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Our Klamath Basin
Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
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http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110325169.xml&docbase=CSLWAR3-2007-CURR
KLAMATH SISKIYOU WILDLANDS CENTER v. GRANTHAM
Before: NOONAN, FERNANDEZ, and
CLIFTON, Circuit Judges.
Plaintiffs appeal the district court's
denial of their motion for preliminary injunction to halt
post-fire salvage logging in Klamath National Forest. We
affirm.
I. Standard of Review for a
Preliminary Injunction
At the outset, we note that the standard
of review for the denial of a preliminary injunction is
deferential, as is our review of the agency's decision. A
court may set aside only agency actions that are "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law." Earth Island Inst. v. Carlton, 626
F.3d 462, 468 (9th Cir. 2010). "A district court abuses
its discretion in denying a request for a preliminary
injunction if it bases its decision on an erroneous legal
standard or clearly erroneous finding of fact." Id.
Because we conclude the district court
did not abuse its discretion in concluding that Plaintiffs
failed to raise serious questions going to the merits of
their claims, we need not reach whether Plaintiffs would
have prevailed on the remaining elements for a preliminary
injunction. See Alliance for the Wild Rockies v.
Cottrell, —F.3d —, 2011 WL 208360 (9th Cir. Jan. 25,
2011); Doe v. Reed, 586
F.3d 671, 681 n.14 (9th Cir. 2009).
II. National Forest Management Act
The district court's conclusion that
Plaintiffs did not raise serious questions going to the
merits of their National Forest Management Act (NFMA) claim
was not an abuse of discretion.
First, the Forest Service's determination
that logging and replanting trees was beneficial to several
Aquatic Conservation Strategy (ACS) objectives and would
achieve recovery faster than would natural regeneration was
not "likely" arbitrary or capricious. In fact, the Forest
Service submitted reports indicating that relying on natural
regeneration would delay conifer regeneration and allow
competitive species an opportunity to take over the project
area. An agency's scientific conclusion that active
replanting would hasten recovery by decades is entitled to
deference. See League of Wilderness Defenders Blue
Mountains Biodiversity Project v. Allen, 615
F.3d 1122, 1131 (9th Cir. 2010). Further, according to
Forest Service reports, this replanting could not take place
without logging, and therefore Plaintiffs' argument that the
Forest Service failed to evaluate the environmental costs of
logging is unavailing.
Second, we are not convinced that the
Forest Plan must be read so narrowly as to allow only
activities required to prevent failure of ACS objectives.
The Forest Plan appears to contemplate a broader approach
than what Plaintiffs suggest. See Pac. Coast Fed'n of
Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., 265
F.3d 1028, 1036-38 (9th Cir. 2001) (evaluating whether a
proposed project was "consistent" with the ACS objectives);
Or. Natural Res. Council Fund v. Goodman, 505
F.3d 884, 893-94 (9th Cir. 2007) (emphasizing that the
Riparian Reserve guidelines "prohibit or regulate activities
in Riparian Reserves that retard or prevent attainment of
the [ACS] objectives"). Accordingly, the Forest Service's
interpretation of its own Forest Plan was not arbitrary or
capricious, or plainly inconsistent with the regulations.
See Native Ecosystems Council v. U.S. Forest Serv., 418
F.3d 953, 960 (9th Cir. 2005).
Third, the single article Plaintiffs cite
for the value of natural conifer regeneration appears
inapposite to a situation where, as here, the fire itself
has apparently destroyed the bulk of the natural bank of
seeded conifers. To the extent Plaintiffs' rely on the Third
Declaration of George Sexton, that declaration is stricken
as not part of the record on appeal. United States v.
Elias, 921
F.2d 870, 874 (9th Cir. 1990).
Fourth, contrary to Plaintiffs' assertion
that the court may look no further than the Elk Creek
Watershed Analysis, the Forest Plan does not preclude the
Forest Service from using a variety of reports to evaluate
coarse woody debris. Concerning these reports, the court's
"highest deference is owed to the Forest Service's technical
analysis and judgments within its area of expertise."
League of Wilderness Defenders, 615 F.3d at 1131. The
district court did not abuse its discretion in ruling that
the Forest Service adequately supported with scientific
research its evaluation that the course woody debris needs
were met.
III. National Environmental Policy Act
The district court did not abuse its
discretion in concluding that Plaintiffs did not raise
serious questions as to whether the existence of any
"significance factor" warranted an Environmental Impact
Statement (EIS) pursuant to the National Environmental
Policy Act.
While Plaintiffs may have arguably
established that the Riparian Reserves are ecologically
critical areas, Plaintiffs failed to explain how the project
would have a "significant effect" on them. 40 C.F.R. §
1508.27(b)(3). Proximity of a project to a sensitive area
does not per se warrant an EIS. See Presidio Golf
Club v. Nat'l Park Serv., 155
F.3d 1153, 1162 (9th Cir. 1998) (EIS not required
despite the project's proximity to historical resources). "[I]t
does not follow that the presence of some negative effects
necessarily rises to the level of demonstrating a
significant effect on the environment." Native Ecosystems
Council, 428 F.3d at 1240. Nor have Plaintiffs
identified "significant controversies as to the efficacy of
the Service's proposed methods." Hapner v. Tidwell, 621
F.3d 1239, 1245 (9th Cir. 2010).
For the reasons set forth above,
Plaintiffs have also not demonstrated a likelihood of
success on their claim that there is a threatened violation
of NFMA. See 40 C.F.R. § 1508.27(b)(10).
IV. Appeal Reform Act
With respect to the Forest Service's
emergency situation determination (ESD) to forego the
automatic stay pending the administrative appeal, Plaintiffs
fail to raise serious questions going to the merits of their
claim.
The Forest Service Chief was authorized
to make an ESD after the Forest Service determined that the
immediate implementation of the Project was necessary for
"for relief from hazards threatening human health and
safety" and to avoid "substantial loss of economic value to
the Federal Government." 36 C.F.R. §§ 215.2, 215.10(a).
Here, the Forest Supervisor concluded there was "a very high
likelihood of serious injury or death if a tree were to fall
on a car or a person." Plaintiffs do not dispute the risk
per se, but instead suggest the court require an
alternative method for minimizing safety hazards. Under the
Administrative Procedure Act, a court is not permitted to
simply substitute its judgment for that of the agency.
See N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545
F.3d 1147, 1152-53 (9th Cir. 2008).
The court did not err in distinguishing
Wild Rockies when it concluded that the Forest
Service might obtain an ESD to avoid substantial loss of
economic value. The amount at issue here is more than double
that in Wild Rockies, and the Forest Service did not,
in this case, erroneously include the local economy in its
ESD as it had in Wild Rockies. 2011 WL 208360, at
*10.
Finally, during oral argument on these
matters, counsel informed the court that the administrative
appeal had ended, and any stay that might have been in place
would have since been lifted. It is therefore unclear at
this stage what remedy would be available to Plaintiffs with
respect to their ARA claim.
AFFIRMED.
Footnotes
* This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R.
36-3.
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