Forestwatch v. United States Forest Serv.

• Decision Date: 04 March 2011
• Docket Number: Case No. 10–CV–03653–LHK.
• Citation: 776 F.Supp.2d 1042
• Court: U.S. District Court — Northern District of California
• Parties: LOS PADRES FORESTWATCH, a non-profit organization, Plaintiff,v.UNITED STATES FOREST SERVICE, Peggy Hernandez, in her official capacity as forest supervisor for the Los Padres National Forest, Defendants.

776 F.Supp.2d 1042

LOS PADRES FORESTWATCH, a non-profit organization, Plaintiff,

v.UNITED STATES FOREST SERVICE, Peggy Hernandez, in her official capacity as forest supervisor for the Los Padres National Forest, Defendants.

Case No. 10–CV–03653–LHK.

United States District Court, N.D. California,San Jose Division.

March 4, 2011.

Michael W. Graf, Law Offices of Michael Graf, El Cerrito, CA, Sharon Eileen Duggan, Law Offices of Sharon E. Duggan, Oakland, CA, for Plaintiff.Peter Christopher Whitfield, U.S. Department of Justice, Washington, DC, Michael Thomas Pyle, United States Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

LUCY H. KOH, District Judge.

This action centers on an American Recovery and Reinvestment Act (“ARRA”)-funded project, involving the clearing of vegetation within ten feet of the road edge alongside approximately 750 miles of Forest Service roads within the Los Padres National Forest (the “Project”). Plaintiff Los Padres Forestwatch (“Plaintiff”) is a non-profit organization consisting of an estimated 800 members, with the organizational goal of protecting threatened and endangered species, and protecting the environment of the Los Padres National Forest. Defendants are the U.S. Forest Service and Peggy Hernandez, the Forest Supervisor for the Los Padres National Forest.

Presently before the Court is Plaintiff's motion for a preliminary injunction on the grounds that Defendants failed to comply with the procedural requirements of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and that such failure threatens concrete environmental harm to federally listed and sensitive plants, wildlife, and habitat. Defendants oppose preliminary injunctive relief. The Court held a hearing on this matter on February 24, 2011. For the reasons described below, Plaintiff's motion for a preliminary injunction is GRANTED. The scope and terms of the injunction are specified below.

I. BACKGROUND

A. Regulatory Framework

1. National Environmental Protection Act (NEPA), 42 U.S.C. § 4231 et seq.

a. Environmental Impact Statements and Environmental Assessments

NEPA is a procedural statute that does not “mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.” See High Sierra Hikers Assoc. v. Blackwell, 390 F.3d 630, 639 (9th Cir.2004). NEPA requires a federal agency, such as the Forest Service, to prepare a detailed environmental impact statement (“EIS”) for “all major Federal actions significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). “Major federal actions” have been defined to include, among other things, “new or revised agency rules, regulations, plans, policies or procedures, and legislative proposals.” See 40 C.F.R. § 1508.18(a).

Regulations issued by the Council of Environmental Quality (“CEQ”) provide certain factors that an agency should consider in determining whether an action will “significantly” affect the environment. These include: (1) the degree to which the proposed action affects public health or safety; (2) the degree to which the effects will be highly controversial; (3) whether the action establishes a precedent for further action with significant effects; and (4) whether the action is related to other action which has individually insignificant, but cumulatively significant impacts. See 40 C.F.R. § 1508.27(b).

Prior to preparing an EIS, the agency may prepare an Environmental Assessment (“EA”) as a preliminary step in determining whether the environmental impact of the proposed action is significant enough to warrant an EIS. See 40 C.F.R. § 1508.9. An EA is a “concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact.” See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998).

b. Categorical Exclusions

However, in some cases, neither an EA nor an EIS is required. The CEQ has promulgated NEPA regulations, which authorize an agency to use a Categorical Exclusion for a “category of 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 in procedures adopted by a Federal agency in implementation of these regulations.” Id. (citing 40 C.F.R. § 1508.4). “Neither an EIS nor an EA is required for actions categorically excluded from NEPA review.” Id. (citing 40 C.F.R. § 1507.3(b)(2)(ii); 23 C.F.R. § 771.117). Categorical Exclusions, however, are limited “to situations where there is an insignificant or minor effect on the environment.” See Alaska Ctr. for the Env't v. United States Forest Serv., 189 F.3d 851, 859 (9th Cir.1999).

Even if a proposed action appears to fit the Categorical Exclusion invoked, an agency may not use a Categorical Exclusion when “extraordinary circumstances” exist. See California v. Norton, 311 F.3d 1162, 1168 (9th Cir.2002). “Extraordinary circumstances” has been defined as those “in which a normally excluded action may have a significant environmental effect.” Id. In cases where “extraordinary circumstances” exist, the proposed action requires preparation of an EA or an EIS. Id.

c. Scoping Process

In determining the propriety of the use of a Categorical Exclusion, the agency is required to use a “scoping process” to “determine the scope of the issues to be addressed and for identifying the significant issues related to a proposed action.” See Alaska Ctr., 189 F.3d at 859 (noting that the Forest Service is required to conduct scoping for “all proposed actions, including those that would appear to be ‘categorically excluded.’ ”). The CEQ regulations do not set forth a specific procedure for scoping, but instead leave most of the decisions regarding scoping to the relevant federal agency. See Kootenai Tribe v. Veneman, 313 F.3d 1094, 1116–17 (9th Cir.2002) (noting that “the affirmative duties NEPA imposes on a government agency during the scoping period are limited”).

Under the CEQ regulations, “[t]here shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action.” See 40 C.F.R. § 1501.7. As part of the scoping process, the lead agency (here, the Forest Service) shall “[i]nvite the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including those who might not be in accord with the action on environmental grounds), unless there is a limited exception under § 1507.3(c),” ¹ in order to provide notice that the agency is beginning to consider the impacts of the proposed action. Id. If the scoping process ultimately reveals the existence of “extraordinary circumstances having a significant effect on [the] environment,” the agency may not simply invoke the Categorical Exclusion, and is required, at a minimum, to prepare an EA. See Alaska Ctr., 189 F.3d at 859. The arbitrary and capricious standard is applied “to an agency's determination that a particular action falls within a categorical exclusion.” See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir.1996).

2. Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.

The ESA contains both substantive and procedural provisions designed to protect species listed as threatened or endangered under the Act. See Forest Guardians v. Johanns, 450 F.3d 455, 457(9th Cir.2006). Section 7(a)(2), the substantive provision of the Act, requires federal agencies to “insure that any action, authorized, funded, or carried out by [the] agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species....” See 16 U.S.C. § 1536(a)(2).

Section 7(b) then sets forth the process of consultation. It requires that federal agencies consult with the appropriate wildlife agency on every action that “may affect” a threatened or endangered species. See 50 C.F.R. § 402.14(a). “May affect” has been interpreted broadly to mean that “any possible effect, whether beneficial, benign, adverse, or of an undetermined character,” triggers the consultation requirement. See 51 Fed. Reg. 19926, 19949 (June 3, 1986). The ESA generally envisions a three-step consultation process. See Forest Guardians, 450 F.3d at 457. First, the agency contemplating action must request information from the appropriate federal consulting agency, the Fish & Wildlife Service or the National Marine Fisheries Service, regarding “whether any species which is listed or proposed to be listed may be present in the area of such proposed action.” Id. (citing 16 U.S.C. § 1536(c)(1)).

If so, and if the action constitutes a “major construction activity,” then the agency is required to produce a “biological assessment” (or “BA”) in accordance with ESA “for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action.” See 50 C.F.R. § 402.12. If the BA concludes that there are no listed species or critical habitat present that are likely to be adversely affected, and the wildlife agency confers, then formal consultation is not required. See 50 C.F.R. § 402.12(k)(1). However, if the BA concludes that listed species are in fact likely to be adversely affected, the agency then must ordinarily enter into formal consultation with the wildlife service. See Forest Guardians, 450 F.3d at 457. Formal consultation requires the wildlife agency to produce a “biological opinion” that evaluates the nature and extent of the proposed action's effect on the listed species and that, if necessary, “posits reasonable and prudent alternatives to the proposed...