Earth Island Inst. v. U.S. Forest Service

Decision Date24 March 2006
Docket NumberNo. 05-16776.,05-16776.
Citation442 F.3d 1147
PartiesEARTH ISLAND INSTITUTE, a California non-profit organization; Center for Biological Diversity, a nonprofit organization, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Dale Bosworth, Chief of the United States Forest Service; John Berry, Forest Supervisor for El Dorado National Forest, Defendants-Appellees, Sierra Pacific Industries, Defendant-intervenor-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Rachel Marie Fazio, John Muir Project, Cedar Ridge, CA, for the appellants.

Ronald M. Spritzer and Jeffrey S. Dillen, United States Department of Justice, Washington, DC, for the appellees.

C. Athena Roussos, Jay Allen Eisen Law Corp., Sacramento, California; David E. Martinek, Dun & Martinek, Eureka, CA, for the intervenor-appellee.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding. D.C. No. CV-05-01608-MCE.

Before NOONAN, TASHIMA, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Plaintiffs Earth Island Institute and the Center for Biological Diversity (collectively, "Earth Island") appeal the district court's denial of their motion for a preliminary injunction enjoining the implementation of two United States Forest Service ("USFS") post-fire restoration projects in the El Dorado National Forest. Sierra Pacific Industries ("SPI") has joined defendants USFS, Dale Bosworth, and John Berry as an intervenor.

Earth Island contends that the Final Environmental Impact Statements ("FEISs") for both projects fail to meet the requirements set forth in the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., because the USFS used faulty scientific methodology in developing its tree mortality guidelines, and because the FEISs failed to consider adequately the adverse impacts of the projects on the California spotted owl. Earth Island also contends that the FEISs fail to comply with the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., because the USFS did not compile sufficient population data for certain bird Management Indicator Species ("MIS").

The district court denied Earth Island's request, finding (1) that the methodology employed in the FEISs with respect to the tree mortality guidelines was not arbitrary and capricious; (2) that the FEISs took a "hard look" at the adverse impacts of the projects on the California spotted owl, and (3) that the USFS had gathered sufficient population monitoring data for certain bird species that have been categorized as MIS. For the reasons set forth below, we hold that Earth Island has shown a "strong likelihood of success on the merits" of its NEPA and NFMA claims, and that it has otherwise satisfied the requirements for a preliminary injunction. We reverse and remand to the district court for further proceedings consistent with this opinion.

I. Statutory and Factual Background

In October 2004, two substantial fires burned portions of the El Dorado National Forest. The first, known as the Power Fire, consumed 16,993 acres of National Forest as well as additional acres of private land. The Power Fire burned at varying levels of intensity. According to the FEIS prepared for the Power Fire Restoration Project, approximately 38% of the forest area burned at low intensity; approximately 13% burned at moderate intensity, killing 25% to 75% of the trees; and approximately 48% burned at high intensity, killing 75% to 100% of the trees as well as burning the duff and litter protecting the soil. Several Protected Activity Centers ("PACs"), Home Range Core Areas ("HRCAs"), and Riparian Conservation Areas ("RCAs") for the California Spotted Owl were located in the Power Fire area. Certain MIS cavity-nesting birds, notably the hairy woodpecker, black-backed woodpecker, and Williamson's sapsucker, were present in Power Fire area.

The second fire, known as the Freds Fire, burned 7,700 total acres, 4,600 of which were in the National Forest. Like the Power Fire, the Freds Fire burned at varying levels of intensity. According to the FEIS, approximately 12% burned at low intensity; approximately 11% burned at moderate intensity, killing 33% to 66% of the trees; and approximately 61% burned at high intensity, killing 66% to 100% of the trees as well as burning the duff and litter protecting the soil. An additional 16% of young plantations also burned at high intensity. California spotted owl PACs, HRCAs, and RCAs were located in the Freds fire area. The hairy woodpecker, black-backed woodpecker, and Williamson's sapsucker were also present in the Freds Fire area.

In response to the two fires, the USFS undertook the Power Fire Restoration Project and the Freds Fire Restoration Project. Both projects must comply with federal statutes as well as the relevant regional forest plans.

Under NEPA, federal agencies must prepare detailed environmental impact statements on every proposed action that "significantly affects the quality of the human environment." 42 U.S.C. § 4332(C). These statements must include a description and analysis of the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided if the action is implemented, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and any irreversible or irretrievable commitment of resources that would be involved if the action were to be implemented. Id. In short, NEPA requires that a federal agency "consider every significant aspect of the environmental impact of a proposed action" and "inform the public that it has indeed considered environmental concerns in its decisionmaking process." Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir.2002) (internal quotations omitted). NEPA does not contain substantive environmental standards but instead establishes procedural requirements designed to ensure that agencies take a "hard look" at the environmental consequences of their actions. Id.

Under the NFMA, the USFS must develop land and resource management plans for each unit of the National Forest System. 16 U.S.C. § 1604(a). In developing such plans, "a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences" must be used. Id. § 1604(b). The NFMA and regulations promulgated thereunder impose substantive environmental requirements. See 36 C.F.R. § 219.12. Each forest plan must also comply with NEPA. 16 U.S.C. § 1604(g)(1).

The Sierra Nevada Framework Plan Amendment (the 2001 Framework) is the relevant NFMA forest plan for the El Dorado National Forest. The 2001 Framework is a comprehensive forest plan that establishes a "comprehensive conservation strategy" for national forests in the Sierra Nevada Mountains, including the establishment of PACs for the California spotted owl, defined as the best available 300 acres of owl habitat surrounding a known or suspected nesting site. Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1296 (9th Cir.2003). Logging within PACs under the 2001 Framework is severely restricted, "generally to the reduction of surface and ladder fuels." Id. In addition, the 2001 Framework requires that HRCAs, defined as 1000-acre foraging grounds for the California spotted owl, be maintained surrounding each PAC. Id.

In 2004, the 2001 Framework was supplemented by a Final Supplemental Environmental Impact Statement (the 2004 Supplement) that included a revised plan to improve fire prevention and suppression, reduce fuel loads, restore fire-adapted ecosystems, and promote community assistance. The Record of Decision ("ROD") implementing the 2004 Supplement provides that "[s]ite-specific decisions[regarding timber sales] will be made on projects in compliance with NEPA, [the Endangered Species Act], and other environmental laws following applicable public involvement and administrative appeal procedures."

The El Dorado National Forest is also managed under the El Dorado National Forest Land and Resource Management Plan (the "LRMP"). The LRMP identifies certain bird Management Indicator Species ("MIS") that aid the USFS in establishing objectives for improving habitat and for evaluating the quantity and quality of habitat and species population trends, in accordance with the NFMA.

Both the Power and Freds Project must conform with the 2001 Framework, the 2004 Supplement, and the LRMP, each of which must in turn comply with NEPA and the NFMA. The USFS identified four key goals for the two post-fire restoration projects:

(1) to reduce long-term fuel loading in order to reduce future fire severity and resistance to control;

(2) improve roads and establish effective ground cover in severely burned areas to reduce erosion and sedimentation to streams in the short term, and to contribute to long term soil productivity; (3) recover the economic value of timber killed or severely injured by the fire, in an expeditious manner, for the purpose of generating funds to offset the cost of future restoration activities; and (4) reduce safety hazards to the public and forest workers.

Freds Fire Restoration, 69 Fed.Reg. 77,175-02 (Dec. 27, 2004).

In furtherance of the third goal, the Power Project was divided into six timber sales. One of these, the East Panther sale, was awarded to SPI, which contracted to remove dead trees from 1,363 acres of the Power Fire area. The Freds Project was divided into two sales. One of these, the Fred Fire Salvage sale, was also awarded to SPI, which contracted to remove dead trees from 1,363 acres of the Freds Fire area.

A Notice of Intent to prepare an Environmental Impact Statement for the Power Fire was published in the Federal Register on December 22, 2004,...

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