Wilderness Society v. Tyrrel

No. CIV S-88-1322 LKK (E.D. Cal. December 22, 1989)

The court permanently enjoins a national forest timber sale because it violates the Wild and Scenic Rivers Act (WSRA). The WSRA requires defendant to prepare a presale management plan. Previously the court held that the WSRA's protection of rivers is not limited to a one-quarter-mile corridor. The environmental impact statement's (EIS's) discussion of the environmental consequences of the sale on WSRA values does not satisfy the WSRA's management plan requirement, because the EIS failed to consider the WSRA values outside the one-quarter-mile corridor. Defendant also failed to cooperate with the Environmental Protection Agency and state agencies as required by the WSRA. The court holds that the balance of equities favors an injunction. Plaintiff met the burden of showing the likelihood of irreparable injury and inadequacy of legal remedies.

A previous decision in this litigation is published at 19 ELR 20557.

Counsel for Plaintiff
Stephan C. Volker
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants
Karen Patterson, Mary Grad, Ass't U.S. Attorneys
U.S. Department of Justice
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 551-2700

[20 ELR 20661]

Karlton, J.:

Order

This action is before the court on cross-motions for summary judgment. Plaintiffs seek to enjoin defendants from commencing the South Fork Fire Recovery Salvage Project, a proposal to log burned timber and build new roads within a currently roadless area adjacent to the South Fork Trinity Wild and Scenic River. I previously granted plaintiffs' motion for preliminary injunction based on a potential violation of the Wild and Scenic Rivers Act. Wilderness Society v. Tyrrel, 701 F. Supp. 1473 [19 ELR 20557] (E.D. Cal. 1988).

Plaintiffs' complaint raises five statutory bases for relief: The Wild and Scenic Rivers Act ("WSRA"); National Environmental Policy Act; the Clean Water Act; the Endangered Species Act; and the National Forest Management Act. They move for summary judgment on the first four only, conceding that the fifth raises disputes of material fact. Defendants move for summary judgment on all grounds.

The published opinion sets forth the details of the proposed sale and the requirements of the WSRA, which need not be repeated here. In brief, I previously found that the Wild and Scenic Rivers Act and regulations require the Forest Service to formally designate the boundaries of the South Fork Trinity Wild and Scenic River Corridor and to adopt a management plan governing land uses within and adjacent to that corridor in order to protect the "esthetic, scenic, historic . . . and scientific" resources of this river. The WSRA also requires defendants to cooperate with various entities.

To prevail on summary judgment, plaintiffs must now fulfill he requirements of Fed. R. Civ. P. 56 and demonstrate their entitlement to the final injunction requested in the amended complaint. Amoco Production Co. v. Gambell, 480 U.S. 531 [17 ELR 20574] 1987).

Summary Judgment Standards

I have repeatedly noted the applicable standards for the determination of a motion for summary judgment, see, e.g., Zumbrun v. United States Automobile Association, 719 F. Supp. 890 (E.D. Cal. 1989), and no purpose would be served by reiterating them here. I simply note that "[b]ecause there are no contested issues of material fact, resolution of the instant motion turns on . . . pure question[s] of law." Cervantez v. Sullivan, 719 F. Supp. 899, 909 (E.D. Cal. 1989).

Analysis

As determined in the prior order, as a matter of law the WSRA requires defendants to prepare a management plan and to cooperate with certain agencies before authorizing the sale. The facts are undisputed that a management plan has not been prepared. The facts regarding the agency's cooperation are also undisputed, and have not been supplemented since the prior order, although defendants renew their argument that their conduct satisfies their statutory obligation.¹

In the prior order, I found as a matter of law that the WSRA's protection of the river is not limited to a 1/4 mile corridor. Defendants persist in challenging that analysis, but now contend that, adopting the analysis arguendo, the sale activities would not threaten wild and scenic river values even if they take place inside a protected river corridor. They base this argument on the Forest Service's conclusions regarding the environmental impacts from the sale, disregarding the only relevant issue: the statutorily mandated duty to engage in a process which inherently serves to identify and protect wild and scenic river values.

A. Management Duties

Preservation of scenic, recreational and esthetic values was previously identified as the firstgoal of the WSRA. 701 F. Supp. at 1482. The prior order found that:

In setting forth the required managerial agenda, Congress voiced special concerns about the environmental implications of timber harvests and road construction relative to the Act's agenda. Thus, the Act provides that "[p]articular attention shall be given to scheduled timber harvesting, road construction, and similar activities which might be contrary to the purposes of this chapter." 16 U.S.C. § 1283(a). In sum, while timber cutting and road construction within Wild and Scenic River corridors are not considered by definition to substantially interfere with the Act's objectives, Congress has specifically singled out these activities as the very sorts of concerns for which the Act's compulsory management plans are of critical significance.

701 F. Supp. at 1483. Thus, I concluded that "[w]here, as here, the substantive scope of the Act's protection of the environment may be intimately affected by the character of the implementation plan, it would contravene both the plain meaning of the statute and the agency's own construction of the Act to proceed with the timber sale without adopting the management plan compelled by statute." Id. at 1488.

Federal defendants argue that the Forest Service's only duty was to take wild and scenic river values into account, pursuant to 16 U.S.C. § 1283. In other words, by acknowledging that such values existed, the Forest Service met its burden. To this end, defendants note that the EIS identifies "concern about the effect of fire salvage harvest on the Wild and Scenic River qualities." The issue was "used indirectly in designing project alternatives and directly in prescribing mitigation measures and in assessing environmental consequences." The environmental consequences are discussed on two pages of the EIS. According to defendants, this awareness of ecological concerns statisfies the Wild and Scenic Rivers Act.

[20 ELR 20662]

Intervenors argue that, since the WSRA anticipates that timber harvesting and road construction can be accommodated, and since agency regulations provide for harvesting dead timber in wild areas and reforestation of those areas, the project will not adversely affect wild and scenic river values. The determination that use of Best Management Practices will avoid significant erosion as well as other adverse impacts claimed by plaintiffs, the argument goes, is reasonable and well-documented. Since roads and harvesting have already occurred, more won't hurt.

The court cannot agree. In the previous order, I found that the nature of the sale compelled a management plan as a matter of law. The FEIS reflects that allowing the Sale without a management plan is substantially likely to affect WSRA values. Defendants' attempt to characterize the contents of the FEIS as having considered WSRA values outside a 1/4 mile corridor is unavailing, because to put it directly, it is contradicted by both the explicit and implicit content of the FEIS.

First, the FEIS consistently noted that no sale activities would be allowed in a 1/4 mile corridor. An assumption that sale activities would implicate WSRA values is inherent in this repeated exclusion of such activities from the 1/4 mile corridor.²

Second, the FEIS is replete with acknowledgments of adverse effects to the area outside the 1/4 mile corridor which necessarily implicate the WSRA. As discussed in the prior order, the WSRA is specifically concerned with road construction and timber harvesting, and primarily seeks to preserve scenic, recreational, and esthetic values for public use and enjoyment. 701 F. Supp. at 1482. The plan at bar seeks to construct roads and harvest timber. The FEIS acknowledges that:

The Wild and Scenic Rivers Act defines wild rivers as "those rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted." Scenic rivers are defined as "those rivers or sections of rivers that are free of impoundments with watersheds or shorelines still largely primitive and shorelines undeveloped, but acessible in places by road."

FEIS at III-34. With regard to the area outside the 1/4-mile corridor, the FEIS found that semi-primitive recreational opportunities would be reduced. FEIS at IV-40. The FEIS found that

The recreational character of the project area will change in those areas where intensive management occurs. This will adversely affect those people who enjoy the existing semi-primitive character of the project area.

Id. IV-58. It noted a decrease in semi-primitive recreational area, Id. at IV-39-40, and that "[p]eople would find changes in conditions of recreation, old-growth habitat, and visual quality due to human activities. . . ." (IV-42). The plan included approximately seven miles of new road construction, and, of course, timber harvesting. These are precisely the effects the WSRA requires to be managed. The FEIS does not purport to manage these effects consistent with the WSRA; the nexus between these effects and WSRA is never explored because, as just noted, the FEIS was premised on the belief that the WSRA did not apply to the activities outside the 1/4 mile corridor and defendants explicitly refused to consider expanding WSRA protection beyond 1/4 mile.

In sum, although defendants and intervenors assert that the agency in fact considered WSRA values for the entire sale area, the evidence indicates that the agency considered them only within the 1/4-mile corridor, but refused to consider them outside that corridor. The suppressed premise of defendants' and intervenor's argument is that defendants' duty is discharged by a mention of the statute in the FEIS. Although they purport to accept arguendo the court's analysis that Sale activities could occur within a protected area, they do not address the specific impact of these activities within that area, but instead argue that, overall, the agency exercised its discretion to determine that WSRA values would not be impinged. This argument simply does not accord with the record.

The court has determined that defendants were wrong as a matter of law in believing that preservation of the 1/4-mile corridor fulfilled their duties. Since under the court's analysis sale activities could occur within the corridor as ultimately delineated, a management plan is compelled by statute. There are no facts giving rise to a dispute that as the FEIS itself indicates, sale activities are likely to impair WSRA values. Accordingly, plaintiffs are entitled to summary judgment on this issue.

B. Cooperation

As found earlier, defendants had a statutory duty to cooperate with EPA and state agencies. The final EIS discloses opposition from these entities. 701 F. Supp. at 1488-89. Defendants' failure to resolve these objections is significant. The Act's duty to "cooperate," as previously found, cannot be construed as a duty only to consult.

This court found defendants' approval in face of uniform opposition "a clear failure by defendant to meet the substantive requirements of the statute." 701 F. Supp. at 1489. The obligations to "work with" and "cooperate" do not amount to giving outsiders "veto power," as defendants argue; on the other hand, they do not allow the agency to simply ignore opposition. They imply a process of at least attempted mutual accommodation. Defendants allude to joint activities between the Service and these agencies, but do not point to specific processes of mutual accommodation regarding the opposition to this Sale. These submissions are irrelevant.

Again, no extra-record evidence need be taken, or disputed facts resolved. Plaintiffs are entitled to summary judgment.

III

Injunctive Relief

A. Legal Standards

In granting an injunction on a motion for summary judgment, the

"[B]asis for injunctive relief is irreparable injury and inadequacy of legal remedies." Amoco Production Co. v. Village of Gambell, [supra]. "In each case, a court must balance the competing claims of injury and must consider the effect on each party of granting or withholding of the requested relief."

Save the Yaak Committee v. Block, 840 F.2d 714, 722 [18 ELR 20869] (9th Cir. 1988).³

Although the Supreme Court has rejected a presumption of irreparable injury when an agency fails to thoroughly evaluate the environmental impact of a proposed action, the Court has noted that "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Production Co. v. Village of Gambell, 107 S. Ct. at 1404. Therefore, when environmental injury is "sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment." Id.

Id.

As noted in the prior order, "the balancing of hardships must give effect to the statutory purposes rather than reading them out of existence." Wilderness Soc. v. Tyrrel, 701 F. Supp. 1473 [19 ELR 20557] (E.D. Cal. 1988). Defendants' failure to show that sale activities will not occur in an area protected by the WSRA establishes a sufficient likelihood that wild and scenic river values will be irreparably injured. The finding that defendants failed to cooperate with responsible agencies, all of which opposed this sale, also supports a finding of irreparable harm. On the other side of the scale, while there is a potential economic loss as I have previously explained, those losses cannot vel non override the policy commitments [20 ELR 20663] of federal environmental law. 701 F. Supp. at 1473. Thus, the balance of equities favors an injunction.

It bears repeating that a procedural violation of the WSRA does not automatically entitle plaintiffs to a permanent injunction. However, I need not resolve the factual dispute over the degree of degradation which might occur in the absence of the WSRA's prophylactic measures. First, the issue is not amenable to factual resolution because it is a matter of prediction, not historical record. Second, demanding such a resolution would essentially require plaintiffs to prepare a plan and propose corridor boundaries; a duty which lies with defendants by statute. The only feasible standard requires plaintiffs to show that a degradation of river values is likely. They have met this burden.

Conclusion

Because intervenor asserts that preparation of a Management Plan would foreclose this sale, I will not consider plaintiffs' other claims for relief. The parties have agreed that the time required to draft a plan pursuant to the WSRA will render the timber unmarketable. Thus, this order essentially renders the other challenges moot. A full consideration of plaintiffs' multi-faceted attack would not only delay this litigation further but would lead to advisory opinions in dereliction of the court's proper function. See generally Bunker Limited Partnership v. United States, 820 F.2d 308, 313 [17 ELR 20899] (9th Cir. 1987).

In accordance with the above, IT IS HEREBY ORDERED that plaintiffs' motion for summary judgment is GRANTED, and defendants' cross-motion is DENIED. The Clerk of the Court shall enter judgment accordingly.

IT IS SO ORDERED.

1. AT oral argument defendants argued, for the first time, that the sale was needed to address an emergency. They presented a letter from Assistant Field Supervisor David Harlow of the U.S. Fish and Wildlife Service with an attached "Biological Evaluation" by Forest Service employee Robert Gertsch, which essentially assert that the decaying timber poses a threat to the forest ecology. Plaintiffs have objected to this evidence on various grounds. First, they object to the documents as hearsay because it is offered to prove the truth of the matters asserted: e.g. that the burned timber poses a threat of beetle and fungal infestation. This objection is well-taken. Moreover, since the letter was not part of the administrative record and was not considered by the federal defendants before approving the sale or denying plaintiffs' administrative appeal, it may not be tendered by the Government in support of the administrative determination. In addition, plaintiffs correctly assert that the proffered evidence is inadmissible opinion testimony by non-experts, as defendants have not attempted to qualify the evidence as expert testimony.

2. This underlying assumption is demonstrated by the agency's refusal to entertain suggestions that the corridor planned for protection be broadened to preserve WSRA values. For instance, in response to an objection that "[b]oundaries of the wild and scenic river in the river management plan should be the former roadless area boundary in the salvage DEIS alternative maps," the Service responded that "[c]onsideration of the river management plan boundaries are outside the scope of this document." FEIS at V-62. In response to an objection that "[i]n order to maintain the roadless nature of the AREA, the AREA should be included in the pending Wild and Scenic Rivers (W&S's) plan and managed for Semi-Primitive Non-Roaded Recreation (Rx 1). . . ." The Service responded that "the land area to be included in a wild and scenic river management plan is outside the scope of this document." The plain consequence of the repeated objection was to deny consideration of WSRA values outside the 1/4 mile corridor.

3. At plaintiffs' request, the court received further briefing on the issue of whether Gambel applied to final judgments in environmental cases. Because the Ninth Circuit has applied Gambel in such an instance I must follow suit.