Alliance for the Wild Rockies v. Pena

• Decision Date: 01 August 2017
• Docket Number: No. 16-35856,16-35856
• Citation: 865 F.3d 1211
• Parties: ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. Jim PENA, in his official capacity as Regional Forester of Region Six U.S. Forest Service; United States Forest Service, an agency of the United States; Rodney Smoldon, in his official capacity as Supervisor of the Colville National Forest, Defendants-Appellees, and Stevens County; Northeast Washington Forestry Coalition; Pend Oreille County, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

865 F.3d 1211

ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant,

v.Jim PENA, in his official capacity as Regional Forester of Region Six U.S. Forest Service; United States Forest Service, an agency of the United States; Rodney Smoldon, in his official capacity as Supervisor of the Colville National Forest, Defendants-Appellees,andStevens County; Northeast Washington Forestry Coalition; Pend Oreille County, Intervenor-Defendants-Appellees.

No. 16-35856

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2017 Seattle, Washington

Filed August 1, 2017

Thomas John Woodbury (argued), Boise, Idaho, for Plaintiff-Appellant.

Rudy J. Verschoor (argued) and Vanessa R. Waldref, Assistant United States Attorneys; United States Attorney's Office, Spokane, Washington; for Defendants-Appellees.

Lawson Emmett Fite (argued), American Forest Resource Council, Portland, Oregon, for Intervenor-Defendants-Appellees.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and MORGAN B. CHRISTEN, Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Alliance for Wild Rockies (Alliance) appeals the district court's denial of a preliminary injunction in an action regarding the North Fork Mill Creek A to Z Project (A to Z Project) in the Colville National Forest in Colville, Washington. Alliance alleges that United States Forest Service (Forest Service) violated the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) when it approved the A to Z Project. The district court concluded that Alliance did not satisfy any of the four required factors for the issuance of a preliminary injunction. We affirm.

BACKGROUND

I. Statutory Schemes

A. NFMA

NFMA, 16 U.S.C. § 1600 et seq ., requires the Forest Service to develop and implement land and resource management plans (forest plans) for each national forest. 16 U.S.C. § 1604(a). "These plans operate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses (from logging to road construction), but do not directly compel specific actions, such as cutting of trees in a particular area or construction of a specific road." Citizens for Better Forestry v. U.S. Dep't of Agric ., 341 F.3d 961, 966 (9th Cir. 2003). Of particular relevance to this appeal, forest plans must, among other substantive requirements, (1) "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area," 16 U.S.C. § 1604(g)(3)(B), and (2)"insure that timber will be harvested from National Forest System lands only where ... protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat." Id. § 1604(g)(3)(E)(iii). "After a forest plan is developed, all subsequent agency action, including site-specific plans ..., must comply with NFMA and the governing forest plan." Ecology Ctr. v. Castaneda , 574 F.3d 652, 656 (9th Cir. 2009).

B. NEPA

NEPA, 42 U.S.C. § 4321 et seq. ,"is a procedural statute intended to ensure environmentally informed decision-making by federal agencies." W. Watersheds Project v. Abbey , 719 F.3d 1035, 1045 (9th Cir. 2013) (quoting Tillamook Cty. v. U.S. Army Corps of Eng'rs , 288 F.3d 1140, 1143 (9th Cir. 2002) ). NEPA requires agencies to take a "hard look" at the environmental consequences of proposed agency actions before those actions are undertaken. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt ., 387 F.3d 989, 993 (9th Cir. 2004). However, "NEPA does not mandate particular substantive results, but instead imposes only procedural requirements." Cold Mountain v. Garber , 375 F.3d 884, 892 (9th Cir. 2004) (citations and internal quotation marks omitted).

Pursuant to NEPA's implementing regulations, the agency proposing the action may prepare an environmental assessment (EA) to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement [ (EIS) ] or a finding of no significant impact [ (FONSI) ]." 40 C.F.R. § 1508.9(a)(1). An EA is a "concise public document" that "[s]hall include brief discussions of the need for the proposal, ... alternatives, ... the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." Id . § 1508.9(b). "If the EA reveals that the proposed action will significantly affect the environment, then the agency must prepare an EIS." Kern v. U.S. Bureau of Land Mgmt ., 284 F.3d 1062, 1067 (9th Cir. 2002). But, "[i]f the EA reveals no significant effect, the agency may issue a [FONSI]." Id.

II. The A to Z Project

The A to Z Project is a forest restoration project that encompasses 12,802 acres within the Colville National Forest, which is managed in accordance with the Colville National Forest Land and Resource Management Plan (Colville Forest Plan). The A to Z Project is generally comprised of commercial timber harvest treatments, road maintenance, stream restoration, and culvert replacements. The commercial timber harvest treatments include commercial thinning, shelterwood harvest, and aspen restoration, with the goals of increasing tree diversity, improving stand productivity and wildlife habitat, and reducing the severity of insect, disease, and wildfire threats. The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.

The Forest Service is empowered to "enter into stewardship contracting projects with private persons or other public or private entities to perform services to achieve land management goals for the national forests and the public lands that meet local and rural community needs." 16 U.S.C. § 6591c(b). Pursuant to this authority, the Forest Service offered the A to Z Project to private contractors as a stewardship contract. Rodney D. Smoldon, the Forest Supervisor for the Colville National Forest, explained that "[t]he intent of this contract [was] to manage a piece of the Colville [National Forest] system lands from the planning stage through completion of all product removal and service work activities." Pursuant to the proposal, the successful bidder would be responsible for hiring and funding a private contractor to perform the required NEPA analysis of the A to Z Project.

The Forest Service officially solicited proposals from the public for a contractor that would conduct all of the work required by the A to Z Project, but only a single bidder, Vaagen Brothers Lumber, submitted a proposal. Vaagen Brothers Lumber was awarded the contract, and it hired Cramer Fish Sciences to perform the NEPA analysis of the A to Z Project.

Cramer Fish Sciences prepared the EA, which was reviewed and approved by the Forest Service. On March 11, 2015, the Forest Service released the EA for public comment. The Forest Service subsequently retracted and revised the EA to address concerns raised by the public, and issued the final EA on February 16, 2016. On June 13, 2016, Smoldon signed the FONSI and Decision Notice approving the A to Z Project.

III. Procedural History

On August 18, 2016, Alliance filed this lawsuit challenging the Forest Service's decision to approve the A to Z Project. On September 6, 2016, Alliance filed a Motion for a Preliminary Injunction with the district court. Stevens County, Pend Oreille County, and the Northeast Washington Forestry Coalition subsequently intervened as defendants.

On October 14, 2016, the district court held a hearing on Alliance's motion. After hearing from all parties, the district court handed down an oral decision denying Alliance's Motion for a Preliminary Injunction. The district court subsequently issued a written decision memorializing its ruling. In particular, the district court found that (1) Alliance failed to demonstrate a likelihood of success or "serious questions" going to the merits of its NFMA and NEPA claims, (2) Alliance's allegations of harm were "too speculative to demonstrate a concrete and particularized harm that creates an irreparable injury," (3) the balance of the equities weighed against an injunction because of the A to Z Project's intended environmental benefits and current impact on the local economy, and (4) public interest also weighed against an injunction for the same reasons. On October 17, 2016, Alliance timely appealed.

STANDARD OF REVIEW

"We review the denial of preliminary injunctive relief for abuse of discretion." Friends of the Wild Swan v. Weber , 767 F.3d 936, 942 (9th Cir. 2014). A district court abuses its discretion when it "base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id. (quoting Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y , 725 F.3d 940, 944 (9th Cir. 2013) ).

"Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act (‘APA’)." Native Ecosystems Council v. U.S. Forest Serv. , 428 F.3d 1233, 1238 (9th Cir. 2005). Under the APA, agency action is unlawful if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "An agency action is arbitrary and capricious ‘only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ " Defs. of Wildlife v. Zinke , 856 F.3d 1248, 1257 (9th Cir. 2017) (quoting Conservation Cong. v. U.S. Forest Serv. , 720 F.3d...