League of Wilderness Defenders/Blue Mountains Biodiversity Project, an Or. Nonprofit Corp. v. Connaughton

• Decision Date: 08 May 2014
• Docket Number: No. 13–35653.,13–35653.
• Parties: LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation; Hells Canyon Preservation Council, an Oregon nonprofit corporation, Plaintiffs–Appellants, v. Kent CONNAUGHTON, Regional Forester, Pacific Northwest Region of the Forest Service, in his official capacity; United States Forest Service, an agency of the United States Department of Agriculture; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior; Gary Miller, Field Supervisor, United States Fish and Wildlife Service, in his official capacity, Defendants–Appellees, Baker County, a political subdivision of the State of Oregon; Union County, a political subdivision of the State of Oregon; Boise Cascade Wood Products, a Delaware limited liability company; American Forest Resource Council, an Oregon nonprofit corporation; Chary Mires, an individual; Oregon Small Woodlands Association, an Oregon nonprofit corporation, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

752 F.3d 755

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation; Hells Canyon Preservation Council, an Oregon nonprofit corporation, Plaintiffs–Appellants,

v. Kent CONNAUGHTON, Regional Forester, Pacific Northwest Region of the Forest Service, in his official capacity; United States Forest Service, an agency of the United States Department of Agriculture; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior; Gary Miller, Field Supervisor, United States Fish and Wildlife Service, in his official capacity, Defendants–Appellees,Baker County, a political subdivision of the State of Oregon; Union County, a political subdivision of the State of Oregon; Boise Cascade Wood Products, a Delaware limited liability company; American Forest Resource Council, an Oregon nonprofit corporation; Chary Mires, an individual; Oregon Small Woodlands Association, an Oregon nonprofit corporation, Intervenor–Defendants–Appellees.

No. 13–35653.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 2014.

Filed May 8, 2014.

Thomas Buchele (argued), Earthrise Law Center, Portland, OR, for Plaintiff–Appellant League of Wilderness Defenders/Blue Mountain Preservation Project.

Jennifer Schemm, La Grande, OR, for Plaintiff–Appellant Hells Canyon Preservation Council.

J. David Gunter II (argued), Robert G. Dreher, and Beverly F. Li, United States Department of Justice, Washington, D.C., for Defendants–Appellees.

Caroline Lobdell (argued), Western Resources Legal Center, and Scott W. Horngren, American Forest Resource Council, Portland, OR, for Defendant–Intervenors–Appellees.

Appeal from the United States District Court for the District of Oregon, Marco A. Hernandez, District Judge, Presiding. D.C. No. 3:12–cv–02271–HZ.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and MORGAN CHRISTEN, Circuit Judges.

OPINION

GOULD, Circuit Judge:

The League of Wilderness Defenders/Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council (collectively “the LOWD plaintiffs”) appeal from the district court's denial of their motion to preliminarily enjoin the Snow Basin logging project. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm in part and reverse in part the district court's order, and remand the case to the district court for the entry of a preliminary injunction, the scope of which the district court should determine on remand.

I

The Snow Basin project area encompasses nearly 29,000 acres of the Whitman–Wallowa National Forest (“the Forest”) in northeast Oregon, and the United States Forest Service (“USFS”) has been planning a logging project in this area since 2008. A draft environmental impact statement (“EIS”) was issued in March 2011, and the final EIS (“FEIS”) was issued in March 2012. One way in which the FEIS differed from the draft EIS is that one segment of the project, about 170 acres of regenerative logging, had been removed from consideration in the FEIS. After the adoption of the FEIS, in April 2012, the Forest Supervisor withdrew the Forest's Travel Management Plan (“TMP”), which had proposed to regulate off-road motorized travel and reduce the amount of roads within the Forest, and which had been mentioned in addressing environmental harms from the logging project. In July 2012, the USFS issued a correction notice that said that “group selection” treatment was being considered for 130 of the 170 acres that had been removed from the draft EIS and not considered in the FEIS.

The LOWD plaintiffs filed suit seeking to enjoin the timber sale on the grounds that the USFS and the United States Fish & Wildlife Service (“USFWS”) had violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). The district court held that the LOWD plaintiffs were not likely to succeed on any of their claims, and that the balance of harms did not tip sharply in the LOWD plaintiffs' favor. The district court therefore denied the preliminary injunction. The LOWD plaintiffs filed a timely notice of appeal.

II

We review a district court's denial of a preliminary injunction for abuse of discretion. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940, 944 (9th Cir.2013). An abuse of discretion occurs when the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). Because all claims raised in this appeal relate to whether the district court's view of the law was erroneous, our review of this decision of the district court is de novo. Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 744 (9th Cir.2012).

A motion for a preliminary injunction requires that a plaintiff show that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).¹

The LOWD plaintiffs' substantive NEPA and ESA claims are reviewed under the Administrative Procedure Act, which allows courts to set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Factual determinations must be supported by substantial evidence. Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The arbitrary and capricious standard requires “a rational connection between facts found and conclusions made.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir.2011).

III

We first analyze whether the LOWD plaintiffs are likely to succeed on the merits of any of their claims under prong one of Winter. Upon determining that they are, we then proceed to consider the remaining prongs of the Winter test to determine whether the LOWD plaintiffs face irreparable injury, to balance the equities between the parties, and to examine the public interest to determine whether a preliminary injunction is warranted. Winter, 555 U.S. at 24, 129 S.Ct. 365 (“A preliminary injunction is an extraordinary remedy never awarded as of right.”).

A

The LOWD plaintiffs raise four challenges to the Snow Basin FEIS under NEPA, and an additional challenge under the ESA. Under NEPA, they argue that 1) now that the TMP has been withdrawn, the FEIS' reliance on the TMP in analyzing the impact of the project on certain species within the Forest is invalid, and a supplemental EIS must be completed; 2) the FEIS' failure to consider the cumulative effects of the 130–acre logging project in the correction notice was error; 3) the failure of the FEIS to analyze the cumulative effects of potentially increased stream temperatures and sedimentation was error; and 4) the FEIS did not properly explain why it found that bull trout were not present in the project area, and so did not analyze the project's impact on bull trout. Under the ESA, the LOWD plaintiffs challenge the USFS' and USFWS' joint determination that bull trout, a threatened species, were not present in the project area. Each of these challenges is addressed separately below.

NEPA requires agencies to prepare a supplemental EIS when “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(ii). When determining whether to issue a supplemental EIS, an agency must “apply a rule of reason,” not supplementing “every time new information comes to light” but continuing to maintain a “hard look” at the impact of agency action when the “new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered.” Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 373–74, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotation marks and alteration omitted). In Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549 (9th Cir.2006), we required the Bureau of Land Management to prepare a supplemental EIS after it changed a policy upon which the original EIS had relied. Id. at 561–62. We noted that the bar for whether “significant effects” may occur is “a low standard.” Id. at 562. That the policy change “raise[d] ‘substantial questions' regarding [the project's] impact” was enough to require further analysis before allowing the project to proceed. Id. at 562.

The Snow Basin FEIS opens its analysis of the project's impact on the area's elk population by stating that elk are the “most popular” big game in the area, and are “an indicator of the quality and diversity of the general forested habitat,” but that “[d]isturbance due to roads is a major factor influencing elk distribution.” After surveying the existing status of the habitat, it begins its analysis of road density. It notes that three parcels within the project area currently exceed the recommended road density, but that the TMP, “will result in a net reduction of open roads within the project area, which will provide additional habitat that is free from disturbance from motor vehicles.” It then goes on to say that, although the precise reduction in road density could not be quantified because the TMP was not final, the TMP would “result in a substantial improvement in elk security habitat in the Snow Basin project area.” It also includes a table, which calculates the road density in all affected parcels under each alternative. At oral argument, counsel for the USFS explained that this chart does not include the impact of the TMP within its calculations. Later, under separate header, the FEIS discusses the potential impacts of other foreseeable future projects, including fire thinning,...