united states district court district of oregon...

REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - i

Crag Law Center 917 SW Oak St., Suite 417

Portland, OR 97205 Tel. (503) 525-2727

Ralph O. Bloemers, OSB No. 984172 [email protected] - (503) 525-2727 Christopher G. Winter, OSB No. 984355 [email protected] - (503) 525-2725 Crag Law Center 917 SW Oak Street, Suite 417 Portland, OR 97205 Fax: (503) 296-5454 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISON

CENTRAL OREGON LANDWATCH, an Oregon non-profit corporation,

Plaintiff, v.

KENT CONNAUGHTON, in his official capacity as Regional Forester of Region 6, JOHN ALLEN, in his official capacity as Forest Supervisor of the Deschutes National Forest, and the UNITED STATES FOREST SERVICE, a federal agency.

Defendants.

Case No. 6:12-cv-01757-TC

REPLY IN SUPPORT OF MOTION

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

INJUNCTION

Case 6:12-cv-01757-TC Document 42 Filed 10/09/12 of 28 Page ID#: 1790

REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - ii


Portland, OR 97205 Tel. (503) 525-2727

TABLE OF CONTENTS

I. Plaintiff Has Demonstrated Irreparable Harm.. .................................................1

A. The Project Permanently Alters and Changes the Character of

Wetlands that Serve to Regulate Stream Temperature. ..........................1

B. Plaintiff Will Be Harmed by Exclusion from the Area and the

Alteration of Its Scenic Character. .......................................................5

C. Irreparable Harm Flows From Forest Service Failure to Comply

with NEPA and NFMA.......................................................................6

II. Plaintiff Is Likely to Prevail on the Merits ........................................................9

A. The Forest Service Has Not Demonstrated Compliance with INFISH ....9

B. This Court Should Afford No Deference to An Unverified,

Uncalibrated “Model”.......................................................................14

III. Balance of the Harms.................................................................................17

A. The City of Bend’s Illegal Advance Implementation of the Project

Weighs in Favor of the Issuance of a Preliminary Injunction. ..............17

B. The City of Bend Assumed the Risk..............................................18

IV. Conclusion ..................................................................................................22


REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - iii


Portland, OR 97205 Tel. (503) 525-2727

Cases

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .......................... 5

Amoco Prod. Co. v. Vill. of Gambell, Alaska,

480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)................................... 2, 4, 7

Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972)............... 7

Blue Mountains Biodiversity Project v. Blackwood,

161 F.3d 1208 (9th Cir. 1998) cert. denied, 527 U.S. 1003 (1999).............................. 15

Buttrey v. U.S., 690 F.2d 1170 (5th Cir. 1982) ................................................................... 3

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir.1996)........................... 8

Davis v. Mineta (302 F.3d 1104) (10th Cir 2002) .......................................................... 7, 8

Deseret Apartments, Inc. v. U.S., 250 F.2d 457 (10th Cir. 1957)..................................... 18

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947) ................................................ 19

Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,

586 F.3d 735 (9th Cir. 2009) ........................................................................................ 16

Nat’l Wildlife Fed’n v. Whistler, 27 F.3d 1341 (8th Cir. 1994).......................................... 3

National Wildlife Fed. v. Marsh, 721 F.2d 767 (11th Cir.1983) ........................................ 4

New York Natural Res. Def. Council, Inc. v. Kleppe, 429 U.S. 1307 (1976) ..................... 6

Northeastern Florida Chapter of Ass'n of General Contractors of America v. City of

Jacksonville, Fla., 896 F.2d 1283 (11th Cir.1990) ......................................................... 4

Oregon Natural Desert Ass’n v. Bureau of Land Mgmt,

531 F.3d 1114 (9th Cir. 2008) ...................................................................................... 16


REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - iv


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Oregon Natural Res. Council Fund v. Brong,

492 F.3d 1120, 1128-30 (9th Cir. 2007) ....................................................................... 11

Oregon Natural Res. Council Fund v. Brong, CIV.04-693-AA, 2004 WL 2554575 (D.

Or. Nov. 8, 2004) aff'd, 492 F.3d 1120 (9th Cir. 2007)................................................ 15

Pan American Petroleum & Transp. Co. v. United States,

273 U.S. 456 (U.S. 1927).............................................................................................. 19

People of Saipan v. U.S. Dept. of Interior, 502 F.2d 90 (9th Cir. 1974) .......................... 18

Protect Key West, Inc. v. Cheney, 795 F.Supp. 1552 (S.D. Fla. 1992)............................... 8

Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) ................................................... 6

Sierra Club v. Flowers, 423 F. Supp. 2d 1273 (S.D. Fla. 2006) ........................................ 4

Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) ........................................................ 7

Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989)........................................................... 7

Sierra Club v. United States Army Corps of Eng’rs,

399 F. Supp. 2d 1335 (M.D. Fla. 2005).......................................................................... 4

Thomas v Peterson, 753 F.2d 754 (9th Cir. 1985).............................................................. 7

Town of Golden Beach v. USACOE, 1994 U.S. Dist. LEXIS 15832,

40 Env’t Rep. Cas. (BNA) 1094 (S.D. Fla. 1994) .......................................................... 8

USA v Akers, No. Civ. S-84-1276 RAR, 1985 U.S. Dist. LEXIS 23436 (E.D. Cal. Jan. 14,

1985), aff’d USA v Akers, 785 F.2d 814 (9th Cir. 1986) ................................................ 2

Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301 (1974).................................... 7


REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - v


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Regulations

33 C.F.R § 320.4(b)(1)........................................................................................................ 3

33 U.S.C. § 1251................................................................................................................. 2

36 CFR § 215.9(b) ............................................................................................................ 18

36 CFR § 351.................................................................................................................... 13

40 C.F.R. § 230.1(c)............................................................................................................ 3

40 C.F.R. § 230.1(d) ....................................................................................................... 2, 3

40 C.F.R. § 230.10 .............................................................................................................. 3


REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMININARY INJUNCTION - 1


Portland, OR 97205 Tel. (503) 525-2727

Plaintiff submits the following reply brief in support of its Motion for Preliminary

Injunction along with the Second Declaration of Nathan Boddie, the Second Declaration

of Paul Dewey, the Declaration of Moey Newbold, the Second Declaration of Ralph

Bloemers, the Second Declaration of Mark Yinger and exhibits thereto.

I. Plaintiff Has Demonstrated Irreparable Harm.

The Plaintiff presented declarations from members and supporters of LandWatch

that spoke both to standing to sue and harm to their protected interests in the lands and

waters harmed by this project. In response, the Forest Service and the City of Bend

simply chose to focus on and highlight the aspects of the declarations that discuss how

the water withdrawal will affect Tumalo Creek once the pipeline is completed but

defendants intentionally ignored other statements that underscore how the construction

will irreparably impact the plaintiff in the short-term. The declarations and exhibits

thereto demonstrate the construction will result in permanent wetland impacts, scenic

degradation, felling of large trees and a lengthy exclusion of the public from use and

enjoyment of the area. These harms are permanent and irreparable as discussed in detail

below.

A. The Project Permanently Alters and Changes the Character of Wetlands that Serve to Regulate Stream Temperature.

With its opening brief, plaintiff provided the Court with a copy of the Oregon

Department of State Lands report of how the project will permanently alter the wetlands

and vegetation around the wetlands and degrade wetland functions, which includes

serving to regulate and maintain colder temperatures in Tumalo Creek. Bloemers Decl.

Exh. 8 at 26. For example, the Department of State Lands found that the functions of




Portland, OR 97205 Tel. (503) 525-2727

Wetland B-2 will be “permanently impacted…reducing the capacity for water storage”

and delay. Bloemers Decl., Exh. 8 at 26. Tree removal in wetland B-2 “will be

permanent...these trees will not be replaced.” Id. “Loss of mature trees will reduce

opportunity for vegetation diversity and thermoregulation. Id. “[T]ree removal in a forest

wetland constitutes an alteration and, therefore, a permanent impact.” Id. at 28.

“[Wetland D] has high functional values for primary production due to the maturity of the

forest community and the high areal coverage of vegetation. Id. Functional attributes of

Wetland D will be permanently, adversely impacted. Id. Felled trees “will not be

replaced.” Id.

The Supreme Court established that environmental injury of long duration is

irreparable. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987). Courts

within this Circuit have found that the “[d]isruption of [wetlands’ ecological] functions

constitute[] an irreparable injury to a valuable public resource.” USA v Akers, No. Civ. S-

84-1276 RAR, 1985 U.S. Dist. LEXIS 23436, at *27 (E.D. Cal. Jan. 14, 1985), aff’d USA

v Akers, 785 F.2d 814 (9th Cir. 1986) (Ninth Circuit affirming District Court’s

preliminary injunction of wetland alteration). Furthermore, the CWA and NEPA both

embody a strong policy of protection for environmental resources. The CWA was

enacted with “[t]he objective of … restor[ing] and maintain[ing] the chemical, physical,

and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. “From a national

perspective, the degradation or destruction of special aquatic sites, such as filling

operations in wetlands, is considered to be among the most severe environmental

impacts.” 40 C.F.R. § 230.1(d). As such, “[m]ost wetlands constitute a productive and




Portland, OR 97205 Tel. (503) 525-2727

valuable public resource, the unnecessary alteration or destruction of which should be

discouraged as contrary to the public interest.” 33 C.F.R § 320.4(b)(1).

Section 404 of the CWA and the accompanying regulations establish a strong

preference against permitting any activity that leads to the filling of wetlands. 40 C.F.R. §

230.1(c). “The statute and regulations express a strong preference for wetland

protection.” Nat’l Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1344 (8th Cir. 1994) “[T]he

Corps shall begin its analysis of a proposed project with the presumption that the

‘unnecessary alteration or destruction of [wetlands] shall be discouraged as contrary to

the public interest.’” Buttrey v. U.S., 690 F.2d 1170, 1180 (5th Cir. 1982) (quoting 33

C.F.R. § 320.4 (b)(1)). The filling of wetlands “may represent an irreversible loss of

valuable aquatic resources.” Id. (quoting 40 C.F.R. § 230.1(d)). Therefore, “[i]t would

hardly be putting the case too strongly to say that the Clean Water Act and the applicable

regulations do not contemplate that wetlands will be destroyed simply because it is more

convenient than not to do so.” Id.

The EPA’s binding 404(b)(1) Guidelines create a presumption that discharges into

wetlands cause irreparable injury:

From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources.

40 C.F.R. § 230.1(d) (emphasis added). “The Corps’ own regulations incorporate the

404(b)(1) Guidelines, 40 C.F.R. § 230.10, and a violation thereof renders the Corps’




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conduct arbitrary and capricious.” Sierra Club v. Flowers, 423 F. Supp. 2d 1273, 1351,

n.225 (S.D. Fla. 2006). As one federal court recently stated:

[T]he Court’s task is to determine whether plaintiffs have demonstrated that irreparable harm will ensue absent issuance of a preliminary injunction. The dredging and filling of wetlands that may occur while the Court decides the case cannot be undone and, if the end result is that the Corps should not have issued [the permit], irreparable harm will have occurred in the meantime.

… The alteration of these wetlands cannot be undone by money

damages (especially if any of the wetlands are built on), and so plaintiff has shown irreparable harm. See Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable."); National Wildlife Fed. v. Marsh, 721 F.2d 767, 786 (11th Cir.1983) (irreparable injury demonstrated where, absent injunction, wetlands would be destroyed); Northeastern Florida Chapter of Ass'n of General Contractors of America v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.1990) (irreparable harm shown where money damages cannot unring the bell).

Sierra Club v. United States Army Corps of Eng’rs, 399 F. Supp. 2d 1335, 1348 (M.D.

Fla. 2005). Furthermore, the Corps and EPA regulations specify that protection of

wetlands is in the public interest. 33 C.F.R. § 320.4 (b)(1) (“[w]etlands constitute a

productive and valuable public resource, the unnecessary alteration or destruction of

which should be discouraged as contrary to the public interest”).

The plaintiff will suffer irreparable injury if the injunction is not granted, as

supported by the declarations plaintiff has filed in support of its motion which include the

cutting of trees in wetlands along Tumalo Creek, the installation of hundreds of feet of

concrete in wetlands, the installation of a highly-visible pipe along the Creek at the upper

Tumalo Creek bridge, the cutting of large spruce trees next to the Tumalo Falls parking




Portland, OR 97205 Tel. (503) 525-2727

lot, the cutting of a grove of cottonwood trees at the west end of the upper Tumalo Creek

bridge at the entrance to the parking lot, and the cutting of a grove of spruce at the east

end of the lower Tumalo Creek bridge. First and Second Declaration of Paul Dewey;

First and Second Declaration of Nathan Boddie; Bloemers Decl. Exh. 8 at 26; Second

Declaration of Mark Yinger. The functional alterations and permanent impacts are of the

kind that the U.S. Supreme Court and courts in this Circuit have warned about.

Irreparable injury to wetland resources and plaintiff’s members will result without the

issuance of an injunction by this Court.

B. Plaintiff Will Be Harmed by Exclusion from the Area and the Alteration of Its Scenic Character.

The 9th Circuit has clearly delineated the test that this Court applies in

determining whether plaintiff has demonstrated irreparable harm. Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“Cottrell”). Consistent with the

Supreme Court precedent, the 9th Circuit held that a plaintiff may not obtain a preliminary

injunction if it cannot show that irreparable harm is likely to result in the absence of the

injunction. Alliance for the Wild Rockies’ members showed they used the forest found

in the project area, including the areas subject to logging under the Project, for work and

recreational purposes, such as hunting, fishing, hiking, horseback riding, and cross-

country skiing. The plaintiff asserted that its members' interests would be irreparably

harmed by the challenged project because its members' ability to "view, experience, and

utilize" the areas in their undisturbed state would be curtailed while the project was

underway and affected for a long-time after it was implemented.




Portland, OR 97205 Tel. (503) 525-2727

The Forest Service responded that the project area represented only six percent of

the acreage damaged by fire and that the plaintiff could enjoy other area. The Court

rejected that argument and held that the project will prevent the use and enjoyment of the

particular forest affected by the project. The Court held that the loss was hardly a de

minimis injury and stated that the Supreme Court has instructed that “`[e]nvironmental

injury, by its nature, can seldom be adequately remedied by money damages and is often

permanent or at least of long duration, i.e., irreparable.'" Cottrell citing to Lands Council

v. McNair, 537 F.3d at 1004.

Plaintiff has presented numerous declarations showing that its members and

supporters actively use the area for a range of purposes. Plaintiff’s members are

currently excluded from the area along with the general public. Second Declaration of

Nathan Boddie; First and Second Declaration of Paul Dewey; Declaration of Madeleine

Newbold. The wetlands will be altered and the scenic character of the area will be

degraded. Bloemers Decl., Exh. 8 at 26; Second Declaration of Paul Dewey. The

plaintiff has made a strong showing on this element of the applicable standard.

C. Irreparable Harm Flows From Forest Service Failure to Comply with NEPA and NFMA.

Courts has also frequently acted to preserve the status quo in order to rectify

procedural harms that have been suffered by citizens and organizations: “[i]n the NEPA

context, irreparable injury flows from the failure to evaluate the environmental impact of

a major federal action.” Sierra Club v. Bosworth, 510 F.3d 1016, 1033 (9th Cir. 2007).

See also New York Natural Res. Def. Council, Inc. v. Kleppe, 429 U.S. 1307, 1312 (1976)

(“It is axiomatic that if the Government, without preparing an adequate impact statement,




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were to make an ‘irreversible commitment of resources,’ a citizen’s right to have

environmental factors taken into account by the decisionmaker would be irreparably

impaired.”); See also Thomas v Peterson, 753 F.2d 754, 764 (9th Cir. 1985) (“[A]bsent

unusual circumstances, an injunction is the appropriate remedy for a violation of NEPA’s

procedural requirements.”). The unusual circumstances recognized by the Ninth Circuit

are not present here. Sierra Club v. Marsh, 816 F.2d 1376, 1384 n. 11 (9th Cir. 1987)

(citing Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 541 (1987)) (if

injunction would interfere with a long-term contractual relationship or would result in

irreparable harm to the environment then it may not issue).

Further, even in cases where substantial environmental harms may not be

imminent, it is proper for courts to prevent the parties from investing so heavily in an

enterprise that later consideration of injunctive remedies may involve such onerous

financial consequences that judicial options for enforcing the law become unworkable.

See Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1310 (1974) (Granting

stay of dam construction activity pending appeal to maintain the status quo and prevent

further investment in the project that would limit subsequent agency choices); Arlington

Coalition on Transportation v. Volpe, 458 F.2d 1323, 1333 (4th Cir. 1972) (“Further

investment of time, effort, or money in the proposed route would make alteration or

abandonment of the route increasingly less wise and, therefore, increasingly unlikely.”).

Congress has presumptively determined that the failure to comply with NEPA has

detrimental consequences for the environment. Davis v. Mineta (302 F.3d 1104) (10th Cir

2002)(citing 42 U.S.C. § 4321); Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989)




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(affirming injunction based on NEPA violation because “risk implied by violation of

NEPA is that real environmental harm will occur through inadequate foresight and

deliberation.” The harm NEPA seeks to prevent is complete when agency makes

decision without considering information NEPA seeks to place before decision-maker

and public); Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448-49 (10th

Cir.1996) ("injury of an increased risk of harm due to an agency's uninformed decision is

precisely the type of injury [NEPA] was designed to prevent."). An agency’s failure to

follow the procedural requirements of NEPA, in and of itself, constitutes irreparable

injury. Town of Golden Beach v. USACOE, 1994 U.S. Dist. LEXIS 15832, 25-26, 40

Env’t Rep. Cas. (BNA) 1094 (S.D. Fla. 1994) (“With regard to the balancing of

irreparable injuries, it is clear that where there is a fundamental breakdown in the NEPA

process…preliminary injunctive relief is appropriate”); Protect Key West, Inc. v. Cheney,

795 F.Supp. 1552, 1563 (S.D. Fla. 1992) (granting an injunction based on the inadequacy

of the agency’s EA because “[i]rreparable harm results where environmental concerns

have not been addressed by the NEPA process”).

In Davis v. Mineta, 302 F.3d 1104 (10th Cir 2002), the defendants argued that

plaintiffs would suffer no irreparable harm if construction began on Phase I of a multi-

phase highway construction project, because the harms alleged by the plaintiffs would

arise principally from the more invasive construction of Phase II. The court held that, if

construction went forward before the environmental analysis was complete, a serious risk

would arise that the analysis of alternatives required by NEPA would be skewed toward

completion of the entire project.




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Here, plaintiff will suffer exactly the same type of injury if the requested

injunction is not issued as was threatened, and prevented, in Commonwealth v. Watt and

Davis v. Mineta. If construction on the site proceeds while the necessary NEPA and

NFMA analysis is ongoing, alternatives to the project would be foreclosed and the siting

of the project at this location will be the fait accompli the law precludes prior to

compliance with NEPA and NFMA. The injury plaintiff has identified is one that cannot

be compensated adequately in money damages and is substantial and unreasonable where

the cutting of the trees will result in a conversion of the wetlands.

II. Plaintiff Is Likely to Prevail on the Merits. In its opposition brief, the Forest Service hinges everything on the hope that

plaintiff has not made any showing of irreparable harm. Quite to the contrary, as

discussed above, the plaintiff has made a strong showing of irreparable harm on a variety

of different grounds. Likewise, plaintiff has also made a strong showing that the Forest

Service has not shown compliance with, among other things, substantive standards in the

Deschutes National Forest Plan designed to protect fish and wildlife. The Forest Service

only addressed two of plaintiff’s claims and indicated it would leave the rest for oral

argument, plaintiff replies to those two arguments here.

A. The Forest Service Has Not Demonstrated Compliance with INFISH.

In its opposition brief, the Forest Service claims it provides a detailed outline of

how the project will meet INFISH standards in a Fisheries Specialist Report, but a close

examination of Appendix B reveals just the opposite. Bloemers Decl. Exhs. 13 and 14.

The Forest Service would have this Court believe that because Tumalo Creek is not




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presently meeting INFISH standards on some days and that additional degradation and

retardation of the creek does not violate INFISH. Forest Service Memorandum in

Opposition to Motion for Preliminary Injunction (“FS Oppo.”) at 19. In its response, the

Forest Service states:

If modeled stream temperatures were realized in the field, they would still remain within the optimal range for redband trout, EA at 3-112 to 3-114, with the exception of Reach B where the 7 day maximums are already beyond the optimal range for redband trout under existing conditions due to irrigation withdrawals by the Tumalo Irrigation District (“TID”). EA at 3-114. The optimal range (per EPA 2001) for redband trout is 13-16 °C. EA at 3-104. In addition, Appendix B of the Watershed and Fisheries Specialist Report states Tumalo Creek does not always meet the water temperature RMO under existing conditions. This position is completely without merit.

Id. The problem with the Forest Service’s response is that INFISH imposes plain,

substantive requirements on the Forest Service. First, “[p]roper analysis is required prior

to initiation of projects.” Bloemers Decl. Exh. 5 at A-1. (emphasis added). The goals of

INFISH “establish an expectation of…healthy, functioning watersheds…” Id. “Actions

that reduce habitat quality, whether existing conditions are better or worse than objective

values, would be inconsistent with the purpose of [INFISH]. Without the benchmark

provided by measureable Riparian Management Objectives (“RMOs”), habitat suffers a

continual erosion.” Id. at A-3 (emphasis added). The Forest Service is asking this Court

to sanction an approach that blames the condition of the stream on senior water rights

holders, and as a result, allows the Forest Service to wash its hands of additional

degradation.

The Ninth Circuit has explicitly rejected a “some-is-enough” approach when it

comes to compliance with binding Northwest Forest Plan standards. Oregon Natural Res.




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Council Fund v. Brong, 492 F.3d 1120, 1128-30 (9th Cir. 2007) (discussing snag

retention standards under the Medford RMP). In rejecting this kind of reasoning the

Ninth Circuit stated that "[c]learly, this [reasoning] would be unreasonable, as any

adverse environmental effect could be “diluted to insignificance.” Id. at 1130. In that

discussion, the Circuit court concluded its holdings by stating that the agency's failure to

show how its actions complied with the standard violated the FLPMA. Id. at 1131 ("The

BLM's decision to preserve a baseline number of snags is insufficient in a fundamental

way: it neglects to explain why the snag removal it does authorize, which undisputably

harms late-successional habitat in the short term, will somehow maintain overall habitat

suitability now or in the future, as expressly required by the NFP.").

Likewise, INFISH directs the Forest Service to “maintain and restore” water

quality (INFISH LH-1) and not to “retard” water quality per the RMOs. Bloemers Decl,

Exh. 5 (INFISH LH-3). “Retard” means “to slow the rate of recovery below the near

natural rate of recovery if no additional human disturbance was placed on the system.”

Id., INFISH at A-3. INFISH does not sanction the approach the Forest Service advances

here – the Forest Service’s argument that “minimal degradation” is enough to meet the

standard likewise fails. Rather INFISH sets forth numerical standards for temperature

which provide a “maximum water temperature[] below 59° F within adult holding habitat

and below 48° F within spawning and rearing habitats.” Id., INFISH, A-4, Table A-1.

When faced with a similar failure to demonstrate compliance the District Court of

Oregon held that:

“the Forest Service violated the Forest Act by approving the implementation of Bandit II without first establishing that short-term




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adverse impacts of the project on redband trout and short-term retardation of RMOs set forth in INFISH would not be inconsistent with the Ochoco forest plan."

League of Wilderness Defenders/Blue Mountains Biodiversity Project v USFS (“USFS”),

2005 WL 3307087 at *9 (Or. Dist. Jun. 6, 2005) (emphasis added). This is exactly the

same kind of violation which plaintiff asserts here.

In the record the Forest Service identifies the period of greatest concern for water

temperatures to be July through September. Bloemers Decl, Exh. 13 at 31. The Forest

Service states that the proposed system has “the capacity to divert and transmit larger

flow volumes in response to greater demand” and that there is “a potential for decreased

in-stream flow and increased water temperatures during critical times of the year.” Id. at

30. (emphasis added) “With decreased flow, temperatures would be expected to trend in

an upward direction.” Id. at 31. Appendix B to this Watershed and Fisheries Report

states:

The 7 day maximum water temperatures exceed the 59° F (15° C) adult fish holding habitat water temperature objective in some years under current conditions. The frequency that this objective is exceeded increases in a downstream direction. Near Skyliners Bridge at river mile 13.4 within sub-reach A-1-RR, the 7 day summer maximum of 15° C was exceeded during 3 years out of 12 between 1995 and 2009. The 7 day maximums ranged from 12.6° C to 15.8° C. Within sub-reach A-1-B at river mile 6.8, the 7 day maximum of 15° C was exceeded 4 years out of 5 between the years of 1999 and 2007. The 7 day maximums ranged from 13.5° C to 17.4° C. Within Reach B below the TID diversion, the 7 day 15° C summer maximum was exceeded all years during the sampling period of 1999 – 2006. The 7 day maximums ranged from 15.2° C to 18.8° C.

Bloemers Decl. Exh. 14 at 7.

The 48° F (8.9° C) water temperature RMO for spawning and rearing habitat is met at times under the current conditions. This RMO is met




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during the early part of the redband trout spawning period of March to July and for rearing during the months of late fall to late spring under existing conditions. This RMO is not met for the summer months under existing conditions. The Heat Source Model used for potential increases in water temperature as a result of implementing the Proposed Action was designed for warm summer months, not accounting for potential changes during cold months. The small change in stream flow compared to the current conditions if the system is run at 21 cfs is not expected to result in any measurable increases or decreases in temperature during the cold months. Due to decreased demand in winter months, the system is less likely to run at full leaving more flow instream. Approximately 15-20 years out, projected demand will require diverting at the maximum rate of 21 cfs.

Id. at 8.

Under the Proposed Action at the maximum diversion rate of 21 cfs, an increase of 0.10° C was predicted for the established monitoring sites at river miles 13.4 and 6.8. Increases of 0.30° C, 0.24° C, and 0.36° C were modeled for above TID diversion, below TID diversion, and at the mouth of Tumalo Creek, respectively.

Id. at 8.

INFISH provides the Forest Service further guidance that it has ignored. Standard

and Guideline LH-3 directs the forest service not to permit retardation of RMOs.

Bloemers Decl. Exh. 5, INFISH LH-3. Further, “[w]here the authority to do so has been

retained, adjust existing leases, permits, rights-of-way, and easements to eliminate effects

that would retard or prevent attainment of the [RMOs] or adversely affect inland native

fish.” Id. See also 36 CFR § 351 (Forest Service may condition Special Use Permits). The

Forest Service is directed to negotiate the changes necessary to “eliminate effects that

would prevent” attainment of RMOs when this authority has not been retained. Id.

This is precisely what the Forest Service has not done and why the Plaintiff asked

the Forest Service to prepare an Environmental Impact Statement that would consider a




Portland, OR 97205 Tel. (503) 525-2727

broader range of alternatives, including a groundwater alternative, that would not degrade

Tumalo Creek. The Special Use Permit retains permit modification this authority.

Second Bloemers Decl., Exh. 24, Project Special Use Permit at *2 (“This permit may be

amended in whole or in part by the Forest Service…to incorporate new terms that may be

required by law, regulation, directive, [or] the applicable forest land and resource

management plan…”). Despite having the authority, the Forest Service adopts the

analysis of the City of Bend’s contractor showing non-compliance with applicable

standards. For this reason, and as justified above, the Forest Service has violated

applicable law, and acted arbitrarily and capriciously. For these reasons, plaintiff has

plainly demonstrated that it is likely to prevail on the merits.

B. This Court Should Afford No Deference to An Unverified, Uncalibrated “Model”.

Plaintiff presents a multi-pronged challenge to the use of old data, incomplete

information and controversial modeling that HDR utilized to predict impacts to Tumalo

Creek. The Forest Service presents a confusing and ill-informed response to plaintiff’s

claims stating that:

[Plaintiff] bases its argument primarily on the notion that, in a complete turnaround from its previous arguments, the Heat Source model is not designed to provide actual in-the-water results regarding temperature, but instead, to provide a suitable basis for comparing alternatives and the likely differences among them in regard to changes to water temperature. Id. at 18.

However, the relativity argument is not one that plaintiff concocted, instead it was the

primary response given by the Forest Service to ignore the prediction that the temperature




Portland, OR 97205 Tel. (503) 525-2727

in Tumalo Creek would be increased by 0.39 Celcius at its confluence with the Deschutes

River. Bloemers Decl., Exh. 16 at 42.

Rather than addressing head-on whether the approach that HDR utilized was

calibrated or not the Forest Service states that the “The Heat Source Model has been peer

reviewed by the Environmental Protection Agency (“EPA”) and professors at Oregon

State University and Dartmouth College, and found to be appropriate to use to model

water temperature.” FS Oppo. at 16. Plaintiff does not dispute that, if used correctly, the

Heat Source model can provide valuable information. However, plaintiff disputes the use

of an outside consultant who modified the model beyond recognition and did not actually

calibrate the approach it used after it had been significantly modified. First and Second

Declaration of Mark Yinger. Plaintiff also challenges the agency’s failure to disclose

these limitations in its environmental analysis. The Ninth Circuit has held that model

limitations "found only in the appendix to the [environmental analysis document]...is an

impermissible location for such an important disclosure." Oregon Natural Res. Council

Fund v. Brong, CIV.04-693-AA, 2004 WL 2554575 at *18 (D. Or. Nov. 8, 2004) aff'd,

492 F.3d 1120 (9th Cir. 2007) (Citing Blue Mountains Biodiversity Project v. Blackwood,

161 F.3d 1208, 1214 (9th Cir. 1998) cert. denied, 527 U.S. 1003 (1999)). In that same

case, this held that a model must be used in accordance with the guidance provided by the

model's creator. Id. at *17. ("The authors of the paper also prepared a document titled,

“DecAID: The Decayed Wood Advisor-Work in Progress on a Decayed Wood Advisor

for Washington and Oregon Forests-Caveats and Cautions.” Among other limitations, the




Portland, OR 97205 Tel. (503) 525-2727

authors expressly warn users that the tool is not appropriate for use in post-fire

landscapes.")

The City of Bend contends that this case presents a classic “battle of the experts”.

City of Bend Memorandum in Opposition to Motion for Preliminary Injunction (“City

Oppp.”) at 5. This is just a convenient and false-frame intended to dissuade this court

from determining whether the HDR’s approach was expert and reliable or whether the

court is instead to being asked to defer to conclusions that are simply not backed up by

facts and verification. To foster informed public participation, a NEPA analysis must

contain a “reasonably thorough” discussion that addresses important issues “up front.”

Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 586 F.3d 735,750 (9th Cir.

2009). Accordingly, an agency’s decision is clearly arbitrary and capricious and must be

set aside when the agency has “entirely failed to consider an important aspect of the

problem….” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. In other words, if an agency has

completely failed to analyze a particular environmental issue, it is entitled to no

deference, and its decision must be set aside. Oregon Natural Desert Ass’n v. Bureau of

Land Mgmt, 531 F.3d 1114, 1142 (9th Cir. 2008). As the 9th Circuit stated in Oregon

Natural Desert Ass’n:

"When reviewing questions of methodology and planning strategy, we would certainly accord the [agency] great deference, recognizing that NEPA’s requisite “hard look” does not require adherence to a particular analytic protocol. [ ] But no question of methodology is before us. Here, the [agency] used no method to analyze or plan for the management of such values. We cannot defer to a void."

531 F.3d at 1142 (internal citations and quotation marks omitted); see also Barnes

v. U.S. Dep’t of Transp., 655 F.3d 1124, 1131 (9th Cir. 2011) (“the agencies would like




Portland, OR 97205 Tel. (503) 525-2727

this court to take their word for it and not question their conclusory assertions”; “their

word, however, is not entitled to significant deference”). Similarly, plaintiff submits that

this Court should not defer to the agency’s complete failure to assess or take a hard look

at the reasonably foreseeable direct, indirect and cumulative effects of significantly

increasing the amount of water withdrawal.

III. Balance of the Harms

In its opposition brief, the City claims that this project must move forward quickly

to meet drinking water standards, that it has spent significant sums of money and that it

cannot back away now. The City of Bend attempts to paint a dire picture that the project

has already moved forward and that it cannot turn back without significant financial risk.

As discussed in the opening brief, both the Forest Service and the City of Bend are

subject to a 15-business day stay period barring project implementation, yet the City of

Bend has proceeded to implement the project including engaging in illegal and

unauthorized grading and land clearing, among other activities. Any risk that the City of

Bend has taken is entirely of its own doing. The City of Bend, as discussed in more

detail below, has unclean hands and has itself assumed the risk. Under careful scrutiny,

the City’s claims of risk and cost from not proceeding at this time do not hold water.

A. The City of Bend’s Illegal Advance Implementation of the Project Weighs in Favor of the Issuance of a Preliminary Injunction.

The Code of Federal Regulations provides that the Forest Service may not

authorize the project to be implemented for fifteen (15) business days after it denies the

administrative appeal. The purpose of this provision is to avoid a change in the status

quo and allow for a plaintiff to seek relief in a court of law before changes happen on the




Portland, OR 97205 Tel. (503) 525-2727

ground. Specifically, the regulations provide that: “when an appeal is filed,

implementation may occur on, but not before, the 15th business day following the date of

appeal disposition (§215.2)." 36 CFR § 215.9(b). If the Forest Service or project

proponent can show that there is an emergency, then the automatic stay provisions do not

apply.

As shown by the Declaration of Madeline Newbold and admitted to by the Forest

Service, the City of Bend has illegally graded an acre of land and brought in construction

materials before the expiration of the stay period. Newbold Declaration, Exhibits 1 and

2; Second Bloemers Decl., Exh. 25 (Email from Steve Odell dated October 5, 2012).

Either the City of Bend has not implemented the project, and so cannot complain of harm

to it from activities which are not authorized – or which it chose to pursue in the face of

substantial risk that the permit authorizing those activities would be held unlawful.

B. The City of Bend Assumed the Risk.

Court have long recognized that “where a defendant with notice in an injunction

proceeding completes the acts sought to be enjoined the court may by mandatory

injunction restore the status quo.” Porter v. Lee, 328 U.S. 246, 251 (1946). Similarly, a

company’s accelerated construction schedule does not mean that an injunction should not

issue to halt further damage. People of Saipan v. U.S. Dept. of Interior, 502 F.2d 90, 100

(9th Cir. 1974) (rejecting defendants’ argument that “it has acquired some equities by

proceeding with the construction of its hotel while its right to do so is being litigated”).

Deseret Apartments, Inc. v. U.S., 250 F.2d 457, 458 (10th Cir. 1957)(“[T]he Government

may not invoke the aid of a court of equity if for any reason its conduct is such that it




Portland, OR 97205 Tel. (503) 525-2727

must be said that it comes into court with unclean hands.”) quoting Pan American

Petroleum & Transp. Co. v. United States, 273 U.S. 456, 506 (U.S. 1927)(equity “will

not be applied to frustrate the purpose of its laws or to thwart public policy”); Federal

Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947).

For example, the City argues that “the need to meet new drinking water

standards” (City Oppo. at 11) and that “failure to implement the Project now puts at risk

the City’s ability to meet the deadline for complying with the new EPA drinking water

standards” (City Opp. at 12). However, there is absolutely no connection between the

new pipe and intake facility and the possible new water treatment system, which was not,

in fact, analyzed in the EA. In fact, the City Council passed a resolution on March 7,

2012 choosing to delay a new treatment facility because of concerns about the cost of the

treatment facility. The City Council’s Resolution itself states that the delay in pursuing a

new treatment facility is anticipated to be acceptable to the Environmental Protection

Agency since the City has done good faith design work. Second Bloemers Decl., Exh. 20

(Resolution 2867 at 6). The Resolution also calls for a delay to allow for “further

community input.” Id. The City is also seeking an alternative compliance schedule and

new EPA rules. Id.

Upon close examination, this Court will find that the City of Bend’s Opposition

Memorandum is rife with misrepresentation and distortions that are at odds with the City

of Bend’s official position on the advance purchase of steel and the risks of proceeding

with purchasing and implementation before all the requisite approvals had been obtained

and challenges resolved. The Bend City Council in its own resolution stated very plainly




Portland, OR 97205 Tel. (503) 525-2727

that the City was knowingly taking a risk, that it could resell the steel and that it would

not stage the steel up at the site in advance. Second Bloemers Decl., Exh. 21 (City

Council Resolution 2853). The City Counsel stated, in deciding to purchase the pipe

early, that:

“J. The Council recognizes that the early purchase of steel is a venture capitalist endeavor and the steel can be resold, It can be stored for a later time, or used for an alternative project.

K. The Council finds pre-purchasing the steel will not have an

adverse environmental impact because the steel will be Stored either on the steel supplier’s property or at the City’s Outback Facility. Both of these locations are sites that have already been developed and/or cleared.

L. The Council finds that the purchase of the steel at this point

in the project is not an irreversible or irretrievable action and should place no limitation on the Forest Service’s decision whether to issue the SUP, as well as its consideration of reasonable alternatives to the project for which a SUP is being considered.

… O. The Council knowingly accepts the risk that the purchase

of steel may not be used for the Surface Water Improvement Project if the Forest Service denies the SUP for the water pipeline.”

Second Bloemers Decl., Exh. 21 at 2. What is plain from the record is that City

officials are now willing to distort the record and misrepresent the risk in order to sway

this Court. Unfortunately for the City of Bend, plaintiff has been paying close attention

to the record. Contrary to the representations it made now, the City protected itself in the

contract against the cost of delays. Second Bloemers Decl., Exh. 22, City Minutes at 4-5;

see also email exchange between City Manager Eric King and Bill Buchanan (Eric King

claims the City is protected).




Portland, OR 97205 Tel. (503) 525-2727

Furthermore, the contract between the City of Bend and the construction firm

hired to the work allows for the contract to be suspended for a variety of reasons. Section

J.1.1(f) allows the owner to suspend portions or all of the work for “Any reason

considered to be in the public interest.” Second Bloemers Decl., Exh. 19. Section J.3.1

provides for compensation for suspension from the owner to the contractor is the

suspension was caused by acts or omissions of the owner, but if it was due to no fault of

the owner or contractor, “neither party owes the other for the impact.” Id. For

unavoidable delays in Section D.2.3 the contractor could request additional compensation

or additional contract time, but the amount is not specified. Id. Section D.2.4 prohibits a

number of types of damages no matter what happens. Id. Section J.5 controls owner’s

right to terminate “for convenience.” Id. The City can terminate the contract when it “is

in the best interest of the public.” Id. There are no lost profits and compensation is

covered by Section E which provides that the contractor can bill for work done and

materials purchased.

The City presumes that the proposed system is in “the public interest,” but a

diversity of members of the public that use the Tumalo Creek area and rely on City water

have indicated strong opposition to the project. See also, Second Bloemers Decl., Exh.

23 (Article from The Source underscoring how a majority of City Council candidates are

opposed to the project). The City claims that a delay “may” cause it to lose “the

favorable guaranteed fixed price contract,” but the City does not explain why the City

could not get the same price in new bidding or an even better price. Likewise, the City

speculates about an increased cost of long-term financing and states that interest rates are




Portland, OR 97205 Tel. (503) 525-2727

increasing by 5%. The declaration contains no evidence of an impending increase in

rates. Again, the City is engaging in speculation against its own interests in an attempt to

skew the balance of the harms. Finally, whether this Special Use Permit is issued or not,

the City can have a dual-source water system. In fact, in a recent study prepared for the

City of Bend, the study proposed continuing to use the pipes installed in the 1950s.

Second Bloemers Decl., Exh. 17. The City rejected this low-cost and low-impact

alternative because it would not allow the City of Bend to make money from a planned

hydropower facility.

IV. Conclusion.

For the reasons set forth above and in previous filings, plaintiff respectfully

requests this Court to issue a preliminary injunction preventing the Forest Service from

authorizing further implementation of the project.

Respectfully submitted this 9th day of October 2012. /s/ Ralph O. Bloemers Ralph O. Bloemers, OSB No. 984172 [email protected] - (503) 525-2727 Christopher G. Winter, OSB No. 984355 [email protected] - (503) 525-2725 Crag Law Center 917 SW Oak Street, Suite 417 Portland, OR 97205 Fax: (503) 296-5454 Attorneys for Plaintiff Central Oregon LandWatch




Portland, OR 97205 Tel. (503) 525-2727

CERTIFICATE OF COMPLAINCE WITH LR 7-2

I certify that the foregoing brief complies with LR 7-2 because it does not exceed

35 pages, including headings, footnotes, and quotations, but excluding the caption, table

of contents, table of authorities, signature block, and certificate of counsel.

/s/ Ralph O. Bloemers Ralph O. Bloemers, OSB. No. 984172 Attorney for Plaintiff


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