Conservation Cong. v. U.S. Forest Serv.
| Decision Date | 29 October 2018 |
| Docket Number | No. 2:18-cv-02404-JAM-CKD,2:18-cv-02404-JAM-CKD |
| Parties | CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant. |
| Court | U.S. District Court — Eastern District of California |
In late 2017, the Cove Fire blazed through thousands of acres in the Modoc National Forest. Following the fire, Defendant United States Forest Service (the "Forest Service") developed and implemented the Cove Fire Salvage and Restoration Project (the "Project") to remove fire-damaged trees in the area. Before this Court is Plaintiff Conservation Congress's Motion for a Preliminary Injunction challenging the Project. Mot., ECF No. 11. Conservation Congress seeks an Order from this Court ordering the Forest Service to conduct additional surveys prior to logging, designate habitat, and prohibit activities that impact habitat. Prelim. Inj. Mem., ECF No. 17. The Forest Service opposes this Motion. Opp'n, ECF No. 22.1 For the reasons set forth below, the Court denies Plaintiff's Motion.
The Cove Fire ravaged 30,774 acres, over half of which experienced high to very high burn severity and over 75 percent tree mortality. AR 20-22. The Project seeks to salvage fire-killed and fire-injured trees on approximately 982 acres within the perimeter of the Cove Fire, remove roadside hazard trees on 398 acres, and perform fuel and slash treatment and reforest 1,380 acres. AR 29. After completing a draft Environmental Assessment, the Forest Service issued a Decision Notice and Finding of No Significant Impact for the Project, followed by the final Environmental Assessment. Compl., ECF No. 1, pp. 19-20.
The Forest Service utilized the Emergency Situation Determination procedure to begin the Project immediately upon agency approval. Compl. at 23, 26-27. The Forest Service has already completed logging in the Barber Canyon area of the Project and Conservation Congress seeks to enjoin the next phase in Dutch Flat Creek. Mot. at 5. Conservation Congress challenges the Project, arguing that it inadequately analyzed impact on two species: the Northern Goshawk, a bird, and the Modoc Sucker, a fish.
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A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff must establish (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Id. at 20.
Plaintiff's claims are based on three federal statutes: the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Administrative Procedure Act ("APA"). The APA supplies the Court with the authority to review federal agency decisions under NEPA and the NFMA. All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1216-17 (9th Cir. 2017). Under the APA, a reviewing court may only overturn agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Arbitrary and capricious review is narrow and does not allow a court to substitute its judgment for that of the agency. Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012). An agency "must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.United States, 371 U.S. 156, 168 (1962)). Courts are particularly deferential "when reviewing an agency's technical analyses and judgments involving the evaluation of complex scientific data within the agency's technical expertise." League Of Wilderness Defs. Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010).
"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.'" Pena, 865 F.3d at 1217 (quoting Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1257 (9th Cir. 2017)).
Conservation Congress's Complaint alleges nine claims under NEPA, the NFMA, and the APA. See Compl. The Court confines its inquiry about the likelihood of success to the three claims upon which Conservation Congress relies in its Motion for Preliminary Injunction: the Fourth, Fifth, and Seventh claims. See Mot at 5.
Under the NFMA, the Forest Service must ensure the consistency of site-specific projects with approved forest plans. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(b); All. for the Wild Rockies v. United States Forest Serv., 899 F.3d 970, 974 (9thCir. 2018). Project approval documents must describe the project's consistency with the forest plan, which a project may show by conforming to the forest plan's applicable components and conditions. All. for the Wild Rockies, 899 F.3d at 974-75. The Forest Service must amend, modify, or reject projects that fail to conform with the forest plan. 36 C.F.R. § 219.15(c).
In its fourth claim, Conservation Congress argues that the Forest Service violated the NFMA and the APA by failing to demonstrate compliance with the Sierra Nevada Forest Plan Amendment (hereinafter, "Sierra Nevada Amendment") and the Modoc Land and Resource Management Plan (hereinafter, "Modoc Plan") Standards and Guidelines for the Northern Goshawk. Compl. at 29-31. The Northern Goshawk is a species of concern, but is not listed as threatened or endangered by the Endangered Species Act. See Compl. at 12.
Conservation Congress believes that the Project is not in compliance with the Sierra Nevada Amendment and Modoc Plan for four reasons. Compl., ECF No. 1, pp. 29-31. With respect to the Goshawk, Conservation Congress alleges the Forest Service (1) failed to conduct nesting, Protected Activity Center, and habitat surveys pursuant to Amendment Guideline #34 and the Modoc Plan; (2) failed to comply with Sierra Nevada Amendment guidelines by allowing logging in and exceeding the 5-10% logging limitation in Goshawk Protected Activity Centers pursuant to Amendment Guidelines #71, ##76-77, and #81; (3) failed to analyze the percent of the Project mechanically treated in combination with other projects pursuant to Amendment Guidelines #81 and the Modoc Plan; and (4) failed to provide and maintain habitat for100 pairs of Goshawks pursuant to the Modoc Plan. Id.
Central to the present dispute is whether the Sierra Nevada Amendment's Standards and Guidelines apply to the Project. The Sierra Nevada Amendment is a 2004 decision that amends existing forest management plans by establishing management goals, land allocations, desired future conditions, standards and guidelines for management actions, and a strategy to support adaptive management. Admin. R. ("AR") 1098. The Forest Service incorporated the Sierra Nevada Amendment into the 1991 Modoc Plan; however, this incorporation explicitly excluded the Big Valley Sustained-Yield Unit from amendment. Id. According to the Project's Environmental Assessment, the Project is within the North Adin Management Area, within the Big Valley Federal Sustained-Yield Unit. AR 20. The Forest Service argues that any efforts made to comply with the more stringent Sierra Nevada Amendment were voluntary, as the Project needed only comply with the Modoc Plan's standards and guidelines. Opp'n at 2-3.
Even if the Sierra Nevada Amendments govern, the Forest Service argues it has complied with those standards and guidelines. Opp'n at 3. The primary guideline upon which the Forest Service relies is Sierra Nevada Amendment Guideline #16. This guideline allows for salvage harvests in Protected Activity Centers if they have been rendered unsuitable as habitat by a catastrophic "stand replacing" event, in which most of the highest layer of forest vegetation dies due to fire severity. AR 1136. The Project area here includes three Northern Goshawk Protected Activity Centers. AR 20. The Cove Fire rendered two of these centers unsuitable for the bird due to "stand replacing"fire. AR 253. The remaining activity center has been unoccupied by Northern Goshawks for the previous six years of surveys. Id. Under this guideline, performing salvage harvest in severely fire-damaged Protected Activity Centers would not violate the NFMA.
The Court is unpersuaded that Conservation Congress's first argument, that the Forest Service violated Sierra Nevada Amendment Guideline #34, AR 1137, has a likelihood of success. The evidence before the Court shows that the Forest Service complied with the guideline by conducting surveys within the Northern Goshawk's Protected Activity Centers during the Project's planning. AR 196-97; Johnson Decl., ECF No. 22-3.
Similarly, it appears that the Forest Service has complied with Sierra Nevada Amendment Guideline #71. AR 1142-43. The Project's treatment area includes two Protected Activity Centers rendered unsuitable as habitat by the catastrophic Cove Fire and burned areas of another center that has been unoccupied by Northern Goshawks for the past six years. Guideline #71 does not require that the Forest Service remap the area during project planning, but rather states that protected activity centers "may" be remapped. Although a 2018 surveyor...
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