Wildwest Institute v. Bull
| Decision Date | 29 November 2006 |
| Docket Number | No. 06-35662.,06-35662. |
| Citation | 472 F.3d 587 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | WILDWEST INSTITUTE; Friends of the Bitterroot, Inc., Plaintiffs-Appellants, v. Dave BULL; Abigail Kimbell; United States Forest Service, Defendants-Appellees, Bitter Root Resource Conservation and Development Area, Inc.; Ravalli County; Sula Volunteer Fire Department; Robert Wetztseon; Becki Linderman; Rocky Mountain Log Homes, Defendants-Intervenors-Appellees. |
Thomas J. Woodbury, Missoula, MT, argued the cause for the plaintiff-appellants and filed a brief.
Lori L. Caramanian, U.S. Department of Justice, Environmental & Natural Resources Division, Denver, CO, argued the cause for the defendant-appellees. Sue Ellen Wooldridge, Assistant Attorney General, Lisa Jones, Christine Everett and Alan Campbell were on the brief.
Julie A. Weis, Haglund Kelley Horngren Jones & Wilder, Portland, Oregon, argued the cause for the defendant-intervenor-appellees. Scott W. Horngren and George H. Corn, Ravalli County Attorney, were on the brief.
Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-06-00066-DWM.
Before: GOODWIN, O'SCANNLAIN, and FISHER, Circuit Judges.
In this interlocutory appeal, we must decide whether the district court abused its discretion in denying a preliminary injunction against the United States Forest Service's implementation of the Middle East Fork Hazardous Fuel Reduction Project in the Bitterroot National Forest in Montana.
The Middle East Fork Hazardous Fuel Reduction Project ("MEF Project") was developed under the authority of the Healthy Forests Restoration Act ("HFRA"), 16 U.S.C. § 6501 et seq., which directs the Forest Service ("Service") to implement fuel reduction projects "as soon as practicable" on federal land at risk from an insect epidemic. After a long process, the Service adopted "Alternative-2 Modified," which calls for the treatment of 4938 acres of land in the Bitterroot National Forest, as the plan for the MEF Project. The stated purposes for the action are (1) to reduce wildland fire threats to the Middle East Fork community, (2) to restore fire-adapted ecosystems in the Middle East Fork landscape, and (3) to restore stands affected by the Douglas-fir bark beetle epidemic by treating infested areas and lands at risk.
A coalition of interested groups comprised of WildWest Institute and the Friends of the Bitterroot (collectively "WildWest") filed a complaint for declaratory and injunctive relief against implementation of the MEF Project in the district court for the District of Montana on April 26, 2006. A hearing on a motion for a preliminary injunction was held on June 30, 2006, before Chief Judge Molloy who promptly issued an Order which considered the probability of success on the merits of each of plaintiffs' claims, as well as the possibility of irreparable injury. Although the court stated that some valid concerns about the MEF Project were raised, especially regarding the opinions of the soil scientist Ken McBride, it concluded that the likelihood of success on the merits of the claims before it was low. It also found that as to irreparable injury, the "[p]laintiffs' arguments are asserted with little citation to either scientific evidence or case law." In contrast, the court considered the risk of a severe wildfire in the next 10-15 years and its effect on the Middle East Fork community as a measurable injury. The district court therefore denied WildWest's motion for a preliminary injunction.
Because a full trial on WildWest's claims is to resume on December 8, 2006, we have expedited consideration of this timely appeal.
Our review of the denial of a preliminary injunction "is limited and deferential." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003). We ask only whether the district court has abused its discretion. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir.1999); see also Purcell v Gonzalez, ___ U.S. ___, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). As we have explained,
We typically will not reach the merits of a case when reviewing a preliminary injunction. . . . By this we mean we will not second guess whether the court correctly applied the law to the facts of the case, which may be largely undeveloped at the early stages of litigation. As long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.
Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir.2003) (internal citations omitted).
WildWest first argues that the court abused its discretion in failing to give more weight to the probability of success on its claim that the Service irreversibly and irretrievably committed resources in advance of a final decision by pre-marking trees for harvesting, in violation of the National Environmental Policy Act ("NEPA"). The applicable regulations provide that the Service shall not take preliminary action which would (1) have an adverse environmental impact, or (2) limit the choice of reasonable alternatives. 40 C.F.R. § 1506.1. In other words, agencies "shall not commit resources prejudicing selection of alternatives before making a final decision." 40 C.F.R. § 1502.2(f).
The record here shows that while the Service did indeed spend $208,000 before the issuance of the Record of Decision ("ROD"), such expenditure did not necessarily prejudice the final outcome. At least 410 acres of timber that were pre-marked for cutting were dropped from the final modified plan. In addition, Project Director Dave Bull explained to interested members of the public, Thus, although we make no determination as to WildWest's ultimate success on the merits of this claim, the record indicates that there was nothing irreversible about the Service's preparatory actions in this case. See Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1063 (9th Cir.1998) (). We are satisfied that there was no abuse of discretion in the district court's treatment of this claim.
WildWest next argues that the Service engaged in a "pattern and practice of selective inclusion and exclusion" of public collaboration in choosing the plan for the MEF Project. The district court pointed out that at least two noticed meetings were held to discuss "recommendations concerning fuel reduction, thinning, bark beetles, [and] timber harvest." In addition, the court considered the fact that there were many informal gatherings and meetings in which the public, and specifically WildWest and Friends of the Bitterroot, were involved. Finally, the court noted that although there was an incident when Jim Miller, President of Friends of the Bitterroot, was excluded from a press conference, his exclusion did not violate any statutory right of attendance, even if it was a mistake from a public relations perspective.
Once again, we cannot say that the district court abused its discretion. The court made no legal errors, and its decision is adequately supported by the record.
WildWest next claims that the Service suppressed the concerns of its lead soil scientist, Ken McBride. The district court considered the comments of McBride to be of "significant concern." Nonetheless, the court acknowledged that many of McBride's recommendations were incorporated into the Final Environmental Impact Statement ("EIS") and therefore thought the probability of success on this claim was low.
The record establishes that there was controversy over whether McBride's soil sampling technique adequately measured detrimental soil disturbance.1 However, the district court was correct in noting that the Service ultimately adopted McBride's recommendations in the Final EIS. As a result of the adoption of McBride's scientific assessments, "Alternative-2 Modified will not treat any units with 15% or greater soil disturbance or units or portions of units projected to possibly have 15% or greater detrimental disturbance after proposed treatments." Thus, on this record, we are unable to say that the district court abused its discretion in determining that the probability of success on this claim was low.
Finally, WildWest argues that the Service did not adequately verify concerns about the soil disturbance in certain units included within the MEF Project. Although like the district court we consider this to be a close question, we are unable to say that the lower court abused its discretion. WildWest's main argument is that the Service's failure to verify soil conditions in roughly 700...
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