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Center for Biological Diversity v. Skalski

United States District Court, E.D. California

September 16, 2014

CENTER FOR BIOLOGICAL DIVERSITY, EARTH ISLAND INSTITUTE and CALIFORNIA CHAPARRAL INSTITUTE, Plaintiffs,
v.
SUSAN SKALSKI, in her official capacity as Forest Supervisor for the Stanislaus National forest, and UNITED STATES FOREST SERVICE, an agency of the Department of Agriculture Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER[*]

GARLAND E. BURRELL, Jr., District Judge.

Plaintiffs seek a temporary restraining order enjoining implementation of the United States Forest Service ("Forest Service")'s Rim Fire Recovery Project ("the Project") in the Stanislaus National Forest.[1] Plaintiffs specifically seek to "enjoin logging and logging associated activities"[2] related to the Forest Service's upcoming Nevergreen Timber Sale and Double Fork Timber Sale "within 1.5 km of occupied California spotted owl territories...." (Pls. Mot. for Prelim. Inj. ("Mot.") 6:14-16, ECF No. 22.)

Plaintiffs argue a preliminary injunction is required since the Forest Service "violated NEPA's hard look requirement... by: a) misrepresenting and sidestepping crucial scientific evidence about serious adverse impacts [of the logging] to [the] California spotted owl... [and] b) concluding that the Rim fire logging project would not threaten the population viability of... the California spotted owl, without first determining whether the logging plan would push the owl's population below a critical threshold." (Mot. 9:23-10:2.) Plaintiffs' also argue the Forest Service violated NEPA when they "failed to meaningfully address [2014 California spotted owl survey data] in relationship to the Project's impact[]...." (Mot. 19:12-14.)

I. BACKGROUND

The Rim Fire and Rim Fire Recovery Project:

The motion concerns the following allegations.[3] "The Rim Fire [was] the third largest wildfire in California history and the largest wildfire in the recorded history of the Sierra Nevada." AR B00111. In the summer of 2013, it burned more than 150, 000 acres of National Forest including parts of the Stanislaus National Forest. AR B0013. The Rim Fire "resulted in areas of high, moderate and low vegetation burn severity." AR B00112-14. In response to the fire, the Forest Service proposed the Rim Fire Recovery Project. The Forest Service designed the Project to "help[] restore the land impacted by the Rim Fire... while simultaneously providing for public safety, ecological integrity, scientific research, and socio-economic benefits." AR 0009. The "proposed action... includes: salvage of dead trees[and] removal of hazard trees along roads open to the public and roads used to access and implement proposed treatments." AR B00121.

In connection with the Project, the Forest Service, published a Notice of Intent on December 6, 2013. AR B00121. "Interested parties submitted 4, 200 total letters during the comment period including 174 unique individual letters and 4, 026 form letters." AR B00128. The Forest Service's "public outreach began while the fire was still smoldering and continued up until the point of the" final decision. AR A00035.

The Forest Service organized "public open houses, " "hosted Rim Fire Technical Workshops to share the development of alternatives status, " "organized 24 tours into the Rim Fire area" for government officials and interested parties, and held a "30-day comment period." AR B00128. The Forest Service "asked for public comment on the DEIS [Draft Environmental Impact Statement]" and solicited public comments by "produc[ing] materials for social media outlets" and "distribut[ing] some 60, 000 newspaper inserts through the region explaining many of the proposed activities." AR B00128-129. "Responses to public comments were finalized during the development of the FEIS [Final Environmental Impact Statement ("EIS")]" and Record of Decision ("ROD"). AR B00129. The FEIS and ROD were published in August 2014. Of the four alternative courses of action considered for the Project, the Forest Service ultimately "selected Modified Alternative 4." AR A00016.

Modified Alternative 4 "approves salvage logging and fuel reduction on 15, 383 acres including: 14, 495 acres of ground based; 651 acres of helicopter; and 237 acres of skyline treatments." AR A00016. The Project covers around ten percent of the National Forest area impacted by the Rim Fire. AR A00016; B0013. Its "boundary is located within the Rim Fire perimeter within portions of the Mi-Wok and Groveland Ranger Districts on the Stanislaus National Forest." AR B00114. The "salvage harvest of trees initially killed by the Rim Fire" will be "accomplished through timbers sales" to occur "over the next 2 seasons, culminating in winter 2015." AR A00018.

California Spotted Owl:

"Forest fire is one of the most important issues affecting the [California] Spotted Owl's habitat." AR K01464. "California spotted owls will occupy landscapes that experience low-to moderate-severity wildfire, as well as areas with mixed-severity wildfire that includes some proportion of high-severity fire." AR K12141. They can "occupy territories and continue to reproduce in burned habitats, including those with severely burned patches." AR K01464; see also B00449. However post-fire logging of burned trees within the California spotted owl's habitat, may result in "occupancy declines." AR K13093.

These raptors nest, roost and forage in parts of the Stanislaus National Forest impacted by the Rim Fire. AR B00003. The Forest Service considers California spotted owls a "sensitive species." AR B00432. They "have several characteristics that are broadly associated with increased species vulnerability." AR K12133."[A]pproximately 6, 500 acres of salvage, and 8, 500 acres of roadside logging, [as part of the Project] are slated to occur within 1.5 km of [California spotted] owl sites." AR B00003.

II. LEGAL STANDARD

A. Preliminary Injunction

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff[s are] entitled to such relief." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22 (2008). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id. at 20.

Further, the Ninth Circuit's "serious questions' test" may be "applied as part of the four-element Winter test." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test test, "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an ...


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