UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 4, 2009
EARTH ISLAND INSTITUTE, A NON-PROFIT ORGANIZATION, PLAINTIFF,
ALICE B. CARLTON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR PLUMAS NATIONAL FOREST, RANDY MOORE, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER FOR REGION 5 OF THE UNITED STATES FOREST SERVICE, AND THE UNITED STATES FOREST SERVICE, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
MEMORANDUM AND ORDER
This matter is before the court on plaintiff Earth Island Institute's ("plaintiff") motion for a stay and injunction pending appeal of this court's August 20, 2009 Order (Docket #53), denying plaintiff's motion for a preliminary injunction, which sought to enjoin the United States Forest Service's Moonlight-Wheeler Fire Recovery and Restoration Project (the "Project").*fn1 The harvesting of dead and dying trees began on September 1, 2009. Pursuant to Federal Rule of Civil Procedure 62(c), plaintiff now seeks to enjoin any further implementation of the Project pending resolution of plaintiff's appeal of the court's Order to the Ninth Circuit.
For the reasons set forth below, the court DENIES plaintiff's motion for an injunction pending its appeal. Plaintiff does not make the requisite showing under Rule 62(c).
Rule 62(c) provides in pertinent part: "While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party"s rights." In determining whether to issue an injunction pending appeal, the court must consider: (1) whether plaintiff has make a strong showing that it is likely to succeed on the merits of its appeal; (2) whether plaintiff will be irreparably injured absent issuance of an injunction; (3) whether issuance of an injunction will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Cal. Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 849-50 (2009). This standard is essentially the same as that for issuance of a preliminary injunction.*fn2 See Nken v. Holder, 129 S.Ct. 1749 (2009).
Plaintiff's instant motion for an injunction pending its appeal raises the same arguments made in its moving papers on the underlying preliminary injunction motion. With respect to the merits, irreparable injury and the balance of equities and the public interest, plaintiff simply reiterates its prior arguments in favor of issuance of an injunction enjoining the Project. While plaintiff attempts to repackage those arguments herein, by asserting that the court made certain alleged factual errors, overlooked pertinent evidence and misapplied controlling legal standards, its arguments are not compelling. The court addressed each of plaintiff's arguments (made then and now) in its 66-page, August 20 Order, and it need not repeat that analysis here. For the reasons fully set forth in the August 20 Order, plaintiff has not shown a likelihood of success on the merits of its claims against defendants pursuant to NEPA, NFMA or the MBTA or a likelihood of irreparable harm nor that the balance of equities tip in its favor or that the public interest is best served by enjoining the Project. As such, plaintiff's motion for an injunction pending appeal is DENIED.
IT IS SO ORDERED.