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Earth Island Institute v. Carlton

November 8, 2010

EARTH ISLAND INSTITUTE, A NON-PROFIT ORGANIZATION, PLAINTIFF-APPELLANT,
v.
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; UNITED STATES FOREST SERVICE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding, D.C. No. 2:09-cv-02020-FCD.

The opinion of the court was delivered by: Hug, Circuit Judge

FOR PUBLICATION

Argued and Submitted March 10, 2010 -- San Francisco, California

Before: Procter Hug, Jr., Stephen Reinhardt and Jay S. Bybee, Circuit Judges.

OPINION

Earth Island Institute ("Earth Island") appeals interlocutorily the district court's order denying its motion for a preliminary injunction seeking to enjoin the United States Forest Service ("Forest Service") from conducting post-wildfire logging in the Plumas National Forest. The district court concluded that the applicable forest plan required only the assessment of habitat for the black-backed woodpecker ("woodpecker") at the project level, that the Forest Service met that requirement, that the Forest Service adequately responded to Earth Island's dissenting scientific opinions in the project adoption phases, and that the Forest Service's tree mortality guidelines were not legally enforceable. We affirm.

I. FACTUAL BACKGROUND

In the summer of 2007, the "Moonlight" and "Wheeler" fires burned a total of 88,000 acres of private and National Forest land in the northern Sierra Nevadas in California. Approximately 78% of the fire took place within the Plumas National Forest. The rest was on private land.

Shortly after the fires, the Forest Service initiated the Moonlight-Wheeler Project ("project") to remove burned trees posing a safety hazard to road traffic within the project area ("roadside hazard trees"), to recover the value of fire-killed trees, and to re-establish the forest through the planting of conifer seedlings.

It is undisputed that forests burned at high intensity form a new type of ecologically rich ecosystem. This case concerns a subset of such an ecosystem, namely so-called "snag forest habitat." Snag forest habitat is important to several species of plants and animals. One of the species that depends on snag forest habitat is the black-backed woodpecker; a management indicator species ("MIS")*fn1 for the Sierra Nevada area. The woodpecker can only use snag forest habitat for up to a decade after a high-intensity fire at which point in time the forest will have changed naturally and the woodpecker must seek out new suitable habitat. According to a Plumas National Forest district ranger, snag forest habitat is extremely scarce in the Sierra Nevadas due to fire suppression and post-fire logging.

Some dispute exists as to exactly how much of the woodpecker habitat in the Plumas National Forest would be destroyed by the project. Earth Island's experts conservatively estimate that at least 40-60% of the woodpecker's habitat within the project area would be destroyed, corresponding to 30-50% of woodpecker habitat throughout the entire Sierra Nevada. According to Earth Island, this could threaten the woodpecker's ability to survive in the Sierra Nevadas. In contrast, the Forest Service asserts that logging would only be conducted on approximately 22-27% of the forest burned on public land, thus leaving as much as 73% unlogged. However, the Forest Service also acknowledges that approximately 38% of the habitat that was created by the two fires on public land would be destroyed, but points out that to compensate for this, snag habitat has been designated on approximately 10% of the project area with no logging to take place there.

II. PROCEDURAL BACKGROUND

Initially, the Forest Service proposed a separate project that would result in the logging of roadside hazard trees only. After Earth Island brought a challenge to that, the parties settled. The settlement provided that the Forest Service would re-evaluate that project as part of an Environmental Impact Statement ("EIS") then underway for non-hazard tree logging.

The Forest Service subsequently issued a Draft Revised EIS covering both roadside hazard and other trees. Earth Island submitted extensive timely comments on the draft. The Forest Service subsequently issued a Revised Final EIS ("RFEIS") analyzing five alternatives. Half a year later, the Chief of the Forest Service issued an Emergency Situation Determination allowing the Forest Service to implement the project as soon as a Record of Decision ("ROD") was signed. The Chief found this to be warranted given the threats to public and employee safety and the fact that any delay in the implementation of the project would result in substantial loss of economic value and jeopardize other restoration and recovery objectives.

Soon thereafter, the Forest Service signed the ROD for the project, choosing alternative A. This authorized the harvest of fire-killed trees on approximately 14,755 acres of the approximately 41,000 acres of high severity burn areas using both ground- and air-based harvesting methods. The Forest Service subsequently awarded five logging contracts to local companies.

Subsequently, Earth Island filed a motion for a preliminary injunction seeking to enjoin the Forest Service from implementing all aspects of the project, including the felling, removal and sale of any trees apart from under emergency hazard circumstances. The district court denied Earth Island's motion. This appeal followed.

III. STANDARD OF REVIEW AND JURISDICTION

We have jurisdiction to review a district court's denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). We review the denial of a preliminary injunction for abuse of discretion. Earth Island Inst. v. U.S. Forest Serv. (Earth Island Inst. II), 442 F.3d 1147, 1156 (9th Cir. 2006). A district court abuses its discretion in denying a request for a preliminary injunction if it bases its decision on an erroneous legal standard or clearly erroneous findings of fact. Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). A district court's decision regarding preliminary injunctive relief is subject to "limited and deferential" review. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). Accordingly, "[a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case." Earth Island II, 442 F.3d at 1156.

In deciding whether Earth Island is likely to succeed on the merits of its motion for a preliminary injunction, the APA sets forth additional requirements for review. McNair, 537 F.3d at 987. The APA states, in relevant part, that a reviewing court may set aside only agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id., citing 5 U.S.C. § 706(2)(A). Review under this standard is also narrow, and we may not substitute our judgment for that of the agency. Id. Rather, a decision may only be reversed as arbitrary and capricious "if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. Thus, although the district court's denial of Earth Island's request for a preliminary injunction must be reviewed for an abuse of discretion, our review of the district court's determination as to whether Earth Island was likely to prevail on the merits of its claims necessarily incorporates the APA's arbitrary and capricious standard. Id.

IV. DISCUSSION

[1] A party seeking a preliminary injunction must demonstrate (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. Natural Res. Def. Council, 129 S.Ct. 365, 374 (2008). An injunction is a matter of equitable discretion" and is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 376, 381.

Earth Island argues that the district court improperly assessed Earth Island's likelihood of success on the merits, applied an erroneous standard for the likelihood of irreparable harm, and incorrectly balanced the equities.

A. Likelihood of Success on the Merits

First, Earth Island contends that the district court imposed an unreasonably high standard for success on the merits. In doing so, Earth Island relies on the district court's statement that after Winter, "a heavy burden is imposed on plaintiffs." Earth Island argues that this means that the district court required more indicia of success on the merits than did Winter.

[2] The district court's statement forms part of a footnote and appears to simply be dictum. At any rate, as Winter plainly demonstrates, it is correct that plaintiffs seeking a preliminary injunction face a difficult task in proving that they are entitled to this "extraordinary remedy." 129 S.Ct. at 376. Characterizing this as a "heavy burden" was not improper and does not show that the district court applied an erroneous standard. Quite the contrary: the record shows that the district court correctly applied Winter's four-prong analysis throughout its thoroughly reasoned opinion.

Next, Earth Island contends that it is likely to succeed on the merits of its claims because (1) the Forest Service failed to ensure the viability of the woodpecker and thus violated the National Forest Management Act ("NFMA"); (2) the Forest Service's RFEIS failed to respond sufficiently to comments made by Earth Island's scientists; and (3) the Forest Service failed to follow its allegedly binding tree marking guidelines.

i. Purported Species Viability Requirements

[3] As we stated in Ecology Center v. ...


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