Center for Biological Diversity, et al. v. Skalski, et al.

Filing 48

ORDER signed by Judge Garland E. Burrell, Jr. on 9/16/2014 DENYING 19 Plaintiffs' motion for a temporary restraining order. (Reader, L)

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UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

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CENTER FOR BIOLOGICAL
DIVERSITY, EARTH ISLAND
INSTITUTE and CALIFORNIA
CHAPARRAL INSTITUTE,

v.

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13
14
15

1:14-cv-01382-GEB-GSA

ORDER DENYING PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING ORDER*

Plaintiffs,

10

12

No.

SUSAN SKALSKI, in her
official capacity as Forest
Supervisor for the Stanislaus
National forest, and UNITED
STATES FOREST SERVICE, an
agency of the Department of
Agriculture
Defendants.

16
17

Plaintiffs

18

seek

Service

(“Forest

21

Stanislaus

22

“enjoin logging and logging associated activities”2 related to

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25
26
27
28

National

Forest.1

Project

Forest

enjoining

Service”)’s

Recovery

States

order

20

Fire

United

restraining

implementation

23

the

temporary

19

Rim

of

a

(“the

Plaintiffs

*

Project”)

specifically

in

the

seek

to

Pursuant to E.D. Cal. R. 230(g), this matter is suitable for decision
without oral argument.
1
Plaintiffs argue logging for the Nevergreen Timber Sale is set to begin “as
early as Thursday, September 18 2014” and the Double Fork timber sale, “which
may be awarded on Monday, September 15, 2014 and operations within occupied
owl territories could commence on Thursday, September 18, 2014.” (Mot. 2:811.)
2
Plaintiffs define “logging and logging related activities” as “tractor,
skyline and or helicopter logging, as well as, roadside logging on roads not
maintained for public use (maintenance Level 1 and 2 roads), and any other
activities associated with the planned logging, within occupied California

1

1

the Forest Service’s upcoming Nevergreen Timber Sale and Double

2

Fork Timber Sale “within 1.5 km of occupied California spotted

3

owl territories. . . . ” (Pls. Mot. for Prelim. Inj. (“Mot.”)

4

6:14-16, ECF No. 22.)

5

Plaintiffs argue a preliminary injunction is required

6

since the Forest Service “violated NEPA’s hard look requirement .

7

. . by: a) misrepresenting and sidestepping crucial scientific

8

evidence about serious adverse impacts [of the logging] to [the]

9

California spotted owl. . . [and] b) concluding that the Rim fire

10

logging project would not threaten the population viability of .

11

. . the California spotted owl, without first determining whether

12

the logging plan would push the owl’s population below a critical

13

threshold.” (Mot. 9:23-10:2.) Plaintiffs’ also argue the Forest

14

Service violated NEPA when they “failed to meaningfully address

15

[2014 California spotted owl survey data] in relationship to the

16

Project’s impact[]. . . . ” (Mot. 19:12-14.)

17
18

I.

BACKGROUND

The Rim Fire and Rim Fire Recovery Project:

19

The motion concerns the following allegations.3 “The

20

Rim Fire [was] the third largest wildfire in California history

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22
23
24
25
26
27
28

spotted owl territories.” (Mot. 2:2-7.)
3
Plaintiffs move “to supplement the administrative record in this case
with the declarations of Monica Bond, Derek Lee, and Dominick DellaSalla.”
(Pls.’ Mot. to Supplement the AR 2:7-8, ECF No. 32.) However, “[e]ven
considering the declarations, the [TRO] is denied at this time. Therefore, the
Court [need not decide the motion to supplement the administrative record when
deciding whether to issue a TRO.]” Willis v. Buffalo Pumps Inc., No. 12cv744
BTM (DHB), 2014 WL 1028437, at *3 n.1 (S.D. Cal. Mar. 17, 2014) (declining to
reach evidentiary objections raised in connection with motion for summary
judgment); accord Hernandez v. City of Oakley, No. C-11-02415 JCS , 2012 WL
5411781, at *3 n.4 (N.D. Cal. Nov. 6, 2012) (“The Court need not reach this
[evidentiary] objection because, even assuming these [deposition] excerpts are
admissible, it finds in favor of Defendants as to all of the remaining claims
in this action.”).

2

1

and the largest wildfire in the recorded history of the Sierra

2

Nevada.” AR B00111. In the summer of 2013, it burned more than

3

150,000

4

Stanislaus National Forest. AR B0013. The Rim Fire “resulted in

5

areas of high, moderate and low vegetation burn severity.” AR

6

B00112-14. In response to the fire, the Forest Service proposed

7

the Rim Fire Recovery Project. The Forest Service designed the

8

Project to “help[] restore the land impacted by the Rim Fire. . .

9

while

acres

of

National

simultaneously

Forest

providing

for

including

public

parts

safety,

of

the

ecological

10

integrity, scientific research, and socio-economic benefits.” AR

11

0009.

12

trees[and] removal of hazard trees along roads open to the public

13

and roads used to access and implement proposed treatments.” AR

14

B00121.

The

“proposed

action

.

.

.

includes:

salvage

of

dead

15

In connection with the Project, the Forest Service,

16

published a Notice of Intent on December 6, 2013. AR B00121.

17

“Interested

18

comment period including 174 unique individual letters and 4,026

19

form letters.” AR B00128. The Forest Service’s “public outreach

20

began while the fire was still smoldering and continued up until

21

the point of the” final decision. AR A00035.

22

parties

The

submitted

Forest

Service

4,200

total

organized

letters

“public

during

open

the

houses,”

23

“hosted Rim Fire Technical Workshops to share the development of

24

alternatives status,”

25

area” for government officials and interested parties, and held a

26

“30-day comment period.” AR B00128. The Forest Service “asked for

27

public

28

Statement]”

comment
and

on

“organized 24 tours into the Rim Fire

the

solicited

DEIS

[Draft

public
3

Environmental

comments

by

Impact

“produc[ing]

1

materials

2

60,000 newspaper inserts through the region explaining many of

3

the proposed activities.” AR B00128-129. “Responses to public

4

comments were finalized during the development of the FEIS [Final

5

Environmental Impact Statement (“EIS”)]” and Record of Decision

6

(“ROD”). AR B00129. The FEIS and ROD were published in August

7

2014. Of the four alternative courses of action considered for

8

the Project, the Forest Service ultimately “selected Modified

9

Alternative 4.” AR A00016.

for

social

media

outlets”

and

“distribut[ing]

some

10

Modified Alternative 4 “approves salvage logging and

11

fuel reduction on 15,383 acres including: 14,495 acres of ground

12

based;

13

treatments.” AR A00016. The Project covers around ten percent of

14

the National Forest area impacted by the Rim Fire. AR A00016;

15

B0013. Its “boundary is located within the Rim Fire perimeter

16

within portions of the Mi-Wok and Groveland Ranger Districts on

17

the Stanislaus National Forest.” AR B00114. The “salvage harvest

18

of trees initially killed by the Rim Fire” will be “accomplished

19

through

20

culminating in winter 2015.” AR A00018.

21

California Spotted Owl:

651

acres

timbers

22

“Forest

of

helicopter;

sales”

fire

to

is

occur

one

of

and

237

“over

the

the

most

acres

next

of

2

skyline

seasons,

important

issues

23

affecting the [California] Spotted Owl’s habitat.” AR K01464.

24

“California spotted owls will occupy landscapes that experience

25

low- to moderate-severity wildfire, as well as areas with mixed-

26

severity wildfire that includes some proportion of high-severity

27

fire.” AR K12141. They can “occupy territories and continue to

28

reproduce

in

burned

habitats,

including
4

those

with

severely

1

burned patches.” AR K01464; see also B00449. However post-fire

2

logging

3

habitat, may result in “occupancy declines.” AR K13093.

of

burned

trees

within

the

California

spotted

owl’s

4

These raptors nest, roost and forage in parts of the

5

Stanislaus National Forest impacted by the Rim Fire. AR B00003.

6

The Forest Service considers California spotted owls a “sensitive

7

species.” AR B00432. They “have several characteristics that are

8

broadly

9

K12133.“[A]pproximately 6,500 acres of salvage, and 8,500 acres

10

of roadside logging, [as part of the Project] are slated to occur

11

within 1.5 km of [California spotted] owl sites.” AR B00003.

associated

with

increased

12

II.

13

species

vulnerability.”

AR

LEGAL STANDARD

A. Preliminary Injunction

14

A preliminary injunction is “an extraordinary remedy

15

that

may

only

16

plaintiff[s are] entitled to such relief.” Winter v. Natural Res.

17

Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a

18

preliminary injunction must establish [1] that he is likely to

19

succeed

20

irreparable harm in the absence of preliminary relief, [3] that

21

the

22

injunction is in the public interest.” Id. at 20.

on

balance

23

the

of

be

awarded

merits,

equities

upon

[2]

tips

a

that

in

clear

he

his

is

favor,

showing

likely

and

that

to

[4]

the

suffer

that

an

Further, the Ninth Circuit’s “‘serious questions’ test”

24

may

be

“applied

as

part

of

the

25

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

26

(9th Cir. 2011). Under this test test, “serious questions going

27

to the merits and a hardship balance that tips sharply toward the

28

plaintiff can support issuance of an injunction, assuming the
5

four-element

Winter

test.”

1
2

other two elements of the Winter test are also met. Id. at 1132.
B. Review of Federal Agency Decisions Under the APA

3

Plaintiffs

argue

the

Forest

Service

violated

the

4

National Environmental Policy Act (“NEPA”) when issuing the FEIS

5

for the Project. (Compl. ¶¶ 37-43, ECF No. 1.) “NEPA aims to

6

establish procedural mechanisms that compel agencies. . . to take

7

seriously the potential environmental consequences of a proposed

8

action.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d

9

846,

864

(9th

Cir.

2004).

“NEPA

imposes

only

procedural

10

requirements, it does not dictate a substantive result.” Salmon

11

River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355-56 (9th

12

Cir. 1994).

13

“Judicial review of agency decisions under NEPA. . . is

14

provided by the APA, which maintains that an agency action may be

15

overturned only when it is ‘arbitrary, capricious, an abuse of

16

discretion, or otherwise not in accordance with law.’” Pit River

17

Tribe v. U.S. Forest Service, 469 F.3d 768, 778 (9th Cir. 2006)

18

(quoting 5 U.S.C. § 706 (2)(A)). “Review under this standard is

19

narrow, and the reviewing court may not substitute its judgment

20

for

21

Service, 442 F.3d 1147, 1156 (9th Cir. 2006) (citation omitted)

22

abrogated on other grounds by Winter, 555 U.S. 7.

that

23

of

the

agency.”

Earth

Island

Inst.

v.

U.S.

Forest

Agencies must “[t]ak[e] a ‘hard look” when creating an

24

EIS,

which

“includes

25

indirect impacts. Furthermore, a ‘hard look’ should involve a

26

discussion of adverse impacts that does not improperly minimize

27

negative

28

Mountains Biodiversity Project v. U.S. Forest Service, 689 F.3d

side

‘considering

effects.’”

League

6

all

of

foreseeable

Wilderness

direct

and

Defenders-Blue

1

1060, 1075 (9th Cir. 2012) (citing N. Alaska Envtl. Ctr. v.

2

Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006)). An agency has not

3

taken

4

consideration of the relevant factors, or [where] its actions

5

were arbitrary, capricious, an abuse of discretion, or otherwise

6

not

7

Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (citing

8

5 U.S.C. § 706(2)(A)).

a

in

“hard

look”

accordance

where

with

the

its

decision

law.”

Blue

was

not

“based

Mountains

on

a

Biodiversity

9

“Review under the arbitrary and capricious standard is

10

narrow and [we do] not substitute [our] judgment for that of the

11

agency.

12

capricious only if the agency relief on factors Congress did not

13

intend it to consider, entirely failed to consider an important

14

aspect

15

counter to the evidence before the agency or is so implausible

16

that it could not be ascribed to a difference in view or the

17

product of agency expertise.” League of Wilderness Defenders, 615

18

F.3d at 1130 (citing Lands Council v. McNair, 537 F.3d 981, 987

19

(9th Cir. 2008)(en banc). Deference to agency decision-making “is

20

highest

21

judgments involving the evaluation of complex scientific data

22

within the agency’s technical expertise.” League of Wilderness

23

Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d

24

1122, 1130 (9th Cir. 2010). “Deference to an agency’s technical

25

expertise and experience is particularly warranted with respect

26

to questions involving. . . scientific matters.”

27

v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.

28

1989).

Rather,

of

the

when

we

will

problem,

reviewing

reverse

or

an

a

decision

offered

agency’s

7

an

as

arbitrary

explanation

technical

that

analyses

and

runs

and

United States

1

III. Discussion

2

A. Likelihood of Success on the Merits

3

Plaintiffs’ Complaint is comprised of two claims that

4

Defendants violated NEPA: (1) “Failure to Prepare Supplemental

5

Environmental Analysis” and (2) “Failure to Take a ‘Hard Look,’

6

to Adequately Explain Impacts, To Provide Necessary Information,

7

and

8

Plaintiffs argue either of these claims independently justify an

9

injunction.

10

To

Ensure

1. Claim

11

Scientific

1:

Integrity.”

Failure

to

(Compl.

Prepare

¶¶

37-43.)

Supplemental

Environmental Analysis

12

Plaintiffs argue a Supplemental EIS (“SEIS”) is

13

required before the Project proceeds since “the Forest Service

14

has

15

relationship to the Project’s impacts where the new information”

16

“unequivocally

17

Project’s impact on owls.”

failed

to

meaningfully

raises

address

substantial

[]

new

questions

information

regarding

the

in

Rim

(Mot. 19:12-13; 16:13-15.)

18

Plaintiffs argue the results of the Forest Service’s

19

2014 owl survey “demonstrates widespread occupation of the Rim

20

fire area by California spotted owls, which was not anticipated

21

by the Forest Service,”

22

the Rim fire area contains adequate amounts of suitable habitat

23

for continued California spotted owl occupancy.” (Mot. 14:21-24;

24

16:5-8.) Plaintiffs argue the FEIS does “not mention, let alone

25

analyze, the 2014 Rim fire survey data and thus did not analyze

26

what the impacts of the Project’s logging would mean as to the 39

27

occupied owl territories. . . .” (Mot. 18:24-19:2; see also 18:5-

28

11.)

and indicates “the burned forest within

8

1

The U.S. Forest Service must “prepare supplements

2

to either draft or final environmental impact statements if there

3

are

4

environmental concerns and bearing on the proposed action or its

5

impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). “When determining whether

6

to issue a supplemental EIS, an agency must ‘apply a rule of

7

reason,’ not supplementing ‘every time new information comes to

8

light’ but continuing to maintain a ‘hard look’ at the impact of

9

agency action when the ‘new information is sufficient to show

10

that the remaining action will affect the quality of the human

11

environment in a significant manner or to a significant extent

12

not

13

Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 760

14

(9th Cir. 2014) (citing Marsh v. Ore. Natural Res. Council, 490

15

U.S. 360, 373-74 (1989)).

16

Agency

significant

already

new

circumstances

considered.’”

League

determinations

EIS

Wilderness

regarding

documents a “reasoned decision” regarding “whether an SEIS is

21

required,”

22

Wilderness v. Kimbell, 709 F.3d 836, 855 (9th Cir. 2013); see

23

also

24

determined in its supplemental report that the SA did not show a

25

‘seriously different picture of the likely environmental harms

26

stemming

27

[agency’s] finding that a supplemental REA was not required”);

28

cf. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 558 (9th

the

F.3d

proposed

at

1130

project,’

9

Old

(“because

we

must

arbitrary

a

20

Great

if

of

Transp., 545 F.3d 1147, 1154-55 (9th Cir. 2008). Where an agency

scrutiny.

aside

necessity

19

671

set

Defenders/Blue

capricious. N. Idaho Community Action Network v. U.S. Dep’t of

Tri-Valley,

be

to

18

withstands

to

the

relevant

supplemental

from

only

of

information

17

it

are

or

Broads

the

defer

and

for

[agency]

to

the

1

Cir. 2000) (finding the Forest Service failed to comply with its

2

NEPA obligations where there was “no evidence in the record that,

3

before this action, the Forest Service ever considered whether

4

the

5

preparation

6

supplemental analysis is a ‘classic example of a factual dispute

7

the

8

expertise.’” Tri-Valley, 671 F.3d at 1130 (citing Marsh, 490 U.S.

9

at 376).

[new

data]
of

were

an

resolution

sufficiently

SEIS.”).

of

significant

“Whether

which

new

implicates

to

require

information

requires

substantial

agency

10

Here, Plaintiffs are mistaken in their argument that

11

the FEIS does “not mention, let alone analyze, the 2014 Rim fire

12

survey

13

includes the following information: “PACs . . .

14

reestablished

15

3.15/California

16

redrawn to include the best available green habitat around the

17

detections,” (AR B00839) and “the recent spotted owl survey data

18

.

19

incorporated

20

therefore, the Forest Service considered this ‘new information.’”

21

AR A00038; see also AR B00713-714; A00027; A00038.

22

survey was completed, considered and incorporated into the EIS by

23

the Forest Service; this information was integrated into the FEIS

24

and there was no need for the agency to create a SEIS. See

25

Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1178

26

(9th Cir. 1990) (rejecting argument for SEIS where the “new”

27

information was “encompassed by the terms of the [original] EIS”

28

since the agency “specifically averted to the possibility that

.

data.”

.

is

(Mot.

based

18:24-19:2.)

on

Spotted

the
Owl:

information
in

the

2014

EIS,

The

survey

Affected

generated
and

10

Administrative

results

Record

were . . .
(EIS

Environment)

Chapter

[and]

by

the

Forest

shaped

the

final

were

Service,
decision;

The 2014

1

there

2

“discussed

3

adopted various measures recommended in the EIS to mitigate the

4

impact upon any owls in the area.”). The same is true of Bond’s

5

letter interpreting the survey data. AR A00038.

might

6

be

the

northern
impact

of

Additionally,
the

2014

cutting

owls
upon

in

the

[area]”

and

the

owl

habitat,

and

the Forest Service explained in the ROD

7

that

8

information

9

decision recognize that owls forage in burned forests, and the

10

EIS analyzes the effects of the various alternatives based on

11

this understanding; therefore the underlying point raised in the

12

August

13

Recovery Project may adversely affect spotted owls in the area,

14

was

15

decision.” JA A00038. Neither the 2014 owl survey results nor

16

Bond’s subsequent analysis produced data rising to the level of

17

significant

18

evaluation of the 2014 owl survey data is sufficient.

21,

already

owl

spotted

survey

warranting

2014

SEIS

comment

addressed

new

a

did

in

not
since

letter,

the

information.

produce
“both

that

EIS

The

significant

the

EIS

and

implementing

and

Forest

factored

Service’s

the

into

new
this

Rim

this

reasoned

19

2. Claim 2: Failure to Take a Hard Look, To Adequately

20

Explain Impacts, To Provide Necessary Information,

21

And To Ensure Scientific Integrity

22

Defendants

argue

the

Forrest

Service

“carefully

23

considered the science proffered by Plaintiffs and simply reached

24

different conclusion.” Federal Defs. Opp’n to Pls. Appl. For TRO,

25

17:1-3,

26

argument is insufficient to satisfy the Forest Service’s NEPA

27

obligations

28

information into [an] assessment of impacts must be reasonable

ECF

No.

since

44.)

Plaintiffs

“justifications

11

contend

for

not

the

Forest

Service’s

incorporating.

.

.

1

and demonstrate a rational connection between the facts found and

2

the decision made,” which the Forest Service did not do. (Mot.

3

10:5-16.)

4

“failed to . . . acknowledge the importance of the 1.5 km radius

5

surrounding a known owl site in meeting the foraging requirements

6

of resident owls[,]” failed to “disclose to the public the . . .

7

occupancy rate of resident spotted owls in the project area. . .

8

[and]

9

discovered”; and “misrepresented the body of science [submitted]

10

regarding owls and fire” by mischaracterizing or refusing to rely

11

on some of the scientific evidence. (Mot. 10:20—11:2.)

Plaintiffs

the

location

specifically

of

the

30

argue

owl

the

Forest

territories

Service

which

were

12

Plaintiffs separately argue the Forest Service failed

13

to comply with its NEPA obligations when it “concluded that the

14

Rim

15

Sensitive Species. . . but would not result in a trend toward

16

federal listing under the Endangered Species Act” without “first

17

determining whether the project would push the species below a

18

critical population viability threshold.” (Mot. 13:19-23.)

19

Fire

logging

i.

20

project

Failed

to

would

harm

Acknowledge

individual

or

members

Disclose

of

a

Important

Information

21

Plaintiffs also argue the Forest Service “failed to . .

22

. acknowledge the importance of the 1.5 km radius surrounding a

23

known owl site in meeting the foraging requirements of resident

24

owls” and failed to “disclose to the public the . . . occupancy

25

rate of resident spotted owls in the project area. . . [and] the

26

location of the 30 owl territories which were discovered” (Mot.

27

10:20-25.)

28

A court “may not ‘flyspeck’ and EIS . . . .” Half Moon
12

1

Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 508 (9th

2

Cir.

3

whether

4

informed decision-making and informed public participation.” Id.

1988).

5

Instead,

the

EIS’s

The

it

form,

Forest

“make[s]
content

Service

a

pragmatic

and

judgment

preparation

adequately

foster

addressed

in

about
both

the

6

Administrative Record comments and concerns regarding the 1.5 km

7

radius surrounding a known owl site.

8

B00836-837; E00973. Additionally, Plaintiffs fail to show how the

9

failure to “disclose to the public the . . . occupancy rate of

10

resident spotted owls in the project area” and “the location of

11

the 39 owl territories which were discovered in the Rim Fire area

12

and their special relationship to the planned logging,” undermine

13

the comprehensiveness of the report.

14

repeatedly acknowledges the potential for the Project to impact

15

the California spotted owl habitat. AR A00026-027; A00032-33; B

16

00001-002;

17

B00824; B00839; B00842-844; C00336-360.

18

B00109;

ii.

19

B00130;

AR B00001; B00827-830;

The report clearly and

B00165;

B00445-461;

B00741-742;

Misrepresented the Body of Science Regarding Owls
and Fire

20

Plaintiffs

argue

the

Forest

Service

also

21

“misrepresented the body of science regarding owls and fire” by

22

mischaracterizing

23

evidence

24

agency’s decision does not amount to a “battle of the experts”

25

since “aside from ignoring or improperly dismissing the entire

26

body of science related to owls use of burned areas . . . the

27

Forest

28

relationship of California spotted owls and burned forests . . .

or

submitted.

Service

has

refusing
(Mot.

no

to

rely

11:1-2.)

science

13

of

some

of

the

Plaintiffs

its

own

scientific

contend

related

to

the

the

1

.” (Mot. 12:24-28.) Plaintiffs challenge the Forest Service’s

2

comments critical of Clark (2007), Lee et al. (2012), Clark et

3

al. (2013), DellaSala et al. (2010) and Monica Bond’s August 21,

4

2014 letter to the Forest Service. (Mot. 11:2-12:13.)

5

The Ninth Circuit consistently holds “when specialists

6

express conflicting views, an agency must have discretion to rely

7

on the reasonable opinions of its own qualified experts even if,

8

as an original matter, a court might find contrary views more

9

persuasive. Price Rd. Neighborhood Ass’n, Inc. v. U.S. Dep’t of

10

Transp., 113 F.3d 1505, 1511 (9th Cir. 1997) (quoting Greenpeace

11

Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992)); Native

12

Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1244

13

(9th Cir. 2005); Wetlands Action Network v. U.S. Army Corps of

14

Eng’rs, 222 F.3d 1105, 1120-21 (9th Cir. 2000), abrogated on

15

other grounds by Wilderness Soc’y v. U.S. Forest Service, 630

16

F.3d 1173 (9th Cir. 2011).

17

Here, Plaintiffs misstate the Forest Service’s reliance

18

on

expert

data

19

dismiss

20

Administrative Record shows the agency’s careful consideration of

21

and

22

California spotted owl. AR B00445 (citing “Keane 2014, Conner et

23

al. 2013, Tempel and Gutiérrez 2013, and Tempel et al. 2014” as

24

well as the Forest Service’s “own recent estimates.”). The Forest

25

Service acknowledged the findings of Clark, Lee, Della Sala and

26

Bond

27

reasoned rationales for the weight they assigned to each report’s

28

conclusions. AR B00001; B00446; B00451 B00741-742; B00829-830;

the

reliance

since

entire

on

referenced

the
body

recent

by

Forest
of

Service

science

expert

Plaintiffs

14

on

does
the

publications

and

not

provided

ignore

subject.

related

to

articulate

or
The

the

and

1

B00836-838; A00038.

2

the

3

afforded in 5 U.S.C. § 706(2)(A).

agency’s

4

Plaintiffs’ arguments are insufficient show

action

Regarding
Service

fell

Clark

outside

(2007),

mischaracterizes:

the

bounds

which

of

discretion

Plaintiffs

Forest

6

different

7

(2007) report found “[o]wls residing inside the fire used all the

8

available

9

(Figure 6.2), although habitat use was dominated by low severity

habitat

in

including

habitat,”

the

Forest

moderate

severity

12

added); B00446. Given the high degree of deference afforded to an

13

agency concerning matters within its expertise, Plaintiffs have

14

not demonstrated either the likelihood of success on the merits

15

or raised “serious questions” going to the merits.
a

Proper

with

burns

Service’s characterization of the report. AR K04467 (emphasis

Make

consistent

Clark

11

to

is

high

the

a

burns

iii. Failed

which

and

Service,

have

10

16

NRF

than

Plaintiffs’

the

5

interpretation

although

argue

the

Determination

Forest

as

to

17

Whether the Rim Fire Logging Project Would Push

18

Spotted Owls Below a Critical Viability Threshold

19

Plaintiffs
since

also

argue

FEIS

Rim

Fire

logging

22

Species. . . but would not result in a trend toward federal

23

listing under the Endangered Species Act; yet the agency did so

24

without

25

species below a critical population viability threshold.” (Mot.

26

13:19-23.)

first

determining

individual

whether

the

members

project

the

NEPA

21

harm

that

from

requirements

would

concluded

departs

20

project

“Defendants

the

of

a

would

Sensitive

push

the

27

An agency EIS stating the proposed project “would have

28

a negative impact” on a sensitive species “but would not result
15

1

in a trend toward federal listing” without providing a meaningful

2

explanation, is insufficient evidence the agency took a “hard

3

look.” Earth Island Inst., 442 F.3d at 1172 abrogated on other

4

grounds by Winters, 555 U.S. at 7.

5

Plaintiffs cite as evidence of the Forest Service’s

6

duty to determine whether the Project “would push spotted owls

7

below

8

decision in Ecology Ctr. v. Austin, 430 F.3d 1057, 1067-68 (9th

9

Cir. 2005). (Mot. 13:12-18.)

a

critical

viability

threshold,”

the

Ninth

Circuit’s

10

In Austin, the parties agreed “prior to [the fires at

11

issue] there was a critical shortage of [the bird’s] habitat” and

12

the

13

risk.’” 430 F.3d at 1066. The agency determined the project “may

14

contribute to a trend towards federal listing or cause a loss of

15

viability to the population or species.” Id. at 1066. Yet, the

16

EIS

17

[the project] may negatively impact individual [birds], it will

18

not likely result in a trend towards federal listing.’’ Id. at

19

1067.

20

Ninth Circuit stated: the EIS “fail[ed] to adequately explain the

21

basis for the Forest Service’s conclusion,” and therefore the

22

court “cannot even be certain that the [agency] determined and

23

considered” all relevant factors. Id. at 1067.

agency

“considered

“state[d]

without

the

[birds]

meaningful

.

.

.

to

be

explanation-that

‘at

even

extreme

though

Since further explanation was not provided in Austin, the

24

Here, the situation is different since it has not been

25

shown that the Forest Service previously determined the logging

26

involved may contribute to a trend towards federal listing or

27

cause

28

population. Additionally, the Forest Service did more than state

a

loss

of

viability

to

16

the

California

spotted

owl

1

without meaningful explanation that even though the Project may

2

negatively impact individual birds, it will not likely result in

3

a

4

Service recognized the “[p]roposed activities may affect spotted

5

owls” since the land at issue is “still [a] viable and important

6

owl habitat” and “[b]ecause the fire burned through 46 California

7

spotted owl PACs, as well as thousands of acres of other critical

8

habitat, retaining old forest structures (large snags and downed

9

logs) is important at this time since future recruitment of these

10

old forest features is not expected to occur until decades to

11

centuries into the future.” AR B00104; B00120; B00130.

trend

towards

federal

listing.

AR

B00460-461.

The

Forest

12

The Forest Service demonstrated its appreciation of the

13

Project’s impact on the California spotted owl by identifying the

14

indicators it used to “provide a relative measure of the direct

15

and indirect effects [of the Project] to the spotted owl and to

16

determine how well project alternatives comply with the Forest

17

Plan Direction and species conservation strategies.” AR B00452.

18

Then, for each of the four proposed alternatives, the Forest

19

Service carefully considered each indicator. AR B00453-458. After

20

analyzing the data, the Forest Service gave a recommendation that

21

each of the four alternatives “may affect individuals but is not

22

likely to result in a trend toward Federal listing or loss of

23

viability for the California spotted owl.” AR B00460-461. Under

24

each determination the Forest Service directly and methodically

25

disclosed the rationale for its conclusion. AR B00460-461.

26

This review satisfies the Forest Service’s obligations

27

to provide a meaningful explanation in support of its decision

28

and Plaintiffs fail to meet their burden of showing to show the
17

1

agency omitted a meaningful explanation for its decision or that

2

the decision was “arbitrary, capricious, an abuse of discretion,

3

or otherwise not in accordance with law.”

4

B. Irreparable Harm / Balance of the Equities / Public Interest

5

Plaintiffs fail to either show a likelihood of success

6

or raise a serious question on the merits regarding any of their

7

claims. Therefore, no discussion of the remaining three Winter

8

factors is required. Ass’n des Eleveurs de Canards et d’Oies du

9

Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) (“When “a

10

plaintiff has failed to show the likelihood of success on the

11

merits,” the court “‘need not consider the remaining three Winter

12

elements.’”) (citing DISH Network Corp., v. F.C.C., 653 F.3d 771,

13

776-77 (9th Cir. 2011); Haskell v. Harris, 669 F.3d 1040, 1053

14

(9th Cir. 2012); Advertise.com, Inc. v. AOL Advertising, Inc.,

15

616 F.3d 974, 982 (9th Cir. 2010); Doe v. Reed, 586 F.3d 681 n.14

16

(9th Cir. 2009) aff’d on other grounds, 561 U.S. 186 (2010).

17

III. CONCLUSION

18

For the reasons stated above, Plaintiffs’ motion for a

19

temporary restraining order is DENIED.

20

Dated:

September 16, 2014

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