Conservation Congress v. United States Forest Service et al

Filing 87

ORDER signed by Judge Lawrence K. Karlton on 3/21/2014 DENYING 77 Motion for Temporary Restaining Order. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,

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CIV. S-11-2605 LKK/EFB

Plaintiff,

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No.

v.

ORDER

UNITED STATES FOREST SERVICE,

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Defendant.

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and

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SIERRA PACIFIC INDUSTRIES,

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Defendant
Intervenor.

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Plaintiff Conservation Congress sues defendant United States

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Forest Service and defendant-intervenor Sierra Pacific

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Industries, alleging that the Forest Service, in approving a

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challenged timber project, failed to adequately consider that

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project’s impacts on the habitat of the northern spotted owl.

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Plaintiff’s action arises under the National Environmental Policy

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Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.

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///
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Plaintiff now moves for a temporary restraining order

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enjoining the project. The parties stipulated to waive oral

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argument (originally set for Wednesday, March 19, 2014) and

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instead submitted the motion on the papers. (ECF No. 84.) Having

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considered the parties’ submissions and the record, the court

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will deny the motion, for the reasons set forth below.

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I.

BACKGROUND
A. Statutory Background

The court begins by noting relevant aspects of NEPA and its

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implementing regulations, in order to provide context for the

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discussion that follows.

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NEPA is intended to “ensure[] that federal agencies are

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informed of environmental consequences before rendering decisions

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and that the information is available to the public.” Okanogan

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Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.

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2000). “NEPA imposes only procedural requirements on federal

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agencies with a particular focus on requiring agencies to

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undertake analyses of the environmental impact of their proposals

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and actions.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

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756-57 (2004).

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Under NEPA, federal agencies must prepare an Environmental

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Impact Statement (“EIS”) prior to undertaking “major Federal

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actions significantly affecting the quality of the human

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environment.” 42 U.S.C. § 4332(C). The EIS must address

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(i) the environmental impact of the proposed
action,
(ii) any adverse environmental effects which
cannot be avoided should the proposal be
implemented,
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(iii) alternatives to the proposed action,

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(iv) the relationship between local shortterm uses of man's environment and the
maintenance and enhancement of long-term
productivity, and

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(v)
any
irreversible
and
irretrievable
commitments of resources which would be
involved in the proposed action should it be
implemented.

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Id.
Regulations promulgated under NEPA provide that an EIS must

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consider “[i]mpacts, which may be (1) [d]irect; (2) indirect;
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[or] (3) cumulative.” 40 C.F.R. § 1508.25(c).1 A “direct effect”
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is one “caused by the action and occur[ring] at the same time and
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place.” 40 C.F.R. § 1508.8(a). An “indirect effect” is both:
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caused by the action and ... later in time or
farther removed in distance, but [is] still
reasonably foreseeable. Indirect effects may
include growth inducing effects and other
effects related to induced changes in the
pattern of land use, population density or
growth rate, and related effects on air and
water and other natural systems, including
ecosystems.

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40 C.F.R. § 1508.8(b). A “cumulative impact” is:

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the impact on the environment which results
from the incremental impact of the action
when added to other past, present, and
reasonably
foreseeable
future
actions
regardless of what agency (Federal or nonFederal) or person undertakes such other
actions. Cumulative impacts can result from
individually
minor
but
collectively

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“Effects and impacts as used in these regulations are
synonymous.” 40 C.F.R. § 1508.8. Accordingly, and in keeping with
the jurisprudence in this area, this order uses the terms
“effect” and “impact” interchangeably.
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significant actions
period of time.

taking

place

over

a

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40 C.F.R. § 1508.7 (emphasis added).
A cumulative impacts analysis “must be more than

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perfunctory; it must provide ‘a useful analysis of the cumulative

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impacts of past, present, and future projects.’” Kern v. U.S.

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Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002)

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(quoting Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d

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800, 810 (9th Cir. 1999)). Nevertheless, “none of NEPA’s

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statutory provisions or regulations requires the Forest Service

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to affirmatively present every uncertainty in its EIS.” The Lands

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Council v. McNair, 537 F.3d 981, 1001 (9th Cir. 2008) (en banc),

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overruled on other grounds by Winter v. Natural Res. Def.

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

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Review of an EIS is governed by the Administrative Procedure

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Act (“APA”). Agency actions may be properly overturned where they

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are “arbitrary, capricious, an abuse of discretion, or otherwise

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not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review under

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the arbitrary and capricious standard is narrow, and we do not

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substitute our judgment for that of the agency.” McNair, 537 F.3d

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at 987 (internal quotation omitted).

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B. Factual & Procedural Background

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The following allegations are taken from (i) publicly-

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available documents, (ii) the prior record herein, and (iii) the

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declarations of the parties offered in support of, and in

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opposition to, the instant motion.

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The Mudflow Vegetation Management Project (“Mudflow

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Project”) was developed by defendant Forest Service, and is

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directed at the McCloud Flats area of the Shasta-Trinity National

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Forest. (MAR000195.)2 The Mudflow Project is located in Siskiyou

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County; the project is under the auspices of the Forest Service

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office in Shasta County. (First Supplemental Complaint ¶ 10, ECF

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No. 40.)

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The final EIS for the Mudflow Project, dated May 2011
(“Final EIS”), identifies problems such as overstocking,

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heightened risk of fire, and areas of root disease in the

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designated Project area. (MAR000195-196.) The Forest Service

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therein proposes to ameliorate these conditions by applying

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various “treatments” to the area, such as thinning overstocked

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stands of trees, sanitizing stands infected with disease,

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restoring wet meadow ecosystems, and burning. (MAR000197.) The

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Final EIS provides that the preferred plan would treat 2957 acres

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(out of 13,830 total acres) in the Mudflow Project area.

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(MAR000195.)

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Late-successional forests, such as those found in the

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Project area, provide habitat for the northern spotted owl. The

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Fish & Wildlife Service listed the northern spotted owl as a

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threatened species on January 15, 1992. 57 Fed.Reg. 1796–1838. No

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northern spotted owls have been detected in surveys conducted in

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the Mudflow Project area between 2004 and 2013. (MAR000585;

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MAR0002421; MAR010628; Bachmann Decl. ¶ 5, ECF No. 85-1.)

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Throughout this Order, the Forest Service administrative record
is cited as “MAR,” followed by the relevant page number. The
administrative record was lodged with the court in February 2012.
(ECF No. 36.)
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Defendant-intervenor Sierra Pacific is responsible for

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carrying out various Mudflow Project treatments pursuant to a

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timber sale contract with the Forest Service. (Bachmann Decl.

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¶ 6.)

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Plaintiff initiated this action on October 3, 2011, naming

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Fish & Wildlife and the Forest Service as defendants. (ECF

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No. 1.) On November 21, 2011, Sierra Pacific moved to intervene;

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on December 15, 2011, the court granted Sierra Pacific’s motion.

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(ECF Nos. 13, 22.)

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On March 22, 2012, plaintiff filed the operative First

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Supplemental Complaint. (“FSC,” ECF No. 40.) The FSC set forth

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claims under NEPA and the Endangered Species Act (“ESA”), brought

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against Fish & Wildlife, the Forest Service, and Sierra Pacific.

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On April 9, 2012, plaintiff moved for a preliminary

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injunction under the ESA, claiming that the Forest Service

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violated ESA Section 7(a)(2) by failing to engage in formal

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consultation with Fish & Wildlife regarding the Mudflow Project.

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(ECF Nos. 43, 44.) Plaintiff sought to enjoin both federal

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agencies “from commencing or implementing the Mudflow Project or

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any portion thereof until this case is fully resolved on the

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merits.” (ECF No. 45.) On June 19, 2012, the court denied the

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motion, on the grounds that plaintiff had failed to establish a

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probability of success on the merits of its ESA claims.

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Conservation Congress v. U.S. Forest Service, No. CIV S–11–2605

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LKK/EFB, 2012 WL 2339765, 2012 U.S. Dist. LEXIS 84943 (E.D. Cal.

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Jun. 19, 2012). Specifically, the court held that neither the

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Forest Service nor Fish & Wildlife had acted in an arbitrary and

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capricious manner in determining that the Mudflow Project was not
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likely to adversely affect the northern spotted owl, and on those

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grounds, declining to enter into formal consultation. On June 13,

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2013, the Ninth Circuit affirmed, finding that plaintiff’s

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“challenge to the district court’s denial of its preliminary

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injunction [wa]s premised on a misunderstanding of regulatory

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terms, an unsupported reading of a duty to consider cumulative

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effects under ESA section 7(a)(2), and selected portions of the

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record taken out of context.” Conservation Congress v. U.S.

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Forest Service, 720 F.3d 1048, 1058 (9th Cir. 2013).

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Subsequently, on February 10, 2014, plaintiff voluntarily

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dismissed its ESA claims, and also dismissed Fish & Wildlife as a

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defendant. (ECF No. 73.) At present, the Forest Service remains

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as a defendant and Sierra Pacific remains as defendant-

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intervenor; plaintiff’s sole claim arises under NEPA.

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To date, Sierra Pacific has completed work on approximately

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1585 acres (out of 2957 total acres) proposed for treatment under

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the Mudflow Project. (Bachmann Decl. ¶ 10.) Sierra Pacific had

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previously ceased work on the Mudflow Project in mid-March 2013.

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(Hadley Decl. ¶ 8, ECF No. 82.) On January 14, 2014, plaintiff’s

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counsel was informed that Sierra Pacific would not resume Mudflow

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Project operations until “late summer” of 2014. (Dugan Decl. ¶ 3,

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ECF No. 77-5.) She began working with opposing counsel on a

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briefing schedule for cross-motions for summary judgment on

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plaintiff’s NEPA claims. (Id. ¶ 5.) On March 6, 2014, plaintiff’s

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counsel was informed that Sierra Pacific had changed its start

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date for resuming operations, to March 13, 2014. (Id. ¶ 6.) On

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March 11, 2014, plaintiff’s counsel was informed that the date

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had changed again, to March 24, 2014. (Id. ¶ 13.)
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Sierra Pacific’s Division Timber Manager justifies the new
start date as follows:

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[Sierra Pacific] needs to resume Mudflow
operations now for several reasons. First,
whereas unusually adverse weather conditions
in California (severe drought followed by
torrential rains) have constrained [Sierra
Pacific]’s operations on other projects, the
Mudflow
Project
is
currently
operable.
Extremely heavy rains that have left other
projects with saturated soils have drained
from the Mudflow Project's sandy soils.
Because of the unusual weather constraints
elsewhere,
[Sierra
Pacific]’s
logger
currently is without work, leaving at least
20 workers idle and unable to earn family
wages. This situation, coupled with the lack
of a snow pack on Mt. Shasta which bodes
extremely ill for the upcoming fire season
and likely will halt late summer operations,
calls for operating the Mudflow Project now.
(Hadley Decl. ¶ 9.)

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On March 13, 2014, plaintiff filed the instant motion for a TRO,

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seeking an order that would enjoin the Forest Service and Sierra

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Pacific “from proceeding with the Mudflow timber sale pending a

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final decision on the merits of this case. No bond is required.”3

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(Proposed Order, ECF No. 77-12.)

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While no means dispositive of the questions presented herein, it
bears mention that plaintiff is aware that this TRO is a long
shot. In its points and authorities in support of its 2012 motion
for a preliminary injunction, plaintiff wrote, “In candor, if
Conservation Congress cannot obtain preliminary injunctive relief
under the more generous standards provided by ESA, the premise of
its first two claims for relief, it would be unlikely to obtain
such relief under [NEPA], the premise of its third claim for
relief. [. . .] Conversely, because Conservation Congress
believes it satisfies the modified standard for injunctive relief
found in the ESA, arguing alternatively is unnecessary.” (ECF No.
44 at 7 n. 1.) On appeal, in its opening brief to the Ninth
Circuit, plaintiff wrote, “Candidly, Conservation Congress moved
only on its ESA claims because it believed that if it could not
prevail on a motion for preliminary injunction under the more
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II.

STANDARD

The issuance of injunctions and of temporary restraining

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orders is governed by Federal Rule of Civil Procedure 65.4 The

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standard for issuing a temporary restraining order is essentially

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the same as that for issuing a preliminary injunction. See

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Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832,

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839 n.7 (9th Cir. 2001) (stating that the analysis for temporary

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restraining orders and preliminary injunctions is “substantially

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identical”). The moving party must demonstrate that (1) it is

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likely to succeed on the merits; (2) it is likely to suffer

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irreparable harm in the absence of preliminary relief; (3) the

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balance of equities tips in its favor; and (4) that the relief

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sought is in the public interest. Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has held

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that injunctive relief may issue, even if the moving party cannot

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show a likelihood of success on the merits, if “serious questions

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going to the merits and a hardship balance that tips sharply

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toward the plaintiff can support issuance of an injunction,

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assuming the other two elements of the Winter test are also met.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

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(9th Cir. 2011) (internal quotation omitted).
The moving party bears the burden of persuasion, and must

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make a clear showing that it is entitled to such relief. Winter,

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generous standards of the ESA, discussed below, it was unlikely
to do so under NEPA.” (Pl. 9th Cir. Op. Br., 2012 WL 3342647 at
*10 n. 1.) In plaintiff’s defense, it was not represented by its
current lead counsel at the time those briefs were authored.

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Hereinafter, the term “Rule” refers to the applicable Federal
Rule of Civil Procedure.
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555 U.S. at 22.

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In deciding whether to issue a TRO, the district court “may

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give even inadmissible evidence [including hearsay] some weight,

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when to do so serves the purpose of preventing irreparable harm

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before trial.” Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394

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(9th Cir. 1984).

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Every temporary restraining order must:

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(A) state the reasons why it issued;

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(B) state its terms specifically; and

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(C) describe in reasonable detail — and not by
referring to the complaint or other document — the
act or acts restrained or required.

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Rule 65(d)(1).
III.

ANALYSIS

Plaintiff essentially makes two arguments for issuance of a

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TRO: first, that the Forest Service failed to analyze the

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cumulative impact of several major timber sales near the Mudflow

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Project in the Final EIS, and second, that the Final EIS fails to

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discuss cumulative impacts in any meaningful detail. These

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arguments are addressed in turn below.

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According to plaintiff, it is likely to succeed on the

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merits of its NEPA claim because “[t]he Forest Service failed to

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identify several major timber sales in the area, and failed to

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conduct any analysis of their cumulative effects.” (Mot. 19, ECF

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No. 77.) Plaintiff claims to have identified “ongoing and

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reasonably foreseeable timber sales in close geographic proximity

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to the Mudflow [Project], which the Forest Service did not fully

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identify or address in its cumulative impacts analysis.” (Id.)

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The timber sales in question, whose cumulative impacts plaintiff

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claims the Final EIS does not adequately address, are termed:

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1. Harris Vegetation Management Project

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2. Porcupine Vegetation and Road Project

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3. Thimbleberry I

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4. Thimbleberry II

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5. Bordertown (Mot. 20.)

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As will be seen, plaintiff’s argument does not support its

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motion.

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The Final EIS delineates the following cumulative effects

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analysis area: “Cumulative effects for the northern spotted owl

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are bounded by the Critical Habitat Unit (CHU) CA-2 which

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encompasses approximately 89,028 acres of National Forest and

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private lands.” (MAR 000299.) A map on page 95 of the Final EIS

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shows the Mudflow Project area in relation to CHU CA-2. (MAR

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000300.) The Final EIS notes, accurately, that “the Mudflow

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Project is almost entirely within” the boundaries of CHU CA-2.

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(MAR 000301.)

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Plaintiff does not raise a challenge under the APA to the

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agency’s determination of CHU CA-2 as the appropriate area for

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the cumulative effects analysis (whether as arbitrary and

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capricious, or as an abuse of discretion). Further, the Ninth

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Circuit has recognized that challenges to the geographic scope of

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an EIS are distinct from, rather than implicit in, a cumulative

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impacts analysis. “In this appeal, Plaintiffs argue that the

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geographic scope of the Service’s EIS for this project is too

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small. This does not appear to be a cumulative impact challenge.”

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Inland Empire Pub. Lands Council v. U.S. Forest Service, 88 F.3d
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754, 764 (9th Cir. 1996) (emphasis in original). Finally, it is

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well-settled that the determination of a cumulative effects

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analysis area is a domain in which agencies are entitled to

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deference. “Cumulative environmental impacts are, indeed, what

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require a comprehensive impact statement. But . . .

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identification of the geographic area within which they may

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occur, is a task assigned to the special competency of the

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appropriate agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 413-

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14 (1976). Accord Native Ecosystems Council v. Dombeck, 304 F.3d

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886, 902 (9th Cir. 2002) (“We acknowledge that the determination

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of the scope of an analysis area requires application of

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scientific methodology and, as such, is within the agency’s

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discretion”) (citing Kleppe). More than twelve pages of the Final

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EIS are devoted to an analysis of cumulative impacts within CHU

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CA-2. (MAR000299 – MAR000312). The Forest Service therein

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explains its choice of boundaries as follows:

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Given the uncertainty around the [2008
northern spotted owl] Recovery Plan and the
designation of critical habitat for the
[northern spotted owl], the Forest [Service]
has chosen to use the larger and more
comprehensive 1992 critical habitat boundary
for
cumulative
effects
analysis.
This
boundary not only encompasses the 2008
boundaries in this area, it also has the
greatest probability of including as much of
the
upcoming
proposed
critical
habitat
boundary, expected within the next year.
(MAR000300.)

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This is a reasoned justification for the boundaries chosen. Given

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the foregoing, and the absence of any argument to the contrary by

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plaintiffs, the court declines to second-guess the Forest

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Service’s selection of CHU CA-2 as the appropriate cumulative

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effects analysis area.

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Having accepted the validity of the boundaries chosen by the

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Forest Service, the court must reject plaintiff’s argument that

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the agency violated NEPA by failing to consider the cumulative

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impacts of the Harris Vegetation Management Project and the

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Porcupine Vegetation and Road Project. Defendant-intervenor

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Sierra Pacific has provided maps showing the location of these

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projects in relation to CHU CA-2. (Weiss Decl. Exhs. 2 & 3, ECF

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Nos. 83-2 & 83-3.) Both Projects appear to be sited outside of

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CHU CA-2’s boundaries, and therefore, exempt from the cumulative

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effects analysis. Similarly, while there is no question that the

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Thimbleberry I timber harvesting project was publicly noticed on

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October 9, 2009 (Dugan Decl. Exh. B, ECF No. 77-7), i.e., well

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before the May 2011 release of the Final EIS, nevertheless,

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according to both the Forest Service and Sierra Pacific,

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Thimbleberry I lies on land outside of the CHU CA-2 cumulative

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effects analysis area. (Forest Service Oppo. 19; Sierra Pacific

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Oppo. 20.) Accordingly, this project is also exempt from the

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cumulative effects analysis.

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What remains are the timber harvesting plans which plaintiff

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terms Thimbleberry II and Bordertown. It appears that

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Thimbleberry II was publicly noticed on January 8, 2014, and

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Bordertown on August 1, 2013. (Dugan Decl. Exhs. A & C, ECF Nos.

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77-6 & 77-8.) NEPA regulations define “reasonably foreseeable

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future actions” as “[t]hose Federal or non-Federal activities not

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yet undertaken, for which there are existing decisions, funding,

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or identified proposals.” 36 C.F.R. § 220.3. The Forest Service
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is under no statutory or regulatory obligation to consider

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actions which are not reasonably foreseeable in its cumulative

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impacts analysis. Given that the Final EIS was issued on May

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2011, the notice dates for Thimbleberry II and Bordertown

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indicate that neither project was a reasonably foreseeable future

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action at the time the Final EIS issued on May 2011.

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Plaintiff also claims that “[y]et other projects are named

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(Algoma, Moosehead, Elk, McCloud Flats), but not described or

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analyzed” in the Final EIS. (Mot. 20.) This contention is

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demonstrably false. A table on page 101 of the Final EIS

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quantifies projected effects of the Algoma and Moosehead projects

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on northern spotted owl habitat. (MAR 000306). A map on the

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following page displays all four of the named projects in spatial

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relation to CHU CA-2. (MAR 000307.) The accompanying text

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provides that “[t]he USFWS consulted with the Forest on . . .

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the . . . Algoma Vegetation Management Project[]; the other three

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projects are in the planning and analysis stage.” (Id.) Further

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analysis of the Algoma Project is set forth on page 103 of the

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Final EIS. (MAR000308.) As for the Elk and East McCloud Projects,

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defendant Forest Service contends:

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[T]he [] Final EIS explains that effects
analyses for the Elk and East McCloud
Projects were incomplete at the time of the
[] Final EIS, therefore the amount of habitat
affected, and the nature of those effects,
were not yet known. [MAR000101]. Forest
Service NEPA regulations define reasonably
foreseeable future actions as “Federal or
non-Federal activities not yet undertaken,
for which there are existing decisions,
funding, or identified proposals.” 36 C.F.R.
§ 220.3. “Identified proposals” for Forest
Service actions are those where the Forest
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Service “is actively preparing to make a
decision on one or more alternatives . . .
and
the
effects
can
be
meaningfully
evaluated.” 36 C.F.R. § 220.4(a)(1). Because
the Forest Service has not yet reached this
stage for either the Elk or East McCloud
Projects where no draft EIS had been prepared
yet for either project, the Forest Service
was not required to speculate regarding the
potential effects of either project. (Forest
Service Oppo. 20-21, ECF No. 85.)

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The Forest Service’s supporting citation to Envtl. Prot. Info.

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Ctr. v. U.S. Forest Service, 451 F.3d 1005, 1014 (9th Cir. 2006)

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(holding that it was not arbitrary and capricious for the Forest

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Service to omit a project whose parameters were unknown from a

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cumulative impacts analysis) appears apt. In short, the Final

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EIS’s treatment of the four challenged projects (Algoma,

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Moosehead, Elk, and East McCloud) appears sufficient to meet NEPA

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standards for a cumulative impact analysis. Plaintiff’s argument,

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that the Forest Service was required, but failed, to take these

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projects into account in its analysis, is unavailing.

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Plaintiff’s second argument, that the Forest Service

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“omitted any meaningful discussion of cumulative impacts from its

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decision making” (Mot. 21), also appears to be without merit.

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Plaintiff supports its argument by again asserting that the

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Forest Service failed to include additional timber sales projects

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within the cumulative effects analysis area. But as plaintiff

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does not identify the allegedly-omitted sales projects with any

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specificity, this assertion fails.

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Plaintiff’s final argument is difficult, if not impossible,
for this court to parse. It provides:

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With respect to the [northern spotted owl],
the Forest Service concludes “[t]here will be
no direct effects to the northern spotted owl
under all action alternatives, there is no
activity proposed within 1/4 mile of any
known activity center.” MAR000293. In fact,
the Forest Service takes the position that
removing
understory
will
help
[northern
spotted
owls]
fly
through
what
it
characterizes
as
“dense
and
relatively
impassible.” [sic] MAR 000293. The agency
asserts that the Preferred Alternative (Alt.
2) “will degrade 1,720 acres of existing
[northern spotted owl] foraging habitat by
reducing canopy cover but the habitat will
continue to function, and will be improved by
thinning
treatments
that
open
up
the
understory.”
MAR000295.
The
Preferred
Alternative is 2,957 acres so about 60% of
the project would affect [northern spotted
owl] habitat. While the Forest Service
purported to evaluate the cumulative effects
of other areas on [northern spotted owl]
habitat under the ESA, it did not do so under
NEPA.5 MAR000299. Lastly, the Forest Service
recognized that since 2003, six projects
within CHU CA-2 have temporarily degraded
6,514 acres of foraging/dispersal habitat
(22% of the habitat). MAR000303. The Mudflow
[P]roject would degrade 6,465 more acres and
remove 673 acres, so another 22% of the CHU
will be affected. MAR000310. Despite nearly
50%
of
the
[northern
spotted
owl]
foraging/dispersal
habitat
affected,
the
Forest Service does not further evaluate
cumulative impacts. (Mot. 22-23.)

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3
4
5
6
7
8
9
10
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12
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14
15
16
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20
21
22

One can only speculate as to what this paragraph means. The

23

court’s previous decision herein, as affirmed by the Ninth

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5

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26
27
28

This may be a reference to a sentence in the Final EIS which
provides, “All private timber harvest plans must be reviewed by
the State of California with consultation from the U.S. Fish and
Wildlife Service (USFWS) under section 9 of the Endangered
Species Act for the possibilities of prohibited take.”
(MAR000299.) This is the only reference to the ESA on the cited
page. It is also an inarguable statement of applicable law.
16

1

Circuit, made clear that plaintiff’s argument therein “h[ung]

2

upon its conflation of the technical and colloquial meanings of

3

the word ‘degrade.’” Conservation Congress, 2012 WL 2339765 at

4

*12, 2012 U.S. Dist. LEXIS 84943 at *38. Something similar

5

appears to be going on in this paragraph, given plaintiff’s

6

interchanging of the terms “degrade” and “affect.” The Final EIS

7

makes clear that “‘degrading’ is a categorical term used by the

8

[U.S. Fish & Wildlife Service] that does not necessarily refer to

9

a loss of habitat value. Habitat ‘degradation’ is used by the

10

USFWS in their [northern spotted owl] tracking system to denote

11

actions taken in habitat that maintain existing [northern spotted

12

owl] habitat functionality (i.e., ‘degraded’ foraging habitat

13

does remain fully functional as foraging habitat).” (MAR000303.)

14

In other words, the Forest Service’s use of the term “degrade” in

15

the passages quoted by plaintiff is not alarming. And,

16

ultimately, nothing presented in the quoted paragraph convinces

17

the court that plaintiff has demonstrated any likelihood of

18

success on its cumulative impact claim under NEPA.

19
20

IV.

CONCLUSION
In light of the foregoing, the court hereby orders that

21

plaintiff Conservation Congress’s motion for a temporary

22

restraining order is DENIED.

23

IT IS SO ORDERED.

24

DATED:

March 21, 2014.

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27
28
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