Environmental Protection Information Center v. Carlson

          ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Docket No. 11

          Edward M. Chen United States District Judge.

         I. INTRODUCTION

         The 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.

         Plaintiff 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.

         In an 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 may continue.

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 DENIED.

         II. BACKGROUND

         A. Factual Background

         In July 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. ¶ 22.

         The 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.

         In June 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.

         The 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.”

         As of 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.

         In its 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.

         B. Procedural Background

         EPIC 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.

         As noted above, on November 5, 2019, the Court issued a TRO and set the hearing on the preliminary injunction for November 21, 2019.

         III. L ...