpretations by comparing the different databases using wellknown computerized GIS tools. Id.,  17. Ms. Haak's findings are summarized in Table 1 of her declaration, and explained in length by her in the following paragraphs. See Haak Decl.,  1960 & Table 1. As noted above, she found that the Clearwater counted over 45,000 acres of timber stands as "old growth" in the 1998 Old Growth Report which clearly do not meet the applicable old growth definitions, including isolated stands less than 25 acres; stands which the Forest Service have categorized as "non forested," "saplings," "small trees," or "small sawtimber"; and stands which have been clearcut or otherwise heavily impacted by timber harvest. See Haak Decl.,  4. So that the Court fully understands the analytical process used and the errors?&0*(( identified in the 1998 Old Growth Report based on the Forest Service's data, they are explained in detail below.  Xz  Isolated Stands Smaller Than 25 Acres The Clearwater Forest Plan provides that timber stands smaller than 25 acres, which are "isolated" (i.e., not adjacent to other old growth stands), cannot be considered old growth habitat. See Clearwater Forest Plan, Appendix H, A.R. Programmatic, Vol. I, Doc. 2, pp. H1. Yet the Clearwater's timber stand and GIS databases reveal that 415 isolated timber stands forestwide, each smaller than 25 acres, were counted as "old growth" in the 1998  Y Old Growth Report. See Haak Decl.,  27. These stands cover a total of 5,903 acres . Id. Because these stands do not satisfy the Forest Plan definition, there can be no genuine dispute that they were wrongly included in the 1998 Old Growth Report. Id.. Accordingly, Table 1 in the Haak Declaration subtracts this acreage from the old growth acreage listed in the 1998 Report. See Haak Decl., Table 1.  YW Furthermore, analysis of the databases reveals that an additional 32,500 acres of stands listed in the Clearwater's old growth inventory are isolated stands between 25 and 80 acres in size. See Haak Decl.,  30. These are thus smaller than the Forest Plan's "preferred minimum" size of an old growth stand. See Clearwater Forest Plan, Appendix H, A.R. Programmatic, Vol. I, Doc. 2, pp. H1. Since they are below the size recommended for old growth, this additional 32,500 acres likely offers inadequate habitat conditions for  Y" oldgrowth dependent wildlife. Id..F" Y?% #Xw PE37WXP#эMs. Haak prepared a forestwide map, using GIS technology, to illustrate the patchy nature of this additional 32,000 acres of old growth stands which are between 25 and 80 acres in size. That map is attached as Exhibit A to her declaration. F However, because they technically meet the minimum"K0*((  Y requirements of the Forest Plan i.e., they are 25 acres or larger these stands have not been subtracted from the old growth database in Table 1 of Ms. Haak's declaration. See Haak Decl.,  30.  X8  Size and Age Characteristics The next level of analysis performed by Ms. Haak reviewed the Clearwater's timber stand and old growth databases for size and age characteristics that are plainly incompatible with the Forest Service's old growth definitions. See Haak Decl.,  31; Plaintiffs' Supp.  Y, Fact Statement Re: Old Growth,  710.@,  Y ԍ#Xw PE37WXP#As Ms. Haak explains, stands which were eliminated from the old growth inventory at any stage of the analysis were then excluded from later analysis. In this way, no "double counting" of stands occurred. See Haak Decl., Table 1.@ The Clearwater Forest Plan defines "old growth habitat" by a number of criteria, including number of large trees (over 21 inch diameter), number of standing snags, amount of downed woody debris, and degree of canopy closure. See Clearwater Forest Plan, Appendix H, A.R. Programmatic, Vol. I, Doc. 2, pp. H1. Moreover, the more habitatspecific definitions in the North Idaho Old Growth Guidelines, which are used by the Forest Service to identify old growth on the Clearwater National Forest, state that stands of Cedar,  YW Douglas Fir, Grand Fir, and Ponderosa Pine must minimally have numerous trees over 21 inches diameter to be old growth and when Cedar predominates, the trees must exceed 25 inches. Haak Decl.,  36; Plaintiffs' Supp. Fact Statement,  710. The North Idaho Guidelines also provide that the "minimum" age for stands to be considered old growth is 120 years for certain species, with most habitat types having a minimum age of 150 years. Id. The Clearwater's databases contain information by stands on tree size, age, species"K0*(( mix, and other stand characteristics. See Haak Decl.,  3245. This information is contained in different "strata," depending on the level of information used by the Forest Service for each particular stand. For example, many stands on the forest have been analyzed through photo interpretation or by "next neighbor" characterizations. See 1998 Old Growth Report p 10. In addition, certain stands the "ground verification stratum" have been field inspected or ground verified, and hence have more complete and accurate information. See Haak Decl.,  3334. With respect to sizes, Ms. Haak analyzed these "strata" of stand characteristics to determine whether stands in the old growth inventory do not meet old growth requirements. Haak Decl.,  3144. Only stand categories which plainly do not meet minimum necessary tree sizes were excluded. Id. These categories from the database are: "Nonforest," which includes rocky and brushy areas; "Small Trees," which includes seedlings and saplings that do not exceed 9 inches in diameter; and for Cedar, Grand Fir, Douglas Fir, and Ponderosa Pine, the category of "Small Sawtimber," which has no trees exceeding 17.9 inches. See Haak Decl.,  36; U.S.F.S. Timber Stand Management Handbook (attached to Haak Decl.). Comparison of the Clearwater National Forest old growth inventory with these categories of stands which have been "groundverified" according to the timber stand databases, reveals that the old growth inventory and 1998 Old Growth Report wrongly  YJ include at least 10,723 acres of stands which the Clearwater's own database describes as "nonforest," "small trees," or "small sawtimber" based on ground verification. See Haak Decl.,  3137. In other words, according to ontheground measurement by Forest Service personnel, these stands lack the bare minimum tree size necessary for old growth habitat.  Y?& Additionally, the Clearwater's timber databases reveal that 11,189 more acres of?& 0*(( purported "old growth" stands were included in the 1998 Report, based on the Clearwater's photointerpretation and categorization of these stands as "nonforest," "small trees," or "small sawtimber." Haak Decl.,  4950.  Y7 The Clearwater data reveal that another 6,645 acres of seedlings, saplings, pole timber, and small sawtimber (for Cedar, Douglas Fir, and Grand Fir stands only) were wrongly listed as old growth in the 1998 Old Growth Report, based on the Clearwater's "size class" field evaluations. Haak Decl.,  4044. Again, these acres do not overlap with previously identified nonold growth stands, including the stands under 25 acres, the groundverified, or the photointerpreted stands. Haak Decl.,  2223 and Table 1. After conducting this size classification analysis, Ms. Haak also analyzed the old growth inventory and timber stand database for age classifications. According to the  Y  Clearwater's own categorization of stands by age class, a further 7,311 acres of stands less than 110 years old (i.e., 10 to 40 years younger than the minimum old growth age) were included as "old growth" in the old growth inventory. Haak Decl.,  4548. Added together, these stands which do not meet the size or age requirements for old growth habitat, but which are counted as "old growth" in the 1998 Old Growth Report, total  Y  35,868 acres . When this number and the figure for isolated stands less than 25 acres are both deducted from the Clearwater's old growth inventory, the total claimed old growth from  YM the 1998 Old Growth Report falls from 199,600 to 157,829 acres . Haak Decl., Table 1.  X !  Past Logging in "Old Growth" Stands Ms. Haak then examined the Forest Service's database for timber harvest activity by timber stands across the Clearwater National Forest. See Haak Decl.,  5255. The Forest Service's database reports harvest activity according to several criteria, including whether theB& 0*(( entire stand has been harvested or only partial stand; and according to the type of harvesting. Id. Ms. Haak first examined only those stands which the Forest Service reports have been  Yz  entirely affected by past harvest activities. Id. There are many types of harvest activity recorded in the database, such as clearcut, seed tree cut, salvage, etc. See Id. at  5354. In determining which of these harvest activities might conservatively be deemed to have so impacted stand characteristics as to eliminate the stand as possible old growth habitat, Ms. Haak consulted with Dave Hayes, a retired timber planner for the Forest Service with the Nez Perce Forest (which neighbors the Clearwater) who is knowledgeable about harvest methods and impacts. See Haak Decl.,  53. Based on the information he provided, Ms. Haak used the following harvest activity categories to identify stands which have been previously harvested but are still claimed as "old growth" in the Clearwater's old growth inventory: Clearcut, Prepatory Cut, Seed Cut, Selection Cut, Intermediate Harvest, and Other Changes. Haak Decl.,  54.  Y Using these criteria, Ms. Haak found that at least 3,670 acres of logged stands have been included in the 1998 Old Growth Report, but do not satisfy the old growth standards. See Haak Decl.,  5455. Table 3 in the Haak Declaration sets forth the breakdown for this total by type of harvest activity. See Haak Decl., Table 3. By overlaying the Forest Service's aerial photography with the Clearwater's GIS database, Ms. Haak also produced photographic maps illustrating some of the clearcut or otherwise harvested stands near the Fish Bate sale area, in the North Fork district, which are being called "old growth" by the Forest Service. See Haak Decl., Exh. F. As these images graphically reveal, the clearcut and logged areas are certainly not "old growth" habitat any longer as the Forest Service could have readily determined, had it bothered to review its@& 0*(( own photos or timber harvest database in preparing the 1998 Old Growth Report. As set forth in Table 1 to the Haak Declaration, these 3,670 acres of clearcut or otherwise logged stands were thus deducted from the old growth inventory; and after the  Y7 reductions noted above, the total claimed old growth on the Clearwater falls to 154,159  Y acres, or just 8.5% of the forest . See Haak Decl., Table 1 and  5. Notably, apart from these acres of stands entirely affected by past timber harvest, an  Yp additional 6,170 acres of stands claimed as old growth in the 1998 Old Growth Report have  Y. been partially altered by timber harvest on portions of the stands. See Haak Decl.,  59. Moreover, on a forestwide basis, the remaining old growth stands are impacted by  Y approximately 225 miles of roads . Id.,  60. Ms. Haak has produced GIS maps illustrating the road networks which lace through many these claimed old growth stands. See Haak Decl., Exhs. G & H. Obviously, presences of roads or past harvesting calls into question whether the stands actually provide suitable habitat for old growthdependent wildlife. However, these partially  Y[ harvested or roaded stands were not deducted from the old growth inventory. Id.,  5760.  X  Old Growth In The SelwayBitterroot Wilderness The 1998 Old Growth Report estimates that 37,000 acres of old growth exists in the SelwayBitterroot Wilderness. See 1998 Old Growth Report, p. 2. This figure is crucial to the Forest Service's claimed old growth total acreage. Indeed, without this 37,000 acres, even without adjusting the old growth inventory for the errors noted above, the Clearwater would not meet the Forest Plan 10% standards. However, using the figure of 37,000 acres of wilderness old growth is highly questionable. According to the Forest Service, this 37,000 acre estimate was derived usingD& 0*(( 60meter satellite imagery from 1985, which the agency describes as the "best available information" about old growth in the Wilderness Area. See "Wilderness Old Growth (A.R. Programmatic, Vol. VI, Doc.40); 1998 Old Growth Report, p. 2. This claim again misrepresents the facts in the record, for two reasons. First, relying on such outdated satellite data to estimate old growth is inconsistent with the Forest Service's procedures for old growth analysis across the rest of the Clearwater forest and in fact, the Forest Service has refused to use this satellite imagery for other management purposes, because it is unreliable. See Haak Decl.,  6165. Even tighterscale (30meter) satellite technology is deemed unreliable for old growth determination. Id.,  64. Second, contrary to the suggestion in the 1998 Old Growth Report, the Clearwater National Forest has stand information based on photo interpretation for the wilderness area a better source of information than satellite interpretation. See Haak Decl.,  65. Yet the Clearwater has not used this data in estimating old growth in the Wilderness Area. Why not? The answer is uncertain but one likely explanation is that the Forest Service knows, or suspects, the data would show even less old growth than currently estimated. Id.,  65.  X  Summary Of Analysis In summary, analysis of the Clearwater National Forest's own old growth and timber stand databases reveals, beyond any genuine dispute, that the 1998 Old Growth Report is not accurate, does not reflect the current information known to the Forest Service, and overstates old growth habitat on the Clearwater substantially. The following table shows the corrections that must be made to the old growth acreage reported in the 1998 Old Growth Report in order to correct the errors identified above: '' 0*((Ԍ Y E . CORRECTED OLD GROWTH ACREAGE  X ,Clearwater National Forest, 1998 ă } )(Includes SelwayBitterroot Wilderness)  U Total Old Growth Acreage from 1998 Old Growth Report:  U199,600 d ` ` Less: Isolated Stands/Less than 25 Acres:ppGN   U (5,903) ` ` Less: #GroundVerified Stratum/Not Old Growth:  U(10,723) ` ` Less: PhotoInterp Stratum/Not Old Growth:N  U(11,189) ` ` Less: Size Class/Not Old Growth:@ppGN  U (6,645) ` ` Less: #Age Class/Not Old Growth:@ppGN  U (7,311) ` ` Less: #Harvest on Entire Stand:@ppGN  U (3,670)  X  CORRECTED TOTAL OLD GROWTH ACREAGE:N  U154,159  Again, this 154,159 corrected acres of old growth on the Clearwater almost certainly overstates existing old growth habitat, because it includes the unreliable estimated 37,000 acres for the SelwayBitterroot Wilderness; 32,500 acres of isolated stands between 25 and 80 acres in size; 6,170 acres of stands partially altered by harvest; and stands with 225 miles  Y of forest roads.?b Y ԍ#Xw PE37WXP#Plaintiffs' Supplemental Fact Statement,  2538 and supporting declarations also highlight other inconsistencies and errors in the 1998 Old Growth Report and Federal Defendants' assertions about old growth in the Clearwater. These include: (1) The inexplicable failure to reflect November 1997 old growth information from the Palouse District, and more recent summer 1998 field results, showing that only 2% to 3% is old growth based on extensive field verifications efforts versus the unsupported estimate of 6.5% in the 1998 Report; see accompanying Declaration of Larry McLaud; (2) Defendants' failure to rebut Plaintiffs' showing that old growth field verification efforts forestwide tend to show that "tentatively identifed" old growth amounts are inflated by some 50%. The two examples cited by Defendants' of supposedly finding "more" old growth than estimated are not actually supported by the record, see Declaration William Haskins; and (3) The Clearwater's arbitrary and unexplained decisions to override field biologist determinations that certain timber stands in the Fish Bate and White Sand Creek areas are not old growth habitat. See Supplemental Fact Statement,  2538. ? The 1998 Old Growth Reports states that the Clearwater National Forest has a total of[0*(( 1,814,384 acres. The corrected old growth figure above, of 154,159 acres, represents 8.49% of that total. See Haak Decl.,  5, 21. Thus, the Clearwater is clearly violating the Forest Plan's 10% old growth requirement.  X7 X II.X` ` INJUNCTIVE RELIEF AND SUMMARY JUDGMENT ARE REQUIRED  X  FOR THE FOREST SERVICE'S OLD GROWTH VIOLATIONS (#`  X  A.` ` Plaintiffs Are Entitled To Summary Judgment N The foregoing facts, it must be emphasized again, are drawn solely from the Forest Service's own data. They reveal beyond any genuine dispute that the 1998 Old Growth Report is arbitrary, capricious and an abuse of discretion in purporting to provide the most current and accurate information about old growth on the Clearwater, and in claiming that the Forest Plan requirement is met because some 11% of the forest is supposedly old growth habitat. Indeed, it is precisely this type of irrational, unsupported agency conclusions, which are contradicted by the facts in the record, that require reversal of under the standards of the Administrative Procedures Act. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Marsh v. ONRC, 490 U.S. 360 (1989); Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998); Motor Vehicle Mfrs. Ass'n v. State Farm Mut., 463 U.S. 29, 43 (1983) (evidence before agency must support agency decisions). Moreover, since filing Plaintiffs' opening brief in this matter, additional cases from the U.S. Courts of Appeals have further emphasized that NFMA's "consistency" requirement is to be strictly construed, and requires entry of summary judgment for Plaintiffs on the demonstrated old growth violations. In their Opening Brief Re: Old Growth, Plaintiffs discussed extensively Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372  Yj% (9th Cir. 1998), which holds that the Forest Service must prove that sufficient old growth will remain to meet Forest Plan standards after proposed timber harvest. Two U.S. Courts('0*(( of Appeals cases, from the Ninth and Eleventh Circuits, now confirm this holding. Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 106771 (9th Cir. 1998); Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999). Citing Cuddy Mountain, the Ninth Circuit in Friends of Southeast again confirmed the importance of NFMA's "consistency" requirement, finding that the Tongass National Forest violated its own Forest Plan by failing to perform procedural steps required in the Plan prior to approving the Ushk Bay timber sale. See 153 F.3d at 106771. The court held: X[In Neighbors of Cuddy Mountain] we stated that, "[p]ursuant to NFMA, the  Y Forest Service must demonstrate that a sitespecific project would be consistent with the land resource management plan of the entire forest." We held that the proposed sale deviated from the Payette Land Resource Management Plan because the Forest Service failed to establish "that a certain percentage of old growth habitat [would] be retained in Payette." Therefore, we enjoined the sale [under NFMA's consistency requirement].  XUnder Neighbors of Cuddy Mountain, we must affirm the district court's decision to enjoin the Ushk Bay timber sale if that sale is inconsistent with the Tongass Land Management Plan.(# Friends of Southeast, 153 F.3d at 1068 (emphasis added, citations omitted). The Ushk Bay timber sale at issue in Friends of Southeast was held to violate the Tongass Land Management Plan because the Forest Service failed to perform an "area analysis" for the sale a broad procedural step required by the Plan intended to precede more specific NEPA analysis. The "area analysis" would study general project feasibility, location, scope, and alternatives, and would involve interested groups in project study. Id. The Tongass Land Management Plan then required that more specific "projectimplementation" analysis would be "tiered" to the more broad "area analysis." Id. at 106869. The Court in Friends of Southeast agreed that "tiering" of analyses, under both the Tongass Land Management Plan and NFMA regulations, required broad analysis to precede&0*(( specific analysis and rejected the Forest Service's interpretation that the two could be analyzed simultaneously. Id. Indeed, the Court expressly declined to defer to the Forest Service's interpretation of its own documents, as the Forest Service has again urged this Court to do. Id. Further confirming the importance of timber sale consistency with Forest Plans, the U.S. Court of Appeals for the Eleventh Circuit in Martin recently found several timber sales in the Chattahoochee and Oconee National Forests unlawful because of the Forest Service's failure adhere to applicable Forest Plan population monitoring requirements. See Martin, 168 F.3d at 24. The 11th Circuit found that, under both the Forest Plan and 36 C.F.R.  219.19, the Forest Service is required to collect population trend data on management indicator species, and otherwise adhere to Forest Plan species monitoring requirements prior to approving timber harvest projects. Id. In so holding, the Court stated: XWhile the Forest Service's interpretation of its Forest Plan should receive great deference from reviewing courts, "courts must overturn agency actions which  Y do not scrupulously follow the regulations and procedures promulgated by the agency itself."   Id. at 4 (emphasis added), quoting Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). Further, the Court demanded hard data to support the Forest Service's conclusions that timber sales would not harm impacted wildlife species populations: XThe Forest Service admits in numerous places in the record that sensitive species do occur within the project sites and acknowledges that those individuals would be destroyed by the proposed timber sales. It then notes in each case that because the species also exists elsewhere within the Forest, the timber projects would not significantly impact the species' diversity or  Y# viability. Yet the Forest Service reached this conclusion without gathering  Y$ any inventory or population data on many of the . . . species. Though these species are, by definition, at risk, nothing in the record indicates that the Forest Service possessed baseline population data from which to measure the impact that their destruction in the project areas would have&0*((  X on the overall forest population.   Martin, 168 F.3d at 45 (emphasis added). Under the undisputed facts presented, then, Plaintiffs are plainly entitled to judgment as a matter of law on their claim that the Forest Service is violating the Clearwater Forest Plan's 10% old growth habitat requirement. Accordingly, summary judgment should be  Y entered for Plaintiffs._ !z Y~ #Xw PE37WXP#эPlaintiffs are also entitled to summary judgment on the separate claim that the Forest Service is violating the Forest Plan's 5% old growth per timber compartment requirement. Federal Defendants have done little to rebut Plaintiffs' showing that several old growth analysis units (OGAUs) in the Clearwater National Forest, including the Crooked Fork OGAU in the Winchester timber sale area, and the Deadhorse OGAU in the Fish Bate sale area, have less than 5% designated old growth. See Plaintiffs' Separate Statement,  6471. Thus summary judgment is appropriate on this issue as well.  X  B.` ` If Summary Judgment Is Not Granted, Plaintiffs Are Entitled To An  X Evidentiary Hearing (#` Prior to submission of this brief and the Haak Declaration, intervenor Idaho Forest Industries Association (IFIA) claimed that Plaintiffs' opening papers had only raised disputed issues of fact concerning the amount of old growth habitat on the Clearwater. See IFIA's Old Growth Brief (filed February 1999), at 56. In light of the extensive analysis above and in the Haak Declaration, Plaintiffs do not believe anybody can reasonably dispute that the Clearwater is currently not meeting the 10% Forest Plan requirement, and thus summary judgment is proper. If, however, the Federal Defendants come up with yet another set of old growth figures or rationales in their reply to this brief and the Haak Declaration, or otherwise contest the factual basis for the analysis set forth herein and in the Haak Declaration, then Plaintiffs request the Court conduct an evidentiary hearing in order to get to the bottom of0*(( the old growth situation on the Clearwater National Forest. An evidentiary hearing could be beneficial not only to present directly before the Court the testimony of Ms. Haak, but also to examine the responsible Forest Service employees about their apparently deliberate distortion of the agency record in the 1998 Old Growth Report and before this Court; about the invalidity of the SelwayBitterroot Wilderness estimated old growth figures; and about the Forest Service's failure to inform the Court that its own biologist on the Palouse District has reported finding even less old growth in the summer 1998 than previously suspected. See accompanying Declaration of Larry McLaud (reporting conversations with Palouse District biologist Harry Jageman). An evidentiary hearing may also be appropriate to determine the scope of appropriate injunctive relief, as requested by Plaintiffs.  X X C.` ` Preliminary And/Or Permanent Injunction Is Necessary (# In addition to seeking summary judgment, Plaintiffs have moved for entry of preliminary or permanent injunctive relief as well. This is because the Clearwater is not only far below the Forest Plan's 10% old growth requirement, but it has currently approved timber sales including Fish Bate, Winchester, Shoot Creek, and White Pine which will log even more old growth, and is poised to approve a number of additional major timber  Y sales which will further reduce existing old growth habitat._ Y ԍFederal Defendants assert that a number of other sales listed in Plaintiffs' opening papers are either logged, or not yet ripe. However, there is no dispute that Fish Bate, Shoot Creek, and Winchester are final, justiciable, old growth sales which will destroy at least 620 acres of old growth habitat, while the White Pine sale will log the best remaining nearold growth habitat on the Palouse district, removing 162 acres of goshawk nesting habitat and 245 acres of pileated woodpecker nesting habitat. See Declaration of Gary Macfarlane, filed herewith (addressing White Pine sale).  Injunctive relief is appropriate under these circumstances, first, to remedy the provenJ0*(( violations of the Forest Plan and NFMA's consistency requirement. Indeed, injunctions against further logging were entered by the Courts of Appeals in the Cuddy Mountain, Friends of Southeast, and Martin cases discussed above, for similar violations of the NFMA consistency mandate. An injunction is certainly warranted here to prevent the Clearwater from logging any remaining old growth or the nearold growth timber that is needed to eventually reach the 10% Forest Plan requirement. Injunctive relief is further warranted because of the threat of irreparable harm to old growthdependent species, and the Forest Service's inability to demonstrate it is providing sufficient habitat on the Clearwater to maintain viable populations of these species, as required under 36 C.F.R.  219.19. See also 36 C.F.R.  219.26, and 219.27(a)(5) & (6). (#(#kAs set forth in the accompanying Plaintiffs' Motion for Summary Judgment Re: Monitoring Violations, not only has the Clearwater failed to provide adequate old growth habitat as  Y required under the Forest Plan, but it has also failed to conduct population monitoring necessary to ascertain whether viable populations of the designated old growth management species pileated woodpecker, goshawk, and pine marten are being maintained on the forest. As the Ninth Circuit has noted, "sensitive" species, such as the goshawk, deserve special attention to protect their viability: "This duty to ensure viable, or selfsustaining, populations, applies with special force to `sensitive' species." Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d at 757 (9th Cir. 1996), citing Oregon Natural Resources Council v. Lowe, 836 F.Supp. 727, 733 (D.Or. 1993), and Forest Conservation Council v. Espy, 835 F.Supp. 1202, 1206 (D.Idaho 1993).  Y% Given the Forest Service failure either to monitor for the old growth management  YS' indicator species, or to provide the old growth habitat required for such species under theS'0*(( Clearwater Forest Plan, the Forest Service has no means of demonstrating that it is meeting the NFMA population viability requirement. Compare Inland Empire, 88 F.3d 753 (where Forest Service had analyzed habitat requirements for MIS species and could establish such requirements were met, lack of monitoring did not violate NFMA). An injunction is thus needed to ensure against any further harm to these species, until the Clearwater comes into compliance with its Forest Plan and NFMA requirements.  Y  G7 CONCLUSION ă For the foregoing reasons, and as set forth in their opening submissions, Plaintiffs respectfully pray that their Old Growth Motions be granted, summary judgment entered in their favor on the Forest Service's violations of the Clearwater Forest Plan old growth habitat requirements, and injunctive relief issued prohibiting the Clearwater National Forest from further logging old growth or nearold growth timber until the Forest Plan requirements are met. Dated: May __, 1999*hh2Respectfully submitted, ` `  #*hh2ROSSBACH BRENNAN P.C. ` `  #*hh2LAND AND WATER FUND OF THE ROCKIES ` `  #*hh2_________________________________ ` `  #*hh2By: Laurence ("Laird") J. Lucas ` `  #*hh2Attorneys for Plaintiffs