Opinion
No. CIV. S-11-2605 LKK/EFB
03-21-2014
CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant. and SIERRA PACIFIC INDUSTRIES, Defendant Intervenor.
ORDER
Plaintiff Conservation Congress sues defendant United States Forest Service and defendant-intervenor Sierra Pacific Industries, alleging that the Forest Service, in approving a challenged timber project, failed to adequately consider that project's impacts on the habitat of the northern spotted owl. Plaintiff's action arises under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.
Plaintiff now moves for a temporary restraining order enjoining the project. The parties stipulated to waive oral argument (originally set for Wednesday, March 19, 2014) and instead submitted the motion on the papers. (ECF No. 84.) Having considered the parties' submissions and the record, the court will deny the motion, for the reasons set forth below.
I. BACKGROUND
A. Statutory Background
The court begins by noting relevant aspects of NEPA and its implementing regulations, in order to provide context for the discussion that follows.
NEPA is intended to "ensure[] that federal agencies are informed of environmental consequences before rendering decisions and that the information is available to the public." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000). "NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004).
Under NEPA, federal agencies must prepare an Environmental Impact Statement ("EIS") prior to undertaking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must address
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Id.
Regulations promulgated under NEPA provide that an EIS must consider "[i]mpacts, which may be (1) [d]irect; (2) indirect; [or] (3) cumulative." 40 C.F.R. § 1508.25(c). A "direct effect" is one "caused by the action and occur[ring] at the same time and place." 40 C.F.R. § 1508.8(a). An "indirect effect" is both:
"Effects and impacts as used in these regulations are synonymous." 40 C.F.R. § 1508.8. Accordingly, and in keeping with the jurisprudence in this area, this order uses the terms "effect" and "impact" interchangeably.
caused by the action and ... later in time or farther removed in distance, but [is] still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.40 C.F.R. § 1508.8(b). A "cumulative impact" is:
the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonablyforeseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively40 C.F.R. § 1508.7 (emphasis added).
significant actions taking place over a period of time.
A cumulative impacts analysis "must be more than perfunctory; it must provide 'a useful analysis of the cumulative impacts of past, present, and future projects.'" Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999)). Nevertheless, "none of NEPA's statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS." The Lands Council v. McNair, 537 F.3d 981, 1001 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).
Review of an EIS is governed by the Administrative Procedure Act ("APA"). Agency actions may be properly overturned where they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency." McNair, 537 F.3d at 987 (internal quotation omitted).
B. Factual & Procedural Background
The following allegations are taken from (i) publicly-available documents, (ii) the prior record herein, and (iii) the declarations of the parties offered in support of, and in opposition to, the instant motion.
The Mudflow Vegetation Management Project ("Mudflow Project") was developed by defendant Forest Service, and is directed at the McCloud Flats area of the Shasta-Trinity National Forest. (MAR000195.) The Mudflow Project is located in Siskiyou County; the project is under the auspices of the Forest Service office in Shasta County. (First Supplemental Complaint ¶ 10, ECF No. 40.)
Throughout this Order, the Forest Service administrative record is cited as "MAR," followed by the relevant page number. The administrative record was lodged with the court in February 2012. (ECF No. 36.)
The final EIS for the Mudflow Project, dated May 2011 ("Final EIS"), identifies problems such as overstocking, heightened risk of fire, and areas of root disease in the designated Project area. (MAR000195-196.) The Forest Service therein proposes to ameliorate these conditions by applying various "treatments" to the area, such as thinning overstocked stands of trees, sanitizing stands infected with disease, restoring wet meadow ecosystems, and burning. (MAR000197.) The Final EIS provides that the preferred plan would treat 2957 acres (out of 13,830 total acres) in the Mudflow Project area. (MAR000195.)
Late-successional forests, such as those found in the Project area, provide habitat for the northern spotted owl. The Fish & Wildlife Service listed the northern spotted owl as a threatened species on January 15, 1992. 57 Fed.Reg. 1796-1838. No northern spotted owls have been detected in surveys conducted in the Mudflow Project area between 2004 and 2013. (MAR000585; MAR0002421; MAR010628; Bachmann Decl. ¶ 5, ECF No. 85-1.)
Defendant-intervenor Sierra Pacific is responsible for carrying out various Mudflow Project treatments pursuant to a timber sale contract with the Forest Service. (Bachmann Decl. ¶ 6.)
Plaintiff initiated this action on October 3, 2011, naming Fish & Wildlife and the Forest Service as defendants. (ECF No. 1.) On November 21, 2011, Sierra Pacific moved to intervene; on December 15, 2011, the court granted Sierra Pacific's motion. (ECF Nos. 13, 22.)
On March 22, 2012, plaintiff filed the operative First Supplemental Complaint. ("FSC," ECF No. 40.) The FSC set forth claims under NEPA and the Endangered Species Act ("ESA"), brought against Fish & Wildlife, the Forest Service, and Sierra Pacific.
On April 9, 2012, plaintiff moved for a preliminary injunction under the ESA, claiming that the Forest Service violated ESA Section 7(a)(2) by failing to engage in formal consultation with Fish & Wildlife regarding the Mudflow Project. (ECF Nos. 43, 44.) Plaintiff sought to enjoin both federal agencies "from commencing or implementing the Mudflow Project or any portion thereof until this case is fully resolved on the merits." (ECF No. 45.) On June 19, 2012, the court denied the motion, on the grounds that plaintiff had failed to establish a probability of success on the merits of its ESA claims. Conservation Congress v. U.S. Forest Service, No. CIV S-11-2605 LKK/EFB, 2012 WL 2339765, 2012 U.S. Dist. LEXIS 84943 (E.D. Cal. Jun. 19, 2012). Specifically, the court held that neither the Forest Service nor Fish & Wildlife had acted in an arbitrary and capricious manner in determining that the Mudflow Project was not likely to adversely affect the northern spotted owl, and on those grounds, declining to enter into formal consultation. On June 13, 2013, the Ninth Circuit affirmed, finding that plaintiff's "challenge to the district court's denial of its preliminary injunction [wa]s premised on a misunderstanding of regulatory terms, an unsupported reading of a duty to consider cumulative effects under ESA section 7(a)(2), and selected portions of the record taken out of context." Conservation Congress v. U.S. Forest Service, 720 F.3d 1048, 1058 (9th Cir. 2013).
Subsequently, on February 10, 2014, plaintiff voluntarily dismissed its ESA claims, and also dismissed Fish & Wildlife as a defendant. (ECF No. 73.) At present, the Forest Service remains as a defendant and Sierra Pacific remains as defendant-intervenor; plaintiff's sole claim arises under NEPA.
To date, Sierra Pacific has completed work on approximately 1585 acres (out of 2957 total acres) proposed for treatment under the Mudflow Project. (Bachmann Decl. ¶ 10.) Sierra Pacific had previously ceased work on the Mudflow Project in mid-March 2013. (Hadley Decl. ¶ 8, ECF No. 82.) On January 14, 2014, plaintiff's counsel was informed that Sierra Pacific would not resume Mudflow Project operations until "late summer" of 2014. (Dugan Decl. ¶ 3, ECF No. 77-5.) She began working with opposing counsel on a briefing schedule for cross-motions for summary judgment on plaintiff's NEPA claims. (Id. ¶ 5.) On March 6, 2014, plaintiff's counsel was informed that Sierra Pacific had changed its start date for resuming operations, to March 13, 2014. (Id. ¶ 6.) On March 11, 2014, plaintiff's counsel was informed that the date had changed again, to March 24, 2014. (Id. ¶ 13.)
Sierra Pacific's Division Timber Manager justifies the new start date as follows:
[Sierra Pacific] needs to resume Mudflow operations now for several reasons. First, whereas unusually adverse weather conditions in California (severe drought followed by torrential rains) have constrained [Sierra Pacific]'s operations on other projects, the Mudflow Project is currently operable. Extremely heavy rains that have left other projects with saturated soils have drained from the Mudflow Project's sandy soils. Because of the unusual weather constraints elsewhere, [Sierra Pacific]'s logger currently is without work, leaving at least 20 workers idle and unable to earn family wages. This situation, coupled with the lack of a snow pack on Mt. Shasta which bodes extremely ill for the upcoming fire season and likely will halt late summer operations, calls for operating the Mudflow Project now. (Hadley Decl. ¶ 9.)On March 13, 2014, plaintiff filed the instant motion for a TRO, seeking an order that would enjoin the Forest Service and Sierra Pacific "from proceeding with the Mudflow timber sale pending a final decision on the merits of this case. No bond is required." (Proposed Order, ECF No. 77-12.)
While no means dispositive of the questions presented herein, it bears mention that plaintiff is aware that this TRO is a long shot. In its points and authorities in support of its 2012 motion for a preliminary injunction, plaintiff wrote, "In candor, if Conservation Congress cannot obtain preliminary injunctive relief under the more generous standards provided by ESA, the premise of its first two claims for relief, it would be unlikely to obtain such relief under [NEPA], the premise of its third claim for relief. [. . .] Conversely, because Conservation Congress believes it satisfies the modified standard for injunctive relief found in the ESA, arguing alternatively is unnecessary." (ECF No. 44 at 7 n. 1.) On appeal, in its opening brief to the Ninth Circuit, plaintiff wrote, "Candidly, Conservation Congress moved only on its ESA claims because it believed that if it could not prevail on a motion for preliminary injunction under the more generous standards of the ESA, discussed below, it was unlikely to do so under NEPA." (Pl. 9th Cir. Op. Br., 2012 WL 3342647 at *10 n. 1.) In plaintiff's defense, it was not represented by its current lead counsel at the time those briefs were authored.
II. STANDARD
The issuance of injunctions and of temporary restraining orders is governed by Federal Rule of Civil Procedure 65. The standard for issuing a temporary restraining order is essentially the same as that for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is "substantially identical"). The moving party must demonstrate that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) that the relief sought is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has held that injunctive relief may issue, even if the moving party cannot show a likelihood of success on the merits, if "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation omitted).
Hereinafter, the term "Rule" refers to the applicable Federal Rule of Civil Procedure.
The moving party bears the burden of persuasion, and must make a clear showing that it is entitled to such relief. Winter, 555 U.S. at 22.
In deciding whether to issue a TRO, the district court "may give even inadmissible evidence [including hearsay] some weight, when to do so serves the purpose of preventing irreparable harm before trial." Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).
Every temporary restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.
Rule 65(d)(1).
III. ANALYSIS
Plaintiff essentially makes two arguments for issuance of a TRO: first, that the Forest Service failed to analyze the cumulative impact of several major timber sales near the Mudflow Project in the Final EIS, and second, that the Final EIS fails to discuss cumulative impacts in any meaningful detail. These arguments are addressed in turn below.
According to plaintiff, it is likely to succeed on the merits of its NEPA claim because "[t]he Forest Service failed to identify several major timber sales in the area, and failed to conduct any analysis of their cumulative effects." (Mot. 19, ECF No. 77.) Plaintiff claims to have identified "ongoing and reasonably foreseeable timber sales in close geographic proximity to the Mudflow [Project], which the Forest Service did not fully identify or address in its cumulative impacts analysis." (Id.) The timber sales in question, whose cumulative impacts plaintiff claims the Final EIS does not adequately address, are termed:
1. Harris Vegetation Management ProjectAs will be seen, plaintiff's argument does not support its motion.
2. Porcupine Vegetation and Road Project
3. Thimbleberry I
4. Thimbleberry II
5. Bordertown (Mot. 20.)
The Final EIS delineates the following cumulative effects analysis area: "Cumulative effects for the northern spotted owl are bounded by the Critical Habitat Unit (CHU) CA-2 which encompasses approximately 89,028 acres of National Forest and private lands." (MAR 000299.) A map on page 95 of the Final EIS shows the Mudflow Project area in relation to CHU CA-2. (MAR 000300.) The Final EIS notes, accurately, that "the Mudflow Project is almost entirely within" the boundaries of CHU CA-2. (MAR 000301.)
Plaintiff does not raise a challenge under the APA to the agency's determination of CHU CA-2 as the appropriate area for the cumulative effects analysis (whether as arbitrary and capricious, or as an abuse of discretion). Further, the Ninth Circuit has recognized that challenges to the geographic scope of an EIS are distinct from, rather than implicit in, a cumulative impacts analysis. "In this appeal, Plaintiffs argue that the geographic scope of the Service's EIS for this project is too small. This does not appear to be a cumulative impact challenge." Inland Empire Pub. Lands Council v. U.S. Forest Service, 88 F.3d 754, 764 (9th Cir. 1996) (emphasis in original). Finally, it is well-settled that the determination of a cumulative effects analysis area is a domain in which agencies are entitled to deference. "Cumulative environmental impacts are, indeed, what require a comprehensive impact statement. But . . . identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies." Kleppe v. Sierra Club, 427 U.S. 390, 413-14 (1976). Accord Native Ecosystems Council v. Dombeck, 304 F.3d 886, 902 (9th Cir. 2002) ("We acknowledge that the determination of the scope of an analysis area requires application of scientific methodology and, as such, is within the agency's discretion") (citing Kleppe). More than twelve pages of the Final EIS are devoted to an analysis of cumulative impacts within CHU CA-2. (MAR000299 - MAR000312). The Forest Service therein explains its choice of boundaries as follows:
Given the uncertainty around the [2008 northern spotted owl] Recovery Plan and the designation of critical habitat for the [northern spotted owl], the Forest [Service] has chosen to use the larger and more comprehensive 1992 critical habitat boundary for cumulative effects analysis. This boundary not only encompasses the 2008 boundaries in this area, it also has the greatest probability of including as much of the upcoming proposed critical habitat boundary, expected within the next year. (MAR000300.)This is a reasoned justification for the boundaries chosen. Given the foregoing, and the absence of any argument to the contrary by plaintiffs, the court declines to second-guess the Forest Service's selection of CHU CA-2 as the appropriate cumulative effects analysis area.
Having accepted the validity of the boundaries chosen by the Forest Service, the court must reject plaintiff's argument that the agency violated NEPA by failing to consider the cumulative impacts of the Harris Vegetation Management Project and the Porcupine Vegetation and Road Project. Defendant-intervenor Sierra Pacific has provided maps showing the location of these projects in relation to CHU CA-2. (Weiss Decl. Exhs. 2 & 3, ECF Nos. 83-2 & 83-3.) Both Projects appear to be sited outside of CHU CA-2's boundaries, and therefore, exempt from the cumulative effects analysis. Similarly, while there is no question that the Thimbleberry I timber harvesting project was publicly noticed on October 9, 2009 (Dugan Decl. Exh. B, ECF No. 77-7), i.e., well before the May 2011 release of the Final EIS, nevertheless, according to both the Forest Service and Sierra Pacific, Thimbleberry I lies on land outside of the CHU CA-2 cumulative effects analysis area. (Forest Service Oppo. 19; Sierra Pacific Oppo. 20.) Accordingly, this project is also exempt from the cumulative effects analysis.
What remains are the timber harvesting plans which plaintiff terms Thimbleberry II and Bordertown. It appears that Thimbleberry II was publicly noticed on January 8, 2014, and Bordertown on August 1, 2013. (Dugan Decl. Exhs. A & C, ECF Nos. 77-6 & 77-8.) NEPA regulations define "reasonably foreseeable future actions" as "[t]hose Federal or non-Federal activities not yet undertaken, for which there are existing decisions, funding, or identified proposals." 36 C.F.R. § 220.3. The Forest Service is under no statutory or regulatory obligation to consider actions which are not reasonably foreseeable in its cumulative impacts analysis. Given that the Final EIS was issued on May 2011, the notice dates for Thimbleberry II and Bordertown indicate that neither project was a reasonably foreseeable future action at the time the Final EIS issued on May 2011.
Plaintiff also claims that "[y]et other projects are named (Algoma, Moosehead, Elk, McCloud Flats), but not described or analyzed" in the Final EIS. (Mot. 20.) This contention is demonstrably false. A table on page 101 of the Final EIS quantifies projected effects of the Algoma and Moosehead projects on northern spotted owl habitat. (MAR 000306). A map on the following page displays all four of the named projects in spatial relation to CHU CA-2. (MAR 000307.) The accompanying text provides that "[t]he USFWS consulted with the Forest on . . . the . . . Algoma Vegetation Management Project[]; the other three projects are in the planning and analysis stage." (Id.) Further analysis of the Algoma Project is set forth on page 103 of the Final EIS. (MAR000308.) As for the Elk and East McCloud Projects, defendant Forest Service contends:
[T]he [] Final EIS explains that effects analyses for the Elk and East McCloud Projects were incomplete at the time of the [] Final EIS, therefore the amount of habitat affected, and the nature of those effects, were not yet known. [MAR000101]. Forest Service NEPA regulations define reasonably foreseeable future actions as "Federal or non-Federal activities not yet undertaken, for which there are existing decisions, funding, or identified proposals." 36 C.F.R. § 220.3. "Identified proposals" for Forest Service actions are those where the ForestThe Forest Service's supporting citation to Envtl. Prot. Info. Ctr. v. U.S. Forest Service, 451 F.3d 1005, 1014 (9th Cir. 2006) (holding that it was not arbitrary and capricious for the Forest Service to omit a project whose parameters were unknown from a cumulative impacts analysis) appears apt. In short, the Final EIS's treatment of the four challenged projects (Algoma, Moosehead, Elk, and East McCloud) appears sufficient to meet NEPA standards for a cumulative impact analysis. Plaintiff's argument, that the Forest Service was required, but failed, to take these projects into account in its analysis, is unavailing.
Service "is actively preparing to make a decision on one or more alternatives . . . and the effects can be meaningfully evaluated." 36 C.F.R. § 220.4(a)(1). Because the Forest Service has not yet reached this stage for either the Elk or East McCloud Projects where no draft EIS had been prepared yet for either project, the Forest Service was not required to speculate regarding the potential effects of either project. (Forest Service Oppo. 20-21, ECF No. 85.)
Plaintiff's second argument, that the Forest Service "omitted any meaningful discussion of cumulative impacts from its decision making" (Mot. 21), also appears to be without merit. Plaintiff supports its argument by again asserting that the Forest Service failed to include additional timber sales projects within the cumulative effects analysis area. But as plaintiff does not identify the allegedly-omitted sales projects with any specificity, this assertion fails.
Plaintiff's final argument is difficult, if not impossible, for this court to parse. It provides:
With respect to the [northern spotted owl], the Forest Service concludes "[t]here will be no direct effects to the northern spotted owl under all action alternatives, there is no activity proposed within 1/4 mile of any known activity center." MAR000293. In fact, the Forest Service takes the position that removing understory will help [northern spotted owls] fly through what it characterizes as "dense and relatively impassible." [sic] MAR 000293. The agency asserts that the Preferred Alternative (Alt. 2) "will degrade 1,720 acres of existing [northern spotted owl] foraging habitat by reducing canopy cover but the habitat will continue to function, and will be improved by thinning treatments that open up the understory." MAR000295. The Preferred Alternative is 2,957 acres so about 60% of the project would affect [northern spotted owl] habitat. While the Forest Service purported to evaluate the cumulative effects of other areas on [northern spotted owl] habitat under the ESA, it did not do so under NEPA. MAR000299. Lastly, the Forest Service recognized that since 2003, six projects within CHU CA-2 have temporarily degraded 6,514 acres of foraging/dispersal habitat (22% of the habitat). MAR000303. The Mudflow [P]roject would degrade 6,465 more acres and remove 673 acres, so another 22% of the CHU will be affected. MAR000310. Despite nearly 50% of the [northern spotted owl] foraging/dispersal habitat affected, the Forest Service does not further evaluate cumulative impacts. (Mot. 22-23.)One can only speculate as to what this paragraph means. The court's previous decision herein, as affirmed by the Ninth Circuit, made clear that plaintiff's argument therein "h[ung] upon its conflation of the technical and colloquial meanings of the word 'degrade.'" Conservation Congress, 2012 WL 2339765 at *12, 2012 U.S. Dist. LEXIS 84943 at *38. Something similar appears to be going on in this paragraph, given plaintiff's interchanging of the terms "degrade" and "affect." The Final EIS makes clear that "'degrading' is a categorical term used by the [U.S. Fish & Wildlife Service] that does not necessarily refer to a loss of habitat value. Habitat 'degradation' is used by the USFWS in their [northern spotted owl] tracking system to denote actions taken in habitat that maintain existing [northern spotted owl] habitat functionality (i.e., 'degraded' foraging habitat does remain fully functional as foraging habitat)." (MAR000303.) In other words, the Forest Service's use of the term "degrade" in the passages quoted by plaintiff is not alarming. And, ultimately, nothing presented in the quoted paragraph convinces the court that plaintiff has demonstrated any likelihood of success on its cumulative impact claim under NEPA.
This may be a reference to a sentence in the Final EIS which provides, "All private timber harvest plans must be reviewed by the State of California with consultation from the U.S. Fish and Wildlife Service (USFWS) under section 9 of the Endangered Species Act for the possibilities of prohibited take." (MAR000299.) This is the only reference to the ESA on the cited page. It is also an inarguable statement of applicable law.
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IV. CONCLUSION
In light of the foregoing, the court hereby orders that plaintiff Conservation Congress's motion for a temporary restraining order is DENIED.
IT IS SO ORDERED.
___________________
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT