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Earth Island Institute v. Elliott

United States District Court, E.D. California

November 16, 2017

EARTH ISLAND INSTITUTE and SEQUOIA FORESTKEEPER, Plaintiffs,
v.
KEVIN ELLIOTT, in his official capacity as Forest Supervisor of the Sequoia National Forest, et al., Defendants.

          MEMORANDUM DECISION AND ORDER RE PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 10)

          LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Earth Island Institute and Sequoia ForestKeeper's (“Plaintiffs”) motion for a preliminary injunction. ECF No. 10. Federal Defendants Kevin Elliott, in his official capacity as Forest Supervisor of the Sequoia National Forest, and the United States Forest Service (“USFS”) (together, “Federal Defendants”) and Defendant-Intervenor Sierra Forest Products both opposed Plaintiffs' motion, ECF Nos. 21 and 22, and Plaintiffs replied, ECF No. 24. For the reasons stated below, Plaintiffs' motion for a preliminary injunction is DENIED.

         II. FACTUAL BACKGROUND

         At issue is a USFS fire salvage restoration project proposed and approved by the USFS to treat a strip of land along an area of roadways affected by the Cedar Fire. The Cedar Fire began on August 16, 2016, and burned for three weeks over 29, 000 acres of mixed conifer and white fir forest, most of which were in the Sequoia National Forest. ECF No. 10-9, Preliminary Injunction Record (“PIR”) 1393, PIR 1936.[1] The USFS is working to abate the hazards associated with this burned area of forest, including through the “Bull Run” project, which is planned to involve felling dead and dying trees along 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument. This project would treat up to 3, 500 of the 29, 000 acres in the Cedar Fire burn area. ECF No. 22-1, Declaration of Kevin B. Elliott (“Elliott Decl.”) ¶ 7. On October 31, 2016, the USFS announced a single project to remove hazardous trees along roads on both the eastern and western sides of the Greenhorn Mountains in the Giant Sequoia National Monument. PIR 1, 14. The USFS later announced that it intended to treat the eastern and western components as two separate projects, with separate Environmental Assessments (“EA”) prepared for each. PIR 14. The USFS then confirmed that it would undertake the Bull Run project separately from the “Spear Creek” project on the western side of the Greenhorn Mountains. PIR 20; PIR 932.

         Much of the USFS's reasoning regarding regulatory issues related to the Bull Run project is set forth in a Revised Decision Memo, which outlines the proposed project as one designed to “mitigate the hazards to public safety posed by the dead and dying trees along approximately 50.2 miles of road in the project area, ” which consists of approximately 3, 500 acres on the border of Tulare and Kern Counties, roughly 30 miles southeast of Porterville, CA. ECF No. 22-2, Revised Decision Mem. at 1. The project will abate hazard trees within 300 feet of each side of the road. Hazard trees will be identified using Forest Service guidelines and will be felled if they “could potentially strike within the road's clearing width, or could roll or slide into the clearing after they fall.” Id. at 2. Dead, dying, or damaged trees unlikely to fall into the road will not be felled unless they present a hazard to workers, and the memo is clear that the project “is not authorizing a ‘clearcut' within 300 feet of road edges.” Id. at 3. Felled trees will be removed if they “represent an obstruction to use and maintenance within the road's clearing width, ” if leaving the tree in place will increase fuel loading, or if removal is needed for the reforestation process. Id. Felled logs may be chipped or burned, and logs “considered to have commercial value may be sold as saw timber, cull logs, firewood, chips, posts, and poles, ” and branches and limbs may also be sold. Id. Some logs “will be left in place for habitat” and to meet the standard under the 2004 Sierra Nevada Forest Plan Amendment for down woody material retention. Id. Finally, the project will include activities to restore organic ground cover and to reforest the habitat, including planting seedlings, scattering seeds, and increasing organic ground cover by scattering limbs, branches, and chips. Id.

         Pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, the USFS undertook an analysis of the Bull Run project's potential effects on wildlife in an 86-page Biological Evaluation, ECF No. 22-3 (“BE”), and a 30-page Biological Assessment, ECF No. 22-4 (“BA”). It also consulted with the U.S. Fish and Wildlife Service (“FWS”), which produced a 22-page Biological Opinion concerning the potential impacts of the project on species listed under the Endangered Species Act (“ESA”). ECF No. 22-5 (“BiOp”). Under NEPA, proposed agency action need not be subject to further analysis through an Environmental Impact Statement (“EIS”) or EA “if there are no extraordinary circumstances related to the proposed action” and the action fits into a categorical exclusion (“CE”), a category of action that the agency has determined does not have significant effects on the environment. 36 C.F.R. § 220.6. The USFS determined that the project fit into three CEs, for road repair and maintenance (CE-4), timber stand and/or wildlife habitat improvement activities (CE-6), and post-fire rehabilitation activities (CE-11). Revised Decision Mem. at 3-4; 36 C.F.R. § 220.6(d)(4), (e)(6), (e)(11).

         The USFS also determined that there were no extraordinary circumstances related to the project that would trigger further review through an EIS or EA pursuant to NEPA. Before approving a project under an agency-adopted CE, an agency must examine whether a particular project presents “extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” 40 C.F.R. § 1508.4. The agency is directed to examine “the degree of the potential effect of a proposed action on” things such as “Federally listed threatened or endangered species” or “Forest Service sensitive species.” 36 C.F.R. § 220.6(b). The USFS did not find that the Bull Run project would have significant adverse impacts to the mountain yellow-legged frog (“MYLF”), Pacific fisher, or California spotted owl (“CSO”) that would require the project to undergo further NEPA analysis.

         The MYLF is listed as endangered under the ESA. PIR 1366. The project area contains no documented MYLF populations and no critical habitat, BA 19, and all three MYLF populations known to exist in the Sequoia National Forest are more than 20 miles away, BA 12. No recent comprehensive surveys have been conducted in the project area, however, and because of this lack of certainty, the FWS concluded that the project “may affect and [is] likely to adversely affect” MYLF in the area because of “an inability to guarantee that no take to the species or their habitat would occur with implementation of the project.” BiOp 20. The FWS also concluded, however, that if MYLF populations do exist in the project area, “population numbers are quite likely very low due to the habitat loss from recent fires and the last four years of intense drought conditions that have eliminated aquatic habitat from many of the streams and meadows within the action area, ” though last winter's high snowfall was expected to return the aquatic conditions to pre-drought levels. BiOp 12. Despite 30 “site-specific measures” designed to minimize the risks associated with the project, BA 27-30; BiOp 4-7, the USFS could not guarantee that no take would occur, BA 20. If more than the expected 197 acres are affected, or if “more than one dead or injured mountain yellow-legged frog adult, juvenile, tadpole, or egg mass is detected as a result of the proposed project, ” FWS's BiOp required USFS to halt the project and reinitiate formal consultation with FWS. BiOp 15. FWS concluded that “the prospects for these populations to recover and contribute to the overall recovery of the species are high, ” despite the potential loss of individual frogs as a result of the project. BiOp 15-16.

         The Pacific fisher is a sensitive species but is not endangered or threatened. BE 5. There are “no [fisher] den sites in the project analysis area, ” BE 48, and research in the Sierra National Forest has shown that fishers do not use “high severity burn areas” at least in the immediate aftermath of a fire, though there is “some evidence of limited foraging occurring along the burn edge.” BE 54. Fishers appear to favor “landscapes with more contiguous, unfrequented forests and less human activity” and are negatively associated with road density. BE 47. The existence of roads has already affected the canopy cover in the area, BE 52, and the project “focuses its efforts to encompass areas of highest burn severity where low canopy cover and structural attributes needed for resting and denning activity are no longer present.” BE 54.

         Plaintiffs submitted supplemental comments concerning the potential effects on fisher habitat connectivity. PIR 940. Plaintiffs argued that the Bull Run project is similar to the Rancheria project, where the USFS ordered a supplemental NEPA analysis in light of concerns about “habitat fragmentation and loss of connectivity caused by the Cedar Fire.” PIR 988. They contended that the USFS undertook no supplemental analysis to ensure that the fisher population in the Southern Greenhorn Mountains was not isolated in the wake of the fire. PIR 1002.

         Like the Pacific fisher, the CSO is sensitive but not endangered or threatened. The USFS undertook an analysis of the potential effects on the CSO, examining metrics including total available habitat and acres treated; estimated changes in structural characteristics of the habitat, such as canopy, snags, and large woody debris; disturbance effects; and the number of acres treated of certain habitat types and changes in percentage of relative habitat. BE 51. Field surveys conducted in the last three years identified four CSO territories near the project area. Two of the four CSO territories near the project area have minimal overlap with the planned area, BE 26-27, a third has likely been abandoned, BE 28-29, 56, and the fourth will have a monitor on site for any felling during the project, and if nesting owls are present, the project will be subject to a limited operating period, BE 10. Like the Pacific fisher, CSOs nest away from roads, and CSO habitat near roads is lower quality. BE 54. Accordingly, the USFS found that the Bull Run project would have limited disturbance effects and be unlikely to result in significant losses of live foliage and canopy, strong habit factors for CSO. BE 56.

         With respect to CSO, Plaintiffs submitted two research summaries during the comment period that they contend the USFS did not adequately address. The first is a CSO ESA listing petition that Plaintiffs submitted with their comments, containing data from nine reports, which included evidence that Plaintiffs characterized as showing that most owl territories retain occupancy after a fire but that post-fire logging reduces the suitability of that habitat. PIR 127-31. The second is an evaluation prepared by Chad Hanson, a member of Plaintiff Earth Island Institute, that included supplemental comments and summaries of additional studies, which he believed to show that even low levels of post-fire logging within 1500 meters of territory centers show “severe adverse impacts” on CSO occupancy. Mot. at 19 (citing PIR 1309-12).

         Finally, on May 1, 2017, the USFS proposed the Spear Creek project to abate hazard trees on the western side of the Greenhorn Mountains. ECF No. 22-8, Excerpts from Proposed Spear Creek Roadside Hazard Tree Mitigation Project. Bull Run and Spear Creek are located in different watersheds on opposite sides of the Greenhorn Mountains. BE 6; BA 9, 11. Unlike Bull Run, Spear Creek is located within the Giant Sequoia National Monument (GSNM) and is subject to the special requirements of the GSNM Management Plan.

         III. LEGAL STANDARD

         A party seeking a preliminary injunction must demonstrate (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). “An injunction is a matter of equitable discretion” and is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 376. The Ninth Circuit has adopted a “sliding scale” approach under which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). This test allows for the issuance of a preliminary injunction “where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor, ” so long as the plaintiff also satisfies the final two prongs of the Winter test. Id. (internal citation and quotation marks omitted) (alteration in original); id. at 1135.

         “An agency's determination that a particular action falls within one of its categorical exclusions is reviewed under the arbitrary and capricious standard.” Alaska Ctr. for Environment v. United States Forest Service, 189 F.3d 851, 857 (9th Cir. 1999). Furthermore, “an agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation.” Id.

         A. NEPA

         The National Environmental Policy Act (NEPA) “is a purely procedural statute.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002). NEPA does not dictate particular results or require that agencies elevate environmental impacts over other concerns. Instead, NEPA provides a process to ensure that agencies take a “hard look” at the environmental consequences of their actions. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 763 (9th Cir. 2014). NEPA serves the dual purposes of informing agency decision-makers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

         Agency compliance with NEPA is reviewed under the Administrative Procedure Act (APA). 5 U.S.C. §§ 701-706; Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1016 (9th Cir. 2012). Review is generally limited to the administrative record that was before the agency at the time of its decision. Grand Canyon Trust, 691 F.3d at 1016 n.10; Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996). A court may set aside an agency action only if it determines that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quotation and citation omitted).

         Courts must uphold a reasonable agency action “even if the administrative record contains evidence for and against its decision.” Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1036 (9th Cir. 2010) (quotation and citation omitted). “The court's task is not to make its own judgment, ” because “Congress has delegated that responsibility to the [agency].” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). Instead, “[t]he court's responsibility is narrower: to determine whether the [agency's action] comports with the requirements of the APA . . . .” Id. The Ninth Circuit has held that “[t]he [agency's] action . . . need only be a reasonable, not the best or most reasonable, decision.” Id. (quotation and citations omitted). The APA does not allow a reviewing court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts. Id. This is especially true in the context of management of USFS lands, for Congress has consistently acknowledged that the agency must balance competing demands in managing National Forests. See United States v. New Mexico, 438 U.S. 696, 716 n.23 (1978).

         IV. ANALYSIS

         A. Standing

         To establish standing, a plaintiff must demonstrate, “at an irreducible minimum, ” (1) that he personally suffered some actual or threatened injury (injury in fact); (2) that the injury can be traced to the challenged conduct of the defendant (causation); and (3) that the injury is likely to be redressed by a favorable judicial decision (redressability). Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). An association has standing to bring suit on its members' behalf if: “[1] its members would have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 169 (2000). Critically, in a case brought under the ESA or another environmental-protection statute, the requisite injury in the standing context needs to be to the plaintiff, not to the environment. Id.

         Plaintiffs submit declarations from two members who have visited the Bull Run and Spear Creek project areas in the past and intend to do so in the future. See ECF No. 10-5, Declaration of Ara Marderosian (Marderosian Decl.) ¶¶ 7-12; ECF No. 10-4, Declaration of Dr. Chad Hanson (Hanson Decl.) ¶¶ 7-11. Plaintiffs allege injury to their “recreational and esthetic interests” if the felling and logging portions of the Bull Run project are permitted to proceed. See Friends of the Earth, 528 U.S. at 181 (“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-563 (1992) (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”). Plaintiffs' members have standing, and the Plaintiffs have associational standing. See Friends of the Earth, 528 U.S. at 181 (an “association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit”); see Marderosian Dec. ¶ 3; Hanson Dec. ¶ 3 (explaining Plaintiffs' purposes). Plaintiffs seek to enforce a procedural right, namely the USFS's alleged failure to conduct an EA or EIS prior to undertaking this project and analyzing the Bull Run effects in a separate analysis from the Spear Creek project. See Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (a “‘person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy'”) (quoting Lujan, 504 U.S. at 573 n.7 (1992)).

         Defendants do not challenge Plaintiffs' standing to bring this suit, and the Court finds that Plaintiffs do have standing.

         B. Likelihood of Success On The Merits

         1. Applicability Of ...


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