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Cascadia Wildlands v. Carlton

United States District Court, D. Oregon

October 11, 2018

CASCADIA WILDLANDS, an Oregon nonprofit corporation; OREGON WILD, an Oregon non-profit corporation; and BENTON FOREST COALITION, an Oregon corporation, Plaintiffs,
v.
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.

          ORDER

          Michael J. McShane, United States District Judge.

         Plaintiffs 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.

         FACTUAL BACKGROUND

         On July 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.

         Plaintiffs 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.

         At the 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 as logging.

         The FS 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.

         In 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.

         The 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.

         STANDARDS

         A 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. 1984).

         DISCUSSION

         I. MERITS OF PLAINTIFFS' NEPA CLAIMS

         Plaintiffs 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).

         There 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).

         Plaintiffs 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 public involvement.

         A. The ...


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