League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.
Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA). The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor. But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.
Likelihood of Success on the Merits
The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits. The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place. The plan, however, was subsequently withdrawn. The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan. An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.
Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis. The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate. Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region. The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline. The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.
Likelihood of Irreparable Harm
The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction. The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable. The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm. The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged. There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.
Balance of Equities
Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor. The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary. The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”
Interest to the Public
The final prong in the test for a preliminary injunction is whether the injunction is in the public interest. The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned. The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks. Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest. The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.
The Ninth Circuit remanded the case to the district court to issue the preliminary injunction. The court expressly declined to comment on the appropriate scope of that injunction.