Environmental Protection Information Center v. Carlson, No. 19-17479 (9th Cir. 2020)
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The Ninth Circuit reversed the district court's order denying EPIC's request for a preliminary injunction, challenging the Forest Service's approval of the Ranch Fire Roadside Hazard Tree Project in Northern California. In this case, 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).
The panel held that EPIC will likely succeed on the merits of its claim that an extensive commercial logging project that includes felling large, partially burned merchantable trees is not considered "repair and maintenance" within the meaning of section 220.6(d)(4). The panel also held that EPIC will suffer irreparable, though limited harm. Furthermore, EPIC has demonstrated that the balance of the equities and the public interest weigh in its favor. Accordingly, the panel remanded for further proceedings.
Court Description: 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. 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.
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