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Sierra Forest Legacy v. Rey

August 13, 2009

SIERRA FOREST LEGACY; CENTER FOR BIOLOGICAL DIVERSITY; NATURAL RESOURCES DEFENSE COUNCIL, INC.; SIERRA CLUB; THE WILDERNESS SOCIETY, PLAINTIFFS-APPELLANTS,
v.
MARK REY, IN HIS OFFICIAL CAPACITY AS UNDER SECRETARY FOR NATURAL RESOURCES AND ENVIRONMENT; ABIGAIL KIMBELL, IN HER OFFICIAL CAPACITY AS CHIEF OF THE UNITED STATES FOREST SERVICE; BERNARD WEINGARDT, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER UNITED STATES FOREST SERVICE REGION 5; ALICE CARLTON, IN HER OFFICIAL CAPACITY AS FOREST SUPERVISOR, PLUMAS NATIONAL FOREST, DEFENDANTS-APPELLEES,
TUOLUMNE COUNTY ALLIANCE FOR RESOURCES & ENVIRONMENT; CALIFORNIA FOREST COUNTIES SCHOOLS COALITION; REGIONAL COUNCIL OF RURAL COUNTIES; WESTERN COUNCIL OF INDUSTRIAL WORKERS; KLAMATH ALLIANCE FOR RESOURCES & ENVIRONMENT; COARSEGOLD RESOURCE CONSERVATION DISTRICT/EASTERN MADERA COUNTY FIRE SAFE COUNCIL; TULARE COUNTY RESOURCE CONSERVATION DISTRICT; SIERRA RESOURCE CONSERVATION DISTRICT; STRAWBERRY PROPERTY OWNERS' ASSOCIATION; HUNTINGTON GRANTING LAKE ASSOCIATION; HUNTINGTON LAKE BIG CREEK HISTORICAL CONSERVANCY; CALIFORNIA EQUESTRIAN TRAILS & LANDS COALITION; CALIFORNIA FORESTRY ASSOCIATION; CALIFORNIA LICENSED FORESTERS ASSOCIATION; CALIFORNIA/ NEVADA SNOWMOBILE ASSOCIATION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN FOREST RESOURCE COUNCIL; BLUERIBBON COALITION; CALIFORNIA SKI INDUSTRY ASSOCIATION; CALIFORNIA CATTLEMEN'S ASSOCIATION; QUINCY LIBRARY GROUP; PLUMAS COUNTY, DEFENDANT-INTERVENORS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding. D.C. No. CV-05-00205-MCE.

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

ORDER FOR PUBLICATION, PETITION FOR REHEARING AND WITHDRAWING OPINION, AND OPINION

Argued and Submitted March 1, 2008-San Francisco, California

Before: Stephen Reinhardt, John T. Noonan and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher; Concurrence by Judge Noonan

ORDER

Defendants-Intervenors-Appellees' petition for panel rehearing and for rehearing en banc, filed June 27, 2008, is GRANTED IN PART. The amended opinion and concurrence filed May 15, 2008, see Sierra Forest Legacy v. Rey, 526 F.3d 1228 (9th Cir. 2008), are withdrawn. A superseding opinion and concurrence will be filed concurrently with this order. Further petitions for rehearing or petitions for rehearing en banc may be filed. Federal Defendants-Appellees' petition for rehearing en banc, filed July 30, 2008, is denied as moot.

OPINION

This interlocutory appeal concerns three United States Forest Service ("USFS") projects - Empire, Slapjack and Basin - that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. We must decide whether the district court abused its discretion by denying plaintiffs' request to preliminarily enjoin the three projects. USFS developed Empire, Slapjack and Basin under the "2004 Framework," an amendment to the forest plans governing California's Sierra Nevada region, including Plumas.*fn1 Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.*fn2 The 2004 Framework replaced the "2001 Framework" as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.

In a previously filed opinion in this case, we held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008). Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs' requested preliminary injunction. See id. at 1234. Defendants filed a petition for rehearing and petitions for rehearing en banc. With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.

We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court's intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008), requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits - irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested - to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested.

We also note the unusual procedural posture of this case, which bears some explanation at the outset. Even before Legacy sought a preliminary injunction in the district court, the parties had cross-moved for summary judgment on Legacy's NFMA and NEPA claims. Before the district court ruled on the cross-motions, USFS warned it would advertise and award logging contracts for the Empire, Slapjack and Basin projects under the 2004 Framework. In response, Legacy sought the preliminary injunction at issue here. When the district court denied the injunction, Legacy brought its initial appeal to us, but the underlying summary judgment motions remained before the district court. See 28 U.S.C. § 1292(a)(1) (courts of appeal have jurisdiction over interlocutory appeals of denied preliminary injunction motions). As noted above, we reversed and defendants filed petitions for rehearing and rehearing en banc. See Sierra Forest Legacy, 526 F.3d at 1231-32. After we published our opinion and while defendants' petitions for rehearing were pending, the district court ruled on the parties' cross-motions for summary judgment. See Sierra Nev. Forest Prot. Campaign v. Rey, 573 F. Supp. 2d 1316 (E.D. Cal. 2008). The district court granted plaintiffs summary judgment on the one NEPA claim that our first opinion had identified as likely to succeed on the merits. See id. at 1348. On Legacy's other seven ...


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