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Alliance for the Wild Rockies v. Cottrell

January 25, 2011

ALLIANCE FOR THE WILD ROCKIES; NATIVE ECOSYSTEMS COUNCIL, PLAINTIFFS–APPELLANTS,
v.
JANE L. COTTRELL, IN HER OFFICIAL CAPACITY AS ACTING REGIONAL FORESTER; UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANTS–APPELLEES.



Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:09–cv–00107–DWM.

The opinion of the court was delivered by: W. Fletcher, Circuit Judge

Argued and Submitted February 2, 2010

Before: WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and MICHAEL W. MOSMAN,*fn1 District Judge.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge MOSMAN.

ORDER

This Court's opinion, filed September 22, 2010, and published at 622 F.3d 1045 (9th Circuit 2010), is withdrawn and replaced by the attached opinion and concurrence.

With this filing, the panel has voted unanimously to deny Appellees' petition for rehearing. Judge W. Fletcher and Judge Rawlinson have voted to deny the petition for rehearing en banc, and Judge Mosman so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The Appellees' petition for rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing will be entertained.

OPINION

Alliance for the Wild Rockies ("AWR") appeals the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, we issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, 385 Fed.Appx. 683 (9th Cir.2010). In this opinion, we now set forth the reasons for our reversal, and we take this opportunity to clarify an aspect of the post- Winter standard for a preliminary injunction.

I. Background

In August and September of 2007, the Rat Creek Wildfire burned about 27,000 acres in the Beaverhead–Deerlodge National Forest in Montana. On July 1, 2009, almost two years later, the Chief Forester of the Forest Service made an Emergency Situation Determination for the Rat Creek Salvage Project ("the Project"). The Emergency Situation Determination permitted the immediate commencement of the Project's logging without any of the delays that might have resulted from the Forest Service's administrative appeals process.

The Project permits salvage logging of trees on approximately 1,652 of the 27,000 acres that were burned. The logging will take place (and to some degree has already taken place) on thirty-five units of land ranging from 3 to 320 acres in size. The Forest Service describes the purpose of the Project as follows:

... to recover and utilize timber from trees that are dead or dying as a result of the Rat Creek Wildfire or forest insects and disease and reforest the harvested units with healthy trees appropriate for the site. The trees would supply wood to the forest products industry.

A further purpose is to cut trees infested with dwarf mistletoe to prevent transmission to new trees.

Trees to be cut are those from 4 to 15 inches in diameter at breast height ("dbh") that have died or are likely to die as a direct result of fire or insect attack. The Forest Service has provided species-specific guidelines for determining likelihood of mortality. For example, Douglas-fir trees from 4 to 15 inches dbh are to be logged if less than 40% of the pre-fire live crown remains. Other conifers are to be logged if less than 80% of the pre-fire live crown remains. The severity of insect attacks is to be determined by examining trees for signs such as pitch tubes or boring dust.

Trees that survived the fire but are infected with dwarf mistletoe are to be cut, regardless of size, unless doing so would reduce the number of live trees below the Forest Service's wildlife habitat standard. Uninfested live trees, including those with a dbh larger than 15 inches, are to be cut only if required by safety concerns.

The Project requires construction of 7 miles of temporary roads and reconditioning of about 3 miles of existing roads. After completion of the Project, the temporary roads will be obliterated, and the existing roads will be returned to their current uses, if any.

In April 2009, the Forest Service released an Environmental Assessment ("EA") of the Project for public comment.

On June 15, 2009, the Acting Forest Supervisor for the Beaverhead–Deerlodge National Forest wrote to the Regional Forester requesting that the Chief Forester make an Emergency Situation Determination ("ESD") in connection with the Rat Creek Project. The ESD request stated that the emergency resulted from "rapid deterioration and decay of trees proposed for salvage harvest," noting that "[t]rees that have died or are dying from secondary fire effects are rapidly losing their value and merchantable volume." The request stated that immediate commencement of logging would "prevent substantial economic loss to the Federal Government." The sites to be logged are typically accessible to loggers for only four to five months out of the year due to heavy snowfalls. The request stated that the logging needed to commence immediately so that it could be completed before winter arrived.

The request stated further:

An objective for recovering the value of the fire-killed trees is to respond to local, regional, and national needs for commercial timber products. Local economies in Southwest Montana have developed with natural resource utilization as the foundation. This economic structure continues today and is becoming stressed and increasingly unstable due to higher energy prices, and reduced supply of timber from National Forest System lands. As markets decline and harvest activities on private lands decrease, the timber industry in Montana increasingly depends on National Forest System timber supply as an essential element to keep their mills operational.

On June 22, 2009, the Regional Forester forwarded the request for an ESD to the Chief Forester, noting that a "delay in implementation of activities included in the request would result in substantial loss of economic value to the Federal Government." On July 1, 2009, the Chief Forester granted the request for an ESD. She wrote:

[A] delay to implementing the project until after any administrative appeals have been reviewed and answered will result in a substantial loss of economic value to the government. Such a delay would push the award of timber sale contracts for the hazard tree and other salvage back to late October 2009, with winter access limitations delaying most operations until summer of 2010. By that time further deterioration of the affected trees will have resulted in a projected loss of receipts to the government of as much as $16,000 and significantly increased the likelihood of receiving no bids. An absence of bids would push the potential loss to the government to $70,000 and eliminate an opportunity to accomplish Douglas-fir planting and dwarf mistletoe control objectives.

In evaluating whether an emergency situation exists with this project, I also took note of the importance this project has to the local economy of southwest Montana. I understand the wood products yielded by this project will be a critical contributor to helping keep local mills operational.

On July 22, 2009, the Forest Service issued the final Environmental Assessment ("EA") and a Decision Notice and Finding of No Significant Impact ("DN/FONSI"). The Forest Service concluded that the Project would not have a significant effect on the quality of the human environment and that an Environmental Impact Statement ("EIS") was therefore not required. The Forest Service then initiated a bidding process for the Project. On July 30, 2009, Barry Smith Logging was declared the highest bidder.

Plaintiff AWR filed suit in federal district court alleging violations of the Appeals Reform Act ("ARA"), the National Forest Management Act ("NFMA"), and the National Environmental Protection Act ("NEPA"). In a brief order entered on August 14, 2009, the district court denied AWR's request for a preliminary injunction. After quoting Winter, the court wrote, "After reviewing the parties' filings, the Court is convinced Plaintiffs do not show a likelihood of success on the merits, nor that irreparable injury is likely in the absence of an injunction. This determination prevents the issuance of a preliminary injunction at this stage of the proceedings." The court did not describe or analyze the merits of AWR's claims and did not describe or analyze the harm alleged by AWR. The court denied AWR's motion for a stay and injunction pending appeal to this court.

Barry Smith Logging began work on the Project on August 21, 2009. The parties indicated at oral argument that approximately 49% of the planned logging was completed before winter conditions halted operations.

AWR timely appealed the district court's denial of its request for a preliminary injunction. Because a significant amount of the Project remains to ...


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