Soda Mountain Wilderness Council et al v. U.S. Bureau of Land Management

Filing 42

ORDER: Denying Motion for a Preliminary Injunction 14 ). Signed on 10/9/2012 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
SODA MOUNTAIN WILDERNESS COUNCIL;
OREGON WILD; KLAMATH SISKIYOU
WILDLANDS CENTER; CENTER FOR
BIOLOGICAL DIVERSITY; and CASCADIA
WILDLANDS PROJECT,

1:12-cv-1171-CL
ORDER

Plaintiffs,

v.
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendant,
MURPHY COMPANY,
Defendant-Intervenor.

PANNER, District Judge:

Plaintiffs claim that the U.S. Bureau of Land Management
(BLM) violated the National Environmental Policy Act (NEPA) and

1

- ORDER

the Federal Land and Policy Management Act (FLPMA) by proceeding
with the Cottonwood Forest Management Project, a timber sale that
would allow logging on 1,108 acres of BLM-managed forest near
Ashland, Oregon.
Plaintiffs now seek a preliminary injunction to halt the
Cottonwood timber sale.

I deny the motion.
BACKGROUND

The Cottonwood timber sale is on "Matrix" land, which is
land designated by the Northwest Forest Plan 1 as "'unreserved
areas .

in which timber harvest may go forward subject to

environmental requirements.'"

Or. Natural Res. Council Fund v.

Brong, 492 F.3d 1120, 1126 (9th Cir. 2007)

(quoting Seattle

Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1305 (W.O. Wa. 1994),
aff'd, 80 F.3d 1401 (9th Cir. 1996)

(per curiam)).

Portions of

the timber sale area are governed by the Oregon and California
Lands Act (O&C Act).

43 U.S.C.

O&C Act, "the primary use .

§

1181a.

For land subject to the

is for timber production to be

managed in conformity with the provision of sustained yield."
O'Neal v. U.S., 814 F.2d 1285, 1287
Inc. v. BLM,

(9th Cir. 1987); Headwaters,

914 F.2d 1174, 1183 (9th Cir. 1990).

BLM issued a revised Environmental Assessment (EA) , which

1

The "Northwest Forest Plan .
. establishes consistent
management of federal lands within the range of the northern
spotted owl." LOWD v. U.S. Forest Serv.,
F. Supp. 2d
2012 WL 3255083, at <*15 n.25 (D. Or. Aug. 10, 2012)
2 - ORDER

explains the objectives of the Cottonwood timber sale.

The EA

states that the sale is intended (1) to ensure sustainable forest
production by managing forests to improve forest vigor and
growth, and to reduce the risk of loss from animals, insects, and
disease;

( 2) to supply forest products from Matrix lands;

maintain stand structure for nesting, roosting, foraging,

( 3) to
and

dispersal habitat within spotted owl habitat; and (4) to maintain
a transportation system in the sale area.
BLM issued a Finding of No Significant Impact, concluding
that it did not need to prepare an Environmental Impact
Statement.

BLM authorized the Cottonwood timber sale with a

Decision Record, and later awarded the timber sale to intervenordefendant Murphy Co.
LEGAL STANDARDS

I.

Preliminary Injunctions

The party seeking a preliminary injunction "must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor,
injunction is in the public interest."
Def. Council,

Inc.,

555 U.S.

7,

20

and that an

Winter v. Natural Res.

(2008).

"A preliminary

injunction is an extraordinary remedy never awarded as of right."
Id. at 24.

3. -

ORDER

II.

Judicial Review under the Administrative Procedure Act

Under the Administrative Procedure Act

(APA), this court may

set aside a federal agency's decision if the decision is
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law .

II

5 U . S . C . § 7 0 6 ( 2 ) (A) .

An

agency's decision is arbitrary and capricious if the agency
relied on factors Congress did not intend it to
consider, 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.
Lands Council v. McNair, 537 F.3d 981,
bane)

987

(9th Cir. 2008)

(en

(internal quotation marks omitted), overruled in part on

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

Before a court may overturn

an agency's decision under this standard,
the court must consider whether the decision was based
on a consideration of the relevant factors and whether
there has been a clear error of judgment. Although
this inquiry into the facts is to be searching and
careful, the ultimate standard of review is a narrow
one.
The court is not empowered to substitute its
judgment for that of the agency.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
(1971)
III.

(citations omitted).
Judicial Deference to Agency Expertise

In Lands Council, the en bane Ninth Circuit provided
guidance for the judicial review of agency decisions, which is
particularly applicable to environmental actions.

Courts must

defer to an agency's analysis when the agency's resolution of the

4 - ORDER

issue required "'a high level of technical expertise.'"
Council, 537 F.3d at 993

(quoting Selkirk Conservation Alliance

v. Forsgren, 336 F.3d 944,
omitted).

Lands

954

(9th Cir. 2003)

(further citation

Courts should be at their most deferential when the

agency is "'making predictions, within its [area of] special
expertise, at the frontiers of science.'"

Id.

(quoting Forest

Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir.
2003)

(brackets in Lands Council)).

Courts may not impose their

own ideas "'of which procedures are "best" or most likely to
further some vague, undefined public good.'"

Id.

(quoting

Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)
(further citation omitted)).

Courts also may not impose

procedural requirements that are not "'explicitly enumerated in
the pertinent statutes.'"
Tyrrel,

918 F.2d 813, 818

Id.

(quoting Wilderness Soc'y v.

(9th Cir. 1990)).
DISCUSSION

I.

Plaintiffs Fail to Show Likelihood of Success on the Merits

Plaintiffs bring claims under NEPA and FLPMA.
A. NEPA Claims

"Congress enacted NEPA 'to protect the environment by
requiring that federal agencies carefully weigh environmental
considerations and consider potential alternatives .
the government launches any major federal action.'"
Biological Diversity v. Salazar,
5 - ORDER

F.3d

. before
Ctr. for

, 2012 WL 3570667,

at *18

(9th Cir. Aug. 21, 2012}

(quoting Barnes v. U.S. Dep't of

Transp., 655 F.3d 1124, 1131 (9th Cir. 2011)
marks omitted) ) .

(internal quotation

"As a preliminary step, an agency may first

prepare a less exhaustive EA, which is a 'concise public
document' that '[b]riefly provide[s] sufficient evidence and
analysis for determining whether to prepare an environmental
impact statement [EIS].'" Id.

(quoting 40 C.F.R.

§

1508.9(a)).

Here, after preparing the EA, BLM determined the Cottonwood
timber sale would not have a significant environmental impact, so
it issued a Finding of No Significant Impact (FONSI), rather than
drafting an EIS.
1.

Range of Alternatives

The EA analyzed two alternatives:
and the chosen alternative.

a no-action alternative,

Plaintiffs contend BLM improperly

failed to consider other reasonable alternatives.
Under NEPA, federal agencies must "study, develop, and
describe appropriate alternatives to recommended courses of
action."

42 U.S.C.

§

4332(2) (E).

Although this requirement

applies whether the agency prepares an EIS or an EA, the agency's
obligation to consider alternatives in a EA "'is a lesser one
than under an EIS.'"

Ctr. for Biological Diversity, at *18

(quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1246 (9th Cir. 2005)).

For an EIS, the agency must

"[r]igorously explore and objectively evaluate all reasonable

6 - ORDER

alternatives," while for an EA, NEPA requires only "a brief
discussion of reasonable alternatives."

Id.

(quoting N. Idaho

Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147,
1153 (9th Cir. 2008)
omitted)).

(further citations and quotation marks

The EA at issue here, about 200 pages long, is quite

comprehensive.
Plaintiffs argue that BLM drafted the EA's objectives so
narrowly that road construction was inevitable.

BLM responds

that the EA's objectives include access to timber and the
provision of forest products from Matrix lands, as well as
improving roads and habitat.

Defendants argue that without new

roads, two of the units would be accessible only by helicopter
logging, which would not be economically feasible.

An EA "need

only discuss alternatives that advance the purpose of the
project."

Barnes, 655 F.3d at 1136.

Defendants also argue that because several of plaintiffs'
suggested alternatives have consequences similar to the no-action
alternative, NEPA does not require a separate analysis.
Plains Res. Council v. Lujan, 874 F.2d 661,

See

~

666 (9th Cir. 1989)

For example, this is true of plaintiffs' alternative of no
logging in designated critical habitat for the spotted owl, which
includes about 135 acres out of the 1,108 total acres in the
sale.

BLM necessarily considered this option when it analyzed

the no-action alternative, and BLM designed the sale to maintain

7 - ORDER

current spotted owl habitat.
I conclude plaintiffs are unlikely to prevail on their claim
that BLM failed to consider a reasonable range of alternatives.
The Ninth Circuit recently noted, "we are aware of no Ninth
Circuit case where an EA was found arbitrary and capricious when
it considered both a no-action and preferred action alternative."
Earth Island Inst. v. U.S. Forest Serv., 2012 WL 4125866, at *11
(9th Cir. Sept. 20, 2012); Ctr. for Biological Diversity, at *19
("We have previously upheld EAs that gave detailed consideration
to only two alternatives.").
2.

Cumulative Effects

"An EA must fully assess the cumulative impacts of a
project."

Barnes, 655 F.3d at 1141.

The regulations define a

cumulative impact as "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 non-Federal) or person
undertakes such other actions."

40 C.F.R.

§

1508.7.

Here, plaintiffs argue BLM did not adequately consider the
cumulative effects of previous logging and road building in the
sale area.

Plaintiffs also argue the EA improperly failed to

consider the effects of two planned timber sales, the Rio Climax
and Shale City timber sales.

(For this motion only, I assume

plaintiffs did not waive their NEPA claim as to the Rio Climax

8 - ORDER

sale.)

Plaintiffs argue the EA should have considered whether

the Cottonwood sale area is slated for inclusion in the CascadeSiskiyou National Monument, and whether particular sale units
have wilderness characteristics.
BLM responds that the EA thoroughly discusses relevant
cumulative effects.

For example, the EA does address the effects

of previous logging and road building, and analyzes the effects
of soil compaction and sedimentation.
BLM states that it need not analyze the effects of the other
timber sales cited by plaintiffs, because, other than a minor
overlap, those sales are in different watersheds from the
Cottonwood timber sale.
As to the possible expansion of the National Monument, BLM
states there are currently no formal or informal proposals to do
so.

As to wilderness character, BLM determined the sale area

lands do not possess the defining features that would support
such a classification.

BLM notes,

for example, that the effects

of previous logging are visible, and that a large power line,
with a right of way, cuts through the sale area.
I conclude that plaintiffs have not shown a likelihood of
success on their cumulative effects claim.

ELM's analysis of

cumulative effects, and its conclusion that timber sales in other
watersheds were not relevant, are agency determinations generally
entitled to deference.

9 - ORDER

Neighbors of Cuddy Mountain v. Alexander,

303 F.3d 1059, 1071 (9th Cir. 2002)

("we defer to an agency's

determination of the scope of its cumulative effects review").
As to possible inclusion of the sale area in the National
Monument, NEPA does not require that the agency speculate on
future events.

Only "reasonably foreseeable" projects need be

included in the cumulative impacts analysis.

Envtl. Prot. Info.

Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014

(9th Cir. 2006).

The parties dispute whether the Cottonwood sale will cause a
net decrease or increase in the miles of roads on the site.

I

conclude that the Decision Record adequately discloses the amount
of road construction.
3.

Mistletoe-Infected Trees

Plaintiffs contend that BLM failed to take a hard look at
the consequences of logging mistletoe-infected Douglas fir.

The

EA acknowledges that mistletoe-infected trees provide habitat for
spotted owls and raptors, but concludes "the limited removal of
select trees with mistletoe" will not significantly reduce the
availability of such trees for wildlife to use.

Plaintiffs

contend that this conclusion is unsupported because the EA does
not specify the location or number of infected trees that will be
logged.

Defendants respond that the EA includes strict

guidelines for logging mistletoe trees based on the extent of the
infection, and that few such trees will be logged.
NEPA requires that the agency take a "hard look" at possible

10- ORDER

environmental consequences of a federal action, including
foreseeable effects, direct or indirect.
U.S. Forest Serv., 689 F.3d 1012, 1024

Pa~.

Rivers Council v.

(9th Cir. 2012).

Here, I

conclude plaintiffs are unlikely to prevail on this claim.
EA limits logging

mistletoe~infected

The

trees, and defendants

presented evidence that few such trees will be harvested.
The parties dispute the effects of allowing logging of
selected trees greater than 21 inches diameter at breast height
(dbh).

The EA explains that a limited number of such trees will

be logged to encourage healthier stands by allowing the largest
trees to thrive.

The EA uses a "stand visualization system" to

project the effects of logging.

Because this court should not

second-guess BLM's scientific expertise on silviculture,
plaintiffs are unlikely to succeed on this claim.
4.

Scientific Studies

Plaintiffs contend the EA improperly failed to consider four
scientific studies.

Plaintiffs argue that the four studies they

cite "undermine the assumption that eliminating fire,

insects,

and disease will improve the sustainability, vigor, and growth in
the project area."

Pls.' Mem. at 12.

A court's deference when reviewing an agency's decision "is
highest when reviewing an agency's technical analyses and
judgments involving the evaluation of complex scientific data
within the agency's technical expertise."

11- ORDER

League Of Wilderness

Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d
1122, 1130 (9th Cir. 2010).

A court should not instruct an

agency on scientific issues, or choose scientific studies, or
order "the agency to explain every possible scientific
uncertainty."

Lands Council, 537 F.3d at 988.

"When specialists

express conflicting views, an agency must have discretion to rely
on the reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views more
persuasive."

Id. at 1000 (internal citations and quotation marks

omitted).
In the EA, BLM cited a recent study concluding thinning may
reduce bark beetle mortality in mixed conifer forests like the
Cottonwood sale area.

BLM rejected as fatally flawed a study

concluding thinning cannot control bark beetles or defoliators
after an outbreak occurs, and that logging could increase the
possibility of outbreaks in the long run.

BLM notes that the

Cottonwood timber sale is not designed primarily to address
problems caused by insects or disease.
This court must defer to the agency's determinations "so
long as those conclusions are supported by studies 'that the
agency deems reliable.'"

F.3d

Native Ecosystems Council v. Weldon,

, 2012 WL 4215919, at *5 (9th Cir. Sept. 21, 2012)

(quoting N. Plains Res. Council v. Surface Transp. Bd.,
1067, 1075 (9th Cir. 2011))

12- ORDER

(emphasis added by Native

668 F.3d

Ecosystems).

Given the deference this court must give to an

agency's analysis of scientific evidence, I conclude that
plaintiffs have not shown they are likely to succeed on this
claim.
B.

FLPMA Claim

"FLPMA requires that the BLM, under the Secretary of the
Interior,

'develop, maintain, and when appropriate, revise land

use plans' to ensure that land management be conducted 'on the
basis of multiple use and sustained yield.'"

Or. Natural Res.

Council Fund v. Brong, 492 F.3d at 1125 (quoting 43 U.S.C.
1701(a) (7), 1712(a)).

§§

To comply with this requirement, the

Secretary creates Resource Management Plans (RMPs) to guide
development and maintenance of public land.

The Cottonwood

timber sale is subject to the BLM's Medford District RMP, and to
the Northwest Forest Plan.
Here, plaintiffs contend the Cottonwood timber sale would
violate the Medford District RMP because of the possible effect
on the Pacific fisher, which is a candidate for listing under the
Endangered Species Act.

The Medford District RMP requires that

BLM manage the district "so as not to contribute to the need to
list [species] and to contribute to the recovery of the species."
The RMP also requires that BLM modify, relocate, or abandon
proposed actions that would contribute to the need to list
federal candidate species or their habitats.

13- ORDER

BLM has detected

fishers in the sale area.
BLM responds that the Cottonwood timber sale will not
BLM states

contribute to the need to list the Pacific fisher.

the timber sale will leave large snags and coarse wood, which
fishers use for dens, arid that only 17% of fisher habitat will be
directly affected.

In BLM's analysis, the short-term effects of

the sale will be outweighed by the long-term benefit to the
fisher from a healthier forest.
BLM argues that compliance with the RMP should be analyzed
for the entire district, not project by project.

Plaintiffs

respond that even if the impact on the fisher is only "minimal,"
then the timber sale will contribute to the need to list the
fisher, and not contribute to the fisher's recovery.
FLPMA gives BLM "a great deal of discretion in deciding how
to achieve" compliance with an RMP.
Alliance, 542 U.S. 55, 66 (2004).

Norton v. S. Utah Wilderness
BLM minimized the sale's

immediate impact on fisher habitat, and has determined that the
sale will enhance fisher habitat in the near future.

I conclude

that plaintiffs are not likely to succeed on their FLPMA claim.
To the extent plaintiffs assert a NEPA violation based on
the sale's possible effect on fisher habitat,

I conclude

plaintiffs have not shown they are likely to prevail.

In a

similar context, this court has held that an EIS is not required
to analyze "every applicable environmental law."

14- ORDER

LOWD v. U.S.

Forest Serv. ,

F. Supp. 2d

Or. Aug. 10, 2012)

, 2 0 12 WL 3 2 5 5 0 8 3 , at * 13 ( D.

(footnote omitted)

(NEPA did not require EIS

to include detailed discussion of the National Forest Management
Act).
II.

Plaintiffs Have Not Shown Irreparable Har.m

Plaintiffs have not shown they are likely to suffer
irreparable harm if the Cottonwood timber sale is not enjoined.
BLM has determined that the sale area is not pristine wilderness,
and the remaining old-growth stands will not be logged.

BLM has

also determined that allowing the harvest of a limited number of
trees of 21" dbh will lead to healthier stands.

BLM concluded

that the sale will not significantly harm the fisher.
III.
Plaintiffs Have Not Shown That the Balance of Har.ms or
Public Interest Favors Injunctive Relief

In balancing the harms, this court must weigh the potential
environmental injuries asserted by plaintiffs against the risks
from enjoining the sale.

Lands Council, 537 F.3d at 1004.

BLM

asserts that proceeding with the sale will promote forest health,
not harm it.

Potential environmental harm does not necessarily

justify an injunction, "particularly where

the plaintiffs

are not likely to succeed on the merits of their claims."
1005.

Id. at

Plaintiffs have not shown that the balance of harms weighs

in their favor.
BLM asserts a public interest in achieving the sale's
objectives.
15- ORDER

On the other hand, plaintiffs have not shown that

they are likely to succeed on the merits of their claims that BLM
violated NEPA or FLPMA.

Plaintiffs have not carried their burden

to show the public interest favors injunctive relief.
CONCLUSION

Plaintiffs' motion for a preliminary injunction (#14) is
denied.
IT IS SO ORDERED.

DATED this

day of October, 2012.

~)U~
OWEN M. PANNER
U.S. DISTRICT JUDGE

16- ORDER