Friends of the Earth v. U.S. Forest Service, CIV.2:98-CV-410.

Citation95 F.Supp.2d 206
Decision Date11 May 2000
Docket NumberNo. CIV.2:98-CV-410.,CIV.2:98-CV-410.
CourtUnited States District Courts. 2nd Circuit. District of Vermont
PartiesFRIENDS OF THE EARTH, et al., Plaintiffs, v. U.S. FOREST SERVICE and American Forest & Paper Association, Defendants

Steven Sugarman, Sante Fe, NM, Brian Scott Dunkiel, Friends of the Earth, Northeast Office, Burlington, VT, for Friends of the Earth, Green Mountain Forest Watch, Seventh Generation, Inc., Forest Guardians, Breitenbush Hot Springs Retreat & Conference Center, Inc., Earth Island Project, Idaho Sporting Congress, Federation of Western Outdoors Clubs, Native Forest Council, Andy Mahler, Robert Fener, Rene Voss, Thomas Vuyovich, David Derringer, Laura Erickson, plaintiffs.

Joseph Robert Perella, AUSA, Office of the United States Attorney, District of Vermont, Burlington, VT, J. Michael Klise, Crowell & Moring, Washington, DC, W. John McNally, III, Hanover, NH, for United States Forest Service, an agency of the United States Department of Agriculture obo United States of America (Department of Agriculture), American Forest and Paper Association, intervenor-defendants.


SESSIONS, District Judge.

In this action for injunctive and declaratory relief against the United States Forest Service ("USFS," "Forest Service"), Plaintiffs Friends of the Earth, et al, ("Friends") move for a preliminary injunction (paper 29) and for partial summary judgment (paper 31). USFS has filed a Cross-Motion for Summary Judgment (paper 54), as have Defendant-Intervenors American Forest & Paper Association ("American") (paper 47).1 For the following reasons, the Court DENIES Plaintiffs' Motion for Preliminary Injunction (paper 29), and GRANTS Defendants' Motions for Summary Judgment with regard to claims relating to Moss Glenn II and Hapgood Pond; otherwise, the motions are DENIED (paper 54 and 47). The Court DENIES Plaintiffs' Motion for Partial Summary Judgment (paper 31).

I. Factual Background

Friends filed the original complaint in this case in December 1998. In their First Amended Complaint, Friends alleges that several timber sales on National Forest Land fail to comply with the Rangeland Renewable Resources Planning Act of 1974 ("RPA"), the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), the National Forest Management Act ("NFMA"), the National Environmental Policy Act ("NEPA"), the Global Climate Change Act ("GCCPA"), the Administrative Procedures Act ("APA"), and Forest Service Rules and Regulations. More specifically, Friends takes issue with USFS's alleged failure to take into account the full spectrum of social and economic costs and benefits associated with National Forest land and resource management, in violation of the above statues, regulations, and rules. Logging in four sites in Vermont, namely the Utley Brook Project, the Kelly-Sunderland Area, the Hapgood Pond Project, and the Moss Glenn II Project was allegedly undertaken without proper analysis of the costs and benefits of logging and alternative uses of the land. According to Friends, USFS failure to consider most non-timber values and uses and the externalized costs of logging lead to the improper use of the National Forest. Friends alleges similar violations of statutory, regulatory, and rule prescribed requirements in logging sites in Alaska, Arizona, California, Florida, Idaho, Minnesota, Oregon, and Washington.

Logging in the Green Mountain National Forest ("GMNF"), which includes the Vermont sites challenged in this suit, began as early as 1994. However, logging was suspended in the summer of 1999 until December 15, 1999 for reasons unrelated to the present suit. Friends filed a Motion for Preliminary Injunction to stop cutting in the Vermont sites in December 1999, and sought expedited review.

By January 2000, nearly all of the challenged Vermont timber cutting was completed. In response to the concern that the case would be mooted at the completion of cutting, USFS agreed to a voluntary partial stay of the timber harvest at Utley Brook. However, this agreement was limited in scope; the remainder of the harvesting activities challenged in this case continued unimpeded. Thus, despite the partial stay which prevents the mooting of this case, Friends seeks a preliminary injunction on the grounds that it will suffer irreparable harm if the final stages of timber harvest are conducted on the remaining challenged Vermont logging sites.

I. Preliminary Injunction

Injunctions are governed by Rule 65(a) of the Federal Rules of Civil Procedure. Preliminary injunctions are "extraordinary remed[ies] not to be granted routinely." JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990). The Second Circuit has determined that a "party seeking a preliminary injunction must demonstrate `(1)a showing of irreparable harm if the injunction is not granted and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.'" National Association for Advancement of Colored People, Inc. (NAACP) v. Town of East Haven, 70 F.3d 219, 223 (2d Cir.1995), (citing Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991)).

The less stringent "serious questions" prong is unavailable "where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Id. In the present case, USFS actions were taken pursuant to statutory authority, in accordance with public participation procedures which allowed opportunities for public comment, and thus fall within the ambit of action taken in the public interest. Thus, Plaintiffs are not entitled to the less stringent "serious questions" standard.

To receive a preliminary injunction, Plaintiffs must first show irreparable harm. Irreparable harm exists when "but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied." Brenntag International Chemicals, Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.1999).

Environmental injury often constitutes per se irreparable harm. The Supreme Court has stated that "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). In Sierra Club v. United States Forest Service, 843 F.2d 1190, 1191 (9th Cir.1988), the denial of a preliminary injunction was overturned as the Court found that logging in the absence of completed environmental impact statements demonstrated environmental injury. In New York v. Nuclear Regulatory Commission, 550 F.2d 745, 753-754 (2d Cir.1977), the Second Circuit's denial of a preliminary injunction against the continued transport of nuclear materials by air was based on the reasoning that, unlike the cutting of timber, it did not constitute immediate or irreparable threat of harm.

Although the cutting of trees alone often constitutes irreparable injury, extensive and inexplicable delay in bringing a motion for preliminary injunction severely undercuts pleadings of irreparable harm. "Lack of diligence, standing alone, may [...] preclude the granting of preliminary injunctive relief, because it goes to the issue of irreparable harm [...]." Majorica v. R.H. Macy & Co., Inc., 762 F.2d 7, 8 (2d Cir. 1985). Timber harvesting on the challenged sale sites began as early as 1994, yet Plaintiffs brought the motion for preliminary injunction in December 1999. Friends has offered no explanation for the delay.

Friends argues that although most of the timber harvest is complete, the remaining work to be done on these sites is ground disturbing and will cause the Plaintiffs further injury. However, very little ground disturbing activity remains to be completed in the four challenged sites. As of March 20, ninety-three percent of the work at Kelley-Sunderland was completed, as was seventy-nine percent of the work at Utley Brook. Thus, many acres of Utley Brook and Kelley-Sunderland remain uncut. Furthermore, counsel for the Forest Service stated at the preliminary injunction hearing that much of the then remaining work, particularly at Moss Glen II, is "soil erosion mitigation or cleanup of the landing, seeding the landings, putting water bars in. An injunction would cause environmental harm, not prevent it." This work has now been completed, and the winter cutting is also completed. As there is no further activity being performed on these sites, and because thirty acres at Utley Brook will remain uncut until December 2000, Plaintiffs will experience no irreparable harm in the absence of a preliminary injunction.

Friends has failed to show that irreparable harm would be caused by the remaining activities to be completed on the sites that are not covered by the USFS' voluntary stay at Utley Brook. The Court need not address the question of likelihood of success on the merits, as the motion fails on the basis of lack of irreparable harm. Thus, Friends' request for a preliminary injunction is denied.

II. Motions for Summary Judgment
A. Standards

Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); Alexander & Alexander Services, Inc. v. These Certain Underwriters at Lloyd's, London, England, 136 F.3d 82, 86 (2d Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The movant bears the burden of showing that no genuine issue of material fact exists. Gallo v. Prudential Residential Servs., 22 F.3d 1219,...

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