EDMUND F. BRENNAN, District Judge.
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.
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."
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
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).
40 C.F.R. § 1508.8(b). A "cumulative impact" is:
40 C.F.R. § 1508.7 (emphasis added).
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.'"
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."
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 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.
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:
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."
The issuance of injunctions and of temporary restraining orders is governed by Federal Rule of Civil Procedure 65.
The moving party bears the burden of persuasion, and must make a clear showing that it is entitled to such relief.
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."
Every temporary restraining order must:
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:
As will be seen, plaintiff's argument does not support its motion.
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."
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:
The Forest Service's supporting citation to
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:
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.'"
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.