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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« The Endangered Species Act: An Industry of its Own? | Main| FWS proposes delisting of the Concho Water Snake »

Ninth Circuit en banc panel reverses itself, and reinvigorates judicial restraint, in timber harvest case with ESA implications

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The Lands Council and Wild West Institute v. Ranotte McNair and U.S. Forest Service, No. 07-35000, D.C. No. CV-06-00425-EJL (9th Cir. EN BANC July 2, 2008)

Photo of a stream flowing from Lower Ball Lake in the Selkirk Mountains, where the U.S. Forest Service Bonners Ferry Ranger District, and the Mission Brush Project at issue in this case, are located.  

SUMMARY: Over the past few years, the traditional standards for a preliminary injunction in Endangered Species Act cases seemed to changing, with the usual "sliding scale" test between likelihood of success on the merits and potential for irreparable harm giving way to a more murky approach in which ESA cases --  especially in the context of timber forests -- seemed to present nearly per se examples of irreparable harm.  In The Lands Council, a Ninth Circuit en banc panel decided "to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service."  Although 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), the en banc panel vacated that decision and affirmed the district court.  The opinion is a worthwhile read for ESA practicioners in the Ninth Circuit, particularly for its discussion of preliminary injunction standards, and for its treatment of its own prior decisions.

BACKGROUND: The Mission Brush Area (or Project Area) encompasses approximately 31,350 acres of National Forest lands.  While the lands include traditional ponderosa and douglas fir ecosystems, and old growth, the suppression of naturally occurring fires, past logging practices, and disease shifted forest composition and crowded the area with stands of shade-tolerant, younger Douglas-firs and other mid-to-late-successional species.  Nevertheless, the area remained 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.  Through the Mission Bursh project, USFS planned silvicultural treatments (such as commercial thinning, regeneration cuts, and sanitation salvage harvesting) on 3,829 acres of forest, fuels treatments on 3,698 acres, and ecosystem burns without harvest on 238 acres.  Moreover, the project sought to improve and maintain trees that could be old-growth in the future, and will not involve harvesting allocated old-growth trees.

NOTEWORTHY EXCERPT: Our law does not, however, allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995) (“Injunctive relief is an equitable remedy, requiring the court to engage in the traditional balance of harms analysis, even in the context of environmental litigation.”) (citation omitted). Indeed, the Supreme Court has instructed us not to “exercise [our] equitable powers loosely or casually whenever a claim of ‘environmental damage’ is asserted.” Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207, 1217-18 (1972); see Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) (“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.”). Accordingly, we decline to adopt a rule that any potential environmental injury automatically merits an injunction, particularly where, as in this case, we have determined that the plaintiffs are not likely to succeed on the merits of their claims.

Intervenors raise hardships that must be balanced against Lands Council’s claims of potential environmental injury. Intervenors contend that enjoining the project will force the timber companies that purchased the Sales to lay off some or all of their twenty-seven workers, in addition to other indirect harm to the struggling local economy. We must also consider the public’s interest. See Kootenai Tribe of Idaho, 313 F.3d at 1125; Sammartano, 303 F.3d at 974. Though preserving environmental resources is certainly in the public’s interest, the Project benefits the public’s interest in a variety of other ways. According to the Forest Service, the Project will decrease the risk of catastrophic fire, insect infestation, and disease, and further the public’s interest in aiding the struggling local economy and preventing job loss. See Wildwest Inst., 472 F.3d at 592 (considering the possibility of a severe wildfire and its accompanying danger to human life, and the money the Forest Service would lose in revenue from timber sales as hardships favoring the denial of an injunction). The court did not clearly error in concluding that the balance of harms did not tip sharply in Lands Council’s favor. We conclude that the district court did not abuse its discretion in denying Lands Council’s request for a preliminary injunction.

KEITHINKING:  The decision clearly reinstates the traditional test for injunctive relief in the Ninth Circuit, and further allows for careful consideration of the economic interests of intervenors, and the greater public interest.  That, in itself, makes this decision remarkable.  But in other respects, this en banc decision is absolutely shocking, because the Ninth Circuit twice reverses two prior and fairly recent decisions.  

Discussing its prior decision in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), cert. denied, Mineral County v. Ecology Center, Inc., 127 S. Ct. 931 (2007), the Court admitted that it "misconstrued what the NFMA (National Forest Management Act) requires of the Forest Service."  Later the unanimous en banc panel stated that " We made three key errors in Ecology Center. First, we read the holding of Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005) too broadly. Second, we created a requirement not found in any relevant statute or regulation. And, third, we defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors."  On that third point, the panel was even more brutal in its own jurisprudental flaggellation:  "Essentially, we assessed the quality and detail of on-site analysis and made 'fine-grained judgments of its worth.' Id. at 1077 (McKeown, J., dissenting). It is not our proper role to conduct such an assessment. Instead, our proper role is simply to ensure that the Forest Service made no 'clear error of judgment' that would render its action 'arbitrary and capricious.' See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)... as non-scientists, we decline to impose bright-line rules on the Forest Service regarding particular means that it must take in every case to show us that it has met the NFMA’s requirements."  

The Ninth Circuit again reversed itself in discussing Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998),.  "To the extent we suggested in Idaho Sporting Congress v. Thomas, that habitat cannot be used as a proxy when there is an “appreciable habitat disturbance,” id. at 1154, Thomas is overruled."  This reversal is especially important in the context of the ESA, because the Ninth Circuit did nearly the same thing to the U.S. Fish & Wildlife Service in Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1037-1038 (9th Cir. 2007).  In ONRC, the Ninth Circuit invalidated a USFWS biological opinion that used acres of habitat as a proxy for evaluating take of species.  Moreover, the ONRC Plaintiffs relied repeatedly on Idaho Sporting Congress.  In my opinion (full disclosure -- I served as a DOJ attorney and worked on ONRC) that case should be reversed as well -- but the Ninth Circuit en banc panel left the ONRC decision in place by narrowing its ruling to the proposition that "the record failed to describe the type or amount of habitat that is necessary to sustain the viability of the species (northern spotted owls) in question."  Still, with that clarification, and the recent rejection of ONRC by another District Court in the Ninth Circuit, see Swan View Coalition v. Barbouletos, CV 05-64-M-DWM (D.Mont. March 31, 2008), discussed in ESAblawg (April 2, 2008), it does appear that judicial restraint is returning to the environmental jurisprudence of the Ninth Circuit, and that Federal agencies defending their ESA-related actions might, in the future, see greater success.  

Perhaps the repeated reversals by the U.S. Supreme Court,  including last year's opinion in National Assn. of Home Builders v. Defenders of Wildlife (Nos. 06-340 and 06-549), 420 F. 3d 946 (2007), and the looming possibility of another reversal in NRDC v, Winter, enjoining the Navy's use of sonar due to potential marine life impacts, see ESA blawg (July 25, 2008), have finally triggered an important shift in the environmental jurisprudence of the Ninth Circuit.