Sierra Forest Legacy v. Rey ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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,

11029
11030 SIERRA FOREST LEGACY v. REY

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 No. 07-16892
COUNCIL; TULARE COUNTY D.C. No.
RESOURCE CONSERVATION DISTRICT; CV-05-00205-MCE
SIERRA RESOURCE CONSERVATION
DISTRICT; STRAWBERRY PROPERTY ORDER FOR
OWNERS’ ASSOCIATION; HUNTINGTON
LAKE ASSOCIATION; HUNTINGTON
 PUBLICATION
GRANTING
LAKE BIG CREEK HISTORICAL PETITION FOR
CONSERVANCY; CALIFORNIA REHEARING AND
EQUESTRIAN TRAILS & LANDS WITHDRAWING
COALITION; CALIFORNIA FORESTRY OPINION AND
ASSOCIATION; CALIFORNIA LICENSED OPINION
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.

SIERRA FOREST LEGACY v. REY 11031
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
March 1, 2008—San Francisco, California
Filed August 13, 2009
Before: Stephen Reinhardt, John T. Noonan and Raymond
C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Noonan
SIERRA FOREST LEGACY v. REY 11033
COUNSEL
Gregory C. Loarie and Michael R. Sherwood, Earthjustice,
Oakland, California; Patrick Gallagher, Sierra Club Environ-
mental Law Program, San Francisco, California; Eric E.
Huber, Sierra Club Environmental Law Program, Boulder,
Colorado; and David B. Edelson (argued), Berkeley, Califor-
nia, for plaintiffs-appellants.
Ronald J. Tenpas, Acting Assistant Attorney General; James
L. Rosen, USDA Office of the General Counsel, San Fran-
cisco, California; Brian Toth, Clay Samford and Jennifer L.
Scheller (argued), U.S. Department of Justice Environment
and Natural Resources Division, Washington, D.C., for fed-
eral defendants-appellees.
11034 SIERRA FOREST LEGACY v. REY
Thomas R. Lundquist, J. Michael Klise and Steven P.
Quarles, Crowell & Moring LLP, Washington, D.C., for inter-
vening defendants-appellees Toulumne County Alliance for
Resources and Environment, et al.
Michael B. Jackson, Quincy, California, for intervening
defendant-appellees Quincy Library Group and Plumas
County.
Brian A. Kelly, Duane Morris LLP, San Francisco, California,
for intervening defendant-appellee California Ski Industry
Association.
Edmund G. Brown, Jr., Attorney General; Janet Gaard, Act-
ing Chief Assistant Attorney General; Gordon Burns, Deputy
Solicitor General; Theodora Berger, Senior Assistant Attor-
ney General; Ken Alex and Sally Magnani Knox, Supervising
Deputy Attorneys General; and Janill L. Richards, Deputy
Attorney General, Oakland, California, for Amicus Curiae
Edmund G. Brown, Jr., Attorney General of the State of Cali-
fornia.
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 concur-
rence 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.
SIERRA FOREST LEGACY v. REY 11035
OPINION
FISHER, Circuit Judge:
This interlocutory appeal concerns three United States For-
est 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 prelimi-
narily enjoin the three projects. USFS developed Empire,
Slapjack and Basin under the “2004 Framework,” an amend-
ment to the forest plans governing California’s Sierra Nevada
region, including Plumas.1 Among other claims, plaintiffs
allege that USFS violated the National Environmental Policy
Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, by failing to con-
sider a reasonable range of alternatives before adopting the
2004 Framework.2 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 characteris-
tics 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 con-
sistent with the 2001 Framework.
In a previously filed opinion in this case, we held for plain-
tiffs, in part because we agreed that USFS failed to consider
1
The parties use “Framework” to refer to USFS’s chosen forest manage-
ment directives that cover, among other forestry issues, the fire and fuels
management directions for the Sierra Nevada Region at issue here.
2
Plaintiffs’ complaint also alleges that the 2004 Framework violates
NEPA in other ways, that the 2004 Framework violates the National For-
est Management Act (“NFMA”), 16 U.S.C. §§ 1600-1614; and that the
Basin project independently violates NFMA and NEPA.
11036 SIERRA FOREST LEGACY v. REY
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 peti-
tions for rehearing en banc. With this opinion, which super-
sedes 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 mer-
its — 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 Win-
ter 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 Leg-
acy 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
SIERRA FOREST LEGACY v. REY 11037
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 Lega-
cy’s other seven claims, the district court found for defen-
dants. See id. at 1353 & n.27. The district court has not yet
decided, however, whether to enter a permanent injunction on
plaintiffs’ successful NEPA claim. See id. at 1353.3 The dis-
trict court’s summary judgment order is not before us, and we
address here only the previously denied preliminary injunc-
tion.
I. Background
Plaintiffs are Sierra Forest Legacy, the Center for Biologi-
cal Diversity, the Natural Resources Defense Council, the
Sierra Club and the Wilderness Society (collectively “Lega-
cy”). Defendants are Under Secretary for Natural Resources
and Environment, Mark Rey and other federal officials, sued
in their official capacities (collectively “federal defendants”).
Several parties intervened as defendants, as denoted in the
3
In an order dated December 19, 2008, the district court stated that it
would not adjudicate final relief until this interlocutory appeal concludes.
See Sierra Nev. Forest Prot. Campaign v. Rey, No. 05-cv-00205 (E.D.
Cal. Dec. 19, 2008) (order directing plaintiffs to “notify the Court once a
decision on the rehearing in Rey has been made”).
11038 SIERRA FOREST LEGACY v. REY
caption and in the footnote (collectively “intervening defen-
dants”).4 On appeal, we also authorized the filing of an amicus
brief from the Attorney General of California, Edmund G.
Brown, Jr., supporting Legacy’s position.
Legacy generally challenges the 2004 Framework’s
approach to “fuels treatments,” the process of preventing
wildfires by thinning forests. Because the 2004 Framework
allows the removal of trees up to 30 inches in diameter, as
compared to 12-20 inches under the 2001 Framework, USFS
estimates that the 2004 Framework will result in a six-fold
increase in the Plumas National Forest’s annual green timber
harvest. Legacy argues that this increased logging as imple-
mented in Empire, Slapjack and Basin will cause irreparable
harm to the habitat of three species: the California spotted
owl, the American marten and the Pacific fisher. According
to the 2004 Framework’s Supplemental Environmental
Impact Statement (“SEIS”), USFS “accepts the risks of tem-
porarily changing some habitat for California spotted owls
and other species,” because it finds that risk justified in order
“to reduce future risk of wildfire to habitat and human com-
munities.” Indeed, a key purpose of the 2004 Framework was
to prevent catastrophic wildfires by making the removal of
fire fuels more cost-effective. USFS forthrightly concedes that
logging larger trees does nothing in itself to prevent forest
4
Intervening defendants are Toulumne County Alliance for Resources
and Environment, California Forest Counties Schools Coalition, Regional
Council of Rural Counties, Western Council of Industrial Workers, Klam-
ath Alliance for Resources and Environment, Coarsegold Resource Con-
servation District, Eastern Madera County Fire Safe Council, Tulare
County Resource Conservation District, Sierra Resource Conservation
District, Strawberry Property Owners’ Association, Huntington Lake
Association, Huntington Lake Big Creek Historical Conservancy, Califor-
nia Equestrian Trials and Lands Coalition, California Forestry Associa-
tion, California Licensed Foresters Association, California/Nevada
Snowmobile Association, American Forest and Paper Association, Ameri-
can Forest Resource Council, Blueribbon Coalition, California Ski Indus-
try Association, California Cattlemen’s Association, Quincy Library
Group and Plumas County.
SIERRA FOREST LEGACY v. REY 11039
fires because larger trees make poor fuel. Rather, the relaxed
logging restrictions in the 2004 Framework serve to “increase
. . . available funds from logging that can be used to increase
fuels reduction work. But the work would be done on other
lands.” 2004 SEIS at 3652. In other words, logging contracts
that give permission to cut larger trees provide revenue that
can be spent on fuels treatments elsewhere. In contrast, USFS
found the 2001 Framework’s approach to fuels treatments
cost-prohibitive because it “effectively preclude[d] most com-
mercial options for removing fuels.” 2004 SEIS at 2999.5
Notably, USFS treated the 2004 Framework as a supple-
ment to the 2001 Framework. Thus, in attempting to satisfy
its responsibility under NEPA to “[r]igorously explore and
objectively evaluate all reasonable alternatives,” USFS did
not consider a new range of alternatives to the 2004 Frame-
work. 40 C.F.R. § 1502.14(a). Instead, USFS chose to com-
pare the 2004 Framework to the 2001 Framework and seven
action alternatives USFS had already rejected when it adopted
the 2001 Framework years earlier. That procedural choice is
important to our analysis of whether USFS complied with
NEPA’s reasonable alternatives requirement.
II. Analysis
“We review the grant or denial of a preliminary injunction
for abuse of discretion.” Am. Trucking Ass’ns, Inc. v. City of
Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Although
5
Beyond the 2004 Framework’s economic goals, USFS maintains that
the revised forest plans also implement the “resource management activi-
ties” required by the Herger-Feinstein Quincy Library Group Forest
Recovery Act (“HFQLG Act”). See Pub. L. No. 105-277, 112 Stat. 2681-
305 (Oct. 21, 1998) (codified as 16 U.S.C. § 2104 note). USFS’s invoca-
tion of the HFQLG Act does not, however, affect our assessment of Lega-
cy’s NEPA claim, because “[a]ll resource management activities required
by [the Act] shall be implemented to the extent consistent with applicable
Federal law . . . .” HFQLG Act § 401(c)(3). Thus, if Legacy is correct that
the 2004 Framework violated NEPA, it violated the HFQLG Act as well.
11040 SIERRA FOREST LEGACY v. REY
our review is deferential, “a district court necessarily abuses
its discretion when it bases its decision on an erroneous legal
standard or on clearly erroneous findings of fact.” Id. (internal
quotation marks omitted). In deciding whether the district
court abused its discretion, “we must follow the Supreme
Court’s recent expatiation on the proper standard for granting
or denying [preliminary injunctions].” Id. (citing Winter, 129
S. Ct. 365).
Under Winter, plaintiffs seeking a preliminary injunction
must establish that (1) they are likely to succeed on the mer-
its; (2) they are likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips
in their favor; and (4) a preliminary injunction is in the public
interest. See Winter, 129 S. Ct. at 374. Legacy argues that the
district court abused its discretion with respect to all four of
these factors.
A. Likelihood of Success on the Merits
[1] Legacy argues that it is likely to succeed on the merits
of all its NFMA and NEPA challenges. One of Legacy’s
NEPA claims alleges that USFS failed to “[r]igorously
explore and objectively evaluate all reasonable alternatives”
to the 2004 Framework, as required by NEPA. 40 C.F.R.
§ 1502.14(a). It is undisputed that USFS relied on its discus-
sion of alternatives in the 2001 Framework’s Final Environ-
mental Impact Statement (“FEIS”) to satisfy this requirement
for the 2004 Framework’s SEIS. The district court determined
that USFS’s reliance on the 2001 FEIS likely complied with
NEPA because the 2004 Framework was merely a supplement
to the 2001 Framework. This finding was based on an errone-
ous legal standard because, “where changed circumstances
affect the factors relevant to the development and evaluation
of alternatives,” USFS “must account for such change in the
alternatives it considers.” Natural Res. Def. Council v. U.S.
Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005) (citation
omitted). The district court was required to hold USFS to this
SIERRA FOREST LEGACY v. REY 11041
legal standard because such changed circumstances plainly
exist here.
[2] First, USFS altered its modeling techniques between the
issuance of the 2001 FEIS and the 2004 SEIS. Unfortunately,
the 2004 SEIS largely relied on fire risk and timber output
figures in the 2001 FEIS, a mistake that was compounded
because one of the alternatives that was considered in 2004
was recalculated under the new techniques, whereas the rest
of the alternatives to which it was compared were not recalcu-
lated. Because USFS failed to account for its changed model-
ing techniques in the alternatives it considered, Legacy has a
strong probability of success on the merits under NEPA.
[3] Second, the 2004 SEIS introduced substantively new
objectives from those contained within the 2001 FEIS. The
2004 SEIS repeatedly stated that its purpose was to “adjust
existing management direction,” 2004 SEIS at 3098 (empha-
sis added), and to broaden the basic strategy “to include other
management objectives such as reducing stand density for for-
est health, restoring and maintaining ecosystem structure and
composition, and restoring ecosystems after severe wildfires
and other large catastrophic disturbance events,” 2004 SEIS
at 2994 (emphasis added). The introduction of these new
objectives plainly constituted a change in circumstance that is
“relevant to the development and evaluation of alternatives”
that USFS “must account for . . . in the alternatives it consid-
ers.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d
at 813.
[4] Because the 2004 SEIS relied on inaccurate data from
the 2001 FEIS, and introduced new objectives without
accounting for those new objectives in the considered alterna-
tives, the district court abused its discretion in finding that
Legacy was unlikely to succeed on the merits of its claim that
11042 SIERRA FOREST LEGACY v. REY
USFS failed to “[r]igorously explore and objectively evaluate
all reasonable alternatives.” 40 C.F.R. § 1502.14(a).6
B. Irreparable Harm, Balancing the Equities and Pub-
lic Interest
Legacy argues that the district court’s assessment of the
non-merits factors — irreparable harm, balancing the equities
and the public interest — relied on errors of law, including a
mistaken assumption that the court lacked the authority to
narrowly enjoin the challenged projects to the extent they are
inconsistent with the 2001 Framework. After Winter, we
agree with Legacy. The district court appears not to have rec-
ognized its power to issue the narrow injunction Legacy
requested. See High Sierra Hikers Ass’n v. Blackwell, 390
F.3d 630, 641 (9th Cir. 2004) (recognizing the district court’s
broad latitude in crafting equitable relief); United States v.
Odessa Union Warehouse Co-op, 833 F.3d 172, 175 (9th Cir.
1987) (“The essence of equity jurisdiction is the power of the
court to fashion a remedy depending upon the necessities of
the particular case.”). Its consideration of the non-merits fac-
tors therefore lacks a comparison of the 2001 and 2004
Frameworks with respect to the harms, equities and public’s
interest associated with each.
[5] When deciding whether to issue a narrowly tailored
injunction, district courts must assess the harms pertaining to
injunctive relief in the context of that narrow injunction. See
Winter, 129 S. Ct. at 376. In Winter, the district court’s origi-
nal preliminary injunction imposed six restrictions on Navy
sonar training exercises off the coast of Southern California
6
At this preliminary juncture, we avoid reaching any merits unnecessary
to our decision and therefore do not address Legacy’s alternative NEPA
and NFMA arguments. See Rucker v. Davis, 237 F.3d 1113, 1118 (9th Cir.
2001), rev’d on other grounds, Dep’t of Hous. & Urban Dev. v. Rucker,
535 U.S. 125 (2002) (noting that appellate courts typically do not reach
the merits of an underlying case on a preliminary injunction appeal).
SIERRA FOREST LEGACY v. REY 11043
to prevent harm to marine life nearby. After obtaining an
exemption from the executive branch, the Navy filed a motion
to vacate the injunction, but challenged only two of the six
restrictions. See Winter, 129 S. Ct. at 376. The Supreme Court
explained that “[t]he District Court did not reconsider the
likelihood of irreparable harm in light of the four restrictions
not challenged by the Navy. This failure is significant in light
of the District Court’s own statement that . . . one of the
unchallenged mitigation restrictions . . . would bar use of
MFA sonar in a significant portion of important marine mam-
mal habitat.” Id. (internal quotation marks omitted). Put more
simply, the district court in Winter took an all-or-nothing
approach to assessing the harms instead of addressing the
options actually on the table — four restrictions versus six
restrictions.
[6] The record reveals a similar error here, touching on
each of the non-merits factors. The district court’s application
of these factors boiled down to a choice between allowing
USFS to move ahead with the 2004 Framework or requiring
USFS to take no action at all with respect to fire prevention.
For example, in balancing the equities, the district court com-
pared the harm from the 2004 Framework to “the irreparable
harm associated with taking no action.” (Emphasis added.)
This approach left unexamined the relative harm from allow-
ing USFS to proceed consistent with the 2001 Framework.
The federal and intervening defendants urge us to affirm the
district court’s discretionary determination that Legacy failed
to show irreparable harm, a balance of equities in its favor or
that the public interest favors an injunction. See Winter, 129
S. Ct. at 376 (refusing to reach the merits because plaintiffs’
failure to meet equitable factors was dispositive). They reason
that, because Winter heightened the necessary harm showing,
if the district court did not abuse its discretion in finding no
possibility of irreparable harm, then Legacy’s injunction nec-
essarily fails under Winter. We cannot properly review the
district court’s discretionary assessment of the non-merits fac-
tors, however, because the court compared the 2004 Frame-
11044 SIERRA FOREST LEGACY v. REY
work only to “taking no action.” We would have to conduct
our own assessment of the non-merits factors associated with
Legacy’s injunction request, which would overstep the
bounds of abuse of discretion review. See Odessa Union, 833
F.2d at 173 (remanding a preliminary injunction appeal so
district court could exercise its discretion under the correct
legal standard); Arcamuzi v. Continental Air Lines, Inc., 819
F.2d 935, 939 (9th Cir. 1987) (same); cf. Apache Survival
Coalition v. United States, 21 F.3d 895, 906-07 (9th Cir.
1994) (noting that when the district court assesses an environ-
mental case under a misapprehension of the law, we often
remand unless the record is already sufficient to decide the
issue on appeal). We therefore “reverse the decision and
remand the case to the district court to exercise its discretion
in light of the correct standard.” Odessa Union, 833 F.2d at
173.
III. Remand
A remand is especially appropriate in this case because of
its current procedural posture. The sole purpose of a prelimi-
nary injunction is to “preserve the status quo ante litem pend-
ing a determination of the action on the merits.” L.A. Mem’l
Coliseum Comm’n v. NFL, 634 F.2d 1197, 1200 (9th Cir.
1980). Here, however, the district court has already decided
the merits. In light of that posture, the district court may
decide to forgo further preliminary proceedings and move for-
ward with permanent relief, if any, thereby mooting the pend-
ing preliminary injunction motion. See Grupo Mexicano de
Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308,
314 (1999). Accordingly, it would be inappropriate to pre-
judge the district court’s permanent injunction decision by our
attempting to weigh the non-merits factors here. See Natural
Res. Def. Council v. U.S. Forest Serv., 421 F.3d at 817 n.29
(“The appropriateness and scope of an injunction ‘raise
intensely factual issues, and for that reason should be decided
in the first instance by the district court.’ ” (quoting Alaska
SIERRA FOREST LEGACY v. REY 11045
Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d
723, 732 (9th Cir. 1995))).7
In sum, we hold that Legacy has shown a likelihood of suc-
cess on the merits of its claim that USFS failed to consider a
range of reasonable alternatives under NEPA. We remand so
the district court can apply the correct legal standard to its
assessment of the other injunction factors, but in so doing,
“[w]e express no opinion as to whether an injunction should
issue in this action.” Arcamuzi, 819 F.2d at 939.
REVERSED AND REMANDED.
NOONAN, Circuit Judge, concurring:
Impaired Impartiality. That judges cannot supplement their
salaries, however inadequate they may be, by imposing fines
provided by law on those convicted of lawbreaking seems to
be a pretty elementary principle of justice. Yet the civilized
state of Ohio and the Supreme Court of that state saw nothing
to object to in the practice until the Supreme Court of the
United States unanimously held it to be a deprivation of due
process for a municipal officer to get $12 out of a $100 fine
that he had legally imposed. Tumey v. Ohio, 273 U.S. 510(1927).
Almost as elementary is the extension of this principle to
administrative adjudicators. See Gibson v. Berryhill, 411 U.S.
564, 579 (1973) (citation omitted).
The bias created need not be personal, that is, the adjudica-
7
Nevertheless, the above analysis is not irrelevant to the district court’s
discretionary decision whether Legacy is entitled to permanent relief. See
Winter, 129 S. Ct. at 381 (explaining that the standards governing prelimi-
nary injunctions are no less applicable to permanent injunctions).
11046 SIERRA FOREST LEGACY v. REY
tor to be found biased need not be paid off by his decision.
The bias can arise from his decision being a way of raising
money for the municipality he serves. Ward v. Vill. of Mon-
roeville, 409 U.S. 57 (1972). Once again, the civilized state
of Ohio and its Supreme Court had to be corrected by the
United States Supreme Court finding a denial of due process
when fines imposed by the mayor were “a substantial portion”
of the municipality’s income, although the mayor’s own sal-
ary was fixed and independent of the fines. Id. at 59. The test,
failed by Ohio’s statutory scheme, was whether “a possible
temptation” was offered the mayor acting as judge “not to
hold the balance nice, clear, and true.” Id. at 60 (quoting
Tumey, 273 U.S. at 532).
It would not seem to require a Euclid to draw appropriate
inferences from the governing principle of impartiality. Yet it
has not been easy. Two justices dissented in Gibson, asserting
that only personal gain disqualified the decider. 411 U.S. at
84 (White, J. and Rehnquist, J., dissenting). Forty years after
Tumey, three states still used the statutory scheme of a judge
supporting himself by his own judgments that was condemned
as unconstitutional in Tumey. See K. Davis, Administrative
Law Text § 12.04 (1972). In many instances the necessity of
having a judge has been allowed to trump the necessity of a
judge who is impartial. Id. at § 12.05. A distinction has also
been drawn between a judicial or quasi-judicial role and a leg-
islative role where impartiality is not a requisite. Id. at
§ 12.04. A financial interest may also be so slight as to be dis-
counted as a disqualifier. Marshall v. Jerrico, Inc., 446 U.S.
238, 245-46 (1980).
Custom or indifference cannot legalize a departure from
what is required by the criterion of impartiality. Necessity
may make an inroad, and it might be argued that the USFS is
necessitous; it says it doesn’t have the money it needs unless
it sells the forests. That argument takes too narrow a view of
the position of the USFS. It has a budget that may be mallea-
ble. It exists within a department that may have discretionary
SIERRA FOREST LEGACY v. REY 11047
funds. It is the arm of a nation whose credit, not inexhaustible,
is strong enough not to require supplementation by sales of
the nation’s timber. Necessity, in a word, has not been estab-
lished.
We do not need, on the facts of this case, more information
on the budget of the Forest Service. It has been suggested in
earlier litigation concerning similar timber sales by the Forest
Service that this information should be furnished. See Earth
Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1178 (9th Cir.
2006) (Noonan, J., concurring); Earth Island Inst. v. U.S. For-
est Serv., 351 F.3d 1291, 1309 (9th Cir. 2003) (Noonan, J.,
concurring). In this case, the Forest Service makes no secret
of the importance of the sales to its approval of the projects.
Fund-raising for fuel-reduction is a substantial purpose.
The Forest Service has a final argument, unfurled as its
lead argument in oral argument. It is that its approval of the
three contested projects denies no person the right to life, lib-
erty or property. Hence due process of law is not required and
nothing but due process requires impartiality. This bold claim
calls for careful consideration.
Undisputed is the standing of Sierra Forest Legacy (Sierra
Forest) to assert the interest of those individual members
affected by the destruction of the environment and its species.
“Aesthetic and environmental well-being, like economic well-
being, are important ingredients of the quality of life in our
society,” important enough to confer standing under the
Administrative Procedure Act, 5 U.S.C. § 702, to redress an
injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734
(1972). These are elements of the liberty enjoyed by a citizen.
An injury in fact inflicted by a decision of the USFS must
necessarily be the denial of a result to which the plaintiffs
were legally entitled. If the plaintiffs were entitled to the
result, were the plaintiffs not entitled to an unbiased decision-
maker? The injury asserted here is alleged to arise under
NEPA. Invoking the federal law, Sierra Forest was entitled to
11048 SIERRA FOREST LEGACY v. REY
seek its application by an agency which was without an inter-
est of its own in a result contrary to the law.
Why is there a case before us if no person’s rights were at
stake? We do not sit to adjudicate general policy disputes but
to decide controversies. A controversy calls for two parties,
each asserting an interest and a right that protects that interest.
So here, Sierra Forest is not a plaintiff without an interest and
a right. We do not need to dismiss the case for want of a con-
troversy. Nor do we need to find that no right is at issue. The
right Sierra Forest seeks to vindicate here did not arise with
the USFS’s decision. The right was what Sierra Forest sought
to vindicate before the USFS.
It is possible that a crucial distinction here may be made
between rulemaking and adjudicating, if it is meaningful to
separate administrative action into these two tight compart-
ments. Rulemaking by an administrative agency, like legisla-
tion by a legislature, seems exempted from scrutiny for
conflict of interest. When the Forest Service develops a forest
plan it is engaged in rulemaking and it needs only to provide
for the kind of notice and comment that rulemaking requires.
See 36 C.F.R. § 219.9. Forest plans “do not grant, withhold,
or modify any contract, permit, or other legal instrument, sub-
ject anyone to civil or criminal liability, or create any legal
rights.” Id. at § 219.3(b). A forest plan in itself “does not give
anyone a legal right to cut trees, nor does it abolish anyone’s
legal authority to object to trees being cut.” Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
Rights enter the picture when the Forest Service moves to
site-specific projects. In this step, the Forest Service imple-
ments the plan in a specific location by selecting a timber sale
area, preparing an environmental assessment in accordance
with NEPA, allowing public comment, and awarding a timber
harvesting contract to the highest bidder. See id. at 729-30;
Sierra Club v. Peterson, 228 F.3d 559, 562 (5th Cir. 2000);
36 C.F.R. § 223.1. Each site-specific project and timber sale
SIERRA FOREST LEGACY v. REY 11049
contract must be consistent with the applicable forest plan. 36
C.F.R. § 219.8(e), § 223.30.
The Forest Service introduces its bias at the stage of mak-
ing the forest plan, while case law prohibits bias only at the
stage of awarding contracts. This delay in the bite of the bias
should not insulate it from judicial review. The financial
incentive of the Forest Service in implementing the forest
plan is as operative, as tangible, and as troublesome as it
would be if instead of an impartial agency decision the agency
was the paid accomplice of the loggers.
That the difference between judicial and legislative func-
tions makes a difference as to the impropriety of monetary
benefit to the decision-makers is a fallacy. The bribery of a
congressman is a crime. See 18 U.S.C. § 201; United States
v. Brewster, 408 U.S. 501 (1972). It would not make a differ-
ence if the bribe came from a trade association on behalf of
a whole industry. See, e.g., United States v. Sun-Diamond
Growers of California, 526 U.S. 398 (1999). In the instant
case the decision-makers are influenced by the monetary
reward to their agency, a reward to be paid by a successful
bidder as part of the agency’s plan.
Against this background of precedent, the Forest Service’s
own regulation requires that the Forest Service “objectively
evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a)
(2000). Can an agency which has announced its strong finan-
cial interest in the outcome proceed objectively? Could an
umpire call balls and strikes objectively if he were paid for
the strikes he called?