Jump to Navigation
Jump to Content

Environment Now! v. Espy

ELR Citation: 26 ELR 20383
Nos. No. CV-F-94-5474 OWW, 877 F. Supp. 1397/(E.D. Cal., 08/23/1994)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA) by not preparing an environmental impact statement (EIS) before selling timber in the Fish Creek Drainage area of the Sequoia National Forest, and denies a preliminary injunction against cutting large trees in the area. The Forest Service prepared numerous environmental documents for the Fish Creek sale, including an environmental assessment (EA) that examined several alternatives. The Forest Service selected an alternative that did not conform to management recommendations contained in an earlier Forest Service scientific report (CASPO). The California spotted owl is a "sensitive" species. The court first refuses to strike an extra-record declaration that environmental group plaintiffs offered to refute and explain findings in the Forest Service's environmental documents. The declaration will be helpful in highlighting perceived deficiencies in the environmental review process and in explaining technical terms and complex subject matter. Further, the declarant is qualified as an expert to offer opinions on California spotted owl activity and the suitability of habitat at the Fish Creek sale area. The court next strikes an extra-record declaration of a person who participated in prior settlement negotiations between plaintiffs and the Forest Service. The court holds that the declaration is not admissible to show that the resulting settlement agreement required the Forest Service to prepare an EIS for the Fish Creek sale, because the agreement unambiguously permits either a new EA or an EIS to be prepared, as long as NEPA is not violated. The court next dismisses the NEPA claims of three of the four plaintiffs, because those plaintiffs were not involved in the administrative appeals of this sale. The court next holds that the remaining plaintiff adequately raised during the administrative process its arguments that an EIS is necessary to consider the effects on the California spotted owl and that insufficient data existed to meaningfully monitor the species. Plaintiff's notice of administrative appeal of the Fish Creek EA indicates that the Forest Service had the opportunity to address these arguments. The court further holds that plaintiff was not required to raise administratively its claim that the failure to prepare an EIS was a breach of the settlement agreement before raising the claim in court. Although 36 C.F.R. §217.18 states that reviews of agency decisions "subject to review under this part" are premature unless first brought before the Forest Service, breach of contract is not subject to review under that part. Further, that section is merely a policy statement and lacks the force of law. The court next holds that plaintiff has standing to challenge the sale. Plaintiff's allegations regarding its members' use and enjoyment of the sale area are analogous to those in a case in which the Ninth Circuit found that an organization had standing to challenge the Forest Service's adoption of an owl management plan.

The court next turns to plaintiff's motion for a preliminary injunction. Addressing the NEPA claim, the court rejects plaintiff's argument that the CASPO report presents significant new information that requires incorporation into an EIS before the Fish Creek sale is completed. The court holds that the effect of the selected management alternative on the future of the California spotted owl is too minor to warrant an EIS. Plaintiff's assertions that the Forest Service failed to consider various factors are refuted by either the record or by noncontroversial evidence that the Forest Service submitted. Plaintiff has not shown that a significant number of owls exist in the Fish Creek sale area, nor that any number could do so, given the terrain and elevation. The Forest Service followed the proper methodology to count members of the owl population, and although plaintiff argues that the Fish Creek sale area is near owl population centers, the Forest Service points out that such centers are in fact distant. The court holds that the Forest Service adequately considered impacts on the human environment and extensively studied the potential effect on the California spotted owl. The court notes that the Forest Service has concluded that the owl would not be adversely affected in the Fish Creek sale area, because that area is not conducive to long-term habitat. The court holds that differences as to methodology are insufficient to justify preliminary injunctive relief. Further, plaintiff's criticisms of the Forest Service's methodology are largely refuted by the Forest Service's evidence. The court holds that plaintiffs have not shown a likelihood of success on the merits of their NEPA claim. The court next holds that the balance of harms favors withholding injunctive relief. Timber-interest intervenors will suffer harm if the sales are enjoined, but plaintiff fails to show that the spotted owl will be protected by delaying the sale. The court also holds that without a likelihood of success on the merits, the public interest does not favor granting injunctive relief.

The court next turns to plaintiff's claim that the Forest Service's failure to prepare an EIS was a breach of contract. The court holds that plaintiff has not shown that the Forest Service violated the settlement agreement. The Forest Service has prepared two environmental documents assessing the impact of the selected alternative on the California spotted owl, and plaintiff's criticisms are rebutted by the administrative record and the Forest Service's evidence. Further, although plaintiff argues that the Fish Creek EA fails to address certain issues that the settlement requires, the Forest Service refers to places in the administrative record where the EA addressed these issues. Plaintiff has not submitted evidence or argument that details any insufficiencies in those references. The court holds that plaintiff has not shown a likelihood of success on the merits of its breach of contract claim. The court holds that the balance of hardships does not favor injunctive relief and that without a likelihood of success on the merits, the public interest does not favor granting injunctive relief.

The court next turns to plaintiff's claim that the Forest Service violated National Forest Management Act (NFMA) §6 and 36 C.F.R. §219.19 by failing to consider recent scientific information regarding the California spotted owl. The court holds that plaintiff has not shown a likelihood of success on the merits of the NFMA claim. And to the extent that the claim can be construed as a challenge to the Forest Service's failure to supplement the EIS for Sequoia National Forest's land and resource management plan, that claim has been determined coextensively with plaintiff's NEPA claim. The court also holds that the balance of harms and the public interest do not favor granting injunctive relief. The court next grants the Forest Service's motion for summary judgment on the NEPA claim, because plaintiff has failed to provide evidence demonstrating that the Forest Service's actions were arbitrary and capricious. The court next grants the Forest Service's motion for summary judgment on the breach of contract claim, because the administrative record and the terms of the agreement support a finding that the Forest Service has not breached the settlement agreement by relying on the EA or in failing to prepare an EIS. The court finally grants the Forest Service's motion for summary judgment on the NFMA claim. An NFMA claim cannot be brought to challenge an individual timber sale, and to the extent that plaintiff has stated a claim regarding the NFMA's requirement that land and resource management plans be supported by an EIS, the Forest Service complied with that requirement.

Plaintiffs Environment Now!, Tulare County Audubon Society, Plumas Forest Project, and Forest Alert have filed this action against defendants Mike Espy, Secretary of Agriculture, Jack Ward Thomas, Chief, United States Forest Service, Ronald E. Stewart, Regional Forester Region 5, and Sandra Key, Forest Supervisor, Sequoia National Forest (collectively, the "Federal Defendants"), concerning the harvesting of trees in the Fish sale area of the Sequoia National Forest. The Federal Defendants have filed a motion for summary judgment, and a motion to strike two declarations submitted by plaintiff.

Counsel for Plaintiffs
Richard S. Luskin
Environment Now!
24955 Pacific Coast Hwy., Ste. C-201, Malibu CA 90265
(310) 456-8775

Counsel for Defendants
Christopher Van Gundy
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., Ste. 1800, San Francisco CA 94111
(415) 393-2000