Wilderness Soc. v. Tyrrel, No. CIV. S-88-1322 LKK.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtDavid Dun, Dun & Arkley, Eureka, Cal., for intervenor
PartiesThe WILDERNESS SOCIETY, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Inc. and California Trout, Inc., Plaintiffs, v. Robert R. TYRREL, Forest Supervisor of the United States Forest Service for the Shasta-Trinity National Forests; and Paul F. Barker, Regional Forester of the United States Forest Service for Region Five, Defendants. Sierra Pacific Industries, Intervenor.
Docket NumberNo. CIV. S-88-1322 LKK.
Decision Date13 December 1988

701 F. Supp. 1473

The WILDERNESS SOCIETY, Sierra Club, Pacific Coast Federation of Fishermen's Associations, Inc. and California Trout, Inc., Plaintiffs,
v.
Robert R. TYRREL, Forest Supervisor of the United States Forest Service for the Shasta-Trinity National Forests; and Paul F. Barker, Regional Forester of the United States Forest Service for Region Five, Defendants.

Sierra Pacific Industries, Intervenor.

No. CIV. S-88-1322 LKK.

United States District Court, E.D. California.

December 13, 1988.


701 F. Supp. 1474
COPYRIGHT MATERIAL OMITTED
701 F. Supp. 1475
Stephan C. Volker, San Francisco, Cal., for plaintiffs

David Dun, Dun & Arkley, Eureka, Cal., for intervenor.

Wesley Higbie, Hendrickson, Higbie & Cole, San Francisco, Cal., for amicus Timber Ass'n of Cal.

Karen Patterson, Mary L. Grad, Asst. U.S. Attys., Sacramento, Cal., for defendants.

AMENDED ORDER

KARLTON, Chief Judge.

This case came on for hearing on October 31, 1988, pursuant to plaintiffs' motion for a preliminary injunction. Plaintiffs request interlocutory relief under Fed.R.Civ. P. 65 to preserve the status quo pending adjudication of this action. After hearing, and for good cause shown, a temporary restraining order was issued to preserve the status quo while the court considered more fully the issues raised at hearing. For reasons set forth herein, plaintiffs' motion for a preliminary injunction is granted.

I

CASE BACKGROUND

Plaintiffs seek to enjoin employees of the United States Forest Service from proceeding with implementation of the South Fork Fire Recovery Salvage Project ("the project"), a proposal to harvest 18.4 million board feet of burned timber and construct 8.7 miles of new roads within the South Fork Roadless Area on the Shasta Trinity National Forests. See Plaintiff's Complaint, Exh. A (Final Environmental Impact Statement, August 1988) ("Final EIS"), Record of Decision, p. 2. This area is adjacent to the South Fork Trinity River, which was designated a Wild and Scenic River by proclamation of the Secretary of the Interior on January 19, 1981. 46 Fed.Reg. 7484 (1981). Intervenor Sierra Pacific Industries, Inc., claims an interest in the project as the high bidder for a contract with the Forest Service to log the timber.1 Pursuant to a stipulation between the parties effective until October 31, 1988, and the court's temporary restraining order imposed on October 31, 1988, as subsequently extended, no contract has yet been awarded.

701 F. Supp. 1476

Plaintiffs contend that timber cutting and road construction authorized in the project would violate federal environmental laws, principally the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271, et seq. Plaintiffs also allege violations of the National Forest Management Act, 16 U.S.C. §§ 1600, et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, et seq., and the Clean Water Act, 33 U.S.C. §§ 1323, et seq., as applied through the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq.

On September 26, 1988, plaintiffs filed an administrative appeal of the decision approving the project and a request for stay pursuant to 36 C.F.R. § 211.16 (53 Fed. Reg. 17032 (May 13, 1988)). On October 17, 1988, the United States Forest Service denied plaintiffs' request for stay. Although the Forest Service indicated that it would "proceed as quickly as possible to complete the review of plaintiffs' appeal to minimize any activities that may occur prior to our decision on the merits," it also indicated that the denial of stay was "not subject to further administrative appeal or review." Plaintiffs' Points and Authorities, Exh. B. See 36 C.F.R. § 211.16(i).

II

PRELIMINARY INJUNCTION STANDARDS

As an initial matter, I must address the scope of a district court's task in adjudicating a motion for preliminary injunction in the context summarized above.

The basis for injunctive relief is irreparable injury and inadequacy of legal remedies. This requires a court to balance the competing claims of injury and the effect on each party of granting or withholding of the requested relief.

Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988). See also Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed. 2d 542, 553 (1987). Since the pending motion is for a preliminary injunction rather than a permanent one, plaintiffs must show "likelihood of success on the merits rather than actual success." Penfold, 857 F.2d at 1318; Gambell, 480 U.S. at 546 n. 12, 107 S.Ct. at 1404 n. 12, 94 L.Ed.2d at 556 n. 12. The profoundly different role of evidence in a preliminary injunction bears emphasis.

The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party is thus not required to prove his case in full at a preliminary injunction hearing ... and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.

University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed. 2d 175 (1981) (citations omitted).

The Ninth Circuit has recognized two interrelated tests for determining the propriety of the issuance of a preliminary injunction. Under the

"traditional test" typically applied in cases involving the public interest, "a preliminary injunction is justified when: (1) the moving party has established a strong likelihood of success on the merits; (2) the balance of irreparable harm favors the moving party; and (3) the public interest favors the issuance of an injunction."

Northern Alaska Environmental Center v. Hodel, 803 F.2d 466, 471 (9th Cir.1986) (quoting Regents of the University of California v. American Broadcasting Cos., Inc., 747 F.2d 511, 515 (9th Cir.1984)).

Under the second "alternative" formulation of preliminary injunction standards, plaintiffs may meet their burdens by demonstrating that either of the following two combinations is present: "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party seeking relief." Friends of the Earth v. U.S. Navy, 841 F.2d 927, 933 (9th Cir.1988). The different

701 F. Supp. 1477
formulations of the governing standards "are not two independent tests, but the extremes of the continuum of equitable discretion." Id. As this court has had occasion to observe, the alternative test does not excuse the moving party from demonstrating, "at a minimum, that there is a `fair chance of success' on the merits, even if the balance of hardships tips sharply in its favor." Catholic Social Services v. Meese, 664 F.Supp. 1378, 1381 (E.D.Cal. 1987). See also Diaz v. I.N.S., 648 F.Supp. 638, 643 (E.D.Cal.1986). Before applying the familiar preliminary injunction standards noted above to the case at bar, however, I must also address the question tendered by plaintiffs of whether, in any of the statutes under which plaintiffs have stated claims, Congress has abrogated this court's ordinary equitable discretion in injunction proceedings to consider the balance of hardships. See TVA v. Hill, 437 U.S. 153, 193-95, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117 (1978) (Endangered Species Act); Friends of the Earth, 841 F.2d 927, 933 (9th Cir.1988) (National Defense Authorization Act)

In the typical case, the fact that a statutory violation is alleged will not itself require the court to relinquish its discretionary standards on preliminary injunction motions.

Although particular regard should be given to the public interest, "the grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law."

Gambell, 480 U.S. at 542, 107 S.Ct. at 1402, 94 L.Ed.2d at 553-54 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982)). Consequently, "a Congressional grant of jurisdiction to insure compliance with a statute will not ordinarily limit the court's discretion to issue or deny injunctions unless the statute `in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity.'" Save The Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988) (quoting Gambell, 480 U.S. at 542, 107 S.Ct. at 1403, 94 L.Ed.2d at 554).

I must determine whether any of the statutes that form the basis for plaintiffs' claims raise such a necessary or inescapable inference restricting the court's equity jurisdiction. Plaintiff does not allege, nor does the court find, that any basis for such an inference is raised by the National Forest Management Act, 16 U.S.C. §§ 1600, et seq. With respect to the claim under NEPA, 42 U.S.C. §§ 4321, et seq., the answer is plainly negative. The Ninth Circuit has rejected any presumption of irreparable injury under NEPA when "an agency fails to thoroughly evaluate the environmental impact of a proposed action. ..." Save the Yaak, 840 F.2d at 722. See also Northern Cheyenne v. Hodel, 851 F.2d 1152, 1158 (9th Cir.1988). Similarly, plaintiffs' claim based upon a violation of the Clean Water Act, 33 U.S.C. §§ 1323, et seq., does not foreclose this court's equitable considerations relative to a request for preliminary injunctive relief. Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 1807, 72 L.Ed.2d 91 (1982). In Weinberger, the Supreme Court cautioned that "a major departure from the long tradition...

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5 practice notes
  • Ross v. Federal Highway Admin., Civil Action No. 97-2132-GTV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 17, 1997
    ...S.Ct. at 1803-04. Courts have concluded that NEPA does not limit the court's equity jurisdiction. See, e.g., Wilderness Soc'y v. Tyrrel, 701 F.Supp. 1473, 1477 (E.D.Cal.1988), rev'd on other grounds, 918 F.2d 813 (9th Cir. 1990); Friends of the Earth v. Hall, 693 F.Supp. 904, 948-49 (W.D.Wa......
  • Sullivan v. Vallejo City Unified School Dist., No. CIV. S-89-1505 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 1, 1990
    ...her service dog at school. She argues, however, that the less stringent traditional standards, see, e.g., Wilderness Society v. Tyrrel, 701 F.Supp. 1473, 1476, 1477 (E.D.Cal.1988), govern where the injunctive relief sought would require the defendants to comply with federal civil rights law......
  • Service Employees Intern. Union, AFL-CIO v. FPPC, No. CIV. S-89-433 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 14, 1989
    ...the doctrine that not all violations of law automatically justify the awarding of injunctive relief. See Wilderness Society v. Tyrrel, 701 F.Supp. 1473 (E.D.Cal.1988). As I explained there, however, the consequences of that doctrine are very modest. Since considerations of public policy mus......
  • Wilderness Soc. v. Tyrrel, Nos. 90-15221
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 6, 1990
    ...such lands as may be 'necessary to protect such rivers in accordance with the purposes of this chapter.' " Wilderness Soc'y v. Tyrrel, 701 F.Supp. 1473, 1487 (E.D.Cal.1988) (quoting 16 U.S.C. Sec. 2 The court noted that " 'forest supervisors shall prepare and approve an implementation plan ......
  • Request a trial to view additional results
5 cases
  • Ross v. Federal Highway Admin., Civil Action No. 97-2132-GTV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 17, 1997
    ...S.Ct. at 1803-04. Courts have concluded that NEPA does not limit the court's equity jurisdiction. See, e.g., Wilderness Soc'y v. Tyrrel, 701 F.Supp. 1473, 1477 (E.D.Cal.1988), rev'd on other grounds, 918 F.2d 813 (9th Cir. 1990); Friends of the Earth v. Hall, 693 F.Supp. 904, 948-49 (W.D.Wa......
  • Sullivan v. Vallejo City Unified School Dist., No. CIV. S-89-1505 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 1, 1990
    ...her service dog at school. She argues, however, that the less stringent traditional standards, see, e.g., Wilderness Society v. Tyrrel, 701 F.Supp. 1473, 1476, 1477 (E.D.Cal.1988), govern where the injunctive relief sought would require the defendants to comply with federal civil rights law......
  • Service Employees Intern. Union, AFL-CIO v. FPPC, No. CIV. S-89-433 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 14, 1989
    ...the doctrine that not all violations of law automatically justify the awarding of injunctive relief. See Wilderness Society v. Tyrrel, 701 F.Supp. 1473 (E.D.Cal.1988). As I explained there, however, the consequences of that doctrine are very modest. Since considerations of public policy mus......
  • Wilderness Soc. v. Tyrrel, Nos. 90-15221
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 6, 1990
    ...such lands as may be 'necessary to protect such rivers in accordance with the purposes of this chapter.' " Wilderness Soc'y v. Tyrrel, 701 F.Supp. 1473, 1487 (E.D.Cal.1988) (quoting 16 U.S.C. Sec. 2 The court noted that " 'forest supervisors shall prepare and approve an implementation plan ......
  • Request a trial to view additional results

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