Opinion
Civil No. 04-488-HA.
May 12, 2004
Stephanie M. Parent, Susan Jane M. Brown, Pacific Environmental Advocacy Center, Ralph O. Bloemers, Christopher G. Winter, Cascade Resources Advocacy Group, Portland, Oregon, Attorneys for Plaintiffs.
Karin J. Immergut, United States Attorney, Jeffrey Handy Assistant United States Attorney, Owen L. Schmidt Special Assistant U.S. Attorney, USDA-Office of the General Counsel, Portland, Oregon, Attorneys for Federal Defendants.
Scott W. Horngren, Julie A. Weis, Haglund Kelley Horngren Jones L.L.P., Portland, Oregon, Michael W. Dundy, D.R. Johnson Lumber Company, Riddle, Oregon, Attorneys for Intervenor-Defendant D.R. Johnson Lumber Company.
OPINION AND ORDER
Plaintiffs filed a complaint seeking declaratory and injunctive relief on April 8, 2004. On April 22, 2004, plaintiffs moved for a temporary restraining order and a preliminary injunction. Oral argument on the motion for a temporary restraining order was heard on April 27, 2004, and at the conclusion of the hearing this court denied plaintiffs' Motion for a Temporary Restraining Order (Doc. # 12-1) in open court. This Opinion and Order formalizes that ruling.
BACKGROUND
This litigation arises from salvage efforts following the forest fire on the Malheur National Forest that occurred in Oregon in 2002. The fire is referred to as the "Flagtail fire." Plaintiffs sought a temporary restraining order precluding defendant United States Forest Service ("Forest Service") and, in turn, intervenor D.R. Johnson, from proceeding with the Flagtail Fire Recovery Project. This court previously issued a Temporary Restraining Order February 14, 2003, pertaining to Flagtail fire salvage logging. This court concluded that the plaintiffs established a likelihood of success in their efforts to show that the Forest Service was misapplying a "road hazard maintenance" exception in allowing the commercial harvest of approximately 15,000 trees along a 200-foot corridor bracketing certain roads located in the site of the Flagtail fire without a more searching inquiry into the environmental impact of the harvest.
The Forest Service subsequently prepared and completed the Flagtail Fire Recovery Project Environmental Impact Statement (hereinafter referred to as the EIS) on March 5, 2004. On April 8, 2004, plaintiffs filed a Complaint alleging that this EIS was improper. When plaintiffs learned that a timber sale contract was being awarded and logging was set to begin on April 23, 2004, they moved for a restraining order and a preliminary injunction. The parties agreed to halt logging plans until the motion for a restraining order was heard on April 27, 2004.
Plaintiffs challenge this EIS contending generally that the EIS fails to meet the first of the EIS's six stated purposes and goals, which is to reduce future fuel loadings in accordance with the National Fire Plan. In particular, plaintiffs are concerned about the plan to remove dead and dying standing trees. Plaintiffs believe that these standing trees act as a natural fire retardant and can cool high intensity fires. In contrast, the large volumes of fine slash that can result from salvage logging operations could create a climate ripe for future high intensity fires, plaintiffs assert.
Plaintiffs challenge the EIS with eight specific claims:
1. Failure to fully disclose cumulative effects;
2. Failure to disclose opposing views;
3. Improper designation of marking of dead/dying trees;
4. Improper determination of an "Emergency Situation;"
5. Violations of National Environmental Policy Act of 1969 ("NEPA");
6. Improper use of a literature review regarding snag habitats;
7. Failure to maintain viable populations; and
8. Improper invocation of the Emergency Declaration.
Plaintiffs also challenge the request made initially in November 2003 by the Malheur National Forest for an "emergency situation determination" from the Regional Forester pursuant to 36 C.F.R. § 215.2 and 215.10, regulations adopted in June 2003. The emergency was termed an economic one, based upon an initial projected loss of over $1 million if salvage logging was not undertaken quickly. The projected loss was amended twice. After the emergency determination request was granted on February 13, 2004, the Malheur National Forest "updated" the Regional Forester by acknowledging that the previously reported economic loss of over $1 million was projected to actually be $440,000. The Regional Forester issued a reply on April 5, 2004, concluding that the "emergency situation determination continues to be appropriate."
STANDARDS
The court may issue a temporary restraining order or preliminary injunction under the traditional test used by the United States Court of Appeals for the Ninth Circuit "if it finds that (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief." Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). To obtain a restraining order or a preliminary injunction, plaintiffs must show either (1) a combination of a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in their favor. Roe v. Anderson, 134 F.3d 1400, 1401 (9th Cir. 1998).
The critical element in determining which test to apply is the relative hardship to the parties. Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quoting Benda v. Grand Lodge of Int'l Ass'n of Machinists Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978)). "If the balance of harm tips decidedly toward plaintiffs, then plaintiffs need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id.
"`These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.'" Hunt v. Nat'l Broad. Co., 872 F.2d 289, 293 (9th Cir. 1989) (quoting United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987)).
For purposes of injunctive relief, "serious questions" are questions that cannot be resolved at the injunction hearing and upon which the court perceives a need to preserve the status quo. Gilder, 936 F.2d at 422, (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). Serious questions are substantial, difficult and doubtful, and establish a "fair ground" for continued litigation and the more deliberative investigation that is achieved when a case proceeds to trial. Id. (interior citations omitted). Serious questions must involve a fair chance of success on the merits but need not promise a certainty, or even a probability, of success. Id. (citations omitted). Even if the balance of hardships tips sharply in plaintiffs' favor, plaintiffs must, as an irreducible minimum, demonstrate that there is a fair chance of success on the merits. Stanley v. Univ. of So. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994).
When considering the issuance of a injunction in a case in which the court will need to address the environmental impact of a proposed agency action, the court must assume that "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). Consequently, where plaintiffs have shown that environmental injury is "sufficiently likely, the balance of the harms will usually favor the issuance of an injunction to protect the environment." Id.
However, the public interest must be considered where the relief sought by the applicants might affect the public. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (where an injunction is requested which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to plaintiffs).
The purpose and intent of NEPA is to foster better decision-making and to facilitate informed public participation for actions affecting humans and nature. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1(c). The Ninth Circuit recognizes that:
NEPA imposes a procedural requirement that an agency must contemplate the environmental impacts of its actions. Inland Empire Pub. Lands v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996) (finding that NEPA is concerned with the process of disclosure, not any particular result). NEPA "ensures that the agency . . . will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); Inland Empire, 88 F.3d at 758.Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149-50 (9th Cir. 1998).
A court reviewing an EIS must make a "pragmatic judgment as to whether the EIS promoted informed decisionmaking and public participation, without substituting its judgment for that of the agency concerning the wisdom or prudence of a proposed action." California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). Courts should afford agencies wide discretion to define the purpose of a project. Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998) (quotation omitted).
An EIS should be upheld if its discussion of the significant aspects of the probable environmental consequences is reasonably thorough. Id. at 1062-63 (quotation omitted). A court's review should end once it is satisfied that the proposing agency took a hard look at a decision's environmental consequences, and the court should not "fly-speck" the EIS for inconsequential deficiencies. Id. at 1063 (citations and quotations omitted).
ANALYSIS
In light of the greater deference afforded to the process invoked by an agency in presenting an EIS, this court concluded that neither the seriousness of the questions raised nor the likelihood of plaintiffs' success regarding their challenge to the EIS was sufficient to warrant the extraordinary relief presented in a temporary restraining order. Accordingly, at the hearing the court directed the parties to focus upon whether the Forest Service's adoption in June 2003 of 36 C.F.R. § 215.2, 215.10, the administrative appeal regulation that authorizes a Regional Forester to make an "emergency determination" and proceed with implementing a project immediately, should qualify as a major federal action significantly affecting the quality of the human environment. If so, an environmental analysis under NEPA was required prior to adoption.
Plaintiffs rely upon a Ninth Circuit decision last year recognizing that the Forest Service's land management planning regulations can be construed as major federal actions that may significantly affect the quality of the human environment. See Citizens for a Better Forestry v. United States Dept. of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003). Plaintiffs assert that at the very least, serious questions exist as to whether the June 2003 adoption of administrative regulations permitting the immediate implementation of forest projects should have invoked NEPA review as a major federal action that could significantly affect the quality of the human environment.
Moreover, plaintiffs assert that besides the issue of determining whether NEPA review was necessary, there are also serious questions as to whether the implementation of the emergency regulation was arbitrary and capricious. Plaintiffs emphasize that the previously reported projected economic loss of over $1 million was amended and currently has been reduced to $440,000, and that the expected revenue from the salvage sale will be surpassed by preparation costs, which plaintiffs assert moots the "emergency" determination.
The Forest Service and the intevenor contend that the administrative action last June, by itself, did nothing to alter the natural physical environment, and that therefore NEPA review was unnecessary. See Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir. 1995) (holding that NEPA inapplicable to federal actions "that do nothing to alter the natural physical environment").
This court has examined the parties' authorities and their respective positions as to whether the Forest Service's adoption in June 2003 of 36 C.F.R. § 215.2, et seq., should have undergone NEPA scrutiny. The parties advised the court that this question is being litigated elesewhere, but no substantive analysis or ruling has yet been issued judicially. While the questions presented are as yet unresolved, plaintiffs have failed to establish a likelihood of success regarding either their challenge to the June 2003 adoption or to the EIS generally. Plaintiffs' related argument that an economic emergency is lacking merely because preparation costs outstrip the revenue projected for the salvage sale also fails to raise sufficiently serious questions. The regulations define economic emergency situation as that which would "result in substantial loss of economic value to the Federal Government if implementation of the decision were delayed." 36 C.F.R. § 215.2. The current projected loss of $440,000 is itself undisputed.
In the absence of a demonstrated likelihood of success on the merits of plaintiffs' action, this court turned to evaluating the respective claims of harm that could result from the imposition or the denial of the extraordinary relief being sought by plaintiffs. As recognized above, the degree of harm necessary for the invocation of a restraining order is greater in cases in which the plaintiff's probability of success on the merits is questionable. When viewed from the perspective of the competing and conflicting public interest concerns arising in this litigation, and in light of plaintiffs' failure to establish a likelihood of success on the merits, this court is compelled to deny plaintiffs' request for the extraordinary relief of a restraining order.
CONCLUSION
For the reasons presented above plaintiffs' Motion for a Temporary Restraining Order (doc. # 12-1) has been denied. The parties are ordered to consult and determine an appropriate schedule for briefing and a hearing concerning plaintiffs' remaining Motion for Injunctive Relief (Doc. # 12-2). A Joint Status Report shall be filed within twenty days of this Opinion and Order offering a proposed life schedule for the remaining litigation.
IT IS SO ORDERED.