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Conservation Congress v. United States Forest Service

United States District Court, E.D. California

November 6, 2014

CONSERVATION CONGRESS, Plaintiff,
v.
UNITED STATES FOREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants, and FRANKLIN LOGGING, INC., and SCOTT TIMBER CO., Defendant Intervenors.

ORDER

TROY L. NUNLEY, District Judge.

The matter is before the Court pursuant to Plaintiff Conservation Congress's ("Plaintiff") motion for a preliminary injunction pending appeal, under Fed. R. App. Proc. 8(a)(1). (ECF No. 97.) Defendants U.S. Forest Service ("Forest Service") and U.S. Fish and Wildlife Service ("FWS") (collectively "Defendants"), and Defendant Intervenors Franklin Logging, Inc. and Scott Timber, Co. ("Defendant Intervenors") oppose the motion. (ECF No. 102.) For the reasons stated below, Plaintiff's motion is DENIED.

I. Background

The subject of this suit is the Algoma Vegetation Management Project (the "Project"), a timber project occurring within the Shasta-Trinity National Forest. As stated in the 2013 Biological Opinion:

Primary objectives of the Algoma Project are to reduce the likelihood of large-scale disturbance and to protect and enhance conditions of late successional forest ecosystems. Dense conditions of second-growth forest stands within the portions of the 44, 377 acre action area are increasing the risk of widespread tree mortality and retarding the development of late-successional forest characteristics. Additionally, the existing fuel profile places stands at risk to high-severity wildfire, which can result in reduction of high-quality spotted owl habitat. The Project proposes a combination of thinning, sanitation treatments, and fuels reduction activities on 4, 666 acres within the Algoma Late-successional Reserve (LSR) to reduce the risk of habitat loss and to enhance conditions that are resilient to wildfire and other disturbances.

(AAR 22917-18.)[1]

Plaintiff filed the original complaint on November 15, 2012, seeking to enjoin the Project on a number of grounds, including its potential adverse effects to Northern Spotted Owl ("NSO") habitat within the Project area. (ECF No. 1.) Plaintiff filed an amended complaint on September 25, 2013. (ECF No. 33.) All parties moved for summary judgment. (ECF Nos. 52, 62, 68.) On May 19, 2014, the Court granted Defendants' and Defendant Intervenors' summary judgment motions and denied Plaintiff's summary judgment motion. (ECF No. 90.)

On June 11, 2014, Plaintiff filed a notice of appeal with this Court. (ECF No. 93.) On June 27, 2014, Plaintiff filed the instant motion to enjoin the Project from proceeding, pending appeal. (ECF No. 97.) Defendants and Defendant Intervenors filed an opposition and Plaintiff filed a reply. (ECF Nos. 102, 103.)

II. Analysis

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the [p]laintiff is entitled to such relief." Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 22 (2008). For the injunction to issue, the plaintiff must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20. In cases where there are "serious questions going to the merits, " a preliminary injunction may still issue if the "balance of hardships tips sharply in the plaintiff's favor, " provided that the remaining factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013). Where there is a likelihood of harm to an endangered or threatened species under the ESA, "the balance of hardships always tips sharply in favor of the endangered or threatened species." Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1035 (9th Cir. 2005).

Plaintiff's arguments in support of injunction parallel the arguments made in support of their summary judgment motion. The Court has ruled on these arguments, and therefore minimally revisits them within the context of a preliminary injunction.

A. Likelihood of Success on the Merits

For Plaintiff to succeed on appeal, Plaintiff must demonstrate that Defendants' review and approval of the project was arbitrary, capricious, unlawful, or an abuse of discretion, as set forth in the Administrative Procedure Act. 5 U.S.C. ยง 706(2)(A)-(D). This Court previously found that Defendants' review and approval of the Project warranted denying Plaintiff's summary judgment motion. ( See ECF No. 90.) For the same reasons, the Court ...


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