Thursday, July 29, 2010

Alliance For The Wild Rockies v. Cottrell (USDA)

Jul 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35756. The Alliance for the Wild Rockies (AWR) appealed the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral arguments, the Appeals Court issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). The Appeals Court says that In its current opinion, it is setting forth its reasons for the reversal, and taking the opportunity to clarify an aspect of the "post-Winter standard for a preliminary injunction."
    In its conclusion the Appeals Court said, "We conclude that the district court erred in denying AWR's request for a preliminary injunction. AWR has established a likelihood of irreparable injury if the Project continues. AWR has also established serious questions, at the very least, on the merits of its claim under the ARA
[Appeals Reform Act]. Because AWR has done so with respect to its claim under the ARA, we do not reach its claims under NFMA and NEPA. The balance of hardships between the parties tips sharply in favor of AWR. Finally, the public interest favors a preliminary injunction."
    The Appeals Court also discusses the post-Winter issues (i.e. the Supreme Court's recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08] and notes that, "Three other circuits have directly confronted the question whether some version of a sliding scale test has survived Winter. They have split. The Fourth Circuit has held that the sliding scale approach is now invalid. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir.
2009) . . . The Seventh and Second Circuits have held to the contrary [i.e. Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) &  Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)]. The Ninth Circuit also notes that, The Second Circuit decision came down after the Supreme Court had decided two post-Winter cases, Munaf v. Geren, 553 U.S. 674 (2008), and Nken v. Holder, 129 S. Ct. 1749
    The Ninth Circuit says, "For the reasons identified by our sister circuits and our district courts, we join the Seventh and the Second Circuits in concluding that the 'serious questions' version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter."
    Access the complete opinion (click here).

No comments: