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Los Padres Forestwatch, A Non-Profit Organization v. United States Forest Service

March 4, 2011

LOS PADRES FORESTWATCH, A NON-PROFIT ORGANIZATION,
PLAINTIFF,
v.
UNITED STATES FOREST SERVICE,
PEGGY HERNANDEZ, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR THE LOS PADRES NATIONAL FOREST,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

(re: docket #6)

This action centers on an American Recovery and Reinvestment Act ("ARRA")-funded project, involving the clearing of vegetation within ten feet of the road edge alongside 22 approximately 750 miles of Forest Service roads within the Los Padres National Forest (the "Project"). Plaintiff Los Padres Forestwatch ("Plaintiff") is a non-profit organization consisting of 24 25 an estimated 800 members, with the organizational goal of protecting threatened and endangered species, and protecting the environment of the Los Padres National Forest. Defendants are the U.S. Forest Service and Peggy Hernandez, the Forest Supervisor for the Los Padres National Forest.

that Defendants failed to comply with the procedural requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and that such failure threatens concrete 4 environmental harm to federally listed and sensitive plants, wildlife, and habitat. Defendants 5 6 oppose preliminary injunctive relief. The Court held a hearing on this matter on February 24, 2011. For the reasons described below, Plaintiff's motion for a preliminary injunction is

GRANTED. The scope and terms of the injunction are specified below.

the necessary process to ensure that federal agencies take a hard look at the environmental 16 consequences of their actions." See High Sierra Hikers Assoc. v. Blackwell, 390 F.3d 630, 639 (9th 17 Cir. 2004). NEPA requires a federal agency, such as the Forest Service, to prepare a detailed 18 environmental impact statement ("EIS") for "all major Federal actions significantly affecting the 19 quality of the human environment." See 42 U.S.C. § 4332(2)(C). "Major federal actions" have 20 been defined to include, among other things, "new or revised agency rules, regulations, plans, 21 22 policies or procedures, and legislative proposals." See 40 C.F.R. § 1508.18(a).

Regulations issued by the Council of Environmental Quality ("CEQ") provide certain factors that an agency should consider in determining whether an action will "significantly" affect 25 the environment. These include: (1) the degree to which the proposed action affects public health 26 or safety; (2) the degree to which the effects will be highly controversial; (3) whether the action 27 establishes a precedent for further action with significant effects; and (4) whether the action is

Presently before the Court is Plaintiff's motion for a preliminary injunction on the grounds

I.BACKGROUND

A.Regulatory Framework

1.National Environmental Protection Act (NEPA), 42 U.S.C. § 4231 et seq.

a.Environmental Impact Statements and Environmental Assessments NEPA is a procedural statute that does not "mandate particular results, but simply provides related to other action which has individually insignificant, but cumulatively significant impacts.

a preliminary step in determining whether the environmental impact of the proposed action is 5 6 significant enough to warrant an EIS. See 40 C.F.R. § 1508.9. An EA is a "concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact." See Blue Mountains Biodiversity Project v.

See 40 C.F.R. § 1508.27(b).

Prior to preparing an EIS, the agency may prepare an Environmental Assessment ("EA") as

Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998).

b. Categorical Exclusions

However, in some cases, neither an EA nor an EIS is required. The CEQ has promulgated NEPA regulations, which authorize an agency to use a Categorical Exclusion for a "category of 13 14 actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal 16 agency in implementation of these regulations." Id. (citing 40 C.F.R. § 1508.4). "Neither an EIS 17 nor an EA is required for actions categorically excluded from NEPA review." Id. (citing 40 C.F.R. 18 § 1507.3(b)(2)(ii); 23 C.F.R. § 771.117). Categorical Exclusions, however, are limited "to 19 situations where there is an insignificant or minor effect on the environment." See Alaska Ctr. for 20 the Env't v. United States Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999).

Even if a proposed action appears to fit the Categorical Exclusion invoked, an agency may not use a Categorical Exclusion when "extraordinary circumstances" exist. See California v. Norton, 311 F.3d 1162, 1168 (9th Cir. 2002). "Extraordinary circumstances" has been defined as 25 those "in which a normally excluded action may have a significant environmental effect." Id. In 26 cases where "extraordinary circumstances" exist, the proposed action requires preparation of an EA 27 or an EIS. Id. 28

use a "scoping process" to "determine the scope of the issues to be addressed and for identifying 4 the significant issues related to a proposed action." See Alaska Ctr., 189 F.3d at 859 (noting that 5 6 the Forest Service is required to conduct scoping for "all proposed actions, including those that would appear to be 'categorically excluded.'"). The CEQ regulations do not set forth a specific procedure for scoping, but instead leave most of the decisions regarding scoping to the relevant 9 federal agency. See Kootenai Tribe v. Veneman, 313 F.3d 1094, 1116-17 (9th Cir. 2002) (noting 10 that "the affirmative duties NEPA imposes on a government agency during the scoping period are scope of issues to be addressed and for identifying the significant issues related to a proposed action." See 40 C.F.R. § 1501.7. As part of the scoping process, the lead agency (here, the Forest 16 Indian tribe, the proponent of the action, and other interested persons (including those who might 18 not be in accord with the action on environmental grounds), unless there is a limited exception 19 under § 1507.3(c),"*fn1 in order to provide notice that the agency is beginning to consider the impacts 20 of the proposed action. Id. If the scoping process ultimately reveals the existence of simply invoke the Categorical Exclusion, and is required, at a minimum, to prepare an EA. See Alaska Ctr., 189 F.3d at 859. The arbitrary and capricious standard is applied "to an agency's 25 determination that a particular action falls within a categorical exclusion." See Bicycle Trails limited").

national defense and/or foreign policy. Those limited exceptions are not relevant here.

c. Scoping Process

In determining the propriety of the use of a Categorical Exclusion, the agency is required to

Under the CEQ regulations, "[t]here shall be an early and open process for determining the

Service) shall "[i]nvite the participation of affected Federal, State, and local agencies, any affected 17

"extraordinary circumstances having a significant effect on [the] environment," the agency may not

Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996).

listed as threatened or endangered under the Act. See Forest Guardians v. Johanns, 450 F.3d 455, 4 457(9th Cir. 2006). Section 7(a)(2), the substantive provision of the Act, requires federal agencies 5 6 to "insure that any action, authorized, funded, or carried out by [the] agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . ." See 16 U.S.C. § 1536(a)(2).9

consult with the appropriate wildlife agency on every action that "may affect" a threatened or

2.Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.

The ESA contains both substantive and procedural provisions designed to protect species Section 7(b) then sets forth the process of consultation. It requires that federal agencies endangered species. See 50 C.F.R. § 402.14(a). "May affect" has been interpreted broadly to mean that "any possible effect, whether beneficial, benign, adverse, or of an undetermined 13 14 character," triggers the consultation requirement. See 51 Fed. Reg. 19926, 19949 (June 3, 1986).

The ESA generally envisions a three-step consultation process. See Forest Guardians, 450 F.3d at 457. First, the agency contemplating action must request information from the appropriate federal 17 consulting agency, the Fish & Wildlife Service or the National Marine Fisheries Service, regarding 18 "whether any species which is listed or proposed to be listed may be present in the area of such 19 proposed action." Id. (citing 16 U.S.C. § 1536(c)(1)).

If so, and if the action constitutes a "major construction activity," then the agency is required to produce a "biological assessment" (or "BA") in accordance with ESA "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such 24 action." See 50 C.F.R. § 402.12. If the BA concludes that there are no listed species or critical 25 habitat present that are likely to be adversely affected, and the wildlife agency confers, then formal 26 consultation is not required. See 50 C.F.R. § 402.12(k)(1). However, if the BA concludes that 27 listed species are in fact likely to be adversely affected, the agency then must ordinarily enter into formal consultation with the wildlife service. See Forest Guardians, 450 F.3d at 457. Formal 2 consultation requires the wildlife agency to produce a "biological opinion" that evaluates the nature 3 and extent of the proposed action's effect on the listed species and that, if necessary, "posits 4 reasonable and prudent alternatives to the proposed action." See 50 C.F.R. § 402.14.

Where a proposed action "may affect" endangered and threatened species, but the agency desires to avoid the lengthy and costly process of formal consultation, it may first initiate informal consultation. See 50 C.F.R. § 402.13. Informal consultation, which includes "all discussions, 9 correspondence, etc., between the agency and the wildlife service," may serve as a precursor to 10 formal consultation. Id. However, if informal consultation results in a finding of no effect, then the consultation process is terminated, and no further action is required. Id. If informal consultation results in a finding, though, that the action is likely to adversely affect listed species or 13 14 habitat, then subsequent formal consultation is required.

In reviewing alleged ESA violations, as with NEPA violations, the court considers whether the agency acted in an arbitrary and capricious manner. See Defenders of Wildlife v. EPA, 420 F.3d 946, 959 (9th Cir. 2005).

the central California coast, ranging from Monterey County to San Luis Obispo, Santa Barbara, districts:" (1) Monterey Ranger District; (2) Santa Lucia Ranger District; (3) Santa Barbara Ranger

B.The ARRA-funded Roadside Clearing Project in Los Padres National Forest

The Los Padres National Forest encompasses approximately 1.75 million acres of land in Ventura and Kern Counties. Los Padres is divided into five administrative units called "ranger District; (4) Ojai Ranger District; and (5) Mount Pinos Ranger District. The Project challenged 25 involves the clearing of vegetation and trees from ten feet on each side of about 750 miles of roads 26 throughout the Los Padres National Forest. The Project is funded by the ARRA, under the 27 category of "hazardous fuels reduction." According to Forest Supervisor Peggy Hernandez, the 28 goals of the Project are to provide jobs, lower the risk of forest fires, maintain access to system 2 roads, and improve driving and road safety. See Decl. of Los Padres National Forest Supervisor 3 Peggy Hernandez ("Hernandez Decl."), attached as Exh. 1 to Defs.' Opp'n to Pl.'s Mot. for Prelim 4 Inj. [dkt. #36-1].

notice in connection with the Project. In approving the Project, the Forest Service did not prepare an EIS or an EA. In July and August of 2009, the Forest Service reviewed and decided on a list of 9 roads where work on the Project would occur. See Decl. of Jeff Kuyper, In Support of Mot. for 10 Prelim. Inj., ¶¶ 8-9 [dkt. #10]. On September 3, 2009, Forest Service Biologist Kevin Cooper 11 completed a draft Biological Assessment, in which he concluded that the Project would have no effect on any threatened, endangered or sensitive species if certain stipulations were implemented.

Those stipulations involved mitigation measures such as: (1) required use of a Forest Service

There is no dispute regarding the environmental review and lack of public or interagency See Decl. of Kevin Cooper ("Cooper Decl."), attached as Exh. 2 to Defs.' Opp'n [dkt. #36-2].

Biologist to accompany workers in certain areas (e.g., in habitat of Smith's Blue Butterfly, 17 including seacliff buckwheat); (2) limited operating periods to avoid certain species' breeding 18 seasons (e.g., no cutting from March 1 to August 1 to protect Goshawks' nesting season); and (3) 19 avoidance of ...


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