United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION Docket No. 11
M. Chen United States District Judge.
United States Forest Service approved six logging projects to
mitigate the safety hazards affecting the roads in Mendocino
National Forest. These projects will allow commercial logging
of nearly 7, 000 acres of trees that are dead, dying, and/or
live trees that are rapidly deteriorating such that they pose
a risk of falling onto the public roadway. The operations of
two projects have already begun.
Environmental Protection Information Center
(“EPIC”) moves the Court for a preliminary
injunction “to preserve the status quo pending
resolution of the case, allow only the felling of hazard
trees which are imminently likely to fall into a roadway [or]
other developed area, prohibit tree felling along Level 1
roads and OHV trails, and prohibit the sale and removal of
any felled trees in order to avoid irreparable harm to
Plaintiff.” Docket No. 11 (“Mot.”) at 1.
earlier ruling, this Court partially granted EPIC's
motion for a temporary restraining order:
The Government may not authorize any operations as to the M10
West project until the resolution of Plaintiff's
preliminary injunction motion. Such restraint will not
prejudice the Government, as it represented the project has
not yet begun, and would not begin until, as government
counsel estimated, a week after a contractor wins the bid.
However, the Government may continue to advertise and/or sell
the M10 West project (e.g., continue the bidding
process, finalize the contract award, etc.), so long as it
informs bidders that any awarded contract is subject to an
injunction. Plaintiff's remaining relief for a TRO is
DENIED. The Bartlett and M5 Pacific projects
Docket No. 42. Based on a review of the administrative
record, the briefs filed herein pertaining to the instant
motion as well as the motion for a temporary restraining
order (including the amicus), and oral argument of the
parties, the preliminary injunction motion is
2018, the Ranch Fire burned nearly 300, 000 acres in
Mendocino county. Docket No. 1 (“Compl.”) ¶
16. In response, the Forest Service announced six projects to
“remove ‘merchantable' trees within 200 feet
on both sides of selected roads and within 100 feet of the
roads that run adjacent to the Snow Mountain
Wilderness.” Id. ¶ 19. The projects are
titled as the M1, M3, M5, M10, Bartlett, and Felkner Projects
(collectively, the “Projects”). Id.
complaint alleges the location of these Projects “are
draped by mixed conifer forest, oak woodlands, and are
interspersed by recovering burned, logged, and un-forested
areas, including chaparral. The conifer forests and oak
woodlands, where logging is proposed, provide essential
wildlife habitat, hiding cover, and core habitat for old
forest-dependent wildlife, including the threatened Northern
spotted owl.” Id. ¶ 17. According to
Plaintiff, the Ranch Fire “created new forest habitat
types, including complex early seral forest habitat, also
known as ‘snag forest' habitat, which, if left
unlogged, serves as important habitat for small mammals and
birds. Predators, including Northern spotted owls, seek out
these burned areas due to their abundance of small mammal
prey species.” Id. ¶ 18.
2019, the Forest Service began accepting bids for the
Bartlett Project, which pertained to the sale of 1.7 million
board feet of timber. Id. ¶ 28. Bidding ended
the following month. Id. The Forest Service awarded
the Bartlett Project in August 2019. In August 2019, the
Forest Service began accepting bids for the M5 Pacific Ridge
Project, which involved 6.5 million board feet of timber.
Id. ¶ 31. By October 2019, the Forest Service
awarded the M5 Pacific Ridge Project. Id. ¶ 34.
Forest Service did not conduct an environmental review under
the National Environmental Quality Act (“NEPA”)
for any of the Projects. Instead, it relied on the
categorical exclusion under 36 C.F.R. § 220.6(d)(4),
which applies to “[r]epair and maintenance of roads,
trails, and landline boundaries.”
November 21, 2019, operations for the Bartlett and M5 Pacific
Ridge Projects were underway with five and seven weeks of
operations remaining until completion, respectively. The
Forest Service finalized bidding for the M10 West Project.
The Court extended its TRO of the M10 West Project's
operations to December 2, 2019. The Court determined that the
TRO would have little to no prejudice to the Forest Service
because finalization of the M10 West contract will take at
least one or two weeks before operations can begin. The
remaining projects have not entered their bidding phases.
motion for a preliminary injunction, EPIC does not argue for
a blanket ban on logging. Instead, it takes the position that
the Forest Service must comply with NEPA by conducting an
environmental review before approving and permitting the
Projects to go forward. Nor does EPIC object to the felling
of trees at risk of falling. It argues only truly at-risk
trees should be felled, and that once felled they should
remain on the forest ground in their natural habitat and not
removed by loggers for harvesting.
filed its lawsuit on October 16, 2019. See Compl.
The complaint alleges one claim for relief: NEPA violation.
Id. ¶ 63-67. EPIC concurrently filed this
motion, noticed for November 14, 2019, but not in compliance
with this Court's 35-day rule for noticing motions. The
Court reset the hearing to December 19, 2019. Thereafter,
EPIC moved for a temporary restraining order to enjoin all
logging pending the resolution of the preliminary injunction
motion. Docket No. 18. The Court then advanced the TRO
hearing to November 21, 2019. Docket No. 42. Sierra Pacific
Industries (“SPI”), the contractor of the M5
Pacific Project, filed a motion to intervene as of right
under FRCP 24(a) or, in the alternative, permissive
intervention pursuant to Rule 24(b). The Court denied
SPI's Rule 24 motion, but permitted it leave to file an
amicus brief. Id.
noted above, on November 5, 2019, the Court issued a TRO and
set the hearing on the preliminary injunction for November