Earth Island Inst. v. Elliott

290 F.Supp.3d 1102

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.

1:17–cv–01320–LJO–MJS

United States District Court, E.D. California.

Signed November 16, 2017

Filed November 17, 2017

Rene Peter Voss, Rene P. Voss, Attorney at Law, San Anselmo, CA, Matt Kenna, Pro Hac Vice, Public Interest Environmental Law, Durango, CO, for Plaintiffs.

Joseph Frueh, United States Attorney's Office, Sacramento, CA, for 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...