Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) __________________________________________ ) TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant ) __________________________________________) _ CLR TIMBER HOLDINGS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) BLUE LAKE FOREST PRODUCTS, INC.,

No. 01-570C (Judge Williams)

No. 01-627C (Judge Williams)

No. 04-501C (Judge Williams)

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT

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FORMATION OF THE HAPPY THIN, JACK HELI AND TOO WILD FOREST SERVICE TIMBER SALE CONTRACTS 1. The process by which a timber sale comes into being starts with initial planning and the

preparation of a preliminary document, the timber sale project plan, in which the feasibility of proceeding with the project, which may contain one or more sales, is verified. App. Tab 8 (United States Forest Service ("Forest Service") Manual ("FSM") § 2432.1, 2432.11 (amend. 953, eff. Apr. 28, 1995)).

2.

The timber sale project plan must present appropriate data needed by the responsible

Forest Service official to determine whether to proceed with the environmental analysis and project design. App. Tab 8 (FSM § 2432.13 (amend. no. 95-3, eff. Apr. 28, 1995)). Such data is to include current surveys, aerial photos, and inventories plus on-the-ground reviews of the project areas to verify existing data. Id. (FSM § 2432.14 (amend. 95-3, eff. Apr. 28, 1995)0.

3.

After completion of the timber sale project plan, the Forest Service conducts "an

intensive field investigation within and adjacent to the proposed project area." App. Tab 8 (FSM § 2432.2 (amend. 95-3, eff. Apr. 28, 1995)). As part of this step, the Forest Service is to perform its statutory obligations under the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"): complete the appropriate environmental analysis (typically either an Environmental Impact Statement ("EIS") or an Environmental Assessment ("EA")), prepare alternative actions (including a no-action alternative), decide which alternative to select and document the decision

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in a Decision Notice with a Finding of No Significant Impact, or a Record of Decision. App. Tab. 8 (FSM § 2432.22g (amend. 95-3, eff. Apr. 28, 1995)).

4.

The FSM makes it clear that it is the Forest Supervisor's duty to ensure that sale planners

consider the environmental effects both in the environmental and sale preparation process. App. Tab 8 (FSM § 2432.04b (amend. 95-3, eff. Apr. 28, 1995)).

5.

Throughout the 1990s, including all time periods pertinent to the ONRC Action lawsuit

filed in July 1998, the Forest Service had a regular practice of completing the environmental analysis and issuing the final NEPA decision document required for a timber sale months or even years before that timber sale would be offered to the public and involve any ground-disturbing activities. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 34:23-35:8; 58:14-61:3; 121:11-122:14).

6.

The NEPA decision notice for the Happy Thin timber sale was issued on September 15,

1998. App. Tab 142. The Happy Thin timber sale contract no. 060772 ("Happy Thin") was awarded to plaintiff Blue Lake Forest Products, Inc. ("Blue Lake") on July 6, 1999. App. Tabs 122, 124. The NEPA decision notice for the Jack Heli timber sale was issued on July 14, 1998. App. Tab 143. The Jack Heli timber sale contract no. 060715 ("Jack Heli") was awarded to plaintiff Timber Products Company ("Timber Products") on March 2, 1999. App. Tabs 91, 93. The NEPA decision notice for the Too Wild timber sale was issued on June 15, 1998. App. Tab 40. The Too Wild timber sale contract no. 075862 ("Too Wild") was awarded to plaintiff CLR Timber Holdings, Inc. ("CLR") on May 14, 1999. App. Tabs 110-11.

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7.

The advertisements, prospectuses, instructions to bidders and all contract terms and

conditions for each of the timber sale contracts involved in this consolidated action (Happy Thin, Jack Heli and Too Wild) were drafted entirely by the Forest Service. All three contracts are contracts of adhesion, the terms and conditions of which are not negotiable. App. Tabs 93, 111, 124.

8.

Happy Thin and Jack Heli were located on the Klamath National Forest in northern

California within Region 5 of the National Forest System. Too Wild was located on the Siskiyou National Forest within Region 6 of the National Forest System. At all times the National Forest land on which all three sales were located was within the area governed by the Northwest Forest Plan ("NFP") and under the complete administration and control of the Forest Service. App. Tabs 93, 111, 124; App. Tab 1 (Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl ­ Standards and Guidelines for Management of Habitat for Late-Successional and Old Growth Forest Related Species Within the Range of the Northern Spotted Owl).

9.

By awarding Happy Thin, Jack Heli and Too Wild, the Forest Service represented that it

had complied with all pre-award requirements under NFMA and NEPA. App. Tabs 93, 111, 124; ¶¶ 1-8 above.

10.

During the 1990s and at least through the pendency of the ONRC Action lawsuit, all

Forest Service line officers on National Forests, including District Rangers and Forest Supervisors, were regularly assigned certain target volumes of timber which each National 4

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Forest was expected to sell to the public, including the forests within the NFP, such as the Umpqua National Forest and the Klamath National Forest. Regional Foresters and the Chief of the Forest Service had similar target volumes for timber sales on the regional and national levels. One element of each of these line officers' job performance evaluations included whether or not they met these targets or had very good reasons for not meeting these targets. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 119:17-120:6).

11.

As a prerequisite to receiving the award of Happy Thin, Jack Heli and Too Wild, the

Forest Service could have required that Blue Lake, Timber Products or CLR, respectively, execute a release and waiver of all claims for replacement timber costs or lost profits arising out of any suspension of operations specifically resulting from the ONRC Action lawsuit regardless of whether Forest Service fault or failure to comply with law was the ultimate cause of the suspension. The Forest Service did not request any such releases or waivers even though it has done so with other timber sale purchasers as a prerequisite before awarding other timber sales threatened with litigation in Region 5. See App. Tab 163 (Letter from Mark Bosetti, Sierra Pacific Inc., to Joseph Franco, Forest Service (June 28, 2005) with attached "Pre-award Waiver, Release and Limitation of Liability Agreement 04/09/2007").

12.

As early as November 20, 1998, the Forest Service was considering a new timber sale

contract clause that would explicitly allow the Forest Service to unilaterally modify the contract for the protection of survey and manage species. App. Tab 61. The Forest Service elected not to include this clause in the Happy Thin, Jack Heli or Too Wild contracts. See App. Tabs 93, 111, 124. 5

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THE NFP WILDLIFE AND PLANT SURVEYS 13. In April 1994, Secretaries of the United States Department of Agriculture on behalf of the

Forest Service and the United States Department of the Interior on behalf of the BLM issued a Record of Decision ("ROD") for "Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl." This document amended the plan and resource management plans governing the operation of the National Forest and BLM forestlands in the states of Washington, Oregon and Northern California where it was believed that populations of northern spotted owls existed. The Klamath National Forest in Northern California and the Umpqua National Forest in Oregon were among those forests governed by the NFP. The provisions in the NFP were drawn from Alternative 9 of the Final Environmental Impact Statement prepared as part of the planning effort leading up to the adoption of the Plan. The fundamental purpose of the Plan was to permit a predictable and sustainable level of timber sales and use of non-timber resources that would not degrade or destroy the environment or endanger the viability of a variety of species of plants and animals present on NFP federal forests. App. Tab 1.

14.

As part of the NFP ROD, survey and manage standards and guidelines were developed as

mitigation measures for over 400 old-growth related species where there was a concern for the continued persistence of these species across the landscape, but where little knowledge existed of the species themselves. App. Tab 185 (R. Holthausen Dep. Tr. 7:23-15:4); App. Tab 1 at A-3 to A-5; App. Tab 6.

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15.

The NFP identified four survey strategies for the Survey and Manage ("S&M") species:

(1) manage known sites; (2) survey prior to ground-disturbing activities; (3) conduct extensive surveys to find high priority sites for management; and (4) conduct general regional surveys to acquire additional information to determine necessary levels of protection. App. Tab 1 at A-10 to A-12; App. Tab 11. Survey and manage species fall into one or more of these categories, also sometimes called "components" or "strategies." Id.

16.

The Oregon red tree vole, five species of salamanders, and the Canada lynx were initially

designated as the Category 2 species (also sometimes referred to as "Component 2" or "Strategy 2" species). App. Tab 11. Prior to the award of Happy Thin, Jack Heli, and Too Wild, the Canada lynx was removed from the Category 2 species by the Regional Interagency Executive Committee ("RIEC") under a provision of the NFP which allowed such modifications. App. Tab 1 at A-12. Surveys for these species were required for certain timber sales as of October 1, 1996. App. Tabs 1, 11. Approximately seventy-one other invertebrate species, including certain bryophytes, lichens, fungi, mollusks, and vascular plants, were also designated as Category 2 species, and surveys for those species were required for certain timber sales as of October 1, 1998. App. Tab 11.

17.

The Category 2 surveys required under the NFP were important to an environmental

evaluation of the sales before the sales were authorized, and it was important to have this information before the issuance of a decision notice approving the sales as in compliance with NEPA and NFMA. App. Tab 178 (E. Boling Dep. Tr. 38:9-42:5).

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18.

Category 2 surveys were "designed to address the high-risk species (persistence

concerns) for which survey protocols exist or could be developed reasonably soon, and for which adequate searches could be conducted in a single year." "High-risk" species refers to the risk of extirpation as does the phrase "persistence concerns." App. Tab 185 (R. Holthausen Dep. Tr. 15:10-16:3; 19:24-20:21). For Category 2 species, it was necessary that surveys be conducted prior to ground-disturbing activities which could result in the destruction or impairment of habitat necessary for those species' survival. App. Tabs 9, 35, 49; App. Tab 185 (R. Holthausen Dep. Tr. 15:8-23:18). The Category 2 surveys were the most restrictive in terms of the potential impact on federal lands, including Forest Service timber sales, of the NFP wildlife and plant surveys. App. Tab 185 (R. Holthausen Dep. Tr. 23:3-18).

19.

As more time passed and more activities such as timber sales were undertaken prior to

the implementation of the Category 2 surveys, the risk of extirpation to Category 2 species in all or part of the NFP area increased. App. Tab 185 (R. Holthausen Dep. Tr. 28:19-29:24).

20.

One of the fundamental purposes of the Category 2 surveys was for the government to

acquire a sufficient knowledge base to have a better idea of the degree of risk of extirpation to species prior to the initiation of ground-disturbing projects like timber sales. App. Tab 185 (R. Holthausen Dep. Tr. 31:1-21).

21.

A critical purpose of the Category 2 surveys was to help insure the viability of the species

that were being surveyed. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 30:17-32:3).

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22.

One of the important objectives of the NFP was to develop as soon as possible the

protocols necessary for the Category 2 "prior to ground-disturbing activities" surveys which the NFP directed were to be implemented for certain vertebrate species as of October 1, 1996 and for the remainder of the Category 2 species as of October 1, 1998. App. Tab 1 at A-4.

23.

Survey protocols for the five Category 2 salamanders were approved for use by the Forest

Service and available at least as early as March 16, 1996. App. Tab 14 (Memo from W. Bradley, BLM, to BLM district managers (Mar. 19, 1996)).

IMPLEMENTATION OF NORTHWEST FOREST PLAN SURVEYS 24. Under the NFP there were several government groups with various levels of authority for

recommending and determining the intent and meaning of the NFP survey and manage requirements. At least as early as the spring-summer of 1994, there existed a Survey and Manage Working Group (which included a smaller entity referred to as the "Survey and Manage Core Group") composed of representatives from the Forest Service, the BLM and other agencies. Among other things, the purpose of the Survey and Manage Working Group was to develop working definitions and directions for the implementation of NFP wildlife and plant surveys and to recommend the adoption of certain definitions and interpretations to higher levels of authority within the management structure of the NFP. At various times from at least December 1994 through 1998, the team leaders of this group included Cheryl McCaffrey of the BLM and Randy Hickenbottom of the Forest Service. App. Tabs 2-6, 189.

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25.

There was an Intermediate Management Group ("IMG") immediately above the Survey

and Manage Working Group in the NFP administrative hierarchy. This group included representatives of the Forest Service and the BLM at what was determined to be the intermediate management level. One purpose of the IMG was to act on and approve the recommendations from the Survey and Manage Working Group with regard to definitions, directions and interpretations of the survey requirements under the NFP when, in the view of the IMG members, such decisions could be made without referring the matter to the next higher level of authority, the RIEC. From at least December 1994 through 1998 at various times, Tom Nygren of the Forest Service and Bill Bradley of BLM were members of the IMG. App. Tab 189.

26.

The RIEC represented the highest level of agency authority at the regional level within

the NFP administrative hierarchy. The RIEC included the Regional Foresters of Regions 5 and 6 of the Forest Service and the Director of the Oregon State Office of the BLM or their designated representatives. App. Tabs 12, 189.

27.

As part of the administrative structure for the NFP there existed a Regional Ecosystem

Office ("REO") under the direction of Donald Knowles, Executive Director, which functioned as the staff of the RIEC coordinating certain agency actions and reporting thereon to the RIEC. Mr. Knowles and other members of the REO from time to time worked with other administrative levels under the NFP including the Survey and Manage Working Group and the IMG. App. Tabs 12, 189.

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28.

Beginning as early as May 26, 1994, Richard Holthausen, the Team Leader of the

Species Analysis Team responsible for developing recommendations regarding the species surveys which ultimately became the survey and manage program under the NFP, provided oral and written presentations explaining the background, rationale for and intent of the wildlife and plant surveys required under the NFP, including the Category 2 surveys. See App. Tabs 2, 6, 10; App. Tab 185 (R. Holthausen Dep. Tr. 32:21-33:8).

29.

In his paper on the background and intent of the NFP survey requirements entitled

"Development of the Survey and Manage Measure," Mr. Holthausen discussed the Category 2 surveys which he described as "survey prior to ground-disturbing activities and manage sites that are discovered (Strategy II)." He further stated, "Ground-disturbing activities also were not described, but a common sense definition would include any disturbances of a type and intensity that would have a significant, negative effect on species on the list and/or the habitat that supports them." Mr. Holthausen concluded in his paper that "the survey and manage strategy in the ROD was intended to provide additional protection for species whose outcomes were judged to be low under draft Alternative 9 [the alternative analysis under NEPA which became the NFP]," and Mr. Holthausen offered the observation that "if survey and manage is marked by delays, inconsistencies, and clearly inadequate processes, flexibility will likely be lost and implementation of survey and manage will be likely become more difficult." App. Tab 6.

30.

At a meeting on December 2, 1994 involving Cheryl McCaffrey of the BLM, identified

as the "lead" for the Survey and Manage Working Group, Randy Hickenbottom, Richard Holthausen and others, Mr. Holthausen addressed the intent and meaning of the survey and 11

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manage provisions in the ROD of the NFP. The basic purpose of this meeting was to clarify both the intent and development of the survey and manage standards and guidelines and to address the meaning behind some specific terms or phrases. At this meeting it was agreed that the intent of the NFP ROD in requiring wildlife and plant surveys was "to maintain the viability of the species addressed." Also at this meeting it was generally recognized that Category 2 surveys were "designed to address the high-risk species (persistence concerns) for which survey protocols exist or could be developed reasonably soon and for which adequate searches can be conducted in a single year." App. Tab 10.

31.

By at least January 1996 a group called the Issue Resolution Team ("IRT") was added to

the NFP administrative structure. This team was charged with, among other things, developing and recommending interpretations of the NFP Category 2 survey requirements. Typically, recommendations from this team would be provided to the IMG and/or to the RIEC for official adoption as direction to field personnel for both the Forest Service and BLM employees. Tom Hussey (Forest Service) and Larry Larsen (BLM) were members of the IRT and John R. "Randy" Hickenbottom (Forest Service) worked with the IRT on developing interpretations of the NFP requirements for Category 2 surveys. App. Tabs 12, 20.

32.

A joint Forest Service and BLM memorandum dated March 18, 1996 issued to all Forest

Supervisors within the area of the NFP, including Forest Supervisors for the Klamath National Forest in California and the Siskiyou National Forest in Oregon, addressed draft standard protocols for the five salamanders to be surveyed before the implementation of grounddisturbing activities in FY 1997. Although these protocols were designated at that time as "draft 12

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standard protocols," the memorandum directed that "projects surveyed according to the draft protocols (including modifications by agency biologists) will be considered as meeting the requirements of Component 2 for FY 1996." App. Tab 7.

33.

[Intentionally left blank]

34.

The Survey and Manage Working Group meeting minutes from the August 23, 1995

meeting were reproduced in part and distributed to Survey and Manage Working Group members in connection with a Survey and Manage Working Group meeting on March 22, 1996. Those 1995 minutes stated that Component 2 (Category 2) "Surveyed Prior to GroundDisturbing Activities ("GDA")" required that surveys for 71 species be completed before ground-disturbing activities were implemented in FY 1999 (relying on ROD C-5) and that surveys for five salamanders and the red tree vole had to be completed before ground-disturbing activities were implemented before 1997 (citing ROD C-5). These minutes further stated that efforts to develop these protocols were to be started immediately. App. Tab 13.

35.

[Intentionally left blank]

36.

In the Survey and Manage Working Group's proposed FY 1996 organization and work

plan dated July 19, 1996, the following recommendation was made: Component 2: Complete survey protocols for all species. Surveys for amphibians and red tree voles are required for FY 1997 projects. For other species, surveys required for FY 1999 projects. All protocols should be complete in FY 1996 or 1997.

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App. Tab 17 at A-152.

37.

At a January 17, 1996 Forest Plan Implementation workshop designed to provide

guidance to Forest Service field personnel on the meaning and intent of the NFP, the question was asked "When is a project implemented?" At the workshop, Tom Hussey, a member of the IRT, answered that question as follows: "Project implementation is when the Forest Service has committed to a project to the point where it would be unreasonable (cost or resource impacts) to delay or cancel the project. When the Forest Service has entered into legal contractual agreement, the project is considered implemented (IRT Response)." App. Tab 12 at A-90.

38.

In the summer of 1996 two members of the IRT, Larry Larsen of the BLM and Tom

Hussey of the Forest Service, and Randy Hickenbottom, who was the team leader of the Survey and Manage Working Group at the time, collaborated to write a proposed answer/resolution to the question: when are ground-disturbing activities implemented on a project or timber sale for purposes of directing when Category 2 surveys are required. Multiple drafts were prepared throughout the summer and into the fall of 1996 in an attempt to provide a proposed answer/resolution. App. Tabs 16, 18, 20-24, 26-34, 39, 43, 71-72, 74-75, 77, 83, 87-88, 104-07; App. Tab 171 (L. Larsen Dep. Tr. 6:17-22); App. Tab 38 ("Notes on S&M Concerns Meeting" (Jan. 22, 1997)); App. Tab 37 ("Memo from Robin Bown, S&M Workgroup Representative, to Various Offices" (Nov. 25, 1996)).

39.

[Intentionally left blank]

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40.

[Intentionally left blank]

41.

In the summer of 1996, in a draft paper addressing, among other points, the definition of

implementation of ground-disturbing activities for purposes of the ROD direction requiring Category 2 surveys, Larry Larsen, a member of the IRT, wrote: Rationale: By requiring the S&M survey prior to the project decision, we can assure that the responsible official, other agencies, and the public have the benefit of the survey information prior to making an informed decision. This is consistent with the stated objective for doing the surveys: ". . . information gathered from them should be used to establish managed sites for the species." This definition of implementation would also allow us to move ahead with projects for which a decision has already been made, but will not begin operations until 1997. App. Tab 18 at A-194.

42.

In Mr. Larsen's paper referred to in paragraph 41 above, he also stated that an alternative

definition of implementation could be the date at which project operations actually began. As to this definition Mr. Larsen stated: The chief problem is that it would be inconsistent with the stated objective for doing the surveys as mentioned above. The information from the surveys would not be available in a timely manner for the project designed to include the managed sites as needed for these species. A second problem with using the initiation of project [including timber sale] operations would be that there are a number of projects [timber sales] that need to begin operations in early 1997 and they would be delayed pending the completion of surveys. App. Tab 18 at A-194.

43.

In Mr. Larsen's draft referenced in paragraph 41 above, he also made the following

observation:

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QUESTION 3: HOW SHOULD WE HANDLE SITUATIONS WHERE THE DRAFT S&M PROTOCOLS ISSUED IN THE NEXT FEW MONTHS REQUIRE SURVEYS THAT CANNOT BE PERFORMED UNTIL NEXT SPRING, YET WE NEED TO PLAN THE PROJECT AND MAKE A DECISION THIS FALL OR WINTER? Response: There may be projects [including timber sales] where the draft protocol is available but for biological reasons the survey cannot be conducted until the spring or summer of 1997. In cases where these projects [timber sales] need to have a decision made prior to the time that the survey can be conducted, then the decision document can be signed but the project [timber sale] cannot commence operations until the survey is conducted and the project design adjusted to include the S&M species considerations as appropriate. Clearly, this should be a reluctant "last resort" option because of the possible difficulties of adjusting a project to include the S&M information obtained after project design and decision. As discussed in Question 1, wherever possible we should schedule project decisions [timber sale Decision Notices] to include the results of S&M surveys. App. Tab 18 at A-194 to A-195.

44.

One of the possible interpretations of how "implementation" should be defined for

purposes of ascertaining the implementation of ground-disturbing activities which was considered by the IRT was the concept that ground-disturbing activities would be considered implemented on the date that an appropriate decision document, such as a Decision Notice, was signed signifying completion of the environmental analysis required under NEPA and NFMA before a timber sale could be offered to the public. This interpretation came to be known as "NEPA decision equals implementation" or "NEPA decision equals implemented." This interpretation was ultimately adopted by both the Forest Service and the BLM, and it was subsequently determined to be arbitrary and capricious and contrary to law in the ONRC Action litigation. App. Tabs 18, 34, 49; Oregon Natural Resources Council Action v. United States Forest Service, 59 F. Supp. 2d 1085, 1091-94 (W.D. Wash. 1999).

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45.

The IRT members and other government personnel working with them on the

development of the interpretation "NEPA decision equals implementation" took both legal risk and biological risk into consideration as they analyzed alternative interpretations of the NFP Category 2 survey requirements. "Legal risk" in this context meant, for example, the government's risk of losing a lawsuit brought by environmental activists who might dispute the official interpretation. "Biological risk" referred to the risk to the viability of the species if the Category 2 surveys were not required for a significant number of timber sales. App. Tab 168 (R. Hickenbottom Dep. Tr. 105:15-107:1). Randy Hickenbottom, a working member of the IRT and for a period of time team leader of the Survey and Manage Working Group, thinks it is really important to know how many timber sales were going to be grandfathered in without surveys if the interpretation "NEPA decision equals implementation" was selected. Id. (R. Hickenbottom Dep. Tr. 108:3-15).

46.

During the IRT deliberations which ultimately resulted in the IRT recommending the

adoption of the interpretation "NEPA decision equals implementation," Randy Hickenbottom preferred an interpretation which would define implementation as some point after the signing of a NEPA decision notice but before the Forest Service or the BLM made a relatively irreversible commitment to the project. Mr. Hickenbottom advocated this interpretation because it would require more projects to be surveyed, and therefore more projects would have the benefit of the knowledge of the presence or absence of the S&M species before timber harvest or other operations might adversely alter the available habitat of these species. App. Tab 168 (R. Hickenbottom Dep. Tr. 108:23-109:20); App. Tab 21.

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47.

When Randy Hickenbottom was a working member of the IRT and team leader of the

Survey and Manage Working Group, he believed that whenever possible a timber sale's NEPA Decision Notice should include consideration of the results of the S&M surveys. It was optimal from a management standpoint to have as much information as possible in order to make a wellinformed NEPA decision. App. Tab 168 (R. Hickenbottom Dep. Tr. 109:24-110:16); App. Tab 21.

48.

As of August 28, 1996, the IRT was still analyzing different interpretations of the

required start date for Category 2 species surveys under the NFP. With regard to the interpretation "NEPA decision equals implementation" under which no Category 2 surveys would be required prior to actual timber sale operations for timber sales with decision notices signed on or before September 30, 1996 regardless of whether those sales might not be offered to the public, awarded and operated for months or even years later, the following concerns were expressed: This could result in projects being operated on in fiscal years 1997, 1998, and possibly even 1999 without surveys having been done. We have been unable to determine how many projects this might include, nor have we been able to get an estimate of the possible resource damage that could occur. There is strong concern on the part of many FS, BLM, and F&WS personnel that allowing major activities such as timber sale or road building operations to proceed after 9/30/96 without surveys is unacceptable because it does not meet a commonly accepted understanding of when implementation occurs. App. Tab 22; App. Tab 168 (R. Hickenbottom Dep. Tr. 113:5-19).

49.

Prior to January of 1997, Richard Holthausen, Team Leader for the NFP wildlife Species

Team, was asked by Don Knowles, Director of the Regional Ecosystems Office, if it was

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possible to do an assessment of the potential impact of different implementation dates for the surveys required under the NFP. Mr. Holthausen told Mr. Knowles at that time, "That in general, one could reasonably assume that delay of implementation strategies would result in some negative effect for some species, but that it would be virtually impossible to specify either the level of that effect or the species that would undergo negative effects." In short, there was no way of knowing whether the negative effect on the species would be relatively small or whether it would cause extirpation of a species. App. Tab 185 (R. Holthausen Dep. Tr. (9/30/07) 48:451:23).

50.

In a draft memorandum produced by members of the IRT prior to October 4, 1996 but

late in the process of the IRT finalizing its recommendation regarding the interpretation of the Category 2 survey implementation date requirements, the potential impact of adopting the interpretation "NEPA decision equals implementation" was discussed as follows: Question 2: Does The Above Definition Of The Point Of Implementation [NEPA Decision Equals Implementation] Allow Us To Make A Large Number Of NEPA Decisions Prior To September 30, 1996 For Outyear Projects In Order To Avoid The Need For Category 2 S&M Surveys? Response: The ROD clearly intended that we perform surveys for Category 2 species prior to the design and implementation of projects; and it also clearly intended that we have until FY 97 to phase in this requirement. But the "banking" of NEPA decisions prior to FY 97 for projects that will not begin for several years is inappropriate. If we do not plan to make an irreversible commitment to proceed with the project prior to mid-year 1997, then we should conduct the survey for the Category 2 S&M species prior to making a NEPA decision on the project. If for some reason it is necessary to make a NEPA decision prior to Sept. 30 for an outyear project, then it might also be appropriate to do so but plan to conduct the S&M survey prior to making an irreversible commitment to proceed with the project. This should be a reluctant "last-resort" approach, as it creates the risk that the project will need to be re-designed based on the results of the S&M survey and the NEPA process recycled. The definition of the term "irreversible commitment to proceed" will vary according to the type of project 19

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and the policies and procedures of the managing agency, but it usually should be the point at which it is relatively difficult and expensive to redesign or cancel a project. Examples of that point might be the award of a timber sale, the signing of a service contract, or the actual operational start of a force account project. App. Tab 28.

51.

As the IRT was considering how to interpret the NFP direction for the implementation of

Category 2 surveys, including the interpretation of the point at which ground-disturbing activities were implemented for purposes of timber sales, members of the IRT were aware of concerns raised by agency personnel regarding the possibility that the Forest Service and the BLM could rush the environmental analysis process forward in order to get decision documents signed prior to October 1, 1996. Individuals voicing such concerns included Cheryl McCaffrey of the BLM and Robin Bown of the Fish & Wildlife Service. Both Tom Hussey, a member of the IRT, and Randy Hickenbottom, who worked with the IRT on this interpretation question, were aware of these concerns. App. Tab 171 (L. Larsen Dep. Tr. 30:6-32:11).

52.

In determining which interpretation to recommend regarding the date on which ground-

disturbing activities would be considered implemented for purposes of Category 2 surveys, the IRT considered the potential contractual liability of the Forest Service and the BLM to purchasers of timber sales. App. Tab 171 (L. Larsen Dep. Tr. 37:18-39:7).

53.

At least as early as August 1996 while the IRT was trying to reach a consensus on its

interpretation of what was meant by implementation of ground-disturbing activities for purposes of the requirement to perform Category 2 surveys on timber sales, members of the IRT were

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made aware of concerns expressed by field personnel at both the BLM and the Forest Service that adopting an interpretation such as "NEPA decision equals implementation" could lead to the exemption of a significant number of timber sales from the Category 2 survey requirements. At this time there was concern among IRT members that it would be important to know how many timber sales might be exempted by such an interpretation and what the possible resource damage would be if that interpretation were adopted. It was generally understood by IRT members that the Forest Service had significantly more timber sales in this potential position than the BLM. App. Tab 171 (L. Larsen Dep. Tr. 47:15-51:3); App. Tab 22.

54.

In the draft "Survey and Manage Current Implementation Issues" paper dated September

1, 1996, prepared by Larry Larsen for IRT consideration, situations involving timber sales with NEPA documents signed prior to October 1, 1996 but awarded on or after October 1, 1996 was considered. As to these situations, Mr. Larsen noted that survey protocols for Category 2 salamanders had been available since March of 1996, that the red tree vole did not currently have approved survey protocols, and that the presence or absence of survey and manage species was a significant piece of information that should be analyzed prior to the execution of a NEPA decision document. App. Tab 24. Mr. Larsen also observed that there was legal risk to the agencies and potential biological risk to the species in not performing Category 2 surveys on timber sales for which NEPA decision documents were signed prior to October 1, 1996 but which were not awarded until after that date. Mr. Larsen concluded that in such situations there was a substantial risk to both species and the agencies because the Category 2 surveys were key information which should be available to decision makers at the time the NEPA decision was

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signed. Thus, not performing Category 2 surveys for timber sales in this situation raised a significant concern. Id.; App. Tab 171 (L. Larsen Dep. Tr. 61:25-62:16).

55.

As of October 4, 1996, Larry Larsen, Tom Hussey and Randy Hickenbottom had reached

agreement on the interpretation they would recommend for determining when ground-disturbing activities had been implemented for purposes of Category 2 surveys. App. Tab 171 (L. Larsen Dep. Tr. 65:12-24); App. Tab 32.

56.

The document entitled "Survey and Manage (Component 2) Implementation Issues"

dated October 22, 1996 reflects the interpretation of the implementation of ground-disturbing activities for purposes of performing Category 2 surveys under the NFP as recommended by the IRT and as adopted by the RIEC. App. Tab 171 (L. Larsen Dep. Tr. 66:4-67:21); App. Tab 43.

57.

Nothing in the November 1, 1996 or September 11, 1998 joint agency memoranda

adopting the interpretation "NEPA decision equals implementation," or elsewhere in the NFP precluded a Forest Service deciding officer (typically a Forest Supervisor) from opting not to sign a Decision Notice for a proposed timber sale before that sale had been surveyed for Category 2 species. In other words, the interpretation "NEPA decision equals implementation" did not preclude the Forest Service from delaying the execution of a Decision Notice on a timber sale until all Category 2 surveys required for FY 97 and/or FY 99 had been completed for that sale and fully considered before approval of that sale for public offering. App. Tabs 34, 49.

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58.

As of August 28, 1996, one of the concerns of the IRT in deciding the meaning of

"implementation of ground-disturbing activities" for purposes of Category 2 surveys was "how much risk do we want to take in going ahead with activities without surveys." App. Tab 74.

59.

The document entitled "IMPLEMENTATION OF SURVEY AND MANAGE

(COMPONENT 2) REQUIREMENTS" was an early staff paper prepared by Tom Hussey for IRT consideration by Larry Larsen of the BLM, Cheryl McCaffrey of the BLM, Randy Hickenbottom of the Forest Service and Lyndon Werner of the BLM. App. Tab 170 (T. Hussey Dep. Tr. 40:6-41:22); App. Tab 18.

60.

As the IRT was considering alternative interpretations of the concept of implementation

of ground-disturbing activities for purposes of performing the Category 2 surveys, it was aware that some interpretations such as "NEPA decision equals implementation" would permit more timber to be sold on a faster timetable and would therefore assist the Forest Service in meeting its timber sale targets under the NFP. Thus, the IRT members were aware that, depending upon the interpretation ultimately adopted, the Forest Service could come up short on its timber sale program goals under the NFP and it could risk coming up short on its species protection goals under the NFP. The IRT was also always aware that there was a risk of lawsuits by environmental activists challenging an interpretation that favored the Forest Service's timber sale program goals over its species protection goals. App. Tab 170 (T. Hussey Dep. Tr. 45:2147:14).

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61.

The document entitled "IMPLEMENTATION OF SURVEY AND MANAGE

(COMPONENT 2) REQUIREMENTS" was a draft provided for review to the IMG, including Tom Nygren of the Forest Service and Bill Bradley of the BLM. App. Tab 21; App. Tab 170 (T. Hussey Dep. Tr. 51:24-53:12).

62.

There was general agreement among the IRT members that whenever possible the Forest

Service should schedule timber sale project decisions to include the results of S&M surveys before the Decision Notices were executed. App. Tab 170 (T. Hussey Dep. Tr. 58:25-59:10).

63.

Despite the fact that the IRT members all agreed that the NEPA analysis leading up to the

execution of a Decision Notice for a timber sale should whenever possible include the results of S&M surveys for Category 2 species, no recommendation was ever made by the IRT to the IMG or the RIEC that Forest Service deciding officers should hold off on executing Decision Notices until the S&M surveys had been completed. App. Tab 170 (T. Hussey Dep. Tr. 58:21-60:9); App. Tab 171 (L. Larsen Dep. Tr. 36:8-17).

64.

According to Tom Hussey, a member of the IRT during the time that the interpretation

"NEPA decision equals implementation" was being developed, the commonly accepted understanding of when implementation of ground-disturbing activities occur was as follows: My recollection at least was what was in my mind when we were discussing this is to most people implementation is an action, big yellow machines driving off low boys, chain saws roaring, dirt being moved and stuff like that rather than signing of a decision document. App. Tab 170 (T. Hussey Dep. Tr. 63:18-64:1).

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65.

The document entitled "Survey and Manage Current Implementation Issues," dated

September 1, 1996, was very near the final IRT agreed position on how to interpret the NFP Category 2 survey requirements and their implementation dates. App. Tab 170 (T. Hussey Dep. Tr. 66:9-20); App. Tab 24.

66.

Tom Hussey and Larry Larsen were the primary drafters of the document entitled

"Survey and Manage Current Implementation Issues" dated September 1, 1996. App. Tab 170 (T. Hussey Dep. Tr. 68:5-22); App. Tab 24.

67.

The Forest Service issued interim guidance for the surveys of the Oregon red tree vole

("RTV") on November 4, 1996. By its own terms this guideline was to expire on September 30, 1998. App Tab 36 (RTV Directive). Although there was evidence at that time that the Oregon RTV may also be found in northern California, the interim guidance did not require surveys to be conducted in California. Id. The interim guidance also did not require surveys to be conducted in National Forest areas where at least 40% of the land contained habitat suitable for the Oregon RTV. Id. This November 4, 1996 interim guidance was extended by the Forest Service on September 25, 1998. App. Tab 52 (Memo extending RTV Directive).

68.

From approximately April 13, 1994, when the NFP ROD was issued, through October 1,

1998, the Forest Service knew that it was going to be very difficult to develop the necessary protocols for performing all of the Category 2 surveys in time to survey sales on which grounddisturbing activities would first take place on or after October 1, 1998. Thus, substantially before October 1, 1998, the Forest Service was well aware that many of the Category 2 surveys 25

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required by the NFP would probably have to be postponed. App. Tab 175 (S. Zike Dep. Tr. (8/21/07) 166:6-171:2).

69.

In April 1998, the Forest Service and the BLM approached the RIEC with a request to

consider a one-year delay of survey implementation for several Category 2 surveys, based on the language on the ROD, page C-6 and the problems associated with some Category 2 species surveys. As a result, the RIEC directed the Survey and Manage workgroup to try to devise a way that the socio-economic goals of the NFP (i.e., the Forest Service and BLM timber sale programs) could be upheld without increasing the risk of extirpation to the species. The group came up with a classification that considered the risk posed by a one-year delay of surveys from FY 1999 to FY 2000 and the technical feasibility of accomplishing the surveys. Accordingly, the RIEC authorized the development of an EA to change the implementation schedule for 32 species where surveys were believed to be not-technically-feasible and where this one-year delay in surveying did not appear to substantially increase risk to the species. The analysis used in this EA also identified 12 species which were estimated to be at "substantially increased risk" if surveys were delayed from FY 1999 to FY 2000 and planned Forest Service and BLM timber sales continued to be sold and harvested. The possibility of these types of changes was expressly contemplated in the NFP and was within the authority of the RIEC, provided that the necessary NEPA and NFMA analysis was performed first. App. Tab 75 at A-538.

70.

[Intentionally left blank]

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71.

On or about December 11, 1998, Sue Zike and Peggy Kain of the Forest Service and Judy

Nelson of the BLM submitted briefing information to Paul Brouha of the Washington Office of the Forest Service and Chris Jauhola, an official in the Washington Office of the BLM. This briefing paper discussed several items including Category 2 species surveys referred to as "survey before ground-disturbing activities." Addressing these Category 2 or "Strategy 2" surveys the paper states: Strategy 2 surveys have multiple implementation dates with surveys for red tree voles and amphibians beginning in FY 1996; and surveys for the remaining 71 species beginning in FY 1999. The ROD recognized that little was known about the species and that difficulties would be encountered in meeting the survey and manage requirements. Flexibility was built into the plan: as experience is acquired, the Regional Interagency Executive Committee (RIEC) can change the schedule, move a species from one survey strategy to another, or drop the mitigation strategy for species whose status is found to be more secure than originally projected (ROD, p. C-6). App. Tab 75 at A-537 to A-538.

72.

As of approximately October 5, 1999, with respect to Happy Thin, Jack Heli and Too

Wild, the following required wildlife and plant surveys had not been performed. In many cases, indicated below, protocols for these surveys were not yet available. In some cases these surveys were not scheduled to be completed until the year 2000. Species Bridgeoporus nobilissimus (fungi) Aleuria rhenana (fungi) Bondarzewia Montana (fungi) Otidea leporina (fungi) Happy Thin, KLA To be completed Fall 2000 No protocol available No protocol available No protocol available 27 Jack Heli, KLA To be completed Fall 2000 No protocol available No protocol available No protocol available Too Wild, SIS To be completed Fall 2000 No protocol available No protocol available No protocol available

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Species Otidea onotica (fungi) Otidea smithii (fungi) Polyozellus multiplex (fungi) Sarcosoma Mexicana (fungi) Ptilidium californicum (bryophytes) Ulota meglospora (bryophytes) Buxbaumia vidiris (bryophytes) Kurzia makinoana (bryophytes) Rhizomnium nudum (bryophytes) Tetraphis geniculata (bryophytes)

Happy Thin, KLA No protocol available No protocol available No protocol available No protocol available

Jack Heli, KLA No protocol available No protocol available No protocol available No protocol available To be completed Fall 2000

Too Wild, SIS No protocol available No protocol available No protocol available No protocol available

No protocol available

No protocol available No protocol available No protocol available No protocol available No protocol available

Helminthoglypta hertleini (Oregon Shoulderband) (mollusks) Helminthoglypta talmadgei (Klamath Shoulderband) (mollusks) Megomphix hemphilli (Oregon Megomphix) (mollusks) Monadenia churchi (Church's Sideband) (mollusks) Monadenia chaceana (Siskiyou Sideband) (mollusks)

To be completed June 2000

To be completed Summer 2000

To be completed Summer 2000

To be completed November 1999

To be completed Summer 2000 To be completed Summer 2000

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Species Monadenia troglodytes (Shasta Sideband) (mollusks) Monadenia troglodytes wintu (Wintu Sideband) (mollusks) Prophysaon coeuleum (Bluegrey Tail-dropper) (mollusks) Prophysaon dubium (Papillose Taildropper) (mollusks) Trilobopsis roperi (Shasta Chaparral) (mollusks) Trilobopsis tehamana (Tehana Chaparral) (mollusks) Allotropa virgata (Sugar Stick) (vascular plants) Cypripedium fasciculatum (Klamath) (Clustered Lady's Slipper) (vascular plants) Cypripedium montanum (west Cascades) (Mountain Lady's Slipper) (vascular plants)

Happy Thin, KLA

Jack Heli, KLA To be completed Summer 2000

Too Wild, SIS

To be completed Summer 2000

To be completed June 2000

To be completed November 1999

To be completed June 2000

To be completed Summer 2000 To be completed Summer 2000

To be completed November 1999

To be completed June 2000

To be completed Summer 2000

To be completed June 2000

To be completed Summer 2000

To be completed Summer 2000

App. Tab 134. 29

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EVENTS SUBSEQUENT TO THE ISSUANCE OF THE JOINT FOREST SERVICE/ BLM MEMORANDUM ADOPTING THE INTERPRETATION "NEPA DECISION EQUALS IMPLEMENTATION" 73. On November 1, 1996, the Forest Service and BLM issued a joint guidance memorandum

adopting the interpretation "NEPA decision equals implementation" for the purpose of determining when ground-disturbing activities are implemented in the context of Category 2 species survey requirements. Although issued on November 1, 1996 the "NEPA decision equals implementation" interpretation was deemed effective direction to Forest Service line officers as of October 1, 1996. The joint memorandum adopting this interpretation by its own terms was to expire as of September 30, 1998. App. Tab 34.

74.

Prior to the Forest Service's adoption of the interpretation "NEPA decision equals

implementation" in the joint agency memorandum dated November 1, 1996, the Forest Service had information available which would have allowed anyone who was interested in the Forest Service to ascertain how many and which timber sales were likely to have sufficient environmental analysis completed to allow the execution of Decision Notices prior to October 1, 1996, assuming Category 2 surveys did not have to be performed prior to the execution of those Decision Notices. Thus, it was possible to determine before this joint memorandum was issued, how many (and specifically which) Forest Service and BLM timber sales were in the planning pipeline and would likely be offered to the public after October 1, 1996 without Category 2 surveys. Nevertheless, the Forest Service did not ascertain how many such timber sales were in the planning pipeline. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 36:21-39:17).

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75.

The interpretation "NEPA decision equals implementation" in the November 1, 1996

joint memorandum was re-adopted on September 11, 1998 for the second group of Category 2 surveys (the invertebrates) which were required as of October 1, 1998 for certain timber sales. App. Tab 49.

76.

Just as was the case with the joint memorandum dated November 1, 1996, re-adoption of

the interpretation "NEPA decision equals implementation" with respect to the October 1, 1998 Category 2 surveys meant that the Forest Service was not required to perform Category 2 surveys if Decision Notices were signed for timber sales in the planning pipeline prior to October 1, 1998, even if the Category 2 invertebrate surveys had not been performed and these timber sales were not offered to the public months or even years later. Prior to October 1, 1998, the Forest Service had information available that would have allowed anyone in the Forest Service who was interested to ascertain how many (and specifically which) Forest Service and BLM timber sales were in the planning pipeline and could have Decision Notices executed prior to October 1, 1998, assuming no Category 2 surveys had to be performed on these sales prior to October 1, 1998. Nevertheless, prior to the re-adoption of the interpretation "NEPA decision equals implementation" in this September 1998 joint memorandum, the Forest Service did not ascertain how many such timber sales were in the planning pipeline. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 36:21-39:17).

77.

The Forest Service did not consult with the Department of Justice regarding the legal

viability of the interpretation "NEPA decision equals implementation" before the Forest Service

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adopted that interpretation. App. Tab 131; App. Tab 179 (M. Gippert Dep. Tr. 44:25-48:16; 50:12-53:22).

78.

However, the "NEPA decision equals implementation" interpretation was discussed with

the Department of Justice and representatives of the President's Council on Environmental Quality in the Washington Office of the Forest Service before the filing of the ONRC Action lawsuit. At that time Michael Gippert, lead Washington Office attorney for the Forest Service on NEPA and NFMA issues, advised the Forest Service that in light of existing case law the NFP needed to be formally amended if the definition of "NEPA decision equals implementation" was to be extended to FY99 and beyond. App. Tab 131; App. Tab 179.

79.

One implication of the joint agency interpretation "NEPA decision equals

implementation" was that for those actions authorized prior to the deadline, there would be an incentive for the agency to hurry up and sign decision notices before the deadline occurred. This allegation was raised by the ONRC Action plaintiffs in their lawsuit filed July 8, 1998, and it was a concern to Edward (Ted) Boling, lead attorney for the government in the ONRC Action litigation. App. Tab 178 (E. Boling Dep. Tr. 58:12-61:3).

80.

Prior to September 30, 1998, Robert Devlin, Director of Natural Resources for Region 6,

sent an email to all national forests in Region 6 urging them to sign Decision Notices prior to October 1, 1998 in order to avoid the obligation to conduct Category 2 species in instances in which apart from these surveys and formal biological opinions all the work necessary for the

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Decision Notices had been completed. App. Tab 50; App. Tab 169 (S. Zike Dep. Tr. (1/4/07) 27:6-28:3).

81.

Oregon Natural Resources Council Action et al. v. U.S. Forest Service and Bureau of

Land Management, CV 98-942 WD ("ONRC Action"), was filed on July 8, 1998 in the U.S. District Court for the Western District of Washington. The plaintiffs in the ONRC Action litigation claimed that both the Forest Service's "NEPA decision equals implementation" interpretation and the Oregon red tree vole interim survey guidelines violated the NFP ROD, NEPA and NFMA. ONRC Action, 59 F. Supp. 2d 1085, 1088 (W.D. Wash. 1999).

82.

At the time of the ONRC Action lawsuit, lead Department of Justice counsel for the

government in the ONRC Action litigation Edward Boling was aware of the fact that a sizable number of timber sales had been approved and awarded by the Forest Service without surveys based upon the "NEPA decision equals implementation" interpretation. This practice was of concern to Mr. Boling as part of the litigation risk analysis conducted by the government with respect to the ONRC Action litigation. App. Tab 178 (E. Boling Dep. Tr. 33:2-34:22, 35:1836:3).

83.

By letter dated September 25, 1998, the ONRC Action plaintiffs, at the express request of

Department of Justice counsel for the government in the ONRC Action lawsuit, provided a detailed description, including examples, of how the ONRC Action plaintiffs believed the NFP was being improperly implemented with respect to Category 2 or Strategy 2 surveys. This letter specifically discussed ONRC Action's argument that the interpretation "NEPA decision equals 33

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implementation" is a violation of the NFP ROD and would allow "the Forest Service and BLM to quickly `implement' projects [including timber sales] before survey requirements kick in, by simply signing NEPA documents." This letter also argued that the NFP ROD's red tree vole survey requirement had been misinterpreted by the November 4, 1996 red tree vole directive because that directive stated that site-specific surveys need not be conducted in most of the habited types or vegetation communities associated with the red tree vole and an arbitrary line had been drawn at the California border excluding all activities in California National Forests, such as the Klamath National Forest, for the red tree vole survey requirements, even though the red tree vole is found in California. The letter also noted that the adoption of the interpretation "NEPA decision equals implementation" and the red tree vole directive was not accompanied by any NEPA document and was not circulated for public review or comment. App. Tab 51.

84.

On or about November 25, 1998, Edward Boling, lead attorney for the government in the

ONRC Action litigation, briefed the Assistant Attorney General for Natural Resources and the Environment, Lois Schiffer, and her immediate subordinate, Peter Coppleman, on the issues involved in the ONRC Action litigation and proposals to settle that lawsuit. Among the subjects discussed was the Forest Service/BLM interpretation of the Category 2 survey requirements known as "NEPA decision equals implementation." Ms. Schiffer told Mr. Boling at this meeting that the interpretation "NEPA decision equals implementation was nonsense." Mr. Coppleman agreed. Then, Ms. Schiffer indicated that she would need to have further discussions with high level officials in the Department of Agriculture and the Department of the Interior before deciding whether the Department of Justice would defend that interpretation in court. The substance of this meeting was communicated by Mr. Boling to Sue Zike, litigation coordinator 34

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within the Forest Service for the ONRC Action litigation, and Ms. Zike in turn communicated the substance of this meeting to Robert Devlin, the Director of Natural Resources within the Forest Service for Region 6, and others. App. Tabs 64, 66-67.

85.

At the November 25, 1998 meeting, Ms. Schiffer expressed concerns that the "NEPA

decision equals implementation" interpretation would allow the Forest Service and the BLM to authorize timber sales without having first conducted Category 2 surveys even though the sales might not be offered or awarded months or even years later. This was an allegation raised by the ONRC Action plaintiffs. Ms. Schiffer's subordinate, Mr. Coppleman, shared Ms. Schiffer's concerns. App. Tabs 64, 66; App. Tab 175 (S. Zike Dep. Tr. (8/20/07) 10:6-12:9, 96:8-97:17); App. Tab 178 (E. Boling Dep. Tr. 88:10-89:16).

86.

By facsimile dated November 25, 1998, Edward Boling, lead attorney for the government

in the ONRC Action litigation, sent an email to Dinah Bear, general counsel for the President's Council on Environmental Quality, the lead NEPA lawyer for the federal government, with an attached memorandum drafted by Mr. Boling and his co-counsel for the government, John Watts, in which Mr. Boling and Mr. Watts concluded "the agencies' interpretation of the ROD is difficult to square with the common meaning of the term `implemented.'" App. Tab 65 at A501; App. Tab 178 (E. Boling Dep. Tr. 98:16-101:1).

87.

On November 25, 1998, the day Edward Boling briefed Schiffer and Coppleman, Forest

Service attorney Owen Schmidt called Nancy Graybeal, Deputy Regional Forester for Region 6, to report that Lois Schiffer would not agree to defend the "NEPA decision equals 35

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implementation" interpretation until she had talked to higher officials. Ms. Graybeal wrote to others in the Forest Service about the conversation saying, "Owen Schmidt, OGC, called this morning to say Ted Boling reported a non-decision from Lois Schiffer. Lois wants to talk to an Asst Sec. (I don't know which one) before deciding course of action. I agreed we'd delay award of any sales until December 3. Bob [Devlin] ­ please let Forest CO's know." App. Tab 67.

88.

Nancy Graybeal, who worked with Mr. Devlin, concluded that the Department of Justice

would not accept the Forest Service's recommendation not to settle the ONRC Action case, which would require additional surveys of Category 2 species, if the only Forest Service arguments were based on the additional cost and the delay in proceeding with timber sales. Ms. Graybeal concluded that the Department of Justice, which as a matter of law had final authority to settle litigation on behalf of the United States, would have to be convinced that there were good resource reasons supporting the continued litigation of the ONRC Action case as opposed to agreeing to settle that lawsuit based upon the Forest Service's commitment to complete Category 2 surveys for all timber sales implicated in the lawsuit, including plaintiffs' timber sales in this action, even if such sales had to be suspended for two seasons or more in order to perform those surveys. App. Tab 63 at A-496 to A-497; App. Tab 176 (R. Devlin Dep. Tr. (8/21/07) 11:5-13:23).

89.

After hearing of Ms. Schiffer's reaction to the joint agency interpretation "NEPA

decision equals implementation" and her decision to seek guidance from higher officials within the Department of Agriculture and/or the Department of the Interior, Robert Devlin, the Director of Timber Management for Region 6 within the Forest Service, began to strategize with his 36

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colleagues in Region 6 of the Forest Service regarding the preparation of a briefing paper for submission to the Department of Agriculture, the Department of the Interior, and the Washington, D.C. Offices of both the Forest Service and the BLM. According to Mr. Devlin, "the trick is going to be to get both WO's [Washington Offices of the Forest Service and Bureau of Land Management] and Secretary's offices [the Secretaries of the Department of Agriculture and the Department of the Interior] to support where we are and not let DOJ decide for us. Not being able to defend us is one thing but not agreeing with what we are doing is another." App. Tab 63 at A-496; App. Tab 176 (R. Devlin Dep. Tr. (8/21/07) 11:5-26:9).

90.

In an email from Robert Devlin to Sue Zike and Peggy Kain of Region 6 of the Forest

Service, sent on November 28, 1998, just after Edward Boling's briefing of Lois Schiffer and Peter Coppleman, Mr. Devlin stated that it was his understanding that the Department of Justice did not agree "with our definition of implement." App. Tab 63 at A-496.

91.

On or about November 25, 1998, Edward Boling, lead attorney for the government in the

ONRC Action litigation, called Sue Zike to report that Lois Schiffer, Assistant Attorney General for Natural Resources and the Environment at the Department of Justice, and Peter Coppleman, Ms. Schiffer's subordinate, believed that the NFP Category 2 survey interpretation adopted by the Forest Service known as "NEPA decision equals implementation" was nonsensical and that they had concerns "with trying to defend this case because they read our [the Forest Service's] implement memo to be nonsensical." App. Tab 64; App. Tab 173 (S. Zike Dep. Tr. (8/20/07) 10:6-14:15). This information was communicated via email by Ms. Zike to Nancy Graybeal, Robert Devlin, and Peggy Kain. App. Tab 173 (S. Zike Dep. Tr. (8/20/07) 22:10-23:4). 37

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92.

[Intentionally left blank]

93.

Edward Boling, chief counsel for the government in the litigation, indicated to Owen

Schmidt, the principal lawyer for the Forest Service Regions