In a decision with separate opinions written by all three members of an appellate panel, the Ninth U.S. Circuit Court of Appeals has issued a preliminary injunction to block logging on burnt national forest land.

The panel ruled 2-1 that opponents of the logging had crossed the threshold necessary to win a preliminary injunction while the litigation proceeds. Environmentalists contended that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it approved the timber sale.

"A preliminary injunction only requires plaintiffs to show probable success on the merits and the possibility of irreparable harm," Judge Sidney Thomas wrote for the court. The greater the probability of success, the lower the possibility of irreparable harm that is needed to sustain a preliminary injunction, and vice versa, the court ruled.

The lawsuit is fallout from a summer 2001 wildfire that burned for weeks in the Sierra Nevada Mountains west of Lake Tahoe. In March 2002, the Forest Service released a draft environmental impact statement for the proposed logging of 1,714 acres in Eldorado National Forest. In August 2002, Forest Supervisor John Berry adopted a final EIS and a modified project alternative that prohibited logging of trees with green canopy in partially burned stands within two 300-acre "Protected Activity Centers" around spotted owl nesting sites. Environmentalists administratively appealed Berry’s decision, but the Forest Service upheld his action and awarded logging contracts to Sierra Pacific Industries. Earth Island Institute and the Center for Biological Diversity then filed a lawsuit alleging the NEPA and NFMA breaches.

The environmental groups sought a preliminary injunction to prohibit logging, but District Court Judge Morris England denied the request. Shortly thereafter, the Ninth Circuit issued an emergency stay while the groups appealed England’s ruling on the preliminary injunction. In a decision issued at the end of 2003, the Ninth Circuit ruled that England had applied the wrong legal standard. The Ninth Circuit determined that the preliminary injunction was warranted and sent the case back to England for further proceedings.

Specifically, the Ninth Circuit ruled that England’s assessment of the "possibility of irreparable injury" if logging were to occur during the litigation was wrong. England ruled that the environmental groups had "failed to show that measures already in place … will not afford sufficient protection" and that the groups had "failed to identify any concrete probability of irreparable harm." This was the wrong legal standard for weighing a preliminary injunction, according to the Ninth Circuit.

"The irreparable injury question in this case … turns on the likelihood of that injury occurring," Judge Thomas wrote. England focused on the Protected Activity Centers (PACs) but failed to consider the possibility of irreparable harm to important habitat areas outside the PACs, according to the Ninth Circuit.

The appellate panel further ruled that the environmental groups showed an adequate possibility that they would win the case on its merits. In fact, the court found that the Forest Service’s decision to de-list one PAC and allow logging there despite the existence of two spotted owls was likely a violation of the NFMA. The Forest Service also did not adequately address cumulative impacts on owls, as required by NEPA, the court held.

In a concurring opinion, Judge John Noonan said that the Forest Service should be disqualified from approving the logging because of a financial conflict of interest. Some of the profits of timber sales help fund local Forest Service offices, he noted. "A bureaucracy protecting its turf and cherishing the number of its employees and the extent of its empire can have as lively a bias toward its budget as any old-fashion venal politician might have in his pocketbook," Noonan wrote.

In a dissent, Judge Richard Clifton said he would uphold the district court decision.

"The reality is that a fire devastated Eldorado National Forest, leaving the Forest Service to decide how to make the best of a bad situation," Clifton wrote. "There really is not inherently a public interest value in ‘preservation,’ when what is to be preserved is that bad situation. Reasonable people can disagree on what approach would be best for the forest, the owls, the environment, and the public interest generally. But the responsibility for making the decision has been assigned to the Forest Service, and it does not appear that the Forest Service — or the district court — disregarded the public interest or acted arbitrarily and capriciously in making the judgment that it did."

The Case:
Earth Island Institute v. U.S. Forest Service, No. 02-16999, 03 C.D.O.S. 10658, 2003 DJDAR 13497. Filed December 11, 2003.

The Lawyers:
For Earth Island Institute: Rachel Fazio, (530) 273-9290.
For USFS: Edmund Brennan, Department of Justice, (916) 554-2700.
For Sierra Pacific Industries: David Martinek, Dun & Martinek, (707) 442-3791.