Envtl. Prot. Info. Ctr. v. Carlson

• Decision Date: 03 August 2020
• Docket Number: No. 19-17479,19-17479
• Citation: 968 F.3d 985
• Parties: ENVIRONMENTAL PROTECTION INFORMATION CENTER, Plaintiff-Appellant, v. Ann CARLSON, in her official capacity as the Forest Supervisor of the Mendocino National Forest ; United States Forest Service, Defendants-Appellees, Sierra Pacific Industries, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

968 F.3d 985

ENVIRONMENTAL PROTECTION INFORMATION CENTER, Plaintiff-Appellant,

v.Ann CARLSON, in her official capacity as the Forest Supervisor of the Mendocino National Forest ; United States Forest Service, Defendants-Appellees,Sierra Pacific Industries, Intervenor-Defendant-Appellee.

No. 19-17479

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 27, 2020 San Francisco, California

Filed August 3, 2020

W. FLETCHER, Circuit Judge:

In July 2018, the Ranch Fire burned more than 400,000 acres in Northern California, including almost 300,000 acres in the Mendocino National Forest. After the fire, the United States Forest Service approved the Ranch Fire Roadside Hazard Tree Project (the "Project"). The Project authorizes the Forest Service to solicit bids from private logging companies for the right to fell and remove large fire-damaged trees up to 200 feet from either side of roads in the National Forest. Rather than preparing an Environmental Assessment ("EA") or an Environmental Impact Statement ("EIS") for the Project, the Forest Service relied on a categorical exclusion ("CE") for road repair and maintenance in 36 C.F.R. § 220.6(d)(4). Plaintiff Environmental Protection Information Center ("EPIC") challenges the Forest Service action, contending that the Project does not qualify for the exclusion. The district court agreed with the Forest Service, holding that the Project qualified for the exclusion, and denied a preliminary injunction. We reverse and remand.

I. Statutory and Regulatory Framework

The National Environmental Policy Act ("NEPA") "requires that federal agencies perform environmental analysis before taking any ‘major Federal actions significantly affecting the quality of the human environment.’ " Ctr. for Biological Diversity v. Salazar , 706 F.3d 1085, 1094 (9th Cir. 2013) (quoting NEPA at 42 U.S.C. § 4332(2)(C) ). "When the Government conducts an activity, NEPA itself does not mandate particular results. Instead, NEPA imposes only procedural requirements to ensure that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Winter v. Nat. Res. Def. Council , 555 U.S. 7, 23, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (internal quotation marks and citations omitted).

An agency can comply with NEPA in three ways. It can prepare an EIS; it can prepare an EA; or it can invoke a CE. An EIS is the most searching review. It is required for any action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An EA is less searching. Its central function is to determine whether an EIS is required. 40 C.F.R. § 1508.9. A CE allows an agency to avoid preparing either an EIS or an EA. CEs are appropriate for "actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect." 40 C.F.R. § 1508.4.

II. Stated Purpose and Criteria of Project

According to Ann D. Carlson, Forest Supervisor for the Mendocino National Forest, "The primary purpose of the Project is to reduce current and potential safety hazards along roads [in the National Forest] to create a safe transportation system. ... [T]he Project plans to remove hazard trees through a series of salvage sales." Carlson stated in a declaration in the district court that the Project's "[r]oadside hazard treatments involve removing only trees that constitute hazards to the selected roads ... and that have the potential to reach roadways."

The vegetation in the burned area of the Mendocino National Forest comprises a variety of forest types, including mixed conifer, oak woodlands, pine, and Douglas fir. A logging company whose bid has been accepted may fell "merchantable hazard trees" of fourteen or more inches diameter at breast height ("DBH") that are "within one and a half tree-heights" of the road. Any tree within 200 feet of the centerline of the road that has been partially burned and has a 50 percent or higher probability of mortality is eligible for felling. For "the roads that run adjacent to the Snow Mountain Wilderness," the Project allows cutting of eligible trees within 100, rather than 200, feet of the centerline. In total, the Project authorizes the logging of millions of board feet of timber on nearly 4,700 acres of National Forest land.

Anthony Saba, a forester/silviculturist employed by the Forest Service, stated in a declaration that merchantable trees in the Project areas range from 60 to 185 feet in height. According to Saba, in one area of the Project, the average tree height is 100 feet; in another, the average height is 111 feet. Under the criteria of the Project, a logging company may cut a 100-foot tree located as far as 150 feet from the road, or a 111-foot tree located as far as 166 feet from the road. At the outer limit of the Project area, a company may cut even taller trees. If a 100-foot tree located 150 feet from the road were to fall directly toward the road at a 90 degree angle, the tip of the tree would come to the ground 50 feet from the road. If a 111-foot tree located 165 feet from the road were to fall in the same manner, its tip would come to the ground 54 feet from the road. If the trees were to fall at any other angle, their tips would come to the ground at greater distances from the centerline.

III. Categorical Exclusions

There are two categorical exclusions potentially relevant to the Project. One is for "repair and maintenance" of roads in the National Forest. The other is for "salvage" logging of "fire-damaged trees" on tracts of 250 acres or less. The Forest Service prepared neither an EIS nor an EA for the Project. Instead, it relied on the first CE.

The first CE covers:

(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:

(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;

(ii) Grading a road and clearing the roadside of brush without the use of herbicides;

(iii) Resurfacing a road to its original condition;

(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and

(v) Surveying, painting, and posting landline boundaries.

36 C.F.R. § 220.6(d)(4). Neither a "case file and decision memo" nor a "supporting record" is required in order to invoke the CE under § 220.6(d)(4).

The second CE covers:

(13) Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than ½ mile of temporary road construction. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include, but are not limited to:

(i) Harvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees, and

(ii) Harvest of fire-damaged trees.

36 C.F.R. § 220.6(e)(13). A "case file and decision memo" and a "supporting record" are required in order to invoke the CE under § 220.6(e)(13).

IV. Procedural Background

EPIC filed suit in federal district court on October 16, 2019, contending that the Project does not qualify for the road maintenance and repair CE. As of November 21, 2019, logging had begun in two areas of the Project, and the Forest Service had finalized bidding on a third area. Bidding had not yet begun on the other areas in the Project. The district court entered a temporary restraining order ("TRO") pending its hearing on EPIC's request for a preliminary injunction. On December 4, 2019, the court denied the preliminary injunction and lifted the TRO. EPIC appealed, and we set an accelerated briefing schedule. We heard oral argument on May 27, 2020.

V. Standard of Review

When deciding whether to issue a preliminary injunction, a district court considers whether the requesting party has shown "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. Likelihood of success on the merits is a threshold inquiry and is the most important factor. See, e.g. , Edge v. City of Everett , 929 F.3d 657, 663 (9th Cir. 2019).

We review a grant or denial of a preliminary injunction for abuse of discretion. See, e.g. , United States v. California , 921 F.3d 865, 877 (9th Cir. 2019). "The district court's interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law." Sw. Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc). Under the abuse-of-discretion standard, "as long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case." Melendres v. Arpaio , 695 F.3d 990, 999 (9th Cir. 2012) (citations and alterations omitted).

VI. Discussion

A. Likely Success on the Merits

With respect to the Project at issue, the CE for road repair and maintenance is unambiguous. The CE applies to "repair and maintenance of roads, trails, and landline boundaries." "Repair" and "maintenance" are common words with well-understood ordinary meanings. In order to ensure that these words are understood in accordance with their ordinary meanings rather than as terms of art, the CE provides examples. "Repair and maintenance" of roads include "grad[ing], resurfac[ing], and clean[ing] the culverts" of a road; "grading a road"; "clearing the roadside of brush without the use of herbicides"; and "resurfacing a road to its original condition." 36 C.F.R. § 220.6(d)(4)(i)–(iii). The CE specifies that the "repair and maintenance" are not limited to these examples, but the clear inference (even without invoking the...