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Earth Island Institute v. Dean Gould

United States District Court, E.D. California

August 19, 2014

EARTH ISLAND INSTITUTE and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs,
v.
DEAN GOULD, in his official capacity as Forest Supervisor for the Sierra National Forest, and UNITED STATES FOREST SERVICE, an agency of the Department of Agriculture, Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the motion by Earth Island Institute ("EII") and Center for Biological Diversity ("CBD") (collectively "plaintiffs") for a preliminary injunction. (ECF No. 20.) Dean Gould ("Gould") and the United States Forest Service ("Forest Service") (collectively "defendants") as well as intervenor-defendant Sierra Forest Products ("intervenor") oppose the motion. (ECF Nos. 68 & 66.) The court held a hearing on the matter on August 15, 2014, at which Rachel Fazio appeared for plaintiffs; Marissa Piropato appeared for defendants; and Julie Weis (pro hac vice) appeared for intervenor.[1] As explained below, the court confirms its DENIAL of plaintiffs' motion.

I. BACKGROUND

The claims in this case arise out of defendants' alleged violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h, and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687. (First Am. Compl. ("Compl.") ¶ 4, ECF No. 45.) In alleging various violations, plaintiffs seek a permanent injunction against the Aspen Recovery and Reforestation Project ("Aspen Project"). ( Id. ¶ 2.) EII is a nonprofit membership organization with its mission "to develop and support projects that counteract threats to the biological and cultural diversity that sustains the environment." ( Id. ¶ 7.) CBD is also a nonprofit membership organization with a mission "to protect and restore habitat and populations of imperiled species, including from the impacts of logging and climate change." ( Id. ¶ 9.) Defendant Gould is the Forest Supervisor of the Sierra National Forest ("Forest") and is sued in his official capacity. ( Id. ¶ 14.) Defendant Forest Service is an agency of the United States Department of Agriculture. ( Id. ¶ 15.) Finally, intervenor is a privately-owned mill operator that was officially awarded the logging contract in this matter by the Forest Service. ( See ECF No. 55 at 1-3.)

In July 2013, the Aspen fire burned about 22, 350 acres of the Forest. ( Id. ¶ 25.) The fire had a mosaic effect, with approximately 80 percent comprising low and moderate-intensity fire effects. ( Id. ) Out of 22, 350, 9, 371 acres were burned at high to moderate severity. (AR[2] 34.) After the fire burned out, the Forest Service designed a post-fire timber harvesting project, the Aspen Project. In November 2013, the Forest issued a notice, inviting public comments on the Aspen Project. (AR 1580, 1582, 1613.) The project involves the logging of 1, 835 or 20 percent of the 9, 371 acres where the fire was of moderate to high-intensity. (AR 41.) The logging could extend onto additional acres as drought persists. ( Id. ) The 1, 835-acre area, plaintiffs represent, provides important habitat for the California Spotted Owl, the Pacific Fisher, and the Black-backed Woodpecker. ( See generally Compl.) More specifically, plaintiffs allege the Aspen Project "would eliminate about 38% of the estimated Black-backed Woodpecker pairs..., and would remove about 41% of the suitable... habitat" ( id. ¶ 33); that the logging "near or adjacent to territory cores" will likely reduce the occupancy of the California Spotted Owl ( id. ¶¶ 48-49); and that the logging of the areas burned at moderate to high-intensity will reduce the Pacific Fisher's habitat ( id. ¶¶ 63-65).

In June 2014, the Forest Service released its final Environmental Assessment ("EA") of the Aspen Project for public comment. (AR 25.) The Forest Service identified several purposes of the Aspen Project, including, but not limited to, providing for safety ( id. 36); recovering the economic value of the burned trees ( id. 36-37); minimizing large-scale fires ( id. 37-38); providing habitat by snag retention ( id. 38-39); reestablishing forested conditions ( id. 39-40); and eradicating weeds ( id. 40-41). In addition, the Chief of the Forest Service approved an Emergency Situation Determination ("ESD") on the Aspen Project, reasoning "[i]mmediate implementation is necessary to remove roadside and campground hazard trees and restore the burned area by better assuring that a loss of commodity value does not jeopardize the ability to fulfill critical restoration and resource protection objectives." (AR 31093-31095.) Subsequently, after considering the final EA, defendant Gould issued a Decision Notice and Finding of No Significant Impact ("FONSI"), concluding that no Environment Impact Statement ("EIS") was necessary because the actions to be taken under the Aspen Project would not "have a significant effect on the quality of the human environment considering the context and intensity of impacts...." ( Id. at 14-15.)

In July 2014, plaintiffs filed a complaint for declaratory and injunctive relief (ECF No. 1) and shortly thereafter moved for a preliminary injunction. (ECF No. 20.) Because the Aspen Project was scheduled to commence on August 1, 2014, plaintiffs sought a temporary restraining order ("TRO") to preserve the status quo pending the preliminary injunction hearing. (ECF No. 47.) At the hearing on the TRO, the parties reached a stipulation, which was subsequently modified. (ECF No. 61.) The parties agreed to the following while plaintiffs' preliminary injunction motion was pending:

1. Harvest of plantation units 324, 325, 237, 30, 23, 244, 15, and 255 in their entirety;
2. Harvest of the plantation portions only of units 327 and 53;
3. Roadside hazard tree removal along Maintenance Level 3, 4 and 5 roads within the Project area;
4. Roadside hazard tree removal along Maintenance Level 2 roads where associated with the above-referenced operations; and
5. Hazard tree removal within campgrounds in the Project area.

(ECF No. 62.)

Subsequently, the parties agreed to the following additional interim activities:

1. The removal of log deck(s) and/or individual logs from trees that were cut in Unit 331 on August 1, 2014;
2. The removal of the approximately 50, 000 board feet of timber which was cut in Unit 204 on August 1, 2014, but was not removed;
3. The logging and removal of trees in plantations (areas of trees relatively uniform in size and generally less than 18 inches in diameter, and typically occurring in pockets 1-2 acres in size) located at various points in the western quarter of Unit 204 within approximately 150 meters of road 7S304; and
4. The logging and removal of hazard trees marked as of August 6, 2014 along maintenance level 2 road 7S304 (heading east on 7S304 away from West Kaiser campground) in the western quarter of Unit 204, ending where 7S304 splits and becomes 7S302B and 7S302C.

(ECF No. 71.)

At hearing on the preliminary injunction, while plaintiffs suggested further stipulations might be possible, defendants took the position that efforts to reach ...


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