Home » Case Summaries » 2017 » Alliance for the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017).

 
 

Alliance for the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017).

 

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Alliance for the Wild Rockies (Alliance) brought an action against the United States Forest Service (USFS).[1] Alliance sought a preliminary injunction of alleged violations of the National Forest Management Act (NFMA)[2] and the National Environmental Policy Act (NEPA).[3] The district court concluded that Alliance failed to satisfy any of the required factors for the issuance of a preliminary injunction.[4] Reviewing for clear error, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Eastern Washington’s opinion not to grant a preliminary injunction.

Under NEPA, if an agency’s environmental assessment (EA) reveals that a proposed action will significantly affect the environment, the agency must prepare an environmental impact statement (EIS). USFS issued an EA for a forest restoration project and determined that the project did not require an EIS. The North Fork Mill Creek A to Z forest restoration project
(A to Z Project)[5] involved commercial timber harvests, road maintenance, stream restoration, and culvert replacements on 12,802 acres within the Colville National Forest in Washington. Alliance sought a preliminary injunction of the project. A party seeking a preliminary injunction must meet the original Winter[6] standard or the variant “sliding scale” test.[7] The Ninth Circuit found that Alliance did not satisfy either test because the group did not demonstrate a likelihood of success or raise serious questions about the NFMA and NEPA claims.[8]

The court rejected Alliance’s three claims. First, Alliance alleged USFS violated the Colville Forest Plan and NEPA by using improper proxy analyses to conclude that the forest project would not significantly impact the viability of the pine marten and fisher species. Alliance primarily argued that the pine marten had not been spotted in the project site since 1995, and that such a prolonged absence meant the species was an unreliable proxy. The Ninth Circuit disagreed. The court found the proxy reliable because the absence of a species does not necessarily invalidate the proxy analysis and because Alliance failed to “level specific criticisms at the Forest Service’s habitat methodology.”[9] For this reason, the court found that Alliance raised no serious NEPA or NFMA questions regarding the EA’s proxy analysis.

Second, Alliance alleged that the project violated the Colville Forest Plan and NEPA by failing to recognize the decrease in snow-intercept cover and the increase in open road density as significant environmental impacts. The challenge to the snow-intercept analysis was two-fold. Alliance first presented scientific evidence that it claimed demonstrated a significant environmental impact. Alliance also argued that the EA had only analyzed snow-thermal cover in two areas of the forest, instead of the full winter range for big game animals as recommended in the Colville Forest Plan document. The Ninth Circuit rejected the scientific evidence claim because it found USFS methodology supported the agency decision, and the court’s role is not to weigh competing scientific analysis presented by an environmental group and an agency. On the second issue, the Ninth Circuit found that the decision to analyze only two areas of the forest for effects on snow coverage did not violate the Colville Plan. An analysis of the entire winter range was a “suggested solution” of a monitoring report, not a requirement. Finally, regarding the road density analysis, the Ninth Circuit rejected the claim that the EA violated NEPA or NFMA because only a small portion of the proposed 30 miles of roads would be built on the relevant area and all of these roads would be decommissioned once the project came to an end.

Alliance’s final allegation was that USFS violated NEPA by making an arbitrary and capricious determination that sediment accumulations in streams within the project site did not constitute a significant environmental impact. The Ninth Circuit upheld USFS’s determination for four reasons. First, the court noted that federal agencies may consider the effect of mitigation measures in determining whether preparation of an EIS is necessary. Second, the court found that USFS properly weighed the net benefit of sediment reduction and the sequence of sediment reduction followed by sediment increases to determine that the project would not create a significant net environmental impact. Third, rejecting Alliance’s argument that sediment reduction measures will not affect all areas of sediment accumulation, the court reasoned that mitigation measures must not completely compensate for environmental impacts. USFS’s selection of “hot spots” accounted for two-thirds of annual sediment delivery, thus rendering Alliance’s argument unavailing. Fourth, the court found that USFS expressly considered potential sediment impact from grazing in the project area, and the agency nevertheless approved the proposal to authorize the grazing. Accordingly, the Ninth Circuit found that this claim, like the others, failed to show either serious questions or a likelihood of success on the merits. Thus, the claim did not warrant a preliminary injunction.

In sum, the Ninth Circuit affirmed the decision of the district court, finding that it did not abuse its discretion in concluding that Alliance failed to demonstrate either serious questions or a likelihood of success with respect to the merits of any of its NFMA or NEPA claims.

Footnotes    (↵ returns to text)

  1. Defendants included Jim Pena, in his official capacity as Regional Forester of Region Six and Rodney Smoldon, in his official capacity as Supervisor of the Colville National Forest. Stevens County, Northeast Washington Forestry Coalition, and Pend Oreille County intervened as defendants.
  2. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. All. for the Wild Rockies v. Pena, No. 2:16-CV-294-RMP, 2016 WL 6123236, at *1 (D. Wash. Oct. 19, 2016).
  5. All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1211 (9th Cir. 2017).
  6. A party must show “that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
  7. Under the sliding scale variant test of the Winter standard, “if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)).
  8. Because Alliance did not meet the first of the required factors regarding its NFMA and NEPA claims, the court found it did not need to weigh the additional factors.
  9. Friends of the Wild Swan v. Weber, 767 F.3d 936, 949–50 (9th Cir. 2017).
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