The opinion of the court was delivered by: CHARLES BREYER, District Judge
Now before the Court is a motion for preliminary injunction
filed by several environmental groups asking the Court to
temporarily halt the execution of a logging contract in the
southern Sierra Nevada Mountains. On September 9, 2005, the Court
issued a preliminary injunction temporarily stopping a different
yet similar logging project because of uncertainty about its
potential impact on the habitat of the Pacific fisher, a
mink-like animal that may be facing extirpation in that area.
See Sierra Club v. Bosworth, 2005 WL 2204986 (N.D. Cal. Sep
09, 2005) (NO. C 05-00397 CRB) ("Saddle Order"). The Court now
addresses the application of the same concerns expressed in the
Saddle Order to a different contract in the same region. After
carefully considering the record in this matter, and with the
benefit of an extended hearing which included live testimony, the
Court hereby GRANTS the motion for a preliminary injunction. PROCEDURAL HISTORY
Plaintiffs, a consortium of environmental groups, file this
motion for a preliminary injunction of the Ice Timber Sale ("Ice
Project") and request the Court to suspend defendant-intervenor
Sierra Forest Project's logging operations related to this
project until the merits of the case can be decided. The Ice
Project, which covers 1,160 acres within and around the Giant
Sequoia National Monument, includes units subject to
environmental reviews in both the Revised Ice Timber Sale and
Fuels Reduction Project Environmental Assessment ("Ice EA") and
the Revised White River Environmental Assessment ("White River
EA"). The Ice EA was released on September 11, 1998 and a
decision notice and finding of no significant impact ("Ice
DN/FONSI") was completed on December 11, 1998. Def. Opp. at 7.
The White River EA was published in July 1997 and was authorized
by the November 14, 1997 decision notice and finding of no
significant impact ("White River DN/FONSI"). Id. Both DN/FONSIs
incorporated the findings of separate Biological Evaluations
("BEs") on sensitive species in the region, including the fisher.
The original EAs for all projects (Ice, White River and Saddle)
generally rely on the same information, most important of which
is the 1993 California Spotted Owl Interim Guidelines ("CASPO"),
which were implemented to preserve the habitat of the spotted owl
and are thought to apply to the fisher, as well. Among other
things, the original environmental analyses concluded that the
relevant logging projects "may affect individual[s]" fisher, but
are not likely to "result in a trend toward federal listing or
loss of viability" of the Pacific fisher. See Ice EA at *59.
The Forest Service concluded that an Environmental Impact
Statement ("EIS") was not necessary because the impact of the Ice
Project on "plant and animal habitat" would be "beneficial, but
not significant." Def. Opp at 1.
On November 15, 1999, the Ice contract was awarded to
intervenor. In 2001 and 2004, amendments to the Sierra Nevada
Forest Plan ("SNFPAs") were passed. A review of the consistency
of the 2001 SNFPA with the Ice Project was released on June 14,
2001 and found that the CASPO Interim Guidelines were not called
into question by the 2001 SNFPA. There was no review of the 2004 SNFPA until a Supplemental
Information Report dated August 29, 2005 ("August 29 SIR").
Although the Ice Project contract was initially slated to be
completed by March 31, 2004, its termination date was extended
twice by statute because of the low price of timber and then two
more times for other reasons. On August 31, 2005, intervenor
moved its equipment from the Saddle Project to the Ice Project
and commenced logging. On September 9, the Court issued a
preliminary injunction suspending the Saddle Fuels Reduction
Project ("Saddle Project") because the United States Forest
Service ("Forest Service" or "Service") had failed to conduct a
`hard look' at the environmental impact of a project as required
by the National Environmental Policy Act ("NEPA") when
significant new information emerges. There, the Court determined
that serious questions remained as to whether the Forest Service
properly performed the requisite environmental analysis of new
information regarding the project's effect on the Pacific fisher,
and that balancing the potential for serious environmental harms
with the financial harm from delay tipped in favor of plaintiffs.
On October 18, 2005, plaintiffs filed this motion to
preliminarily enjoin the Ice Project. Then, "in light of the
Court's ruling on September 9, 2005," defendants submitted more
thorough SIRs dated October 26, 2005, the same day they submitted
their Opposition. The October SIRs purport to satisfy the Forest
Service's obligation under NEPA to conduct a proper `hard look'
at the Ice Project's environmental impact on the Pacific fisher.
On November 4, the Court heard extensive oral argument from all
Plaintiffs contend that the new information that has emerged on
the fisher since the contracts were awarded in 1999 is
`significant' such that it triggers a requirement to conduct a
NEPA-authorized supplemental review. Pl. Reply at *3. Plaintiffs
assert that, like the Saddle Project, defendants 1) have failed
to take a `hard look' at new information in order to reassess its
previous conclusions that the Project would have "no significant
impact" on the fisher, and 2) have failed to assess the
cumulative effects of all of the logging projects in the region:
the Saddle, Ice, White River and Frog projects. Pl. Mot. at *3.
Moreover, plaintiffs argue that the October SIRs are "facially deficient" because they
are akin to litigation affidavits. Pl. Reply at *3. In addition,
plaintiffs contend that the SIRs are further deficient because
the habitat analysis conflicts with that of the original NEPA
documents without explanation, and the cumulative effects
analysis fails to adequately explain how the impacts are
insignificant. Id. at *6-8. Finally, plaintiffs argue that the
balance of hardships tips in their favor because environmental
injury cannot be repaired in the same manner that economic injury
can. Id. at *8-10.
Defendants counter that the new information is not significant
and that the October SIRs adequately conducted a `hard look.' The
SIRs conclude that, like the original FONSI, additional NEPA
review is not necessary because a reduction in the threat of
wildfire results will yield an insignificant yet beneficial
impact on the fisher. Def. Opp. at *2. They also argue that the
importance of the project is underscored by the proximity of the
logging areas to residential communities and the added importance
of avoiding wildfires (as distinguished from the Saddle Project,
which was not located as close to residential areas). Id.
Finally, defendants argue that the October 26 SIRs properly
evaluate the cumulative effects of all the logging projects on
the Southern Sierra fisher sub-population and determined that the
analysis of the new information is consistent with the original
In addition, defendant-intervenor argues that the Ice Project
is distinct from the Saddle Project in important ways not
mentioned in defendants' brief. First, the Project has already
been awarded. This, in comparison to projects that have merely
been proposed, prompts a different, more stringent standard in
evaluating whether a preliminary injunction is appropriate
because it alters the hardship analysis. Intv. Opp. at *6.
Second, the project is an integral part to a larger fuels
reduction initiative in the region, which has already started.
Id. at *4-5. As a result, intervenor argues that it is in the
public interest to reduce the threat of catastrophic wildfire.
Id. Third, intervenor and its employees will suffer
considerable financial harm if the injunction is granted. Id.
at *5-6. Finally, intervenors argue that, unlike the Saddle
Project which had no record of the size of trees to be removed,
the Ice Project maintains such a record because it has already
commenced. This record reveals that less than 1 percent of 9,000 logs are greater than 22 inches in diameter.
Id. at *3. Since fishers' preferred habitat consists of larger
trees, intervenor argues, the effect on the fisher will be
I. Preliminary Injunction
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. See 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).
The National Environmental Policy Act of 1969 ("NEPA") is a
procedural statute designed to ensure that federal agencies
taking major actions affecting the quality of the human
environment "will not act on incomplete information, only to
regret its decision after it is too late." Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371 (1989). A federal
agency has a continuing duty to gather and evaluate new
information relevant to the environmental impact of its actions
and then "make a reasoned determination whether it is of such
significance as to require implementation of formal NEPA filing
procedures." Warm Springs Dam Task Force v. Gribble,
621 F.2d 1017, 1023, 1024 (9th Cir. 1980). The Ninth Circuit has held that
an Environmental Impact Statement ("EIS") "must be prepared if
substantial questions are raised as to whether a project . . .
may cause significant degradation of some environmental factor." Idaho Sporting Congress v.
Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (citations omitted)
(emphasis in original). Yet a plaintiff need not show that
"significant effects will in fact occur;" rather, merely
raising "substantial questions whether a project may have a
significant effect is sufficient." Id. at 1150 (emphasis
added). The inquiry whether to conduct a supplemental NEPA
analysis and an initial analysis is the same: "If there remains
major federal action to occur, and if the new information is
sufficient to show that the remaining action will `affect the
quality of the human environment' in a significant manner or to a
significant extent not already considered, a supplemental EIS [or
EA] must be prepared." Friends of the Clearwater v. Dombeck,
222 F.3d 552, 558-558 (9th Cir. 2000) (citing Marsh,
490 U.S. at 374).*fn1 A proper evaluation under NEPA must also include
an analysis of the cumulative effects of the individual project
and others like it. See Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (holding that a
determination whether a project has a `significant' impact on the
environment must consider "[w]hether the action is related to
other actions with individually insignificant but cumulatively
significant impacts") (quoting 40 C.F.R. § 1508.27(b)(7))).
The Court must determine whether the Forest Service adequately
satisfied its duty under NEPA; it must not substitute its own
judgment for that of the agency. See Friend of the
Clearwater, 222 F.3d at 556. The Court may conclude that a
proper `hard look' was not conducted only if the agency's
analysis is "arbitrary and capricious or contrary to the
procedures required by law." Inland Empire Public Lands Council
v. United States Forest Service, 88 F.3d 754, 763 (9th Cir.
1996). This amounts to a two-part inquiry: First, a challenge to
the facial adequacy of a NEPA review requires a court to employ a
`rule of reason' to determine whether the review contains a
"reasonably thorough discussion of the significant aspects of
probable environmental consequences." Neighbors of Cuddy
Mountain. v. United States Forest Service, 137 F.3d 1372, 1376
(9th Cir. 1998) (citations omitted); see also Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th
Cir. 1988) (holding that "agency action taken without observance
of the procedure required by law will be set aside").
Second, if the environmental review satisfies the initial
facial challenge, the reviewing court must determine whether the
analysis therein satisfies the proper standard under NEPA. The
Ninth Circuit has held that analyses of primarily legal questions
such as the legal meaning of `significance' are governed by a
standard of `reasonableness.' See Northcoast Envtl. Ctr. v.
Glickman, 136 F.3d 660, 667 (9th Cir. 1998) (holding that "the
less deferential standard of `reasonableness' applies to
threshold agency decisions that certain activities are not
subject to NEPA's procedures"). A review of factual disputes,
however, requires the application of the `arbitrary and
capricious' standard. Id. (citing Greenpeace Action v.
Franklin, 14 F.3d 1324, 1331 (9th Cir. 1992). In ...