Earth Island Institute v. U.S. Forest Service

• Decision Date: 11 December 2003
• Docket Number: No. 02-16999.,02-16999.
• Citation: 351 F.3d 1291
• Parties: EARTH ISLAND INSTITUTE, Plaintiff-Appellant, Sierra Pacific Industries, Intervenor-Appellee, v. UNITED STATES FOREST SERVICE; Jack Blackwell, in his official capacity as Regional Forester for Region 5 of the United States Forest Service; John Berry, in his capacity as Forest Service Supervisor for the Eldorado National Forest, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1291

351 F.3d 1291

EARTH ISLAND INSTITUTE, Plaintiff-Appellant Sierra Pacific Industries, Intervenor-Appellee, v. UNITED STATES FOREST SERVICE; Jack Blackwell, in his official capacity as Regional Forester for Region 5 of the United States Forest Service; John Berry, in his capacity as Forest Service Supervisor for the Eldorado National Forest, Defendants-Appellees.

No. 02-16999.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2003 — San Francisco, California.

Filed December 11, 2003.

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Rachel Marie Fazio; John Muir Project; Cedar Ridge, California, CA, for plaintiff-appellant Earth Island Institute.

David E. Martinek, David H. Dun, and Shelley C. Addison; Dun & Martinek; Eureka, California, CA, for intervenor-appellee Sierra Pacific Industries.

Edmund F. Brennan; Office of the United States Attorney; Sacramento, California, CA, for defendant-appellees United States Forest Service, Jack Blackwell, and John Berry.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding. D.C. No. CV-02-02119-MCE.

Before: John T. NOONAN, Sidney R. THOMAS, and Richard R. CLIFTON, Circuit Judges.

Opinion by Judge Thomas; Concurrence by Judge Noonan; Dissent by Judge Clifton.

OPINION

THOMAS, Circuit Judge:

Earth Island Institute and the Center for Biological Diversity appeal the district court denial of their request for a preliminary injunction against implementation of a United States Forest Service restoration project involving two timber sales in the Sierra Nevada mountains. We reverse and remand.

I

In late August 2001, a large wildfire began in the Sierra Nevada mountains and quickly swept through two adjacent national forests as well as some private lands. By the time it was extinguished in September, the "Star Fire" had consumed thousands of acres in both the Eldorado National Forest and the Tahoe National Forest. Over the course of the next year, Forest Service personnel responsible for each forest developed and implemented management plans responding to the blaze. This appeal focuses on the Star Fire Restoration Project, which covered the Eldorado forest.

In the immediate aftermath of the fire, the Forest Service prepared an initial Burned Area Emergency Rehabilitation (BAER) report, which estimated that some 11% of the burned area in the Eldorado forest had experienced high fire intensity, 57% moderate intensity, and 32% low intensity. Subsequently, a more intensive survey prepared in connection with the Environmental Impact Statement (EIS) estimated that 35% of the area had experienced high intensity burns, 45% moderate intensity, and 18% low intensity, leaving 2% unburned.¹

In March 2002, the Forest Service released a draft EIS that proposed logging 1,714 acres of the Eldorado Forest using tractor, skyline, and helicopter methods. Following public comment, the Forest Service issued a Final Environmental Impact Statement (FEIS) in June that again recommended this option. The plan aimed to prevent another "stand replacing" fire by removing most of the dead trees and preventing the development of excessive woody debris. A "stand" is "an easily defined area of the forest that is relatively uniform in species composition or age and can be managed as a single unit." The plan also sought to prevent soil erosion by promoting appropriate ground cover, to preserve some dead trees (often referred to as "snags") and down logs for the use of dependent animal species, and to maximize the monetary value of dead trees by acting quickly to allow logging. Revenue from the timber sale would finance other elements of the plan.

According to the FEIS, 71% of the project area had experienced high severity burn. The report relied upon the mortality guidelines developed by Sherri Smith, a Forest Service entomologist. Based on cambium sampling² of partially green trees and her review of both the scientific literature and some Forest Service data, Smith determined that trees with 35% green canopy or less were effectively dead; the remaining green leaves or needles would eventually turn brown and fall off. Thus trees demonstrating either less than 35% live crown or three dead cambium samples would be considered dead and marked for removal.³ The preferred alternative in the FEIS called for the retention of approximately four to eight large dead trees per acre and the removal of the remainder in any general forest areas with greater than 50% tree mortality and in Old Forest Emphasis Areas (OFEAs) with greater than 75% mortality. The guidelines placed no limit on the diameter of tree to be removed.

As one of the eleven national forests in the Sierra Nevada range, the Eldorado forest remains subject to the Sierra Nevada Framework, a comprehensive forest plan published in January 2001. The Framework established a comprehensive conservation strategy for all national forests in the area, including special limitations on logging in OFEAs and specific protection zones designed to preserve the habitat of the California spotted owl.⁴ According to the Framework, the Forest Service must establish 300-acre Protected Activity Centers (PACs) around all known or suspected spotted owl nesting sites. In these areas, logging is severely restricted, generally to the reduction of surface and ladder fuels.⁵ The Framework provides that the PACs must be maintained "regardless of California spotted owl occupancy status, unless habitat is rendered unsuitable by a catastrophic stand-replacing event and surveys conducted to protocol confirm non-occupancy."

In addition, the Framework requires 1000-acre Home Range Core Areas (HRCAs) around each PAC in the Eldorado forest. These areas are supposed to encompass "the best available spotted owl habitat in the closest proximity to the owl PACs where the most concentrated owl foraging activity is likely to occur." Within these areas, which are managed with the same restrictions as OFEAs, trees of more than 12" in diameter generally may not be removed, though in some circumstances slightly larger trees may be thinned. Following a "stand-replacing event," the Framework calls for the retention of "all snags 15 inches or greater ... except to address imminent hazards to human safety." However, in these circumstances the Framework also permits the removal of dead trees "to the extent that project analysis recommends removal to benefit landscape conditions for old forest structure and function." If fire renders the PAC unsuitable, the Forest Service must attempt to relocate the PAC within the HRCA.

A Forest Service team surveyed the two Eldorado PACs within the Star Fire area, PAC055 and PAC075.⁶ Using Smith's mortality estimates, the report concluded that approximately 4% of PAC055 and approximately 13% of PAC075 remained at less than 75% tree mortality per acre. In addition, the report estimated that within the Star Fire area, only 5% of the PAC055 HRCA and 18% of the PAC075 HCRA remained at less than 75% mortality. As a result, the FEIS concluded that adjustment of PAC boundaries was impossible. The report recommended dropping both PACs from the forest plan.

In August 2002, Forest Supervisor John Berry adopted the recommendation of the FEIS but modified the preferred alternative so that no trees with green canopy would be removed from partially burned stands within the former PACs. He further determined that cambium sampling should not be used because of its relative inefficiency (though he also noted that this decision would satisfy any public concern over potential damage to trees from the sampling). Plaintiffs appealed this decision administratively, and the agency affirmed the decision in September. Drawing upon an earlier recommendation by the Regional Forester, the final administrative appeal extended the restriction on removing trees with any green canopy to all trees within the OFEAs. The Forest Service then divided the project area into two timber salvage sales and awarded the contracts to Sierra Pacific Industries.

On September 27, 2002, two environmental organizations challenged the timber sales in federal district court and requested a preliminary injunction against their implementation, arguing that the Forest Service had violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq. Because logging was scheduled to begin immediately, Plaintiffs also requested a temporary restraining order on October 1. On October 3, the district court issued a temporary injunction against logging trees with any green canopy remaining. The court also permitted Sierra Pacific to intervene on behalf of the Forest Service.

On October 11, the district court denied Plaintiffs' request for a preliminary injunction. The court determined that the Plaintiffs were unlikely to succeed on their challenges to the Forest Service methodology and data because agencies are entitled to rely upon their own methodology and experts. The court found that the Forest Service had taken a "hard look" at the environmental issues raised by the restoration project and had not abused its discretion in preparing a separate EIS for each national forest. Finally, the court concluded that the Plaintiffs had failed to establish that the timber sales would result in irreparable harm to the California spotted owl or that the "balance of hardships" tipped in their favor. This appeal followed.

II.

Earth Island seeks a preliminary injunction barring implementation of the Star Fire timber sales until their NEPA and NFMA claims are adjudicated. The Ninth Circuit has described two sets of criteria for preliminary injunctive relief. Under the "traditional" criteria, a plaintiff must show "(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if...