-KJN (TEMP) Conservation Congress et al v. United States Forest Service, No. 2:2007cv02764 - Document 115 (E.D. Cal. 2011)
Court Description: ORDER granting in part and denying in part 80 Plaintiff's Motion for Preliminary Injunction, signed by Senior Judge Lawrence K. Karlton on 3/23/11. This court's order 73 is temporarily suspended for ten days from the issuance of this or der in order to allow plaintiff to seek a further stay from the Ninth Circuit. For those ten days, this court's injunction 39 is restored. Defendants are ENJOINED from harvesting timber in units 422 and 431 for the entire appeal period. (Kastilahn, A)
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-KJN (TEMP) Conservation Congress et al v. United States Forest Service Doc. 115 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CONSERVATION CONGRESS and KLAMATH FOREST ALLIANCE, 11 NO. CIV. S-07-2764 LKK/KJN 12 Plaintiffs, 13 v. O R D E R 14 UNITED STATES FOREST SERVICE, 15 Defendant. / 16 17 This case arises from the planned sale of timber located in 18 the Shasta-Trinity National forest. This court previously enjoined 19 the “Pilgrim project,” as the timber sale is known, and remanded 20 the matter back to the U.S. Forest Service for further action. 21 Order, May 14, 2008, ECF No. 39. In September 2010, the court 22 granted the Forest Service’s motion for relief from the judgment 23 and dissolved the injunction. ECF No. 73. Plaintiffs have appealed 24 to the Ninth Circuit, and now move for this court to issue an 25 injunction pending appeal. 26 //// 1 Dockets.Justia.com I. Background 1 2 Plaintiffs Conservation Congress and Klamath Forest Alliance 3 filed this suit on December 20, 2007, seeking declaratory and 4 injunctive 5 National Forest Management Act (“NFMA”), the National Environmental 6 Policy Act (“NEPA”), and related regulations. Plaintiffs alleged 7 that the Forest Service violated those laws in its preparation of 8 the Pilgrim Vegetation Management Project because the planned 9 project did not comply with the Shasta-Trinity national Forest Land 10 and Resource Management Plan (“LRMP”) and the Northwest Forest Plan 11 Record of Decision (“NWFP RPD”). In particular plaintiffs objected 12 to the defendant’s “proxy on proxy” approach to monitoring wildlife 13 species diversity and health. Under that approach, the Forest 14 Service uses habitat health as a proxy for wildlife species 15 viability. As noted in the May 13, 2008 order, this approach is 16 permissible 17 satisfied: 18 correlation between habitat health and species health, and second, 19 the methodology for measuring habitat must also itself be accurate 20 and reliable.” Order 13:5-8, ECF No. 39. This court concluded that 21 it was improper to use the proxy-on-proxy approach in the context 22 of the Pilgrim project because the defendants did not show a 23 sufficient correlation between habitat and species health for the 24 mule deer and the red-breasted nuthatch, which were selected as 25 representative of the broader wildlife community. May 2010 Order 26 18:6-9, 20. The court rejected plaintiff’s other claims, but relief in for the first, defendant’s Ninth there Circuit must be 2 alleged “where an violations two accurate of conditions and the are reliable 1 enjoined the Pilgrim project remanded the matter to the Forest 2 Services for further action consistent with the order. 3 On remand, the Forest Service completed a supplemental 4 environmental impact statement (“SEIS”), and then subsequently 5 filed a Rule 60(b)(5) motion for relief from judgment. In that 6 motion, 7 additional data and analysis demonstrating that the project would 8 not 9 “provide for diversity of plant and animal communities.” 16 U.S.C. the violate Forest the 1604(g)(3)(B). Service Forest The contended Service’s Forest that the obligation, Service under contended provides NFMA, that to 10 § 11 governing statutes, regulations, and forest plans permit the Forest 12 Service to monitor habitat directly, dispensing with the proxy-on- 13 proxy approach. After reviewing the SEIS, the court concluded that 14 its findings were neither arbitrary or capricious. The court held 15 that given the findings and analysis in the SEIS, “the relationship 16 between habitat and species health was such that the Forest 17 Service’s use of habitat in this case was proper.” The court 18 further concluded that the Forest Service’s findings regarding the 19 project’s effects on the mule deer and red-breasted nuthatch were 20 neither arbitrary or capricious. On September 14, 2010 this court 21 granted the Forest Service’s motion for relief from judgment and 22 dissolved the injunction. Plaintiffs now seek an injunction pending 23 appeal, which would effectively reinstate the original injunction 24 of the project. For the reasons stated below, plaintiffs’ motion 25 is DENIED. 26 //// 3 also SEIS the II. Standard of Review 1 2 Injunctions pending appeal are governed by Fed. R. Civ. P. 3 62(c), which provides that: “While an appeal is pending from an 4 interlocutory order or final judgment that grants, dissolves, or 5 denies an injunction, the court may suspend, modify, restore, or 6 grant an injunction in terms for bond or other terms that secure 7 the opposing party’s rights.” 8 Under Rule 62(c) the factors regulating the issuance of the 9 injunction are “1) whether the stay applicant has made a strong 10 showing that he is likely to succeed on the merits; (2) whether the 11 applicant will be irreparably injured absent a stay; (3) whether 12 issuance of the stay will substantially injure the other parties 13 interested in the proceeding; and (4) where the public interest 14 lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (U.S. 1987). The 15 standard for a Rule 62(c) injunction pending appeal is similar to 16 the standard for a preliminary injunction. Lopez v. Heckler, 713 17 F.2d 1432, 1435 (9th Cir. 1983). Thus, the “sliding scale" approach 18 to preliminary injunctions, the continuing validity of which the 19 Ninth Circuit recently reaffirmed, applies to requests for Rule 20 62(c) injunctions pending appeal. The Supreme Court has explicitly 21 rejected a version of the sliding scale test for preliminary 22 injunctions in which a showing of a mere possibility of irreparable 23 harm could warrant an injunction when the other traditional factors 24 strongly 25 Resources Defense Council, 555 U.S. 7 (2008). Although Winter made 26 clear support that issuing plaintiffs an must injunction. show 4 a Winter likelihood of v. National irreparable 1 harm–rather than the mere possibility of one–the Ninth Circuit has 2 held that a sliding scale approach may still be used. 3 Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. This circuit has adopted and applied a version of the sliding scale approach under which a preliminary injunction could issue where the likelihood of success is such that ‘serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.’ 4 5 6 7 8 9 10 Alliance For The Wild Rockies v. Cottrell, 2011 U.S. App. LEXIS 11 1473 (9th Cir. 25, 2011)(internal citations omitted). A party 12 seeking an injunction under this ‘serious question’ standard must 13 still satisfy the other elements of the test from Winter. 555 U.S. 14 7 (2008). “That is, ‘serious questions going to the merits’ and a 15 balance of hardships that tips sharply towards the plaintiff can 16 support issuance of a preliminary injunction, so long as the 17 plaintiff also shows that there is a likelihood of irreparable 18 injury and that the injunction is in the public interest.” Alliance 19 For The Wild Rockies, 2011 U.S. App. LEXIS 1473 at 21 (9th Cir. 20 2011). 21 Rule 62(c) creates an exception to the principle that the 22 filing of a notice of appeal confers jurisdiction on the appellate 23 court and divests the district court of jurisdiction over the 24 matters at issue on appeal. “This Rule grants the district court 25 no broader power than it has always inherently possessed to 26 preserve the status quo during the pendency of an appeal; it ‘does 5 1 not restore jurisdiction to the district court to adjudicate anew 2 the merits of the case.’” Natural Res. Def. Council v. Southwest 3 Marine, 4 citations omitted); see also Small ex rel. NLRB v. Operative 5 Plasterers' & Cement Masons' Int'l Ass'n Local 200, AFL-CIO, 611 6 F.3d 483, 495 (9th Cir. 2010) Thus, the court can only issue an 7 injunction pending appeal that preserves the status quo. Inc., 242 F.3d 1163, 1166 (9th Cir. 2001)(internal III. Analysis 8 9 Plaintiffs seek an injunction pending appeal that would 10 effectively restore the injunction that this court dissolved in its 11 September 2010 Order. Plaintiffs claim that they are entitled to 12 such an injunction because they have raised a serious legal 13 question going to the merits of their case, they will suffer 14 permanent and irreparable injury absent an injunction, and the 15 public interest lies in issuing the injunction. 16 A. Serious Legal Question 17 Plaintiffs do not state in any concise manner what serious 18 legal question they have raised. Instead, they argue that this 19 court should not have granted the defendant relief from judgment 20 in September 2010, because the defendant did not satisfy the 21 conditions of the May 2008 order and no law subsequent to the May 22 2008 order invalidated that order. It seems that plaintiff is 23 arguing primarily that relief from judgment was not proper because 24 the method used by the Forest Service in the SEIS on remand was the 25 same method that this court has previously found to be improper. 26 Plaintiffs assert that the May 2008 order had held that proxy-on6 1 proxy analysis was improper because the “health of the mule deer 2 and red-breasted nuthatch species was not highly correlated with 3 the habitat types chosen to represent their health.” Although not 4 labeled as such, the SEIS utilized a methodology substantially the 5 same as the proxy-on-proxy approach. Thus, plaintiffs argue that 6 the SEIS did not satisfy the terms of the court’s May 2008 order. 7 Throughout their brief, plaintiffs mischaracterize the court’s 8 holding, asserting, e.g., “this court previously ruled that the 9 proxy-on-proxy approach could not be used as a substitute for 10 monitoring mule-deer because there was conflicting information 11 about the cause of the decline in mule-deer populations.” Pls.’ 12 Mot. for Inj. Pending Appeal 17. Contrary to plaintiffs’ position, 13 however, the May 2008 order did not rule out altogether the use of 14 the proxy-on-proxy method for measuring the impact of the project 15 on the mule deer and red breasted nuthatch species. Rather, the 16 court held that the Forest Service had not shown a sufficiently 17 high enough correlation between habitat health and species health 18 to justify that approach. As noted in the September 2010 order, 19 defendant 20 information presented in the SEIS,” which demonstrated that “the 21 relationship between habitat and species health was such that the 22 Forest Service’s use of habitat in this case was proper.” September 23 2010 Order 14:25-15:1. cured this defect with “additional analysis and 24 With respect to mule deer, the SEIS discussed the cause of a 25 population decline. The original EIS had concluded that the cause 26 of the decline was unknown, and might have been due to predation. 7 1 The SEIS cited additional studies, including studies by the 2 California Department of Fish and Game, in concluding that the 3 decline in population was largely due to declines in habitat 4 quality, and that predation was not a primary cause of a decline 5 in mule-deer population. The SEIS noted that habitat pressures 6 contributed to high rates of mortality from predation, but that 7 mortality from predation was a symptom of habitat pressure, the 8 underlying cause of the population decline. September 2010 Order 9 16. The SEIS additionally analyzed habitat quality, rather than 10 merely using habitat quantity as a proxy for species population, 11 and ultimately concluded that the project would not meaningfully 12 alter trends in mule deer population. This court, upon review of 13 the record, found that the Forest Service’s conclusions were not 14 arbitrary and capricious. 15 With respect to the red-breasted nuthatch, the original EIS 16 had not concluded that there was a significant relationship between 17 increases in late seral assemblage habitat and increases in species 18 population. Because of this, the May 2008 order found that proxy- 19 on-proxy analysis was improper. The SEIS, by contrast, analyzed 20 additional data on nut-hatch populations in the project area, as 21 well as data over broader geographic scales, concluding that 22 habitat is correlated with actual populations. Using data from 23 outside of the project is proper when there is no evidence of 24 factors that would cause local population trends to differ from 25 broader trends. The order noted that the Forest Service had used 26 the “best available science” in the SEIS, which, even if imperfect, 8 1 is all that is required of the Forest Service. 2 In sum, the defendants satisfied the court’s May 2008 order 3 by conducting, on remand, a SEIS that used additional data and 4 analysis to demonstrate a sufficiently high correlation between 5 habitat and species population to support the methodology used by 6 defendant in concluding that the project would not impair the 7 diversity of plant and animal communities. Plaintiffs, in arguing 8 that the defendant has not satisfied the terms of the May 2008 9 order because the SEIS uses a method very similar to the proxy-on- 10 proxy approach used in the original EIS miss the point of the 11 court’s conclusion in the September 2010 order, i.e., that the 12 defendant had provided additional data and analysis to show that 13 the approach was proper in this case. Thus, plaintiff does not 14 raise a serious legal question as to whether the defendant cured 15 the defects noted in the May 2008 order with respect to sufficiency 16 of the correlation between habitat and species population. 17 Plaintiffs frown upon what it characterizes as defendant’s 18 reliance on the unpublished Ninth Circuit opinion in Conserv. Cong. 19 V. U.S. Forest Serv., 2010 U.S. App. Lexis 5437 (2010). Indeed, 20 defendant cited that opinion in its motion for relief from judgment 21 to bolster its argument that it can satisfy its obligations by 22 looking at habitat directly, rather than proving that habitat is 23 an appropriate proxy for species population by demonstrating a high 24 correlation between the two. The court agrees that the unpublished 25 Ninth Circuit opinion has no precedential effect, but this court’s 26 September 2010 order did not rely on that opinion. Instead, the 9 1 court decided that the five-step method used by the defendant in 2 the SEIS complied with the NFMA because it appropriately evaluated 3 the project’s likely impact on plant and animal diversity in that 4 it predicted changes to habitat, predicted the effect that those 5 changes would have on three species identified as representative 6 of the greater wildlife population, and used this analysis to 7 inform its prediction of the effects the project would have on the 8 collections of species. The court noted that the label affixed to 9 this method, whether ‘proxy-on-proxy,’ or something else, is 10 unimportant to the conclusion. September 2010 Order at 14. 11 Accordingly, the court concludes that the plaintiffs have not 12 raised a serious legal question as to the merits of this case. 13 B. Irreparable Injury 14 Plaintiffs’ counsel has submitted a declaration stating that 15 defendant has informed them that logging and sales of timber from 16 the Pilgrim project may commence at any time. Dugan Decl. ¶ 2, ECF 17 No. 18 irreparable harm,” Pls.’ Mot. 25:16, and cite Earth Island Inst. 19 v. United States Forest Serv., 351 F.3d 1291 (9th Cir. 2003) for 20 this proposition. That case, however, states “a Forest Service 21 logging plan may, in some circumstances, fulfill the irreparable 22 injury 23 consequences.” 24 “[e]nvironmental injury, by its nature, can seldom be adequately 25 remedied by money damages and is often permanent or at least of 26 long duration, i.e., irreparable,” Lands Council v. McNair, 537 80. Plaintiffs criterion argue because Id. at that of “logging the 1299 10 long (emphasis itself term constitutes environmental added). Although 1 F.3d 981, 1004 (9th Cir. 2008)(citing Amoco Prod. Co. v. Vill. of 2 Gambell, 480 U.S. 531 (1987)), the Ninth Circuit has “decline[d] 3 to 4 automatically merits an injunction, particularly where, as in this 5 case, we have determined that the plaintiffs are not likely to 6 succeed on the merits of their claims.” Lands Council, 537 F.3d at 7 1005. Logging is no exception: the “argument that logging is per 8 se 9 irreparable environmental harm was squarely rejected by McNair.” 10 Earth Island Inst. v. Carlton, 626 F.3d 462, 474 (9th Cir. 2010). 11 While logging and timber sales do not constitute per se irreparable 12 harm, plaintiffs here have shown that irreparable harm is likely 13 to occur because of the large scope of the Pilgrim project, which 14 will result in the loss of over 500 acres of habitat. Once lost, 15 the habitat would take decades, if not more, to recover. adopted enough a to rule that warrant an any potential injunction environmental because it injury constituted 16 Defendants counter that the Pilgrim project will in fact have 17 a positive impact on the environment, since the project will 18 “combat the threats posed by overstocked stands, which include 19 moisture 20 infestations,” thus reducing the risk of “catastrophic wildfire.” 21 Def.’s Oppo. 18. 22 Given stress and the defendant’s spread statement of to root disease plaintiffs’ and insect counsel that 23 logging and timber sales are imminent, and the large scope of the 24 project, the court concludes that plaintiffs have demonstrated at 25 least a likelihood that irreparable harm–destruction of over 500 26 acres of habitat--will occur in the absence of the injunction. 11 1 C. Balance of Hardships 2 When plaintiffs request an injunction on the basis of a 3 serious legal question, rather than a strong likelihood of success 4 on the merits, they must show that the balance of hardships tip 5 sharply in their favor. Alliance For The Wild Rockies, 2011 U.S. 6 App. LEXIS 1473 at 21 (9th Cir. 2011). In this case, plaintiffs 7 request that the court apply the “serious legal question” standard, 8 but make no argument that the balance of hardships tip sharply in 9 their favor. Plaintiff appears to conflate this element of the 10 Winter analysis with the irreparable harm element, even though the 11 Ninth Circuit has made clear that all four elements must be met in 12 order for an injunction to issue. Id. 13 As noted above, plaintiffs have demonstrated a likelihood that 14 irreparable harm will occur to over 500 acres of habitat if the 15 Pilgrim project moves forward. This hardship must significantly 16 outweigh the hardship that an injunction would impose on the 17 defendant. The defendants assert two hardships that would occur. 18 First, the U.S. Forest Service states that the Pilgrim project is 19 designed to improve the health of the forest, and the risks 20 currently posed by over-population will go unabated if the project 21 is enjoined. Insect infestation and disease will spread, and the 22 risk of wildfire will increase. Second, defendant intervenors Rough 23 and Ready Lumber, LLC (“Rough and Ready”), and Sierra Pacific 24 assert an economic hardship. A court may balance environmental 25 preservation with economic harms, such as the loss of revenue from 26 timber sales and related economic impacts. See, e.g., Lands Council 12 1 537 F.3d at 1005, Wildwest Inst. v. Bull, 472 F.3d 587 (9th Cir. 2 2006) (holding that the district court did not abuse its discretion 3 in concluding that “the possibility of a severe wildfire in the 4 area, and the inherent danger to human life, constituted measurable 5 injuries, as did the money the Service would lose in revenue from 6 timber sales.”). Rough and Ready claims that it has already made 7 a down payment on a portion of the timber to be sold from the 8 Pilgrim project, and that the quality of the timber will decline 9 if an injunction is issued. Rough and Ready estimates a decline of 10 $1 million in the value of the timber. Sierra Pacific has made a 11 down payment on another portion of timber to be sold from the 12 Pilgrim project. Rough and Ready claims that it has already made 13 adjustments to its operations in anticipation of the timber from 14 the Pilgrim project. Decl. Phillippi 2. Rough and Ready also states 15 facts showing that there are seasonal considerations with respect 16 to the timber from the project: the timber is largely inaccessible 17 during the wet spring season, and the company needs access to the 18 timber before that wet season begins in order to keep the mill 19 operating and the company’s ninety (90) employees working. Id. 3-4. 20 Plaintiff argues that the defendant-intevenors entered into 21 purchase agreements for the timber at their own peril, since the 22 agreements were made while this suit was pending. In such cases, 23 where 24 injunction, the court should not balance the harms that would flow 25 to that party as a result of the injunction. See, e.g. Desert 26 Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1187 (9th Cir. the defendant-intervenor 13 is on notice of a potential 1 2000) (holding that “BLM and Gold Fields acted at their peril in 2 transferring the land while on notice of the pendency of a suit 3 seeking an injunction against them.”). In this case, despite 4 compelling arguments that Rough and Ready has made about the 5 hardships the company and its employees will endure if logging in 6 the Pilgrim project is enjoined, the court concludes that the 7 defendant-intervenors were on notice that the project might be 8 enjoined, and any economic investments related to the project were 9 made at the companies’ own peril. The court therefore will not 10 factor those economic losses in to the balance of hardships. 11 Balancing the likelihood of destruction of 500 acres of 12 habitat with the likelihood that the project will actually improve 13 environmental conditions in the project area the court concludes 14 that the balance of hardship do not tip sharply in plaintiff’s 15 favor. 16 D. The Public Interest 17 Plaintiffs assert that the public interest lies in the 18 preservation of the forest and its resources, as well as in agency 19 compliance with environmental regulations. Defendants argue that 20 the Pilgrim project will protect the health of the forest by 21 eliminating the causes of disease, insect infestation and wildfire. 22 In this case, the court concluded that the Forest Service has 23 complied with the applicable environmental regulations, and the 24 public interest lies in allowing the agency to proceed with the 25 project that it, based on its expertise, has determined will 26 benefit the forest. 14 1 E. Briefing Requested at Oral Argument 2 At oral argument the court asked plaintiffs whether there was 3 a limited area of particularly sensitive habitat in which logging 4 operations had not yet commenced. The court indicated, but did not 5 conclude, that a limited injunction on logging in such an area 6 might be appropriate if it did not disrupt logging operations 7 already underway. Plaintiff replied that there were approximately 8 500 acres of late-successional habitat in which logging had not yet 9 begun. The court ordered plaintiff to submit a description of those 10 500 acres, and provided an opportunity for defendants to respond. 11 Plaintiffs timely filed a description of 403 acres that they deemed 12 to be of “greatest concern" but plaintiff did not state whether 13 timber harvest in these areas had already begun. The property 14 description 15 Defendants have argued that many of the parcels contained in 16 plaintiffs’ description include stands of trees that are dead or 17 dying, and which may pose a danger to the health of the surrounding 18 forest and to users of the forest. Plaintiffs’ submission did not 19 convince the court that a limited injunction covering the area 20 described is warranted under the factors discussed above with 21 respect to an injunction pending appeal of the entire project. 22 However, 23 plaintiff’s post-hearing brief that they are willing to defer 24 harvest in three units within the project–units 421, 422, and 25 431–for the duration of the appeal. The federal defendants argue, 26 however, that the trees on unit 421 pose a danger to recreational included parcels of defendant-intervenors varying state 15 in types their of habitat. response to 1 users of the forest. The court therefore GRANTS a limited 2 injunction on timber harvesting activities in units 422 and 431 3 pending plaintiffs’ appeal to the Ninth Circuit. IV. Conclusion 4 5 The court concludes that plaintiffs are not entitled to a Rule 6 62(c)injunction pending appeal because they have not raised a 7 serious legal question, nor that the balance of hardships or the 8 public interest tip sharply in their favor. However, because of the 9 potential for irreparable harm, the court will grant the plaintiff 10 a limited injunction of ten (10) days to allow the plaintiff to 11 seek a stay from the Ninth Circuit. Additionally, the court ENJOINS 12 the project with respect to units 422 and 431 throughout the appeal 13 period. Accordingly, the court ORDERS as follows: 14 [1] Plaintiff’s motion for an injunction pending appeal, ECF 15 No. 80 is GRANTED in part and DENIED in part. 16 [2] 17 temporarily suspended for ten (10) days from the issuance of 18 this order in order to allow the plaintiff to seek a further 19 stay from the Ninth Circuit. 20 [3] For those ten (10) days, this court’s injunction issued 21 May 2008, ECF No. 39, is restored. 22 [4] Defendants are ENJOINED from harvesting timber in units 23 422 and 431 for the entire appeal period. 24 IT IS SO ORDERED. 25 DATED: This court’s September March 23, 2011. 26 16 2010 Order, ECF No. 73 is
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