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.
No. 09-16914
United States Court of Appeals, Ninth Circuit
November 8, 2010
626 F.3d 462
G. For the 2006-2007 school year, did the District substantively deny Student a FAPE by failing to address his unique needs by developing appropriate goals and objectives in the areas of audition skills, audiology, auditory language development, building language, and learning the English language
Student argues that District‘s failure to assess Student‘s audition skills made District unable to develop goals to address Student‘s unique needs. As discussed more fully above, however, District‘s assessment of Student was appropriate. The September 2006 IEP contained goals in the following areas: expressive/receptive language (semantics/syntax); expressive/receptive language (vocabulary); expressive/receptive language (syntax/semantics); speech articulation; reading comprehension; written language; math comprehension; and peer interaction/pragmatics. These goals and objectives relate to Student‘s unique needs, as they are directed at reading, oral language, listening skills, vocabulary development, speaking, language expression and articulation. Dr. Martindale testified that these goals were “fine,” but there were not enough auditory goals. The discussion above applies here. Having considered the totality of evidence, this Court finds that the 2006-2007 goals and objectives appropriately addressed Student‘s unique needs, and Student was not denied a FAPE.
CONCLUSION AND ORDER
For the foregoing reasons, this Court:
- DENIES in full Student‘s motion for summary judgment;
- DISMISSES Student‘s IDEA claim; and
- SETS a scheduling conference on May 19, 2009 at 9:00 a.m. in Courtroom 9(DLB). The parties must file a joint schedule conference report no later that May 17, 2009.
IT IS SO ORDERED.
Dated: April 27, 2009
/s/ Lawrence J. O‘Neill
UNITED STATES DISTRICT JUDGE.
David C. Shilton, Attorney, U.S. Department of Justice, Washington, D.C., for the appellees.
Opinion by Judge HUG; Dissent by Judge REINHARDT.
OPINION
HUG, Circuit Judge:
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 reestablish 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“) 1 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
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 reevaluate 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
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
IV. DISCUSSION
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, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (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.
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
As we stated in Ecology Center v. Castaneda,
The National Forest Management Act provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. After a forest plan is developed, all subsequent agency action ... must comply with NFMA and the governing forest plan. Substantively,
NFMA requires that forest plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.”
574 F.3d 652, 656 (9th Cir.2009) (citations omitted). However, we also explained that the Forest Service‘s “1982 rule” which required the Forest Service manage fish and wildlife habitat “to maintain viable populations of existing native and desired non-native vertebrate species” was partially superceded in 2000 (the “2000 Rule“). Id. at 657. As we stated, “[t]he requirements of the superceded 1982 Rule apply only to the extent they were incorporated into the Forest Plan.” Id. at 657. (emphasis added).
Similarly, in McNair, we stated that “[t]he NFMA unquestionably requires the Forest Service to provide for diversity of plant and animal communities ... in order to meet overall multiple-use objectives.” 537 F.3d at 992 (quotation marks omitted). But emphasizing the “inherent flexibility of the NFMA“, we pointed out that the NFMA does not “specify precisely how” the Forest Service must demonstrate that it has met the objectives of the pertinent forest plan. Id. As we said,
as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA‘s requirements. Rather, we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable. The Forest Service must explain the conclusions it has drawn from its chosen methodology, and the reasons it considers the underlying evidence to be reliable. We will conclude that the Forest Service acts arbitrarily and capriciously only when the record plainly demonstrates that the Forest Service made a clear error in judgment in concluding that a project meets the requirements of the NFMA and relevant Forest Plan.
Id. at 993-94 (emphasis added). In contrast to the case at hand, the Forest Plan at issue in McNair contained specific provisions regarding wildlife viability. Id. at 989 (“The Forest Plan requires the Forest Service to manage the habitat of species listed in the Regional Sensitive Species List to prevent further declines in populations which could lead to federal listing under the Endangered Species Act.“) (alteration and quotation marks omitted). Even so, “neither the NFMA nor the ... Forest Plan require the Forest Service to improve a species’ habitat to prove that it is maintaining wildlife viability.” Id. at 995. Further,
Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands. Indeed, it has never been the case that the national forests were to be set aside for non-use ... Congress’ current vision of national forest uses ... states that it is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.
Id. at 990 (emphasis added, alteration, citations and quotation marks omitted).
Here, the Plumas National Forest Plan was amended in 2004 and 2007. Earth Island cites to language in the 2004 amendment indicating that the forest management approach chosen “will provide the fish and wildlife habitat and other ecological conditions necessary to maintain well-distributed viable populations of vertebrate species in the planning area, and maintain the diversity of plants and animals.”
The record shows that the Forest Service satisfied the requirement to assess MIS habitat in the project area. For example, in the Management Indicator Species Report for the Moonlight-Wheeler project, the Forest Service acknowledged the importance of snag forest to the woodpecker, estimated post-fire snag forest density in the proposed project area, analyzed the direct, indirect and cumulative effects of logging on the habitat under the five proposed alternatives. The Forest Service concluded that “[a]ll action alternatives, combined with ongoing and planned fire-killed tree removal projects, leave more area unharvested than harvested within the analysis area.... Leaving the majority of the burn in an unharvested condition maintains an important component of biological diversity [for] all the unique plants and animals that depend on those first few years of natural (postfire) succession. This includes the [woodpecker].” The RFEIS similarly analyzed the effects of the proposed project on the woodpecker‘s habitat needs at the project level in a thorough manner. As the district court noted,
the [Forest Service] analyzed the amount of suitable habitat that would be lost in the analysis area due to salvage logging, and concluded that 62% of suitable habitat created by the Moonlight and Wheeler fires, or 20,172 acres, would remain untreated, and thus still support an upward trend in BBWO [black-backed woodpecker] population. Finally, the [Forest Service] also analyzed the relationship of the project-level habitat impacts to the bioregional BBWO population trends and determined that after Project implementation, there would still be sufficient acres of forested areas that burned at high severity to support BBWO suitable habitat.
Further, the district court correctly found that the species distribution requirements only applied to the greater Sierra Nevada bioregional level, but not to the specific project at issue here. The district court correctly found that the Forest Service had analyzed the population distribution data in sufficient detail, concluding that the project would preserve a sufficient area to support the woodpeckers.
We give great deference to agencies when faced with this type of scientific evidence. See, e.g., Castaneda, 574 F.3d at 664; McNair, 537 F.3d at 993. Although we relied on species viability requirements in, for example, McNair, 537 F.3d at 992, 998, we emphasize the fact that such requirements only apply when contained in the pertinent forest plan for the site-spe-
Our role is “simply to ensure that the Forest Service made no clear error of judgment that would render its action arbitrary and capricious.” McNair, 537 F.3d at 993 (quotation marks omitted). This was not the case here. Courts may not impose “procedural requirements not explicitly enumerated in the pertinent statutes.” Id. (alteration omitted). Accordingly, the district court did not abuse its discretion when it concluded that Earth Island was not likely to succeed on the merits of its argument that in analyzing and implementing the project at issue, the Forest Service was required to ensure species viability.
ii. Forest Service Responses to Earth Island‘s Comments
Earth Island contends that the district court abused its discretion in finding that the Forest Service adequately responded to the dissenting scientific comments submitted by Earth Island‘s scientists during the RFEIS comment period. In particular, Earth Island alleges that the Forest Service responded in an impermissibly generalized manner and that the RFEIS did not address certain specific comments by Earth Island‘s experts, Mr. Rhodes and Dr. Royce.
Under NEPA, agencies must ensure the scientific integrity of the discussions and analyses in their environmental impact statements.
First, the district court cited to numerous instances in the RFEIS where the Forest Service responded in detail to the specific comments raised by Earth Island. For example, the court found that the Service commented on the adequacy of the roadside hazard tree guidelines, the alleged improper markings of hazard trees, the impact on woodpeckers and their habitat, and the impact of logging on post-fire soils and watersheds. Thus, Earth Island‘s contention that the Service only responded in a generalized manner is factually incorrect. The district court did not abuse its discretion in so finding.
Second, the Forest Service responded extensively to the comments by both Mr. Rhodes and Dr. Royce. The Forest Service responded to Mr. Rhodes’ comments on ground cover loss and landing sites for helicopter and skyline logging in both the body of the FREIS and in the Appendix. Mr. Rhodes disagrees with the Forest Service‘s scientific findings, but that disagreement does not render the Forest Service‘s review and comment process improper. “[N]one of NEPA‘s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS.... After all, to require the Forest Service to [do so] would be an onerous requirement, given that experts in every scientific field routinely disagree....” See McNair, 537 F.3d at 1001. The district court here found just such a “battle of the experts” to exist, but concluded that this did not establish a violation of NEPA. It was within its authority to do so.
Similarly, the RFEIS responded in detail to Dr. Royce‘s comments on the roadside hazard tree guidelines. For example, the RFEIS discussed the environmental effects of roadside hazard tree removal and explained why the Forest Service guidelines are consistent with scientific recommendations regarding fire-injured trees. The RFEIS also discusses a concern raised by an Earth Island expert regarding assumptions about the likely fall rates of burned trees. In short, the RFEIS took the required hard look at the determination of which trees were hazardous to road travelers. The Forest Service responded in a sufficiently detailed manner to the range of comments submitted. NEPA requires no more. McNair, 537 F.3d at 1000, 1003. Accordingly, the district court did not abuse its discretion in finding that the Forest Service met its comment period obligations.
iii. Enforceability of Tree Marking Guidelines
Earth Island contends that the Forest Service did not follow its allegedly enforceable tree marking guidelines. In arguing that the guidelines were binding, Earth Island cites to language from the Record of Decision and the RFEIS stating that the Forest Service shall “[u]se the best available information for identifying dead and dying trees,” that “[h]azard trees proposed for felling have been identified using the PNF Roadside/Facility Hazard Tree Guidelines,” and that the objective of the project is to “[r]emove roadside safety hazards.” The guidelines themselves are contained in a “Roadside/Facility Hazard Tree Abatement Action Plan,” the purpose of which is to “provide parameters for the abatement of road and facility hazard trees.” Further, “[t]he spirit of these guidelines is to: 1) remove those trees that would likely die to abate potential hazards to visitors ... and 2) retain those trees that will likely survive.... This balance aims to retain healthy forest cover....” (Emphasis added). Such language does not make the guidelines enforceable. In
In short, the district court used the correct standard for analyzing Earth Island‘s likelihood of success on the merits and did not abuse its discretion in finding that Earth Island failed to show that it was likely to succeed on the merits of its NFMA claims.
B. Likelihood of Irreparable Harm
Earth Island claims that the district court abused its discretion in conflating the merits and likelihood of irreparable harm inquiries. This argument is unavailing. In one instance, the court referred to Earth Island‘s likelihood of success on the merits in connection with its irreparable harm analysis. However, this should come as no surprise as there is significant overlap between these two issues. Winter does not stand for the proposition that courts may never evaluate one factor without looking to another, as Earth Island argues.
Earth Island also contends that the district court failed to realize that both the possible imminence of the alleged harm and the severity thereof must be analyzed under this prong. This argument does find basis in the record. The district court‘s analysis shows that the court fully understood and correctly applied this second Winter prong. For example, the court analyzed both whether it was likely or merely possible that the alleged harm would take place. Pointing out that a showing of a mere possibility of irreparable harm is not sufficient under Winter, the court found that Earth Island had, at most, showed such a possibility, but no likelihood of irreparable harm. Further, Earth Island‘s argument that logging is per se enough to warrant an injunction because it constituted irreparable environmental harm was squarely rejected by McNair where we declined “to adopt a rule that any potential environmental injury automatically merits an injunction.” 537 F.3d at 1005 (noting that this is particularly so where plaintiffs are also found not likely to succeed on the merits of their claims.).
Finally, Earth Island asserts that the district court abused its discretion in “essentially” requiring it to show that the project would render the entire regional population of woodpeckers unviable. Nowhere did the district court require Earth Island to demonstrate the species-level harm that Earth Island contends.
C. Balancing of the Equities and Public Interest
Finally, Earth Island argues that in balancing the equities and considering the public interest, the district court assigned too much weight to the Forest Service‘s asserted economic injury, the Forest Service‘s risk assessment and the Forest Service‘s determination that reforestation was in the public‘s interest. To be sure, district courts must “give serious consideration to the balance of equities and the public interest.” Winter, 129 S.Ct. at 368. However, “[a]n injunction is a matter of equitable discretion.” Id. at 381. The assignment of weight to particular harms is a matter for district courts to decide. The record here shows that the district court balanced all of the competing interests at stake. For example, the court stated that whereas “the balance of harms will usually favor the issuance of an injunction to protect the environment,” the law also did not allow it “to abandon a balance of harms analysis just because a potential environmental injury is at issue” and that it “must balance all of the competing interests at stake.”
Earth Island argues that the district court gave too much weight to the economic harm alleged by the Forest Service. It is true that the district court considered the government‘s interest in recovering the highest possible value of the timber and providing a boost to the local economy by creating jobs in the local logging industry. However, the district court did not clearly err in finding that the economic stakes, in combination with the safety concerns and reforestation efforts, outweighed any harm to environmental interests. Economic harm may indeed be a factor in considering the balance of equitable interests. See, e.g., Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (concluding that where asserted environmental injury was “not at all probable,” economic interest was properly given more weight); McNair, 537 F.3d at 1005 (holding that the district court did not clearly err in concluding that the balance of harms did not tip in environmental organization‘s favor where a Forest Service project would “further the public‘s interest in aiding the struggling local economy and preventing job loss.“).
Earth Island further argues that the district court erroneously found that if the injunction were issued, the public would be at risk from falling roadside hazard trees and erred in not considering its request 4 for a tailored injunction that allowed for only the felling of trees in imminent danger of falling. To be sure, district courts have “broad latitude in fashioning equitable relief when necessary to remedy an established wrong.” Sierra Hikers Ass‘n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004). However, courts must always carefully “balance the competing claims of injury.” Winter, 129 S.Ct. at 376. In doing so here, the district court carefully scrutinized both the written record regard-
Finally, Earth Island contends that the district court erred in finding that salvage logging was necessary to promote forest regeneration. The court evaluated expert testimony that absent logging of fire-killed and fire-injured trees in combination with the planting of conifer seedlings, brush species would eventually dominate the area resulting in an increase of the cost, difficulty and failure rate of subsequently converting the area into suitable woodpecker habitat. The court concluded that if the injunction was granted, the public would lose the immediate benefits of the reforestation efforts. It did not abuse its discretion in doing so.
CONCLUSION
For the above reasons, the district court correctly denied Earth Island‘s motion for a preliminary injunction enjoining the Forest Service‘s implementation of the Moonlight-Wheeler project.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority‘s denial of a preliminary injunction, like the district court‘s before it, rests on two fundamental errors. First, the majority concludes that the Forest Service has no obligation to ensure species viability in the Plumas National Forest despite numerous clear statements to the contrary in the Plumas National Forest Plan. Second, it concludes that the RHT Hazard Tree Marking Guidelines are not binding on the Forest Service despite the fact that the Forest Service itself acknowledges that they are. The district court rested its denial of a preliminary injunction almost entirely on its erroneous conclusions regarding Earth Island‘s likelihood of success on the merits. I would therefore grant a temporary injunction and remand to the district court to reconsider Earth Island‘s application for a preliminary injunction with the understanding that, as is explained below, Earth Island is likely to prevail on its NFMA challenges to the Moonlight-Wheeler Project.
I.
The Forest Service‘s actions in implementing the Moonlight-Wheeler Project violated a substantive obligation, enforceable under the NFMA, to ensure the viability of the Black-backed Woodpecker. To avoid this conclusion, the majority wilfully ignores unambiguous language in the 2004 and 2007 Forest Plan Amendments, which impose a binding obligation to ensure species viability in the Plumas National Forest, as well as our precedent, which makes this obligation applicable to individual projects, such as the Moonlight-Wheeler Project.
A.
The viability requirement that Earth Island alleges the Forest Service violated was originally stated in the first paragraph of the so-called 1982 Rule,
Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in
the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.
Moreover, even if binding precedent did not foreclose the majority‘s conclusions that the 1982 Rule does not apply and there is therefore no viability requirement, these conclusions could not be supported by a sensible reading of the relevant forest plan amendments. The 2004 amendments to the Plumas National Forest Plan, for example, could not have been more clear in incorporating the 1982 Rule and imposing a viability requirement upon the Forest Service. In the Record of Decision implementing the 2004 amendments, the Forest Service‘s Regional Forester for the Pacific Southwest Region stated that, “[m]y decision conforms with the 1982 planning regulations (29 CFR 219) that implement the National Forest Management Act.” The document‘s following subsection is entitled, “Diversity and Viability Provisions for Fish and Wildlife,” (emphasis added), and concludes by requiring the Forest Service to “provide the fish and wildlife habitat and other ecological conditions necessary to maintain well-distributed viable populations of vertebrate species in the planning area.” (Emphasis added). The majority suggests that this statement “could be read to mean that the Service was to ensure the distribution of the species,” but not their viability. Maj. Op. at 471. In fact, it cannot. To do so, one would first be required to ignore the fact that this statement follows shortly after the amend-
The majority likewise errs in its conclusion that the 2007 amendments do not impose a viability requirement. It so concludes because, in addressing requirements for Management Indicator Species such as the Black-backed Woodpecker, the Amendments require only “[d]istribution population monitoring [to] track changes in the distribution of each MIS at the Sierra Nevada scale by monitoring the changes in the presence of the species across a number of sample locations,” and state that “[t]he sole MIS requirement that is applied at the project-level is the assessment of habitat for MIS. Further, there are no monitoring requirements for MIS at the project level.” But this language is simply irrelevant to whether or not the Forest Service is obligated to ensure species viability. The 2007 amendments made clear that the species viability requirement and the MIS monitoring requirement are separate and distinct provisions, and that though the Amendment changed MIS monitoring requirements, it had no effect whatsoever on the Forest Service‘s preexisting obligation to ensure viability under the 1982 Rule:
This Amendment does not change the viability requirements. The viability requirements at the planning area scale are described under the first paragraph of the [1982 Rule]; these have already been met in each forest plan, as revised. Forests will continue to ensure that the project-level viability requirements are met: “Provide for adequate fish and wildlife habitat to maintain viable population of existing native vertebrate species” (
36 C.F.R. 219.27(a)(6) ). This is documented in project-level analysis.... The project-level MIS requirements will also be documented in project-level analysis.
FEIS Appendix G at 338. The Final Environmental Impact Statement for the 2007 amendments likewise stated that “[m]anagement for conservation of all species, regardless of whether they are designated as MIS or not, is governed by ... the general viability requirements of the National Forest Management Act implementing regulations.” FEIS at 56 (emphasis added). The 2004 and 2007 amendments impose a viability requirement upon the Forest Service that is distinct from the MIS monitoring requirement, and Forest Service must satisfy both requirements to be in compliance with the NFMA. Although the majority‘s extensive discussion of how the Moonlight-Wheeler Project satisfies the 2007 MIS monitoring requirement may well be correct, it is completely beside the point. The question at issue in this case is not whether or not the Forest Service has met its obligations to monitor MIS species, but whether or not it has satisfied the viability requirements so clearly set forth in the 2004 and 2007 amendments.
B.
Our precedents have been deliberately flexible in defining what the Forest Service must do when, as here, a Forest Plan requires it to ensure species viability in the administration of a given national forest. See, e.g., The Lands Council v. McNair, 537 F.3d 981, 997 (9th Cir.2008) (en banc) (“To always require a particular type of proof that a project would maintain a species’ population in a specific area would inhibit the Forest Service from conducting projects in the National Forests.“). However, two principles are clear. First, contrary to the majority‘s repeated efforts to assert that even if a viability requirement exists it does not apply at the project level, a viability requirement that is applicable at the planning level necessarily applies to and constrains individual projects undertaken in a national forest:
[C]ompliance with NFMA‘s forest-wide species viability requirements is relevant to the lawfulness of any individual timber sale. To hold otherwise would permit the Forest Service to don blinders to the overall condition of a national forest each time it approved a sale, quite literally losing sight of the forest for the trees. This would contravene “one of the fundamental purposes of Congress in enacting [NFMA]: that the National Forest System be managed with ‘a systematic interdisciplinary approach,’ by means of ‘one integrated plan for each unit of the National Forest System.‘”
Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir.2002) (quoting
Second, the NFMA requires that when a viability requirement is included in a Forest Plan, the Forest Service must affirmatively demonstrate that any given project satisfies its obligation to ensure species viability. McNair, 537 F.3d at 992-94. Such a demonstration is to be reviewed deferentially, see id. at 992 (“[W]e defer to the Forest Service as to what evidence is, or is not, necessary to support wildlife viability analyses.“), but, at the least, the Forest Service must:
support its conclusions that a project meets the [viability] requirements of the relevant Forest Plan with studies that the [Forest Service], in its expertise, deems reliable. The Forest Service must explain the conclusions it had drawn from its chosen methodology, and the reasons it considers the underlying evidence to be reliable.
Id. at 994. In McNair, for example, the Forest Service supported its conclusion that a project in the Idaho Panhandle National Forest provided for the Flammulated Owl‘s viability by citing to several scientific studies pertaining to the owl‘s habitat preferences and conducting on-the-ground analysis of the owl in an area adjacent to the project area. Id. at 994. That “relatively sparse” showing, we stated, “approaches the limits of our deference.” Id. at 995.
In implementing the Moonlight-Wheeler Project, the Forest Service failed to meet even these minimal obligations. The agency did not reach a conclusion that the Project would ensure species viability, let alone did it support such a conclusion, as the NFMA requires, with studies and methodological explanations sufficient to establish that its actions were not arbitrary or capricious. The agency argues that it satisfied its obligations through analysis that it undertook in fulfillment of the Forest Plan‘s unrelated requirement that it “assess wildlife habitat,” and the majority asserts that it need not demonstrate project-level species viability at all. Where the Forest Service seeks to use habitat as a proxy for species viability it
The Forest Service‘s decision to simply ignore a binding viability requirement in the Plumas National Forest Plan violates the NFMA. See
II.
The majority further errs in its conclusion that the Forest Service was not bound by the RHT Guidelines for identifying and marking hazardous trees. The majority, like the district court, concludes that the RHT Guidelines are not enforceable. It reaches this conclusion based on the presence of certain non-mandatory phrases in the Guidelines, as well as its conclusion that the Guidelines were not promulgated pursuant to a specific congressional grant of authority. However, both of these arguments for the non-enforceability of the Guidelines are erroneous.
First, the fact that the Guidelines use non-mandatory phrases to describe their general objectives, does not, as the majority suggests, render them unenforceable. See Maj. Op. at 473-74. The majority emphasizes two such uses of non-mandatory phrases—one is a reference to “[t]he spirit of these guidelines“; the other states that the “balance [struck by the Guidelines] aims to retain healthy forest cover“—and somehow arrives at the conclusion that the Guidelines were intended only to provide “internal guidance and parameters” for the marking of hazardous trees. Id. In fact, notwithstanding such general statements, the guidelines are predominantly phrased in mandatory language, and impose specific requirements on which trees may be marked for removal. See, e.g., ER II, Tab 16 at 1-2 (“Mark for removal any hazard tree capable of falling on a road or facility that meets the following criteria....“).
Second, the majority‘s conclusion that Earth Island “fails to show that [the Guidelines] were promulgated pursuant to a specific grant of congressional authority” is incorrect. The 2004 amendments to the Plumas National Forest Plan state that the Forest service must “[u]se the best available information for identifying dead and dying trees for salvage purposes as developed by the Pacific Southwest Region Forest Health Protection Staff,” and the Forest Service concedes that “the Plumas Forest Plan, as amended, contemplates that salvage projects will use the RHT Guidelines.” Moreover, a portion of the
Because the RHT Guidelines were incorporated into the Plumas National Forest Plan, the district court erred in concluding that they are unenforceable. This erroneous conclusion kept the district court from deciding whether the factual foundation of Earth Island‘s allegations regarding violations of the Guidelines was sufficiently strong to warrant an injunction under the test set forth in Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). Its denial of a preliminary injunction regarding the tree marking guidelines—and the majority‘s affirmation of that denial—was thus based entirely on the faulty legal conclusion that the RHT Guidelines do not impose any enforceable obligations upon the Forest Service. I would therefore remand this issue to the district court for further proceedings to determine whether, given that the Guidelines create legally binding obligations, Earth Island has alleged facts sufficient to satisfy the Winter test and, accordingly, to warrant the issuance of a preliminary injunction.
III.
The district court failed to address the last three factors of the Winter test—likelihood of irreparable injury, the balance of the harms, and the public interest—as questions distinct from Earth Island‘s likelihood of success on the merits. Rather, it addressed each of the three remaining preliminary injunction factors as if they were settled by its finding that Earth Island was unlikely to succeed on the merits of its claim. 3 Had the district court analyzed these three factors without reference to its erroneous conclusions regarding Earth Island‘s likelihood of success, it may well have been compelled to conclude that a preliminary injunction was appropriate.
Regarding whether the harm suffered by Earth Island is irreparable, the Supreme Court has stated that because “[e]nvironmental injury, by its very nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration [it is] irreparable.” Amoco Production Co. v. Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). We have thus repeatedly recognized that the irreversible environmen-
The district court likewise committed serious errors in its analysis of the public interest and the balancing of the equities. First, as in its analysis of irreparable harm, the district court‘s treatment of these factors rested largely on its erroneous conclusion that Earth Island was unlikely to prevail on the merits. It stated, “While the court must seriously consider the potential harm to the environment caused by the Project, where plaintiff has not made the requisite showing on the merits which, in turn, undermines the likelihood of irreparable injury, the balance of equities cannot be found in plaintiff‘s favor.” (Emphasis added).
Second, the district court conducted its analysis as though Earth Island had sought an injunction broader than the one it expressly requested. On the same day it filed its motion for a preliminary injunction, Earth Island filed a proposed preliminary injunction order. The proposed order explicitly states that the Forest Service “may fell and leave trees or remove naturally fallen trees to the side of the roadway under emergency circumstances pursuant to
In the reply brief it filed with the district court in support of its request for a preliminary injunction, Earth Island emphasized the safety exception contained in its proposed order, and added that “[i]f this Court is convinced that the allowances made by Plaintiff in [its] Proposed Order are not sufficient to safeguard the public from harm, ... the Court could merely identify some segment of the trees marked for cut as hazards to be logged, while enjoining the rest of the project.” Yet the
The district court‘s denial of an injunction was thus flawed in a number of respects, as is the majority‘s affirmation of that denial. It failed to recognize Earth Island‘s strong likelihood of success on the merits as well as the irreparable harm that would befall Earth Island absent an injunction. Likewise, its treatment of the public interest and the balance of the equities rested largely on the court‘s flawed analysis of the merits of the case, and failed to account for the narrow scope of the injunction Earth Island requested. I therefore must disagree strongly with the majority. I believe that Earth Island is entitled to an injunction pending appeal, as well as a limited remand to allow the district court to consider whether, in light of its likelihood of success on the merits, the irreparable nature of its foreseeable harm, and the narrow scope of the injunction it requested, it is entitled to a preliminary injunction.
CHRISTIAN LEGAL SOCIETY CHAPTER OF UNIVERSITY OF CALIFORNIA, Hastings College of the Law, aka Hastings Christian Fellowship, Plaintiff-Appellant, v. Frank H. WU, in his official capacity as Chancellor and Dean of University of California, Hastings College of the Law; et al., Defendants-Appellees, Hastings Outlaw, Defendant-intervenor-Appellee. No. 06-15956. United States Court of Appeals, Ninth Circuit. Nov. 17, 2010.Notes
The document then proceeds to discuss the amendments’ compliance with the 1982 Rule. Thus, the only question is whether either the 2004 or 2007 amendments eliminated the Forest Service‘s preexisting obligation to ensure species viability consistent with the 1982 Rule.My decision conforms with the 1982 planning regulations (36 CFR 218) that implement the National Forest Management Act. These regulations were recently changed.... Transition language within the new rule permits plan revisions and amendments, such as the amendments that are part of my decision, to be completed under the 1982 procedures.