290 F. Supp. 3d 1102
E.D. Cal.2017Background
- The U.S. Forest Service (USFS) approved the "Bull Run" roadside hazard-tree project to fell and remove dead/dying trees within ~300 feet of roads across ~3,500 acres (50.2 miles of road) in the Cedar Fire area; some material may be sold and some retained for habitat/reforestation.
- USFS relied on categorical exclusions (CEs) under NEPA—primarily the road-maintenance CE (36 C.F.R. § 220.6(d)(4))—and concluded no extraordinary circumstances required an EA or EIS.
- Biological analyses (BE/BA) and an FWS Biological Opinion addressed potential impacts to mountain yellow-legged frog (MYLF), Pacific fisher, and California spotted owl (CSO); FWS concluded the project "may affect, likely to adversely affect" MYLF but not likely to jeopardize the species.
- Plaintiffs (Earth Island Institute and Sequoia ForestKeeper) sued and moved for a preliminary injunction, arguing USFS improperly used CEs (invoking salvage-CE limits), failed to consider extraordinary circumstances and cumulative/connected actions (Bull Run vs. separately-analyzed Spear Creek), and risked irreparable environmental harm.
- The court reviewed standing, NEPA/APA standards, competing precedent on CE scope, the agency's species analyses, safety/public-interest considerations, and denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USFS may use the road-maintenance CE for a large-scale roadside salvage/logging project | CE-13 (salvage CE) limits salvage to 250 acres; USFS cannot evade that cap by invoking road CE | Agency reasonably interpreted its own CEs; precedent supports using road-maintenance CE for roadside hazard removal; deference required | Court: Serious questions exist but overall USFS interpretation reasonable under deferential review; plaintiffs not likely to prevail on this issue |
| Whether extraordinary circumstances (threatened/endangered/sensitive species) required EA/EIS | Presence of MYLF, fisher, CSO and FWS statement support that impacts could be significant; USFS failed to explain insignificance | USFS, BA/BE and FWS BiOp analyzed species, included 30 mitigation measures, and explained low likelihood/limited scope of impacts | Court: USFS adequately explained no extraordinary circumstances for preliminary-injunction purposes; plaintiffs not likely to prevail |
| Whether USFS improperly segmented Bull Run and Spear Creek (connected/cumulative actions) | Both arose from same fire, were initially one project, and could have cumulative/connected impacts on wildlife and connectivity | Projects are on opposite sides/watersheds, subject to different plans/timelines, and USFS analyzed cumulative effects; CEQ connected-action rule applies to EISs and not categorical exclusions | Court: Even assuming rule applied, plaintiffs failed to raise serious questions; separate analyses were reasonable |
| Whether plaintiffs showed irreparable harm, balance of equities, and public interest to justify injunctive relief | Post-fire logging causes irreparable environmental harm to species and recreational/aesthetic interests; public interest favors environmental protection | Public safety risks from hazardous trees, limited area treated, many snags left intact, and speculative species impacts weigh against injunction | Court: Irreparable harm unlikely or minimal on record; public safety and lack of likelihood of success weigh against injunction; preliminary injunction denied |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (establishes four-factor preliminary injunction standard including likelihood of success and irreparable harm)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (adopts sliding-scale approach for preliminary injunction equities)
- Alaska Ctr. for Environment v. U.S. Forest Service, 189 F.3d 851 (9th Cir. 1999) (agency CE interpretations reviewed under arbitrary and capricious standard; agency deference on its own CE meanings)
- Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002) (NEPA is procedural; agencies must take a "hard look")
- League of Wilderness Defenders v. Connaughton, 752 F.3d 755 (9th Cir. 2014) (NEPA’s informational and procedural purposes; balancing public interest and harms)
- Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012) (APA review limited to administrative record; deferential arbitrary and capricious standard)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) (standing of environmental organizations via members’ recreational/aesthetic injuries)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements; procedural rights and redressability)
- Summers v. Earth Island Institute, 555 U.S. 488 (2009) (procedural-rights plaintiffs can assert procedural violations tied to concrete interests)