The Lands Council v. McNair

• Decision Date: 02 July 2008
• Docket Number: No. 07-35000.,07-35000.
• Citation: 537 F.3d 981
• Parties: THE 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., Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

537 F.3d 981

THE 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., Defendant-Intervenors-Appellees.

No. 07-35000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 27, 2008.

Filed July 2, 2008.

Karen Lindholdt, University Legal Assistance, Spokane, WA; Thomas J. Woodbury, Forest Defense, P.C., Missoula, MT, for the Plaintiffs-Appellants.

Andrew C. Mergen and Thomas W. Swegle, United States Department of Justice, Washington, D.C., for Defendant-Appellee.

Scott W. Horngren and Julie A. Weis, Haglund Kelley Horngren Jones & Wilder LLP, Portland, OR; Philip H. Robinson, Boundary County Civil Counsel, Bonners Ferry, ID, for Defendant-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: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, ANDREW J. KLEINFELD, HAWKINS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, MARSHA S. BERZON, RICHARD R. CLIFTON, MILAN D. SMITH, JR., and N. RANDY SMITH, Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

We took this case en banc to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service.

The Lands Council and Wild West Institute (collectively, Lands Council) moved for a preliminary injunction to halt the Mission Brush Project (the Project), which called for the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forest (IPNF). As the basis for the preliminary injunction, Lands Council claimed that Ranotta McNair and the United States Forest Service (collectively, the Forest Service), failed to comply with the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., in developing and implementing the Project.

Boundary County, City of Bonners Ferry, City of Moyie Springs, Everhart Logging, Inc., and Regehr Logging, Inc. (collectively, Intervenors) intervened on behalf of the Forest Service. The district court denied Lands Council's motion for a preliminary injunction. A three-judge 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 court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Mission Brush Area

The Mission Brush Area (or Project Area) encompasses approximately 31,350 acres and is located in the northeastern portion of the Bonners Ferry Ranger District. Approximately 16,550 acres of the Project Area are National Forest System lands, which are home to a variety of species (or their habitats), including the northern gray wolf, Canada lynx, grizzly bear, black-backed woodpecker, flammulated owl, fisher, western toad, pileated woodpecker, and the white-tailed deer. The Project Area is also home to old-growth trees.

The current structure and composition of the forest in the Project Area differs significantly from the forest's historic composition. While the Project Area previously consisted of relatively open ponderosa pine and Douglas-fir stands, today it is crowded with stands of shade-tolerant, younger Douglas-firs and other mid-to-late-successional species. The suppression of naturally occurring fires, past logging practices, and disease are primarily responsible for this shift in forest composition.

The increased density of trees has proven deleterious to the old-growth trees and the Project Area's ecology. First, old-growth trees need relatively open conditions to survive and maintain their growth rates. Second, the increased density is causing a decline in the health and vigor of all trees because they must compete for moisture, sunlight, and nutrients, and the densely clustered trees are less tolerant of insects and disease. Third, dense, dry forests are at risk for large, stand-replacing fires, due to the build-up of fuels. Lastly, wildlife species that prefer a relatively open forest composition with more old-growth trees have suffered a decline in habitat.

B. Mission Brush Project

The Forest Service proposed the Project, in part, to restore the forest to its historic composition, which, in the Forest Service's assessment, is more likely to be sustainable over time. But this is not the Project's only objective. According to the Supplemental Final Environmental Impact Statement (SFEIS) that the Forest Service issued in April 2006, the overall "objectives of the project are to begin restoring forest health and wildlife habitat, improv[e] water quality and overall aquatic habitat by reducing sediment and the risk of sediment reaching streams, and provid[e] recreation opportunities that meet the varied desires of the public and the agency while reducing negative effects to the ecosystem." The Project proposes to accomplish these varied objectives through a number of actions, such as improving roads that presently contribute to sediment in the watersheds, decommissioning roads posing a great risk of contributing to sediment, ensuring that the Project Area has acceptable toilets and wheelchair accessible pathways to toilets, installing a boat ramp and fishing dock, and improving trails.

After considering multiple approaches on how best to accomplish the Project's goals with respect to forest composition, including one no-action alternative, the Forest Service chose to implement a modified version of Alternative 2. In relevant part, Alternative 2 calls for silvicultural treatments on 3,829 acres of forest, fuels treatments on 3,698 acres, and ecosystem burns without harvest on 238 acres. The silvicultural treatments proposed include commercial thinning,¹ regeneration cuts,² and sanitation salvage harvesting.³

As a part of the Project, the Forest Service plans to treat 277 acres of dry-site old-growth stands in order to increase the overall quality of dry-site old-growth stands and scattered old-growth Douglasfir, and to improve and maintain trees that could be old-growth in the future. Despite its plans to perform treatments within old-growth stands, the Project will not involve harvesting allocated old-growth trees. The Forest Service represented in the SFEIS that the allocated old-growth in the IPNF has not been harvested for several years, and that its "focus is on maintaining [existing] old growth stands ... and allocating additional stands for future old growth as they mature." In those units containing old-growth trees, the Forest Service has identified those non-old-growth trees it plans to harvest.

The Project is expected to generate 23.5 million board feet of timber, which has been, or will be, sold pursuant to three timber sale contracts: the Brushy Mission Sale, the Haller Down Sale, and the Mission Fly By Sale. The Forest Service sold the Brushy Mission Sale to Everhart Logging, and the Haller Down Sale to Regehr Logging. The Forest Service received no bids for the Mission Fly By Sale, which contains all but fourteen of the old-growth acres that are part of the Haller Down Sale. Though logging under the Brushy Mission and Haller Down sales has already begun, the injunction imposed by the district court pursuant to the three-judge panel opinion in Lands Council, 494 F.3d 771, prohibits the Forest Service from logging in the fourteen acres of old-growth in the Haller Down Sale. The same injunction imposes other restrictions on the Forest Service, including a prohibition on taking any action in the area encompassed by the Mission Fly By Sale.

C. Procedural History

In late 2002, the Forest Service decided to undertake management activities in the Mission and Brush Creek areas. In 2003, the Forest Service issued a draft Environmental Impact Statement (EIS). After receiving public comments, the Forest Service released its final EIS and Record of Decision (ROD) in June 2004. Lands Council appealed the ROD. The Forest Service upheld the Project, but ordered the preparation of a supplemental EIS in light of this court's decision in Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir.2004), amended by 395 F.3d 1019 (9th Cir.2005), which addressed the management of National Forest System lands in the IPNF in connection with a different Forest Service project. The Forest Service subsequently released a supplemental draft EIS for public comment, and issued the SFEIS and ROD in April 2006. Lands Council and other environmental groups filed an administrative appeal, which the Forest Service denied in July 2006. In October 2006, Lands Council filed this action and moved for a preliminary injunction.

II. STANDARD OF REVIEW AND JURISDICTION

We have jurisdiction to review a district court's denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). A district court's decision regarding preliminary injunctive relief is subject to "limited and deferential" review. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam). Thus, we review the denial of a preliminary injunction for 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 in denying a request for a preliminary injunction if it "base[s] its decision on an erroneous legal standard or clearly erroneous findings of fact." Id. (citation omitted). We review conclusions of law de novo and findings of fact for clear error. Id. Under this standard, "[a]s long as the district court got the law right, it will not be reversed simply because the...