Opinion
No. 2:05-cv-0205-MCE-GGH.
October 15, 2007
MEMORANDUM AND ORDER
Plaintiffs Sierra Forest Legacy, et al., seek a preliminary injunction on grounds that the Slapjack, Basin and Empire Projects (all within the Plumas National Forest) risk irreparable harm to old forest habitat and imperiled wildlife including California spotted owls, Pacific fishers and American martens. Because certain timber contracts associated with these projects were due to be awarded on or about October 1, 2007, the Court entered an order shortening time permitting the injunction request to be heard on September 21, 2007. The Court denied Plaintiffs' Motion for Preliminary Injunction from the bench at the conclusion of the September 21, 2007 hearing. This written order expands upon that ruling.
BACKGROUND
The Sierra Nevada region comprises some eleven million acres of National Forest Service land, approximately eight million of which are in a state of unnatural forest density, creating a risk of catastrophic wildfire. SNFPA 3198-99. At the same time, however, the overgrown areas provide desired habitat for certain old-growth species like the California Spotted Owl ("owl") and the Pacific Fisher and American Marten ("fisher" and "marten"), both of which are small forest carnivores.
Citations to the eight-volume administrative record for the 2001 and 2004 Sierra Nevada Framework are referenced by the bates-stamped number of the referenced page. Citations to the administrative records of the Basin, Slapjack and Empire projects are similarly denoted by the project name followed by a bates-stamped number.
The Forest Service is confronted with a vexing problem in attempting to simultaneously balance fire danger while at the same time protecting habitat preferred by the owl, fisher and marten.
In the late 1980s, the Forest Service began developing a comprehensive strategy for managing the myriad resources found within the overall Sierra Nevada region. In 1995, the Regional Forester for the Pacific Southwest Region of the Forest Service issued a draft Environmental Impact Statement ("EIS") outlining its management proposal. SNFPA 229. After extensive public participation and the preparation of a Final EIS responding to public concerns, the Regional Forester issued, in 2001, a Record of Decision ("ROD") which adopted management objectives in five major areas: old forest ecosystems, aquatic, riparian, and meadow ecosystems, fire and fuels, noxious weeds, and hardwood ecosystems on the lower westside of the Sierras. Id. at 231-35. As indicated above, among the thorniest issues confronted by the ROD was striking the appropriate balance between balancing the excessive fuel buildups occasioned by decades of fire repression and conserving key habitat for wildlife species dependent on old forest environments. The 2001 Framework included a network of "old forest emphasis areas" across about 40 percent of all national forest land in the Sierra Nevada that was designed to provide a contiguous network of old forest ecosystems conducive to old-growth species preferring such habitat. SNFPA 236.
Documents found within the first eight-volume record are cited as SNFPA, followed by the Bates-stamp number.
In order to protect old forest conditions within its specific areas of emphasis, the 2001 Framework generally prohibited logging that would remove trees over 12 inches in diameter or logging that would reduce canopy cover by more than 10 percent. SNFPA 328. Even within the "general forest" areas, the 2001 Framework prohibited logging of trees over 20 inches in diameter. SNFPA 336. It was only within the intermix zones that no canopy restrictions were imposed and logging of trees up to 30 inches was permitted. SNFPA 333, 315.
Although the Forest Service ultimately affirmed adoption of the 2001 ROD despite receipt of approximately 200 administrative appeals, it nonetheless directed the Regional Forester to conduct an additional review with respect to specific concerns like wildfire risk and the Forest Service's responsibilities under the Herger-Feinstein Quincy Library Group Forest Recovery Act ("HFQLG Act"), a congressional mandate which established a pilot program for fire suppression through a combination of fire breaks, group selection logging and individual logging. SNFPA 1918. A management review team was assembled by the Regional Forester for this purpose.
In March 2003, the team concluded that the 2001 ROD's "cautious approach" to active fuels management had limited its effectiveness in many treatment areas, and that revisions to vegetation management rules would decrease flammable fuels while protecting critical wildlife habitat by guarding against the risk of stand-replacing wildfire. See SNFPA 1918, 1926.
Moreover, with respect to the California Spotted Owl, the team felt that the 2001 ROD had unnecessarily "took a worst case approach to estimating effects" on the owl. SNFPA 1968. In addition to citing recent research indicating that habitat losses resulting from fuel treatments were less than previously believed, the team further found that the 2001 ROD's extensive reliance on maintaining extensive canopy cover was impracticable to implement.
The 2001 Framework's California Spotted Owl analysis was largely predicated on a July 1992 report (the "CASPO Report") that recommended establishment of a 300-acre Protected Activity Center ("PAC") around all known owl nest sites, a complete prohibition of logging within the PACs, more limited logging prohibition of trees over 30 inches in diameter in all habitat suitable for owl nesting and foraging, and a prohibition on logging that would reduce canopy cover below 40 percent in owl nesting habitat. SNFPA 1037-40.
Following receipt of the team's findings, the Regional Forester ordered that management strategy alternatives in addition to those considered in the 2001 FEIS be considered. A draft supplemental environmental impact statement ("DSEIS") was thereafter released to the public in January 2004. While the same five areas of concern were targeted in the DSEIS as in its 2001 predecessor, in 2004 a new action alternative was identified (Alternative S2), in addition to the alternative selected by the 2001 Framework (Alternative S1) and the seven alternatives that had previously been considered before adoption of the 2001 Framework (Alternatives F2-F8). Following the public comment period after dissemination of the DSEIS, the SEIS in final form also included response to various issues raised, including comments by the United States Fish and Wildlife Service, by the United States Environmental Protection Agency, by California resources protection agencies, and by the Science Consistency Review ("SCR") team.
The DSEIS also considered seven additional alternatives in addition to those considered in detail but eliminated the seven from extensive consideration because they were found to be inconsistent with the purpose and need of the DSEIS. SNFPA 3163-65.
The SCR consisted of eleven scientists convened by the Pacific Southwest Research Station in Davis, California, and included experts in fire and fuels management, forest ecology, and species viability. SNFPA 3503.
By adopting the SEIS on January 21, 2004, the Regional Forester replaced the 2001 ROD with its 2004 successor and amended the forest plans for all eleven national forests situated in the Sierra Nevada. SNFPA 2987-3061. The 2004 ROD reasoned that the 2001 Framework "prescribed technical solutions that do not produce needed results, or offered methods we often dare not attempt in the current Sierra Nevada." SNFPA 2995. The 2004 Framework reasoned that the methods as adopted in 2001 fail to reverse the damage, and growing threat, of catastrophic fires quickly enough. Id.
Through the present lawsuit, Plaintiffs allege that the 2004 Framework as ultimately adopted runs afoul of both the NFMA and NEPA on a programmatic basis. Specifically, Plaintiffs contend that the 2004 Framework violates the NFMA both because it fails to maintain viable populations of owls, as well as fishers and martens. Moreover, Plaintiffs also argue that the 2004 Framework runs afoul of NEPA because it was adopted without either adequate disclosure of its significant environmental impacts or consideration of reasonable alternatives to the selected approach.
The merits of Plaintiffs' overall programmatic challenge has not yet been adjudicated. Cross-motions for summary judgment remain pending. During the pendency of those motions, however, Plaintiffs now request a preliminary injunction to stop three site-specific projects within the Plumas National Forest (the so-called Basin, Slapjack and Empire Projects), all of which are part of the HFQLG Act, a pilot program involving 1.5 million acres within the Plumas, Lassen, and Tahoe National Forests. By combining various vegetation management techniques, that Act represents an attempt to 1) determine the efficacy of measures protecting the landscape from high intensity wildfires; 2) encourage the development of a more fire resilient ecosystem by promoting the growth of larger and more fire-resistant tree species; and 3) facilitate the economic stability of local communities dependent on harvesting activities. Litigation challenging logging has reduced compliance with the HFQLG Act. During fiscal year 2007, for example, only fifteen percent of HFQLG Act objectives have achieved within the Plumas National Forest. See Second Decl. of Nancy Francine, ¶ 4.
Consistent with the mandates of the HFQLG Act, the Basin, Empire and Slapjack projects entail a combination of fuel management techniques. Defensive Fuel Profile Zones (DFPZs) entail removal of trees in small narrow strips, mainly along ridgelines, in an effort to stop the spread of high intensity crown fires and control fire spread by reducing ladder fuels. See Slapjack EIS at 3-4. In addition, the projects at issue employ two uneven-aged methods of timber harvest: group selection and the harvest by selection of individual trees.
Group selection techniques remove certain larger, generally shade tolerant trees in an effort to promote the growth of more fire resilient species like douglas fir and ponderosa pine. Id. Group selection mimics forest openings caused by natural disturbances. Both group and individual tree selection is intended to promote more fire resiliency by removing ladder fuels and increasing spacing between tree crowns. The goal is to create a vigorous, healthy, all-aged, multistory, fire resilient forest while contributing to the local community as mandated by HFQLG.
In attempting to halt the Basin, Slapjack and Empire projects through their request for a preliminary injunction, Plaintiffs primarily argue that implementation of the projects will reduce canopy cover to 40 percent or less, remove many large trees between 20 and 30 inches in diameter, and create widespread forest openings that will degrade old forest areas currently providing suitable habitat for owls, martens and fishers. Plaintiffs also contend that each of the challenged projects will, both independently and cumulatively, result in irreparable harm to these species. (See Pls.' Opening Mem., 4:3-8). The viability of Plaintiffs' present Motion rests on the strength of these assertions.
The site-specific areas proposed for treatment appear to be at significant danger of stand-replacing catastrophic fire. Approximately 70 percent of the project areas for the Slapjack and Empire proposals, for example, are comprised of forest acreage categorized as Fire Condition Class 3, which denotes the highest possible danger rating and means that the natural fire regime has been significantly altered from its historic range, with a high risk of losing key ecosystem components in the event of fire. Slapjack EIS 3-61 to 3-65; Empire SEIS at 3-71. Treatment planned for the 34,725 acre Slapjack area, however, includes only 3,671 acres of DFPZs, 219 acres of group selection, and 148 acres of individual tree selection. Slapjack FEIS at 2-4. Eighty-nine percent of existing owl habitat is undisturbed. Of 19,905 acres of suitable fisher denning and roosting habitat, only 1,597 acres will be affected. Slapjack FEIS at 3-285.
The Basin and Empire Projects also entail relatively little disturbance to the projects areas as a whole. Contemplated treatments in Basin include only 1,215 acres of group selection and 80 acres of individual tree selection, with the total area of affected habitat being only 3.6 percent of the total project area. Basin 3669. Similarly, in Empire 90 percent of existing owl foraging habitat and 88 percent of existing nesting habitat is unaffected. Empire ROD at 11.
None of the three projects permits logging within the owl Protected Activity Centers ("PACs") or Spotted Owl Home Areas ("SOHAs"). Logging within the buffer Home Range Core Areas ("HRCAs") which surround the PACS is less than 2,500 acres for all three site-specific projects. For the fisher and marten, impacts appear to be even less. As stated above, Slapjack is estimated to affect only 1,597 acres of fisher denning and roosting habitat. The 38,893 acre Basin area impacts only 400 acres involving movement habitat for fishers and martens. Basin 3575.
Confirmed owl nesting sites are surrounded by a 300-acre PAC, which in turn is surrounded by an additional 700-acre Home Range Core Area (HRCA). SOHAs (Spotted Owl Habitat Areas) are areas delineated in forest plans for providing nesting and foraging habitat for spotted owls.
HRCAs affected by the projects include 1,621 acres for Slapjack, 405 for Basin and 353 for Empire.
These effects must be analyzed in the context of overall species data. The 2004 Framework analyzed owl population data from five different demographic studies conducted over the past seven to twelve years. SNFPA 3152, 3214-3215. In addition, with regard to the Plumas National Forest where all three site-specific projects at issue herein are located, survey data was collected in 2004 which contained information concerning 40 owl sites within the study area. This data was "thoroughly reviewed with rigorous standards for protocol compliance and data quality." Basin 4577.
A Meta analysis was also prepared in April 2003 based on an additional ten years of study and review following the 1992 CASPO report discussed above. This demographic data (assessed by sixteen scientists using information gathered by five different owl studies) showed that the owl is, within a 95 percent confidence level, a stable population, and not declining as previously believed. Basin 3720, SNFPA 3213. Significantly, post-1992 research indicated that owls utilize a wider variety of foraging habitats than previously thought. SNFPA 3099.
A Meta analysis is an analytic tool to evaluate population status and trend over time. SNFPA 3213. Its power lies in the "ability to combine information from several studies to achieve greater sample size" and perhaps investigate sources of variation and potential correlations otherwise unavailable from a single study.
Perhaps even more importantly, in May of 2006 the United States Fish and Wildlife Service ("USFWS") considered a more recent 2006 Meta analysis and concluded, based on that analysis as well as all other relevant evidence, that owl populations in the Sierra Nevada are stable or increasing and that adult survival rates show an increasing trend. See 71 Fed. Reg. 29886, 29894 (May 24, 2006). The USFWS study opined that the vegetation management treatments envisioned by the HFQLG Act (which include the three projects presently at issue) would not adversely affect the owl, and stated unequivocally 1) that catastrophic wildfire appears to be the greatest potential threat to the owl, with fuel-reduction treatments being necessary to reduce that threat; and 2) that the contemplated treatments will not threaten the continued existence of the owl. Id. at 29897.
Significantly, too, the spotted owl population within the Plumas National Forest appears particularly strong, with the 2005 estimated numbers, at 218 pairs, 49 unconfirmed pairs and 29 single birds, well above the numbers projected by the Plumas National Forest Long Range Management Plan during the time period in question. See QLG Opp'n, 9:12-10:10.
Any impact on either the Pacific Fisher or the American Marten by the site specific plans is even more attenuated than potential effects regarding the owl. While Plaintiffs appear to argue that logging would increase fragmentation and create barriers to the movement of these forest carnivores, the simple fact is that neither species appears to be present within the project areas. No marten sightings have ever been reported within any of the three project locations; in fact, marten generally prefer habitat at higher elevations than the lands at issue here. In addition, no scientifically validated sightings of fisher within 200 miles of any of the projects has occurred within the last 40 years. Numerous surveys have failed to find any fisher on Forest Service lands in the area between Mount Shasta and Yosemite National Park. SNFPA 3011, 3313.
Approximately half of the Plumas National Forest has been surveyed according to agency protocols for forest carnivores, and protocol level surveys of the Basin Project area in the winter of 2003-04 found no sign of their presence. Basin 3554, 3694.
Despite this apparent lack of presence within the project area, a 17,000-acre carnivore habitat network has been established within the Plumas National Forest. Basin 3575, 3699.
The projects sought to be enjoined have only a minimal impact on that network; the Basin project, for instance, affects only 400 acres of the carnivore movement habitat corridor. In addition, the plans call for surveys to be conducted prior to logging operations, and if a den is discovered, the agency would develop a plan of action and determine whether to delay or interrupt operations. Id.
In sum, then, available data shows that habitat effects upon owls are minimal, with the vast majority of habitat being unaffected by the projects in question and with the owl comprising a stable population in any event. Protections affecting potential forest carnivore habitat are also largely unaffected by the projects even though virtually no individual carnivore specimens have been detected. Plaintiffs' key concern is that the 2004 Framework, and the specific projects currently at issue in this request for preliminary injunction, may decrease canopy cover within DFPZs to 40 percent as opposed to the 50 percent levels envisioned by its 2001 predecessor, which disallowed any logging of trees in excess of twenty inches in diameter, whereas the 2004 Framework allows trees up to thirty inches to be taken in some instances. See SNFPA 336-337. The Forest Service argues that the logging of larger diameter trees is necessary both to reduce fire risk (either directly through construction of DFPZs or indirectly through the promotion of more fire-resilient forest species requiring more sunlight and less shady undergrowth) and to permit the economic viability of vegetation management efforts.
It argues that relatively few larger trees will be logged in any event, with the vast majority of timber coming from smaller diameter trees. Only six percent of group selection in the Basin Project, for instance, would involve trees more than 24 inches in diameter. Second Decl. Of Nancy Francine, ¶ 17a.
Plaintiffs, on the other hand, argue that economic considerations cannot supplant the public interest in protecting the environment. They contend that the loss of potential habitat alone constitutes an irreparable injury justifying the cessation of any project activities by way of a preliminary injunction.
The fire danger in the Plumas National Forest remains clear despite the respective validity of these two opposing viewpoints. This summer's Antelope Fire burned 23,000 acres, impacted six owl PACs and completely burned three. Observation following the Antelope Fire showed that fire activity slowed and moderated when reaching a DFPZ. See Second Francine Decl., ¶ 14. DFPZs have hence been proven effective in reducing fire intensity, controlling fire spread, and protecting ecological resources like habitat. In addition, the Moonlight Fire, which has only recently been contained, has burned 65,000 acres and impacted at least 21 owl PACs and HRCAs on over 21,000 acres. The blaze has threatened 2500 homes and came within six miles of town of Taylorsville and within eight miles of the nearest treatment unit contemplated by the Empire Project.
Fire protection through vegetation management in these areas is therefore important both from the standpoint of wildlife and humans. For wildlife, unchecked wildfire may completely destroy habitat. For humans, both lives and property are at stake.
Both the Slapjack and Empire Projects squarely address that risk. Ninety-eight percent of the Slapjack Projects is situated within Wildfire Urban Interface zones ("WUIs") that are home to between 5,000 and 7,000 people. Second Francine Decl. at ¶ 12a. Empire similarly treats some 2,500 acres within WUIs immediately adjacent to five communities, including the town of Quincy. Empire SEIS at 3-67; Second Francine Decl., ¶ 12b-c.
STANDARD
A preliminary injunction is an extraordinary remedy, the entitlement to which the moving party must prove by clear and convincing evidence. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974).
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 the possibility of 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. Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995). 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); Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1158 (9th Cir. 2006). 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 F.2d 394, 397 (9th Cir. 1992).
No presumption for issuance of a preliminary injunction solely on grounds that environmental statutes have been violated. Amoco, 480 U.S. 531, 545. A NEPA violation is subject to traditional standards in equity for injunctive relief and does not require an automatic blanket injunction against all development. Northern Cheyenne Tribe v. Norton, 2007 WL 1595476 at *3 (9th Cir. Sept. 11, 2007).
ANALYSIS
The underlying lawsuit challenges the 2004 Framework through the prism of site-specific projects, initially Basin and, through recent amendments to the complaint in this matter, now also Empire and Slapjack.
The cross-motions for summary judgment filed by the parties with respect to the overall legality of the 2004 Framework remain under submission. During the course of that briefing, that parties agreed that issues pertaining to remedy should be reserved until after an underlying decision on the merits, through summary judgment, had been made. The relief now sought through Plaintiffs' preliminary injunction requests as to the three site-specific projects unquestionably relates to remedy as opposed to liability. Therefore, in analyzing the propriety of injunctive relief at this point, the Court will focus on the site-specific issues rather than risk being drawn into any wholesale decision addressing the overall merits of the underlying Framework.
A. Probability of Success on the Merits
Under any formulation assessing the merits of preliminary injunctive relief a consideration of the requesting party's probability of success must be addressed. Plaintiffs claim here that there is a likelihood of success on the merits because the 2004 Framework, on which the projects are modeled, violates the NFMA by failing to ensure species survival and failing to implement required monitoring data for management indicator species ("MIS"). Plaintiffs further assert NEPA violations on grounds that the Forest Service, in adopting the 2004 Framework, failed to take a hard look at environmental impacts, failed to adequately respond to opposing scientific viewpoints, and failed to adequately assess other alternatives as required by NEPA.
Turning first to the alleged NFMA violations, Plaintiffs argue that 36 C.F.R § 219.19(a)(6), a regulation enacted in 1982, requires that population trends of management indicator species will be monitored and relationships to habitat changes determined." Section 219.26 goes on to require that "inventories shall include quantitative data. . . ." Plaintiffs contend that this regulation requires that population monitoring be performed.
The 1982 regulations upon which Plaintiffs rely were deleted from the Code of Federal Regulations in November of 2000. Under the discretion conferred by § 219.35 of the interim rules, the Forest Service elected to prepare the 2004 Framework under the provisions of the 1982 regulations. See Earth Island Inst. v. U.S. Forest Serv., supra, 442 F.3d at 1173. Once those interim rules were superseded by new planning rules in January of 2005, however, the 1982 rules ceased to have legal force and effect and cannot be presently enforced by the Court in the context of these site-specific projects. See 70 Fed. Reg. 1023, 1052 (Jan. 5, 2005). Under Landgraf v. USI Film Products, 511 U.S. 244 (1994), courts are directed to apply the rules in effect at the time of judicial review, because application of the current 2005 rules to the site-specific plans would not impair vested rights, increase the liability for past conduct, or impose new duties on the Federal Defendants. See Southwest Center for Biological Diversity v. USDA, 314 F.3d 1060, 1062 (9th Cir. 2002). Here, Plaintiffs had no vested rights under the old regulations, since even an expectation of success in litigation does not constitute the sort of settled expectation subject to exception under Landgraf. Id. at 1062 n. 1.
The 2005 rules state that, for forest plans "developed, amended, or revised" under the 1982 rules:
The Responsible Official may comply with any obligations relating to management indicator species by considering data and analysis relating to habitat unless the plan specifically requires population monitoring or population surveys for the species. Site specific monitoring or surveying of a proposed project area are not required.36 C.F.R. 219.14(f) (2005). "Monitoring populations at the site of individual projects is not part of this requirement. Therefore, the transition language in § 219.14 clarifies that MIS monitoring . . . is not required within individual project or activity areas." 70 Fed. Reg. 1052 (Jan. 5, 2005). Thus, Section 219.14, and not deleted Section 219.19, applies to these site specific projects and it: 1) does not require wildlife monitoring before commencement of a site-specific project; and 2) does allow reliance on existing "habitat" data instead of attempting to count secretive wildlife.
In this case, habitat data with respect to all three species targeted by this preliminary injunction supports a finding that the provisions of the NFMA have not violated with respect to species viability. All three projects leave the vast majority of (upwards of 90 percent) of owl habitat undisturbed. Moreover, the most recent Meta analysis of spotted owl populations in the Sierra Nevada indicate, as discussed above, that the species is stable. In addition, with regard to the fisher and the marten, as stated above both species are virtually unknown within the Plumas National Forest where these projects are slated to occur. Nonetheless, large amounts of suitable habitat for these forest carnivores will be maintained, including a habitat connectivity corridor which will be only minimally affected by the projects. Under those circumstances, none of the three site-specific projects is likely to have any impact on the fisher and marten whatsoever, let alone an impact triggering the protections of the NFMA.
The Court is similarly unpersuaded that Plaintiffs can demonstrate any likelihood of success with regard to their NEPA claims. The NEPA challenges primarily revolve around the claim that adverse environmental impacts were not adequately disclosed so that the requisite "hard look" was taken, either in the 2004 Framework or in the individual site-specific projects. First, the Forest Service took a "hard look" at the available data concerning the impact of its proposal on the owl, recognized opposing opinions, and provided a reasoned discussion of its findings. See Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) (the agency having engaged in numerous studies and analyses of the owl satisfied NEPA's requirement to take a "hard look" at available data). The Forest Service assessed the most recent owl meta analysis (SNFPA 2086-89), assessed published research (SNFPA 2638-57), and evaluated the Scientific Consistency Review Team's findings (SNFPA 2578-2589). In addition, although the 2004 Framework concluded that its fuels treatment prescriptions would benefit both the fisher and the marten in the long run, it also assessed short-term impacts to both species (SNFPA 3314 (marten); SNFPA 3323-3330 (fisher)).
Moreover, at the project level, which is the most cogent consideration in evaluating Plaintiffs' request for preliminary injunction, detailed environmental impact statements ("EISs") were prepared for both the Slapjack and Empire projects that also considered available habitat for all three species and the impact any recommended logging would have on that habitat. See Slapjack EIS at 3-1 to 3-304. Moreover an environment assessment ("EA") was prepared by the Basin project. Basin 3657-3749.
Plaintiffs would also appear unsuccessful in arguing that the cumulative effects of the three projects at issue have not been properly considered. The cumulative effect of all HFQLG vegetation management projects, including the projects at issue here, were assessed in the 2004 Framework, to which the individual projects may tier. See Basin 3720. Moreover, the fact that so little habitat is slated to be affected in any event would appear to make any cumulative effects improbable on their face.
Plaintiffs' NEPA claim that the Forest Service failed to consider a reasonable range of alternatives is also not compelling. While the 2004 SEIS specifically considered only the new treatment option that was ultimately adopted in conjunction with the plan adopted by its 2001 predecessor, the 2004 SEIS by definition was, by definition, supplemental to the 2001 Framework, which considered and analyzed seven different treatment variants (Options F2-F8) in depth. With respect to the site-specific projects themselves, the Slapjack EIS considered six action alternatives and one no-action alternative. Slapjack EIS at 2-1 to 2-18.
In addition, the final SEIS issued for the Empire project analyzed in detail the no action alternative, a proposed action and four other alternatives. See Empire SEIS at 2-10 to 2-14.
Finally, with respect to the Basin EA, Plaintiffs make the argument that Plaintiffs contend that because the draft EA for the Basin Project was not specifically disseminated for public consideration and comment, the approval of the EA violates the public disclosure mandate of NEPA. EAs, however, are by definition simpler documents not subject to the same rigorous scrutiny as an EIS. EAs are designed to reduce government costs, paperwork and delay through a "concise" public document. 40 C.F.R. § 1500.4(q), 1500.5(1), 1508.9. While the EA itself was not circulated, it appears undisputed that a summary plan description was provided to the public for comment. Public meetings concerning the Basin Plan were also conducted. This satisfies NEPA. See, e.g., Sierra Nevada Forest Prot. Campaign v. Weingardt, 376 F. Supp. 984, 991 (E.D. Cal. 2005) (draft EA, in contrast to EIS, need not be expressly circulated to the public for comment as long as information provided is otherwise disseminated).
B. Irreparable Harm
As indicated above, the projects at issue impact relatively little owl habitat, and virtually no fishers or martens have been observed within any of the targeted areas.
Nonetheless the projects preserve core owl habitat, as well as habitat connectivity for the forest carnivores should they return to the Northern Sierra. With respect to the owl, which is the only species realistically present in the project areas at issue in this Motion, there is no solid evidence of population impact within the Plumas National Forest, where the owl appears to be thriving. Even if individual birds could be affected by selective logging, that does not amount to irreparable harm since irreparable harm in this context depends on a demonstrable impact to the species as a whole. See, e.g., Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 34 (1st Cir. 2001).
On the evidence of the evidence before it, the Court believes that a greater danger of irreparable harm exists in not vigorously addressing the overforested conditions that are present within the Plumas National Forest. This danger is not speculative but very real, as evidenced by the large wildfires that ravaged the Plumas this very summer. As discussed above, the 2007 Antelope and Moonlight fire together burned some 88,000 acres and either impacted or destroyed at least 27 owl PACS and HRCAs. In sum, according to Nancy Francine, the Plumas National Forest Ecosystem Staff Officer, during 2007 to date there have been almost 628 fires impacing some 123,000 acres of Forest Service land in Northern California. Second Francine Decl. at ¶ 8. The long-term benefit of preventing stand replacing fires which completely destroy habitat is preferable over any short-term benefits derived from retaining dense forest structure preferred by old growth species. Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1251 (9th Cir. 2005).
Courts can and should take account of the short and long terms effects of both action and inaction. Wildwest Inst. v. Bull, 472 F.3d 587, 592 (9th Cir. 2006). As already indicated, the 2006 USFWS study concluded that catastrophic wildfire is a far greater risk to spotted owl viability than any short-term effects of fuel management activities on owl habitat, which is minimal in comparison to overall habitat area remaining available. See 36 Fed. Reg. 29897 (May 24, 2006). Similarly, the greatest concern for forest carnivores is the danger of further habitat fragmentation due to large, stand-replacing fires like those that are likely to result if overforested conditions are ignored. See, e.g., Empire SEIS at 3-162; Slapjack EIS at 3-284. In Bull, the Ninth Circuit held that the district court did not abuse its discretion in denying a preliminary injunction on grounds that fuel reduction project would reduce the risk of severe wildfire in the next 10-15 years. Wildwest Inst. v. Bull, supra, 472 F.3d at 592.
C. Balancing of Hardships
As indicated above, the imminent danger of catastrophic wildfire which has completely destroyed large swaths of old forest habitat this very year must be balanced against the immediate risk or eliminating some suitable habitat in the short term.
With respect to the three projects at issue, this balancing does not tip in Plaintiffs' favor, let alone strongly favor Plaintiffs as required under the "alternative" test for granting a preliminary injunction where serious questions on the merits have been raised. This conclusion is even more compelling when the human component of not addressing overloaded forest conditions is considered. As indicated above, fires in the area at issue during the Summer of 2007 threatened numerous homes and entire communities. The Empire Project will treat 2,500 acres in the Wildland Urban Interface "immediately adjacent to five "communities at risk": Quincy, Massack, Greenhorn, Keddie and Butterfly Valley. Second Francine Decl. at ¶ 12b and 12c. Similarly, some 98 percent of the Slapjack project is within the Wildland Urban Interface surrounding the communities of Brownsville, Challenge, Clipper Mills, Dobbins, Feather Fall, Forbestown, and Strawberry Valley, which collectively are home to between 5,000 and 7,0000 people. Id. at 12a. The congressionally mandated HFQLG Act directs that fire suppression measures, including DFPZs, group selection, and individual logging, be implemented to mitigate these risks. Observation following recent fires appear to indicate that DFPZs are useful in reducing fire speed and intensity. Id. at ¶ 14. While Plaintiffs argue that any fuel reduction projects must be modified to reduce the logging of larger diameter trees, the number of such large trees appears to be minimal. As noted above, only 6 percent of group selection for the Basin Project involves trees more than 24 inches in diameter. Id. at ¶ 17a. Additionally, Table 3-56 of the Slapjack EIS shows that very few trees of that size will be taken, with the majority of logging involving smaller trees, particularly poles between six and eleven inches in diameter at breast height. Slapjack EIS at 3-200. Important too is the fact that without the inclusion of larger diameter trees the proposed logging efforts would not be commercially viable and the important fuel reduction purposes they serve could not be undertaken by the Forest Service. See, e.g., Empire ROD at 2 ("without the sale of commercial wood products, it is not currently possible to accomplish enough fuels reduction to achieve our objectives").
Significant too is the fact that the HFQLG Act further directs that the economic stability of local communities be considered. The NFMA directs the Forest Service to develop a land and resource management plan for each unit of the system to provide for multiple uses and sustained yield of various forest resources, including timber and wildlife. See 16 U.S.C. § 1604(a)(e); Forest Guardians v. Dombeck, 131 F.3d 1309, 1312 (9th Cir. 1997). Not only are there economic benefits to logging in this area, but halting further logging may also weaken the local infrastructure necessary for vegetation management activities in the future. See Second Francine Decl. at ¶ 6-7.
While the Court realizes that avoiding irreparable environmental injury outweighs mere economic concerns (Lands Council v. McNair, 494 F.3d 771, 780 (9th Cir. 2007), here economic considerations are not the decisive factor but instead, when considered in conjunction with the irreparable harm associated with taking no action, simply tip the scales further in favor of not granting the requested injunctive relief. In this case the risk of catastrophic, stand-replacing fire is both proven and palpable, and goes beyond the circumstances confronted by the McNair court, which examined a project designed to ameliorate general tree stand health and vigor decline by attempting to return the forest towards "historic conditions".Id. at 774-75. The overwhelming fire risk involved here goes beyond any "speculative harm" rejected as inadequate by McNair.
D. Public Interest
In cases where the public interest is affected, that element should also be addressed in determining whether to grant injunctive relief, even though the inquiry is often subsumed into the balance of relative hardships. See, e.g., Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
Here, the public interest in accomplishing the fuel management envisioned by the Slapjack, Basin and Empire projects, which are designed to both immediately reduce fire risk and promote the long-term development of more fire-resilient forests, together with the public interest in providing protection and economic stability to local communities, outweigh any short-term impact to the owl, fisher and marten as discussed above.
CONCLUSION
For all the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction is hereby DENIED.
IT IS SO ORDERED.