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

Filing 65

ORDER signed by Judge Garland E. Burrell, Jr. on 10/6/2014 DENYING 52 Plaintiffs' Motion for Permanent Injunction and Motion to Supplement the Administrative Record. (Reader, L)

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UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

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7
8
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CENTER FOR BIOLOGICAL
DIVERSITY, EARTH ISLAND
INSTITUTE, and CALIFORNIA
CHAPPARAL INSTITUTE,
Plaintiffs,

10
v.

11
12
13
14
15

No.

1:14-cv-1382-GEB-GSA

ORDER DENYING PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION AND
MOTION TO SUPPLEMENT THE
ADMINISTRATIVE RECORD

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

16
17

Plaintiffs

18

Center

Institute,

and

for

Biological

Earth

19

Island

20

(collectively

21

enjoining logging in a portion of what is called the Rim Fire

22

Recovery Project (“the Project”); specifically Plaintiffs seek to

23

prevent logging within 1.5 km of eight owl territory centers that

24

are part of the Nevergreen, Double Fork, and Triple A timber

25

sales in the Rim Fire area of the Stanislaus National Forest.

26

(Pls.‟ Mot. Prelim. Inj. “Mot.” 2:4-3:13, ECF No. 52.) Plaintiffs

27

also

28

supplement the administrative record (“AR”). (Mot. Supplement AR

move

“Plaintiffs”)

for

an

order

California

Diversity,

move

for

requiring

1

Chapparal

a

Institute

preliminary

injunction

that

three

declarations

1

(“Mot. Supp.” ECF No. 32.) Defendants Skalski and the United

2

States

3

“Defendants”) oppose both motions. (Opp‟n Mot. Prelim. Inj., ECF.

4

No.61; Fed. Defs. Opp‟n Mot. Supp. AR, ECF No. 49.)

Forest

Service

5
6

(“Forest

I.

Service”)

(collectively

BACKGROUND

The Rim Fire and Rim Fire Recovery Project:

7

The

motions

concern

the

following

background

8

information in the administrative record. The Rim Fire began in

9

August

2013

in

the

Stanislaus

National

Forest

near

Yosemite

10

National Park. AR A00011. The fire burned for several weeks and

11

was “the third largest wildfire in California history and the

12

largest wildfire in the recorded history of the Sierra Nevada.”

13

AR A00011, B00111. It burned more than 150,000 acres of National

14

Forest

15

vegetation burn severity.” AR B00112-14; see also A00015.

and

16

“resulted

The

Forest

in

areas

Service

of

states

high,

its

moderate

proposed

and

low

Rim

Fire

17

Recovery Project is its response to the fire and the fire‟s

18

impact on Stanislaus National Forest. The Forest Service further

19

states

20

impacted by the Rim Fire. . . while simultaneously providing for

21

public

22

socio-economic benefits.” AR A00009. The “proposed action . . .

23

includes:

24

along roads open to the public and roads used to access and

25

implement proposed treatments.” AR B00121.

it

designed

safety,

the

Project

ecological

salvage

of

dead

to

integrity,

trees[and]

“help[]

restore

scientific

removal

of

the

land

research,

hazard

and

trees

26

The Forest Service‟s “public outreach began while the

27

fire was still smoldering and continued up until the point of

28

the” final decision to implement the Project. AR A00035.
2

1

In connection with the Project, the Forest Service,

2

published a Notice of Intent on December 6, 2013 and sought

3

“information, comments and assistance from federal, state and

4

local agencies and individuals or organizations . . . affected by

5

the

6

submitted 4,200 total letters during the comment period including

7

174 unique individual letters and 4,026 form letters.” AR B00128.

proposed

action.”

AR

B00121,

B00127.

“Interested

parties

8

The 30-day public comment period on the Project DEIS

9

[Draft Environmental Impact Statement (“EIS”)] began on May 16,

10

2014

11

Federal

12

received 5,589 comment letters on the DEIS including “154 unique

13

individual

14

organized groups.” AR B00129.

15

with

publication

Register

and

letters

The

of

during

and

Forest

the

this

5,435

Service

Notice

of

Availability

period

form

the

letters

organized

Forest

from

“public

8

open

in

the

Service

different

houses,”

16

“hosted Rim Fire Technical Workshops”

17

into the Rim Fire area” for government officials and interested

18

parties” AR B00128. The Forest Service solicited public comments

19

by

20

“distribut[ing] some 60,000 newspaper inserts through the region

21

explaining

many

22

“Responses

to

23

development of the FEIS [Final Environmental Impact Statement]”

24

and Record of Decision (“ROD”). AR B00129. The FEIS and ROD were

25

published in August 2014. Of the four alternative courses of

26

action considered for the Project, the Forest Service ultimately

27

“selected Modified Alternative 4.” AR A00016.

28

“produc[ing]

materials

of

the

public

for

proposed
comments

and “organized 24 tours

social

media

activities.”
were

outlets”

AR

finalized

and

B00128-129.
during

the

Modified Alternative 4 “approves salvage logging and
3

1

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

2

based;

3

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

4

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

5

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

6

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

7

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

8

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

9

through

651

acres

timbers

of

helicopter;

sales”

to

and

occur

237

“over

10

the

next

of

skyline

2

seasons,

culminating in winter 2015.” AR A00018.

11

acres

California Spotted Owl:

12

“California

spotted

owls

.

.

.

have

been

at

the

13

forefront of Sierra Nevada management and conservation debates

14

for 25 years . . . .” AR K12132. The owls are “a territorial

15

species

16

K12139. The Forest Service considers California spotted owls a

17

“sensitive species” as they “have several characteristics that

18

are broadly associated with increased species vulnerability.” AR

19

B00432, K12133. “The primary driver for [California spotted owl]

20

nest habitat loss is . . . wildfire.” AR B00448. The Rim fire

21

“destroyed

22

owls . . . roost and nest” in the Stanislaus National Forest.

23

AR A00013, A00025.

24

with

each

.

“The

.

pair

.

most

one

defending

quarter

recent

an

of

estimate

exclusive

the

of

areas

territory.”

where

population

AR

spotted

size

for

25

California spotted owls in the Sierra Nevada reported 1,895 owl

26

sites, with 1,299 sites on National Forest System lands.” AR

27

B00445.

28

Their nests are typically located in areas with “70
4

1

percent or greater canopy cover,” however the owls “use a broader

2

range of vegetation conditions for foraging than they do for

3

nesting . . . include[ing] post-fire habitats” like the high-

4

severity burn areas found in the Rim Fire area. AR B00445; see

5

also B00003, K12136, K45474, K43093. “Recent research indicates

6

that prey species [for the California spotted owl such as gophers

7

and flying squirrels] may be abundant and available in the post-

8

fire environment.” AR B00450.

9

“[A]pproximately

6,500

acres

of

salvage,

and

8,500

10

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

11

occur within 1.5 km of [California spotted] owl sites” in the

12

Stanislaus National forest. AR B00003.

13

The Forest Service addressed the likelihood that the

14

Project would have a negative impact on individual spotted-owls

15

in its ROD. Their discussion included the following:

16

In the short term, salvage logging and fuel
reduction actions will undoubtedly affect
individual animals and patches of habitat.
However, in the long term, failing to reduce
the extreme fuel load on the landscape
increases the likelihood of having another
extreme fire similar to the Rim Fire. The Rim
Fire burned through forty six California
spotted owl Protected Activity Centers (PACs)
. . . destroying some of these Sensitive
species‟ important old-forest habitat. And,
this is just a small snapshot of the wildlife
impacts from the Rim Fire. . . . So, being
faced with the choice of causing minimal
short-term adverse effects to wildlife or
increasing the risk of serious long-term
impacts to wildlife, [the Forest Service]
opted for the former, with the strong
conviction that doing so is better for
wildlife.

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25
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AR A00025.
///
5

1

II.

MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

2

Plaintiffs argue that a declaration from each of the

3

following named individuals should supplement the administrative

4

record because supplementation is necessary (1) for determining

5

whether the Forest Service considered all relevant factors and

6

explained its decision and (2) for the purpose of explaining

7

technical terms or complex subject matter (Mot. to Supp. 4:8-

8

10)1: Monica Bond (ECF No. 22-15), Derek Lee (ECF No. 22-16), and

9

Dominick DellaSala (ECF No. 22-17).

10

Each declarant discusses his or her qualifications and

11

experience

12

research

13

habitat, discusses other research in the field, and addresses

14

conclusions reached by the Forest Service in the FEIS and the

15

logic underpinning those conclusions.

16

in

wildlife

regarding

biology,

California

interprets
spotted

owl

his

or

her

own

populations

and

National Environmental Policy Act (“NEPA”) claims are

17

reviewed

18

Administrative

19

“the

20

5 U.S.C. § 706.

21

the

22

record made initially in the reviewing court.” Fla. Power & Light

23

Co. v. Lorin, 470 U.S. 729, 743 (1985).

24

under

whole

the

Procedure

record

or

Act,

those

review

which
parts

provision

requires
of

it

of

the

consideration

cited

by

a

of

party.”

“[T]he focal point for judicial review should be

administrative

The

judicial

Ninth

record

already

Circuit

in

existence,

recognizes

four

not

some

exceptions

new

where

25
26
27
28

1

Defendants submitted their own declarations arguing “if the Court
does consider [Plaintiffs‟] declarations, it should review them alongside the
accompanying Declarations of [Forest Service employees] Marcie Baumbach and
Patricia Manley.” (Fed. Defs. Opp‟n Pls. Mot. Prelim. Inj. 2:18-21, ECF No.
61.) Since Plaintiffs‟ motion to supplement the administrative record is
denied, the government‟s motion is denied as moot.

6

1

supplementing an administrative record may be justified: “Courts

2

may review . . . extra-record materials [like the Bond, Lee and

3

DellaSala

4

determine whether the agency has considered all relevant factors

5

and

6

documents not in the record, (3) supplementing the record is

7

necessary to explain technical terms or complex subject matter,

8

or (4) plaintiffs make a showing of bad faith.” City of Las Vegas

9

v. F.A.A., 570 F.3d 1109, 1116 (9th Cir. 2009). “Though widely

10

accepted, these exceptions are narrowly construed and applied” to

11

ensure they do not undermine the general rule limiting review to

12

the administrative record. The Lands Council v. McNair, 537 F.3d

13

981, 1030 (9th Cir. 2008).

declarations]

explained

14

its

decision;

Plaintiffs

contend

(2)

(1)

the

the

it

16

to

Determine

the

has

Lee

first

necessary

relied

and

Whether

and

to

on

DellaSala

Council exceptions. (Dkt. 61, 2:18-21.)
Necessary

under

is

agency

Bond,

declarations

A.

admissible

when:

15

17

are

only

the

third

Lands

Agency

has

18

Considered all the Relevant Factors and Explained its

19

Decision

20

The

21

supplementing

22

contains sufficient information to explain how the [agency used

23

the information before it] and why it reached its decision,” the

24

exception does not apply. Cook Inletkeeper v. U.S. EPA, 400 F.

25

App'x 239, 240-41 (9th Cir. 2010).

“relevant
the

factors”

record

is

exception

necessary.

only
Where

applies
“[t]he

where
record

26

A court should supplement the record when the agency

27

“fails[s] to consider a general subject matter . . . , not when

28

specific

hypotheses

and/or

conclusions
7

are

omitted

from

1

consideration. To hold otherwise would allow Plaintiffs to drive

2

a truck through what is supposed to be a narrow exception to the

3

record review rule.” In re Delta Smelt Consol. Cases, 1:09-CV-

4

1053 OWW DLB, 2010 WL 2520946, at *6 (E.D. Cal. June 21, 2010).

5

Extra-record materials are not necessary where “the facts and

6

documents referenced in the [extra-record material] are already

7

in the administrative record.” Quechan Tribe of the Ft. Yuma

8

Indian Reservation v. U.S. Dep't of the Interior, 12CV1167-GPC

9

PCL, 2012 WL 5512383, at *2 (S.D. Cal. Nov. 14, 2012).

10

Here, the Bond, Lee and DellaSala declarations are not

11

necessary to determine whether the Forest Service considered all

12

the relevant factors and explained its decision since Plaintiffs

13

have not identified any research they allege the Forest Service

14

failed

15

administrative record. Where the studies themselves are in the

16

record, it is not necessary to rely on external declarations when

17

determining whether the Forest Service properly considered the

18

information. Therefore, this portion of the Plaintiffs‟ motion to

19

supplement the administrative record is denied.

20

to

B.

consider

that

is

not

itself

contained

in

the

Necessary to Explain Technical Terms or Complex Subject

21

Matter

22

Declarations

may

be

admissible

where

they

“aid

a

23

layperson‟s understanding of the basic concepts involved” in the

24

motion, WildEarth Guardians v. Salazar, CV-09-00574PHXFJM, 2009

25

WL 4270039 (D. Ariz. Nov. 25, 2009), and where the proponent

26

identifies which issues “can [only] be explained by supplemental

27

evidence.” U.S. v. Iron Mountain Mines, Inc., 987 F. Supp. 1250,

28

1262

(E.D.

Cal.

1997).

Supplementation
8

is

inappropriate

if

1

offered to “suggest that [the federal agency] did not give [some

2

information]

3

Cases, 2010 WL 2520946, at *6.

sufficient

weight.”

In

re

Delta

Smelt

Consol.

4

Here, Plaintiffs fail to identify which basic concepts

5

or issues relevant to their motion cannot be understood through

6

consideration of the administrative record alone.

7

providing context, the declarations represent an attack on the

8

Forest

9

presenting

Service‟s

conclusions.

this

declaration

See

to

.

Bond
.

.

Decl.

Rather than

¶

assist

4

the

(“I

am

court

by

10

illuminating where the Forest Service‟s ROD/FEIS fail to consider

11

factors relevant to the impacts this project will likely have on

12

the

13

states that not all California spotted owls foraging habitat in

14

the Rim Fire area will be logged, this is meaningless for two

15

reasons”),

16

consistently misrepresented, minimized or improperly ignored the

17

evidence

18

Forest Service notes. . . several measures that they characterize

19

as mitigation for California spotted owls. However, none of these

20

are meaningful

California

21

spotted

¶18

(“At

submitted

every

¶16

turn,

(“When

the

myself . . . .);

the

Forest

Forest

Lee

Decl.

Service

Service

¶

14

has

(“The

. . . .”).

Plaintiffs

have

23

technical matter.

24

that

A.

understanding

any
any

referenced

the administrative record is denied.

26

for

shown

declaration

III.

necessary

not

22

25

is

by

owl.”)

complex

or

Therefore, Plaintiffs‟ motion to supplement

MOTION FOR PRELIMINARY INJUNCTION

Legal Standard for Preliminary Injunction

27

A preliminary injunction is “an extraordinary remedy

28

that may only be awarded upon a clear showing that the plaintiff
9

1

is entitled to such relief.” Winter v. Natural Res. Def. Council,

2

Inc., 555 U.S. 7, 22 (2008).

3

A plaintiff seeking a preliminary injunction
must establish [1] that he is likely to
succeed on the merits, [2] that he is likely
to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an
injunction is in the public interest.

4
5
6
7

Id. at 20.

8
9

Further, the Ninth Circuit‟s “„serious questions‟ test”
may

be

“applied

as

part

of

the

four-element

Winter

test.”

10

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

11

(9th Cir. 2011). “[I]f a plaintiff can only show that there are

12

serious questions going to the merits . . . then a preliminary

13

injunction may still issue if the „balance of the hardships tips

14

sharply in plaintiffs favor‟ and the other two Winter factors are

15

satisfied.”

16

1281, 1291 (9th Cir. 2013) (quoting Cottrell, 632 F.3d at 1135.).

17

Where a plaintiff fails to demonstrate even serious questions

18

going to the merits of his or her claim, the court need not

19

consider the remaining Winter factors. Association des Eleveurs

20

de Canards et d‟Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th

21

Cir. 2013).

22

B.

Shell

Offshore

Inc.

v.

Greenpeace

Inc.,

709

F.3d

Likelihood of Success on the Merits

23

Plaintiffs

allege

two

NEPA

claims:

(1)

Failure

to

24

Prepare Supplemental Environmental Analysis and (2) Failure to

25

Take a “Hard Look,” to Adequately Explain Impacts, To Provide

26

Necessary

27

(Compl.

28

justifies an injunction.

¶¶

Information,
37-43,

ECF

and
No.

To
1.)

10

Ensure

Scientific

Plaintiffs

argue

Integrity.

either

claim

1

Plaintiffs‟ underlying NEPA claims are reviewed under

2

the Administrative Procedures Act (“APA”), which allows the court

3

to

4

“arbitrary, capricious, an abuse of discretion, or otherwise not

5

in accordance with the law.” 5 U.S.C. § 706(2)(A). “Review under

6

this

7

substitute its judgment for that of the agency.” Earth Island

8

Inst. v. U.S. Forest Service (“Earth Island II”), 442 F.3d 1147,

9

1156

10

set

aside

an

standard

(9th

is

Cir.

agency

action

narrow,

2006)

and

only

the

(citation

where

reviewing

omitted)

the

action

court

abrogated

may

on

was

not

other

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

11

However,

“predominantly

requiring public proceedings and supplemental EISs under NEPA. .

14

. the applicable standard of review . . . is reasonableness.”

15

Alaska Wilderness Recreation & Tourism Ass‟n. v Morrison, 67 F.3d

16

723, 727 (9th Cir. 1995).

18

to

information

Prepare

a

is

“a

legal

13

Failure

new

the

question[]”

1.

whether

reviewing

12

17

of

when

Supplemental

circumstance

Environmental

Impact Statement (SEIS)

19

Plaintiffs argue NEPA requires the Forest Service to

20

prepare a SEIS before it proceeds with the Project since “the

21

Forest Service has failed to meaningfully address [the Forest

22

Service‟s 2014 spotted owl survey data] in relationship to the

23

Project‟s impacts” on spotted owl habitat, notwithstanding that

24

the

25

regarding the Rim Project‟s impact on owls.”

26

TRO “Mot. TRO” 19:12-13; 16:13-15, ECF No. 22.) Plaintiffs argue

27

since the FEIS and ROD lack a discussion of “what surveys were

28

done, where they were done, what the outcome was for all of the

survey

data

“unequivocally

11

raises

substantial

questions

(Mot. ISO Pls. Req.

1

owl sites (not just a minor subset), or what the results mean for

2

owls on the Rim fire landscape, even though the information was

3

available to the Forest Service before they issued the Final EIS

4

for this project or signed the Record of Decision,” NEPA requires

5

the Forest Service to prepare a SEIS. (Reply Mem. ISO Pls. Mot.

6

Prelim. Inj. “Reply” 2:20-25, ECF No. 63.)

7

Plaintiffs contend the Forest Service‟s references to

8

the 2014 survey in the FEIS and ROD are insufficient because they

9

“do not actually mention the entirely of the survey results[,]

10

provide even the most basic information necessary for context” or

11

“assess[] how much salvage logging will occur within . . . owl

12

territories” and “[a]s a result, the public has no meaningful

13

information with which to understand the very basics about actual

14

owl presence in the Rim Fire area.” (Reply 3:4-6, 12-16, 4:7-9.)

15

Plaintiffs consider the ROD‟s statement that “both the EIS and

16

this [ROD] recognize that owls forage in burned forests, and the

17

EIS analyzes the effects of the various alternatives based on

18

that understanding,” “hollow” “because when. . . site-specific

19

data exists, the only appropriate way to analyze the effects of

20

the proposed logging on owl foraging habitat is to examine the

21

logging units in relationship to where the owls actually are.”

22

(Reply 4:12-16.) Plaintiffs‟ argue the survey results call out

23

for a SEIS even more strongly when viewed in connection with

24

“several other factors,” related to spotted owls, including the

25

declining status of the owls in area where logging occurs, and

26

the area‟s designation as an “Area of Concern” for the California

27

spotted

28

supplemental analysis in light of new information, the Supreme

owl.

(Reply

6:3-7.)In

12

discussing

the

need

for

1

Court has held:

2

It
would
be
incongruous
with
[NEPA‟s]
approach to environmental protection, and
with
the
Act‟s
manifest
concern
with
preventing uninformed action, for blinders to
adverse
environmental
effects,
once
unequivocally removed [through the notice and
comment procedure], to be restored prior to
the completion of agency action simply
because the relevant proposal has received
initial approval.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989).
However, the Supreme Court also stated in Marsh “an agency need
not supplement an EIS every time new information comes to light
after the EIS is finalized. To require otherwise would render
agency decision-making intractable . . .” Id. at 373. Instead,
NEPA requires the Forest Service to create a SEIS if “[t]here are
significant

new

circumstances

or

information

relevant

to

environmental concerns and bearing on the proposed action or its
impact.” 40 C.F.R. § 1502.9(c)(1)(ii) (emphasis added).
Where an agency “provide[s] a reasoned evaluation . . .
as to why a []SEIS [is] not necessary,” it withstands scrutiny.
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 141 F.3d 1177
(9th Cir. 1998).
Here,

Plaintiffs

have

not

raised

serious

questions

concerning their argument that the 2014 survey data requires the
Forest Service to prepare a SEIS. The Forest Service is only
required

to

significant
Plaintiffs

create
new

cite

a

SEIS

information.
no

binding

in

light
40

of

C.F.R.

legal

the
§

authority

development

of

1502.9(c)(1)(ii).
supporting

their

argument that “where, as here, site-specific data exists, the
only

appropriate

way

to

analyze
13

the

effects

of

the

proposed

1

logging on owl foraging habitat is to examine the logging units

2

in relationship to where the owls actually are.” (Reply 4:14-

3

16.).

4

The Forest Service did not ignore the 2014 survey data.

5

The agency reestablished six Protected Activity Centers (“PACs”)

6

in the forest based on the survey results. AR A0025, A0027,

7

A00038, B00125, B00829. The decision to incorporate the results

8

of the survey into the Project is evidence the Forest Service

9

reviewed and understood the data in context before it ultimately

10

determined that the survey was not significant new information.

11

The Forest Service explained its reasoning in the administrative

12

record

13

concerning the 2014 survey data as follows:

where

14

16
17
18

20

responded

to

Bond‟s

August

21,

2014

letter

Both the EIS and [the ROD] recognize that
owls forage in burned forests, and the EIS
analyzes
the
effects
of
the
various
alternatives based on this understanding;
therefore, the underlying point raised in
[Bond‟s
letter],
that
implementing
the
[Project] may adversely affect spotted owls
in the area, was already addressed in the EIS
and factored into this decision.

15

19

it

AR A00038.
Although the Forest Service‟s analysis of the survey data is

21

different

22

states about the survey data is reasonable and satisfies the

23

relevant

24

disagreement

25

scientific field routinely disagree.‟” Sierra Forest Legacy v.

26

Sherman,

27

Council, 537 F.3d at 1101)).

28

from

Plaintiffs‟

standard

646

does

F.3d

analysis,

of

review.

not

violate

1161,

1182

“The
NEPA

(9th

what

mere

the

presence

because

Cir.

Forest

„experts

2011)

Service

of
in

(citing

expert
every

Lands

Additionally, even though the 2014 survey data was not
14

1

significant enough to warrant an SEIS, the Forest Service did not

2

ignore

3

Activity

4

results. AR A0025, A0027, A00038, B00125, B00829. The decision to

5

incorporate

6

evidence the Forest Service reviewed and understood the data in

7

context before determining the results were not significant new

8

information.

9

the

survey.

Centers

the

The

agency

(“PACs”)

results

Therefore,

in

of

reestablished

the

the

forest

survey

Plaintiffs‟

motion

six

based

into

on

the

for

a

Protected
the

survey

Project

is

preliminary

10

injunction based on the Forest Service‟s failure to conduct a

11

SEIS is denied.

12

2.

13

Plaintiffs argue the Forest Service violated its NEPA

14

obligations by failing to take a “hard look” at the comments and

15

evidence

16

Plaintiffs

17

studies concerning the California spotted owl‟s relationship with

18

burned forest were either misinterpreted or ignored for arbitrary

19

and capricious reasons and that the Forest Service failed to

20

adequately justify its determination that while the Project would

21

harm individual spotted owls, it would not result in a trend

22

toward federal listing under the Endangered Species Act.

23

“Hard Look”

submitted
argue

a.

during

the

the

Forest

review

Service‟s

period.

Specifically,

discussion

of

several

Failure to Acknowledge or Disclose Important

24

Information

and

25

Misrepresentation

of

the

Relevant Science

26

Plaintiffs argue the Forest Service did not assess the

27

Project‟s impact “on resident California spotted owls based upon

28

the findings of the scientific” evidence before them since the
15

1

agency used arbitrary and capricious reasons to disregard that

2

evidence and the Forest Service‟s reference to the studies at

3

issue “do[es] not represent an incorporation of the information

4

on

5

analysis.”

6

challenge the Forest Service‟s comments critical of Clark (2007),

7

Lee et al. (2012), Clark et al. (2013), DellaSala et al. (2010)

8

and Monica Bond‟s August 21, 2014 letter to the Forest Service.

9

(Mot. 11:2-12:13.)

adverse

10

effects
(Reply

of

post-fire

7:5-8,

Plaintiffs

8:1-2)

also

contend

logging
(emphasis

that

the

into

the

impact

omitted).

They

passages

in

the

11

administrative record the Court used in support of its order

12

denying Plaintiffs‟ temporary restraining order on this point

13

show the Forest Service relying on “science which has studied the

14

spotted

15

systematically dismissing [on arbitrary and capricious grounds] .

16

. . the main body of science which has investigated how owls use

17

burned forests and the effects of logging high- and moderate-

18

intensity burned areas within occupied owl territories.” (Reply.

19

7:11-19) (emphasis omitted).

20

owl‟s

relationship

with

unburned

forest,

while

Plaintiffs argue that “nowhere in any of [the pages

21

where

22

California spotted owl habitat] can the reader find an analysis

23

of the effects of post-fire logging within 1.5 km of the 39

24

spotted owl sites found to be occupied in 2014 in the Rim fire,

25

on the occupancy of those sites, based upon the actual physical

26

locations

27

logging units.” (Reply 8:24-9:1.)

28

the

Forest

chosen

Service

by

the

references

owls

the

themselves

Project‟s

in

2014

impact

relative

on

to

Plaintiffs also take issue with the Forest Service‟s
16

1

characterization of Clark (2007) arguing that although the Forest

2

Service claims the study “found that high-intensity fire areas in

3

old/mature forest are „poor habitat for spotted owls‟ because the

4

level

5

“indicat[es]

6

forest] is high quality habitat, under the most basic scientific

7

principles of wildlife biology.” (Reply 9:14-21.)

of

use

was

that

relatively

„low,‟”

[high-intensity

fire

the

study

areas

in

actually
old/mature

8

Plaintiffs contend their claim does not amount to an

9

impermissible “battle of the experts” between the Forest Service

10

and the Bond, Clark, Lee and DellaSala studies because “there are

11

no „competing scientific analyses‟ here to weigh. . . .” (Reply

12

10:12-13.)

13

“NEPA requires not that an agency engage in the most

14

exhaustive

15

that it take a „hard look‟ at the relevant factors.” N.W. Envt‟l

16

Advocates v. Nat‟l Marine Fisheries Serv., 460 F.3d 1125, 1139

17

(9th

18

foreseeable direct and indirect impacts. Furthermore, a „hard

19

look‟ should involve a discussion of adverse impacts that does

20

not

21

Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S.

22

Forest Serv., 689 F.3d 1060, 1075 (9th Cir. 2012) (citing N.

23

Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.

24

2006)).

Cir.

environmental

2006).

improperly

A

analysis

“hard

minimize

look”

negative

theoretically

“includes

side

possible,

„considering

effects.‟”

League

but

all

of

25

The standard of review under § 706 assesses “whether an

26

EIS contains a reasonably thorough discussion of the significant

27

aspects

28

action. Churchill Cnty. v. Norton, 276 F.3d 1060, 1071 (9th Cir.

of

the

probable

environmental

17

consequences”

of

the

1

2001). An agency action satisfies its obligations under §706 when

2

its conclusions are “reasonably justified. . . based upon record

3

evidence and additional analysis of site-specific factors.” Tri-

4

Valley CAREs v. U.S. Dep‟t of Energy, 671 F.3d 1113, 1126 (9th

5

Cir. 2012).

6

“When specialists express conflicting views, an agency

7

must have discretion to rely on the reasonable opinions of its

8

own qualified experts even if, as an original matter, a court

9

might find contrary views more persuasive.” Marsh, 490 U.S. at

10

378; see also Price Rd. Neighborhood Ass‟n, Inc. v. U.S. Dep‟t of

11

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

12

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

13

Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1244 (9th

14

Cir. 2005); Wetlands Action Network v. U.S. Army Corps of Eng‟rs,

15

222

16

grounds by Wilderness Society v. U.S. Forest Serv., 630 F.3d 1173

17

(9th Cir. 2011).

F.3d

1105,

1120-21

(9th

Cir.

2000),

abrogated

on

other

18

Here, the administrative record shows the agency did

19

not “disregard” Lee (2012), Clark (2013), DellaSala (2010) and

20

the August 21, 2014 Bond letter. The Forest Service discussed the

21

application of these studies to the Project by reviewing their

22

findings and acknowledging the limits of their conclusions. For

23

example, the Forest Service relied on Lee et al. (2012) to state

24

“Recent

research

25

occupy

landscapes

26

wildfires, as well as areas with mixed-severity wildfire that

27

include some proportion of high-severity fire,” that “[p]ost-fire

28

logging may adversely affect rates of owl occupancy,” and that

indicates
that

that

California

experience

18

low-to

spotted

owls

will

moderate-severity

1

“[a] growing body of evidence indicates that spotted owls persist

2

within fire-affected landscapes.” AR B00446, 451, 455. But the

3

FEIS cautions against extrapolating too much from Lee et al.

4

(2012) because “[a]t the very least, the small sample size of 8

5

[owl] sites with significant habitat loss [in the Lee study] is

6

too small to support a general blanket statement that the high

7

severity fires that affect 80-100 percent of owl core habitat

8

have not reduced owl occupancy in the Sierra Nevada.” AR B00829.

9

This

caution—rather

than

showing

the

agency‟s

10

review—demonstrates

11

an

arbitrary

analysis

and

of

capricious

site-specific

factors in compliance with § 706.

12

The same is true for Clark (2013). The Forest Service

13

clearly reviewed and analyzed this research and the limits of its

14

applicability. The FEIS states: “Clark et al. (2013) summarized

15

the results provided by the few studies that have been conducted

16

on spotted owls in burned landscapes and noted that the results

17

were equivocal. Thus, uncertainties remain regarding long-term

18

occupancy and demographic performance of spotted owls at burned

19

sites.” AR B00446. It also notes “Clark et al. (2013) were unable

20

to

21

activities” (AR B00451,) and “Clark et al. (2013) compared owl

22

site

23

landscapes. . . . [but] did not explicitly test the effects of

24

salvage logging; rather it was combined with high severity fire

25

as a source of habitat loss in treatment landscapes.” AR B00829.

26

The

27

findings in context with the variables at play in the Rim fire

28

area.

separate

the

occupancy

FEIS

in

impacts

burned

incorporated

of

and

Clark

wildfire

salvaged

et

19

al.

from

land

landscapes

(2013)

and

management

to

unburned

applied

its

1

The Forest Service also adequately considered DellaSala

2

(2010). DellaSala (2010) is not a peer-reviewed publication, but

3

a two paragraph Letter to the Editor which argues “science shows

4

that fire can enhance habitat for owls‟ small mammal prey” and

5

that “spotted owls prefer dense, old forests with high canopy

6

cover for nesting, and preferentially select unlogged severely

7

burned forests for foraging.” AR O00181-182. The only citation

8

for this assertion in the Letter is to Bond et al. (2009), which

9

is a study already considered and discussed in the FEIS. AR

10

B00446, B00833-834 B00844. The Forest Service was not arbitrary

11

or capricious when it determined DellaSala‟s Letter, “did not

12

include analysis or qualitative evidence that could be used in

13

the project analysis.” AR B0837.

14

Finally, Bond‟s August 21, 2014 letter was similarly

15

addressed

16

August 21, 2014, but was not received by the Forest Service until

17

August 27, 2014, “after the FEIS had been completed and the

18

Forest Service had issued a Proposed Record of Decision,” which

19

is why FEIS does not address it. AR B00001. Nevertheless, the

20

Forest Service employee Maria Benech articulated reasons why the

21

letter did not warrant changes to the proposed decision in the

22

administrative record. AR B00001. The “FEIS and ROD recognize

23

that owls remaining in the Rim Fire area may forage in the burned

24

areas, including within 1.5 km of occupied sites. Therefore, this

25

issue

26

decision-making process.” AR B00001. The Forest Service publicly

27

presented this same analysis in the ROD, which was issued after

28

it received Bond‟s letter, finding “the underlying point raised

has

in

the

been

administrative

fully

considered

20

record.

in

The

the

letter

NEPA

is

analysis

dated

and

1

in the August 21, 2014 comment letter, that implementing the Rim

2

Recovery Project may adversely affect spotted owls in the area,

3

was

4

decision.”

5

Plaintiffs have not raised serious questions as to whether this

6

analysis is arbitrary or capricious.

already

7

AR

addressed
A00038.

Plaintiffs‟

in
In

the
light

EIS
of

allegations

and
the

amount

factored

into

administrative

to

a

battle

this

record,

of

the

8

experts because the writings by Lee, Clark, DellaDala and Bond

9

are not the complete universe of scientific inquiry into the

10

California spotted owl‟s relationship with wildfire discussed in

11

the FEIS. In discussing the California spotted owl, the Forest

12

Service relied on Keane (2014) and incorporated that research

13

into the FEIS by reference. AR B00431, B00445. Keane (2014) is an

14

academic survey that “synthesize[s] scientific information on the

15

California spotted owl that has been reported since [2001].” AR

16

K12132-133. It references and discusses work related to spotted

17

owls published by Bond, Clark, and Lee along with others in the

18

field. AR K12153-157.

19

Management and Wildfire,” Keane (2014) reviews more than a decade

20

of published scientific research regarding the impact of wildfire

21

on

22

information indicates that California spotted owls will occupy

23

landscapes that experience low- to moderate-severity wildfire, as

24

well as areas with mixed-severity wildfire that includes some

25

proportion of high-severity fire,” which is the same conclusion

26

advanced by the Forest Service in the FEIS.

27

B00742.

28

the

California

In a section titled “Effects of Forest

spotted

owl

and

concludes

“[c]urrent

AR K12141-143; AR

Given the Forest Service‟s reliance on Keane (2014),
21

1

Plaintiffs‟

2

experts,” which falls short of demonstrating a NEPA violation.

3

Earth Island Institute v. Carlton, 626 F.3d 462, 473 (9th Cir.

4

2010) (“The district court here found just such a „battle of the

5

experts‟ to exist, but concluded that this did not establish a

6

violation of NEPA. It was within its authority to do so.”); J.L.

7

Mercer Island School Dist., 592 F.3d 938, 945 n.5 (9th Cir. 2009)

8

(“The

9

routinely bordered on the quintessential „battle of the experts‟

10

concerning what educational policy and teaching method is most

11

effective

12

entitled to deference in deciding what programming is appropriate

13

as a matter of educational policy.”); Native Ecosystems Council

14

v. U.S. Forest Serv., 428 F.3d 1233, 1244 (9th Cir. 2005) (“Nor

15

will we „take sides in a battle of the exerts,‟ as the Forest

16

Service

17

provided a thorough and reasoned explanation for its rejection of

18

[a third party‟s] position.”).

claim

parties‟

for

arguments

and

quintessential

throughout

applied

Regarding

Clark

Forest

Service

the

a

learning-disabled

considered

19

raises

this

students.

the

(2007),

of

litigation

The

[evidence

whose

have

District

at

issue]

conclusions

is

and

Plaintiffs

claim

21

similarly insufficient to demonstrate substantial questions as to

22

whether the Forest Service complied with its NEPA obligations.

23

The FEIS describes Clark (2007) this way: “Clark (2007) found

24

that while spotted owls did roost and forage within high severity

25

burn areas, the use was very low. The results suggest that this

26

cover

27

Plaintiffs argue this description of Clark (2007) is untenable

28

given Figure 6.2 in the study, which shows northern spotted owls

was

poor

habitat

for

22

Plaintiffs‟

the

20

type

misstated,

“battle

spotted

owls.”

argument

AR

is

B00446.

1

use highly burned habitat at a higher rate than it occurs in the

2

environment. AR K04468. However, this figure does not address the

3

rate at which the owls choose highly burned areas over other

4

habitats. Therefore, it does not contradict the Forest Service‟s

5

analysis—drawn from the entirety of the 218 page thesis—that the

6

spotted owl‟s use of high severity burn areas was low. The figure

7

does not demonstrate it would be arbitrary or capricious to read

8

the entirety of Clark (2007) as suggesting that high severity

9

burn

areas

are

a

poor

habitat

for

spotted

owls.

Because

10

Plaintiffs have not raised serious questions regarding the Forest

11

Service‟s discussion of the relevant scientific literature, their

12

motion for a preliminary injunction on this ground is denied.

13

b.

Failure to Make Proper Determination as to

14

Whether the Rim Fire Logging Project Would

15

Push Spotted Owls Below a Critical Viability

16

Threshold

17

Plaintiffs argue the Defendants “have not articulated a

18

meaningful explanation why the [Project] would have a negative

19

impact on the California spotted owl, but would not result in a

20

trend toward federal listing” and have “also not determined the

21

crucial threshold necessary to support this conclusion.” (Reply

22

12:2-5.)

23

insufficient because of the “four indicators [the Forest Service]

24

used to „provide a relative measure of the direct and indirect

25

effects‟ [of the Project] to spotted owls, . . . only one . . .

26

mentions foraging habitat and it was dismissed out of hand.”

27

(Reply 13:6-11.) Plaintiffs support their argument by citing to

28

Earth Island II, 442 F.3d at 1147 (9th Cir. 2006), arguing “the

Plaintiffs

contend

the

23

Forest

Service‟s

analysis

is

1

relevant facts of Earth Island II . . .

2

facts in this case” and compel a finding that the Forest Service

3

did not comply with its NEPA obligations.

4

The

Forest

Service

must

are the same as the

provide

a

“meaningful

5

explanation” when it concludes a proposed action will have a

6

negative impact on individual animals, but will not result in a

7

trend toward federal listing for the species. Ecology Ctr. Inc.

8

v.

9

inquiry, when reviewing whether an agency complied with NEPA, is

10

whether the agency adequately considered a project‟s potential

11

impacts and whether the consideration given amounted to a „hard

12

look‟ at the environmental effects.” Kempthorne, 457 F.3d at 975.

Austin,

430

F.3d

1057,

1067

(9th

Cir.

2005).

“A

court‟s

13

Plaintiffs‟ assertion that the relevant facts of Earth

14

Island II are the same as the facts in this case is incorrect

15

since the Forest Service‟s conclusions regarding the project‟s

16

impact

17

opposite of its conclusions here.

18

Earth Island II, the Forest Service based its decision to permit

19

logging

20

heavily burned they are not likely to be suitable owl habitat.”

21

Id. at 1172. From that premise, the Forest Service concluded the

22

proposed logging “may reduce the quality of owl habitat, but . .

23

. would not reduce the overall amount of owl habitat.” Id. 1171.

24

The agency reached this conclusion in spite of Bond‟s research

25

showing the logging “will have significant negative effects on

26

the California spotted owl by substantially reducing the amount

27

of potential foraging habitat within the project sites” because

28

owls used the heavily burned areas to forage. Id. at 1170. The

on

on

spotted

the

owl

habitat

“determination

in

that

24

Earth

Island

II

were

the

442 F.3d 1147, 1172-73. In

because

the[]

areas

were

1

Ninth Circuit determined that under the circumstances, the Forest

2

Service had not taken a “hard look” since it did not “respond

3

explicitly and directly to conflicting views in order to satisfy

4

NEPA‟s procedural requirements” or “explain in any detail how

5

their determinations that habitat was „unsuitable‟ were made, and

6

do[es]

7

negatively impact the owls.” Id. at 1172-73.

not

8
9

investigate

Here,
directly

unlike

confronted

or

analyze

Earth

the

Island

science

how

II,

[the

action]

the

Forest

demonstrating

owl‟s

might

Service
use

of

10

heavily burned areas, acknowledging the Project‟s potential to

11

reduce the overall amount of owl habitat. AR B00445 (“Spotted

12

owls use a broader range of vegetation conditions for foraging

13

than they do for nesting and roosting. . . and this includes

14

post-fire habitats . . . ;) AR B00446 (“Recent research indicates

15

that

16

experience low-to moderate-severity wildfire, as well as areas

17

with mixed-severity wildfire that includes some proportion of

18

high-severity fire.”)

19

analysis

20

requirements, its analysis here does not.

21

California

in

spotted

Earth

owls

will

occupy

landscapes

that

Therefore, although the Forest Service‟s
Island

II

violated

NEPA‟s

procedural

Neither the APA nor NEPA creates a requirement that the

22

Forest

23

before concluding a project will have negative impacts on some

24

individual animals, but will not result in a trend toward federal

25

listing. As the Ninth Circuit held in Lands Council:

26
27
28

Service

must

determine

a

critical

viability

To always require a particular type of proof
that a project would maintain a species‟
population in a specific area would inhibit
the Forest Service from conducting projects
in the National Forests. We decline to
25

threshold

1

constrain the Forest Service in this fashion.
Were we to do so, we may well be complicit in
frustrating
one
or
more
of
the
other
objectives the Forest Service must also try
to achieve as it manages the National Forest
System lands.

2
3
4
5
6
7
8
9
10
11
12
13
14
15

537 F.3d at 997. The Forest Service adequately explained the
rationale

behind

individuals

but

its
is

not

owl.

AR

B00460-461.

indicators

to

the

results

Project
in

a

may

affect

trend

toward

considered

Table
and

3.15-3
the

shows

metrics

a
used

summary
in

the

of

the

Forest

Service‟s analysis. AR B00459. This analysis is shows the agency
adequately

considered

the

project‟s

potential

impacts

on

the

California spotted owl as NEPA requires. Therefore, Plaintiffs
motion for a preliminary injunction based on the Forest Service‟s
failure

to

determine

the

California

spotted

owl‟s

critical

viability threshold is denied.
IV. CONCLUSION

17

19

likely

that

Federal listing or loss of viability for the California spotted

16

18

conclusion

For

the

reasons

stated

motions are DENIED.
Dated:

October 6, 2014

20
21
22
23
24
25
26
27
28
26

above,

both

of

Plaintiffs‟