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Sierra Forest Legacy v. Rey

November 3, 2009

SIERRA FOREST LEGACY, ET AL., PLAINTIFFS,
v.
MARK REY, IN HIS OFFICIAL CAPACITY AS UNDER SECRETARY OF AGRICULTURE, ET AL., DEFENDANTS.
PEOPLE OF THE STATE OF CALIFORNIA, EX REL. EDMUND G. BROWN JR., ATTORNEY GENERAL, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS. AND TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT, ET AL.; CALIFORNIA SKI INDUSTRY ASS'N; QUINCY LIBRARY GROUP, ET AL.; AND CALIFORNIA CATTLEMEN'S ASS'N, DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

In ruling on summary judgment motions filed in both of these cases in August and September of 2008, this Court found for liability purposes that the 2004 Framework complied with the provisions of the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA), except to the extent that the 2004 Framework was implemented without sufficient review of alternatives other than the chosen option. Our determination in that regard was guided by the Ninth Circuit's decision in Sierra Nevada Forest Protection Campaign v. Rey, 526 F.3d 1228, 1231 (9th Cir. 2008). In that decision, the Ninth Circuit reversed this Court's denial of a preliminary injunction in this matter on narrow grounds, finding the Plaintiffs were likely to succeed on the claim that the Forest Service failed to consider all reasonable alternatives in the 2004 SEIS.*fn1 In particular, the Ninth Circuit found that the SEIS for the 2004 Framework could not rely on alternatives modeled in the 2001 Framework EIS because of modeling changes between the two documents. The Ninth Circuit further faulted the Forest Service for failing to consider alternative methods of funding fire reduction work.

On the basis of this alternatives defect, both Plaintiff Sierra Forest Legacy ("Legacy") and Plaintiff People of the State of California ex rel. Edmund G. Brown, Jr., Attorney General ("California") now argue for extraordinarily broad relief in the remedies phase of the case.*fn2 Plaintiffs demand that we substantively enjoin implementation of the entire 2004 Framework in any of the eleven forests subject to the Framework, and request that the 2001 Framework be reinstated. Plaintiffs request a permanent injunction to that effect.

STANDARD

To obtain permanent injunctive relief, a plaintiff must show: 1) that it has suffered an irreparable injury; 2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 4) that the public interest would not be disserved by a permanent injunction. Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007) (quoting eBay Inc. v. MercExchange, 547 U.S. 388, 391 (2006)).

This traditional analysis for assessing injunctive relief is not altered by the fact the Plaintiffs have alleged an environmental injury. The Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir. 2008) (en banc) ("our law does not... allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue.") See also Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988 ("in the context of environmental injury, irreparable damage is not presumed in evaluating agency action.").

To obtain permanent injunctive relief in this, like any other case, Plaintiffs bear the burden of proving a substantial immediate irreparable injury by a preponderance of the evidence. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990). Plaintiffs must establish a likelihood, rather than a mere possibility, of substantial and immediate injury. Winter v. Natural Resources Def. Council, Inc., 129 S.Ct. 365, 375-76 (2008).

In determining the propriety of injunctive relief, it must also be remembered that an injunction is an "extraordinary remedy" which does not issue "as of course" or for "trifling" injuries. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982). Moreover, the Ninth Circuit admonishes that a injunction, if issued, "must be narrowly tailored to give only the relief to which plaintiffs are entitled." Orantes-Hernandez v. Thornburgh, 919 F.2d at 558; see also Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995). Narrow, curative remedies that do not prohibit the agency from acting are favored. See Elings v. C.I.R., 324 F.3d 1110, 1113 n. 14 (9th Cir. 2003).

The district court has broad discretion in weighing the equitable factors germane to deciding whether injunctive relief is, or is not, indicated. The Lands Council v. McNair, 537 F.3d at 1003-05 (9th Cir. 2008) (en banc). Relief should consequently be narrowly tailored to remedy the legal violation found and to balance the hardships between the parties.

ANALYSIS

A. Injunction For A Procedural NEPA Violations Found To This Court Lacks Jurisdiction To Issue A Substantive Framework

Exist In A Programmatic Document Like The 2004

The 2004 Framework, as a programmatic document, does not itself authorize any timber harvesting. Project level proposals for on-the-ground harvesting/treatment activities are separately evaluated under NEPA on a project-by-project basis.

We have already noted in our summary judgment rulings that substantive challenges to the 2004 Framework, in the abstract, are not ripe for adjudication. Instead, substantive relief is limited to justiciable site-specific controversies. On a programmatic Framework basis, as we have also already concluded, we are limited to providing procedural relief. Although the specific Basin, Slapjack and Empire projects targeted by Legacy may implicate certain defects within the 2004 Framework, that still does not render the entire Framework ...


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