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Sierra Forest Legacy v. Rey

February 26, 2010

SIERRA FOREST LEGACY; CENTER, FOR BIOLOGICAL DIVERSITY; NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB, AND THE WILDERNESS SOCIETY, NON-PROFIT ORGANIZATIONS, PLAINTIFFS,
v.
MARK REY, IN HIS OFFICIAL CAPACITY AS UNDER SECRETARY OF AGRICULTURE, DALE BOSWORTH, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE UNITED STATES FOREST SERVICE, JACK BLACKWELL, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER, REGION 5, UNITED SATES FOREST SERVICE, AND JAMES M. PENA, IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR, PLUMAS NATIONAL FOREST, 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, DEFENDANTS-INTERVENORS.



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

ORDER DENYING PLAINTIFFS' MOTION FOR INJUNCTION PENDING APPEAL AND GRANTING PARTIAL STAY OF REMEDY ORDER

This Court has resolved the liability issues raised in four related cases challenging the 2004 Sierra Nevada Forest Plan Amendment (also referred to as the "2004 Framework" or the "SNFPA"). Moreover, in separate proceedings, the Court has crafted an appropriate remedy.*fn1 Plaintiffs in this case, a group of environmental organizations, have appealed this Court's rulings and now seek an injunction requiring that Forest Service timber harvesting projects comply with the 2001 Framework pending completion of the appellate process. Plaintiffs also ask that the Court stay the portion of its order requiring the Forest Service to prepare a Supplemental Environmental Impact Statement ("SEIS") by May 1, 2010.

For the reasons set forth below, Plaintiffs' motion to enjoin projects inconsistent with the 2001 Framework pending resolution of their appeal is denied. As also explained below, Plaintiffs' motion to stay the Forest Service's obligation to complete a SEIS by May 1, 2010, which is not opposed by the Federal Defendants, will be granted.

STANDARD

A. Injunctions Pending Appeal

Like any injunction, an injunction pending appeal is "an extraordinary remedy that should be granted sparingly." Arizona Contractors Ass'n, Inc. v. Candelaria, 2008 WL 486002, at *1 (D. Ariz. 2008). As with a preliminary injunction, to qualify for an injunction pending appeal, the moving party must show: (1) that it is likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter v. NRDC, 129 S.Ct. 365, 374 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), quoting Winter, 129 S.Ct. at 374.

Because it "is an extraordinary and drastic remedy," Munaf v. Geren, 128 S.Ct. 2207, 2219 (2008) (citation omitted), an injunction "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). If a plaintiff fails to meet its burden on any of the four requirements for injunctive relief, its request must be denied. Winter, 129 S.Ct. at 376 (denying motion for injunctive relief based on the public interest and balance of hardship factors alone, where court assumed a likelihood of success on the merits of NEPA claims and irreparable injury to endangered species).

B. Stays Pending Appeal

While stays pending appeal and injunctions pending appeal are distinct, Nken v. Holder, 129 S.Ct. 1749, 1758 (2009), they involve substantially the same judicial inquiry. Id. at 1761 (citing Winter, 129 S.Ct. 376-77). In determining whether a stay is appropriate, a court should consider: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay 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). "A stay is an 'intrusion into the ordinary processes of administration and judicial review,' and accordingly 'is not a matter of right, even if irreparable injury might otherwise result to the appellant.'" Nken, 129 S.Ct. at 1757 (citations omitted). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 1761.

ANALYSIS

Plaintiffs ask this Court to enjoin the Forest Service from implementing any timber harvest projects inconsistent with the 2001 Framework pending appeal. Plaintiffs further request a stay of the Forest Service's obligation to prepare a SEIS pending appeal. As set forth below, Plaintiffs' first request is denied.

This Court has previously considered the merits of Plaintiffs' challenge and weighed the harms of imposing the injunctive relief they now seek. There is no basis for the Court to reconsider its prior conclusions at this time. Defendants do not oppose Plaintiffs' second request. Because Plaintiffs' appeal could ultimately alter the scope of the SEIS to be prepared by the Forest Service, this Court agrees that it makes sense to stay the Forest Service's obligation until the outcome of the appeal is known.

I. PLAINTIFS ARE NOT ENTITLED TO AN INJUNCTION PENDING APPEAL

A. Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits of their Appeal

This Court has considered the legality of the 2004 Framework in motions for summary judgment filed in each of the four related cases. See Sierra Nevada Forest Prot. Campaign ("SNFPC") v. Rey, 573 F. Supp. 2d 1316 (E.D. Cal. 2008); California ("California") v. U.S. Dep't of Agric., No. 05-211, 2008 WL 3863479 (E.D. Cal. Aug. 19 and Sept. 3, 2008); Pacific Rivers Council ("PRC") v. U.S. Forest Serv., No. 05-953, 2008 WL 4291209 (E.D. Cal. Sept. 18, 2008); California Forestry Ass'n ("CFA") v. Bosworth, No. 05-905, 2008 WL 4370074 (E.D. Cal. Sept. 24, 2008). With a single exception related to the range of alternatives, this Court has found that the SEIS prepared for the 2004 Framework complied with the law.

Plaintiffs now ask this Court to revisit its findings on summary judgment and hold -- without advancing any new argument or explanation of how this Court erred -- that Plaintiffs have demonstrated a likelihood of success on the merits of their appeal. This Court declines Plaintiffs' invitation to reconsider its prior decisions and concludes, consistent with its prior findings, that Plaintiffs fail to demonstrate a likelihood of success on the merits.

Plaintiffs fail to demonstrate a likelihood of success on their various challenges under the National Environmental Policy Act ("NEPA") to the Framework. Contrary to Plaintiffs' allegations, the Forest Service fully disclosed opposing views regarding the 2004 Framework's impacts on wildlife and properly disclosed the Framework's short-term impacts to wildlife. See SNFPC v. Rey, 573 F. Supp. 2d at 1338-45. Plaintiffs fail to identify any error in this Court's analysis and, by simply repeating their prior arguments, provide no grounds for this Court to revisit the conclusions reached in its summary judgment decision. See Lands Council v. Packard, 391 F. Supp. 2d 869, 871 (D. Idaho 2005) (holding plaintiffs fail to demonstrate likelihood of success on the merits where they simply "restate[] the arguments previously raised").

While Plaintiffs did prevail on their claim that the SEIS failed to address a proper range of alternatives, the favorable outcome they obtained in that regard cannot support their motion for an injunction pending appeal. Federal Defendants have not appealed this Court's ruling on the range of alternatives and that issue is thus not before the Court of Appeals.

The adequacy of the range of alternatives analysis is thus irrelevant to the question of whether Plaintiffs have a likelihood of success on the merits of their appeal. Comm. on the Judiciary v. Miers, 575 F. Supp. 2d 201, 203 (D.D.C. 2008) ("[t]he stay pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself.").

Plaintiffs also fail to demonstrate a likelihood of success on their claims that the 2004 Framework violated the National Forest Management Act ("NFMA"). First, Plaintiffs' broad substantive NFMA challenge cannot be brought against the Framework as a whole. Instead, NFMA claims are ripe only to the extent that they are brought in the context of a site-specific project. SNFPA v. Rey, 573 F. Supp. 2d at 1328-29. See also Ecology Ctr. v. Castaneda, 574 F.3d 652, 658 (9th Cir. 2009) ("Forest-wide management practices and monitoring efforts, or lack thereof, are generally not amenable to suit under the APA because they do not constitute final agency actions. Challenges to forest-wide management practices or claims must be made in the context of site-specific actions.") (citations omitted). Second, assuming Plaintiffs' programmatic NFMA claims are ripe, those claims fail on ...


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