Epic v. Ann Carlson ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENVIRONMENTAL PROTECTION No. 19-17479
INFORMATION CENTER,
Plaintiff-Appellant, D.C. No.
3:19-cv-06643-
v. EMC
ANN CARLSON, in her official
capacity as the Forest Supervisor of OPINION
the Mendocino National Forest;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
SIERRA PACIFIC INDUSTRIES,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted May 27, 2020
San Francisco, California
Filed August 3, 2020
2 EPIC V. CARLSON
Before: William A. Fletcher and Kenneth K. Lee, Circuit
Judges, and Benjamin H. Settle,* District Judge.
Opinion by Judge W. Fletcher;
Dissent by Judge Lee
SUMMARY**
Environmental Law
The panel reversed the district court’s order denying
Environmental Protection Information Center (“EPIC”)’s
request for a preliminary injunction, challenging the United
States Forest Service’s approval of the Ranch Fire Roadside
Hazard Tree Project in Northern California (the “Project”).
The Project authorized the Forest Service to solicit bids
from private logging companies for the right to fell and
remove large fire-damaged trees up to 200 feet from either
side of roads in the Mendocino National Forest. Under the
National Environmental Policy Act, rather than preparing an
Environmental Assessment or an Environmental Impact
Statement for the Project, the Forest Service relied on a
categorical exclusion (“CE”) for road repair and maintenance
in 36 C.F.R. § 220.6(d)(4).
*
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EPIC V. CARLSON 3
The panel discussed the requirements for a preliminary
injunction. First, the panel held that EPIC was likely to
succeed on the merits of its claim that the Forest Service
erred in relying on the CE for road repair and maintenance.
The panel noted that the rationale for a CE was that a project
that will only have a minimal impact on the environment
should be allowed to proceed without an environmental
impact statement or an environmental assessment. The CE
upon which the Forest Service relied authorized projects for
such things as grading and resurfacing of existing roads,
cleaning existing culverts, and clearing roadside brush. The
panel concluded that under no reasonable interpretation of the
language of 36 C.F.R. § 220.6(d)(4) did the Project come
within the CE for “repair and maintenance” of roads. Second,
the panel held that EPIC submitted evidence of irreparable,
although limited, harm. Third, the panel held that the balance
of equities and the public interest weighed in EPIC’s favor.
The panel reversed the denial of the requested preliminary
injunction, and remanded for further proceedings.
Judge Lee dissented. He would hold that the district court
did not abuse its discretion in denying EPIC’s request for a
preliminary injunction, and he would defer to the agency’s
actions within its expertise.
COUNSEL
Matt Kenna (argued), Public Interest Environmental Law,
Durango, Colorado; René P. Voss, Natural Resources Law,
San Anselmo, California; for Plaintiff-Appellant.
Jeffrey Bossert Clark (argued), Assistant Attorney General;
Eric Grant, Deputy Assistant Attorney General; Sally J.
4 EPIC V. CARLSON
Sullivan, John P. Tustin, and Jeffrey S. Beelaert, Attorneys;
Environment and Natural Resources Division, Washington,
D.C.; for Defendants-Appellees.
Sara Ghafouri (argued) and Lawson E. Fite, American Forest
Resource Council, Portland, Oregon; Tyler Welti, Venable
LLP, San Francisco, California; for Intervenor-Defendant-
Appellee.
OPINION
W. FLETCHER, Circuit Judge:
In July 2018, the Ranch Fire burned more than 400,000
acres in Northern California, including almost 300,000 acres
in the Mendocino National Forest. After the fire, the United
States Forest Service approved the Ranch Fire Roadside
Hazard Tree Project (the “Project”). The Project authorizes
the Forest Service to solicit bids from private logging
companies for the right to fell and remove large fire-damaged
trees up to 200 feet from either side of roads in the National
Forest. Rather than preparing an Environmental Assessment
(“EA”) or an Environmental Impact Statement (“EIS”) for the
Project, the Forest Service relied on a categorical exclusion
(“CE”) for road repair and maintenance in 36 C.F.R.
§ 220.6(d)(4). Plaintiff Environmental Protection
Information Center (“EPIC”) challenges the Forest Service
action, contending that the Project does not qualify for the
exclusion. The district court agreed with the Forest Service,
holding that the Project qualified for the exclusion, and
denied a preliminary injunction. We reverse and remand.
EPIC V. CARLSON 5
I. Statutory and Regulatory Framework
The National Environmental Policy Act (“NEPA”)
“requires that federal agencies perform environmental
analysis before taking any ‘major Federal actions
significantly affecting the quality of the human
environment.’” Ctr. for Biological Diversity v. Salazar,
706 F.3d 1085, 1094 (9th Cir. 2013) (quoting NEPA at
42 U.S.C. § 4332(2)(C)). “When the Government conducts
an activity, NEPA itself does not mandate particular results.
Instead, NEPA imposes only procedural requirements to
ensure that the agency, in reaching its decision, will have
available, and will carefully consider, detailed information
concerning significant environmental impacts.” Winter v.
Nat. Res. Def. Council, 555 U.S. 7, 23 (2008) (internal
quotation marks and citations omitted).
An agency can comply with NEPA in three ways. It can
prepare an EIS; it can prepare an EA; or it can invoke a CE.
An EIS is the most searching review. It is required for any
action “significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). An EA is less
searching. Its central function is to determine whether an EIS
is required. 40 C.F.R. § 1508.9. A CE allows an agency to
avoid preparing either an EIS or an EA. CEs are appropriate
for “actions which do not individually or cumulatively have
a significant effect on the human environment and which
have been found to have no such effect.” 40 C.F.R. § 1508.4.
II. Stated Purpose and Criteria of Project
According to Ann D. Carlson, Forest Supervisor for the
Mendocino National Forest, “The primary purpose of the
Project is to reduce current and potential safety hazards along
6 EPIC V. CARLSON
roads [in the National Forest] to create a safe transportation
system. . . . [T]he Project plans to remove hazard trees
through a series of salvage sales.” Carlson stated in a
declaration in the district court that the Project’s “[r]oadside
hazard treatments involve removing only trees that constitute
hazards to the selected roads . . . and that have the potential
to reach roadways.”
The vegetation in the burned area of the Mendocino
National Forest comprises a variety of forest types, including
mixed conifer, oak woodlands, pine, and Douglas fir. A
logging company whose bid has been accepted may fell
“merchantable hazard trees” of fourteen or more inches
diameter at breast height (“DBH”) that are “within one and a
half tree-heights” of the road. Any tree within 200 feet of the
centerline of the road that has been partially burned and has
a 50 percent or higher probability of mortality is eligible for
felling. For “the roads that run adjacent to the Snow
Mountain Wilderness,” the Project allows cutting of eligible
trees within 100, rather than 200, feet of the centerline. In
total, the Project authorizes the logging of millions of board
feet of timber on nearly 4,700 acres of National Forest land.
Anthony Saba, a forester/silviculturist employed by the
Forest Service, stated in a declaration that merchantable trees
in the Project areas range from 60 to 185 feet in height.
According to Saba, in one area of the Project, the average tree
height is 100 feet; in another, the average height is 111 feet.
Under the criteria of the Project, a logging company may cut
a 100-foot tree located as far as 150 feet from the road, or a
111-foot tree located as far as 166 feet from the road. At the
outer limit of the Project area, a company may cut even taller
trees. If a 100-foot tree located 150 feet from the road were
to fall directly toward the road at a 90 degree angle, the tip of
EPIC V. CARLSON 7
the tree would come to the ground 50 feet from the road. If
a 111-foot tree located 165 feet from the road were to fall in
the same manner, its tip would come to the ground 54 feet
from the road. If the trees were to fall at any other angle,
their tips would come to the ground at greater distances from
the centerline.
III. Categorical Exclusions
There are two categorical exclusions potentially relevant
to the Project. One is for “repair and maintenance” of roads
in the National Forest. The other is for “salvage” logging of
“fire-damaged trees” on tracts of 250 acres or less. The
Forest Service prepared neither an EIS nor an EA for the
Project. Instead, it relied on the first CE.
The first CE covers:
(4) Repair and maintenance of roads, trails,
and landline boundaries. Examples include
but are not limited to:
(i) Authorizing a user to grade, resurface,
and clean the culverts of an established
NFS road;
(ii) Grading a road and clearing the
roadside of brush without the use of
herbicides;
(iii) Resurfacing a road to its original
condition;
8 EPIC V. CARLSON
(iv) Pruning vegetation and cleaning
culverts along a trail and grooming the
surface of the trail; and
(v) Surveying, painting, and posting
landline boundaries.
36 C.F.R. § 220.6(d)(4). Neither a “case file and decision
memo” nor a “supporting record” is required in order to
invoke the CE under § 220.6(d)(4).
The second CE covers:
(13) Salvage of dead and/or dying trees not to
exceed 250 acres, requiring no more than
½ mile of temporary road construction. The
proposed action may include incidental
removal of live or dead trees for landings,
skid trails, and road clearing. Examples
include, but are not limited to:
(i) Harvest of a portion of a stand
damaged by a wind or ice event and
construction of a short temporary road to
access the damaged trees, and
(ii) Harvest of fire-damaged trees.
36 C.F.R. § 220.6(e)(13). A “case file and decision memo”
and a “supporting record” are required in order to invoke the
CE under § 220.6(e)(13).
EPIC V. CARLSON 9
IV. Procedural Background
EPIC filed suit in federal district court on October 16,
2019, contending that the Project does not qualify for the road
maintenance and repair CE. As of November 21, 2019,
logging had begun in two areas of the Project, and the Forest
Service had finalized bidding on a third area. Bidding had
not yet begun on the other areas in the Project. The district
court entered a temporary restraining order (“TRO”) pending
its hearing on EPIC’s request for a preliminary injunction.
On December 4, 2019, the court denied the preliminary
injunction and lifted the TRO. EPIC appealed, and we set an
accelerated briefing schedule. We heard oral argument on
May 27, 2020.
V. Standard of Review
When deciding whether to issue a preliminary injunction,
a district court considers whether the requesting party has
shown “[1] that he is likely to succeed on the merits, [2] that
he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.”
Winter, 555 U.S. at 20. Likelihood of success on the merits
is a threshold inquiry and is the most important factor. See,
e.g., Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir.
2019).
We review a grant or denial of a preliminary injunction
for abuse of discretion. See, e.g., United States v. California,
921 F.3d 865, 877 (9th Cir. 2019). “The district court’s
interpretation of the underlying legal principles, however, is
subject to de novo review and a district court abuses its
discretion when it makes an error of law.” Sw. Voter
10 EPIC V. CARLSON
Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003) (en banc). Under the abuse-of-discretion standard,
“as long as the district court got the law right, it will not be
reversed simply because the appellate court would have
arrived at a different result if it had applied the law to the
facts of the case.” Melendres v. Arpaio, 695 F.3d 990, 999
(9th Cir. 2012) (citations and alterations omitted).
VI. Discussion
A. Likely Success on the Merits
With respect to the Project at issue, the CE for road repair
and maintenance is unambiguous. The CE applies to “repair
and maintenance of roads, trails, and landline boundaries.”
“Repair” and “maintenance” are common words with well-
understood ordinary meanings. In order to ensure that these
words are understood in accordance with their ordinary
meanings rather than as terms of art, the CE provides
examples. “Repair and maintenance” of roads include
“grad[ing], resurfac[ing], and clean[ing] the culverts” of a
road; “grading a road”; “clearing the roadside of brush
without the use of herbicides”; and “resurfacing a road to its
original condition.” 36 C.F.R. § 220.6(d)(4)(i)–(iii). The CE
specifies that the “repair and maintenance” are not limited to
these examples, but the clear inference (even without
invoking the principle of ejusdem generis), is that other
examples should be similar in character to the examples
provided.
The question before us is whether an extensive
commercial logging project that includes felling large,
partially burned “merchantable” trees—including 100- and
111-foot trees located 150 and 166 feet from roads, as well as
EPIC V. CARLSON 11
taller trees even farther away—is “repair and maintenance”
within the meaning of § 220.6(d)(4). In her declaration in the
district court seeking to justify the “repair and maintenance”
CE, Forest Supervisor Carlson repeatedly referred to all the
trees to be felled under the Project as “hazard trees.” While
all of the trees within the scope of the Project may be
hazardous in some sense, many of them pose no imminent
hazard. As described above, a number of the trees will not
come close to the road even if they fall directly toward it.
We have no doubt that felling a dangerous dead or dying
tree right next to the road comes within the scope of the
“repair and maintenance” CE. But the Project allows the
felling of many more trees than that. The rationale for a CE
is that a project that will have only a minimal impact on the
environment should be allowed to proceed without an EIS or
and EA. The CE upon which the Forest Service relies
authorizes projects for such things as grading and resurfacing
of existing roads, cleaning existing culverts, and clearing
roadside brush. A CE of such limited scope cannot
reasonably be interpreted to authorize a Project such as the
one before us, which allows commercial logging of large
trees up to 200 feet away from either side of hundreds of
miles of Forest Service roads.
Plaintiff EPIC argues that the CE for salvage logging, 36
C.F.R. § 200.6(e)(13), is the only potentially applicable CE
for salvage logging of fire-damaged trees. According to
EPIC, no project that allows salvage logging over an area that
exceeds 250 acres is eligible for a CE. At an earlier time,
when the salvage logging CE was first adopted, the Forest
Service may have agreed with this position, as EPIC
contends. But it is clear that even if it once agreed, the Forest
Service no longer agrees. The current position of the Forest
12 EPIC V. CARLSON
Service is that the CEs for road repair and maintenance and
for salvage logging overlap. That is, in the view of the Forest
Service, if a project that allows felling of dangerous trees near
roads comes within the CE for repair and maintenance, that
CE is available even if the total area of the project is greater
than 250 acres.
In the case before us, we need not go so far as EPIC’s
argument would take us. The Project does not target only
trees that pose an immediate danger to travelers. We
therefore need not decide the question that would be
presented, for example, if a post-fire salvage logging project
allowed felling of dead and dying trees up to only 20 feet
back from 100 miles of Forest Service roads, such that the
area covered by the project would be more than 250 acres.
Nothing close to that question is now before us.
The Project at issue provides substantial revenue to the
Forest Service. It allows logging of commercially valuable
trees up to 200 feet on either side of the road; allows felling
of partially burned trees that have a 50 percent or higher
chance of mortality; allows felling of large trees at such
distances from the road that their tips will be 50 or more feet
from the road even if the tree falls directly toward the road;
and allows logging over an area of approximately 4,700
acres. Under no reasonable interpretation of its language
does the Project come within the CE for “repair and
maintenance” of roads.
B. Irreparable Harm
“Ongoing harm to the environment constitutes irreparable
harm warranting an injunction. When a project may
significantly degrade some human environmental factor,
EPIC V. CARLSON 13
injunctive relief is appropriate.” Southeast Alaska
Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d
1097, 1100 (9th Cir. 2006) (internal quotation marks and
citations omitted); see also Amoco Prod. Co. v. Vill. of
Gambell, 480 U.S. 531, 545 (1987) (noting that
environmental harm “can seldom be adequately remedied by
money damages and is often permanent or at least of long
duration, i.e., irreparable”).
Kimberly Baker, a member of EPIC, submitted an
affidavit in the district court stating that her enjoyment of the
National Forest will be diminished if extensive logging were
to occur for 200 feet on either side of the roads running
through the burned area of the National Forest, as would be
allowed under the Project. She wrote, “[I]f the Forest Service
were to prepare an Environmental Assessment or
Environmental Impact Statement, it would have to include
alternatives to the planned logging. Alternatives . . . could
include leaving the living trees standing, retaining more trees
on the downhill side of the road and some of the downed
hazard logs on the ground, which would be extremely helpful
to wildlife and soil health and improve my enjoyment of the
affected areas if such alternatives were chosen.” Baker also
submitted two research articles addressing the effects of
logging on post-fire landscapes.
C. Balance of Equities and the Public Interest
When “the government is a party, we consider the balance
of equities and the public interest together.” California v.
Azar, 911 F.3d 558, 581 (9th Cir. 2018). If irreparable
environmental injury “is sufficiently likely,” as in this case,
“the balance of harms will usually favor the issuance of an
injunction to protect the environment.” Amoco Prod. Co.,
14 EPIC V. CARLSON
480 U.S. at 545. We conclude that the balance of the equities
and the public interest weigh in EPIC’s favor.
The Forest Service argues that the balance of equities and
the public interest favor it rather than EPIC. It contends that
the harm suffered by EPIC and its members is relatively
minor. The area covered by the Project is on either side of
roads in the burned areas of the National Forest and is
therefore easily visible to virtually all visitors to the Forest,
but the Forest Service points out that it comprises only
1.6 percent of the total burn area. On the other side of the
ledger, the Forest Service argues the balance of equities and
the public interest favor the Service “because [the Project]
seeks to reduce the threat to public safety and to preserve
long-term forest health.”
We of course agree with the Forest Service that public
safety is important. In part, the Project serves that interest
directly, to the extent that some of the trees that would be
felled are undoubtedly dangerous to travelers. But as
discussed above, the Project allows felling of trees that are at
such a distance from roads that their tips will never come
close to the edge of the road, even if the trees fall directly
toward the road at a 90 degree angle. Further, commercial
logging companies working under the Project will not fell
hazardous trees smaller than 14 inches DBH, even if the trees
are right next to the road. But the Project also indirectly
serves the interest of public safety. As Forest Supervisor
Carlson points out in her declaration, revenue from the
Project will allow the Forest Service to pay for the felling of
such trees. This is a valid and important point, but we note
the obvious: A budgetary system that requires the
authorization of commercial salvage logging operations in
order to finance work necessary for public safety can put the
EPIC V. CARLSON 15
Forest Service in an awkward and conflicted position in
deciding whether, and under what conditions, to authorize
such operations. See Earth Island Inst. v. U.S. Forest Serv.,
351 F.3d 1291, 1309 (9th Cir. 2003) (Noonan, J., concurring).
We also of course agree with the Forest Service that the
preservation of long-term forest health is important. We are
not in a position to second-guess the Forest Service as to
whether the logging authorized by the Project furthers that
goal, and we defer to the Forest Service’s considered
judgment that it does.
In the end, however, we are not persuaded that public
safety will actually be put at risk by granting the relief EPIC
seeks. EPIC has never denied the Forest Service’s right to
rely on the CE for road repair and maintenance in order to fell
trees next to the road that pose an immediate danger to users
of the road. To the extent the Forest Service authorizes
salvage logging that constitutes more than repair and
maintenance, EPIC seeks only the preparation of an EIS or an
EA. The Forest Service has not shown that fulfilling its
obligation to prepare an EIS or an EA is inconsistent with the
goal of public safety.
The public interest is served by requiring the Forest
Service to comply with the law. We have concluded, above,
that the Project does not qualify for the CE for road
maintenance and repair. The Forest Service must therefore
prepare either an EIS or an EA.
Conclusion
We conclude that EPIC will succeed on the merits of its
claim; that it will suffer irreparable, though limited, harm;
16 EPIC V. CARLSON
and that it has demonstrated that the balance of equities and
the public interest weigh in its favor. We therefore reverse
the district court’s denial of the requested preliminary
injunction and remand for further proceedings not
inconsistent with this opinion.
REVERSED and REMANDED.
LEE, Circuit Judge, dissenting:
The Ranch Fire Roadside Hazard Tree Project (the
“Project”) may not be optimally designed for the reasons
outlined by the majority. But big problems often require big
and imperfect solutions. And under a deferential standard of
review, we should not second-guess an imperfect plan
fashioned by the United States Forest Service, even if we
could have crafted a better tailored one.
The Ranch Fire burned nearly 410,000 acres of land,
earning its title as the largest wildfire in California’s history.
About 288,000 acres of the burned area is in the Mendocino
National Forest. Over 770 miles of public roads that allow
visitors to access the Forest for recreation and respite are now
threatened by charred trees, some of which tower over the
landscape up to 185 feet in height. If these trees fell on public
roads, the lives of visitors, first responders, and United States
Forest Service personnel would be placed in grave danger.
The Forest Service responded with an imperfect but
workable solution: Salvage operators will remove at their
expense dying trees that threaten high-priority roadways and
pay the Forest Service for that privilege. The Project’s criteria
EPIC V. CARLSON 17
are sufficiently strict, requiring operators to remove only
what is reasonably necessary to further road safety and
maintenance. Trees eligible for removal must be 14 inches in
diameter at breast height, they must be within one and a half
times their individual height distance from the road, and they
must have a 50% or greater likelihood of mortality. In other
words, eligible trees must be large, able to strike the road, and
at least halfway dead. According to the declaration of
Mendocino National Forest Supervisor Ann Carlson, timber
sales are the primary means to fell thousands of hazardous
trees because it is “highly unlikely” that the Service “could
obtain sufficient appropriated funds [from Congress] to
accomplish all project activities.” The Forest Service
estimates that the cost to the agency would be about
$5.5 million otherwise.
While I share majority’s concerns about some aspects of
the Project, I respectfully dissent because we must defer to
the Forest Service’s plausible plan and the district court’s
denial of preliminary injunction.
* * * * *
Our review is limited by a double dosage of deference.
First, we review the district court’s denial of a preliminary
injunction for abuse of discretion. See United States v.
California, 921 F.3d 865, 877 (9th Cir. 2019). This is a highly
deferential standard. A district court’s decision “will not be
reversed simply because the appellate court would have
arrived at a different result if it had applied the law to the
facts of the case.” Melendres v. Arpaio, 695 F.3d 990, 999
(9th Cir. 2012) (citations and alterations omitted).
18 EPIC V. CARLSON
Second, we need to be mindful that our review is further
limited in a challenge to an agency action. Under the
Administrative Procedure Act, “[a]n agency’s determination
that a particular action falls within one of its categorical
exclusions is reviewed under the arbitrary and capricious
standard.” Alaska Ctr. for the Env’t v. USFS, 189 F.3d 851,
857 (9th Cir. 1999). Courts uphold agency action unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). The standard
is “highly deferential, presuming the agency action to be valid
and affirming the agency action if a reasonable basis exists
for its decision.” Ranchers Cattlemen Action Legal Fund
United Stockgrowers of Am. v. USDA, 499 F.3d 1108, 1115
(9th Cir. 2007) (citation and internal quotation marks
omitted). A court considers whether “the evidence in the
administrative record permitted the agency to make the
decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766,
769 (9th Cir. 1985). Above all else, “we do not substitute our
judgment for that of the agency.” N. Plains Res. Council, Inc.
v. Surface Transp. Bd., 668 F.3d 1067, 1074 (9th Cir. 2011)
(internal citation omitted).
The district court did not abuse its discretion in
denying EPIC’s requested preliminary injunction.
Plaintiffs seeking a preliminary injunction carry a heavy
burden. A plaintiff must show “[1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable harm
in the absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is in the
public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7,
20 (2008). As the majority notes, likelihood of success on the
merits is most important and typically dispositive. See Edge
v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019). When,
EPIC V. CARLSON 19
as here, “the government is a party, we consider the balance
of equities and the public interest together.” California v.
Azar, 911 F.3d 558, 581 (9th Cir. 2018).
1. The district court did not abuse its discretion in
finding that EPIC did not show a likelihood of success
on the merits.
The majority questions two aspects of the Project: the
200-foot project area that extends outward from the
roadway’s centerline, and the one and a half height modifier
for determining which trees are potentially capable of striking
the road. While we can question some of the assumptions and
analyses provided by the Forest Service, the record shows a
sufficient basis for the agency’s decisions.
In his declaration, Anthony Saba, a forester and
silviculturist for the Forest Service, stated that the 200-foot
boundary “was intended to capture the heights of most of the
hazard trees that had the potential to reach the roadways
within this Project area based on an estimated tree height
average of approximately 100 feet.” Mr. Saba also noted that
trees in the Project area vary between 60 and 185 feet in
height. Thus, if trees exist within the Project area up to
185 feet in height, then they may threaten a road that has a
centerline at maximum 200-feet away from such trees and
thus the 200-foot boundary is reasonable.
The Forest Service’s reliance on the 1.5 tree height
distance modifier poses a more difficult question. The
majority states that it has “no doubt that felling a dangerous
dead or dying tree right next to the road comes within the
scope of the ‘repair and maintenance’ CE [categorical
exclusion]. But the Project allows the felling of many more
20 EPIC V. CARLSON
trees than that.” Maj. Op. at 11. To prove this, the majority
notes that a 100-foot-tall tree that meets the other criteria is
eligible for removal if it is within 150 feet of the road. They
hypothesize that this tree does not threaten the road system
because even if it fell perpendicular to the road, its tip would
still land 50 feet away. So, the majority argues, the repair and
maintenance categorical exclusion does not apply.
The legitimacy of the tree height modifier thus becomes
a paramount issue in this case. If the agency reasonably
concluded that the modifier accurately reflects the potential
damage area when a tree falls, then the “repair and
maintenance” categorical exclusion would presumably apply.
In other words, if the majority’s hypothetical 100-foot tree
that sits 150 feet from the road poses an actual risk to the road
system, then the repair and maintenance categorical exclusion
would cover the felling of that tree.
The majority concludes, however, that the modifier is not
legitimate because the hypothetical 100-foot tree would
extend only 100 feet on the ground once it fell, putting it well
away from the road. But the agency provided a reasonable
and plausible — though not indisputable — basis for the
modifier. Namely, decayed trees can sling detritus like
branches and limbs when falling; the tree’s final resting place
on the ground does not reflect a one-to-one relationship with
its height. The Forest Service’s Hazard Tree Guidelines note:
“When a tree or tree part fails, it may strike other trees or
debris on the ground and fling material a considerable
distance.” These conditions can be exacerbated by other
factors, too, like wind, breakage forces, and slope. I agree
with the majority that there are a limited number of angles
that a tree might fall to pose an actual threat to a public road.
But we cannot know the exact direction a tree will fall until
EPIC V. CARLSON 21
it does. While we may question whether the Forest Service’s
use of a 1.5 tree height modifier reflects the most accurate or
efficient criterion, it is not arbitrary or capricious and we
must defer to the agency’s expertise in this area. See Save the
Peaks Coal. v. USFS, 669 F.3d 1025, 1035 (9th Cir. 2012)
(“Under the APA, [an] agency’s decision may be set aside
only if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” (emphasis added)
(internal citations omitted)); see also 5 U.S.C. § 706(2)(A).
Moreover, the record convinces me — as it did the district
court, which believed the Project “impos[es] a meaningful
limit against a free-for-all harvest” — that the Service does
not intend to mark every eligible tree in the Project area. For
example, Mr. Saba stated in his declaration that otherwise
eligible trees would not be marked for removal by the Forest
Service where geographic blockages (like rock outcroppings)
would prevent the trees from striking a road. He stated that
“[t]ree marking crews are trained to account for these
variances, and to only mark trees meeting the criteria that
have an actual potential to impact Forest roadways.”
While the Project may be imperfect and we may question
the wisdom of some of the assumptions, I cannot say that the
Forest Service’s decisions were arbitrary or capricious. Nor
can I say that district court abused its discretion in finding
that EPIC failed to show that it was likely to succeed on the
merits of their claim.
22 EPIC V. CARLSON
2. Irreparable harm, the balance of equities, and the
preliminary injunction being in the public’s interest
are closer calls than the majority recognizes.
The district court did not abuse its discretion in finding
that EPIC failed to show a likelihood of success on the merits
of its claim. That alone should end our inquiry. See Edge,
929 F.3d at 663. But the remaining preliminary injunction
factors are a closer call than the majority recognizes.
The majority correctly notes that ongoing harm to the
environment may constitute irreparable harm, but it is not
clear that Project will lead to such damage. While some
portions of the Project overlap with critical habitat for spotted
owls, a Forest Service biologist concluded that the Project is
unlikely to adversely affect spotted owl habitat.
As for the balance of equities and whether the preliminary
injunction is in the public’s interest, the majority concludes
that these factors favor EPIC because “EPIC seeks only the
preparation of an EIS or an EA,” and that “[t]he public
interest is served by requiring the Forest Service to comply
with the law.” Maj. Op. at 15. But Ms. Carlson makes clear
in her declaration that without these timber sales, the Service
will be forced to close roads and recreation areas on a long-
term basis. Certainly, the public has a strong interest in
enjoying trips to Mendocino National Forest. The public also
has an interest in protecting taxpayers’ money through sound
management by the Forest Service. I do not believe the
majority’s opinion adequately considers these countervailing
concerns. See Weinberger v. Romero-Barcelo, 456 U.S. 305,
312 (1982) (“In exercising their sound discretion, courts of
equity should pay particular regard for the public
consequences in employing the extraordinary remedy of
EPIC V. CARLSON 23
injunction.”); see also League of Wilderness Defs./Blue
Mountains Biodiversity Project v. Connaughton, 752 F.3d
755, 765 (9th Cir. 2014) (“Both the economic and
environmental interests are relevant factors, and both carry
weight in this analysis.”).
In sum, I believe that the district court did not abuse its
discretion in denying EPIC’s request for a preliminary
injunction, and that we must defer to the agency’s actions
within its expertise. I thus respectfully dissent.