Sierra Club v. Eubanks, CIV. S 03-1238 MCE PAN.

• Decision Date: 27 August 2004
• Docket Number: No. CIV. S 03-1238 MCE PAN.,No. CIV. S 03-1242 MCE PAN.,CIV. S 03-1238 MCE PAN.,CIV. S 03-1242 MCE PAN.
• Citation: 335 F.Supp.2d 1070
• Court: U.S. District Court — Eastern District of California
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Steven T. EUBANKS, et al., Defendants. Earth Island Institute, et al., Plaintiffs, v. Department of Agriculture, et al., Defendants.

335 F.Supp.2d 1070

SIERRA CLUB, et al., Plaintiffs, v. Steven T. EUBANKS, et al., Defendants.

Earth Island Institute, et al., Plaintiffs, v. Department of Agriculture, et al., Defendants.

No. CIV. S 03-1238 MCE PAN.

No. CIV. S 03-1242 MCE PAN.

United States District Court, E.D. California.

August 27, 2004.

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Patrick Gallagher, Kristin A. Henry, Sierra Club, Emily L. Kennedy, Paul, Hastings, Janofsky and Walker, San Francisco, CA, Amy Minteer, Jan Chatten-Brown, Chatten, Brown and Associates, Santa Monica, CA, Eric E. Huber, Pro Hac Vice, Sierra Club, Boulder, CO, Aaron S. Isherwood, Sierra Club, San Francisco, CA, Rachel Marie Fazio, Rachel M. Fazio, Attorney at Law, John Muir Project, Cedar Ridge, CA, for plaintiffs.

Charles M. O'Connor, United States Attorney, Assistant United States Attorney, San Francisco, CA, for defendants.

David H. Dun, Shelley C. Addison, Dun and Martinek, Eureka, CA, for intervenor-defendant.

Gary G. Stevens, Ruth G. Tiger, Saltman and Stevens, Washington, DC, Andrew Franklin Brimmer, Stoel Rives LLP, San Francisco, CA, for amicus.

AMENDED MEMORANDUM AND ORDER

ENGLAND, District Judge.

In this consolidated case, Plaintiffs Sierra Club, Sierra Nevada Forest Protection Campaign, and Sierra Foothills Audubon Society (collectively referred to as "Sierra Club"), along with Plaintiffs Earth Island Institute, Center for Biological Diversity, Forest Issues Group and James Woods ("Earth Island"),¹ seek to enjoin Defendants United States Department of Agriculture, Ann Veneman, the United States Forest Service, Dale Bosworth, and Steven T. Eubanks ("Defendants") from taking further action to implement Defendants' Red Star Restoration Project (hereinafter referred to as the "Red Star Project") on grounds that said project violates the Sierra Nevada Forest Plan Amendment (the "Framework"), the Tahoe Forest Land and Resource Management Plan ("Forest Plan"), the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., and the Roadless Area Conservation Rule, 36 C.F.R. § 294.10 et seq. ("Roadless Rule"). In accordance with the provisions of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., Plaintiffs seek injunctive relief on grounds that the harm occasioned by continued implementation of the project, which involves the logging and commercial sale of timber within the Tahoe National Forest in the wake of a devastating 2001 wildfire, will be immediate and irreparable. For the reasons set forth below, the Court grants the requested preliminary injunction.²

BACKGROUND

In August and September of 2001, substantial portions of the El Dorado and Tahoe National Forests burned at varying levels of intensity as a result of a wildfire, which apparently ignited in piles of "slash" (unmerchantable limbs, twigs, tops and needles from felled trees) left on the ground following logging operations in nearby private timber stands. This fire, designated by the Forest Service as the "Star Fire", burned some 10,473 acres of the Tahoe National Forest alone, including approximately 4,309 acres within the Duncan Canyon Inventoried Roadless Area. The majority of the burned acreage was designated as Old Forest Emphasis Area.

After the fire, Defendants proposed logging in burned areas within the Tahoe National Forest. To that end, a Final Environmental Impact Statement ("FEIS") for the Red Star Project was issued by the Forest Service on November 15, 2002. The primary stated purpose for the project was to reduce the risk of future severe fire in order to recover old forest conditions and retain existing old growth forest characteristics. This was to be accomplished by reducing flammable surface fuel loading in the project area. (FEIS, pp. 23-25).³

The alternative chosen by the FEIS in meeting these objectives permitted removal of most larger fire-killed trees, except for between four and eleven dead "snags" per acre. (Id. at 57). Proposed logging to remove the larger trees would generate, according to the Forest Service's own estimate, some eighty-five tons per acre of slash debris, as compared to ten tons per acre of estimated on-the-ground fuels prior to commencement of logging activities. (Id. at 57, 81). The Red Star Project targeted fire-killed trees (and trees predicted to succumb in the aftermath of the fire) with a diameter of 10 inches or above on an area of approximately 5,530 acres.⁴ With the exception of specified logging units known as SPLATs (Strategically Placed Logging Area Treatments), where slash cleanup was planned within two to five years if funding for such activities was available, the slash left by logging activities would not be treated or removed.⁵

Significantly, Forest Service studies relied upon in the FEIS conclude that "extreme" fire hazard is reached when surface fuels exceed thirty to forty tons per acre.⁶ In justifying removal of larger trees for commercial sale, however, Defendants contend that reduction of overall fuel volume by logging such trees decreases overall fire risk. They point to the fact that failing to take any action to reduce fuel volumes will result in a remaining average of 160 tons of fuel per acre, while the proposed logging would reduce that tonnage to some 85 tons, albeit of smaller diameter woody material that Plaintiffs contend is far more combustible. According to Plaintiffs, the larger diameter logs, if ignited, will cause a more intense fire that is more likely to destroy regenerating forest and soil conditions. Defendants further contend that leaving slash on the forest floor as ground cover will also benefit and protect soil resources by preventing erosion and retaining crucial soil nutrients.

In bringing the present actions, Plaintiffs contend that the Red Star Project contravenes both the Forest Plan, the Framework and the Roadless Rule. They argue that the provisions of both the NFMA and NEPA are consequently violated, and seek relief under the provisions of the APA. Except for a modification of the Red Star Plan with respect to the Duncan Canyon Inventoried Roadless Area (which required that certain planting activities occur in that area), Plaintiff's administrative appeals were denied.

On July 1, 2003, this Court issued a temporary restraining order enjoining Defendants from taking any further steps to implement the Red Star Project in Duncan Canyon, and to that end prevented Defendants from advertising, offering timber for sale, or awarding any timber contracts within Duncan Canyon. On July 28, 2003, a hearing was held with respect to Plaintiffs' request for a preliminary injunction. At that time a stipulation was entered into by all parties to maintain the temporary restraining order in place until issuance of a written order on the requested preliminary injunction.

Because of issues raised by the parties with respect to rapid deterioration of the timber earmarked for logging and indications that recent proposed timber sales outside Duncan Canyon failed to garner any bidding whatsoever, a status conference was ordered by the Court to ensure that this matter remained in actual controversy. At that hearing, held June 17, 2004, the parties informed the Court that while logging was virtually complete on all areas outside Duncan Canyon, the Forest Service still intended to submit some 450 acres within Duncan Canyon for proposed logging. Defendants informed the Court that they believed that sale to remain commercially viable, and expressed their intent to proceed with that sale if not enjoined from doing so. Consequently the Court determined it would proceed with issuance of a written decision on the preliminary injunction sought by Plaintiffs.

Although Plaintiffs take issue with the Red Star Project for numerous reasons, for purposes of analyzing the present request for preliminary injunction, which is designed to halt any further implementation of the project, three key arguments advanced by Plaintiffs will be considered. First, Plaintiffs argue that the logging of larger trees, and the attendant slash debris left as a result of that logging, increases rather than decreases the risk of severe wildfire. Secondly, with respect to Duncan Canyon, Plaintiffs contend that Defendants cannot justify logging of that inventoried roadless area under any of the exceptions to the so-called "Roadless Rule", which permits logging of roadless areas to occur only under narrow circumstances. Thirdly, Plaintiffs maintain that the FEIS fails to monitor certain specified Management Indicator Species ("MIS"), as required by both the Framework and the Forest Plan.

STANDARD

Certain prerequisites must be satisfied prior to issuance of a preliminary injunction. Under the so-called "traditional" standard, an injunction may be had if the court determines that (1) the moving party will suffer irreparable injury if the relief is denied; (2) there is a strong likelihood that the moving party will prevail on the merits at trial; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993). Under the "alternative" standard, an injunction properly issues when a party demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits combined with a balancing of hardships tipping sharply in favor of the moving party. Id., see also Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir.2000). The requirement for showing a likelihood of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits, with these factors representing two points on a sliding scale. United States v. Nutri-cology, Inc., 982...