Earth Island Inst. v. Elliott

• Decision Date: 09 July 2018
• Docket Number: 1:17–cv–01320–LJO–SAB
• Citation: 318 F.Supp.3d 1155
• Parties: EARTH ISLAND INSTITUTE and Sequoia ForestKeeper, Plaintiffs, v. Kevin ELLIOTT, in his official capacity as Forest Supervisor of the Sequoia National Forest, et al., Defendants, and Sierra Forest Products, a California corporation, Defendant–Intervenor.
• Court: U.S. District Court — Eastern District of California

318 F.Supp.3d 1155

EARTH ISLAND INSTITUTE and Sequoia ForestKeeper, Plaintiffs,

v.Kevin ELLIOTT, in his official capacity as Forest Supervisor of the Sequoia National Forest, et al., Defendants,andSierra Forest Products, a California corporation, Defendant–Intervenor.

1:17–cv–01320–LJO–SAB

United States District Court, E.D. California.

Signed July 9, 2018

Rene Peter Voss, Law Office of Rene Peter Voss, San Anselmo, CA, Matt Kenna, Pro Hac Vice, Public Interest Environmental Law, Durango, CO, for Plaintiffs.

Joseph Frueh, United States Attorney's Office, Sacramento, CA, for Defendants.

Sara Ghafouri, Pro Hac Vice, Portland, OR, Thomas C. Brodersen, Williams, Brodersen, Pritchett & Burke LLP, Visalia, CA, for Defendant–Intervenor.

MEMORANDUM DECISION AND ORDER RE CROSS–MOTIONS FOR SUMMARY JUDGMENT, REQUEST FOR EXPEDITED CONSIDERATION, AND MOTION TO AMEND THE COMPLAINT

(ECF Nos. 39, 41, 42, 46, and 48)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Earth Island Institute and Sequoia ForestKeeper ("Plaintiffs") brought this suit against Defendant Kevin Elliott, in his official capacity as Forest Supervisor of the Sequoia National Forest, and the United States Forest Service ("USFS") (together, "Federal Defendants"), challenging the decision to authorize a logging operation along approximately 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument, without preparing an Environmental Assessment ("EA") for the project. Plaintiffs argue that the decision violates the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 39, 41, and 42. Plaintiffs also have moved for expedited consideration of the cross-motions for summary judgment and for leave to file an amended complaint. ECF Nos. 46 and 48. For the following reasons, Plaintiffs' motion to amend the complaint is GRANTED, Plaintiffs' motion for summary judgment is DENIED, Federal Defendants' motion for summary judgment is GRANTED, Defendant–Intervenor's motion for summary judgment is GRANTED, and Plaintiffs' motion for expedited consideration is DENIED AS MOOT.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case involves a USFS fire salvage restoration project proposed and approved by the USFS to treat a strip of land along an area of roadways affected by the Cedar Fire. The Cedar Fire began on August 16, 2016 and burned over 29,000 acres of mixed conifer and white fir forest, most of which was in the Sequoia National Forest. BR 168.¹ The USFS is working to abate the hazards associated with this burned area of forest, including through the "Bull Run" project, which is planned to involve felling dead and dying trees along 50.2 miles of road along the east side of the Greenhorn Mountains, outside the Giant Sequoia National Monument. This project would treat up to 3,500 of the 29,000 acres in the Cedar Fire burn area. ECF No. 22–1, Declaration of Kevin B. Elliott ¶ 7.

Much of the USFS's reasoning regarding regulatory issues related to the Bull Run project is set forth in a Revised Decision Memo, which outlines the proposed project as one designed to "mitigate the hazards to public safety posed by the dead and dying trees along approximately 50.2 miles of road in the project area," which consists of approximately 3,500 acres on the border of Tulare and Kern Counties, roughly 30 miles southeast of Porterville, CA. BR 1. The project will abate hazard trees within 300 feet of each side of the road.² Hazard trees will be identified using Forest Service guidelines and will be felled if they "could potentially strike within the road's clearing width, or could roll or slide into the clearing after they fall." Id. at 2. Dead, dying, or damaged trees unlikely to fall into the road will not be felled unless they present a hazard to workers, and the memo is clear that the project "is not authorizing a ‘clearcut’ within 300 feet of road edges." Id. at 3. See also BR 208 (standing dead trees within the 300–foot buffer of the road "incapable of hitting the road prism would be left standing"). Felled trees will be removed if they "represent an obstruction to use and maintenance within the road's clearing width," if leaving the tree in place will increase fuel loading, or if removal is needed for the reforestation process. Id. Felled logs may be chipped or burned, and logs "considered to have commercial value may be sold as saw timber, cull logs, firewood, chips, posts, and poles," and branches and limbs may also be sold. Id. Some logs "will be left in place for habitat" and to meet the standard under the 2004 Sierra Nevada Forest Plan Amendment for down woody material retention. Id. Finally, the project will include activities to restore organic ground cover and to reforest the habitat, including planting seedlings, scattering seeds, and increasing organic ground cover by scattering limbs, branches, and chips. Id.

Pursuant to NEPA, 42 U.S.C. § 4332, the USFS undertook an analysis of the Bull Run project's potential effects on wildlife in an 86–page Biological Evaluation ("BE"), BR 157, and a 30–page Biological Assessment, BR 127. It also consulted with the U.S. Fish and Wildlife Service, which produced a 22–page Biological Opinion concerning the potential impacts of the project on species listed under the Endangered Species Act). BR 72. Under NEPA, proposed agency action need not be subject to further analysis through an Environmental Impact Statement ("EIS") or EA "if there are no extraordinary circumstances related to the proposed action" and the action fits into a categorical exclusion ("CE"), a category of action that the agency has determined does not have significant effects on the environment. 36 C.F.R. § 220.6. The USFS determined that the project fit into three CEs, for road repair and maintenance (CE–4), timber stand and/or wildlife habitat improvement activities (CE–6), and post-fire rehabilitation activities (CE–11). BR 3–4; 36 C.F.R. § 220.6(d)(4), (e)(6), (e)(11).

The USFS also determined that there were no extraordinary circumstances related to the project that would trigger further review through an EIS or EA pursuant to NEPA. Before approving a project under an agency-adopted CE, an agency must examine whether a particular project presents "extraordinary circumstances in which a normally excluded action may have a significant environmental effect." 40 C.F.R. § 1508.4. A determination as to the significance "requires considerations of both context and intensity." 40 C.F.R. § 1508.27. The agency is directed to examine "the degree of the potential effect of a proposed action on" things such as "Federally listed threatened or endangered species" or "Forest Service sensitive species." 36 C.F.R. § 220.6(b). The USFS did not find that the Bull Run project would have significant adverse impacts to the Pacific fisher or California spotted owl ("CSO") that would require the project to undergo further NEPA analysis.

The Pacific fisher is a "sensitive species"³ but is not endangered or threatened. ⁴

BR 161. There are "no [fisher] den sites in the project analysis area," BR 204, and research in the Sierra National Forest has shown that fishers do not use "high severity burn areas" at least in the immediate aftermath of a fire, though there is "some evidence of limited foraging occurring along the burn edge." BR 210. Fishers appear to favor "landscapes with more contiguous, unfrequented forests and less human activity" and are negatively associated with road density. BR 203. Fisher are forest-interior species, and habitat near roads represents "represent lower habitat quality due to disturbance related influences, habitat fragmentation, edge effects and collisions." BR 210. The existence of roads has already affected the canopy cover in the area, BR 208, and the project "focuses its efforts to encompass areas of highest burn severity where low canopy cover and structural attributes needed for resting and denning activity are no longer present." BR 210. The BE determined that the fire reduced "large woody debris" in many areas and that the project's features to retain large woody debris would increase high-quality habitat to "improve complexity and structure at the forest floor" and promote a diversity of prey for the fisher. BR 209–10. "Dead or dying trees can provide resting and denning habitat for fisher." BR 210. While acknowledging that the removal of some hazard trees "could remove a den or rest tree for the fisher," the project would retain over 200,000 conifer-dominated snags greater than 15 inches DBH⁵ in the project area, a figure that includes snags in untreated areas "as well as an average of four snags per acre retained in treated areas according to the design criteria." BR 210.

In addition to the comments they submitted during the comment period, BR 385, Plaintiffs submitted supplemental comments concerning the potential effects on fisher habitat connectivity, BR 320. Plaintiffs argued that the Bull Run project is similar to the Rancheria project, where the USFS ordered a supplemental NEPA analysis in light of concerns about "habitat fragmentation and loss of connectivity caused by the Cedar Fire." BR 323. They contended that the USFS undertook no supplemental analysis to ensure that the fisher population in the Southern Greenhorn Mountains was not isolated in the wake of the fire. Id.

Like the Pacific fisher, the CSO is sensitive but not endangered or threatened. BR 161. Also like the Pacific fisher, the CSO is a forest-interior species that is less likely to nest near roads. BR 210. The USFS undertook an analysis of the potential effects on the CSO, examining metrics including total available habitat and acres treated; estimated changes in structural characteristics of the habitat, such as canopy, snags, and large woody debris; disturbance effects; and the number of acres treated of certain...