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September 9, 2005.

SIERRA CLUB, et al., Plaintiffs,
DALE BOSWORTH, et al., Defendants.

The opinion of the court was delivered by: CHARLES BREYER, District Judge


Currently pending before the Court is a motion by several plaintiff environmental groups for a preliminary injunction. Plaintiffs seek an order preventing the United States Forest Service ("Forest Service" or "Service") from allowing intervenor Sierra Forest Products to execute a 1999 contract authorizing timber cutting in the Sequoia National Forest. Plaintiffs contend that the Service violated the National Environmental Policy Act ("NEPA") by failing to conduct the required analysis of newly available information regarding the project's effect on the pacific fisher, a mink-like animal that faces extirpation within the southern Sierra Nevada. After carefully reviewing the record in this action and having had the benefit of live testimony on this motion, the Court hereby GRANTS the motion for a preliminary injunction.


  On June 30, 1999, the Forest Service approved a commercial logging project called the Saddle Fuels Reduction Project (the "Saddle project" or "the project"), which involves the logging of about 31,000 trees over 2,000 acres of pacific fisher habitat in the southern Sierra Nevada mountains. This approval came after the Service prepared an Environmental Assessment ("EA"), which received comments from the plaintiffs in this action. The Environmental Assessment concluded that the project would cause no significant impacts to the human environment, and therefore the more thorough review involved in preparing an Environmental Impact Statement ("EIS") was unnecessary. The finding of no significant impact ("FONSI") was premised on, among other things, the determination that the project "would maintain suitable habitat and habitat elements necessary for . . . [the] fisher . . . to be well dispersed over the landscape." FONSI VII.9. The finding was also based on the conclusion that guidelines set up in 1993 to protect the California spotted owl would protect wildlife impacted by the project. See EA, p. 30. These mitigation measures, known as the CASPO guidelines, were designed to conserve features of the habitat — for example that no trees greater than 30 inches in diameter be cut*fn1 — that are necessary for the survival and sustainability of the spotted owl. Those features were also thought to be important for the fisher.

  Three documents associated with the initial EA represent the Service's findings regarding the impact that the project would have on the fisher: the EA itself, the Wildlife Biological Evaluation ("BE") and the FONSI. The primary document analyzing the project's impact on the fisher, and the one on which the other two rely, is the Wildlife Biological Evaluation.

  The BE, prepared by Service biologists, opens with the admission that "[c]urrently no viability analysis regarding appropriate population levels for marten or fisher has been conducted at the State or Regional level." BE at 5. The BE also acknowledges that the data available at the time indicated that "fisher distribution is shrinking" and "fisher are now absent or exist in low density" in some parts of California. Id. The report further states that "[w]hether this gap in distribution is effectively isolating the southern Sierra Nevada population remains inconclusive." Id.

  The report based its findings on the surveys which had revealed that the fisher occupies stands with dense, but not necessarily uniform, overhead canopy of more than 40% cover. BE at 6. Such stands are structurally complex, containing a combination of trees and shrubs, a high density of snags, fallen trees, and limbs close to the ground. Id. The report also found that fishers tend to live in conifers with a diameter in a range between 39" and 41.4" and their natal dens are found in trees with diameters of 34" and 45". Id. Fishers were also said to live in areas of tree densities from 160 sq. ft. basal area per acre to 385 sq. ft. per acre with a mean of 272 sq. ft. per acre. Id. Logging was seen as a potential threat to the fisher because "[e]xcessive fragmentation of usable habitat from harvest clear cutting may create sufficient openings to lower overall suitability." Id. Based on these findings, the report concluded that of the 28,800 acre analysis area, 4,400 acres was considered "highly suitable" for fisher resting, foraging and denning activity with an additional 120 acres considered suitable for travel and foraging. The remaining 14,495 acres were found to be of only "limited value" to fisher.

  The BE also considered the cumulative effects of the project when analyzed together with other ecosystem threatening activities. See BE at 14-15. The report notes that between 1976 and the reporting period 88 MMBF (million board feet) of wood had been removed through logging. BE at 14. It also anticipated an additional 1 MMBF*fn2 would be removed over the two years following the reporting period due to the Roadside Hazard and Safety Hazard Removal Projects. Id.

  Pursuant to these findings, the BE concludes that use of CASPO guidelines and other mitigation measures would protect the fisher such that the project was "not anticipated to result in a substantial shift in habitat quality or quantity from what currently exists for fisher and marten throughout the analysis area." BE at 12. In addition to the CASPO guidelines, the report requires that a minimum of 175 sq. ft. basal area per acre be maintained for some areas and a minimum average of 160 sq. ft. per acre in others. Id. Post-project overhead canopy density was anticipated to be 40% and was expected to exceed 50% approximately 10 years after the project. Id.

  Based on all of these findings, the report's ultimate determination is that the project, if implemented using CASPO guidelines and other specified standards and mitigations,
`may affect individuals' but would maintain a suitable habitat and habitat elements necessary for [marten, fisher, northern goshawk, and the California spotted owl] well dispersed over the landscape. Risk of largescale disturbances which would severely impact the species would be reduced. Therefore, the project action `would not lead to a trend toward federal listing.'
BE at 16; see also EA at 33.

  On November 2, 1999, the Saddle contract was awarded to intervenors. On April 15, 2000, President Clinton issued a Presidential Proclamation establishing the Giant Sequoia National Monument, which made commercial logging in a portion of the Sequoia National Forest illegal. The Proclamation provided an exception for preexisting timber contracts, that is "[t]imber sales under contract as of [April 15, 2000] and timber sales with a decision notice signed . . . prior to December 19, 1999."

  Although the Saddle contract was initially slated to be completed by March 31, 2004, its termination date was extended twice because of the low price of timber. After receiving a press release stating that the Saddle project would finally commence on July 25, 2005, plaintiffs filed a motion for a temporary restraining order ("TRO") on August 8. The Court entered a TRO on August 10 and scheduled a hearing on the motion for a preliminary injunction on August 16. By stipulation, the parties agreed to delay the hearing until September 7 and extend the TRO until the Court ruled on the preliminary injunction motion. Ultimately, the Court held the hearing on September 6. DISCUSSION

  I. Preliminary Injunction Standard

  The traditional criteria for granting preliminary relief are: 1) a likelihood of success on the merits, 2) the possibility of irreparable injury, 3) a balance of hardships favoring the plaintiff, and 4) that the preliminary relief be in the public interest. Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999). This test has evolved into the modern standard that the plaintiff must "demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor." First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987). While this test is phrased in the disjunctive, many courts view it as essentially a single test. Viewed as a single test, the greater the showing of likely success the lighter the burden in terms of the relative hardship, and vice versa. See Regents of Univ. of Calif. v. ABC, Inc., 747 F.2d 511, 515 (9th Cir. 1984).

  II. Likelihood of Success On the Merits

  Plaintiffs' central contention is that new information that has become available since the 1999 EA was prepared substantially alters the analysis performed at that time, therefore requiring further environmental review. They cite newly available academic studies of the fisher and three new commercial logging projects in the vicinity of the Saddle project area. According to plaintiffs, this new ...

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