Environment Now! v. Espy, CV-F-94-5474 OWW.

• Citation: 877 F. Supp. 1397
• Decision Date: 23 August 1994
• Docket Number: No. CV-F-94-5474 OWW.,CV-F-94-5474 OWW.
• Court: U.S. District Court — Eastern District of California
• Parties: ENVIRONMENT NOW!, Tulare County Audubon Society, Plumas Forest Project, Forest Alert, Plaintiffs, v. Mike ESPY, Secretary of Agriculture, Jack Ward Thomas, Chief, United States Forest Service, Ronald E. Stewart, Regional Forester Region 5, Sandra Key, Forest Supervisor, Sequoia National Forest, Defendants.

877 F. Supp. 1397

ENVIRONMENT NOW!, Tulare County Audubon Society, Plumas Forest Project, Forest Alert, Plaintiffs, v. Mike ESPY, Secretary of Agriculture, Jack Ward Thomas, Chief, United States Forest Service, Ronald E. Stewart, Regional Forester Region 5, Sandra Key, Forest Supervisor, Sequoia National Forest, Defendants.

No. CV-F-94-5474 OWW.

United States District Court, E.D. California.

August 23, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Kirk Boyd, David H. Williams, Boyd Huffman and Williams, San Francisco, CA.

Richard S. Luskin, Environment Now!, Malibu, CA.

Linda Anderson, U.S. Attorney's Office, Fresno, CA.

David H. Dun, Dun and Martinek, Eureka, CA.

Michael E. Haglund, Haglund and Kirtley, Portland, OR.

Jack Steven Worthley, Dinuba, CA.

Christopher Van Gundy, McCutchen Doyle Brown and Enersen, San Francisco, CA.

Marcia Abrams, U.S. Dept. of Agriculture, San Francisco, CA.

MEMORANDUM OPINION AND ORDER RE:

1) DEFENDANTS' MOTION TO STRIKE

2) PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

3) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

WANGER, District Judge.

I. INTRODUCTION

Plaintiffs Environment Now!, Tulare County Audubon Society, Plumas Forest Project and Forest Alert have filed this action against defendants Mike Espy, Secretary of Agriculture, Jack Ward Thomas, Chief, United States Forest Service, Ronald E. Stewart, Regional Forester Region 5, and Sandra Key, Forest Supervisor, Sequoia National Forest, (collectively, the "Federal Defendants") concerning the harvesting of trees in the Fish sale area of the Sequoia National Forest. The Federal Defendants have filed a motion for summary judgment, and a motion to strike two declarations submitted by plaintiff.

The parties have stipulated to the intervention of Sierra Pacific Industries, Michigan-California Lumber Company, and Sierra Forest Products as defendant-intervenors. Sierra Forest Products has filed a motion for summary judgment and opposition to plaintiffs' motion for injunctive relief.

II. INTRODUCTION

On May 13, 1994, plaintiffs filed a complaint, challenging the Forest Service's sale of timber in six locations in the Tahoe, Plumas and Sequoia National Forests, based on the following claims for relief:

First Claim for Relief: Violation of the National Environmental Policy Act, ("NEPA"), 42 U.S.C. §§ 4321, et seq., and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., for failing to consider new scientific information related to six timber sales identified by plaintiffs;

Second Claim for Relief: Violation of the National Forest Management Act, 16 U.S.C. §§ 1600 et seq. ("NFMA"), for the failure to maintain or enhance wildlife diversity in the national forests, and failing to meaningfully monitor an indicator species, in connection with the timber sales;

Third Cause of Action: Breach of a settlement agreement, in which the Forest Service agreed to prepare an environmental document for the timber sales at issue.

On May 13, 1994, plaintiffs applied for a temporary restraining order, to prevent further harvesting in the Ruby sale area, to preserve the habitat of the California Spotted Owl. That motion was granted on that date. An additional hearing was held on May 17, 1994, after which the temporary restraining order was continued in effect until June 3, 1994. Plaintiffs were directed to file challenges to timber sales located in the Tahoe and Plumas National Forests in their proper venue, the northern division of this district. Jurisdiction was retained solely over the Fish timber sale.

The Fish timber sale project is located on the Kern Plateau in the Fish Creek Drainage area of the Sequoia National Forest,¹ between Troy Meadow and Pine Mountain, and encompasses approximately 7,643 acres of eastside pine, mixed conifer, red fir and lodgepole pine. AR 299. The Fish sale area is directly south of, and adjacent to, the Jack and Casa-Guard sales areas. Both the Jack and Casa-Guard sales are the subject of pending litigation in which a preliminary injunction was granted, requiring defendants to prepare an EIS before further harvesting could be completed, Tulare County Audubon Society v. Espy, CV-F-93-5373 OWW (August 10, 1993).

The California Spotted Owl is not designated as a threatened or endangered species, but is classified as "sensitive" by the Forest Service.² The Forest Service has selected the spotted owl as an "indicator species"³ for the Sequoia National Forest. Tulare County Audubon Society v. Espy, CV-F-93-5373 OWW, at 13 (August 10, 1993).

The Fish sale was originally proposed in a letter of intent in 1985, and analyzed by the Forest Service in 1989, in an environmental assessment ("EA") performed in December of that year. AR 238. The Fish Sale was approved on January 4, 1990, when a Decision Notice and Finding of No Significant Impact ("DN/FONSI") was signed by the Forest Supervisor. The Fish DN/FONSI was administratively appealed in February, 1990. The Regional Forester affirmed. Tulare County Audubon Society challenged the DN/FONSI in a district court action, Tulare County Audubon Society v. United States, CV-F-90-564 EDP (E.D.Cal.). On February 13, 1991, that action was dismissed pursuant to a settlement and written stipulation of the parties (the "settlement agreement"). In July, 1992, a scientific report was issued and adopted by the Forest Service, titled The California Spotted Owl: A Technical Assessment of Its Current Status ("CASPO"). This report was prepared by an Interagency California Spotted Owl Steering Committee, which was formed in June of 1991 in response to concerns over the continued use of the Spotted Owl Habitat Areas ("SOHA") strategy for management of the spotted owl. The steering committee included members from the State of California and U.S. Government, observers from State and local agencies, and private interest groups, including timber industry and environmental group representatives. The steering committee formed a scientific advisory team (the "Technical Assessment Team"), which included Forest Service scientists.

Prior to CASPO, the Forest Service had developed a cumulative effects analysis ("CEA") process, to ensure that management options for the California spotted owl would be maintained until the Technical Assessment Team completed its report. After CASPO was issued, the Forest Service performed an EA of the CASPO report and issued a Decision Notice on January 13, 1993, adopting interim guidelines to implement CASPO recommendations for timber management activities to protect the California spotted owl. California Spotted Owl Sierran Province Interim Guidelines Environmental Assessment, January 1993 ("interim guidelines"). This Decision Notice also amends the guidelines for owl habitat management in ten affected forest plans,⁴ including the Sequoia National Forest Plan. The declared purpose of the Forest Service's interim guidelines is to respond to the concerns identified in the CASPO report, specifically: 1) the need for a management strategy for the spotted owl that assures that viability of the owl will be maintained, and replaces the SOHA strategy which "would likely lead to extinction of the species;" 2) recognition that "timber harvest practices have led to a serious decline in the number of large, old trees which are preferred by the owl;" and 3) consideration of the threat of stand-destroying fires in any strategy. CASPO EA at DN-2, DN-3.

The principal recommendations of the CASPO report implemented through the interim guidelines are: 1) identify owl "activity centers" and delineate an area of 300 acres around this activity center in which no logging or other stand-altering activity is to occur other than light underburning (called protected activity centers or PACs); 2) within strata preferentially selected for nesting by owls (selected strata) which are outside of PACs, one commercial entry is allowed during the interim period, no removal of live trees 30 inches in diameter breast height (dbh) or larger is allowed, and retention of 40 percent or greater of the basal area and canopy closure in the largest trees available; 3) within strata utilized, but not preferred for nesting by owls (other strata), one commercial entry is allowed during the interim period, no removal of live trees 30 inches dbh or larger is allowed, and retention of 30 percent of the basal area in the largest trees available; and 4) fuel loading. CASPO EA at DN-4, DN-5; CASPO at 20-21.

On February 4, 1993, the Federal Defendants issued an environmental assessment for the Fish sale ("Fish EA"), tiered to the Forest Plan and the parties' settlement agreement in Tulare County Audubon Society v. United States, CV-F-90-564 EDP (E.D.Cal.). On February 24, 1993, the Forest Supervisor issued a decision to adopt Alternative 4 of the Fish EA ("Fish DN"). Alternative 4 eliminates the use of clearcutting and regeneration mosaic, relying on shelterwood harvesting in selected stands. Under this alternative, approximately 4.97 million board feet were targeted for harvest, and five miles of road for reconstruction. Alternative 7, which was based on CASPO guidelines, and Alternative 1, the no-action alternative, were both considered and rejected.

Plaintiff Tulare County Audubon Society administratively appealed the Fish DN. On November 22, 1993, the regional forester affirmed the decision of the forest supervisor. Further review was declined by the Forest Service on December 21, 1993.

Plaintiffs seek a preliminary injunction that prohibits:

.... defendants from felling, cutting, thinning or topping in any manner, timber 30" dbh located in the Fish Sale areas pending the decision on plaintiff's request for a permanent injunction.

The Federal Defendants and defendant-in-intervention Sierra Forest Products filed a motion for summary judgment, seeking dismissal of plaintiffs' complaint on various grounds.

III. FEDERAL DEFENDANTS' MOTION TO STRIKE

The Federal Defendants move to...