Earth Island Institute v. Elliott (E. D. California)

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.)

8 thoughts on “Earth Island Institute v. Elliott (E. D. California)”

  1. Roads require ‘buffer zones’, to protect their proper functioning. Using a road as a boundary line must place that boundary at the edge of the road’s ‘buffer zone’. Plugged culverts, clogged ditches and failed waterbars are often caused by fallen trees.

    The eco’s insistence that all trees be cut and left in place is not acceptable, for multiple reasons.

  2. This is about hazardous trees within 300 feet of road. It seems to me whether they are salvaged or not does not have much biological significance. Here’s what it looks like when they are not..

    Note: This is from Rocky Mountain National Park and is not fire salvage but bug kill.

    Here’s the AFRC take on this..

    Judge Denies Attempt to Stop Bull Run Project
    On November 17, Judge O’Neill from the U.S. District Court in the Eastern District of California
    denied a request for a preliminary injunction seeking to halt the removal of dead and dying trees
    under the Bull Run Roadside Hazard Tree Mitigation Project (Bull Run Project) on the Sequoia
    National Forest.
    As reported in the October Newsletter, plaintiffs, Earth Island Institute and Sequoia
    ForestKeeper, sought to block the Bull Run Project, specifically the Forest Service’s use of a
    road maintenance “categorical exclusion” which enables the speedy removal of hazard trees
    posing a threat to public safety. AFRC member Sierra Forest Products holds the timber sale
    contract for 17.97 miles of roadside hazard trees removal (1,307 acres) which will generate 5.885
    million board feet of timber. AFRC intervened on behalf of Sierra Forest Products.
    The Forest Service developed the Bull Run Project in response to the lightning-induced 2016
    Cedar Fire, which burned 29,322 acres of the Sequoia National Forest, killing or damaging trees
    and causing public safety concerns along 50.2 miles of roads within the national forest. The
    purpose of the project is to remove dead or dying trees that create unsafe conditions for travelers
    and firefighters and, at the same time, provide economic value in an area of the Forest impacted
    detrimentally by the Cedar Fire. The project was authorized under the “road maintenance”
    categorical exclusion. The national forest proposed treatment on about 3,500 acres located in the
    central Greenhorn Mountains. Under the project, the hazardous trees within 300 feet of each
    side of the road will be felled and no new or temporary roads will be constructed.
    In his 29-page opinion, Judge O’Neill concluded that the environmental groups would be
    unlikely to succeed on claims that the project was not authorized under the “road maintenance”
    categorical exclusion. Judge O’Neill also held that the environmental groups would not likely
    succeed on claims that “extraordinary circumstances” related to the mountain yellow-legged
    frog, Pacific fisher, and California spotted owl precluded the use of the categorical exclusion,
    determining that the project removed dead and dying trees in low-quality wildlife habitat while
    leaving 88 percent of the Cedar Fire burn area untouched.
    With the denial of the preliminary injunction, project implementation can begin immediately

    • Indeed, here in California, we need to have thinning, hazard tree and salvage projects to be exempt from litigation, as long as they meet certain criteria. It is good to see the Courts rejecting such opposition to public safety and common sense.

  3. This is also about whether the Forest Service did its legally required due diligence to evaluate environmental impacts. It seems unlikely to me that this road maintenance CE was intended to cover this situation, or that the evaluation required to establish the CE was based on projects like this one. The court seems to end up relying most heavily on this language from the Forest Service in another district court case involving the RIM fire:

    “Road maintenance preserves the drainage function or serviceability of the road. Maintenance activities generally include: blading; brushing; removal of hazard trees; repair or replacement of road surfaces; cleaning, repair or installation of drainage structures such as culverts, dips and ditches; dust abatement; and, installation or repair of signs. Maintenance actions generally do not disturb ground outside the existing road profile . . . other than removal of material around culvert inlets.”

    “Removal of hazard trees?” Yes. But is 300 feet on each side all within the existing road profile?

    • Of course, not all of that 300 feet is used, especially on the downhill side of the road. Of course, not all dead or dying trees are hazardous, within that 300 feet. The plaintiffs are assuming an awful lot about the intentions of the Forest Service in hazard tree projects. Remember, it is not all about the road profile. The road ‘buffers’ come into play, just like next to a stream or river.

      Additionally, the Raker Act played a role on the Rim Fire, concerning power lines, roads and canals that are part of the Hetch Hetchy water system.

      Yes, it looks like “Removal of hazard trees” is in there, and there isn’t anything said about someone paying to remove them. It’s a big fuels problem if you concentrate fuels along roads. Besides, there is no budget money to fell hazard trees, treat the slash, fix the roads and burn the piles, without a timber sale of hazard trees.

  4. “Besides, there is no budget money to fell hazard trees, treat the slash, fix the roads and burn the piles, without a timber sale of hazard trees.”

    That’s actually the plaintiffs’ point. It’s really a timber sale to raise money, which is not covered by the road maintenance CE. If the FS is doing timber sales for financial reasons, they need to be honest about that.

  5. It looks like there has been no final decision on the merits of this case, but the Forest Service sees it as a green light for more of the same. The Mendocino National Forest has invoked the same categorical exclusion for “repair and maintenance of roads” to authorize 7000 acres of salvage harvest near roads within the Ranch Fire footprint. Here is the CE determination for the Bartlett Project:

    Someone has also pointed out that a CE for salvage harvest is limited to 250 acres, but that does not appear to be what was used here. Here’s one version of the story:
    “The basis was a provision of the federal policy involving repair and maintenance of roads and trails for “salvage of dead and/or dying trees” in an area “not to exceed 250 acres,” among other things, according to a March press release issued by the Forest Service.”
    Here’s another:


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