Nevada Snowmobile Association; American Forest & Paper Association; American Forest Resource Council; Blueribbon Coalition; California Ski Industry Association; California Cattlemen's Association; Quincy Library Group; Plumas County, Defendant-intervenors-Appellees, 577 F.3d 1015

Source: United States Court of Appeals for the Ninth Circuit

Date: 2009-08-13

Jurisdiction: United States

Docket: No. 07-16892

Citation: 577 F.3d 1015

Opinion

OPINION FISHER, Circuit Judge: This interlocutory appeal concerns three United States Forest Service (“USFS”) projects — Empire, Slapjack and Basin— that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. We must decide whether the district court abused its discretion by denying plaintiffs’ request to preliminarily enjoin the three projects. USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas.

Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, by failing to consider a reasonable range of alternatives before adopting the 2004 Framework. The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter.

The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework. In a previously filed opinion in this case, we held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir.2008). Plaintiffs were therefore likely to succeed on the merits.

Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction. See id. at 1234. Defendants filed a petition for rehearing and petitions for rehearing en banc. With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc. We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim.

However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., - U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008), requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits — irreparable harm, balancing of equities and the public interest.

In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested-to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jui'isdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. We also note the unusual procedural posture of this case, which bears some explanation at the outset.

Even before Legacy sought a preliminary injunction in the district court, the parties had cross-moved for

summary judgment on Legacy’s NFMA and NEPA claims. Before the district court ruled on the cross-motions, USFS warned it would advertise and award logging contracts for the Empire, Slapjack and Basin projects under the 2004 Framework. In response, Legacy sought the 11036 preliminary injunction at issue here. When the district court denied the injunction, Legacy brought its initial appeal to us, but the underlying

summary judgment motions remained before the district court. See 28 U.S.C. § 1292(a)(1) (courts of appeal have jurisdiction over interlocutory appeals of denied preliminary injunction motions). As noted above, we reversed and defendants filed petitions for rehearing and rehearing en banc. See Sierra Forest Legacy, 526 F.3d at 1231-32. After we published our opinion and while defendants’ petitions for rehearing were pending, the district court ruled on the parties’ cross-motions for

summary judgment. See Sierra Nev. Forest Prot. Campaign v. Rey, 573 F.Supp.2d 1316 (E.D.Cal.2008). The district court granted plaintiffs

summary judgment on the one NEPA claim that our first opinion had identified as likely to succeed on the merits. See id. at 1348. On Legacy’s other seven claims, the district court found for defendants. See id. at 1353 & n. 27. The district court has not yet decided, however, whether to enter a permanent injunction on plaintiffs’ successful NEPA claim. See id. at 1353. The district court’s

summary judgment order is not before us, and we address here only the previously denied preliminary injunction. I. Background Plaintiffs are Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively “Legacy”). Defendants are Under Secretary for Natural Resources and Environment, Mark Rey and other federal officials, sued in their official capacities (collectively “federal defendants”). Several parties intervened as defendants, as denoted in the caption and in the footnote (collectively “intervening defendants”).

On appeal, we also authorized the filing of an amicus brief from the Attorney General of California, Edmund G. Brown, Jr., supporting Legacy’s position. Legacy generally challenges the 2004 Framework’s approach to “fuels treatments,” the process of preventing wildfires by thinning forests. Because the 2004 Framework allows the removal of trees up to 30 inches in diameter, as compared to 12-20 inches under the 2001 Framework, USFS estimates that the 2004 Framework will result in a six-fold increase in the Plumas National Forest’s annual green timber harvest.

Legacy argues that this increased logging as implemented in Empire, Slapjack and Basin will cause irreparable harm to the habitat of three species: the California spotted owl, the American marten and the Pacific fisher.

According to the 2004 Framework’s Supplemental Environmental Impact Statement (“SEIS”), USFS “accepts the risks of temporarily changing some habitat for California spotted owls and other species,” because it finds that risk justified in order “to reduce future risk of wildfire to habitat and human communities.” Indeed, a key purpose of the 2004 Framework was to prevent catastrophic wildfires by making the removal of fire fuels more cost-effective. USFS forthrightly concedes that logging larger trees does nothing in itself to prevent forest fires because larger trees make poor fuel.

Rather, the relaxed logging restrictions in the 2004 Framework serve to “increase ... available funds from logging that can be used to increase fuels reduction work. But the work would be done on other lands.” 2004 SEIS at 3652. In other words, logging contracts that give permission to cut larger trees provide revenue that can be spent on fuels treatments elsewhere. In contrast, USFS found the 2001 Framework’s approach to fuels treatments cost-prohibitive because it “effectively preclude[d] most commercial options for removing fuels.” 2004 SEIS at 2999.

Notably, USFS treated the 2004 Framework as a supplement to the 2001 Framework. Thus, in attempting to satisfy its responsibility under NEPA to “[rjigorously explore and objectively evaluate all reasonable alternatives,” USFS did not consider a new range of alternatives to the 2004 Framework. 40 C.F.R. § 1502.14(a). Instead, USFS chose to compare the 2004 Framework to the 2001 Framework and seven action alternatives USFS had already rejected when it adopted the 2001 Framework years earlier.

That procedural choice is important to our analysis of whether USFS complied with NEPA’s reasonable alternatives requirement. II. Analysis “We review the grant or denial of a preliminary injunction for abuse of discretion.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009). Although our review is deferential, “a district court necessarily abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Id. (internal quotation marks omitted).

In deciding whether the district court abused its discretion, “we must follow the Supreme Court’s recent expatiation on the proper standard for granting or denying [preliminary injunctions].” Id. (citing Winter, 129 S.Ct. 365). Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest. See Winter, 129 S.Ct. at 374.

Legacy argues that the district court abused its discretion with respect to all four of these factors. A. Likelihood of Success on the Merits Legacy argues that it is likely to succeed on the merits of all its NFMA and NEPA challenges. One of Legacy’s NEPA claims alleges that USFS failed to “[rjigorously explore and objectively evaluate all reasonable alternatives” to the 2004 Framework, as required by NEPA. 40 C.F.R. § 1502.14(a).

It is undisputed that USFS relied on its discussion of alternatives in the 2001 Framework’s Final Environmental Impact Statement (“FEIS”) to satisfy this requirement for the 2004 Framework’s SEIS. The district court determined that USFS’s reliance on the 2001 FEIS likely complied with NEPA because the 2004 Framework was merely a supplement to the 2001 Framework. This finding was based on an erroneous legal standard because, “where changed circumstances affect the factors relevant to the development and evaluation of alternatives,” USFS “must account for such change in the alternatives it considers.” Natural Res.

Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir.2005) (citation omitted). The district court was required to hold USFS to this legal standard because such changed circumstances plainly exist here. First, USFS altered its modeling techniques between the issuance of the 2001 FEIS and the 2004 SEIS.

Unfortunately, the 2004 SEIS largely relied on fire risk and timber output figures in the 2001 FEIS, a mistake that was compounded because one of the alternatives that was considered in 2004 was recalculated under the new techniques, whereas the rest of the alternatives to which it was compared were not recalculated. Because USFS failed to account for its changed modeling techniques in the alternatives it considered, Legacy has a strong probability of success on the merits under NEPA. Second, the 2004 SEIS introduced substantively new objectives from those contained within the 2001 FEIS.

The 2004 SEIS repeatedly stated that its purpose was to “adjust existing management direction,” 2004 SEIS at 3098 (emphasis added), and to broaden the basic strategy “to include other management objectives such as reducing stand density for forest health, restoring and maintaining ecosystem structure and composition, and restoring ecosystems after severe wildfires and other large catastrophic disturbance events,” 2004 SEIS at 2994 (emphasis added).

The introduction of these new objectives plainly constituted a change in circumstance that is “relevant to the development and evaluation of alternatives” that USFS “must account for ... in the alternatives it considers.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d at 813.

Because the 2004 SEIS relied on inaccurate data from the 2001 FEIS, and introduced new objectives without accounting for those new objectives in the considered alternatives, the district court abused its discretion in finding that Legacy was unlikely to succeed on the merits of its claim that 11041 USFS failed to “[rjigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). B.

Irreparable Harm, Balancing the Equities and Public Interest Legacy argues that the district court’s assessment of the non-merits factors — irreparable harm, balancing the equities and the public interest — relied on errors of law, including a mistaken assumption that the court lacked the authority to narrowly enjoin the challenged projects to the extent they are inconsistent with the 2001 Framework. After Winter, we agree with Legacy. The district court appears not to have recognized its power to issue the narrow injunction Legacy requested. See High Sierra Hikers Ass’n v.

Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (recognizing the district court’s broad latitude in crafting equitable relief); United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir.1987) (“The essence of equity jurisdiction is the power of the court to fashion a remedy depending upon the necessities of the particular case.”). Its consideration of the non-merits factors therefore lacks a comparison of the 2001 and 2004 Frameworks with respect to the harms, equities and public’s interest associated with each.

When deciding whether to issue a narrowly tailored injunction, district courts must assess the harms pertaining to injunctive relief in the context of that narrow injunction. See Winter, 129 S.Ct. at 376. In Winter, the district court’s original preliminary injunction imposed six restrictions on Navy sonar training exercises off the coast of Southern California to prevent harm to marine life nearby. After obtaining an exemption from the executive branch, the Navy filed a motion to vacate the injunction, but challenged only two of the six restrictions. See Winter, 129 S.Ct. at 376.

The Supreme Court explained that “[t]he District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court’s own statement that ... one of the unchallenged mitigation restrictions ... would bar use of MFA sonar in a significant portion of important marine mammal habitat.” Id. (internal quotation marks omitted).

Put more simply, the district court in Winter took an all-or-nothing approach to assessing the harms instead of addressing the options actually on the table — four restrictions versus six restrictions. The record reveals a similar error here, touching on each of the non-merits factors. The district court’s application of these factors boiled down to a choice between allowing USFS to move ahead with the 2004 Framework or requiring USFS to take no action at all with respect to fire prevention.

For example, in balancing the equities, the district court compared the harm from the 2004 Framework to “the irreparable harm associated with taking no action.” (Emphasis added.) This approach left unexamined the relative harm from allowing USFS to proceed consistent with the 2001 Framework. The federal and intervening defendants urge us to affirm the district court’s discretionary determination that Legacy failed to show irreparable harm, a balance of equities in its favor or that the public interest favors an injunction.

See Winter, 129 S.Ct. at 376 (refusing to reach the merits because plaintiffs’ failure to meet equitable factors was dispositive). They reason that, because Winter heightened the necessary harm showing, if the district court did not abuse its discretion in finding no possibility of irreparable harm, then Legacy’s injunction necessarily fails under Winter.

We cannot properly review the district court’s discretionary assessment of the non-merits factors, however, because the court compared the 2004 Framework only to “taking no action.” We would have to conduct our own assessment of the non-merits factors associated with Legacy’s injunction request, which would overstep the bounds of abuse of discretion review. See Odessa Union, 833 F.2d at 173 (remanding a preliminary injunction appeal so district court could exercise its discretion under the correct legal standard); Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 939 (9th Cir.1987) (same); cf.

Apache Survival Coalition v. United States, 21 F.3d 895, 906-07 (9th Cir.1994) (noting that when the district court assesses an environmental case under a misapprehension of the law, we often remand unless the record is already sufficient to decide the issue on appeal). We therefore “reverse the decision and remand the case to the district court to exercise its discretion in light of the correct standard.” Odessa Union, 833 F.2d at 173. III. Remand A remand is especially appropriate in this case because of its current procedural posture.

The sole purpose of a preliminary injunction is to “preserve the status quo ante litem pending a determination of the action on the merits.” L.A. Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197, 1200 (9th Cir.1980). Here, however, the district court has already decided the merits. In light of that posture, the district court may decide to forgo further preliminary proceedings and move forward with permanent relief, if any, thereby mooting the pending preliminary injunction motion. See Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999).

Accordingly, it would be inappropriate to pre-judge the district court’s permanent injunction decision by our attempting to weigh the non-merits factors here. See Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d at 817 n. 29 (“The appropriateness and scope of an injunction’ raise intensely factual issues, and for that reason should be decided in the first instance by the district court.’ ” (quoting Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 732 (9th Cir.1995))).

In sum, we hold that Legacy has shown a likelihood of success on the merits of its claim that USFS failed to consider a range of reasonable alternatives under NEPA. We remand so the district court can apply the correct legal standard to its assessment of the other injunction factors, but in so doing, “[w]e express no opinion as to whether an injunction should issue in this action.” Arcamuzi 819 F.2d at 939. REVERSED AND REMANDED. .

The parties use "Framework” to refer to USFS's chosen forest management directives that cover, among other forestry issues, the fire and fuels management directions for the Sierra Nevada Region at issue here. . Plaintiffs' complaint also alleges that the 2004 Framework violates NEPA in other ways, that the 2004 Framework violates the National Forest Management Act ("NFMA”), 16 U.S.C. §§ 1600-1614; and that the Basin project independently violates NFMA and NEPA. . In an order dated December 19, 2008, the district court stated that it would not adjudicate final relief until this interlocutory appeal concludes.

See Sierra Nev. Forest Prot. Campaign v. Rey, No. 05-cv-00205, 2008 WL 5329977 (E.D.Cal. Dec. 19, 2008) (order directing plaintiffs to "notify the Court once a decision on the rehearing in Rey has been made"). .

Intervening defendants are Toulumne County Alliance for Resources and Environment, California Forest Counties Schools Coalition, Regional Council of Rural Counties, Western Council of Industrial Workers, Klamath Aliianee for Resources and Environment, Coarse-gold Resource Conservation District, Eastern Madera County Fire Safe Council, Tulare County Resource Conservation District, Sierra Resource Conservation District, Strawberry Property Owners' Association, Huntington Lake Association, Huntington Lake Big Creek Historical Conservancy, California Equestrian Trials and Lands Coalition, California Forestry Association, California Licensed Foresters Association, California/Nevada Snowmobile Association, American Forest and Paper Association, American Forest Resource Council, Blueribbon Coalition, California Ski Industry Association, California Cattlemen’s Association, Quincy Library Group and Plumas County. .

Beyond the 2004 Framework’s economic goals, USFS maintains that the revised forest plans also implement the "resource management activities” required by the Herger-Feinstein Quincy Library Group Forest Recovery Act ("HFQLG Act”). See Pub.L. No. 105-277, 112 Stat. 2681-305 (Oct. 21, 1998) (codified as 16 U.S.C. § 2104 note). USFS's invocation of the HFQLG Act does not, however, affect our assessment of Legacy’s NEPA claim, because "[a]ll resource management activities required by [the Act] shall be implemented to the extent consistent with applicable Federal law....” HFQLG Act § 401(c)(3).

Thus, if Legacy is correct that the 2004 Framework violated NEPA, it violated the HFQLG Act as well. . At this preliminary juncture, we avoid reaching any merits unnecessary to our decision and therefore do not address Legacy's alternative NEPA and NFMA arguments. See Rucker v. Davis, 237 F.3d 1113, 1118 (9th Cir.2001), rev'd on other grounds, Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (noting that appellate courts typically do not reach the merits of an underlying case on a preliminary injunction appeal). .

Nevertheless, the above analysis is not irrelevant to the district court’s discretionary decision whether Legacy is entitled to permanent relief. See Winter, 129 S.Ct. at 381 (explaining that the standards governing preliminary injunctions are no less applicable to permanent injunctions).

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