Home » Case Summaries » 2003 » Earth Island Institute v. United States Forest Service

 
 

Earth Island Institute v. United States Forest Service

 

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Earth Island Institute (EII), an environmental group, appealed the denial of a preliminary injunction to forestall implementation of a post-fire restoration project by the United States Forest Service (USFS) on the grounds that the timber sales involved in the project violated the National Environmental Policy Act (NEPA)[1] and the National Forest Management Act (NFMA).[2] On appeal, the Ninth Circuit held that the district court had imposed an erroneously high burden of proof on EII, and that under the proper legal standard EII had shown a reasonable probability of success on the merits of some of its claims. Although the Ninth Circuit normally would not have reached the merits of the case in its review of a preliminary injunction, the court reviewed the merits de novo because the premise on which the district court relied was at issue. Thus, the Ninth Circuit reversed and remanded the case to the district court, noting that the district court should consider the public interest involved in forest preservation.

All national forests in the Sierra Nevada range, including the Eldorado National Forest, are subject to the Sierra Nevada Framework (the Framework), which requires USFS to establish 300-acre Protected Activity Centers (PACs) where logging is limited.[3] These PACs are required around all sites where the California spotted owl (Strix occidentalis occidentalis) is known or suspected to nest.[4] In the Eldorado National Forest, USFS is also required by the Framework to establish 1000-acre Home Range Core Areas (HRCAs) surrounding each PAC, in which logging is restricted to trees under twelve inches in diameter.[5] Even if there are no spotted owls actually occupying the PAC, USFS must maintain the PAC unless the habitat is destroyed and protocol-compliant surveys confirm that spotted owls no longer live in the PAC. If a PAC is destroyed by fire, USFS must try to create a replacement PAC elsewhere within the relevant HRCA.

In 2001, the “Star Fire” burned thousands of acres in the Eldorado and Tahoe National Forests. The Star Fire was a stand replacing fire–a fire that occurs in a relatively uniform area of forest and can be prevented by clearing out fuel in the form of woody debris and dead trees. In the year following the Star Fire, USFS made and carried out plans for management of the burned areas to prevent more fires. One such plan was the Star Fire Restoration Project (the Project), which affected land within the Eldorado National Forest. As part of the Project, USFS issued a draft environmental impact statement (EIS) proposing logging in the Eldorado National Forest. After public comment, USFS released a final EIS (FEIS) recommending logging to prevent another fire like the Star Fire. The FEIS prohibited logging of any trees with green canopy that lay within the two affected PACs: PAC055 and PAC075. USFS concluded that, due to destruction of most of the two HRCAs in which PAC055 and PAC075 were located, neither PAC could be reestablished within its HRCA, and therefore the FEIS also recommended deleting both PACs from the forest plan. USFS subsequently sold the project areas to Sierra Pacific Industries in two timber salvage sales. EII challenged the FEIS and the resultant timber sale under NEPA on three bases: 1) USFS used improper data in creating the FEIS, 2) USFS should have done a combined EIS for the Eldorado and Tahoe National Forests, and 3) USFS should have considered cumulative impacts on the California spotted owl from actions that would take place in the Tahoe National Forest.

Generally the Ninth Circuit conducts its review of preliminary injunctions without considering the merits of the case or whether the district court correctly applied the law. However, “[w]hen the district court is alleged to have relied on an erroneous legal premise, [the Ninth Circuit will] review the underlying issues of law de novo.”[6] The Ninth Circuit found that the district court relied on an erroneous legal premise when it required EII to 1) establish that the project would lead to actual harm, 2) show that current measures would not protect the California spotted owl, and 3) identify a real probability of irreparable harm. The Ninth Circuit noted these premises were improper because, for a court to issue a preliminary injunction, it need only find that plaintiffs will probably succeed on the merits and that some possibility of irreparable harm exists if the action is allowed to go forward.

EII first argued that USFS used improper scientific data regarding levels of fuel loads and tree mortality, as well as factually incorrect data in its FEIS. The court found that USFS properly addressed the existing science and challenges regarding its assessment of the level of fuel loads and tree mortality. The Ninth Circuit also noted that if EII could convince the district court that USFS used factually incorrect data then it could win the case on the merits, and so the district court should consider evidence of invalid data on remand.

EII also argued that USFS was required by NEPA to prepare a single EIS for the Star Fire-related projects in the Eldorado and Tahoe National Forests. Applying the independent utility test, the Ninth Circuit found that the actions in Eldorado and Tahoe national forest were not sufficiently connected as to require a single EIS.[7] The Ninth Circuit also found that the actions were not sufficiently cumulative or similar to require preparation of a single EIS. EII also alleged that the Eldorado study should have considered cumulative impacts on Eldorado spotted owls that would result from actions in the Tahoe National Forest. The Ninth Circuit found that “[t]he Eldorado FEIS never assessed the potential role of the remaining suitable habitat within the former HRCA for a maintained Tahoe PAC075 despite the acknowledged presence of owls in the area,” an omission amounting to “an insufficient consideration of cumulative impact under NEPA.”[8] The Ninth Circuit concluded that EII would probably succeed on the merits of its claim that USFS violated the forest plan by failing to actually survey the PACs. Furthermore, the court noted that it had held in past cases that logging plans may constitute irreparable injury because they can have far-reaching environmental consequences.[9] The Ninth Circuit stated that EII would probably not succeed on the merits of its claims regarding USFS’s conclusions on potential fuel loads and tree mortality because the FEIS expressly discussed existing information and the reason to accept or not incorporate that information.

EII also challenged three USFS actions as violating the Framework and therefore violating NFMA. The challenged actions included 1) allowing logging of trees over twenty inches in diameter, 2) delisting the PACs, and 3) failing to readjust the boundaries of PAC055 and PAC075. The Ninth Circuit found USFS reasonable in allowing logging of trees over twenty inches in diameter because USFS had rationally distinguished that guideline as pertaining to undergrowth thinning rather than salvage after a fire. However, the Ninth Circuit found that EII had established a probability of success on the PAC claims by showing that USFS did not conduct the surveys that would allow it to stop maintaining the PACs by showing that the PACs were no longer occupied by California spotted owls. EII presented an owl expert’s testimony concerning owl occupancy, and showed USFS surveys had in fact found a spotted owl pair in PAC075. USFS indicated it had found the habitat unsuitable for spotted owls, but the Ninth Circuit reviewed the Framework and found that this did not constitute compliance with the forest plan because the forest plan required USFS to do actual surveys to ascertain the absence of spotted owls before deciding to cease maintenance of the PACs.

Judge Noonan concurred and wrote separately to argue that because USFS had a financial interest in the timber sale, the agency was inherently biased and potentially disqualified from approving such a sale. Judge Noonan suggested that USFS should not have been allowed to approve the timber sale unless the potential for bias, evaluated based on the percentage of yearly USFS budget derived from timber sales, was low.

Judge Clifton dissented on the basis that the district court used the proper standard for denial of a preliminary injunction and assigned the proper burden of proof to EII. Judge Clifton found that the district court properly denied the preliminary injunction because no actual or irreparable injury would result from its denial. Judge Clifton stated that, contrary to the findings of the majority, the district court considered the public interests in the timber sale decisions. Furthermore, Judge Clifton found that EII and the majority overemphasized USFS’s ability to predict what would happen in other parts of the forest.


[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[2] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[3] Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1296 (9th Cir. 2003) (summarizing the Sierra Nevada Framework provisions protecting the spotted owl).

[4] Id.

[5] Id.

[6] Earth Island Inst., 351 F.3d at 1298 (citing Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 2002)).

[7] Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002) (determining that when two projects would take place independent of each other, they are not so related as to be considered connected for NEPA assessment).

[8] Earth Island Inst., 351 F.3d at 1307.

[9] Id. at 1299.

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