Karuk Tribe v. William Stelle , 671 F. App'x 507 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARUK TRIBE; ENVIRONMENTAL No. 16-15818
PROTECTION INFORMATION
CENTER; KLAMATH-SISKIYOU D.C. No. 3:16-cv-01079-MMC
WILDLANDS CENTER; KLAMATH
RIVERKEEPER; CENTER FOR
BIOLOGICAL DIVERSITY, MEMORANDUM*
Plaintiffs-Appellants,
v.
WILLIAM STELLE; NATIONAL
MARINE FISHERIES SERVICE;
PATRICIA A. GRANTHAM; UNITED
STATES FOREST SERVICE,
Defendants-Appellees,
SISKIYOU COUNTY; AMERICAN
FOREST RESOURCE COUNCIL; GARY
RAINEY; GEORGE HARPER,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the Northern District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted November 15, 2016
San Francisco, California
Before: SCHROEDER, REINHARDT, and OWENS, Circuit Judges.
Karuk Tribe and various environmental organizations invoked the provisions
of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), and the National
Forest Management Act (“NFMA”), 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e), to
seek a preliminary injunction blocking the government’s salvage logging in a large
burned area of the Klamath National Forest. The district court denied the
preliminary injunction, and the logging project, known as the Westside Fire
Recovery Project, continues to go forward. Plaintiffs appeal.
We review the denial for abuse of discretion. The Lands Council v. McNair,
537 F.3d 981, 986 (9th Cir. 2008) (en banc), overruled on other grounds by Winter
v. Nat. Res. Def. Council, 555 U.S. 726 (2002). There was none.
The salvage logging has been undertaken to reduce the likelihood of more
severe fires in the future. Plaintiffs’ concern is with the loss of snags that are
beneficial to owl and salmon habitats. The government was required, under the
NFMA, to comply with the Klamath Forest Plan that spells out requirements for
the retention of snags. The project met those requirements. The government’s
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efforts to preserve large snags included (1) retaining large “legacy” green trees; (2)
leaving untouched snags in hydrologic riparian areas; (3) designating additional
snag retention areas; and (4) reducing surface fuels, which decreases the risk that
future fire consumes even more snags.
Plaintiffs rely on our decision in Oregon Nat. Res. Council Fund v. Brong,
492 F.3d 1120, 1126 (9th Cir. 2007), where we affirmed the entry of an injunction
to prevent snag removal by means of clear cutting on a large scale and undertaken
for governmental profit. Here, the Forest Service’s motives are to prevent the
danger of future fires, not economic gain, and the government has gone to pains to
avoid the risks of large-scale clear cutting envisioned in Brong.
Assuming that Plaintiffs have raised serious questions concerning the
logging in riparian reserves under the NFMA, the equities favor the government
because of the long term environmental, safety and economic benefits. See Earth
Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010).
With respect to the ESA, National Marine Fisheries Service did not rely
significantly, if at all, on the Forest Service’s planned mitigation measures in
reaching its no jeopardy conclusion. Plaintiffs cannot show a likelihood of success
under the ESA.
AFFIRMED.
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