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Klamath-Siskiyou Wildlands Center v. Heywood

September 24, 2009



This matter comes before the Court on Plaintiff KlamathSiskiyou Wildlands Center, Environmental Protection Information Center, and Klamath Forest Alliance's (collectively "Plaintiffs") motion for preliminary injunction. Pls' Mot. for PI, Doc. # 23 ("Pls' Mot."). Defendants J. Sharon Heywood, the Shasta-Trinity National Forest Supervisor, and the United States Forest Service ("FS" or "Forest Service") (collectively "Defendants") oppose the motion. Defs' Opp., Doc. # 39. A hearing was held on this matter in this Court on September 16, 2009. Having considered the parties' submissions and arguments, and for the reasons set forth below, Plaintiffs' motion is DENIED.


In June of 2008 a lightening storm sparked fires across northern California, including the Shasta-Trinity National Forest. Administrative Record ("AR") 2b, p.1. On the South Fork Management Unit of the forest more than 70 fires developed from this storm, two of which were wildfires in the Trough Creek watershed. Id. These two fires burned approximately 3,630 acres of forested lands. Id. Immediately following the fires, Forest Service resource specialists began evaluating conditions in the project area. Id. FS experts evaluated, inventoried, surveyed, mapped, and analyzed post-fire conditions in the Trough Project ("Project") area, and provided recommendations for developing the proposed action. Id. After engaging in a public process, the Forest Service issued a final Decision Memorandum ("DM") for the Project on August 10, 2009. The Project involves salvage harvest of dead and dying trees on approximately 200 acres that experienced moderate and high severity fire, reforestation in those areas, construction of 0.4 mile of temporary road, and removal of hazard trees, under the authority of the categorical exclusion for salvage harvest, 36 C.F.R. § 220.6(e)(13). The Chief of the Forest Service made an Emergency Situation Determination (ESD) for the Project, and noted that delaying harvest of the Project until after the 2009 operating season could cause the burned timber to lose an estimated $98,000 in value. Defs' Opp. at 1. The actual value of the awarded contract is $63,100. Id.

Plaintiffs allege that the decisions to authorize the Project and issue an ESD violate the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et. seq., the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604 et seq., and the Appeals Reform Act ("ARA"), 16 U.S.C. § 1612. In the instant motion, Plaintiffs seek a preliminary injunction halting the Forest Service's implantation of the Trough Project on the Shasta-Trinity National Forest. Pl's Mot., Doc. # 23.


A. Legal Standard

To obtain a preliminary injunction, a plaintiff must demonstrate four elements: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of an injunction, (3) that the balance of equities tips in their favor, and (4) that the injunction is in the public interest. Winter v. NRDC, 129 S.Ct. 365, 374 (2008).

B. Scope of Review

The Administrative Procedure Act ("APA") provides the authority for the Court's review of decisions under NEPA and NFMA. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). Under the APA, an agency decision will be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(s)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir. 2005). "Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency." Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006). Rather, the Court "will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, has entirely failed to consider an important aspect of the problem, or offered an explanation 'that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Id.

C. Governing Provisions

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans, like the Trough Project challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537 F.3d at 989.

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., contains additional requirements. NEPA is a procedural statute that does not "mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002) (internal quotation marks omitted). To carry out the "hard look" requirement, NEPA requires all federal agencies to prepare a detailed Environmental Impact Statement ("EIS") for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Under Council of Environmental Quality ("CEQ") implementing regulations, an agency as a preliminary step may prepare an Environmental Assessment ("EA") to determine whether the environmental impact of the proposed action is significant enough to warrant an EIS. See 40 C.F.R. § 1508.9; Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001). If an EA establishes that the agency's action "may have a significant effect upon the... environment, an EIS must be prepared." Id. (internal quotation marks omitted) (alteration in original) (emphasis in original).

However, an agency does not have to prepare an EIS or an EA if the action to be taken falls under a categorical exclusion ("CE"). See Sierra Club v. Bosworth, 510 F.3d 1016, 1019 (9th Cir. 2007) (citing 40 C.F.R. § 1508.4). Pursuant to CEQ regulations, "each agency is required to identify categories of actions which do not individually or cumulatively have a significant effect on the human environment." Id. (citing 40 C.F.R. §§ 1507.3(b)(2)(ii), 1508.4). The CE procedures developed by agencies "shall provide for extraordinary circumstances in which a ...

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