# Cascadia Wildlands v. David Warnack

> District Court, D. Oregon · November 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10393980

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CASCADIA WILDLANDS, et al.,

Plaintiffs, Civ. No. 6:21-cv-1227-MC (lead case)
Civ. No. 6:21-cv-1228-MC (trailing case)
and

FOREST SERVICE EMPLOYEES OPINION AND ORDER
FOR ENVIRONMENTAL ETHICS,

Consolidated Plaintiffs,

v.

DAVID WARNACK, in his official capacity
as Willamette national Forest Supervisor; and
the UNITED STATES FOREST SERVICE,

Defendants.
_____________________________

MCSHANE, Judge:
Plaintiffs Cascadia Wildlands, Oregon Wild, Willamette Riverkeeper, and Forest Service
Employees for Environmental Ethics, in two now-consolidated cases, move for a preliminary
injunction halting a logging project set to begin on November 7, 2021. Defendants David
Warnack and the United States Forest Service urge the Court to allow the project to proceed in
order to make roughly 400 miles of Forest Service roads safe for the public, fire fighters, and
other first responders.
BACKGROUND
The summer of 2020 was a terrible year for forest fires in the Pacific Northwest. In
August and September of 2020, three fires in the Willamette National Forest burned 176,000
acres of forest. “As part of the fire suppression effort, danger trees were cut along roadsides and
indirect line clearing and trees were cut and decked.” Stiefel Decl. Ex. 2 at 10; ECF No. 16. The

Forest Service planned “substantial BAER treatments” on burned areas. BAER is an acronym for
“Burned Area Emergency Response,” and applies to a “situation when human life or safety,
property, or critical natural or cultural resources are at an imminent and unacceptable risk due to
post-wildfire threats.” Ex. 6 at 3. The BAER teams would “[f]ell trees that have a likely or
imminent failure potential if their potential failure zone intersects any road associated with
BAER projects or assessments.” Ex. 7 at 8. Forest Service regulations allow for such BAER
treatments when an “emergency exists that makes it necessary to take urgently needed actions
before preparing a NEPA analysis.” 36 C.F.R. § 220.4(b).
The National Environmental Policy Act (NEPA) requires an analysis of “major Federal

actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
NEPA exists to ensure that agencies take careful consideration of information related to
significant environmental impacts of their proposed actions and to give “the public the assurance
that the agency ‘has indeed considered environmental concerns in its decision making process.’”
Robertson v. Methow Valley Citizens Council 490 U.S. 332, 349 (1989) (quoting Baltimore Gas
& Electric Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)). NEPA imposes
procedural requirements on agencies but “does not contain substantive environmental standards,
nor does the Act mandate that agencies achieve particular substantive environmental results.”
Bering Strait for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th
Cir. 2008). Agencies may prepare an Environmental Impact Statement (EIS) or an
Environmental Assessment (EA). Alternatively, an agency may conclude the action falls under a
Categorical Exception (CE). As recently stated in Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985,
988 (9th Cir. 2020) (“EPIC”):
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 qualify 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.
In addition to the “danger tree” removal immediately following the fires, and the later
BAER treatments, the Forest Service instituted a Decision Memorandum (DM) for the
Willamette 2020 Fires Roadside Danger Tree Reduction Project (the “Project”). This Project is
the subject of the parties’ dispute here. The Project authorizes the felling of “danger” trees along
404 miles of forest roads. Assuming, based on similar projects, that logging may occur up to 200
feet from either side of the road, Plaintiffs note the Project authorizes logging, without any
NEPA analysis, of nearly 20,000 acres of forest. The DM includes the Forest Service’s rationale
for undertaking the Project:
On the Willamette National Forest (Forest) in 2020, three large wildfires burned
more than 176,000 acres of Forest System lands . . . . As a result of this
unprecedented fire season, standing dead and injured trees remain along hundreds
of roads across three Ranger Districts of the Forest which are needed for future
management and recreation activities. These fire-killed or injured trees pose a
danger to public and employee use, management, and enjoyment of the Forest;
these areas remain closed to the public until safety concerns are addressed and the
danger trees are abated by this project or by natural forces over time.
To reduce the risk posed by standing dead and injured trees within striking
distance of fire affected roads, this project would reduce roadside danger trees
along hundreds of Forest System roads. A danger tree is any tree, or portion of a
tree, that could cause injury or death to people or property because of damage or
defect.
The purpose and need of this proposal is to provide for access and improved
safety along Forest System roads within the fire burned areas of the Forest and
reopen these roads as quickly as possible for public and administrative use. To
achieve this purpose, the project would fell dead and injured trees which pose a
danger to roads and those traveling along them. In addition to allowing for the
reopening of roads to public use, reducing roadside danger trees within these fire-
burned areas would provide Forest employees and contractors safer access for fire
recovery efforts and other management, survey, and monitoring activities. The
project would also ensure continued access for fire suppression ground response
in areas that will have increased fire risk in the coming years as fuel loads
increase from dead and dying trees begin to decompose and fail across these fire
areas. In the event of future wildfires, this project would also provide for safer
egress (and ingress) routes for the public and forest employees needing to
evacuate to safety.
Steifel Decl. Ex. 1 at 1; ECF No. 16.
Some felled trees will remain where they fall. Ex. 1 at 2. The Project also allows some
danger tree removal through timber sales. Ex. 1 at 2. These trees would be felled and removed by
ground-based and skyline logging systems. Ex. 1 at 2. The DM notes “[t]he primary intention of
these efforts is to abate dangers and improve safe access to the forest; timber sales are simply a
tool used to make implementation of this project economically and operationally feasible.” Ex. 1
at 2. The Forest Service estimated 9.3 miles of roads will have no trees felled and 154 miles of
roads will involve felling of danger trees with no accompanying commercial harvesting. Ex. 1 at
3. 241 miles of roads will be subject to commercial harvesting of danger trees. Ex. 1 at 3.
The DM acknowledged the Project was moving forward “quickly” but noted speed was
necessary due to “an urgency to act” due to danger from falling trees. Ex. 1 at 5-6. The DM also
referenced the decision to proceed with timber sales:
The sole purpose of this project is to fell danger trees alongside roads that are
hazardous to travel and reopen them while reducing the risk to public and
employee safety. The purpose of this project is not timber production; this is not a
salvage harvest. The mitigation of danger trees is challenging, and the extent of
this issue after the megafires of 2020 can be very costly. Where appropriate and
feasible, the sale of trees is simply an opportunity to offset the cost of this work
and reduce the taxpayer burden. Furthermore, leaving all danger trees felled on
site may prevent natural regeneration or active forest revegetation and cause other
safety issues, such as the accumulation of hazardous fuel loads.
Ex. 1 at 7.
The Forest Service concluded the Project falls under a CE for “repair and maintenance”
of roads in the National Forest. That CE allows the Forest Service to take certain actions
involving the “repair and maintenance of roads, trails, and landline boundaries” without
conducting “further analysis and documentation in an EIS or EA.” 36 C.F.R. § 220.6(d)(4).
Specifically, the 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;
(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).
The Forest Service concluded the repair and maintenance CE:
is applicable because to maintain the ability of these fire affected roads to
functionally provide access to the Forest, danger trees which could strike the road
must be abated. Without this action, the roads would remain closed to the public
and persist in an inaccessible, unsafe condition for the foreseeable future.
Steifel Decl. Ex. 1 at 8.
Plaintiffs argue the Ninth Circuit’s opinion one year ago in EPIC forecloses the Forest
Service’s use of the repair and maintenance of roads CE to avoid undertaking a NEPA analysis
for the Project. The Court agrees.
STANDARD OF REVIEW
A party seeking a preliminary injunction “must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008). The mere possibility of irreparable harm
is not enough. Rather, the plaintiff must establish that this harm is likely. All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
DISCUSSION
In EPIC, the Ninth Circuit held that the Forest Service could not use the road repair and
maintenance CE for the project at issue there. That project authorized removing any tree: (1)
within 200 feet of either side of the road; (2) that was 1.5 tree lengths from the road; (3) that had

been partially burned; and (4) had a 50 percent or higher likelihood of falling. EPIC, 968 F.3d at
988. There, the Forest Service argued the “[r]oadside hazard treatments involve removing only
trees that constitute hazards to the selected roads . . . and that have the potential to reach
roadways.” Id. (alterations in original). That project “authorize[d] the logging of millions of
board feet of timber on nearly 4,700 acres of National Forest Land.” Id. As is the case there, the
Forest Service approved that project after a summer of devasting fires.
The EPIC court first looked to the road repair and maintenance CE and found it
“unambiguous.” Id. at 990. It noted that despite the fact that “repair” and “maintenance” “are
common words with well understood meanings,” the CE provided examples—i.e., grading the
road and clearing brush; road resurfacing; pruning vegetation, cleaning culverts, and grooming
trails; and surveying, painting, and posting boundaries—which, while not limiting “repair and
maintenance” to those specific examples, “the clear inference (even without invoking the
principle of ejusdem generis), is that other examples should be similar in character to the
examples provided.” Id. The court then framed the question presented:

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 taller trees even
farther away—is “repair and maintenance” within the meaning of § 220.6(d)(4).
Id.
As is the case here, the Forest Service in EPIC argued the project only authorized felling
of “hazard trees.”1 The court concluded the scope of the project exceeded the scope of the road
repair and maintenance CE:
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 an[] 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.
Id.
Here, the Forest Service argues the Project allows felling of trees no more than 1 tree
height from the road, as opposed to the 1.5 tree length limit in EPIC. Therefore, the Forest
Service argues that unlike the project in EPIC, the Project here applies only to trees posing an
imminent danger to those using the roads at issue. The Forest Service is correct that the 1.5 tree

1 The Project at issue here only allows the felling of “danger trees.”
height limit was a factor in the EPIC court’s holding. But more important, at least to this Court’s
reading of EPIC, was the scale of the project at issue there, and how that project did not
reasonably align with any of the road repair and maintenance CE’s examples of “repair” and
“maintenance.” In concluding those plaintiffs were likely to succeed on the merits, the EPIC
court noted:

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.”
Id. at 991 (emphasis added).
The Project at issue, despite limiting felling to only those trees within 1 tree height of a
road, dwarfs the project at issue in EPIC. The project in EPIC covered 180 miles of roads. This
Project covers 404 miles of roads. The EPIC project applied to 4,700 acres. Even the most
conservative estimate of the Project doubles the applicable acreage.2 “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 an[] EA.” EPIC, 968 F.3d at 990. This Project allows commercial
logging that, at least at this stage, will almost certainly have more than a minimal impact on the
environment. The commercial logging allowed here does not remotely resemble grading or
repaving roads, cleaning culverts, or removing brush (without the use of herbicides) near roads.
“A CE of such limited scope cannot reasonably be interpreted to authorize a Project such as the

2 The EPIC project limited felling to trees located within 200 feet on either side of the road. Because this Project
limits felling to trees within 1 tree length of the road, exact acreage estimates are not possible. Regardless, this
Project covers at least twice the acreage of the project in EPIC.
one before [this Court], which allows commercial logging of large trees [within 1 tree height]
from either side of hundreds of miles of Forest Service roads.” Id.
This Court is not alone in concluding that EPIC applies to the overall scale of the project
(and not merely to the height of the trees to be felled). Just one month ago, another district court
reached the same conclusion. See Forestkeeper v. U.S. Forest Serv., No. 1:21-cv-0141-DAD-

BAM, 2021 WL 4553885 at *4 (E.D. Cal. Oct. 5, 2021) (“The central holding of EPIC was
that—as a matter of statutory interpretation—CE 4 could not be used to authorize a large-scale
commercial logging project.”) (citing EPIC, 968 F.3d at 990)). In finding the Forest Service’s
argument “misses the point,” that district court noted:
The Ninth Circuit did acknowledge that felling of dangerous trees located “right
next to the road” would come within the scope of the “repair and maintenance”
CE and, in that context, discussed the scope of a project that could be authorized
pursuant to CE 4. EPIC, 968 F.3d at 990-91. Nonetheless, the court made clear
that it was the type and scale of the project at issue in that case which prevented it
from being authorized pursuant to CE 4 and mandated further NEPA
environmental analysis. Id. In focusing its supplemental arguments on tree
heights, defendant USFS has failed to address the foundation of the EPIC
holding—that the text and nature of CE 4 does not apply to this type of extensive
project at all.
Forestkeeper, 2021 WL 4553885 at *5.
As discussed above, in EPIC, the court concluded, “[w]e 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.” 968 F.3d at 990. It also noted, however, that “[w]hile all of the trees within
the scope of the Project may be hazardous in some sense, many of them pose no imminent
hazard.” Id. So too here. The Field Guide for Danger-Tree Identification and Response along
Forest Roads and Work Sites in Oregon and Washington (“Filip”) acknowledges that the Project
allows the felling of trees that are not currently at risk of failing, but may become a danger after
five years. Stiefel Decl. Ex. 3 at 46; Filip at 44. Filip acknowledges:
For most recently killed trees, exposure duration along roads mainly is
intermittent (drive-by traffic) and therefore the trees are not a danger. However,
due to the large number of recently killed trees in these situations, there is a
higher risk of tree failures occurring, because stands are often more open
following large disturbances, and trees may be more prone to windthrow or
windshatter. After five years, most of these trees (except cedar, juniper, larch, or
large Douglas-fir) will have imminent-failure potential and therefore will become
danger trees. The challenge is deciding when to treat such trees that are not now
a danger but will become danger trees in five years. Waiting five years for
thousands of trees to become dangers presents at least three problems for
forestland managers: 1) some trees may fail before they have been dead for five
years, 2) older, dead trees have less commercial value because of delay and defect
than recently killed trees, and 3) older, dead trees are more dangerous to fell
because of increased decay and defect.
Id. at 46-47 (emphasis added).
The Project’s DM acknowledges that due to a variety of factors other than any imminent
danger, such trees, even with a low likelihood of failing within 5 years, are subject to felling:
The R6 Danger Tree Guide indicates that recent dead Douglas-Fir >20” and Cedar
with no failure indicators have a low likelihood of failure within 5 years. Given
the large number of trees in this condition, the difficulties in safely mitigating
them in the future as they decay, the need to maintain safe conditions along these
corridors over time, the increase in exposure to employees and the public from
these trees, the cost of managing these trees into the future, and other resource
impacts from repeated entry, recently killed Douglas-Fir >20” and Cedar meeting
the cutting criteria above are included in the prescription for danger tree removal.
Stiefel Decl. Ex. 1 at 30.
The DM confirms this is not a trivial number of trees. Id. (noting “the large number of
trees in this condition”). While the Court recognizes the significant problems facing the Forest
Service, the DM confirms the Project allows the felling of trees that are not in any imminent
danger of failing on the rationale that felling them now will avoid problems down the road. In
this sense, the Project is akin to that in EPIC because, “[w]hile all of the trees within the scope of
the Project may be hazardous in some sense, many of them pose no imminent hazard.” EPIC,
968 F.3d at 990. As was the case in EPIC, “[t]he Project does not target only trees that pose an
immediate danger to travelers.” 3 Id. at 991. Pl.’s Mem. at 16; ECF No. 11. Given the immense
scale of this Project, which allows the felling of trees along 404 miles of forest roads, Plaintiffs
have demonstrated a likelihood of success on the claim that the Forest Service may not use the
road repair and maintenance CE to avoid any NEPA review of the Project.
Having concluded Plaintiffs established a likelihood of success on the merits, the Court

turns to whether Plaintiffs have shown “that irreparable injury is likely in the absence of an
injunction.” 4 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Winter, 555 U.S. at
22). Plaintiffs submitted declarations from members of their organizations stating their use and
enjoyment of the proposed logging areas would be significantly diminished should the Court
allow the Project to proceed absent the requisite NEPA analysis. ECF No. 12-15. These
declarations are substantially similar to declarations the EPIC court concluded established a
sufficient threat of irreparable harm. EPIC, 968 F.3d at 991. “Ongoing harm to the environment
constitutes irreparable harm warranting an injunction. When a project may significantly degrade
some human environmental factor, injunctive relief is appropriate.” Id. (quoting Southeast

Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1100 (9th Cir.
2006)).

3 The Project authorizes felling of trees on 326 miles of Level 2 roads. Level 2 roads are only open to high clearance
vehicles. Steifel Dec. Ex. 5 at 6. The Forest Service notes that on these roads, “[t]raffic is normally minor[.]” Id.
“Motorists should have no expectations of being alerted to potential hazards while driving these roads.” Id.
Additionally, the possibility that fallen trees—many of which have a low likelihood of failing within 5 years—will
impede first responders as they respond to fires is not an imminent danger or hazard, but rather a speculative hazard
that may occur at some future date. While the Court understands it would be more convenient and cost-effective for
the Forest Service to prevent future road hazards via a preemptive commercial logging operation not subject to
NEPA review, the scope of this Project exceeds that open to a CE. See EPIC, 968 F.3d at 990 (“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 an[] EA. . . . 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.”).
4 The Forest Service does not challenge Plaintiffs’ standing to bring this action.
The Forest Service argues that an injunction “would only prevent the Forest Service from
doing what will occur through natural forces in the next few years.” Resp. 40; ECF No. 19
(quoting Helena Hunters & Anglers Ass’n v. Marten, 2019 WL 5069002, at *4 (D. Mont. Oct. 9,
2019)). This argument misses the mark. As outlined above, the Project allows the felling of a
“large number of trees” with “a low likelihood of failure within 5 years.” Steifel Decl. Ex. 1 at

30. Generally, an agency must complete an EA within 1 year and an EIS within 2 years. 40
C.F.R. § 1501.10(b). In other words, the Forest Service could complete a NEPA analysis several
years before many of the trees are likely to fail. Therefore (and considering the Project is set to
begin felling trees in a matter of days), the Court concludes Plaintiffs have established an
imminent threat of irreparable harm.
The balance of equities is a tougher question. Here, because the government is a party,
the Court must “consider the balance of equities and the public interest together.” EPIC 968 F.3d
at 991 (quoting Azar, 911 F.3d at 581). There is no doubt the fires at issue, and in fact up and
down the Western United States, were as devastating as they were unprecedented. The

unfortunate reality is that the Forest Service is quite likely to face similar fire threats in the
coming years. Managing those threats, which of course includes making sure forest roads are
accessible by first responders, is without question a legitimate agency interest. So too with the
agency’s responsibility to manage the forest in a way that hopefully lowers the risks of future
fires. Often, as is the case here, the Forest Service determines the most efficient way of fulfilling
multiple duties is via contracts for commercial logging operations. The EPIC court recognized
these important agency interests. 968 F.3d at 992. Often competing with these legitimate
interests is the public’s interest in ensuring the Forest Service follows the law, which includes the
requirement that the agency complies with NEPA.
As with seemingly every other issue in this action, EPIC provides useful guidance.5
Recognizing similar competing interests, the court concluded:
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.
Id.
In the Court’s view, the only remaining question is the scope of the injunction. In crafting
an injunction, “[t]he scope of remedy must be no broader and no narrower than necessary to
redress the injury shown by the plaintiff[s].” Azar, 911 F.3d. at 584. The Forest Service must be
permitted 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.” EPIC, 968 F.3d at 992. Until the Ninth
Circuit provides additional guidance, utilizing commercial logging operations to fell trees with
little likelihood of imminent failure, merely to ensure that forest roads are clear during some
future potential fire, is beyond the scope of the CE.6 To conduct such activities in response to no

5 More directly, the Court finds EPIC directly on point and concludes that recent decision is fully dispositive of the
outcome here.
6 The Court certainly recognizes that such work is vitally important to the Forest Service’s obligations in regard to
overall forest management, to say nothing of ensuring the ability to properly and safely respond to future
emergencies. The Court merely concludes that under EPIC, such activities do not fall under the CE because there is
no “imminent hazard” and such activity, at least at this stage, has more than “only a minimal impact on the
environment[.]” 968 F.3d at 990.
imminent danger from failing trees is beyond the scope of the CE. The Forest Service must
therefore prepare an EA or an EIS.
As to the scope of the injunction, the Forest Service is enjoined from felling any tree with
a low likelihood of failure within 5 years as determined in Filip. Steifel Decl. Ex. 3 at 49. The
Forest Service is enjoined from felling any tree with a likely failure potential in Filip. Id. at 25.

Filip indicates these trees “are defective or decayed, but it would take moderate effort to make
them fail.” Id. As these trees have a high probability of failure within 3 to 5 years, they fall
outside of the CE for the reasons discussed above. The Forest Service may, however, fell any
tree at risk of imminent failure (as defined in Filip) within striking distance of a road. “Imminent
failure” in this sense means: “Trees or their parts are so defective or decayed that it would take
little effort to make them fail. These trees or parts have a high probability of failure within one
year.” Steifel Decl. Ex. 3 at 25. The Forest Service must leave any felled tree where it falls, with
the exception that it may remove any tree that falls on a road to a safe location beside the road.
To clarify, the Forest Service is enjoined from removing any felled tree pending the completion

of an EA or EIS.
The Forest Service argues should the Court issue an injunction, it “should impose a
meaningful bond that contributes to making the Forest Service and the public whole[.]” Resp. at
42. The Forest Service argues delaying this Project may cost the Forest Service up to
$24,000,000. Plaintiff Cascadia Wildlands 2021 legal budget is $11,000. Cotton Decl. ⁋ 25.
Requiring the posting of a bond here would significantly impact the ability for the other
Plaintiffs to bring such actions in the future. LeGue Decl. ⁋ 16; Williams Decl. ⁋ 33; Second
Stahl Decl. ⁋ 9. The Court concludes requiring a bond in this instance would chill Plaintiffs’
right to seek judicial review of agency actions and declines to impose even a nominal bond. Save
Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005).
IT IS SO ORDERED.
DATED this 5th day of November, 2021.
______/s/ Michael McShane_______
Michael J. McShane
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393980. Public record. Not legal advice.