The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On May 4, 2009, a hearing was held on cross-motions for summary judgment at which Plaintiffs argued "there is a likelihood" they will suffer irreparable harm if Defendant's planned forest thinning project in the Shasta-Trinity National Forest is not enjoined by a preliminary injunction. Plaintiffs argue this project violates the National Environmental Policy Act ("NEPA") because Defendant failed to disclose in an Environmental Assessment ("EA") the environmental impacts of the project; and that these impacts required Defendant to prepare an Environmental Impact Statement ("EIS"). Plaintiffs also seek summary judgment on their claims that Defendant violated the National Forest Management Act ("NFMA") by failing to monitor for certain species in the project area under the Land and Resource Management Plan ("LRMP") and by only analyzing generalized habitat "assemblages" instead of providing monitoring information and analysis on relevant management indicator species ("MIS").
Defendant seeks summary judgment on all of Plaintiffs' claims.
I. Facts and Prior Proceedings
The project is located on the Yolla Bolla District, South Fork Management Unit, in the Shasta-Trinity National Forest. The project is to "thin from below approximately 930 acres of overcrowded forest through timber harvest with associated fuels hazard reduction activities." (AR 142) Defendant states: "The project is needed to develop and maintain vigorous and healthy mixed conifer stands that will be resilient to natural disturbances, the most influential of which is wildfire." (AR 157) The project area includes habitat suitable for nesting/roosting and foraging by the Northern Spotted Owl, which is listed as threatened under the Endangered Species Act.
During the May 4 hearing, Plaintiffs argued they are entitled to have a preliminary injunction issued immediately because they expect to suffer irreparable harm of "loss of the fisher habitat, [and] the loss of canopy closure in particular . . ." should the logging begin in May 2009. (Rep.'s Tr. ("RT") at 5:21-24)
Defendant countered its best estimate of the project commencement date is that trucks would not be able to access the project area until the beginning of June. (RT at 41, 42) Further Defendant offered to provide Plaintiffs at least one week notice prior to beginning any work.
This is the second time Defendant's forest-thinning project has been before this Court. The Ninth Circuit reversed the district court decision in the first case holding that the EA did not analyze an adequate range of alternatives and that Defendant "violated NFMA by failing to sufficiently analyze by proxy whether a diverse population of wildlife . . . that includes the Pacific fisher, will remain in the planning area after implementation [of the] forest-thinning project."
Therefore, the district court's decision was reversed and the case remanded "with instructions to enter summary judgment in favor of [the suing Defendant in the first case]." Further, the district court was instructed "to enjoin the project until [Defendant] . . . completed a new environment assessment consistent with [the Ninth Circuit's] disposition."
The parties reference the first case as East Fork I Project, and the case sub judice as East Fork II Project. Defendant did another EA for the East Fork II Project, which includes an expanded range of considered alternatives and additional information supporting its habitat analysis. At issue is the sufficiency of Defendant's analysis.
Agency decisions that allegedly violate NEPA and NFMA are reviewed under the Administrative Procedure Act ("APA") and may be set aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Although our review under this standard is deferential, the agency must nonetheless articulate a rational connection between the facts found and the conclusions made.
Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir. 2008)(quoting Natural Res. Council Fund v. Goodman, 505 F.3d 884, 888-89 (9th Cir. 2007)). "Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency." W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989)). "[A court] may reverse the agency's decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran ...