United States District Court, D. Oregon
CASCADIA WILDLANDS, an Oregon nonprofit corporation; OREGON WILD, an Oregon non-profit corporation; and BENTON FOREST COALITION, an Oregon corporation, Plaintiffs,
ALICE CARLTON, in her official capacity as Umpqua National Forest Supervisor; and UNITED STATES FOREST SERVICE, an administrative agency of the United States Department of Agriculture, Defendants.
Michael J. McShane, United States District Judge.
Cascadia Wildlands, Oregon Wild, and Benton Forest Coalition
(collectively, “plaintiffs”), seek a preliminary
injunction that would halt implementation of a July 11, 2017,
United States Forest Service (“FS”) decision to
allow logging as part of the Quartz Integrated Project
(“Quartz Project”). Specifically, plaintiffs
allege that the FS violated the National Environmental Policy
Act (NEPA) by failing to allow for public comment regarding
amendments to the timber sale, and by failing to adequately
account for management changes on adjacent land belonging to
the Bureau of Land Management (“BLM”). Because
plaintiffs have not established a likelihood of success on
the merits and because, at this eleventh hour, the plaintiffs
cannot establish that an injunction is in the public interest
or that the balance of equities tips in their favor,
plaintiffs' Motion for Preliminary Injunction, ECF No.
16, is DENIED.
11, 2017, the FS authorized the Quartz Project in a Finding
of No Significant Impact (“FONSI”). The Quartz
project was implemented to improve forest stand growth,
health, and diversity within forest lands of the Umpqua
National Forest, and to reduce risks of wildfire. AR13464.
Following authorization, the FS entered into two separate
timber sales with defendant intervenors Rosbo and Swanson
Group (the “intervenors”). The sales were
completed in September of 2017 and both intervenors have
completed the ground operations necessary for harvesting the
timber. Some logging is already underway.
challenge the logging of a 517 acre component of the Quartz
project that encompasses stands of 90 to 130-year-old trees
in matrix designated forest. The FS maintains that these
overly dense stands are highly prone to fire and are
impacting healthy forest diversity. Under the Northwest
Forest Plan (“NWFP”), matrix lands comprise the
area “in which most timber harvest and other
silvicultural activities will be conducted.” AR 4100.
Matrix lands were designated to emphasize “the economic
and social benefit of timber harvest.” AR 4143. Under
the Umpqua Forest Plan managed by the FS, the primary
management objective in the contested area is timber
production and extraction of mineral resources.
heart of this controversy is the existence of a small rodent
known as the red tree vole, a hamster-like mammal that lives
in the forest canopies of the Pacific Northwest. The red tree
vole is “protected” and the NWFP lists it as a
Category C “Survey and Manage” species. As a
protected species, known red tree vole nesting sites are
protected from logging unless the land manager determines the
site is “non-high priority” (“NHP”).
If a site is deemed NHP, then it is not needed for species
persistence and it is subject to land management action such
began survey efforts regarding red tree voles in the project
area as early as 2013. On August 27, 2014 the FS released an
environmental assessment (EA) for public comment. During that
comment period, plaintiffs submitted data regarding 51 vole
nests in the project area and questioned the efficacy of the
earlier study. The FS accepted the data as true and confirmed
87 vole nests. On April 4, 2016, the FS published a final EA
and a draft FONSI as to the Quartz project. Plaintiffs
participated in an objection resolution meeting where they
again questioned the findings with regard to the red tree
vole. This led to additional surveys of the vole in the
summer and fall of 2016. The EA was amended in July and
December of 2016 to identify 9 additional vole nesting sites.
The amendments were not released to the public until June 26,
2017. Two weeks later, the FS signed the FONSI.
August 2016, one year before the final FONSI, and four months
after the FS published the final EA and the draft FONSI, the
BLM published a new Record of Decision (ROD) and Resource
Management Plan for over 1.3 acres of land it manages, some
of which is adjacent to the Quartz Project. This 2016 ROD
supersedes the 2001 ROD. In designating the vole sites NHP,
the FS in the EA analyzed the perseverance of the vole in
part through an analysis of vole habitat in lands adjacent to
the Quartz Project. In May of 2017, after the BLM published
the 2016 ROD, the FS analyzed the potential impacts, if any,
of the 2016 ROD on the NHP site designation for the red tree
vole. AR 13453-13457. This internal FS analysis was not
publicized until the FS produced the administrative record
after plaintiffs filed this action.
plaintiffs maintain that the FS was not transparent in their
evaluation of the vole population in the Quartz project and,
as a result, failed to adequately inform the public and
receive public input in the determination that the timber
sales were appropriate. The plaintiffs believe that FS has
“gone out of its way to ensure the existence of red
tree voles would not hinder its proposed timber
harvest.” Pls.' mem., 6. Specifically, the
plaintiffs allege the FS violated NEPA by not providing its
internal analysis of the 2016 ROD or the two amendments to
the EA for public comment. As noted, plaintiffs seek an
injunction prohibiting the intervenors from logging on any of
the roughly 500 acres in dispute.
plaintiff seeking a preliminary injunction must establish:
(1) likelihood of success on the merits; (2) irreparable harm
in the absence of preliminary relief; (3) the balance of
equities tips in his favor; and (4) an injunction is in the
public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). When there are
“serious questions going to the merits, ” a court
may still issue a preliminary injunction when “the
balance of hardships tips sharply in the plaintiff's
favor, ” and the other two factors are met. All.
for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th
Cir. 2017) (quoting All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). The
court's decision on a motion for a preliminary injunction
is not a ruling on the merits. See Sierra On-Line, Inc.
v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.
MERITS OF PLAINTIFFS' NEPA CLAIMS
allege the FS violated NEPA by failing to adequately involve
the public in the decision-making process. As this case
centers on an agency's decision under NEPA, I review the
FS's decision under the Administrative Procedure Act.
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176
(9th Cir. 2011) (per curiam). Under the APA, a court's
review of an agency decision should be searching but narrow,
and the reviewing court should take care not to substitute
its judgment for that of the agency. Oregon Wild v.
United States, 107 F.Supp.3d 1102, 1109 (D. Or. 2015)
(citing Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 416 (1971)). Under this review, the court
“shall hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706. An agency decision made
without adherence to required procedure is not in accordance
with law. Id.; Idaho Sporting Cong. Inc. v.
Alexander, 222 F.3d 562, 567 (9th Cir. 2000).
is no minimum amount of public involvement necessary for an
EA to be valid under NEPA. Citizens for Better Forestry
v. U.S. Dep't of Agric., 341 F.3d 961, 970 (9th Cir.
2003). But the NEPA regulations are clear that some level of
public involvement is necessary so that the agency can make a
fully informed decision before taking action that impacts the
environment. Id. at 970-71. Generally, the agency
must involve the public “to the extent
practicable.” 40 C.F.R. § 1501.4(b). “An
agency, when preparing an EA, must provide the public with
sufficient environmental information, considered in the
totality of the circumstances, to permit members of the
public to weigh in with their views and thus inform the
agency decision-making process.” Bering Strait
Citizens for Responsible Res. Dev. v. U.S. Army Corps of
Eng'rs, 524 F.3d 938, 953 (9th Cir. 2008).
Evaluation of whether there was sufficient public involvement
under NEPA for an EA is case specific. Sierra Nevada
Forest Prot. Campaign v. Weingardt, 376 F.Supp.2d 984,
991-92 (E.D. Cal. 2005).
make two arguments that the FS violated NEPA's procedural
requirements: first, plaintiffs point to the two amendments
to the EA identifying additional vole sites as NHP; second,
plaintiffs point to the internal FS document concluding the
2016 ROD did not present substantial changes to the FS
determination that the vole sites were NHP. In both
instances, plaintiffs argue the FS did not allow adequate