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Earth Island Institute v. Carlton

August 20, 2009

EARTH ISLAND INSTITUTE, A NON-PROFIT ORGANIZATION, PLAINTIFF,
v.
ALICE B. CARLTON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR PLUMAS NATIONAL FOREST, RANDY MOORE, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER FOR REGION 5 OF THE UNITED STATES FOREST SERVICE, AND THE UNITED STATES FOREST SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on plaintiff Earth Island Institute's ("plaintiff" or "EII"), a non-profit organization, motion for a preliminary injunction, enjoining the United States Forest Service ("FS") from implementing any and all aspects of the Moonlight-Wheeler Fire Recovery and Restoration Project ("Moonlight-Wheeler Project" or the "Project"), including the felling, removal and/or selling of any trees.*fn1 The Project would log dead mature and old growth trees on 14,755 acres of forest and live mature and old growth trees along 123 miles of roads affected by the 2007 Moonlight fires on the Plumas National Forest ("PNF"). Plaintiff asserts that much of the logging would involve clearcutting in what ecologists consider to be one of the most important and endangered forest habitat types, burned forest ecosystems, which are rare due to decades of fire suppression and post-fire salvage logging on private and public lands.

More specifically, plaintiff contends that the Moonlight-Wheeler Project would destroy thousands of acres of heavily burned "snag forest habitat" upon which the imperiled Black-backed Woodpecker ("BBWO") depends for survival and would threaten this rare bird with extinction in the Sierra Nevada. In addition, plaintiff contends the Project would also remove thousands of live mature and old growth trees under the ruse of public health and safety; species such as the California Spotted Owl ("CSO") would be adversely affected not only by the removal of green forest habitat and individual large dead trees ("snags") that would otherwise be used as potential nesting, perching and roosting sites, but also by the removal of heavily burned forest habitat, which provides for abundant prey to the owl and increases its ability to survive and produce offspring. Finally, plaintiff maintains that ground-based tractor logging on recovering but fragile post-fire soils would cause extreme soil damage, erosion, and watershed effects. Plaintiff contends that absent this court's order enjoining defendants'*fn2 proposed logging, this significant irreparable harm will occur without the proper observance of law, pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., the National Forest Management Act ("NFMA"), 15 U.S.C. § 1601 et seq., and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 730(a).

Defendants argue, to the contrary, that they have complied with all relevant laws, and that the Project responds to the catastrophic conditions caused by the Moonlight and Wheeler fires by removing hazardous trees from roadways and facilities, recovering the value of fire-killed trees in high severity burn areas, and planting native conifer seedlings to reestablish forested conditions in areas under threat of being dominated by shrubs. Defendants assert that the balance of hardships tips in their favor and that an injunction is not in the public interest because with each passing day, the risk that someone will be killed or seriously injured by a falling hazardous tree increases due to advancing deterioration, and compounding the urgency caused by the increasing safety risk is the declining economic value of the trees. Also, defendants argue an injunction would harm, not advance, the struggling local economy as well as delay the benefits of the planned reforestation efforts which includes planting native conifer seedlings to expedite forest regeneration, recover forested conditions and prevent domination of shrub species.

The court heard oral argument on the motion on August 7, 2009.*fn3 By this order, it now renders its decision on the motion, denying plaintiff's motion for a preliminary injunction. For the reasons set forth below, the court finds that plaintiff has not shown a likelihood of success on the merits of its claims against defendants pursuant to NEPA, NFMA or the MBTA or a likelihood of irreparable harm nor that the balance of equities tip in its favor or that the public interest is best served by enjoining the Project.

BACKGROUND

The Moonlight and Wheeler fires burned through portions of the Plumas and Lassen National Forests in the summer of 2007, creating a contiguous fire area of approximately 88,000 acres that burned at varying levels of fire intensity. The Wheeler fire was started by lightning. The Moonlight fire started on private lands during a logging operation and burned onto the adjacent PNF. In total, of the acres burned by the Moonlight and Wheeler fires, approximately 78% was on the PNF and 22% was on private land. The fires burned approximately 41,000 acres of National Forest land with high severity such that "it resulted in a deforested condition characterized by relatively large areas of standing dead trees," "where seed source of desired species is insufficient to naturally regenerate these areas." (Thrower Decl., filed July 31, 2009, Ex. 1 at 3.)

In response to this alteration of the forest resource conditions, the FS recognized the need to undertake a combination of management activities, including both restoration and timber harvest. The Forest Service therefore proposed the Moonlight-Wheeler Project to address several purposes: (1) to "remove hazardous trees with structural defects" that pose a safety risk to the public and FS employees along a 123-mile stretch of National Forest road; (2) to "recover the value of fire-killed trees before natural deterioration occurs . . . and provid[e] a wood supply for . . . sustaining a part of the employment base in rural communities;" and (3) to plant native conifer seedlings to expedite forest regeneration, recover forested conditions and prevent domination of shrub species. (Id. at Ex. 1 at 2-3, 15.)

Ultimately, the Moonlight-Wheeler Project would log 14,755 acres of forest that burned at high intensity. Most of the area burned on private lands has already been logged (over 11,000 acres since 2007). (Voss Decl., filed July 24, 2009, Ex. B [RFEIS, Appx. B at B-6, Table B-2].)

Previously, in June of 2008, EII filed an administrative appeal of the related "Moonlight Roadside Logging Project" decision. On August 14, 2008, the FS's Regional Office affirmed the PNF Supervisor's decision on that project. On August 20, 2008, EII brought a challenge in this court to the Moonlight Roadside Logging Project and on September 2, 2008 moved for a preliminary injunction. On October 31, 2008, the parties entered into a stipulation, in which the FS agreed to evaluate the Moonlight Roadside Logging Project in a Revised Draft Environmental Impact Statement ("RDEIS") for the larger Moonlight-Wheeler Project.

On April 6, 2009, plaintiff submitted extensive timely comments on the Moonlight-Wheeler RDEIS, including comments from scientists and complete copies of scientific literature for the FS to review. On June 16, 2009, the FS issued its Revised Final EIS ("RFEIS"). The RFEIS considers five alternatives in detail: the no-action alternative (Alternative B); three action alternatives (Alternatives A, C, D) involving a combination of timber harvest, hazard tree removal, and restoration activities; and a fifth action alternative (Alternative E) consisting of hazard tree removal and restoration activities only. (Thrower, Ex. 1 at 11-26.) Six other alternatives were considered, including one proposed by plaintiff but it was eliminated from detailed study for various reasons. (Id. at 27-33.)

On June 29, 2009, the outgoing Chief of the FS authorized an Emergency Situation Determination ("ESD"), which allows the FS to implement the Moonlight-Wheeler Project as soon as the Record of Decision ("ROD") is signed. The FS Chief found that an ESD was appropriate given the "threats to public and employee safety" and that any delay in implementation of the Project would "result in substantial loss of economic value." (Id. at Ex. 2.) Additionally, the Chief found that delay "would jeopardize other restoration and recovery objectives including fuel reduction, erosion control, and reforestation." (Id.)

On July 20, 2009, the FS signed the ROD for the Moonlight-Wheeler Project, adopting Alternative A for implementation. (Voss Decl., Ex. A.) The ROD identified Alternative A as the alternative that "best meets the needs identified for this project" and as "consistent with the goals and objectives of the [Plumas National Forest Land and Resource Management Plan ("PNF LRMP")]." (Id. at Ex. A at 4.) The selected alternative authorizes timber harvest of fire-killed trees on approximately 10,366 total acres of the 41,290 acres of high vegetation burn severity areas using ground based, skyline, and helicopter harvest methods. (Id.) In addition, harvest of fire-killed or dying (fire-injured) conifer hazard trees is authorized on 4,389 acres along 123 miles of road. (Id.) Reforestation authorized by the decision includes 16,006 acres of conifer seedlings. (Id.) The decision also authorizes the construction of up to 19 miles of temporary road and 14 helicopter landings (30 acres), which will be decommissioned after use.

On July 21, 2009, plaintiff filed this case, asserting claims for relief pursuant to NEPA, NFMA and the MBTA. More specifically, plaintiff alleges the following nine claims for relief: (1) Violation of NFMA for the Failure to Comply with the Plumas Forest Plan Guidelines for Hazard Tree Removal; (2) Violation of NFMA for the Failure to Conduct Monitoring and Ensure the Viability of the BBWO; (3) Violation of NFMA for the Failure to Comply with the Forest Plan's Population Monitoring Requirements for Species at Risk ("SAR"); (4) Violation of NFMA for the Failure to Ensure that the Logging will not Result in Irreversible Damage to Soils and Watersheds; (5) Violation of NEPA for the Failure to Ensure Scientific Accuracy and Integrity and Disclose Methodology in an EIS; (6) Violation of NEPA for the Failure to Meaningfully Respond to Dissenting Scientific Opinion; (7) Violation of NEPA for the Failure to Consider, Explore and Objectively Evaluate a Reasonable Range of Alternatives; (8) Violation of NEPA for the Failure to Take a Hard Look at Impacts of the Project; and (9) Violation of the MBTA for the Failure to Prevent the Direct Killing of Birds from Authorized Logging Activities. (Docket #1.)

As of July 30, 2009, the FS has awarded two timber sale contracts on the Project and continues to evaluate bids. The FS expects to award three additional contracts.*fn4 (Carlton Decl., filed July 31, 2009, ¶ 29.)

By the instant motion for preliminary injunction, plaintiff seeks an order enjoining the FS from implementing any and all aspects of the Moonlight-Wheeler Project, including the felling, removal and/or selling of any trees. In so moving, plaintiff concedes that defendants may fell and leave trees or remove naturally fallen trees to the side of the roadway under emergency circumstances pursuant to 36 C.F.R. § 220.4(b)(1). Plaintiff asks, however, that the court order that defendants shall not remove or sell trees from the Project area felled under this exception.

STANDARD

A. Preliminary Injunction Standard

In Winter v. NRDC, 129 S.Ct. 365, 374-75 (2008), the United States Supreme Court clarified the standard for granting a preliminary injunction: A plaintiff seeking a preliminary injunction must establish that: (1) it is likely to succeed on the merits of its claims; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. The Court made clear that even where a plaintiff has shown a strong likelihood of success on the merits of its claims, the plaintiff still must show a likelihood of irreparable harm--the mere possibility of irreparable harm is insufficient. Id. at 375-76 (holding that "[i]ssuance of a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Court's] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief").

The Ninth Circuit applied the Winter test in Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), emphasizing that "to the extent our cases have suggested a lesser standard, they are no longer controlling, or even viable." (Emphasis added.) Despite this express direction, plaintiff argues here that, in the alternative, it is entitled to preliminary injunctive relief upon a showing of a likelihood of irreparable injury and simply serious questions going to the merits of the case; plaintiff relies on a district court opinion, Save Strawberry Canyon v. Dept. of Energy, 613 F. Supp. 2d 1177 (N.D. Cal. 2009), decided before Am. Trucking, and an unpublished Ninth Circuit decision, Greater Yellowstone Coalition v. Timchak, No. 08-36018, 2009 WL 971474 (9th Cir. April 10, 2009), decided three weeks after Am. Trucking. In both of these cases, the courts cited Winter's four element test but held that preliminary injunctive relief could be granted based on the Ninth Circuit's alternative "sliding-scale" test; thereunder, the Ninth Circuit had recognized, pre-Winter, that "a preliminary injunction may be granted where the plaintiff 'demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Greater Yellowstone, 2009 WL 971474, *1 (citing Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005)) (emphasis in original).

Save Strawberry is clearly inapposite as it was decided before Am. Trucking. And, while Greater Yellowstone does support plaintiff's argument, it is of limited precedential value as an unpublished case, and this court finds it otherwise unpersuasive in light of Am. Trucking's clear holding, which the court in Greater Yellowstone failed to acknowledge. Not only does the court in Greater Yellowstone cite pre-Winter case law, Save Our Sonoran decided in 2005 for the applicable standards, it fails to cite Am. Trucking at all, despite the fact that it was the first Ninth Circuit case decided after Winter and was issued nearly a month before the decision in Greater Yellowstone. 2009 WL 971474, *1.

Am. Trucking expressly states that the Ninth Circuit's cases suggesting a lower standard than Winter are no longer viable, disapproving of Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) which had permitted something less than a showing of a likelihood of success on the merits. Am. Trucking, 559 F.3d at 1052 n. 10. Clearly, Greater Yellowstone appears to be a brief unpublished anomaly since the Ninth Circuit's most recently published cases ignore Greater Yellowstone and underscore the requirement of Winter's four prong test. Sierra Forest Legacy v. Rey, -- F.3d --, No. 07-12892, 2009 WL 2462216, *3, 5-6 (9th Cir. Aug. 13, 2009) (reversing district court's denial of motion for preliminary injunction and remanding for consideration of the non-merits factors in Winter, namely, likelihood of irreparable harm, the balance of equities and the public interest); see also Stormans, Inc. v. Selecky, 571 F.3d 960, 977-78 (9th Cir. 2009) (citing Winter's four prong test, without mentioning any alternative, sliding-scale test, or more specifically, the grant of injunctive relief based on a showing of serious questions going to the merits); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GMGH & Co., 571 F.3d 873, 877 (9th Cir. 2009) (accord).

Thus, this court finds that pursuant to Am. Trucking, plaintiff is entitled to preliminary injunctive relief only if it can demonstrate each of the four elements of the test as stated by the Court in Winter.

B. APA Review

Plaintiff brings the instant challenges under NEPA, NFMA and MBTA pursuant to the Administrative Procedures Act ("APA"). Thereunder, the court may set aside a final agency action only where the action is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law." 5 U.S.C. § 706. Review under the APA is "searching and careful." Ocean Advocates v. United States Army Corps of Eng'rs, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agency. Id. In short, the court must ensure that the agency has taken a hard look at the environmental consequences of its proposed action. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). As part of this inquiry, the court should ask "whether the [] decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Ocean Advocates, 361 F.3d at 1118. In addition, the court determines "whether the agency articulated a rational connection between the facts found and the choice made." Id. at 1118-19 (quoting Arizona Cattle Growers' Ass'n v. United States Fish and Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001)).

Recently, in The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008), the Ninth Circuit emphasized a court's proper role in reviewing agency action in an environmental case:*fn5 The court reaffirmed that the role of the court is necessarily at its most deferential when assessing the agency's consideration of technical matters. Id. at 993 (recognizing that the court is not to make "fine-grained judgments of [the science's] worth"). The court is to be "'most deferential'" when the agency is "'making predictions, within its [area of] special expertise, at the frontiers of science.'" Id. (citing Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003)). In that role, a reviewing court is not to entertain a "battle of the experts" when plaintiffs proffer expert testimony to set against the agency's professional judgment. Id. at 1000. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. Ultimately, the reviewing court must: look to the evidence the [FS] has provided to support its conclusions, along with other materials in the record, to ensure the [FS] has not, . . . relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [an explanation that] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id. at 993 (internal quotations omitted). As a "non-scientist," the court cannot impose bright-line rules on the FS regarding particular means that it must take in every case to show compliance with NEPA's and NFMA's requirements. Id. at 994-94. Rather, the "FS must support its conclusions that a project meets the [laws'] requirements . . . with studies that the agency, in its expertise, deems reliable. The [FS] must explain the conclusions it has drawn from its chosen methodology and the reasons it considers the underlying evidence to be reliable."

Id. at 994. The court may conclude that the FS acts arbitrarily and capriciously only when the record "plainly demonstrates that the [FS] made a clear error in judgment" in concluding that a project meets the requirements of NEPA and NFMA. Id.

ANALYSIS*fn6

A. Likelihood of Success on the Merits

1. NEPA & NFMA

NEPA mandates that federal agencies prepare a detailed Environmental Impact Statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). These statements must include a description and analysis of the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided if the action is implemented, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and any irreversible or irretrievable commitment of resources that would be involved if the action were to be implemented. Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1153 (9th Cir. 2006) ("Earth Island II"). "In short, NEPA requires that a federal agency 'consider every significant aspect of the environmental impact of a proposed action' and 'inform the public that it has indeed considered environmental concerns in its decisionmaking process.'" Id. (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002)).

NEPA does not contain substantive environmental standards but instead establishes procedural requirements to ensure that agencies take a hard look at the environmental impacts of their actions. Earth Island II, 442 F.3d at 1154. "A hard look includes 'considering all foreseeable direct and indirect impacts.'" Id. at 1159. A hard look also includes "a discussion of adverse impacts that does not improperly minimize negative side effects." Id. The FS, therefore, must "undertake a thorough environmental analysis before concluding that no significant environmental impact exists." Id. In reviewing the adequacy of an EIS, the Ninth Circuit applies the "rule of reason" standard, "which requires 'a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation.'" Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 960 (9th Cir. 2005).

Plaintiff makes two central arguments for why defendants violated NEPA in the preparation of the RFEIS: (1) the FS failed to ensure the scientific accuracy and integrity of the EIS and failed to disclose its methodology in the EIS and (2) the FS failed to meaningfully respond to dissenting scientific opinion in the EIS. Plaintiff makes the former argument with respect to the following: (a) the FS's alleged inaccurate application of the roadside hazard tree marking guidelines; (b) the FS's alleged misrepresentation of the science relating to the BBWO; (c) the FS's alleged misrepresentation of the science relating to the CSO; (d) the FS's alleged misrepresentation of the science regarding snag fall-rates; and (e) the FS's failure to divulge the methodology used to assess the amount of BBWO habitat necessary to maintain the viability of the species. Plaintiff makes the latter argument, regarding the FS's alleged disregard of dissenting scientific opinion, with respect to the following:

(a) the roadside hazard tree marking guidelines; (b) the impacts of logging on the post-fire soils; (c) the viability of the BBWO; and (d) the benefits of fire for CSOs.

Under NEPA, "[a]gencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement." 40 C.F.R. § 1502.24. In ensuring the scientific integrity of their discussion and analysis, agencies "shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised." 40 C.F.R. §§ 1502.9(b), 1502.24. While courts have strictly enforced NEPA's requirement to address contrary scientific opinion,*fn7 ultimately, agencies must be given wide discretion in assessing scientific evidence. Indeed, the Ninth Circuit has recognized:

[A]n agency's obligation to respond to public comment is limited. Not every comment need be published in the final EIS. Nor must an agency set forth at full length the views with which it disagrees. Moreover, an agency is under no obligation to conduct new studies in response to issues raised in the comments, nor is it duty-bound to resolve conflicts raised by opposing viewpoints. California v. Block, 690 F.2d 753, 772 (9th Cir. 1982) (citations omitted); Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1057 (9th Cir. 2007); 40 C.F.R. § 1503.4. At bottom, an agency fulfills its statutory duties when it "take[s] a hard look at the issues and responds to reasonable opposing viewpoints." Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th Cir. 2003) ("Earth Island I").

While NEPA imposes certain procedural requirements on defendants, NFMA imposes certain substantive requirements. NFMA mandates that the Secretary of Agriculture "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). The FS, which manages the System, develops land and resource management plans pursuant to NFMA, and uses these forest plans to "guide all natural resource management activities," including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1); 36 C.F.R. § 219.1(b). In developing forest plans, the FS must take both environmental and commercial goals into account. See e.g., 16 U.S.C. § 1604(g); 36 C.F.R. § 219.1(a). Forest planning occurs at two levels: forest and project. At the forest level, the FS develops a "Forest Plan," which is a broad, long-term programmatic planning document for an entire National Forest. Each Forest Plan includes goals and objectives for individual units of the forest and provides standards and guidelines for management of forest resources.

Consistent with its obligations under NFMA, in 1993, the FS adopted the PNF LRMP. In 2001, the FS approved the Sierra Nevada Forest Plan Amendment (the "2001 Framework"), which amended the LRMPs for all national forests in the Sierra Nevada, including the PNF LRMP. Then, in 2004, the FS supplemented the 2001 Framework, referred to as the "2004 Framework," which also amended the LRMPs for all Sierra Nevada national forests. Finally, in 2007, the FS amended the 2004 Framework with the Management Indicator Species ("MIS")*fn8 Amendment ("2007 MIS Amendment"). The Forest Plan and all amendments rely on the 1982 version of the 36 C.F.R. ยง 219 NFMA ...


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