Earth Island Inst. v. Muldoon

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesEARTH ISLAND INSTITUTE, a nonprofit corporation, Plaintiff, v. CICELY MULDOON, in her official capacity as Superintendent of Yosemite National Park; UNITED STATES PARK SERVICE, an agency of the United States Department of the Interior; UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants
Docket Number1:22-CV-00710-AWI-EPG
Decision Date21 September 2022
ORDER RE: PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY INJUNCTION
I. FACTUAL BACKGROUND
A. The Projects

Defendants National Park Service (“NPS”), Department of the Interior (“DOI”), and Cicely Muldoon, in her official capacity as Yosemite Park Superintendent (collectively Defendants), approved two biomass removal and thinning projects in Yosemite National Park:[1](1) the Biomass Removal and Thinning to Protect Sequoias, Wildlife Habitat and Communities Project - Wawona Road to Merced Grove (PEPC 99551) (the “Wawona Road Project”), signed in August 2021; and (2) the Biomass Removal and Thinning Project - Yosemite Valley, Wawona, and Yosemite West (PEPC 104171) (the “Yosemite Valley Project”), signed in April of 2022, (collectively the “Projects”). Doc. No. 23 at 9. The Projects authorize removal of some dead and down trees and thinning of some trees across over three-thousand acres of land to “reduce postdrought and post-fire fuels” and to “protect [the treated areas] from high severity fire.” Doc. No. 23 at 14-15; Doc. No. 38 at 23. Additionally, the Projects authorize thinning of some roadside trees outside designated wilderness areas that are generally within 200 feet of the centerline of roads. Doc. No. 38 at 23. The objectives of the Projects are to protect the iconic Merced and Tuolumne Groves of Giant Sequoias, the Park's wildlife and other resources, and the communities and first responders within the park from the risk of high-severity fires. Doc. No. 38 at 12, 22.

The Wawona Road Project specifically seeks to protect Wawona Road and Big Oak Flat Road, which are two of the major roads in and out of Yosemite Valley. Doc. No. 38 at 22. These roads are the only major features that can be used for fire control in the Park's lower elevations, given that any fire that crosses either road is likely to continue unabated until either it hits the granite at higher elevations, or sufficient bulldozer lines are cut through the Park's wilderness. Doc. No. 38 at 22-23.

The focus of the Yosemite Valley Project is to protect the populated areas within Yosemite Valley, Yosemite West, and Wawona. Doc. No. 38 at 23. Additionally, this project aims to restore meadows and black oak woodlands in the western half of Yosemite Valley by using fuelreduction treatments. Doc. No. 38 at 23. The project also covers 11-mile road, which runs along the southern side of, and can provide emergency access to, Yosemite West. Doc. No. 38 at 23.

B. The Projects' Relationship with Approved Plans

Defendants approved the Projects using a “categorical exclusion” (“CE”), which is a measure that generally exempts proposed federal actions from additional analysis under the National Environmental Policy Act (“NEPA”). Doc. No. 23 at 10. NEPA generally requires federal agencies to assess the environmental effects of their proposed actions, such as by preparing an Environmental Impact Statement (“EIS”), prior to making decisions on whether to implement those actions. The CE used by Defendants to exempt the Projects from additional NEPA review is CE 3.3.B.1, which categorically excludes [c]hanges or amendments to an approved plan, when such changes would cause no or only minimal environmental impact.” Doc. No. 23 at 10.

The “approved plan” that the Projects purport to “change or amend” is the Park's 2004 Fire Management Plan (2004 FMP”). Doc. No. 23 at 15-16. Yosemite National Park adopted the 2004 FMP to guide its implementation of complex fire management programs to reduce the threat of wildland fire.[2] Doc. No. 38 at 17. The 2004 FMP included an EIS that analyzed alternatives for carrying out fire management plans in Yosemite and the effects each would have in different areas of the park. Doc. No. 23 at 10. The 2004 FMP Record of Decision approved a management scheme involving two primary management designations: (1) “Suppression Units” making up 17% of the Park where all wildfires would be immediately suppressed, and (2) “Fire Use Units” making up 83% of the Park where wildfire would be used to manage ecological conditions. Doc. No. 23 at 16-17; Doc. No. 38 at 17. The FMP's management scheme also involves “Special Management Areas” located within these two designations. Doc. No. 23 at 16.

The 2004 FMP's Suppression Units and Fire Use Units contain three sub-categories with different management prescriptions: (1) Wildland/Urban Interface (“WUI”), (2) Non-Wildland/Urban Interface, Non-Wilderness (NWUI), and (3) Wilderness. Doc. No. 23 at 16-17. Within the Suppression Units, WUI trees up to 12 inches in diameter may be thinned, and NWUI trees less than 20 inches in diameter may be cut in certain limited areas.[3] Doc. No. 23 at 17. Within the Fire Use Units, the 2004 FMP authorizes thinning of NWUI trees “generally less than” 6 inches in diameter “to protect these areas as a wildland fire approaches.” Doc. No. 23 at 17. Within the “Special Management Area” of the Merced Grove, trees less than 12 inches in diameter may be logged. Doc. No. 23 at 17.

The 2004 FMP also requires mitigation measures to be imposed on all projects performed pursuant to the Plan, including specific measures for protection of sensitive species including the Pacific fisher and California Spotted Owl. Doc. No. 38 at 18. Whenever the NPS looks to implement a project identified in the FMP with actions not specifically covered by the FMP's EIS, the FMP directs the NPS to “prepare appropriate environmental review for those actions.” Doc. No. 38 at 18.

In 2017, the NPS adopted amendments to the 2004 FMP (2017 FMP”) that, among other amendments, renamed “Suppression Units” as “Community and Infrastructure Protection Strategy Units,” and renamed “Fire Use Units” as “Wildland Fire Management Units.” Doc. No. 23 at 17. The 2017 FMP also amended the division of land between the units such that the Suppression/Community and Infrastructure Protection Strategy Units decreased from 17% to 1% of the Park, and the Fire Use/Wildland Fire Management Units increased from 83% to 99%. Doc. No. 23 at 17; Doc. No. 38 at 19. According to Plaintiff, a “large majority of the acreage” covered by the Wawona Road Project and a “significant portion” of the Yosemite Valley Project now fall within the “Fire Use Unit/Wildfire Management Unit” designation. Doc. No. 23 at 17-18.

The 2017 FMP did not expressly change the management requirements or designations for Special Management Areas. Doc. No. 23 at 17 n.9. Therefore, trees less than 12 inches in diameter may still be logged in Merced Grove. Doc. No. 23 at 17 n.9. Additionally, the 2017 FMP did not amend the 2004 FMP's authority to thin NWUI trees less than 20 inches in diameter in Suppression/Community and Infrastructure Protection Strategy Units within 200 feet of the centerline of roads. Doc. No. 38 at 18-19; Doc. No. 44-1 at 11. The 2017 FMP also did not amend the authority to thin NWUI trees generally less than 6 inches in diameter in Fire Use/Wildland Fire Management Units “to protect these areas as a wildland fire approaches.” Doc. No. 44-1 at 12.

C. The Projects' “Additions” to Approved Plans

The Wawona Road Project's CE Form states that it “follows” the 2004 FMP's EIS, but that there are “several additions” that extend beyond the scope of the 2004 FMP. Doc. No. 23 at 15. Notably, the project added a short road segment not identified in the 2004 FMP, expanded the width of the roadside corridors to as far as 209 feet from the road centerline in some areas, and increased the size of trees that may be logged from 12 inches in diameter to 20 inches in diameter in designated areas including Merced Grove. Doc. No. 23 at 15; Doc. No. 38 at 24. According to NPS, the Wawana Road Project is also “generally covered by” the 2017 FMP. Doc. No. 23 at 15; Doc. No. 38-5 at 7.

The Yosemite Valley Project's CE Form similarly states it “follows” the 2004 FMP and EIS, but that there are “several additions” that will “expand and tier” from those authorities. Doc. No. 23 at 16. For example, the NPS admits that some of the areas where work will occur in the West Yosemite Valley is “not currently covered by” the 2004 FMP's EIS. Doc. No. 23 at 16. The project also includes minor modifications of the meadow and black oak woodland thinning projects identified in the Merced River Plan (MRP), which the project also purports to follow. Doc. No. 38 at 24. According to the NPS, the Yosemite Valley Project is also “generally covered by” the 2017 FMP. Doc. No. 23 at 16; Doc. No. 38-6 at 8.

Because the Projects do not strictly conform to the FMPs (and MRP), the NPS allegedly evaluated whether the Projects' “additions” met the impact assessment requirements of CE 3.3.B.1. Doc. No. 38 at 24. The NPS's evaluation consisted of the following:

1. [A] survey along the Projects' roads by wildlife biologists, botanists, and archeologists,” Doc. No. 38 at 24;

2. [A] forum where subject matter experts reviewed the Projects and their possible impacts” and “concluded that there would be no more than minimal impact,” Doc. No. 38 at 2425;

3. [I]nput on the Projects from outside stakeholders, including the seven affiliated tribes, and the State Historic Preservation Officer, all of whom supported the projects,” Doc. No. 38 at 25;

4. A “review[] by the Park's heads of each division to ensure that they would not impact other park operations,” Doc. No. 38 at 25; 5. A ...

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