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CLUB v. BOSWORTH

November 14, 2005.

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



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

MEMORANDUM AND ORDER

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 parties.

  BACKGROUND

  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 analysis.

  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 minimal.

  STANDARD OF REVIEW

  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).

  II. NEPA

  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 ...


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