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Klamath-Siskiyou Wildlands Center v. Grantham

October 8, 2010

KLAMATH-SISKIYOU WILDLANDS CENTER, ENVIRONMENTAL PROTECTION INFORMATION CENTER, KLAMATH FOREST ALLIANCE, AND CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFFS,
v.
PATRICIA A. GRANTHAM, KLAMATH NATIONAL FOREST SUPERVISOR, AND UNITED STATES FOREST SERVICE, DEFENDANTS, AND SOUTH BAY TIMBER, LLC AND ROUGH AND READY TIMBER, LLC DEFENDANT INTERVENORS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs seek a preliminary injunction enjoining implementation of the United States Forest Service ("Forest Service")'s Panther Fire Salvage and Reforestation Project (the "Project") in the Klamath National Forest, "excluding timber harvest units 205, 206, 207, and 208, pending a resolution of the merits of this case." (Pls.' Mot. for Prelim. Inj. 2:17-19.) Plaintiffs argue a preliminary injunction is required because "the Forest Service did not take the requisite 'hard look' at the foreseeable environmental consequences of logging the burned area . . . . Consequently, Defendants' decision to move ahead with the [Project] is arbitrary and capricious, and should be enjoined until the agency prepares an adequate environmental analysis." (Pls.' Mem. in Supp. of Mot. for Prelim. Inj. ("Mot.") 1:6-11.) Defendants oppose the motion. Argument on the motion was heard on September 27, 2010.

I. LEGAL STANDARD

A. Preliminary Injunctions

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., --- U.S. ----, 129 S.Ct. 365, 376 (2008). Plaintiffs seeking a preliminary injunction must establish that "(1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter, 129 S.Ct. at 374).

Further, the Ninth Circuit's "'serious questions' approach survives Winter when applied as part of the four-element Winter test." Alliance for the Wild Rockies v. Cottrell, --- F.3d ----, 2010 WL 3665149, at *5 (9th Cir. 2010). "In other words, 'serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id.

B. Review of Federal Agency Decisions under the APA

Plaintiffs' motion is based on three claims: violation of the National Environmental Policy Act ("NEPA"); violation of the Appeals Reform Act ("ARA"); and violation of the National Forest Management Act ("NFMA"). These claims are reviewable on the administrative record under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706. The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc).

Under the APA, a reviewing court may set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Review under this standard is narrow, and the reviewing court may not substitute its judgment for that of the agency." Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1156 (9th Cir. 2006)(citation omitted). Rather, the reviewing court should reverse an agency decision as arbitrary and 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, 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." The Lands Council v. McNair, 537 F.3d at 987 (quotation and citation omitted). "This deference is highest when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise." League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, ---F.3d ----, 2010 WL 3194619, at *5 (9th Cir. 2010).

II. BACKGROUND

A. The Panther Fire

The Panther Fire was started by a lightning storm on July 22, 2008. (Administrative Record ("AR") 7 at 1; AR 19 at 3.) Despite suppression actions, the Panther Fire and other nearby fires consumed approximately 63,000 acres of the Klamath National Forest by the fall of 2008. Id. The Panther Fire made its final and most intense run on October 1, 2008, burning 13,000 acres before rain stopped its advance. Id. A combination of topography, fuel loading, and unfavorable weather caused intense fire activity, resulting in considerable tree mortality, particularly in and around the Project area. (AR 19 at 3-4, and Photo 1-1.) The intensity of the Panther Fire also reduced the conifer seed source needed to naturally reforest the landscape. Id. at 4. "[H]eavy fuel loadings and overhead snag hazards in stands and along roads in the project present unsafe conditions for the public and for forest workers." Id. "Roadside hazards in particular jeopardize safe ingress and egress in future wildfire events." Id.

B. The Project's Purpose and Scope

The Project is located within the Elk Creek watershed on the Happy Camp Ranger District of the Klamath National Forest. (AR 7 at 2.) The Project's stated purposes are to 1) facilitate conifer revegetation, 2) provide for public and forest worker safety, and 3) recover economic value from timber lost to the Panther Fire. (AR 7 at 1; AR 19 at 6-7.)

The Project involves the salvage harvest of dead and dying trees on approximately 214 acres of burned forest lands with treatment of small fuels left after harvest and reforestation with conifer seedlings, as well as the removal of "hazard" roadside dead and dying trees along approximately 12 miles of road encompassing 322 acres. (AR 7 at 1-3; AR 19 at 8-9, 21-23, 127.)

The salvaged timber will be predominantly logged by suspended cable methods to avoid disturbance of sensitive soils. (AR 19 at 8, 21.) No new access roads will be constructed except for "[a]pproximately 200 feet of temporary landing access road . . . , which would be decommissioned following completion of harvest activities." Id. at 21.

In addition, the Project will incorporate mitigation measures and utilize Best Management Practices to minimize any environmental impact from the logging contemplated by the Project, including retention of large snags to preserve habitat values. See AR 7 at 3; AR 19 at 28-43, and App. B. Further, the Project includes protective measures designed to minimize impacts to the Project acreage located in Riparian Reserves. (AR 19 at 8, 28-30.)

C. The Project's History

The Forest Service developed "the Panther Fire Salvage and Reforestation [Environmental Assessment] to incorporate both the salvage/reforestation activities and roadside hazard treatments previously analyzed [under two prior environmental assessments]." (AR 7 at 1.) "These activities were combined with additional fuels treatments to meet project purposes." Id.

The Forest Service announced the availability of the Project's Environmental Assessment on May 19, 2010, and accepted public comments until September 18th, 2010. (AR 17.) The Decision Notice and Finding of No Significant Impact was issued for the Project on August 23rd, 2010. (AR 7.)

The Forest Service requested an Emergency Situation Determination ("ESD") for the Project based upon an alleged "immediate threat to human health and safety posed by the rapidly deteriorating snags within stands and along Forest access roads in the project area" and "a substantial loss of economic value to the Federal Government" if the Project were stayed pending an administrative appeal. (AR 503 at 1, see also AR 502 and 504.) The Chief of the Forest Service found that the Project qualifies as an "emergency situation" under 36 C.F.R. § 215.2 and granted the ESD on August 23, 2010. (AR 501.) The ESD states a delay in implementing the Project until after any administrative appeal would likely result in a no-bid sale of the salvage timber due to the further deterioration of the wood, resulting in an estimated monetary loss of $565,000. Id. at 1. Without a commercial salvage, federal funding would be necessary to accomplish the Project's hazard tree removal and fuel treatment objectives. Id. at 1-2; see also AR 504 and 505.

III. DISCUSSION

A. Likelihood of Success on the Merits

1. NFMA Claim

Plaintiffs argue the Project violates the National Forest Management Act by proposing to conduct salvage logging within Riparian Reserves without first demonstrating that the harvesting is necessary to attain Aquatic Conservation Strategy ("ACS") Objectives, and "that future coarse woody debris needs are presently met." (Mot. 14:13-17.) Defendants counter the AR "amply supports" that the Project is designed to further ACS objectives. (Defs.' Mem. in Opp'n to Mot. for Injun. ("Opp'n") 10:26-27.)

The NFMA, 16 U.S.C. § 1600 et seq., governs the Forest Service's management of National Forests. NFMA and its implementing regulations provide for forest planning and management at two levels: the forest level and the individual project level. See generally 16 U.S.C. § 1604; see also Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 729-30 (1998).

At the forest level, the Forest Service develops a Land and Resource Management Plan ("LRMP" or "Forest Plan"), which is a broad, long-term planning document for the entire forest. "These plans operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses . . . but do not directly compel specific actions." Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 966 (9th Cir. 2003).

At the project level, site-specific projects are to be consistent with the governing LRMP. Id.; see also Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996); see generally 16 U.S.C. § 1604(I). Once the Forest Plan is approved, the Forest Service implements the Plan by approving or denying site-specific actions. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1092 (9th Cir. 2003).

The Klamath National Forest Land and Resource Management Plan is the governing Forest Plan for Klamath National Forest. (AR 518.) That plan also incorporates direction from the Northwest Forest Plan ("NWFP"), which was adopted in 1994 to provide a regional strategy for managing the National Forests of Northern California, Oregon, and Washington. Id. at 1-1.

The NWFP established a system of land "allocations," which govern the activities that may or may not be conducted in each allocation. (AR 529 at A-4, A-5.) One of those allocations, "Riparian Reserves," designates areas "along streams, wetlands, ponds, lakes and unstable or potentially unstable areas where the conservation of aquatic and riparian-dependent terrestrial resources receives primary emphasis." (AR 528 at 7.)

"Recognizing that riparian terrain 'offer[s] core areas of high quality stream habitat,' and that watersheds 'are crucial to at-risk fish species . . . and provide high quality water,' the [NWFP] 'prohibit[s] or regulate[s] activities in Riparian Reserves that retard or prevent attainment of the Aquatic Conservation Strategy objectives.'" Oregon Natural Resources Council Fund v. Goodman, 505 F.3d 884, 893-94 (9th Cir. 2007) (quoting Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1031-32 (9th Cir. 2001)). Accordingly, timber harvest is prohibited within Riparian Reserves under the NWFP except as follows:

a) "Where catastrophic events such as fire . . . result in degraded riparian conditions," salvage and fuelwood cutting is permitted if "required to attain Aquatic Conservation Strategy objectives."

b) Trees may be salvaged "only when watershed analysis determines that present and future coarse woody debris needs are met and other ACS objectives are not adversely affected."

c) Silvicultural practices may be applied to "control stocking, re-establish and manage stands, and acquire desired vegetation characteristics needed to attain ACS objectives." (AR 529, at C-31-C-32.)

The NWFP sets forth nine ACS objectives, which include:

3. Maintain and restore the physical integrity of the aquatic system, including shorelines, banks, and bottom configurations.

4. Maintain and restore water quality necessary to support healthy riparian, aquatic, and wetland ecosystems . . . .

5. Maintain and restore the sediment regime under which aquatic ecosystems evolved . . . .

(AR 529 at B-11.)

Discussion of Plaintiffs' arguments supporting their NFMA claim follows.

a) Widths of Riparian Reserves

Plaintiffs argue the Forest Service has improperly altered the widths of Riparian Reserves within the Project area contrary to the NWFP and the Elk Creek Ecosystem Analysis. (Mot. 10:23-11:9.) Defendants counter "the Forest Service has not proposed any modification of Riparian Reserve widths. ...


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