Earth Island Institute v. Morse et al

Filing 98

ORDER signed by Judge John A. Mendez on 9/26/2011 GRANTING 88 Motion to Dissolve the Injunction. The injunction is dissolved effective the date of this order. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARTH ISLAND INSTITUTE, a nonprofit organization,
Plaintiff,

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v.
JERRY BIRD, in his official
capacity as Forest Supervisor
for Lassen National Forest,
RANDY MOORE, in his official
capacity as Regional Forester
for Region 5 of the United
States Forest Service, and the
UNITED STATES FOREST SERVICE,
Defendants.

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Case No. 2:08-CV-01897 JAM-JFM
ORDER GRANTING DEFENDANTS‟
MOTION TO DISSOLVE THE
INJUNCTION

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This matter is before the Court on Defendants‟ Jerry Bird,

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Randy Moore and the United States Forest Service (the “Forest

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Service”) (collectively “Defendants”) Motion to Dissolve the

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Injunction (Doc. #88).

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(“Plaintiff”) opposes the motion. (Doc. #93).

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argument on the motion on August 24, 2011.

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dissolve the injunction ordered by this Court on August 5, 2009.

Plaintiff Earth Island Institute

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The Court heard oral

Defendants seek to

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See Earth Island Institute v. Morse, 2009 WL 2423478 (E.D. Cal.

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Aug. 5, 2009).

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record and oral argument, the Motion to Dissolve the Injunction is

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GRANTED.

Based on the moving papers, the administrative

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The factual and procedural background leading up to

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Defendants‟ present motion are fully discussed in the Court‟s

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previous order granting injunctive relief, (Earth Island, supra),

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and the Court‟s order denying Defendants‟ request for

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reconsideration of the injunction.

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Morse, 2009 WL 4163846 (E.D. Cal. Nov. 20, 2009).)

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(See Earth Island Institute v.

The Court enjoined the Champs Project (“the project”) until

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the Forest Service completed an “adequate and sufficient [NEPA]

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review.”

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injunction has been in place, Defendants have prepared a supplement

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(“SEA”) to the original Champs Environmental Assessment (“EA”).

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draft SEA was opened to public comment for 30 days, and the Forest

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Service responded in detail to the public comments, including those

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submitted by Plaintiff, before completing the final SEA.

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review of the public comments and the Forest Service‟s responses,

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Jerry Bird issued a finding of No Significant Impact (“FONSI”),

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concluding that the SEA did not require further environmental

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analysis or a modified decision.

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Earth Island, 2009 WL 2423478 at *10.

While the

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After

In its Order granting injunctive relief, Earth Island, 2009 WL

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2423478, the Court held that Defendants violated the National

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Environmental Policy Act (“NEPA”) by failing to ensure the

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scientific accuracy and integrity of the EA.
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Defendants assert

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that they are now in compliance with NEPA and with the Court‟s

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order, and ask the Court to dissolve the injunction so that they

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may proceed with the proposed project.

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SEA does not comply with NEPA and is in defiance of the Court‟s

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previous orders.

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alleged NEPA violations that were not addressed previously by the

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Court, arguing that these potential violations provide support for

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maintaining the injunction.

Plaintiff contends that the

Further, Plaintiff raises three additional

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II.

OPINION

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A.

Legal Standard

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A court which issues an injunction retains jurisdiction to

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modify the terms of the injunction if a change in circumstances so

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requires.

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Serv., 797 F.2d 700, 706 (9th Cir. 1985), overruled on other

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grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.

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1999).

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relieve a party or its legal representative from a final judgment,

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order or proceeding if the judgment has been satisfied, released,

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or discharged.

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the long-established principle of equity practice that a court may,

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in its discretion, take cognizance of changed circumstances and

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relieve a party from a continuing decree.

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220 F.3d 987, 1007 (9th Cir. 2000).

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Nicacio v. United States Immigration & Naturalization

Federal Rule of Civil Procedure 60(b)(5) allows courts to

Fed. R. Civ. Proc. 60(b)(5).

Rule 60(b) codifies

Gilmore v. California,

A party seeking dissolution of an injunction may meet its

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initial burden by demonstrating that there has been a significant

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change in facts or law.

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502 U.S. 367, 384 (1992); see also Sharp v. Weston, 233 F.3d

Rufo v. Inmates of Suffolk County Jail,

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1166,1170 (9th Cir. 2000) (“a party seeking modification or

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dissolution of an injunction bears the burden of establishing that

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a significant change in facts or law warrants revision or

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dissolution of the injunction”).

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pertains to the underlying reasons for the injunction.

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GMAC Mortgage Corp., 2008 WL 4741492, at *2 (W.D. Wash. Oct. 24,

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2008) (citing United States v. Swift & Co., 189 F. Supp. 885, 905

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(D. Ill. 1960), aff‟d per curium, 367 U.S. 909 (1961)).

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flexible standard based on Rule 60(b)(5), the Ninth Circuit has

A significant change is one that
Moon v.

Under a

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directed courts to take all the circumstances into account in

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determining whether to modify or vacate a prior injunction or

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consent decree.

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830 (C.D. Cal. 2007); aff‟d, 2009 WL 905454 (9th Cir. 2009).

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Orantes-Herndandez v. Gonzales, 504 F.Supp.2d 825,

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600

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et seq., provides both procedural and substantive requirements.

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Procedurally, it requires the Forest Service to develop and

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maintain forest resource management plans.

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forest plan is developed, all subsequent agency action, including

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site-specific plans, like the Champs Project challenged here, must

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comply with NFMA and the governing forest plan.

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Lands Council v. McNair (Lands Council II), 537 F.3d 981, 989 (9th

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Cir. 2008).

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U.S.C. §§ 4321 et seq., contains additional procedural

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requirements.

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have detailed information on environmental impacts and to provide

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that information to the public.

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v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996).

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Service must prepare an EIS, which identifies environmental effects

Id. § 1604(a).

After a

Id. § 1604(i); see

The National Environmental Policy Act (NEPA), 42

Its purposes are to ensure the decision-maker will

Inland Empire Pub. Lands Council

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The Forest

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and alternative courses of action, when undertaking any management

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project.

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exists to ensure a process, not to mandate particular results.”

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Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th

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Cir. 2002).

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proposed action.

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Id.; 42 U.S.C. § 4332(2)(C).

“In contrast to NFMA, NEPA

The agency must only take a “hard look” at its
Id. at 1070.

The Administrative Procedure Act (“APA”) provides the

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authority for the Court‟s review of decisions under NEPA and NFMA.

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Lands Council II, 537 F.3d at 987.

Under the APA, an agency

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decision will be set aside only if it is “arbitrary, capricious, an

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abuse of discretion, or otherwise not in accordance with law.”

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U.S.C. § 706(s)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d

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1057, 1062 (9th Cir. 2005).

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capricious standard is narrow, and the reviewing court may not

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substitute its judgment for that of the agency.”

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Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006).

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Rather, the Court:

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“Review under the arbitrary and

Earth Island

Will reverse a decision as arbitrary and capricious
only if the agency relied on factors Congress did not
intend it to consider, has entirely failed to consider
an important aspect of the problem, or offered an
explanation „that runs counter to the evidence before
the agency or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.‟ Id.

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B.

The SEA

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The Forest Service created the SEA in response to the Court‟s

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previous order finding that the Forest Service had violated NEPA by

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using (and representing to the public) 365 as the “SDI-Max” value

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for Ponderosa pines, when the research upon which the Forest

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Service relied stated that the SDI-Max for ponderosa pines is 571.1

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The Court held that:

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The Forest Service‟s misinterpretation of Oliver
(1995) and erroneous use of limiting-SDI 365 as the
SDI–Max value for Ponderosa pine corrupted the
scientific accuracy and integrity of its NEPA
analysis. Agencies simply do not have the discretion
to arbitrarily and capriciously alter a scientifically
set value or deviate from a forest planning directive
and still comply with NEPA. The Forest Service has
not provided a reasoned explanation for its decision
to use a limiting-SDI value when its binding Champs EA
provides it will use an SDI-Max value for thinning.

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Earth Island, 2009 WL 2423478 at *8.

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In the SEA, the Forest Service explains that while the

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proposed project is still based on an SDI of 365, the Forest

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Service is no longer using the terminology “SDI-Max” or “limiting-

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SDI” but rather disclosing that SDI 365 is the value being used in

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the project, regardless of what it is called.

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Defendants are free to design a project using some percentage of

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limiting-SDI as their benchmark for thinning, but chose not to do

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so, and instead informed the public that they designed a project

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using SDI-Max.

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the SEA informs the public that the project is intended to reduce

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stand density below an SDI of 365, since that is the density at

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which bark beetle outbreaks present a serious risk of mortality.

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ARS 000054.

The Court noted that

Earth Island, 2009 WL 2423478 at *7.

In contrast,

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As discussed at length in the papers and during oral argument,

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Plaintiff opposes the conclusions of the SEA, because of the Forest

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Service‟s continued use of SDI-365, which Plaintiff contends is

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scientifically unsound.

Plaintiff argues that the Forest Service‟s

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See the Court‟s previous orders, Earth Island Institute, 2009 WL
2423478 and Earth Island Institute, 2009 WL 4163846 for a full
discussion of SDI, SDI Max and limiting SDI.
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continued reliance on Oliver (1995) and the other studies that it

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relied on previously in the EA, renders the SEA in violation of

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NEPA for the same reasons as the EA.

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scientific data that Plaintiff asserts is erroneous, Plaintiff and

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its expert Dr. Hanson maintain that Defendants failed to ensure the

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scientific accuracy and integrity of the project, and have

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artificially created a need to intensively log medium and large

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trees from the project area.

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By basing the project on

However, unlike the EA, the SEA informs the public that the

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Champs Project was designed utilizing an SDI of 365, because that

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is the SDI at which Ponderosa pine stands suffer losses when bark

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beetles are present.

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of the project is specifically to thin to 60% of SDI 365 (not SDI-

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Max, or SDI-limiting).

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sufficient to cure the NEPA violation identified in the Court‟s

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injunction order, it was this transparency and disclosure that the

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Court identified as missing from the previous EA.

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SDI 365 did not constitute the NEPA violation, rather it was the

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misrepresentation to the public that SDI 365 was the SDI-Max for

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Ponderosa pines, not SDI 571, (when the Champs Project was

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allegedly designed based on the SDI-Max), that the Court found to

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be arbitrary and capricious in violation of NEPA.

ARS 000056.

The SEA clarifies that the goal

While Plaintiff does not view this as

Use of the value

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In addition to SDI, the SEA also discussed other issues of

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contention that had been raised previously in litigation, in an

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attempt by the Forest Service to clarify the project for the public

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and to avoid future litigation.

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Forest Services‟ use of basal area data and the methodology used to

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calculate basal area figures provided in the EA, the role of the

The SEA explains the basis for the

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Blackwell Memo in development of the EA, the EA‟s consideration of

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a range of alternatives to the project, the impact of the project

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on snags and wildlife, and conifer regeneration after group

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selection.

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The Court has reviewed the administrative record, and in oral

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argument the parties discussed at length the various studies upon

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which the Forest Service relied.

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deference given to an agency‟s decisions, the Court defers to the

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Forest Service and its analysis as presented in the SEA.

Because of the high level of

See e.g.

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River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th

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Cir. 2010) (“The agency‟s action need only be a reasonable, not the

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best or most reasonable, decision”); Marsh v. Or. Natural Res.

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Council, 490 U.S. 360, 378 (1989) (“when specialists express

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conflicting views, an agency must have discretion to rely on the

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reasonable opinions of its own qualified experts, even if as an

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original matter, a court might find contrary views more

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persuasive.”).

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to ensure that the agency, in reaching its decision, will have

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available, and will carefully consider, detailed information

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concerning significant environmental impacts.”

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U.S. 7, 23 (2008) (internal quotations omitted).

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simply guarantees a particular procedure, not a particular result.”

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Ohio Forestry Ass‟n v. Sierra Club, 523 U.S. 726, 737 (1998).

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Further, “NEPA imposes only procedural requirements

Winter v. NRDC, 555
“NEPA . . .

The Forest Service based the Champs Project on studies and

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research that support it.

While Plaintiff disagrees with the

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science relied on by the Forest Service, this Court must give

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deference to Defendants, as they relied on their experts and took

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reasonable actions.

The Forest Service did not act arbitrarily or
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capriciously in designing the Champs Project to maintain SDI levels

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below 365.

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SDI 365 in designing the Champs project, and the disclosure to the

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public in the SEA regarding use of this value, is no longer in

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violation of NEPA.

Accordingly, the Court finds that Defendants‟ use of

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C.

Issues Not Previously Addressed

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The Court turns next to the argument that additional issues

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previously raised by Plaintiff, but not addressed by the Court,

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constitute NEPA violations for which this Court should keep the

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current injunction in place.
First, Plaintiff argues that Defendants failed to adequately

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consider a reasonable range of alternatives.

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developed nine alternative plans, and ultimately selected the

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current project from among the nine alternatives.

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asserts that the Forest Service arbitrarily dismissed from detailed

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consideration two less intensive alternatives which Plaintiff

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favors, constituting a violation of NEPA not cured by the SEA.

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Plaintiff further argues that the Forest Service restricted full

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consideration of alternatives so it could implement the Blackwell

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Memo.

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The Forest Service

Plaintiff

The Forest Service argues that since the purpose of the

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project includes improving forest health, reducing the risk of tree

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mortality from bark beetle infestations, and contributing to

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community economic stability (see ARS 000068 describing the six

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elements of the Purpose and Need statement), it considered, but

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ultimately eliminated from detailed consideration those

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alternatives that did not meet all three criteria in the stated

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purpose of the project.

Additionally, the SEA specifically
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addresses the Blackwell Memo and notes that the Forest Service did

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not rely on this memo as setting forth binding direction, ARS

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000066, nor did it eliminate any alternatives from detailed

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consideration because of the memo.

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ARS 000069.

The SEA explains the Forest Service‟s consideration of each of

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the alternatives, including those alternatives that Plaintiff

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favors.

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choosing the alternative that was ultimately selected.

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does not find the Forest Service‟s review of alternatives, or

The SEA also explains the Forest Service‟s reasons for
This Court

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choice of alternative 9+, to be “arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law.”

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§ 706(s)(A); see Ecology Ctr., Inc., 430 F.3d at 1062.

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courts have afforded agencies considerable discretion to define the

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purpose and need of a project.

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of the Interior, 376 F.3d 853, 866 (9th Cir. 2004) (discussing

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evaluation of an Environmental Impact Statement); Friends of Se.‟s

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Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998) (same).

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Accordingly, under the narrow and deferential standard of review

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that this Court must follow, the Forest Service did not violate

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NEPA when it considered a range of alternatives and selected the

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current project.

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5 U.S.C.
Further,

Westlands Water Dist. v. U.S. Dep‟t

Next, Plaintiff argues that Defendants used inaccurate basal

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area methods and analysis in developing the EA and SEA, thus

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violating NEPA.

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determining which stands to thin were discussed at length at the

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hearing, as well as in the papers.

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methodology, including the decision not to compare current and

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historic basal area densities, and the exclusion from analysis of

Defendants‟ basal area calculations used in

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The SEA explains Defendants‟

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data plots with 60 square feet of basal areas or less.

The project

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proposes to thin only areas that exceed 60 square feet of basal

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area, thus the Forest Service analyzed data only for plots that it

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intends to thin.

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its modeling program, and developed basal area goals to achieve

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desired future conditions for increased forest health and decreased

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fire risk.

The Forest Service used the basal area data in

ARS 000062-63.

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While such methodology and analysis may not be Plaintiff‟s

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preferred methodology, or even the methodology and analysis the

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Court would have chosen to employ, the Court finds that Defendants‟

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basal area methodology and analysis does not violate NEPA.

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reviewing court‟s task is to “insure a fully informed and well-

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considered decision, not necessarily a decision that [the court]

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. . . would have reached had [it] been [a] member of the decision

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making unit of the agency.”

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NRDC, 435 U.S. 519, 558 (1978).

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from analysis data plots with basal areas of 60 square feet or

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less, and their decision not to compare historical and current

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basal area densities, were informed and well considered decisions,

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carefully explained in the SEA, and do not constitute

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violations.

The

Vt. Yankee Nuclear Power Corp. v.
Defendants‟ decision to exclude

NEPA

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Lastly, Plaintiff argues that the EA and SEA do not

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sufficiently analyze the project‟s future adverse impacts to

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cavity-nesting wildlife.

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allegation, by including a lengthy section discussing the potential

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impact of the project on snag retention and recruitment, and cavity

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nesting wildlife.

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studies included in the administrative record, analyzed effects of

The SEA specifically addressed this

See ARS 000074-86.

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The SEA, making reference to

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the project on birds and other cavity nesting wildlife, and

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determined that neither snag recruitment and retention nor snag-

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dependent species would be significantly affected by the project,

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in the short or long term.

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and asserts that it is inadequate.

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analysis to be reasonable and based on detailed information

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considered by the Forest Service.

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arbitrarily or capriciously in analyzing the Champs Project‟s

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impact on snags and snag-dependant wildlife and selecting it as an

Plaintiff disagrees with the analysis
However, the Court finds the

The Forest Service did not act

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appropriate project that would not significantly impact such

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species.

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In sum, having carefully reviewed all issues raised by the

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parties, the Court finds that Defendants have satisfied the

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judgment, and dissolution under Rule 60(b)(5) is appropriate.

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In its brief in opposition to the motion to dissolve the

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injunction, Plaintiff also contends that the injunction should not

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be dissolved because the Forest Service has not analyzed the

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effects of two other nearby projects (Ebey and Cowbell) on the

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Champs Project.

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dissolving the injunction, to allow Plaintiff to amend or

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supplement its complaint to include argument on the issues

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discussed above as well as argument that the SEA does not analyze

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the cumulative effects of nearby projects.

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oral argument, the parties already briefed, at summary judgment and

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for the current motion, sufficient argument on the issues that were

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not previously decided by the Court.

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concluded that none of the resource areas or species considered in

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[the Champs or Ebey projects] overlapped with the other project.

Plaintiff asks the Court to stay any order

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As the Court stated at

Further, the Forest Service

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ARS 223-24.

NEPA requires agencies to consider the impact on the

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environment which results from the incremental impact of the action

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when added to other past, present, and reasonably foreseeable

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future actions.

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305 F.3d 957, 972 (9th Cir. 2002); 40 C.F.R. § 1508.7.

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did not identify any effects from the nearby projects that would

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have a cumulative impact on the Champs Project, and the Court will

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not stay dissolution of the injunction for this undeveloped claim.

See Idaho Sporting Congress, Inc. v. Rittenhouse,
Plaintiff

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III. ORDER
For the reasons set forth above, Defendants‟ Motion to

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Dissolve the Injunction is GRANTED.

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effective the date of this order.

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The injunction is dissolved

IT IS SO ORDERED.
Dated: September 26, 2011

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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