This case was decided on November 16, but has not yet been included in a Forest Service litigation summary. At issue is the Bull Run project, a fire salvage restoration project to treat a strip of land along an area of roadways affected by the Cedar Fire on the Sequoia National Forest. The court denied the motion for a preliminary injunction. The Forest determined that the project could be categorically excluded from an EIS, and that there were no extraordinary circumstances that would prevent the use of a CE.
The court determined that the main issue involving the use of a CE was “whether it is reasonable to interpret a project that “salvages” hazard trees on a large scale as “routine road maintenance.” Here is the CE:
(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;
(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
After reviewing several similar cases, the court concluded, “the Court cannot determine with certainty at this stage of the case to what extent the Bull Run project is a true commercial “salvage” operation or whether it is, in practice, more like the Nez Perce project (which denied it was a salvage project), or whether, possibly, this is a distinction without a difference.” The court held: “For purposes of this motion for a preliminary injunction, the Court need not definitively determine the issue on the merits; it is enough to conclude that success on the merits as to the CE issue is unclear.” Thus plaintiffs had not made their case for likelihood of prevailing. (I think the FS got away with one here, especially because there is another CE for salvage projects, but for limited acreage; maybe it will become more “clear” at trial.)
The court found no extraordinary circumstances with regard to the federally endangered mountain yellow-legged frog and the Pacific fisher and California spotted owl (both designated as sensitive species by the Forest Service). For the spotted owl, the court determined that the Forest had adequately considered information about their use of post-fire areas (including submissions from the John Muir Project and Chad Hanson). Lack of quality fisher habitat swayed the court to accept the FS explanation regarding fisher connectivity. The project included 30 “site-specific measures” designed to minimize the risks to the frog, and the court cited the FWS conclusion that the resulting risk to individuals was low. (These measures would be good candidates for forest plan components when the Sequoia revises its forest plan.)