Alliance for the Wild Rockies v. Jim Pena

865 F.3d 1211, 2017 WL 3259670, 84 ERC (BNA) 2105, 2017 U.S. App. LEXIS 13950
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 1, 2017
Docket16-35856
StatusPublished
Cited by118 cases

This text of 865 F.3d 1211 (Alliance for the Wild Rockies v. Jim Pena) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alliance for the Wild Rockies v. Jim Pena, 865 F.3d 1211, 2017 WL 3259670, 84 ERC (BNA) 2105, 2017 U.S. App. LEXIS 13950 (9th Cir. 2017).

Opinion

OPINION

M. SMITH, Circuit Judge:

Alliance for Wild Rockies (Alliance) appeals the district court’s denial of a preliminary injunction in an action regarding the North Fork Mill Creek A to Z Project (A to Z Project) in the Colville National Forest in Colville, Washington. Alliance alleges that United States Forest Service (Forest Service) violated the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) when it approved the A to Z Project. The district court concluded that Alliance did not satisfy any of the four required factors for the issuance of a preliminary injunction. We affirm.

BACKGROUND

I. Statutory Schemes

A. NFMA

NFMA, 16 U.S.C. § 1600 et seq., requires the Forest Service to develop and implement land and resource management plans (forest plans) for each national forest. 16 U.S.C. § 1604(a). “These plans op *1215 erate like zoning ordinances, defining broadly the uses allowed in various forest regions, setting goals and limits on various uses (from logging to road construction), but do not directly compel specific actions, such as cutting of trees in a particular area or construction of a specific road.” Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 966 (9th Cir. 2003). Of particular relevance to this appeal, forest plans must, among other substantive requirements, (1) “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area,” 16 U.S.C. § 1604(g)(3)(B), and (2) “insure that timber will be harvested from National Forest System lands only where ... protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat.” Id. § 1604(g)(3)(E)(iii). “After a forest plan is developed, all subsequent agency action, including site-specific plans ..., must comply with NFMA and the governing forest plan.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).

B. NEPA

NEPA, 42 U.S.C. § 4321 et sec/., “is a procedural statute intended to ensure environmentally informed decision-making by federal agencies.” W. Watersheds Project v. Abbey, 719 F.3d 1035, 1045 (9th Cir. 2013) (quoting Tillamook Cty. v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1143 (9th Cir. 2002)). NEPA requires agencies to take a “hard look” at the environmental consequences of proposed agency actions before those actions are undertaken. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). However, “NEPA does not mandate particular substantive results, but instead imposes only procedural requirements.” Cold Mountain v. Garber, 375 F.3d 884, 892 (9th Cir. 2004) (citations and internal quotation marks omitted).

Pursuant to NEPA’s implementing regulations, the agency proposing the action may prepare an environmental assessment (EA) to “[bjriefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement [ (EIS) ] or a finding of no significant impact [ (FONSI) ].” 40 C.F.R. § 1508.9(a)(1). An EA is a “concise public document” that “[s]hall include brief discussions of the need for the proposal, ... alternatives, ... the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” Id. § 1508.9(b). “If the EA reveals that the proposed action will significantly affect the environment, then the agency must prepare an EIS.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1067 (9th Cir. 2002). But, “[i]f the EA reveals no significant effect, the agency may issue a [FONSI].” Id.

II. The A to Z Project

The A to Z Project is a forest restoration project that encompasses 12,802 acres within the Colville National Forest, which is managed in accordance with the Colville National Forest Land and Resource Management Plan (Colville Forest Plan). The A to Z Project is generally comprised of commercial timber harvest treatments, road maintenance, stream restoration, and culvert replacements. The commercial timber harvest treatments include commercial thinning, shelterwood harvest, and aspen restoration, with the goals of increasing tree diversity, improving stand productivity and wildlife habitat, and reducing the severity of insect, disease, and wildfire threats. The project was the result of a multi-year collaboration among elected of *1216 ficials, environmental organizations, Native American tribes, the timber industry, and community organizations.

The Forest Service is empowered to “enter into stewardship contracting projects with private persons or other public or private entities to perform services to achieve land management goals for the national forests and the public lands that meet local and rural community needs.” 16 U.S.C. § 6591c(b). Pursuant to this authority, the Forest Service offered the A to Z Project to private contractors as a stewardship contract. Rodney D. Smoldon, the Forest Supervisor for the Colville National Forest, explained that “[t]he intent of this contract [was] to manage a piece of the Colville [National Forest] system lands from the planning stage through completion of all product removal and service work activities.” Pursuant to the proposal, the successful bidder would be responsible for hiring and funding a private contractor to perform the required NEPA analysis of the A to Z Project.

The Forest Service officially solicited proposals from the public for a contractor that would conduct all of the work required by the A to Z Project, but only a single bidder, Vaagen Brothers Lumber, submitted a proposal. Vaagen Brothers Lumber was awarded the contract, and it hired Cramer Fish Sciences to perform the NEPA analysis of the A to Z Project.

Cramer Fish Sciences prepared the EA, which was reviewed and approved by the Forest Service. On March 11, 2015, the Forest Service released the EA for public comment.

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865 F.3d 1211, 2017 WL 3259670, 84 ERC (BNA) 2105, 2017 U.S. App. LEXIS 13950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alliance-for-the-wild-rockies-v-jim-pena-ca9-2017.