Earth Island Inst. v. Nash, No. 1:19-cv-01420-DAD-SAB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesEARTH ISLAND INSTITUTE, et al., Plaintiffs, v. KIMBERLY NASH, et al., Defendants.
Docket NumberNo. 1:19-cv-01420-DAD-SAB
Decision Date21 April 2020

EARTH ISLAND INSTITUTE, et al., Plaintiffs,
v.
KIMBERLY NASH, et al., Defendants.

No. 1:19-cv-01420-DAD-SAB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 21, 2020


ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION, DENYING DEFENDANTS' MOTION TO STRIKE, AND DENYING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER

(Doc. Nos. 47, 67, 91)

This matter is before the court on a motion for preliminary injunction brought by plaintiffs Earth Island Institute ("Earth Island"), Greenpeace, Inc., Sequoia ForestKeeper, and James Hansen (collectively, "plaintiffs"). (Doc. No. 67.) A hearing on the motion was held on December 3, 2019. On behalf of plaintiffs, attorney Meriel Darzen appeared at the hearing in person and attorneys Ralph Bloemers and Dan Galpern appeared telephonically. Attorneys Tyler Alexander and Dustin Weisman of the Natural Resources Section of the U.S. Department of Justice appeared on behalf of defendants Kimberly Nash, United States Department of Housing & Urban Development ("HUD"), Jason Kuiken, and United States Forest Service ("Forest Service") (collectively, "the federal defendants"). California Deputy Attorney Generals Awbrey Yost and Kimberly Gosling appeared on behalf of defendants Janice Waddell and California Department of Housing and Community Development ("California HCD") (collectively, "the state defendants").

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Attorney Lawson Fite appeared telephonically on behalf of amicus party Yosemite Stanislaus Solutions. Having reviewed the parties' briefing and heard oral argument, and for the reasons explained below, plaintiffs' motion for a preliminary injunction will be denied and defendants' motion to strike will be denied.1

BACKGROUND

In their complaint, plaintiffs allege the following. In 2013, the Rim Fire burned 257,000 acres in Stanislaus National Forest and part of Yosemite National Park. (Doc. No. 1 ("Compl.") at ¶ 53.) President Barack Obama declared the Rim Fire a national disaster. (Id.) Subsequently, defendant Forest Service proposed two projects for logging and reforestation work in the Stanislaus National Forest. (Id. at ¶ 54.) The projects were entitled the Rim Fire Recovery ("Recovery") and Rim Fire Reforestation ("Reforestation") projects. (Id.) In order to satisfy requirements of the National Environmental Policy Act of 1969 ("NEPA"), defendant Forest Service completed and issued environmental impact statements ("EIS") for the Recovery and Reforestation projects in 2014 and 2016, respectively. (Id.)

The Recovery project is intended to

restore the forest at a landscape scale; conserve ecological structures, processes, and functions that are desirable and sustainable for future forested conditions; . . . restore ecosystem function, process, and resiliency by addressing issues related to vegetative composition and structure, forest health, fuels,2 hardwood and wildlife habitat improvement, and socio-economic objectives.

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(Id. at ¶ 55.) The Reforestation project is intended to "[c]reate a fire resilient mixed conifer forest," and its EIS notes that "[n]atural conifer regeneration cannot be counted on within large portions of the Rim Fire." (Id. at ¶ 56.) In August 2014 and August 2016, defendant Forest Service issued Records of Decision3 for the Recovery and Reforestation EISs. (Id. at ¶ 57.) Since those decisions were issued, defendant Forest Service has not collected updated plot-level data for the areas proposed for logging to determine the extent to which the forest was regenerating on its own and, specifically, to identify the current levels of conifer regeneration in the Rim Fire area. (Id. at ¶ 58.)

In 2016, defendant HUD awarded California $70,359,459 in National Disaster Resilience Competition (NDRC) Community Development Block Grant money to assist with the recovery efforts in Tuolumne County. (Id. at ¶ 64.) The NDRC grant is a competitive grant sourced from funds allocated by the Disaster Relief Appropriations Act of 2013 ("Relief Act"). (Id. at ¶62.) Defendant California HCD is the "responsible entity"4 for the NDRC grant to California. (Id. at ¶ 70.) Defendant California HCD submitted the California NDRC grant application, titled the Community Watershed Resilience Program. (Id. at ¶ 65.) The application was for a program divided into three components: the Forest and Watershed Health Program ("the Logging Project"), the Biomass Utilization Facility ("the Biomass Facility"), and the Community Resiliency Centers. (Id.)

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The Logging Project involves passing approximately $28 million back to the federal government and other entities to fund some of the activities contemplated in the Recovery and Reforestation EISs, including but not limited to logging, herbicide spraying, and tree planting on approximately 25,000 acres of the Stanislaus National Forest within the Rim Fire area. (Id. at ¶ 66.) The original Recovery and Reforestation EISs focused on logging for dimensional lumber. Id. at ¶ 67.) In contrast, the goal of the present Logging Project is to log trees from the forest for biomass5 energy production. (Id.) Under the Logging Project, the cut trees and vegetation are being piled and burned onsite or chipped and trucked away to be incinerated at a power plant. (Id. at ¶ 69.) As the responsible entity, defendant California HCD engaged in an environmental review of the Logging Project. (Id. at ¶ 71.) Defendant California HCD, however, did not produce its own EISs analyzing the proposed activities. (Id.) Instead, it issued Records of Decision merely adopting defendant Forest Service's Recovery and Reforestation EISs6 to satisfy the NEPA requirements for the Logging Project and authorizing distribution of the grant money to defendant Forest Service to pay for the logging. (Id.) Defendant California HCD's Records of Decision were issued on October 5, 2017. (Id.) The NDRC grant also allocates funds to the Biomass Facility and includes funding for construction of a "wood products and energy campus" that may be either a power plant or a wood processing facility, or both. (Id. at ¶ 91.) According to plaintiffs, no environmental review has been completed with respect to the Biomass Facility's impacts on wildlife habitat or greenhouse gas emissions and the climate crisis, nor has such a review been included in any environmental review of the Logging Project. (Id. at ¶ 92.)

In June 2017, while defendant California HCD was considering adoption of the EISs, plaintiff Earth Island and other environmental organizations wrote a letter to defendant California HCD requesting that it (1) withdraw its proposal to adopt the Recovery and Reforestation EISs and (2) withdraw its request for HUD funding to log in the Rim Fire area. (Id. at ¶ 73.) Plaintiffs

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wrote that the EISs were factually incorrect and outdated because they failed to disclose the subsequent extensive natural conifer regeneration in the Rim Fire area and failed to analyze the impacts of logging on this young, emerging forest that was providing habitat for multiple species of wildlife. (Id.) Moreover, plaintiffs took issue with the EISs' failure to analyze the environmental impacts of logging for biomass energy production, which involves clearcutting vegetation of all sizes both live and dead, rather than commercial logging of larger dead trees for dimensional lumber. (Id.) Defendant California HCD did not respond to that letter. (Id. at ¶ 75.)

In October 2017, defendant California HCD filed a request with defendant HUD for the release of $28 million of the disaster relief funds. (Id. at ¶ 76.) Plaintiff Earth Island objected to this release of funds on October 23, 2017. (Id. at ¶ 77.) In doing so, plaintiff contended that circumstances had changed significantly because the area now has significant conifer regeneration and newly created habitat that would be destroyed and degraded by the planned logging. (Id.) Additionally, plaintiffs argued that the climate and greenhouse gas impacts of the planned logging are now different than what was analyzed in the original EISs; that post-fire logging would kill most of the natural post-fire conifer regeneration now occurring in the Rim Fire area, particularly in the current or short-term; and that the impacts upon bird species is substantially different than what was assumed in the Recovery and Reforestation EISs. (Id.)

Defendant HUD acknowledged plaintiff Earth Island's objections and requested that defendant California HCD respond before the funds could be released. (Id. at ¶ 78.) On January 11, 2018, defendant California HCD sent a letter to defendant HUD stating that circumstances and conditions had not changed significantly since the EISs were completed. (Id. at ¶ 79.) Defendant California HCD also wrote that the activities proposed in the grant application were the same as those analyzed in the EISs. (Id. at ¶ 80.) Ultimately, defendant California HCD declined to prepare a supplemental EIS ("SEIS"). (Id. at ¶ 81.) On February 18, 2018, defendant HUD rejected plaintiffs' objections, approved California HCD's request to release funds, and passed those funds on to defendant Forest Service. (Id. at ¶ 82.)

Plaintiffs and officials from defendants California HCD and Forest Service visited the project area on May 30, 2019. (Id. at ¶ 83.) Officials from California HCD and Forest Service

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viewed natural new tree growth in the forests burned by the Rim Fire, and which are planned for logging. (Id. at ¶ 84.) Plaintiffs documented growth and tree stocking at or above levels identified in the EISs to be achieved by replanting and again wrote to defendant HUD on August 14, 2019. (Id. at ¶ 85-86.) At that time, plaintiffs included documentation of additional natural recovery of the burned areas; new studies published by Forest Service scientists which they contended arguably contradicted the need for replanting in most of post-fire areas; and a new study and findings documenting the toxic and carcinogenic effects of...

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