Wildlands v. United States Forest Serv.
| Docket Number | Civ. 6:21-cv-01225-AA |
| Decision Date | 27 December 2021 |
| Parties | CASCADIA WILDLANDS; OREGON WILD, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant. |
| Court | U.S. District Court — District of Oregon |
This case comes before the Court on a Motion for Preliminary Injunction filed by Plaintiffs Cascadia Wildlands and Oregon Wild. ECF No. 13. The Court heard oral argument on December 2, 2021 by videoconference, ECF No. 27, and GRANTED the requested injunction. This Opinion & Order serves to memorialize the Court's ruling.
A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction must show (1) that he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his or her favor; and (4) an injunction is in the public interest. Id. at 20.
In the Ninth Circuit, courts may apply an alternative "serious questions" test, which allows for a preliminary injunction where a plaintiff shows that "serious questions going to the merits" were raised and the balance of hardships tips sharply in plaintiffs favor, assuming the other two elements of the Winter test are met. Alliance for the WildRockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). This formulation applies a sliding scale approach where a stronger showing of one element may offset a weaker showing in another element. Id. at 1131. Nevertheless, the party requesting a preliminary injunction must carry its burden of persuasion by a "clear showing" of the four elements set forth above. Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012).
The National Environmental Policy Act ("NEPA") is a procedural statue that requires the federal government to carefully consider the impacts of and alternatives to major environmental decision. 42 U.S.C. §§ 4321, 4331. Its purpose "is to ensure that federal agencies take a 'hard look' at the environmental consequences of their proposed actions before deciding to proceed." Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citation omitted). "Although NEPA establishes procedures by which agencies must consider the environmental impacts of their actions, it does not dictate the substantive results of agency decision making." Id.
The present motion involves two Forest Service projects, the Lang Dam Project and the Hwy 46 Project. Plaintiffs were involved in the administrative and public comment processes for both Projects. Krop Decl., ECF No. 14; Heiken Decl., ECF No. 15; Cotton Decl., ECF No. 19. The Forest Service issued final decisions in both Projects and entered into timber sale contracts prior to the catastrophic wildfires of 2020. After the fire, the contracts were modified to involve salvage logging. In the present motion, Plaintiffs seek to enjoin implementation of the modified contracts in the burned portions of the two Project areas and so some discussion of the original decisions and the effects of the 2020 wildfires is required.
In April 2017, the Forest Service issued an Environmental Assessment ("EA") for the Lang Dam Project, which considered proposals for logging in the Willamette National Forest. Cady Decl. Ex. I. ECF No. 18. The Lang Dam Project area encompassed 7, 195 acres and the EA assessed harvesting 8.1 million board feet of timber from 20 managed stands. Id. at 8. The proposal contemplated 331 acres of commercial thinning with 25 acres retained as skips, as well as 40 acres to be harvested as openings and dominant tree releases ranging from 0.25 to 3 acres in size. Id. In total, the Lang Dam Project contemplated commercial timber harvest in approximately 630 acres. Id. at 20.
The Lang Dam EA described the Project's purpose and need as: (1) provide a sustainable supply of timber products; (2) actively manage the stands to improve stand conditions, density, and structure; and (3) manage Riparian Reserves to control stocking and acquire desired vegetation characteristics needed to attain Aquatic Conservation Strategy objectives. Cady Decl. Ex. I, at 11. With respect to the second of these goals, the EA noted that 68% of stands proposed for harvest in the project area are overstocked or showing signs of reduced growth or mortality from competition. Id. Overstocked stands caused increased stress on the trees, increasing susceptibility to insect and disease outbreaks. Id. Overstocked stands can also "increase the potential for high severity wildfires." Id.
In the EA, the Forest Service considered two alternatives: a "no action" alternative, which was rejected as it would not produce a timber harvest; and the proposed action alternative. Cady Decl. Ex. I, at 21-21. On August 23, 2017, the Forest Service issued a Decision Notice/Finding of No Significant Impact ("DN/FONSI") selecting the proposed action alternative for the Lang Dam Project. Cady Decl. Ex. E, at 1. The Forest Service awarded one timber sale contract authorized by the Lang Dam Project. Dasher Decl. ¶ 4. ECF No. 22-2.
In March 2018, the Forest Service issued an Environmental Impact Statement ("EIS") for the Hwy 46 Project, a proposed timber harvest in the Willamette National Forest. Cady Decl. Ex. C. The Hwy 46 Project proposed to treat approximately 4, 060 acres. Id. at 14. The EIS described the purpose and need of the Hwy 46 Project as (1) improve stand growth, diversity, and structure; (2) move stand structure from an overabundance of mid-seral stands to increase both early and late serai stand structure within the watershed; (3) reduce hazardous fuels; (4) restore sugar pine and encourage sugar pine regeneration; (5) treat powerline visuals; (6) restore riparian and understory and meadow habitats; (7) restore hydrologic processes in the Short Lake area; and (8) provide a sustainable yield of timber for commercial products to local and regional economies. Id. With respect to the first two goals, the EIS noted that the proposed thinning of the forest would improve stand conditions by making more growing space and resources available to the remaining trees. Id. In addition, the "cessation of clear-cut logging twenty years ago and continued fire suppression" had resulted in a substantial reduction in early serai habitat in the Project area, which the Forest Service proposed to remedy by thinning the trees in the Project area. Id. at 14-15. The Forest Service also noted that the exclusion of fire had resulted in a reduction of meadow habitat and the encroachment of conifers on high elevation meadows. Id. at 16.
In the EIS, the Forest Service considered three alternatives for the Hwy 46 Project: a "no action" alternative and two "action" alternatives, which varied by the amount of treatment proposed. Cady Decl. Ex. C at 16. Alternative 2, which involved a larger acreage of timber harvest, was the proposed and preferred alternative. Id. at 16-17.
In April 2019, the Forest Service issued a Record of Decision ("ROD") for the Hwy 46 Project. Cady Decl. Ex. D. In the ROD, the Forest Service noted that "Historically, large scale disturbances [in the Project area] have been from infrequent, high intensity fires," but that since the mid-1990s, "there has been virtually no stand replacing disturbance." Id. at 7. The ROD authorized a modified version of Alternative 2, which would allow timber harvest on approximately 2, 032 acres and would include "thinning, gap creation, dominant tree release, quality early serai creation, sugar pine restoration, meadow restoration, and skips." Id. at 10. The Project was anticipated to yield 23.1 million board feet of timber. Id. The ROD also noted that formal consultation with the United States Fish & Wildlife Service ("FWS") was requested pursuant to Section 7 of the Endangered Species Act to consider the effects of the proposed project on the Northern Spotted Owl. Id. at 23. The FWS issued a Biological Opinion ("BiOp") in which it concluded that Northern Spotted Owl habitat and critical habitat "will be adversely affected but will not result in disruption or incidental take." Id. Of note, the ROD dropped the proposed treatment of units affected by a wildfire in 2017. Id. at 20. The Forest Service awarded five timber sale contracts authorized by the Hwy 46 Project decision. Dasher Decl. ¶ 3.
In the autumn of 2020, a series of severe wildfires raged across broad swathes of Oregon. As relevant to this case, these fires included the Holiday Farm Fire and the Lionshead Fire.
The Holiday Farm Fire burned approximately 173, 000 acres of land in the McKenzie River watershed, including 39, 994 acres of the Willamette National Forest. Cross Decl. ¶ 3. The Hohday Farm Fire burned 340 of 463 acres slated for treatment in the Lang Dam Project area. Id. at ¶ 5. The fire resulted in a "mosaic of high, moderate, and low burn severities across multiple harvest units" in the Lang Dam Project area. Id.
The Forest Service assembled a Burned Area Emergency Response ("BAER") team on September 30, 2020 and the team issued its report on the Holiday Farm Fire on October 30, 2020. Cady Decl. Ex. A, at 1. The BAER team reported that, among other damage, the Holiday Farm Fire burned 1, 684 acres of critical habitat for the Northern Spotted Owl at high severity and a further 10, 740 acres of critical owl habitat at moderate severity. Id. at 5.
The Lionshead Fire originated 13 miles east of the Hwy 46 Project area and expanded...
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