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Earth Island Institute, A Non- Profit Organization v. Jerry Bird

September 26, 2011

EARTH ISLAND INSTITUTE, A NON- PROFIT ORGANIZATION, PLAINTIFF,
v.
JERRY BIRD, IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR FOR LASSEN 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.



ORDER GRANTING DEFENDANTS‟ MOTION TO DISSOLVE THE INJUNCTION

This matter is before the Court on Defendants‟ Jerry Bird, Randy Moore and the United States Forest Service (the "Forest Service") (collectively "Defendants") Motion to Dissolve the Injunction (Doc. #88). Plaintiff Earth Island Institute ("Plaintiff") opposes the motion. (Doc. #93). The Court heard oral argument on the motion on August 24, 2011. Defendants seek to dissolve the injunction ordered by this Court on August 5, 2009.

See Earth Island Institute v. Morse, 2009 WL 2423478 (E.D. Cal. 2 Aug. 5, 2009). Based on the moving papers, the administrative 3 record and oral argument, the Motion to Dissolve the Injunction is 4 GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background leading up to Defendants‟ present motion are fully discussed in the Court‟s 9 previous order granting injunctive relief, (Earth Island, supra), and the Court‟s order denying Defendants‟ request for reconsideration of the injunction. (See Earth Island Institute v. Morse, 2009 WL 4163846 (E.D. Cal. Nov. 20, 2009).)

The Court enjoined the Champs Project ("the project") until the Forest Service completed an "adequate and sufficient [NEPA] review." Earth Island, 2009 WL 2423478 at *10. While the injunction has been in place, Defendants have prepared a supplement ("SEA") to the original Champs Environmental Assessment ("EA"). A draft SEA was opened to public comment for 30 days, and the Forest Service responded in detail to the public comments, including those submitted by Plaintiff, before completing the final SEA. After review of the public comments and the Forest Service‟s responses, Jerry Bird issued a finding of No Significant Impact ("FONSI"), concluding that the SEA did not require further environmental analysis or a modified decision.

In its Order granting injunctive relief, Earth Island, 2009 WL 2423478, the Court held that Defendants violated the National Environmental Policy Act ("NEPA") by failing to ensure the scientific accuracy and integrity of the EA. Defendants assert that they are now in compliance with NEPA and with the Court‟s 2 order, and ask the Court to dissolve the injunction so that they 3 may proceed with the proposed project. Plaintiff contends that the 4 SEA does not comply with NEPA and is in defiance of the Court‟s 5 previous orders. Further, Plaintiff raises three additional 6 alleged NEPA violations that were not addressed previously by the 7 Court, arguing that these potential violations provide support for 8 maintaining the injunction.

II. OPINION

A. Legal Standard

A court which issues an injunction retains jurisdiction to modify the terms of the injunction if a change in circumstances so requires. Nicacio v. United States Immigration & Naturalization Serv., 797 F.2d 700, 706 (9th Cir. 1985), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Federal Rule of Civil Procedure 60(b)(5) allows courts to relieve a party or its legal representative from a final judgment, order or proceeding if the judgment has been satisfied, released, or discharged. Fed. R. Civ. Proc. 60(b)(5). Rule 60(b) codifies the long-established principle of equity practice that a court may, in its discretion, take cognizance of changed circumstances and relieve a party from a continuing decree. Gilmore v. California, 220 F.3d 987, 1007 (9th Cir. 2000).

A party seeking dissolution of an injunction may meet its initial burden by demonstrating that there has been a significant change in facts or law. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992); see also Sharp v. Weston, 233 F.3d 1166,1170 (9th Cir. 2000) ("a party seeking modification or 2 dissolution of an injunction bears the burden of establishing that 3 a significant change in facts or law warrants revision or 4 dissolution of the injunction"). A significant change is one that 5 pertains to the underlying reasons for the injunction. Moon v. 6 GMAC Mortgage Corp., 2008 WL 4741492, at *2 (W.D. Wash. Oct. 24, 7 2008) (citing United States v. Swift & Co., 189 F. Supp. 885, 905 8 (D. Ill. 1960), aff‟d per curium, 367 U.S. 909 (1961)). Under a 9 flexible standard based on Rule 60(b)(5), the Ninth Circuit has directed courts to take all the circumstances into account in determining whether to modify or vacate a prior injunction or consent decree. Orantes-Herndandez v. Gonzales, 504 F.Supp.2d 825, 830 (C.D. Cal. 2007); aff‟d, 2009 WL 905454 (9th Cir. 2009).

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans, like the Champs Project challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council v. McNair (Lands Council II), 537 F.3d 981, 989 (9th Cir. 2008). The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purposes are to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996). The Forest Service must prepare an EIS, which identifies environmental effects and alternative courses of action, when undertaking any management project. Id.; 42 U.S.C. § 4332(2)(C). "In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results."

Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th 5 Cir. 2002). The agency must only take a "hard look" at its 6 proposed action. Id. at 1070.

The Administrative Procedure Act ("APA") provides the 8 authority for the Court‟s review of decisions under NEPA and NFMA.

Lands Council II, 537 F.3d at 987. Under the APA, an agency decision will be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(s)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir. 2005). "Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of ...


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