COMPLAINT for DECLARATORY and INJUNCTIVE RELIEF Susan

1 Susan Jane M. Brown (WSB #31224, OSB #05460) Western Environmental Law Center 2 4107 NE Couch St. 3 Portland, OR. 97232 Ph. 503-914-1323 4 [email protected]

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 NORTH CASCADES CONSERVATION Civ. Case No. 11-CV-666 10 COUNCIL, PILCHUCK AUDUBON 11 SOCIETY, nonprofit organizations; and WILLIAM (BILL) M. LIDER, an individual, 12 COMPLAINT FOR DECLARATORY Plaintiffs, AND INJUNCTIVE RELIEF 13 14 vs. (National Environmental Policy Act, 15 FEDERAL HIGHWAY ADMINISTRATION, National Forest Management Act, Safe, an agency of the United States Department of Accountable, Flexible, Efficient 16 Transportation; the WESTERN FEDERAL Transportation Equity Act: A Legacy for 17 LANDS HIGHWAY DIVISION, a subdivision Users (SAFETEA-LU); and of the Federal Highway Administration; the Administrative Procedure Act) 18 UNITED STATES FOREST SERVICE, an agency of the United States Department of 19 Agriculture, 20 Defendants. 21

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1 INTRODUCTION 2 1. This is a civil action for declaratory and injunctive relief under the Administrative 3 Procedure Act (APA), 5 U.S.C. §§ 551-706. The claims arise from Defendants’ violations of the 4 National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370(d), and its implementing 5 regulations, 40 C.F.R. § 1500 et seq.; the National Forest Management Act (NFMA), 16 U.S.C. § 6 1600 et seq., and its implementing regulations, 36 C.F.R. §§ 219.1-219.29 (1982); and Safe, 7 Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA- 8 LU), 23 U.S.C. § 101 et seq. and its implementing regulations. This action is brought pursuant 9 to the right of review provision of the Administrative Procedure Act (APA), 5 U.S.C. § 702. 10 2. Plaintiffs North Cascades Conservation Council, Pilchuck Audubon Society, and William 11 (Bill) M. Lider (Plaintiffs) allege that the Defendants Federal Highway Administration (FHWA), 12 an agency of the United States Department of Transportation; the Western Federal Lands 13 Highway Division (WFLHD), a subdivision of the Federal Highway Administration; and the 14 United States Forest Service, violated federal law in its preparation of the Suiattle River Road 15 Emergency Repairs Project (Suiattle River Road Project), located on the Mt. Baker-Snoqualmie 16 National Forest in Washington State. 17 3. Plaintiffs challenge the failure of Defendants to comply with the Record of Decision on 18 Management of Habitat for Late-Successional and Old-Growth Forest Related Species within the 19 Range of the Northern Spotted Owl (Northwest Forest Plan, or NFP) and the Mt. Baker- 20 Snoqualmie National Forest Land and Resource Management Plan (LRMP) in its planning and 21 implementation of the Suiattle River Road Project. 22 4. Plaintiffs also challenge Defendant’s failure to meet its procedural duties required by 23 NEPA by failing to prepare an environmental assessment (EA) or environmental impact 24 statement (EIS) for the Suiattle River Road Project.

25 5. Plaintiffs seek an order:

26 a. Declaring that Defendants violated NFMA and the APA by failing to comply with

27 the Mt. Baker-Snoqualmie National Forest LRMP, Northwest Forest Plan, and their associated

28 Records of Decision when it planned and implemented the Suiattle River Road Project;

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1 b. Declaring that Defendants failed to comply with NEPA, NFMA, SAFETEA-LU, 2 and the APA when it prepared the Suiattle River Road Project Categorical Exclusion; 3 c. Enjoining Defendants and their contractors, agents, etc. from undertaking any 4 activities related to the Suiattle River Road Project, unless and until Defendants have complied 5 with NFMA, NEPA, SAFETEA-LU, and the APA; 6 d. Awarding Plaintiffs their reasonable attorneys fees and costs incurred in this 7 action pursuant to the EAJA, 28 U.S.C. § 2412; and 8 e. Granting Plaintiffs such additional and further relief as the Court deems just and 9 equitable. 10 6. The requested relief is necessary to preserve the status quo, to prevent illegal agency 11 action, and to forestall irreparable injury to the environment. 12 JURISDICTION, VENUE, AND BASIS FOR RELIEF 13 7. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 (federal question), 2201 14 (injunctive relief), 2202 (declaratory relief), and 28 U.S.C. § 1346 (United States as a defendant). 15 8. This cause of action arises under the laws of the United States, including the 16 Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.; the National Environmental 17 Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; the National Forest Management Act (NFMA) 16 18 U.S.C. § 1600 et seq.; and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: 19 A Legacy for Users (SAFETEA-LU), 23 U.S.C. § 101 et seq.. 20 9. An actual, justiciable controversy exists between Plaintiffs and Defendants. The 21 requested relief is proper under 28 U.S.C. §§ 2201 & 2202, and 5 U.S.C. §§ 705 & 706. 22 10. The claims arose from a decision implemented on the Mt. Baker-Snoqualmie National 23 Forest, in Snohomish County. Venue is properly vested in this Court by 28 U.S.C. § 1391(e) and 24 Local Rule 5(e).

25 11. If Plaintiffs prevail, Plaintiffs will seek an award of costs and fees, including attorneys’

26 fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.

27 PARTIES

28 12. Plaintiff NORTH CASCADES CONSERVATION COUNCIL (NCCC), a 501(c)(3)

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1 locally-based member- and donation-supported organization, was founded in 1957 “to protect 2 and preserve the North Cascades’ scenic, scientific, recreational, education and wilderness 3 values.” Over more than fifty years, the organization has played a part in many successful 4 wildlands protection campaigns in the region, and continues to monitor conditions in these 5 extensive public lands, and work towards their protection and restoration. NCCC represents 6 approximately 350 members in Washington and the United States. 7 13. Plaintiff PILCHUCK AUDUBON SOCIETY (PAS) represents approximately 1,000 8 members in the north Puget Sound region of Washington State. PAS’ mission is to conserve and 9 restore natural ecosystems focusing on birds and other wildlife for the benefit of the earth’s 10 biological diversity. PAS has worked to protect local forests and other wild lands since 1970. 11 PAS members use the Mt. Baker-Snoqualmie National Forest and surrounding public lands for 12 various forms of passive recreation including bird and other wildlife-watching; hiking; climbing; 13 camping; gathering berries, mushrooms, and medicinal plants; and spiritual renewal. 14 14. Members of the Plaintiff organizations visit and enjoy the forests of the Mt. Baker- 15 Snoqualmie National Forest, including the Suiattle River Road Project area for educational, 16 recreational, and scientific activities, including hiking, camping, photography, and observing 17 wildlife. Plaintiffs would sustain injury to their interests if the Suiattle River Road Project is 18 implemented in the absence of a legally and scientifically sufficient analysis of the project’s 19 environmental impacts. The interests of Plaintiffs and their members would sustain further 20 injury because the project will degrade water quality, diminish aesthetic value, and harm fish and 21 wildlife in and around the project area. 22 15. Plaintiff WILLIAM M. (BILL) LIDER has resided continuously in Snohomish County, 23 Washington for over 32 years, and has been active in national forest issues for nearly 30 years. 24 Bill is a frequent user of the national forests and has hiked and backed extensively in the

25 Darrington Ranger District, including the Suiattle River watershed. Mr. Lider received a

26 Bachelor of Science degree in Environmental Resources Engineering from Humboldt State

27 University, Arcata, CA in 1976. He became a professional civil engineer in Washington in 1984

28 and a Certified Erosion and Sediment Control Lead (CESCL) in 1998. For the last 20 years he

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1 has specialized in storm water design including water quality and flow control for large 2 municipal projects. Mr. Lider is certified by WSDOT to prepare Hydraulic Reports and has 3 prepared drainage reports for King County and Snohomish County. He has had many years 4 experience in the design and construction of roads and transportation systems, and has assisted 5 with the survey of forest roads for the United States Forest Service. 6 16. Defendant FEDERAL HIGHWAY ADMINISTRATION (FHWA) is an agency of the 7 United Stats Department of Transportation that supports State and local governments in the 8 design, construction, and maintenance of the Nation’s highway system (Federal Aid Highway 9 Program) and various federally and tribal owned lands (Federal Lands Highway Program). 10 17. Defendant WESTERN FEDERAL LANDS HIGHWAY DIVISION (WFLHD) operates 11 as part of the Federal Lands Highway Program, serving the needs of Oregon, Washington, Idaho, 12 Montana, Alaska, and the Yellowstone and Grand Teton National Parks in Wyoming. WFLHD 13 actively administers the surveying, designing and constructing of forest highway system roads, 14 parkways and park roads, Indian reservation roads, defense access roads, and other Federal lands 15 roads. 16 18. Defendant UNITED STATES FOREST SERVICE is a federal agency within the United 17 States Department of Agriculture. Defendant is, by law, responsible for the management policies 18 and actions undertaken with respect to the public lands. By statutory authority, and the agency’s 19 own regulations, Defendant is also responsible for implementing NFMA, NEPA, and other land 20 management laws and regulations pertaining to actions and decisions on lands administered by 21 Defendant. The Forest Service is the Applicant for the Suiattle River Road Project. 22 SUMMARY OF FACTS AND LAW 23 The National Forest Management Act 24 19. In 1976 Congress enacted the National Forest Management Act (NFMA) 16 U.S.C. §

25 1600 et seq., which governs the management of the National Forests.

26 20. NFMA establishes a two-step process for forest planning. It first requires the United

27 States Forest Service to develop, maintain, and revise Land and Resource Management Plans

28 (LRMP) for each national forest. 16 U.S.C. § 1604(a). The LRMP guides natural resource

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1 management activities forest-wide, setting standards, management area goals and objectives, and 2 monitoring and evaluation requirements. 3 21. The Mt. Baker-Snoqualmie LRMP is the adopted land use plan governing the 4 management of public lands on the Mt. Baker-Snoqualmie National Forest. 5 22. Once an LRMP is in place, site-specific actions are assessed by in the second step of the 6 forest planning process. Site-specific decisions must be consistent with the broader forest plan. 7 16 U.S.C. § 1604(i). 8 23. The Suiattle River Road Project environmental documentation does not reference the Mt. 9 Baker-Snoqualmie Land and Resource Management Plan. 10 The Northwest Forest Plan 11 24. In 1994 the United States Forest Service and the United States Bureau of Land 12 Management issued a Record of Decision for the Northwest Forest Plan (NFP). 13 25. The NFP amended the Mt. Baker-Snoqualmie National Forest LRMP in 1995. 14 26. The NFP established four basic land allocations that the Mt. Baker-Snoqualmie LRMP 15 has incorporated: (1) Late-Successional Reserves; (2) Adaptive Management Areas; (3) Riparian 16 Reserves; and (4) Matrix. 17 27. Each land allocation is governed by a different set of Standards and Guidelines (NFP 18 S&GS). 19 The Northwest Forest Plan – Late-Successional Reserves 20 28. The Late-Successional Reserve (LSR) Standards and Guidelines are key provisions of the 21 NFP. The objective of the LSRs is to protect and enhance the conditions of old-growth forests 22 that serve as habitat for the northern spotted owl by creating a network of large “reserves” or 23 blocks of habitat. LSRs must be managed to “protect and enhance conditions of late- 24 successional and old-growth forest ecosystems, which serve as habitat for late-successional and

25 old-growth related species.”

26 29. The Suiattle River Road Project is located in the Mount Baker-Snoqualmie LSR.

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1 The Northwest Forest Plan – Riparian Reserves 2 30. The Riparian Reserve land use allocation is designated on those “portions of watersheds 3 where riparian-dependent resources receive primary emphasis and where special standards and 4 guidelines apply. Standards and Guidelines prohibit and regulate activities in Riparian Reserves 5 that retard or prevent attainment of the Aquatic Conservation Strategy objectives…Riparian 6 Reserves occur at the margins of standing and flowing water, intermittent stream channels and 7 ephemeral ponds, and wetlands,” and “generally parallel the stream network but also include 8 other areas necessary for maintaining hydrologic, geomorphic, and ecologic processes.” 9 31. The Northwest Forest Plan requires the Forest Service to designate Riparian Reserves 10 that are 300 feet on either side of fish-bearing streams, 150 feet along permanently flowing non- 11 fish-bearing streams, and 100 feet along seasonally flowing or intermittent streams. 12 32. The Suiattle River Road Project is located in the several Riparian Reserves. 13 The Northwest Forest Plan – Key Watersheds 14 33. The NFP also designates “key watersheds,” which are a system of large refugia 15 comprising watersheds that are crucial for maintaining and recovering habitat for at-risk stocks 16 of anadromous salmonids and resident fish species. Tier 1 Key Watersheds contribute directly to 17 conservation of at-risk anadromous salmonids, bull trout, and resident fish species, whereas Tier 18 2 Key Watersheds may not contain at-risk fish stocks, but still are important sources of high 19 quality water. The NFP prescribes specific Standards and Guidelines for Key Watersheds. 20 34. The Suiattle River Road Project is located within a Tier 1 Key Watershed. 21 The Northwest Forest Plan – Aquatic Conservation Strategy 22 35. The NFP also contains the Aquatic Conservation Strategy (ACS), which “was developed 23 to restore and maintain the ecological health of watersheds and aquatic ecosystems contained 24 within them on public lands. The strategy would protect salmon and steelhead habitat on federal 25 lands managed by the Forest Service and Bureau of Land Management within the range of 26 Pacific Ocean anadromy.”

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1 36. The ACS consists of nine Objectives, and all Forest Service and BLM-administered lands 2 within the range of the northern spotted owl must be consistent with those nine Objectives. The 3 nine ACS objectives are: 4 a. Maintain and restore the distribution, diversity, and complexity of watershed and 5 landscape-scale features to ensure protection of the aquatic systems to which species, 6 populations and communities are uniquely adapted. 7 b. Maintain and restore spatial and temporal connectivity within and between 8 watersheds. Lateral, longitudinal, and drainage network connections include floodplains, 9 wetlands, upslope areas, headwater tributaries, and intact refugia. These network connections 10 must provide chemically and physically unobstructed routes to areas critical for fulfilling life 11 history requirements of aquatic and riparian-dependent species. 12 c. Maintain and restore the physical integrity of the aquatic system, including 13 shorelines, banks, and bottom configurations. 14 d. Maintain and restore water quality necessary to support healthy riparian, aquatic, 15 and wetland ecosystems. Water quality must remain within the range that maintains the 16 biological, physical, and chemical integrity of the system and benefits survival, growth, 17 reproduction, and migration of individuals composing aquatic and riparian communities. 18 e. Maintain and restore the sediment regime under which aquatic ecosystems 19 evolved. Elements of the sediment regime include the timing, volume, rate, and character of 20 sediment input, storage, and transport. 21 f. Maintain and restore in-stream flows sufficient to create and sustain riparian, 22 aquatic, and wetland habitats and to retain patterns of sediment, nutrient, and wood routing. The 23 timing, magnitude, duration, and spatial distribution of peak, high, and low flows must be 24 protected.

25 g. Maintain and restore the timing, variability, and duration of floodplain inundation

26 and water table elevation in meadows and wetlands.

27 h. Maintain and restore the species composition and structural diversity of plant

28 communities in riparian areas and wetlands to provide adequate summer and winter thermal

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1 regulation, nutrient filtering, appropriate rates of surface erosion, bank erosion, and channel 2 migration and to supply amounts and distributions of coarse woody debris sufficient to sustain 3 physical complexity and stability. 4 i. Maintain and restore habitat to support well-distributed populations of native 5 plant, invertebrate, and vertebrate riparian-dependent species. 6 The Northwest Forest Plan – Survey & Manage Mitigation Measures 7 37. In addition to the forgoing land use allocations and aquatic protections, the NFP includes 8 the Survey and Manage Mitigation Measures, which require land managers to take certain 9 actions relative to rare species of plants and animals, particularly amphibians, bryophytes, 10 lichens, mollusks, vascular plants, fungi, and arthropods. 11 38. The required Standards and Guidelines include: (1) manage known sites of rare 12 organisms; (2) survey for the presence of rare organisms prior to ground disturbing activities; (3) 13 conduct surveys to identify locations and habitats of rare species; and (4) conduct general 14 regional surveys for rare species. 15 39. For most of the rare species on the Survey and Manage list, the NFP requires land 16 managers to survey for species before ground disturbing activities, and protect known and 17 discovered sites with no-disturbance buffers. 18 40. The Suiattle River Road Project environmental documentation does not reference the 19 Northwest Forest Plan. 20 The National Environmental Policy Act 21 41. Congress enacted the National Environmental Policy Act (NEPA) in 1969, directing all 22 federal agencies to assess the environmental impact of proposed actions that significantly affect 23 the quality of the environment. 42 U.S.C. § 4332(2)(C). NEPA’s disclosure goals are two-fold: 24 (1) to insure that the agency has carefully and fully contemplated the environmental effects of its

25 action, and (2) to insure that the public has sufficient information to challenge the agency’s

26 action.

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1 42. The Council on Environmental Quality (CEQ) promulgated uniform regulations to 2 implement NEPA that are binding on all federal agencies. 42 U.S.C. § 4342; 40 C.F.R. §§ 1500 3 et seq. 4 43. The NEPA regulations expressly state that “Parts 1500 through 1508 of this title provide 5 regulations applicable to and binding on all Federal agencies for implementing the procedural 6 provisions” of NEPA, and that “these regulations, unlike the predecessor guidelines, are not 7 confined to sec. 102(2)(C) (environmental impact statements). The regulations apply to the 8 whole of section 102(2) [requiring the preparation of reports documenting the environmental 9 consequences of a proposed action].” 40 C.F.R. § 1500.3; Southern Oregon Citizens against 10 Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1480 (9th Cir. 1983) (rejecting argument that the 11 NEPA regulations only apply to EISs); see also, Save Our Ecosystems v. Clark, 747 F.2d 1240, 12 1247 (9th Cir. 1984) (same). 13 44. The Defendants are required under NEPA to prepare an environmental impact statement 14 (EIS) for any “major federal actions significantly affecting the quality of the human 15 environment.” 42 U.S.C. § 4332(2)(C). 16 45. When it is not clear whether or not an action will require the preparation of an EIS, the 17 NEPA regulations direct agencies to prepare a document known as an Environmental 18 Assessment (EA) in order to determine whether an EIS is required. 40 C.F.R. §§ 1501.4(b), 19 1508.9. 20 46. In addition to EAs and EISs, NEPA also permits the use of “categorical exclusions” 21 (CEs) to document the environmental consequences of a federal agency action. 40 C.F.R. § 22 1508.4. 23 47. The use of a categorical exclusion (CE) is appropriate for “a category of actions which do 24 not individually or cumulatively have a significant effect on the human environment and which 25 have been found to have no such effect…and for which…neither an environmental assessment 26 nor an environmental impact statement is required.” 40 C.F.R. § 1508.4. 27 48. FHWA has implemented regulations promulgating categorical exclusions. 23 C.F.R. § 28 771.117.

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1 49. Those regulations state that CEs “are actions which: do not induce significant impacts to 2 planned growth or land use for the area; do not require the relocation of significant numbers of 3 people; do not have a significant impact on any natural, cultural, recreational, historic or other 4 resource; do not involve significant air, noise, or water quality impacts; do not have significant 5 impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any 6 significant environmental impacts.” 23 C.F.R. § 771.117(a). 7 50. Furthermore, the regulation explains that “any action which normally would be classified 8 as a CE but could involve unusual circumstances will require the Administration, in cooperation 9 with the applicant, to conduct appropriate environmental studies to determine if the CE 10 classification is proper. Such unusual circumstances include: (1) Significant environmental 11 impacts; (2) Substantial controversy on environmental grounds; (3) Significant impact on 12 properties protected by section 4(f) of the DOT Act or section 106 of the National Historic 13 Preservation Act; or (4) Inconsistencies with any Federal, State, or local law, requirement or 14 administrative determination relating to the environmental aspects of the action.” 23 C.F.R. § 15 771.117(b). 16 51. The regulations go on to establish several categories of actions that “normally do not 17 require any further NEPA approvals by the Administration,” including for “emergency repairs 18 under 23 U.S.C. 125.” 23 C.F.R. § 771.117(c)(9). 19 52. Defendants utilized a Category (c)(9) CE to document the environmental consequences 20 of the Suiattle River Road Project. 21 53. This statutory reference – 23 U.S.C. § 125 – is to the authorization of emergency funds 22 “for expenditure by the Secretary for the repair or reconstruction of highways, roads, and trails, 23 in any part of the United States, including Indian reservations, that the Secretary finds have 24 suffered serious damage as a result of…(1) natural disaster over a wide area, such as by a flood,

25 hurricane, tidal wave, earthquake, severe storm, or landslide; or (2) catastrophic failure from any

26 external cause.” 23 U.S.C. § 125(a). This emergency funding is also known as “Emergency

27 Relief for Federally Owned Roads” or ERFO funds.

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1 54. Regardless of the type or source of funding used to implement a federal project, in 2 determining whether a proposed action may “significantly” impact the environment, and 3 therefore whether a CE, EA, or EIS is required to document the environmental consequences of 4 federal action, both the context and intensity of the action must be considered. 40 C.F.R. §§ 5 1508.27(a)-(b). 6 55. In evaluating intensity, the NEPA regulations require the Defendants to consider ten 7 “significance factors” in determining whether a federal action may have a significant impact, 8 thus requiring an EIS. 40 C.F.R. § 1508.27(b)(1). The presence of any of these “significance” 9 factors compels an EIS. Id. 10 56. Among other factors, the agency must consider: (1) Unique characteristics of the 11 geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, 12 wetlands, wild and scenic rivers, or ecologically critical areas; (2) The degree to which the 13 possible effects on the human environment are highly uncertain or involve unique or unknown 14 risks; (3) The degree to which the action may establish a precedent for future actions with 15 significant effects or represents a decision in principle about a future consideration; (4) Whether 16 the action is related to other actions with individually insignificant but cumulatively significant 17 impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on 18 the environment. Significance cannot be avoided by terming an action temporary or by breaking 19 it down into small component parts; (5) The degree to which the action may adversely affect 20 districts, sites, highways, structures, or objects listed in or eligible for listing in the National 21 Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or 22 historical resources; (6) The degree to which the action may adversely affect an endangered or 23 threatened species or its habitat that has been determined to be critical under the Endangered 24 Species Act of 1973; and (7) Whether the action threatens a violation of Federal, State, or local

25 law or requirements imposed for the protection of the environment. 40 C.F.R. §§ 1508.27(b)(3),

26 (b)(5) – (b)(10).

27 57. If an agency’s action may be environmentally significant according to any of these

28 criteria, the agency must prepare an EIS. 40 C.F.R. § 1508.27.

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1 Wild and Scenic Rivers Act 2 58. The National Wild and Scenic Rivers System was created by Congress in 1968 (Public 3 Law 90-542; 16 U.S.C. 1271 et seq.) to preserve certain rivers with outstanding natural, cultural, 4 and recreational values in a free-flowing condition for the enjoyment of present and future 5 generations. 6 59. Rivers may be designated by Congress or, if certain requirements are met, the Secretary 7 of the Interior. Each river is administered by either a federal or state agency. Designated 8 segments need not include the entire river and may include tributaries. For federally 9 administered rivers, the designated boundaries generally average one-quarter mile on either bank 10 in the lower 48 states and one-half mile on rivers outside national parks in Alaska in order to 11 protect river-related values. 12 60. Rivers are classified as “wild,” “scenic,” or “recreational.” Regardless of classification, 13 each river in the National System is administered with the goal of protecting and enhancing the 14 “outstandingly remarkable values” (ORVs) that caused it to be designated. 15 61. “Wild” rivers are rivers that are free of impoundments and generally inaccessible except 16 by trail, with watersheds or shorelines essentially primitive and waters unpolluted. 17 62. “Scenic” rivers are rivers that are free of impoundments, with shorelines or watersheds 18 still largely primitive and shorelines largely undeveloped, but accessible in places by roads. 19 63. “Recreational” river are readily accessible by road or railroad, that may have some 20 development along their shorelines, and that may have undergone some impoundment or 21 diversion in the past. 22 64. The Suiattle River Road Project is located within the Skagit Wild and Scenic River 23 Corridor, which includes 158.5 miles of the Skagit River and its tributaries: the Sauk, Suiattle, 24 and Cascade Rivers. Management of the Skagit River System is to maintain or enhance: 1) free-

25 flowing characteristics and water quality of the rivers, and 2) the outstanding, remarkable values

26 for which the river was placed into the Federal System are wildlife, fish, and scenic qualities.

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1 65. The mainstem Suiattle River segment is a 27.4-miles long and is classified as “scenic,” 2 which is defined as “free of impoundments, with shorelines or watersheds still largely primitive 3 and largely undeveloped, but accessible by road in places.” 4 Administrative Procedure Act 5 66. The Administrative Procedure Act (APA) confers a right of judicial review on any person 6 that is adversely affected by agency action. 5 U.S.C. §702. Upon review, the court shall “hold 7 unlawful and set aside agency actions…found to be arbitrary, capricious, an abuse of discretion 8 or otherwise not in accordance with the law.” 5 U.S.C. §706(2). 9 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 10

11 67. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for

12 Users (Public Law 109-59) (SAFETEA-LU) is a funding and authorization bill that governs

13 United States federal surface transportation spending. 23 U.S.C. § 101 et seq.

14 68. SAFETEA-LU establishes the Emergency Relief Program. 23 U.S.C. § 125; 23 C.F.R.

15 Part 668.

16 69. FHWA has published regulations implementing the Program. See, 23 C.F.R. Part 668.

17 70. The Program is further divided into procedures and requirements for Federal-Aid

18 Highways (23 C.F.R. Part 668 Subpart A), and for Federal Roads (23 C.F.R. Part 668 Subpart

19 B).

20 71. The Suiattle River Road is a “federal road” as defined by the regulations, and therefore

21 must comply with the Subpart B regulations. 23 C.F.R. § 668.203(e) (defining “federal roads” as

22 “Forest highways, forest development roads and trails, park roads and trails, parkways, public

23 lands highways, public lands development roads and trails, and Indian reservation roads as

24 defined under 23 U.S.C. § 101(a)”).

25 72. The Subpart B regulations define “emergency repairs” as “those repairs, including

26 necessary preliminary engineering (PE), construction engineering (CE), and temporary traffic

27 operations, undertaken during or immediately after a natural disaster or catastrophic failure (1) to

28 restore essential travel, (2) to protect remaining facilities, or (3) to minimize the extent of damage.” 23 C.F.R. § 668.203(d) (emphasis added).

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1 73. Subpart B also explains requires that “Emergency relief projects shall be promptly 2 constructed. Projects not under construction by the end of the second fiscal year following the 3 year in which the disaster occurred will be reevaluated by the [Direct Federal Division Engineer] 4 and will be withdrawn from the approved program of projects unless suitable justification is 5 provided by the applicant to warrant retention.” 23 C.F.R. § 668.205(e). 6 The Suiattle River and Watershed 7 74. The Suiattle River, a west-flowing river, is the largest tributary (nearly 60 miles in length, 8 comprising 343.7 square miles) of the Sauk River. The Sauk River is the largest tributary into the 9 Skagit River, which in turn, is the largest drainage in the Puget Sound Region of the Western 10 Washington Cascades Province. 11 75. The Suiattle River originates from two prominent glaciers (Honeycomb and Chocolate 12 glaciers) on the northeast slopes of Glacier Peak. At 10,528 feet, Glacier Peak is the more 13 prominent of several northern Cascades mountain peaks 14 76. According to the Forest Service’s Suiattle Watershed Analysis, “over the past century, 15 there has been conversion of low and mid-elevation west-side forests to agriculture, industrial, 16 urban and other uses. This has resulted in a regional reduction of older forests, especially in the 17 western hemlock and Pacific silver fir zones, and a relative increase in the value of old growth on 18 public lands to provide for organisms associated with the older forests. Due to the large amount 19 of lands managed as wilderness and as Late Successional Reserves in the North Cascades, this 20 area is important for the potential conservation of a number of large home-range species, such as 21 the grizzly bear, wolverine, gray wolf and spotted owl. Outdoor recreation is also attracted to the 22 North Cascades and creates challenges in managing for plant and wildlife resources, as well as 23 human use demands. Modification of habitat over the past century has had an impact on plant 24 distribution and abundance. Roads, and disturbed sites from agriculture, timber harvests, 25 recreation, and land conversion to urban sites has led to the introduction and spread of invasive 26 weed species.” 27 77. The Suiattle Watershed Analysis goes on to explain that “the Sauk and Skagit River 28 basins have been intensively harvested and farmed since the late 1800s. The remaining late

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1 successional forest is found primarily on federal lands. The forest stands within the lower 2 elevations of the Sauk drainage were railroad logged in the late 1800s through the 1940s. In the 3 1950s through 1980s, timber harvesting on National Forest pushed into the upper elevations with 4 logging roads that provided easier access to backcountry and more fragmentation of habitat. The 5 Suiattle River drainage is one of four major tributaries to the Sauk River and is a relatively intact 6 drainage of older forests and unroaded areas.” 7 78. Given the historic management of the watershed, “increasingly intensive lowland 8 conversion, development and resource extraction in the Puget Sound and the Skagit Basin have 9 resulted in reduced amounts and diversity of available wildlife and fisheries habitats. These 10 changes translate to increasing pressures on the headwater tributaries, such as the Suiattle 11 watershed to function as refuges.” 12 79. In addition, “the Skagit River basin is the most important salmonid-producing basin in 13 the Puget Sound in terms of abundance, population diversity, and types of habitat (Smith 2003). 14 The eight anadromous salmonid species of the Skagit River comprise approximately 30 percent 15 of all anadromous fish entering Puget Sound. Most of the salmonid populations in the Skagit 16 River are considered native in origin with little influence from non-native introductions.” 17 80. Two species of fish listed under the Endangered Species Act (ESA) exist within the 18 Suiattle River Road Project area including chinook salmon and bull trout. Critical habitat for 19 chinook salmon has been designated within the project area. 20 81. Sensitive fish species found in the planning area include coho, pink, chum, steelhead, and 21 sockeye salmon; coastal sea-run cutthroat trout; and Salish sucker. 22 82. Essential fish habitat, defined as “those waters and substrate necessary to fish for 23 spawning, breeding, feeding, or growth to maturity,” exists in the project area for chinook, coho, 24 and pink salmon.

25 83. Furthermore, “the Suiattle Watershed supports habitat for a variety of wildlife species

26 typically found in the North Cascades. With 70 percent of the watershed in wilderness and

27 another 19 percent in Late Successional Reserve, the area is important for wildlife species with

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1 large home ranges. This watershed supports habitat for wildlife species such as the bald eagle, 2 grizzly bear, gray wolf, wolverine, marten, and spotted owl.” 3 84. Two federally-protected Threatened bird species, the northern spotted owl and marbled 4 murrelet, and their critical habitat, also exist within the project area. 5 85. The Suiattle River watershed is largely undeveloped and long stretches of the river 6 undergo active and dynamic river channel migration. 7 86. The main road that accesses the Suiattle River watershed is Forest Road 26 (FR 26), also 8 known as the Suiattle River Road. 9 87. The Suiattle River Road runs parallel to the Suiattle River for approximately 23 miles 10 from State Route 530 to about a half mile past Sulphur Creek. The road runs in close proximity 11 to the river along the majority of its length, in some places along a high terrace above the river 12 and in other places along the edge of the floodplain. 13 88. Active channel migration has impacted the Suiattle River Road in several locations in the 14 past, creating a road maintenance and management problem for the Forest Service. 15 89. Indeed, the Forest Service has acknowledged that “several roads have a history of chronic 16 problems and show up with repeat ERFO sites. Road problems may be due to road location 17 (unstable ground) or to insufficient drainage features (too few or undersized culverts). Roads 18 that have shown chronic problems…are 2510, 2640, 2642, 2660, 2661, 2680, and 2703.” The 19 2640, 2642, 2660, 2661, and 2680 roads are all part of the Suiattle River road system, branch off 20 of the main Suiattle River Road (FR 26), and follow or intersect tributaries to the Suiattle River. 21 90. Emergency road repairs that include rip-rap bank protection can negatively impact fish 22 habitat by reducing edge habitat complexity (Beamer and Henderson 1998), and limiting the 23 natural process of channel migration that can create side channels, sloughs, and other important 24 habitats (SRSC and WDFW 2005).

25 91. Over the past several decades, the river has continually eroded road embankments and

26 bridge approaches.

27 92. Most recently, several road washouts occurred during the floods of 2003 and 2006, and

28 the road is currently closed at milepost 12.6.

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1 93. Given the River’s history and hydrology, it can be anticipated that the Suiattle River will 2 continue to migrate and change its channel location, particularly during high flow, and warm rain 3 on snow storm events commonly known as the “Pineapple Express.” 4 The Suiattle River Road Project 5 94. In October 2003, record rainfall produced some of the most severe storm damage seen on 6 Mt. Baker-Snoqualmie (MBS) National Forest System lands in many years. During a 24-hour 7 period, more than six inches of rain fell in the forest lowlands, and up to 10 inches in the higher 8 elevation areas. 9 95. At the Sauk River gauge, 106,000 cubic feet/second (cfs) of water flowed through the 10 river system, which was – and remains – the highest flow on record. For comparison, Niagara 11 Falls averages 100,000 cfs. 12 96. Many roads, trails, recreation sites, and watersheds were damaged, primarily in the north 13 half of the Forest (eastern Snohomish, Skagit, and Whatcom Counties). 14 97. The October 2003 floods washed out the Suiattle River Road (also known as Forest Road 15 26) at mile post (MP) 14.4 (Huckleberry Mountain trailhead), 20.9 (Downey Creek bridge 16 approach), 22.9 (Sulphur Creek approach), as well as the Boundary Bridge south approach. 17 98. The Suiattle River Road was closed to public vehicular access at MP 12.6, and remains 18 closed today. 19 99. In March 2004, the Forest Service sent out an initial scoping letter to the public 20 expressing the intention of repairing the Suiattle River Road washouts. 21 100. In May 2005, the Forest Service prepared an environmental assessment (EA) to 22 document the environmental consequences of repairing the Suiattle River Road washouts, and 23 circulated it to the public for comment. 24 101. In March 2006, the Forest Service issued a decision notice and finding of no significant

25 impact (DN/FONSI) for the Suiattle River Road repairs.

26 102. In May 2006, the Plaintiffs to the present action filed an administrative appeal of the

27 Suiattle River Road EA and DN/FONSI with the Forest Service. Plaintiffs’ administrative

28 appeal was later denied by the Forest Service, and administrative work began at some locations.

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1 103. On November 6th 2006, a second “hundred year flood” occurred in the Suiattle River 2 watershed. This flood resulted in recorded flows of 86,400 cfs on the Sauk gauge, which was 3 the second highest recorded flow after the October 2003 flood. 4 104. The November 2006 floods resulted in new washouts at MP 12.6, MP 13.2, MP 13.8, 5 and MP 20.8. These floods washed away the vast majority of the road prism at these locations. 6 The road was closed to public access at MP 12.6, and remains closed there today. 7 105. The November 2006 floods resulted in a work stoppage at MP 14.4, MP 20.9, and MP 8 22.9. 9 106. In March 2007, spring floods caused a washout at MP 6, which is located on Washington 10 State Department of Natural Resources land. A “temporary” bypass was constructed at this 11 location, which allowed access to upper reaches of the Suiattle River Road. However, additional 12 work at the 2003 and 2006 washout locations did not proceed. 13 107. At some point between 2007 and 2010, the Forest Service turned over primary 14 responsibility for repairing the Suiattle River Road washouts to the Federal Highway 15 Administration (FHWA). In the interim, ground-disturbing activities along the Suiattle River 16 Road – including timber felling and removal, administrative road construction, road grade 17 widening, graveling, sediment barrier construction, and riprap placement – were undertaken; it is 18 unclear whether the Forest Service or FHWA was the responsible federal agency for this activity. 19 108. On March 31st 2010, FHWA issued a categorical exclusion for repairs of the Suiattle 20 River Road at MP 12.6 – 13.5 and MP 14.4. FHWA did not provide general public notice and 21 comment on the CE, although a scoping letter was apparently mailed to three Native American 22 tribes (Swinomish, Sauk-Suiattle, Middle Skagit Tribes). 23 109. No scoping letter was mailed to the public, including Plaintiffs. 24 110. On August 6, 2010 FHWA awarded Contract Number: DTFH70-10-D-00007 to Saybr

25 Contractor’s Inc. in the amount of $1,784,781.25 for the WA FS ERFO 071-2017, Suiattle River

26 Road Emergency Repairs construction project.

27 111. According to the FHWA CE, reconstructing the Suiattle River Road consists of several

28 components.

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1 112. First, along MP 12.6 through MP 13.5, the roadway will be realigned to bypass several 2 storm-damaged sites. The realignment will follow an existing closed logging road for 3 approximately 0.4 miles of the approximate overall 1.0 mile realignment Existing vegetation 4 from the proposed roadway limits will be cleared. Blasting will occur near MP 12.6. Noise from 5 the blasts will be mitigated by using rubber blast mats and by restricting blasts to one per day. 6 Roadway fill material will be placed to construct the embankment. The proposed roadway width 7 of 14 feet will match the existing roadway. The roadway will be surfaced with aggregate and will 8 not be paved. 9 113. Second, at MP 14.4, the roadway will be realigned to bypass a single washout. The 10 roadway will be realigned approximately 90 feet from the existing roadway. The proposed 11 roadway width of 14 feet will match the existing roadway. The roadway will be surfaced with 12 aggregate and will not be paved. The total length of realigned road at MP 14.4 will be 13 approximately 900 feet. 14 114. Third, temporary sediment and erosion control measures will be installed prior to any 15 ground disturbing activities with the potential to increase erosion or cause sedimentation to 16 receiving waters. These measures will include Best Management Practices (BMP) such as silt 17 fence, sediment logs, check dams, etc. Permanent erosion control measures are revegetating the 18 area with native plants and/or seed mix. All areas disturbed by construction within the project 19 area (stream banks, slopes, etc.) will be mulched and planted with a Forest Service-approved 20 native seed mix. 21 115. Fourth, in areas where the Suiattle River Road will be relocated, the existing roadway 22 will be removed by obliterating, ripping and scarifying the roadway surface to a depth of 23 approximately 6-12 inches in order to facilitate revegetation and root establishment. These areas 24 will be replanted with native plants and or reseeded with native seed mix approved by the Forest

25 Service.

26 116. Next, the realignment of the roadway will require the installation of several new drainage

27 structures (culverts), the removal and replacement of existing structures within streams and the

28 placement of streambed material and embankment protection (riprap). Diverting the stream

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1 during these activities may be necessary. Construction related activities requiring in-water work 2 will be restricted to periods of low flow (June 15th through October 15th). 3 117. Finally, construction activities may take place outside the construction limits that will 4 require ground disturbance, occupation, clearing, or could result in some environmental impacts. 5 Such activities may be material extraction, material wasting, water retrieval, staging, etc. These 6 activities will take place at either commercial or non-commercial sources. Established 7 commercial sources have provided material to public and private entities on a regular basis over 8 the last two years, have appropriate federal, state and local permits, and do not require expansion 9 outside their currently established and permitted area. FHWA maintains that if a non- 10 commercial source is used, the use: (a) will not affect properties on or eligible for listing to the 11 National Register of Historic Places (NRHP), (b) will have no effect to species or habitat listed 12 as threatened or endangered under the Endangered Species Act (ESA), and (c) will not encroach 13 into waters of the United States or wetlands protected under the Clean Water Act (CWA). 14 118. In designing the Suiattle River Road Project, FHWA used “station” identifiers to 15 demarcate locations along the road, including repair sites. The Station line is usually the 16 centerline of roadway. The road alignment is measured ahead on a line from the starting point in 17 feet or decimal fractions of feet. For example, a station of 102+52.25 would be 252.25 feet from 18 the 100+00 starting point; usually the first digit can be ignored in the stationing: as a general 19 rule, engineers begin a road project with a large positive number, so that if a feature must be 20 designed behind starting point, negative numbers are not required. References to “right” or 21 “left” of the stationing indicate that a feature is to the right or left of a person facing forward, 22 with the start of the road project behind the observer. 23 119. The Suiattle River Road Project begins at Station 100+00, which is equivalent to MP 24 12.6.

25 120. Unfortunately, conditions on the ground depart substantially from the project design and

26 effects disclosed in the CE.

27 121. For example, ground disturbing activity has already commenced at MP 14.4, the

28 Huckleberry Trailhead. Large diameter mature and old growth trees have been felled within the

PAGE 21 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Mt. Baker Snoqualmie LSR in a swath that measure approximately 100 – 120 feet wide by 900 2 feet long. Construction drawings only call for a maximum clearing of about 70 feet at this 3 location, about half of what has already been cleared. Slope stakes, clearing limit stakes, and 4 reference point stakes are either missing or non-existent. 5 122. The relocated road will pass through a number of wetlands and wetland buffers, some of 6 which are not shown on construction drawings (i.e., between Station 168+00 and Station 7 175+00). At Station 169+50, the roadway parallels an un-named stream with the road centerline 8 only 26 feet from the wetted stream edge. 9 123. At the stream crossing near Station 140+54, there is evidence of a historic debris flow. 10 124. None of the culverts on this project have been designed for fish passage. The design of 11 new or retrofit culverts must be in compliance with Washington Department of Fish and Wildlife 12 fish-passage criteria as defined by Washington Administrative Code (WAC) 220-110. However, 13 it is WFLHD’s position that it need not comply with this provision of state law. 14 125. At other areas in the project area, pre-construction activity exceeds the proposed scope of 15 the categorical exclusion. 16 126. For example, construction drawings indicate that from Station 155+00 to Station 177+50, 17 3.88 acres of clearing and grubbing are to be performed. This area is within the Mt. Baker 18 Snoqualmie LSR and is primarily mature and old growth forest, dominated by Western red cedar 19 and Douglas fir, as well as hemlock. The proposed action will log these forests along the 20 proposed road alignment. The area to be cleared is between 45 – 70 feet in width, which appears 21 to be designed for highway speeds rather than for lower speeds required on National Forest 22 roads. Given that the only clearing already done, 900’ of length at MP 14.4, has been measured 23 at between 100 and 120 feet in width, there is a risk that the entire forested corridor will be 24 cleared to this width.

25 127. The proposed road alignment will bisect at least six wetlands at several locations

26 including: 27  From Station 104+50 to Station 105+70, for a total road length of approximately 120 feet; 28

PAGE 22 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1  From Station 123+00 to Station 127+00, for a total road length of approximately 400 feet; 2

3  From Station 138+70 to Station 140+80, for a total road length of approximately 110 feet; 4 5  From Station 159+60 to Station 160+10, for a total road length of approximately 50 feet; 6  From Station 168+00 to Station 169+20, for a total road length of approximately 7 120 feet; 8  From Station 202+75 to Station 203+15, for a total road length of approximately 9 40 feet. 10 128. An additional large wetland is present from approximately Station 169+50 to Station 11 175+00 that is not delineated or designated in construction drawings for mitigation. 12 129. At Station 169+50, the road centerline is only 26 feet from the edge of the waterline of 13 an un-named tributary creek, and parallels the creek in its riparian zone and through its wetland 14 to the main road connection near Station 175+00. This will require fill and rip rap to be placed 15 in the stream and stream buffer for lengths greater than what are called for on construction 16 drawings. 17 130. At the larger streams such as at Stations 105+50, 118+75, 140+75, 148+63, 156+36, 18 168+31, and 203+50, construction drawings call for riprap to be placed the stream channel and 19 banks up to 40 feet above the culvert and 15 feet below the culvert. Because the road is routed 20 through debris flows that originate in logged lands above the road, these culverts will likely plug 21 and blow out if there is another debris flow. None of the culverts are designed for fish passage 22 as required by state and federal law. 23 131. At stream crossings at Stations 140+54, 159+67, 168+31, and 175+50, temporary 24 diversion channels 40 feet wide will be constructed. This will have a significant sedimentary 25 impact to the tributary streams that has not been mitigated. 26 132. Temporary Erosion and Sediment Controls are not in accordance with generally accepted 27 best management practices. For example, silt fences should never be constructed crossing 28

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1 streams as they are ineffective when used in such a manner, yet construction drawings and 2 mitigation call for silt fences to be installed at stream crossings. 3 133. Because scoping and public input were not solicited by Defendants, a number of less 4 expensive design options with much less impact to the environment were never explored or 5 considered that would have significantly reduced or mitigated the impacts from this project. 6 CLAIMS FOR RELIEF 7 COUNT 1 8 (NFMA VIOLATION) 9 Failure to Comply with the Mt. Baker-Snoqualmie Land and Resource Management Plan as Amended by the Northwest Forest Plan 10

11 134. Plaintiffs incorporate by reference all preceding paragraphs.

12 135. NFMA requires site-specific projects like the Suiattle River Road Project to comply with

13 the guiding land and resource management plan. 16 U.S.C. § 1604(i).

14 136. The Northwest Forest Plan (NFP) amended the Mt. Baker-Snoqualmie National Forest

15 Land and Resource Management Plan.

16 137. The NFP proscribes several Standards and Guidelines (NFP S&Gs) that constrain land

17 management decisions.

18 138. The Suiattle River Road CE does not reference either the Northwest Forest Plan, or the

19 Mt. Baker-Snoqualmie National Forest Land and Resource Management Plan.

20 139. The Suiattle River Road CE violates the NFP Standards and Guidelines, including but not

21 limited to:

22 a. Riparian Reserves.

23 i. Designate buffers around the following five categories of streams or

24 waterbodies: (1) Fish-bearing streams (300 feet on each side of the

25 waterway); (2) Permanently flowing nonfish-bearing streams (150 feet on

26 each side of the waterway); (3) Constructed ponds and reservoirs, and

27 wetlands greater than 1 acre (150 feet on each side of the aquatic feature);

28 (4) Lakes and natural ponds (300 feet on each side of the aquatic feature); and (5) Seasonally flowing or intermittent streams, wetlands less than 1

PAGE 24 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 acre, and unstable and potentially unstable areas (200 feet on each side of 2 the aquatic feature). NFP S&Gs, B-14, C-30-31. Defendants have failed 3 to designate Riparian Reserves around each aquatic feature in the project 4 area; 5 ii. “Prohibit timber harvest, including fuelwood cutting, in Riparian 6 Reserves….” Id. at C-31. Defendants have already cut timber, and 7 propose to cut more timber, within Riparian Reserves; 8 iii. “For each existing or planned road, meet Aquatic Conservation Strategy 9 objectives by: (1) minimizing road and landing locations in Riparian 10 Reserves; (2) completing watershed analyses (including appropriate 11 geotechnical analyses) prior to construction of new roads or landings in 12 Riparian Reserves; (3) preparing road design criteria, elements, and 13 standards that govern construction and reconstruction; (4) preparing 14 operation and maintenance criteria that govern road operation, 15 maintenance, and management; (5) minimizing disruption of natural 16 hydrologic flow paths, including diversion of streamflow and interception 17 of surface and subsurface flow; (6) restricting sidecasting as necessary to 18 prevent the introduction of sediment to streams; (7) avoiding wetlands 19 entirely when constructing new roads.” Id. at C-32. Defendants have 20 failed to demonstrate that the Suiattle River Road Project complies with 21 these requirements; 22 iv. “Determine the influence of each road on the Aquatic Conservation 23 Strategy objectives through watershed analysis. Meet Aquatic 24 Conservation Strategy objectives by: (1) reconstructing roads and

25 associated drainage features that pose a substantial risk; (2) prioritizing

26 reconstruction based on current and potential impact to riparian resources

27 and the ecological value of the riparian resources affected; (3) closing and

28 stabilizing, or obliterating and stabilizing roads based on the ongoing and

PAGE 25 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 potential effects to Aquatic Conservation Strategy objectives and 2 considering short-term and long-term transportation needs.” Id. at C-32 – 3 C-33. Defendants have failed to demonstrate that the Suiattle River Road 4 Project complies with these requirements; 5 v. “New culverts, bridges and other stream crossings shall be constructed, 6 and existing culverts, bridges and other stream crossings determined to 7 pose a substantial risk to riparian conditions will be improved, to 8 accommodate at least the 100-year flood, including associated bedload and 9 debris. Priority for upgrading will be based on the potential impact and the 10 ecological value of the riparian resources affected. Crossings will be 11 constructed and maintained to prevent diversion of streamflow out of the 12 channel and down the road in the event of crossing failure.” Id. at C-33. 13 Defendants have failed to demonstrate that the Suiattle River Road Project 14 complies with these requirements; 15 vi. “Provide and maintain fish passage at all road crossings of existing and 16 potential fish-bearing streams.” Id. at C-33. Based on design drawings 17 for the Suiattle River Road Project, fish passage is either not provided or 18 will not successfully route wildlife through the aquatic system; 19 vii. “Do not use mitigation or planned restoration as a substitute for preventing 20 habitat degradation.” NFP S&Gs, C-37. Defendants have not 21 demonstrated that the Suiattle River Road Project will prevent habitat 22 degradation. 23 b. Aquatic Conservation Strategy. 24 i. “Forest Service and BLM-administered lands within the range of the

25 northern spotted owl will be managed to:

26 1. Maintain and restore the distribution, diversity, and complexity of

27 watershed and landscape-scale features to ensure protection of the

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1 aquatic systems to which species, populations and communities are 2 uniquely adapted. 3 2. Maintain and restore spatial and temporal connectivity within and 4 between watersheds. Lateral, longitudinal, and drainage network 5 connections include floodplains, wetlands, upslope areas, 6 headwater tributaries, and intact refugia. These network 7 connections must provide chemically and physically unobstructed 8 routes to areas critical for fulfilling life history requirements of 9 aquatic and riparian-dependent species. 10 3. Maintain and restore the physical integrity of the aquatic system, 11 including shorelines, banks, and bottom configurations. 12 4. Maintain and restore water quality necessary to support healthy 13 riparian, aquatic, and wetland ecosystems. Water quality must 14 remain within the range that maintains the biological, physical, and 15 chemical integrity of the system and benefits survival, growth, 16 reproduction, and migration of individuals composing aquatic and 17 riparian communities. 18 5. Maintain and restore the sediment regime under which aquatic 19 ecosystems evolved. Elements of the sediment regime include the 20 timing, volume, rate, and character of sediment input, storage, and 21 transport. 22 6. Maintain and restore in-stream flows sufficient to create and 23 sustain riparian, aquatic, and wetland habitats and to retain patterns 24 of sediment, nutrient, and wood routing. The timing, magnitude,

25 duration, and spatial distribution of peak, high, and low flows must

26 be protected.

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1 7. Maintain and restore the timing, variability, and duration of 2 floodplain inundation and water table elevation in meadows and 3 wetlands. 4 8. Maintain and restore the species composition and structural 5 diversity of plant communities in riparian areas and wetlands to 6 provide adequate summer and winter thermal regulation, nutrient 7 filtering, appropriate rates of surface erosion, bank erosion, and 8 channel migration and to supply amounts and distributions of 9 coarse woody debris sufficient to sustain physical complexity and 10 stability. 11 9. Maintain and restore habitat to support well-distributed 12 populations of native plant, invertebrate, and vertebrate riparian- 13 dependent species.” 14 NFP S&Gs, B-11. The Suiattle River Road Project has, or will alter the: 15 (1) sediment regime under which aquatic ecosystems evolved; (2) flow 16 and flooding regimes; (3) timing, magnitude, duration, and spatial 17 distribution of peak, high, and low flows; (4) timing, variability, and 18 duration of floodplain inundation and water table elevation in meadows 19 and wetlands; (5) physical integrity of the aquatic system, including 20 shorelines, banks, and bottom configurations; (6) species composition and 21 structural diversity of plant communities in riparian areas and wetlands by 22 removing existing forest canopy and sources of coarse woody debris 23 through logging; and (7) remove habitat that supports well-distributed 24 populations of native plant, invertebrate, and vertebrate riparian-dependent

25 species through logging and other ground disturbing activities.

26 Defendants have failed to make any kind of consistency finding regarding

27 the Suiattle River Road Project’s compliance with the ACS.

PAGE 28 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 c. Tier 1 Key Watersheds. 2 i. “Reduce existing system and nonsystem road mileage. If funding is 3 insufficient to implement reductions, there will be no net increase in the 4 amount of roads in Key Watersheds” (NFP, B-19). The Suiattle River 5 Road Project will increase the amount of roads in the Suiattle River Tier 1 6 Key Watershed. 7 d. Survey & Manage. 8 i. Survey and Manage mitigation requirements apply on all land allocations 9 and include the requirement to: (1) manage known sites of rare organisms; 10 (2) survey for the presence of rare organisms prior to ground disturbing 11 activities; (3) conduct surveys to identify locations and habitats of rare 12 species; and (4) conduct general regional surveys for rare species. NFP 13 S&Gs, C-4 – C-6, C-30 – C-61. If sites are located, they must be buffered 14 with no-disturbance buffers depending on the type of species. Id. at C-4 – 15 C-6. Defendants have not demonstrated that they have either conducted 16 the requisite surveys or employed the requisite no-disturbance buffers. 17 e. Late-Successional Reserves. 18 i. “As a general guideline, nonsilvicultural activities located inside Late- 19 Successional Reserves that are neutral or beneficial to the creation and 20 maintenance of late-successional habitat are allowed.” NFP S&Gs, C-16. 21 Defendants have not demonstrated that the Suiattle River Road Project is 22 neutral or beneficial to the creation and maintenance of late-successional 23 habitat; 24 ii. “West of the Cascades…There is no harvest allowed in stands over 80

25 years old.” Id. at C-12. Defendants have already cut trees older than 80

26 years old in the Mt. Baker Snoqualmie LSR, and propose to log additional

27 acres of forest over 80 years old;

PAGE 29 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 iii. “Development of new facilities that may adversely affect Late- 2 Successional Reserves should not be permitted… Developments will be 3 located to avoid degradation of habitat and adverse effects on identified 4 late-successional species… Routine maintenance of existing facilities is 5 expected to have less effect on current old-growth conditions than 6 development of new facilities.” Id. at C-17. Defendants have not 7 demonstrated that the Suiattle River Road Project will avoid degradation 8 of late-successional habitat; 9 iv. “Thinning or other silvicultural treatments inside reserves are subject to 10 review by the Regional Ecosystem Office to ensure that the treatments are 11 beneficial to the creation of late-successional forest conditions…Activities 12 deemed to have potentially adverse effects on Late-Successional Reserve 13 objectives are subject to review of the Regional Ecosystem Office.” Id. at 14 C-12, C-19. There is no indication that Defendants have sought or 15 received approval from the Regional Ecosystem Office to move forward 16 with the Suiattle River Road Project. 17 140. Defendants have failed to comply with several provisions of the Mt. Baker-Snoqualmie 18 National Forest Land and Resource Management Plan, as amended by the Northwest Forest 19 Plan, which is arbitrary, capricious, and not in accordance with the APA. 5 U.S.C. § 706(2)(A). 20 141. Plaintiffs are entitled to their reasonable fees, costs, and expenses associated with this 21 litigation pursuant to the EAJA, 28 U.S.C. § 2412. 22 COUNT 2 23 (NEPA Violation) 24 Failure to Disclose the Environmental Consequences of the Proposed Action 25 142. Plaintiffs incorporate by reference all preceding paragraphs.

26 143. The regulations implementing NEPA require Defendants to disclose and analyze the

27 environmental effects of the proposed action 40 C.F.R. § 1500.1(b). Specifically, the regulation

28 explains that “NEPA procedures must insure that environmental information is available to

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1 public officials and citizens before decisions are made and before actions are taken. The 2 information must be of high quality. Accurate scientific analysis, expert agency comments, and 3 public scrutiny are essential to implementing NEPA.” Id. 4 144. In order to adequately consider the environmental consequences of a proposed action, 5 Defendants must consider the direct, indirect, and cumulative effects of the proposed action. 40 6 C.F.R. §§ 1502.16, 1508.7, 1508.8, 1508.25. 7 145. “Direct effects” are defined as those effects that “are caused by the action and occur at 8 the same time and place.” 40 C.F.R. § 1508.8(a). 9 146. “Indirect effects” are defined as those effects that “are caused by the action and are later 10 in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may 11 include growth inducing effects and other effects related to induced changes in the pattern of 12 land use, population density or growth rate, and related effects on air and water and other natural 13 systems, including ecosystems.” 40 C.F.R. § 1508.8(b). 14 147. “Cumulative effects” are defined as “the impact on the environment which results from 15 the incremental impact of the action when added to other past, present, and reasonably 16 foreseeable future actions regardless of what agency or person undertakes such other actions. 17 Cumulative impacts can result from individually minor but collectively significant actions taking 18 place over a period of time.” 40 C.F.R. § 1508.7. 19 The Suiattle River Road Project CE fails to analyze the direct, indirect, and cumulative effects of 20 past, present, and reasonably foreseeable future federal actions including other Suiattle River 21 washout repair projects, timber sales, hazard tree removal, and other agency activities on soil 22 resources, wildlife (including sensitive species), introduction of noxious weeds, sediment 23 regimes, vegetation, fire and fuels, air quality, geology, water quality, and fisheries. 24 148. Defendants’ actions are arbitrary, capricious, not in accordance with law, and without 25 observance of procedures required by law. 5 U.S.C. § 706(2)(A). 26 149. Plaintiffs are entitled to their reasonable fees, costs, and expenses associated with this 27 litigation pursuant to the EAJA, 28 U.S.C. § 2412.

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1 COUNT 3 2 (NEPA Violation) 3 The Use of a Categorical Exclusion for the Suiattle River Road Project is Arbitrary and Capricious 4 150. Plaintiffs incorporate by reference all preceding paragraphs. 5 151. NEPA permits the use of “categorical exclusions” (CEs) to document the environmental 6 consequences of a federal agency action. 40 C.F.R. § 1508.4. 7 152. The use of a categorical exclusion (CE) is appropriate for “a category of actions which do 8 not individually or cumulatively have a significant effect on the human environment and which 9 have been found to have no such effect…and for which…neither an environmental assessment 10 nor an environmental impact statement is required.” 40 C.F.R. § 1508.4. 11 153. FHWA has implemented regulations promulgating categorical exclusions. 23 C.F.R. § 12 771.117. 13 154. FHWA’s regulations state that CEs “are actions which: do not induce significant impacts 14 to planned growth or land use for the area; do not require the relocation of significant numbers of 15 people; do not have a significant impact on any natural, cultural, recreational, historic or other 16 resource; do not involve significant air, noise, or water quality impacts; do not have significant 17 impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any 18 significant environmental impacts.” 23 C.F.R. § 771.117(a). 19 155. Furthermore, the regulation explains that “any action which normally would be classified 20 as a CE but could involve unusual circumstances will require the Administration, in cooperation 21 with the applicant, to conduct appropriate environmental studies to determine if the CE 22 classification is proper. Such unusual circumstances include: (1) Significant environmental 23 impacts; (2) Substantial controversy on environmental grounds; (3) Significant impact on 24 properties protected by section 4(f) of the DOT Act or section 106 of the National Historic 25 Preservation Act; or (4) Inconsistencies with any Federal, State, or local law, requirement or 26 administrative determination relating to the environmental aspects of the action.” 23 C.F.R. § 27 771.117(b). 28

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1 156. The regulations go on to establish several categories of actions that “normally do not 2 require any further NEPA approvals by the Administration,” including for “emergency repairs 3 under 23 U.S.C. 125.” 23 C.F.R. § 771.117(c)(9). 4 157. Defendants improperly utilized a Category (c)(9) CE to document the environmental 5 consequences of the Suiattle River Road Project in at least three ways. 6 158. First, the Suiattle River Road Project may have a significant impact on natural, cultural, 7 recreational, historic or other resources; and involves significant air, noise, or water quality 8 impacts; which indicates that a CE is an inappropriate tool. 23 C.F.R. § 771.117(a) 9 159. Second, unusual circumstances exist that prohibit the use of a CE to document the 10 environmental consequences of the Suiattle River Road Project. For example, the project may 11 have significant environmental impacts; substantial controversy on environmental grounds; 12 significant impact on properties protected by section 4(f) of the DOT Act or section 106 of the 13 National Historic Preservation Act; and is inconsistent with at least the Northwest Forest Plan, a 14 Federal law, requirement or administrative determination relating to the environmental aspects of 15 the action. 23 C.F.R. § 771.117(b). Therefore, the category (c)(9) CE is an inappropriate tool. 16 160. Third, because at least 3 and as many as 7 years have elapsed since floods destroyed part 17 of the Suiattle River Road, the Suiattle River Road Project is not an “emergency repair” as 18 defined by the SAFETEA-LU regulations. 23 C.F.R. § 668.203(d). Because there is no 19 “emergency” presented by the facts of this case, the use of the category (c)(9) CE is an 20 inappropriate tool. 21 161. Defendants’ actions are arbitrary, capricious, not in accordance with law, and without 22 observance of procedures required by law. 5 U.S.C. § 706(2)(A). 23 162. Plaintiffs are entitled to their reasonable fees, costs, and expenses associated with this 24 litigation pursuant to the EAJA, 28 U.S.C. § 2412. 25 COUNT 4 26 (NEPA Violation) 27 An Environmental Assessment or Environmental Impact Statement is Required 28 163. Plaintiffs incorporate by reference all preceding paragraphs.

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1 164. NEPA requires the Defendants to prepare an EIS when a major federal action is proposed 2 which may significantly affect the quality of the environment. 42 U.S.C. § 4332(2)(C). 3 165. In determining whether a proposed action may “significantly” impact the environment, 4 both the context and intensity of the action must be considered. 40 C.F.R. §1508.27. 5 166. In evaluating intensity, the agency must consider numerous “significance” factors. 40 6 C.F.R. §1508.27(b). 7 167. Among other factors, the agency must consider: (1) Unique characteristics of the 8 geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, 9 wetlands, wild and scenic rivers, or ecologically critical areas; (2) The degree to which the 10 possible effects on the human environment are highly uncertain or involve unique or unknown 11 risks; (3) The degree to which the action may establish a precedent for future actions with 12 significant effects or represents a decision in principle about a future consideration; (4) Whether 13 the action is related to other actions with individually insignificant but cumulatively significant 14 impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on 15 the environment. Significance cannot be avoided by terming an action temporary or by breaking 16 it down into small component parts; (5) The degree to which the action may adversely affect 17 districts, sites, highways, structures, or objects listed in or eligible for listing in the National 18 Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or 19 historical resources; (6) The degree to which the action may adversely affect an endangered or 20 threatened species or its habitat that has been determined to be critical under the Endangered 21 Species Act of 1973; and (7) Whether the action threatens a violation of Federal, State, or local 22 law or requirements imposed for the protection of the environment. 40 C.F.R. §§ 1508.27(b)(3), 23 (b)(5) – (b)(10). 24 168. The Suiattle River Road Project is located within several wetlands, the Suiattle Scenic 25 River corridor, and several archeological sites that are Section 4(f) resources. 40 C.F.R. § 26 1508.27(b)(3). In addition, the project is located within Riparian Reserves, the Mt. Baker 27 Snoqualmie Late-Successional Reserve, and a Tier 1 watershed, all of which are ecologically

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1 critical areas for salmonid propagation and recovery as well as late-successional forest 2 protection. Id. 3 169. The possible effects on the human environment of the Suiattle River Road Project are 4 highly uncertain or involve unique or unknown risks. 40 C.F.R. § 1508.27(b)(5). For example, 5 the Project is located in an active floodplain that has flooded before and will flood in the future. 6 The Project is also located on steep and unstable slopes that are likely to fail if disturbed, and 7 contribute sediment to several waterways that are salmon-bearing. 8 170. The Suiattle River Road project may establish a precedent for future actions with 9 significant effects or represents a decision in principle about a future consideration. 40 C.F.R. § 10 1508.27(b)(6). In 2006, the Forest Service prepared an EA to assess the effects of repairing 11 some of the 2003 flood damage to the Suiattle River Road. Now, the Defendants have proposed 12 to conduct much of the same work with a categorical exclusion. More CEs are likely to be 13 proposed in the future to repair other storm damage. Therefore, the Suiattle River Road Project 14 CE may establish a precedent of segmenting what is essentially a large project typically analyzed 15 with an EA or EIS, into smaller projects documented with a CE. 16 171. The Suiattle River Road Project may have cumulatively significant impacts when 17 combined with the effects of historic management; the 2003, 2006, and 2007 floods; and 18 proposed future projects. 40 C.F.R. § 1508.27(b)(7). 19 172. The Suiattle River Road Project may adversely affect known cultural resources that are 20 Section 4(f) resources under the Department of Transportation Act of 1966. 40 C.F.R. § 21 1508.27(b)(8). 22 173. The Suiattle River Road Project may adversely affect an endangered or threatened 23 species or its habitat that has been determined to be critical under the Endangered Species Act 24 (ESA) of 1973. Marbled murrelets, northern spotted owls, Puget Sound bull trout, Puget Sound 25 chinook, and Puget Sound steelhead – all Threatened species – occupy the project area. Critical 26 habitat for both species exists in the project area. Critical habitat for all of these species is also 27 designated within the project area. In addition, essential fish habitat for Puget Sound pink 28 salmon, coho salmon, and chinook salmon exists within the project area. The scope of work

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1 authorized by existing ESA consultation has already been exceeded, as old growth forests have 2 been logged and sediment has reached listed fish species habitat. 40 C.F.R. § 1508.27(b)(9). 3 174. The Suiattle River Road Project threatens to violate the National Forest Management Act, 4 a Federal law imposed for the protection of the environment, because the project is inconsistent 5 with numerous Northwest Forest Plan Standards and Guidelines. 40 C.F.R. § 1508.27(b)(10). 6 175. Defendants failed to prepare an EA or EIS for the Suiattle River Road Project, despite the 7 presence of several significance factors. The Defendants’ decision to implement and proceed 8 with the proposed action without first preparing an EA or EIS is arbitrary, capricious, and not in 9 accordance with NEPA. 5 U.S.C. § 706(2)(A). 10 176. Plaintiffs are entitled to their reasonable fees, costs, and expenses associated with this 11 litigation pursuant to the EAJA. 28 U.S.C. § 2412. 12 COUNT 5 13 (SAFETEA-LU Violation) 14 The Emergency Relief Program and Funds are Inapplicable to the Suiattle River Road Project 15 177. Plaintiffs incorporate by reference all preceding paragraphs. 16 178. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for 17 Users (SAFETEA-LU) establishes the Emergency Relief Program. 23 U.S.C. § 125; 23 C.F.R. 18 Part 668. 19 179. FHWA has published regulations implementing the Program. See, 23 C.F.R. Part 668. 20 180. The Program is further divided into procedures and requirements for Federal-Aid 21 Highways (23 C.F.R. Part 668 Subpart A), and for Federal Roads (23 C.F.R. Part 668 Subpart 22 B). 23 181. The Suiattle River Road is a “federal road” as defined by the regulations, and therefore 24 must comply with the Subpart B regulations. 23 C.F.R. § 668.203(e) (defining “federal roads” as 25 “Forest highways, forest development roads and trails, park roads and trails, parkways, public 26 lands highways, public lands development roads and trails, and Indian reservation roads as 27 defined under 23 U.S.C. § 101(a)”). 28

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1 182. The Subpart B regulations define “emergency repairs” as “those repairs, including 2 necessary preliminary engineering (PE), construction engineering (CE), and temporary traffic 3 operations, undertaken during or immediately after a natural disaster or catastrophic failure (1) to 4 restore essential travel, (2) to protect remaining facilities, or (3) to minimize the extent of 5 damage.” 23 C.F.R. § 668.203(d) (emphasis added). 6 183. Subpart B also explains that “Emergency relief projects shall be promptly constructed. 7 Projects not under construction by the end of the second fiscal year following the year in which 8 the disaster occurred will be reevaluated by the [Direct Federal Division Engineer] and will be 9 withdrawn from the approved program of projects unless suitable justification is provided by the 10 applicant to warrant retention.” 23 C.F.R. § 668.205(e). 11 184. Washouts removed sections of the Suiattle River Road in 2003 and 2007. FHWA did not 12 issue its CE for the project until 2010, at least 3 years – and possibly as many as 7 years – from 13 the time of the alleged “emergency.” 23 C.F.R. § 668.203(d). 14 185. FHWA has failed to support its contention that the Suiattle River Road Project is an 15 “emergency relief project” within the meaning of the SAFETEA-LU regulations because the 16 emergency repairs were not conducted “during or immediately after” a natural disaster. Indeed, 17 there is nothing to suggest that it is reasonable to wait as many as 7 years from the time of the 18 natural disaster (the 2003 floods) that affected the Suiattle River Road to utilize emergency funds 19 for repairs. 20 186. Similarly, FHWA has failed to demonstrate that the Suiattle River Road Project was 21 “under construction by the end of the second fiscal year following the year in which the disaster 22 occurred.” 23 C.F.R. § 668.205(e). 23 187. Defendants’ failure to comply with the SAFETEA-LU implementing regulations is 24 arbitrary, capricious, and not in accordance with law. 5 U.S.C. § 706(2)(A). 25 188. Plaintiffs are entitled to their reasonable fees, costs, and expenses associated with this 26 litigation pursuant to the EAJA. 28 U.S.C. § 2412. 27 RELIEF REQUESTED 28 Plaintiffs respectfully request that this court:

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1 1. Declare that the Defendants violated the National Environmental Policy Act, the National 2 Forest Management Act, SAFETEA-LU, Administrative Procedure Act, and their implementing 3 regulations in preparing and approving the Suiattle River Road Project; 4 2. Declare that the Suiattle River Road Emergency Repairs Project categorical exclusion is 5 insufficient as a matter of law, and Order the Defendants to withdraw the categorical exclusion 6 until such time as the agency demonstrates to this court that it has adequately complied with the 7 law; 8 3. Enjoin the Defendants and their agents from proceeding with the Suiattle River Road 9 Project, or any portion thereof, unless and until the violations of federal law set forth herein have 10 been corrected to the satisfaction of this court; 11 4. Award Plaintiffs their costs of suit attorneys fees; and 12 5. Grant Plaintiffs such other and further relief as the Court deems just and equitable. 13 14 Respectfully submitted this 19th day of April, 2011. 15 16 /s/ Susan Jane M. Brown . Susan Jane M. Brown (WSB #31224, OSB #05460) 17 Western Environmental Law Center 18 4107 NE Couch St. Portland, OR. 97232 19 Ph. 503-914-1323 [email protected] 20

21 Counsel for Plaintiffs

PAGE 38 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CORPORATE DISCLOSURE STATEMENT

Plaintiffs North Cascades Conservation Council and Pilchuck Audubon Society have no

parent companies, subsidiaries, or affiliates that have issued shares to the public in the United

States or abroad. Plaintiff William Lider is an individual and is not subject to the requirement to provide a Corporate Disclosure Statement.

Respectfully submitted this 19th day of April, 2011.

/s/ Susan Jane M. Brown . Susan Jane M. Brown (WSB #31224, OSB #05460) Western Environmental Law Center 4107 NE Couch St. Portland, OR. 97232 Ph. 503-914-1323 [email protected]

Counsel for Plaintiffs

PAGE 1 – CORPORATE DISCLOSURE STATEMENT