National Wildlife Federation v. Coston
| Decision Date | 15 October 1985 |
| Docket Number | No. 84-4198,84-4198 |
| Citation | 773 F.2d 1513 |
| Parties | , 15 Envtl. L. Rep. 21,018 The NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs-Appellants, v. Tom COSTON, Regional Forester, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas France, National Wildlife Federation, Missoula, Mont., for plaintiffs-appellants.
Robert G. Steinberg, U.S. Dept. of Justice, Washington, D.C., Terry Coffin, Runft, Leroy, Stecher, Coffin & O'Riordan Chartered, Boise, Idaho, for defendants-appellees.
Appeal from the United States District Court for the District of Montana.
Before DUNIWAY, HUG, and SKOPIL, Circuit Judges.
The National Wildlife Federation and the Montana and Idaho Wildlife Federations appeal from the district court's order denying their motion for a preliminary injunction to halt road construction projects in the Northern Region of the Forest Service authorized by a regional Capital Investment Program. We affirm.
The Forest Service has responsibility for managing the National Forest System. 36 C.F.R. 200.3(b)(2) (1984). Each National Forest is managed by a Forest Supervisor. In addition, the National Forests have been organized into nine administrative regions, each directed by a Regional Forester.
The Forest Supervisor of each National Forest within Region I has responsibility for the land management activities in the Forest under his control. He decides whether or not to initiate and eventually approve or disapprove a road construction project in that Forest, except as an administrative appeal to the Regional Forester may dictate otherwise. These decisions are based on the National Environmental Policy Act of 1969, 42 U.S.C. Secs. 4321 et seq., process, which includes documentation ranging from broad programmatic Environmental Impact Statements (EISs) to site specific project Environmental Analyses (EAs), and extensive public involvement opportunities. Once this process has been completed, the Regional Forester has the responsibility of assigning regional priorities for the allocation of limited funds to programs and projects which have been approved by each Forest Supervisor.
Tom Coston is Regional Forester for Region I, a region embracing thirteen National Forests in the states of Montana, Idaho, North Dakota, and South Dakota. In 1981, Coston implemented an amendment to the Forest Service Manual (FSM) which set out a regional Capital Investment Road and Bridge Program (CIP). (FSM 7710.33.) The CIP formalized existing procedures for determining how regional funds should be allocated for construction proposals approved by Region I Forest Supervisors.
The CIP amendment states:
Regional policy is to provide centralized program management for road and bridge construction, reconstruction, and betterment public works projects estimated to cost in excess of $25,000. The Regional Forester shall reserve and allocate funds for these projects to Forests based on Regional priority and availability of funds....
The Regional objective is to manage public works construction funds effectively and maintain accountability for both quantity and quality in meeting Regional goals. Objective is to identify and keep current 5 years of capital investment projects which meet the following program objectives. The objectives are listed in order of Regional priority.
a. Provide new road and bridge access to commercial timber lands in RARE II and other unroaded areas released or available for development.
b. Provide adequate road and bridge access to harvest timber areas threatened or damaged by pests.
c. Construct new roads and bridges in areas not classified as unroaded to support the 5-year timber harvest program.
d. Repair pavement structures and bridges where analyses clearly show a need to protect investment or resolve safety and emergency problems....
e. Construct/reconstruct roads, bridges and terminal facilities to meet the Region's timber harvest, other resource or environmental needs.
The amount of funds available for each category shall be determined annually by the Regional Forester, depending on the final budget advice and the needs identified by the Forest Supervisors.
The CIP operates in the following manner: Forest Supervisors annually update data files for construction projects currently in the system and submit to the Regional Forester proposals for additional projects based on the five categories set out above. (FSM 7710.33--2). All such proposals are reviewed by a Regional office team consisting of representatives from Engineering; Timber Management; Recreation; Administrative Services; Planning, Programming; and Budgeting; and other staff as required. This team ranks each project by priority in each of the five categories after considering the following factors: forest priority; importance of project; previously committed cost-share or other written agreements; regional program objectives. (FSM 7710.33--3). Each project is only compared with the other projects in the same category and the same fiscal year. The review team submits its recommendations for priority ranking of the construction projects within each category for each of the five fiscal years to the Regional Forester.
The Regional Forester reviews these recommendations in conjunction with other budget considerations and submits a proposed budget to the Chief of the Forest Service which expresses construction needs in total miles, total cost and total resource production for the Region. Following Congress' adoption of the Forest Service's budget, the Chief allocates funds for road and bridge construction to the Regions. Upon receiving final budget advice from the Chief, the Regional Forester assigns a percentage of available funds to each of the five priority categories for the current fiscal year. He then advises the Forest Supervisors of the final ranking of projects for the current fiscal year and the tentative ranking of projects for the following four fiscal years. (FSM 7710.33--2).
After the Regional Forester issues his list of priority rankings of proposed projects, any project may be abandoned or deferred for a variety of reasons including environmental concerns, schedule delays in complying with NEPA, and technical difficulties in design. Such decisions are made by the Forest Supervisor unless an administrative appeal is upheld. A high percentage of projects are dropped, deferred or modified during the course of the fiscal year. Before construction begins on any project, the Forest Supervisors must complete NEPA requirements. A project approved for funding through the CIP process is not actually funded until a Public Works Contract is awarded.
The majority of road construction projects in Region I, including those involving timber sale contracts, do not come under the CIP. In 1984, for example, an estimated 86 percent of roads constructed in Region I did not involve CIP funds.
In June, 1984, the wildlife federations brought this action against the United States Forest Service and Coston, alleging that the CIP violates the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321 et seq., the Endangered Species Act, 16 U.S.C. Secs. 1531 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706(2)(d). They moved for a preliminary injunction restraining Coston from proceeding with CIP-authorized road construction projects and from accepting and awarding bids for new CIP projects. They did not challenge the adequacy of EAs or EISs undertaken at the regional or site level, nor did they challenge the approval by Forest Supervisors of any of the individual construction projects which they sought to enjoin. (Emphasis ours.) The district court denied the federations' motion for a preliminary injunction, holding that
regardless of how the [preliminary injunction] test is formulated, plaintiffs must ultimately make a reasonable showing that they will succeed on the merits of this action. After a careful evaluation, the court is not convinced that such a showing has been made.
This court will reverse an order denying a preliminary injunction only if the lower court abused its discretion or relied on an erroneous legal premise. Martin v. International Olympic Committee, 9 Cir., 1984, 740 F.2d 670, 674; Sports Form, Inc. v. United Press International, Inc., 9 Cir., 1982, 686 F.2d 750, 752.
In this circuit, a party seeking a preliminary injunction must meet one of two alternative tests. Under the first test, a court may issue a preliminary injunction if it finds that:
(1) the [moving party] will suffer irreparable injury if injunctive relief is not granted, (2) the [moving party] will probably prevail on the merits, (3) in balancing the equities, the [non-moving party] will not be harmed more than [the moving party] is helped by the injunction, and (4) granting the injunction is in the public interest.
Martin, supra, 740 F.2d at 674-75, citing William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 9 Cir., 1975, 526 F.2d 86, 87. In the case before us, the district court cited the above test in its order denying the wildlife federations' motion for a preliminary injunction.
The second alternative test requires that a moving party demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. Martin, supra, 740 F.2d at 675, citing Wm. Inglis, supra, 526 F.2d at 88.
We have reversed and remanded a district court denial of a preliminary injunction because the district court failed to apply this second test. Inglis. The National Federation argues that the district court erred as a matter of law by failing to apply the balance of hardships test in the present case. However, under the last part of the...
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