Friday, August 14, 2009

Sierra Forest Legacy v. Rey

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. This complicated appeal and decision 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. The Appeals Court said, "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), 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, the Ninth Circuit 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) [
See WIMS 5/14/09]. 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.

Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "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., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], 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 jurisdiction 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. . ."

Access the complete opinion (
click here).

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