Lands Council v. McNair, 07-35000.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation494 F.3d 771
Docket NumberNo. 07-35000.,07-35000.
PartiesThe LANDS COUNCIL; Wild West Institute, Plaintiffs-Appellants, v. Ranotta McNAIR, Forest Supervisor for the Idaho Panhandle National Forests; United States Forest Service, Defendants-Appellees, Boundary County; City of Bonners Ferry; City of Moyie Springs; Everhart Logging, Inc.; Regehr Logging, Inc., Defendants-Intervenors-Appellees.
Decision Date02 July 2007

Karen Lindholdt, University Legal Assistance, Spokane, WA, for the plaintiffs-appellants.

Thomas W. Swegle, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for the defendants-appellees.

Scott W. Horngren, Haglund, Kelley, Horngren, Jones, and Wilder LLP, Portland, OR, for the intervenors-appellees.

Appeal from the United States District Court for the District of Idaho; Edward J Lodge, District Judge, Presiding. D.C. No. CV-06-00425-EJL.

Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge FERGUSON; Concurrence by Judge MILAN D. SMITH, JR.; Concurrence by Judge FERGUSON.

FERGUSON, Circuit Judge:

The Lands Council and the Wild West Institute (collectively, "Lands Council") appeal the district court's denial of their motion for a preliminary injunction to halt the Mission Brush Project ("Project"). Under the Project, the United States Forest Service ("Forest Service" or "Service") plans to allow the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forests ("IPNF") for the purpose of restoring portions of the forest to historic conditions. Lands Council alleges that the Project violates the Administrative Procedure Act (APA), 5 U.S.C. § 706 et seq., the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and Standard 10(b) of the IPNF Forest Plan. The district court held that Lands Council was unlikely to prevail on its claims and that the balance of hardships favored the Forest Service.

We reverse.

FACTUAL BACKGROUND
The Mission Brush Area

The Project assessment area is in the Bonners Ferry Ranger District in the northern portion of the IPNF. The area is home to abundant plant and animal species, including grizzly bears, Canada lynx, and flammulated owls. Due to decades of unsustainable forestry practices, however, the area has deviated significantly from its historical composition and structure, which consisted of open ponderosa pine and Douglas-fir stands. For decades, logging companies cut down these old growth trees and, along with the Forest Service, suppressed the frequent, low-intensity fires that formerly contributed to the cyclical process of healthy forest ecology. As a result, much of the historic forest conditions have been replaced by dense, crowded stands of younger Douglas-firs and other mid- and late-successional species. These overcrowded forests, dominated by shade-tolerant trees, can lead to insect infestations, diseases, and stand-replacing fires. According to the Forest Service, "the densely stocked stands we see today are causing a general health and vigor decline in all tree species." U.S. Forest Serv., Mission Brush Supplemental Final Environmental Impact Statement 3-15 (2006) [hereinafter SFEIS].

The Mission Brush Project

The Project would perform silvicultural treatments and commercial logging on 3,829 acres of forest, including restoration cutting within 277 acres of old growth stands, with the goal of trending the forest toward historic conditions. The Forest Service has divided the Project into three commercial timber sales, the Brushy Mission Sale, the Haller Down Sale, and the Mission Fly By Sale, comprising in total 23.5 million board feet of timber. The first two sales have been sold to private timber companies, but there were no bids on the third. The Service's contracting officer has stated that he does not intend to award the Mission Fly By Sale until this litigation concludes, although logging under the Brushy Mission and Haller Down sales began several months ago.

PROCEDURAL HISTORY

In June 2004, the Forest Service released the Mission Brush Final Environmental Impact Statement ("EIS") and the Record of Decision, which adopted the Project. Lands Council, along with several other environmental groups, appealed to the Regional Forester, who upheld the Project in August 2004 but ordered the preparation of a supplemental EIS in light of our decision in Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019 (2005).1 In April 2006, the Forest Service released its Supplemental Final EIS ("SFEIS") and Record of Decision ("ROD"). Lands Council filed an administrative appeal, which the Forest Service denied in July 2006.

In October 2006, Lands Council filed suit challenging the Project in the U.S. District Court for the District of Idaho. Lands Council filed a motion for a temporary restraining order and preliminary injunction to halt the Project. The district court denied the motion on December 18, 2006, and Lands Council timely appealed.

DISCUSSION
I. Preliminary Injunction Standard

We review a district court's denial of a preliminary injunction for an abuse of discretion. Earth Island Inst. v. U.S. Forest Serv. (Earth Island Inst. II), 442 F.3d 1147, 1156 (9th Cir.2006). A district court abuses its discretion if it "base[s] its decision on an erroneous legal standard or clearly erroneous findings of fact." Id.

A preliminary injunction should issue when the plaintiff shows "either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor." Lands Council v. Martin (Lands Council II), 479 F.3d 636, 639 (9th Cir.2007) (quoting Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)). These two alternatives are "extremes of a single continuum" in which "the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be shown." Clear Channel Outdoor Inc., 340 F.3d at 813 (internal punctuation and quotation omitted).

II. Likelihood of Success on the Merits National Forest Management Act

NFMA requires the Forest Service to develop a forest plan for each unit of the National Forest System. 16 U.S.C. § 1604(a). These plans must include provisions for public participation, while adopting "a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences." § 1604(b), (d). Once a forest plan is developed, subsequent agency actions must be consistent with the plan. § 1604(i).

In addition to these procedural components, NFMA imposes substantive requirements on the Forest Service. In particular, "the forest plan must comply with substantive requirements of the Forest Act designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest." Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 961 (9th Cir.2002) (citing 16 U.S.C. § 1604(g)(3)(B)). The Forest Service must also "demonstrate the reliability of its scientific methodology." Ecology Ctr. v. Austin, 430 F.3d 1057, 1064 (9th Cir.2005). A reliable scientific methodology is one that the Forest Service has "verified with observation" and "on the ground analysis." Lands Council I, 395 F.3d at 1035. The Forest Service may not rely on a methodology that "is predicated on an unverified hypothesis." Ecology Ctr., 430 F.3d at 1064.

The Forest Service has not proven the reliability of its scientific methodology with regard to wildlife habitat restoration in the Mission Brush Project. In particular, the Service has failed to demonstrate that the Project will not harm the flammulated owl, the northern goshawk, the fisher, and the western toad, all of whom the Forest Service has designated as "sensitive species" whose viability is of special concern. See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 n. 2 (9th Cir. 2000) (explaining "sensitive species" designation). As in Ecology Center, the Forest Service is relying on the "unverified hypothesis" that "treating old-growth forest is beneficial to dependent species." Ecology Ctr., 430 F.3d at 1064.

In Ecology Center, the Forest Service, as part of another project, sought to engage in rehabilitative treatment of old growth stands "to correct uncharacteristic forest development resulting from years of fire suppression." Id. at 1063. We concluded that the Forest Service did "not offer proof that the proposed treatment benefits—or at least does not harm—old-growth dependent species." Id. We held that the Forest Service's methodology was unreliable since it had not been verified, and that the treatments therefore violated NFMA. Id. at 1063-64.

The Forest Service argues that the present case is distinguishable from Ecology Center because the Service has provided sufficient scientific data on the effects of the Project on wildlife habitat. None of the documents it cites, however, demonstrates the reliability of the Forest Service's hypothesis that restoration treatment will benefit dependent species.

The Forest Service relies primarily on the Dawson Ridge Study, Dawson Ridge Flammulated Owl Habitat Monitoring (2006) [hereinafter Dawson Ridge Study], the only study it has conducted since our decision in Ecology Center. The Dawson Ridge Study monitored a "relatively small area" of flammulated owl habitat: five 1/5 acre plots in an area totaling only eighteen acres. Id. at 2-3. The researchers received a single response in the 2006 survey. Id. at 1. Based on this solitary hoot, and the fact that the area had been logged in 2000 and underburned in 2002, the report concluded that "owls are using the area after...

To continue reading

Request your trial
5 cases
  • The Lands Council v. McNair
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 2, 2008
    ...panel of this court reversed the district court's decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir.2007). We vacate that decision and affirm the district I. FACTUAL AND PROCEDURAL BACKGROUND A. Mission Brush Area The Mission Brush......
  • W. Watersheds Project v. Bernhardt
    • United States
    • U.S. District Court — District of Oregon
    • June 5, 2019
    ...again that the public interest in preserving nature and avoiding irreparable injury outweighs economic concerns." Lands Council v. McNair , 494 F.3d 771, 780 (9th Cir. 2007), vacated on rehearing en banc on other grounds , 537 F.3d 981 (9th Cir. 2008) (finding that the balance of equities s......
  • Lands Council v. McNair
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 28, 2010
    ...its motion for a preliminary injunction. Lands Council appealed, and we reversed the district court's decision in Lands Council v. McNair, 494 F.3d 771 (9th Cir.2007). However, after rehearing the case en banc in Lands Council v. McNair ( Lands Council ), 537 F.3d 981 (9th Cir.2008) (en ban......
  • Lands Council v. Martin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 25, 2008
    ...This court recently granted en banc review of the continuing vitality of the on-the-ground rule cited by Plaintiffs. Lands Council v. McNair, 494 F.3d 771 (9th Cir.2007), reh'g en banc granted, 512 F.3d 1204 (9th Cir.2008); see also id., 494 F.3d at 780-86 (M. Smith, J., specially concurrin......
  • Request a trial to view additional results
2 books & journal articles
  • Delineating deference to agency science: doctrine or political ideology?
    • United States
    • Environmental Law Vol. 40 No. 3, June 2010
    • June 22, 2010
    ...Cir. 2005). Lands Council v. Powell NEPA Gould 395 F.3d 1019 NFMA Canby (9th Cir. 2005). Wardlaw Lands Council v. McNair NEPA Ferguson 494 F.3d 771 (9th NFMA Reinhardt Cir. 2007) (3 judge panel) Lands Council v. McNair NEPA 537 F.3d 981 (9th NFMA Cir. 2008) (en banc) Or. Natural Desert NEPA......
  • The Butterbaugh fallacy.
    • United States
    • Air Force Law Review No. 61, March 2008
    • March 22, 2008
    ...Board has discretion to order payment of reasonable attorney fees ... and other litigation expenses...."). (6) Lands Council v. McNair, 494 F.3d 771, 786 (9th Cir. 2007) (Ferguson, C.J., Judge Smith takes the plain fact that district courts in our circuit have enjoined logging projects in t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT