The Lands Council v. Martin , 479 F.3d 636 ( 2007 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    THE LANDS COUNCIL; OREGON               
    NATURAL RESOURCES COUNCIL;
    HELLS CANYON PRESERVATION
    COUNCIL, an Oregon nonprofit
    corporation; SIERRA CLUB, a
    California corporation,
    Plaintiffs-Appellants,
    v.
    KEVIN MARTIN, Forest Supervisor
    of the Umatilla National Forest,              No. 06-35781
    U.S. Forest Service; UNITED
    STATES FOREST SERVICE,                         D.C. No.
    CV-06-00229-LRS
    Defendants-Appellees,             OPINION
    and
    AMERICAN FOREST RESOURCE
    COUNCIL, an Oregon corporation;
    BOISE BUILDING SOLUTIONS
    MANUFACTURING L.L.C., a
    Washington limited liability
    company; DODGE LOGGING, INC., an
    Oregon corporation,
    Defendants-Intervenors-Appellees.
    
    Appeal from the United States District Court
    for the Eastern District of Washington
    Lonny R. Suko, District Judge, Presiding
    Argued and Submitted
    February 5, 2007—Seattle, Washington
    Filed February 12, 2007
    1939
    1940             LANDS COUNCIL v. MARTIN
    Before: Susan P. Graber, Richard A. Paez, and
    Carlos T. Bea, Circuit Judges.
    Opinion by Judge Graber
    1942              LANDS COUNCIL v. MARTIN
    COUNSEL
    Ralph O. Bloemers, Cascade Resources Advocacy Group,
    Portland, Oregon; Karen Lindholdt, University Legal Assis-
    tance, Spokane, Washington, for the plaintiffs-appellants.
    David C. Shilton, U.S. Department of Justice, Environment
    and Natural Resources Division, Washington, D.C., for the
    defendants-appellees.
    Scott W. Horngren, Haglund Kelley Horngren Jones & Wil-
    der, LLP, Portland, Oregon, for the defendants-intervenors-
    appellees.
    OPINION
    GRABER, Circuit Judge:
    Plaintiffs The Lands Council, Oregon Natural Resources
    Council, Hells Canyon Preservation Council, and Sierra Club,
    which are environmental organizations, appeal the district
    LANDS COUNCIL v. MARTIN                        1943
    court’s denial of a preliminary injunction to halt the imple-
    mentation of several United States Forest Service post-fire
    logging sales in the Umatilla National Forest. American For-
    est Resource Council, Boise Building Solutions Manufactur-
    ing, L.L.C., and Dodge Logging, Inc., which are a forestry
    advocacy organization and logging companies, join Defen-
    dants (the Forest Service and the Forest Supervisor of the
    Umatilla National Forest) as intervenors. We hold that the dis-
    trict court did not abuse its discretion in denying a preliminary
    injunction on Plaintiffs’ claims under the National Environ-
    mental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370, but
    that the district court did abuse its discretion, by applying an
    erroneous legal standard, in denying a preliminary injunction
    on Plaintiffs’ claims under the National Forest Management
    Act (“NFMA”), 16 U.S.C. §§ 1600-1614.
    FACTUAL AND PROCEDURAL HISTORY
    In August 2005, a forest fire named the “School Fire”
    burned approximately 51,000 acres in southeastern Washing-
    ton, including 28,000 acres of the Umatilla National Forest.
    Soon thereafter, the Forest Service began preparations for the
    School Fire Salvage Recovery Project to harvest dead and
    dying trees located within the burned areas of National Forest
    lands.1 After two rounds of public comments, the Forest Ser-
    vice released the Final Environmental Impact Statement
    (“EIS” or “School Fire EIS”) on July 10, 2006, and issued a
    Record of Decision on August 14, 2006.
    The School Fire EIS considered three alternatives: Alterna-
    tive A contemplated no action; Alternative B permitted sal-
    vage logging on 9,423 acres; and Alternative C permitted
    salvage logging on 4,188 acres. The Forest Service chose
    Alternative B, which includes logging on portions of two
    1
    The project also includes construction of temporary roads and harvest-
    ing of “danger trees.” Danger trees are trees that present a risk to public
    safety, such as trees that are likely to fall on a road or building.
    1944                  LANDS COUNCIL v. MARTIN
    uninventoried roadless areas, known informally as West
    Tucannon and Upper Cummins Creek, each of which contains
    between 1,000 and 5,000 acres.
    Because trees that are damaged or destroyed by fire depre-
    ciate in value quickly, the Forest Service Chief issued an
    Emergency Situation Determination pursuant to 36 C.F.R.
    § 215.10. That Determination authorized immediate logging
    in three designated areas, premised on the prediction that “a
    delay would result in a potential loss of value of $1,547,000
    to the Federal Government.” The three sales—the Milly, Oli,
    and Sun Salvage Timber Sales—are located in the most
    severely burned areas of the forest. Together they comprise
    3,674 acres, or slightly more than one-third of the total acre-
    age scheduled for salvage logging under the EIS.
    On August 15, 2006, one day after the issuance of the
    Record of Decision, Plaintiffs filed suit, alleging violations of
    NEPA and NFMA. The following day, Plaintiffs filed a
    motion for a temporary restraining order and preliminary
    injunction concerning the Milly, Oli, and Sun Sales. After
    briefing and oral argument, the district court denied Plaintiffs’
    motion. They immediately appealed to this court, arguing that
    the district court abused its discretion in denying a prelimi-
    nary injunction.2
    STANDARDS OF REVIEW
    A preliminary injunction is appropriate when a plaintiff
    demonstrates “either: (1) a likelihood of success on the merits
    and the possibility of irreparable injury; or (2) that serious
    2
    Plaintiffs also had filed an emergency motion before this court under
    Ninth Circuit Rule 27-3, seeking an injunction pending appeal. A divided
    panel denied that motion in an unpublished order on September 18, 2006.
    Although logging in the sales areas has now commenced, the parties agree
    that logging will not be completed until the summer of 2007. This case is
    therefore not moot.
    LANDS COUNCIL v. MARTIN                  1945
    questions going to the merits were raised and the balance of
    hardships tips sharply in [the plaintiff’s] favor.” Clear Chan-
    nel Outdoor Inc. v. City of Los Angeles, 
    340 F.3d 810
    , 813
    (9th Cir. 2003) (internal quotation marks omitted). These two
    options represent extremes on a single continuum: “the less
    certain the district court is of the likelihood of success on the
    merits, the more plaintiffs must convince the district court that
    the public interest and balance of hardships tip in their favor.”
    Sw. Voter Registration Educ. Project v. Shelley, 
    344 F.3d 914
    ,
    918 (9th Cir. 2003) (en banc) (per curiam). Alternatively, we
    have stated the general test as requiring a plaintiff to establish
    “(1) a strong likelihood of success on the merits, (2) the possi-
    bility of irreparable injury to plaintiff if preliminary relief is
    not granted, (3) a balance of hardships favoring the plaintiff,
    and (4) advancement of the public interest (in certain cases).”
    Johnson v. Cal. State Bd. of Accountancy, 
    72 F.3d 1427
    , 1430
    (9th Cir. 1995) (internal quotation marks omitted).
    We review for abuse of discretion a district court’s decision
    to grant or deny a preliminary injunction. Sw. 
    Voter, 344 F.3d at 918
    . This review is “limited and deferential,” and “[w]e do
    not review the underlying merits of the case.” 
    Id. (internal quotation
    marks omitted). But the district court “necessarily
    abuses its discretion when it bases its decision on an errone-
    ous legal standard or on clearly erroneous findings of fact.”
    Playmakers LLC v. ESPN, Inc., 
    376 F.3d 894
    , 896 (9th Cir.
    2004) (internal quotation marks omitted).
    DISCUSSION
    A.   NEPA Claims
    Plaintiffs contend that the district court abused its discre-
    tion by holding that the Forest Service adequately analyzed
    and disclosed the effects of logging in the West Tucannon and
    Upper Cummins Creek roadless areas. According to Plain-
    tiffs, NEPA requires the Forest Service to analyze the effects
    of significant logging on the roadless character of large road-
    1946                LANDS COUNCIL v. MARTIN
    less areas, but the Forest Service failed to do so with respect
    to the West Tucannon and Upper Cummins Creek roadless
    areas, each of which encompasses more than 1,000 acres.
    Although Plaintiffs may ultimately succeed on the merits, we
    hold that the district court did not abuse its discretion in deny-
    ing Plaintiffs’ motion for injunctive relief. We therefore
    affirm the district court’s denial of a preliminary injunction on
    this ground.
    Plaintiffs acknowledge, as they must, that both the West
    Tucannon and Upper Cummins Creek roadless areas are unin-
    ventoried and that each area contains less than 5,000 acres.
    Plaintiffs also concede that the EIS prepared by the Forest
    Service extensively analyzes the effects of logging generally,
    includes maps disclosing the locations of the proposed log-
    ging, and mentions that logging will occur in roadless areas.
    Plaintiffs point out, however, that the EIS does not specifi-
    cally name the West Tucannon and Upper Cummins Creek
    roadless areas, does not describe the precise extent of logging
    in roadless areas, and does not analyze the effect of logging
    on the roadless character of these areas.
    [1] Roadless areas have been the subject of federal legisla-
    tion at least since the passage of the Wilderness Act of 1964
    (“Wilderness Act”), 16 U.S.C. §§ 1131-1136. In the 1970s,
    two massive inventorying projects—“Roadless Area Review
    and Evaluation” (“RARE I” and “RARE II”)—were
    undertaken to catalogue roadless areas for possible inclusion
    as wilderness areas under the Wilderness Act. Designation as
    an “inventoried” roadless area can be a first step to designa-
    tion as a wilderness area. See generally Nat’l Audubon Soc’y
    v. U.S. Forest Serv., 
    46 F.3d 1437
    , 1439-40 (9th Cir. 1994)
    (describing the history of inventoried roadless areas).
    Although no additional large-scale inventorying projects have
    been undertaken since RARE I and RARE II, roadless areas
    that meet certain criteria continue to be designated as wilder-
    ness areas. One relevant criterion for designation of a wilder-
    ness area is the size of the pristine area: consideration is
    LANDS COUNCIL v. MARTIN                  1947
    appropriate if the area “has at least five thousand acres of land
    or is of sufficient size as to make practicable its preservation
    and use in an unimpaired condition.” 16 U.S.C. § 1131(c).
    [2] Consistent with that historical background, we have
    held that NEPA may require some consideration of the effects
    of logging on the roadless character of roadless areas in cases
    involving inventoried roadless areas, Nat’l 
    Audubon, 46 F.3d at 1448
    , and uninventoried roadless areas that contain more
    than 5,000 acres, Smith v. U.S. Forest Serv., 
    33 F.3d 1072
    ,
    1079 (9th Cir. 1994). We also have recognized that “the deci-
    sion to harvest timber on a previously undeveloped tract of
    land is an irreversible and irretrievable decision which could
    have serious environmental consequences.” Nat’l 
    Audubon, 46 F.3d at 1448
    (internal quotation marks omitted); see also
    
    Smith, 33 F.3d at 1079
    (stating that “the decision to harvest
    timber in a 5,000 acre roadless area is environmentally signif-
    icant”). In Smith, we held that NEPA requires the Forest Ser-
    vice, “at the very least, to acknowledge the existence of the
    5,000 acre roadless 
    area.” 33 F.3d at 1079
    . Plaintiffs ask us
    to extend these holdings to uninventoried roadless areas smal-
    ler than 5,000 acres.
    [3] It is true that significant logging of a roadless area
    “could have serious environmental consequences,” Nat’l
    
    Audubon, 46 F.3d at 1448
    , even if the roadless area is neither
    inventoried nor greater than 5,000 acres. The Wilderness Act
    does not require an absolute minimum of 5,000 acres; it also
    allows for designation where the area “is of sufficient size as
    to make practicable its preservation and use in an unimpaired
    condition.” 16 U.S.C. § 1131(c). The district court must care-
    fully assess the qualities of the roadless areas in question and
    the extent of analysis in the EIS to determine whether the
    requirements of NEPA have been satisfied. On appeal from
    the denial of a preliminary injunction, however, we do not
    find a clear legal error by the district court.
    1948                   LANDS COUNCIL v. MARTIN
    Furthermore, in contrast to this case, where the Forest Ser-
    vice has already prepared an EIS, in Smith and National
    Audubon the Forest Service had not prepared an EIS and was
    relying on environmental assessments. We held that logging
    in a roadless area—even an inventoried roadless area or a
    roadless area greater than 5,000 acres—does not categorically
    require an EIS. See 
    Smith, 33 F.3d at 1079
    (stating that our
    remand in Nat’l Audubon was an implicit rejection of a per
    se rule, and remanding for determination by the district court);
    Nat’l 
    Audubon, 46 F.3d at 1448
    (remanding to the district
    court).3
    [4] In conclusion, Plaintiffs have failed to establish an
    abuse of discretion requiring reversal of the district court’s
    denial of a preliminary injunction relating to Plaintiffs’ NEPA
    claims.4
    B.     NFMA Claim
    [5] Plaintiffs’ NFMA claim requires us to decide whether
    the term “live trees” in the applicable Forest Plan includes all
    trees that are not dead. We hold that it does and, therefore,
    reverse the district court’s denial of a preliminary injunction
    on this ground.
    Amendment 2 of the applicable Forest Plan includes a
    series of provisions called the “Eastside Screens,”5 which are
    3
    The opinion in Smith cited National Audubon Society v. United States
    Forest Service, 
    4 F.3d 832
    (9th Cir. 1993). Several months after Smith was
    published, the opinion in National Audubon was amended to correct an
    unintended typographical error.
    4
    Plaintiffs make several other arguments alleging violations of NEPA
    on the merits, but they fail to establish an abuse of discretion by the dis-
    trict court. Plaintiffs’ arguments on the merits are not properly before us
    on review of a denial of a preliminary injunction. Sw. 
    Voter, 344 F.3d at 918
    .
    5
    The “Eastside Screens” were originally set forth in the Forest Service’s
    “Environmental Assessment for the Continuation of Interim Management
    Direction Establishing Riparian, Ecosystem, and Wildlife Standards for
    Timber Sales,” Appendix B, June 1995. They have since been appended
    to several forest plans, including the Forest Plan that is relevant here.
    LANDS COUNCIL v. MARTIN                        1949
    intended to protect old-growth forests. The relevant provision
    of the Eastside Screens states that no old-growth “live trees”
    of sufficient size may be harvested:
    2) Outside of LOS [late and old structural stages],
    many types of timber sale activities are allowed. The
    intent is still to maintain and/or enhance LOS com-
    ponents in stands subject to timber harvest as much
    as possible, by adhering to the following standards:
    a) Maintain all remnant late and old seral and/or
    structural live trees ≥ 21” dbh [diameter at breast
    height] that currently existwithin stands proposed for
    harvest activities.
    Eastside Screens (emphasis added).6
    [6] “It is well-settled that the Forest Service’s failure to
    comply with the provisions of a Forest Plan is a violation of
    NFMA.” Native Ecosystems Council v. U.S. Forest Serv., 
    418 F.3d 953
    , 961 (9th Cir. 2005). The Forest Service does not
    dispute that it is required to comply with the Eastside Screens.
    Instead, the Forest Service argues that the Eastside Screens do
    not prohibit logging of mortally injured, “dying” trees.7
    The School Fire EIS chose the Scott Mortality Guidelines
    as the method of marking trees for harvest. The Scott Mortal-
    ity Guidelines are a scientific method of predicting whether
    an injured tree is likely to survive beyond a given amount of
    time, in this case, one year. Using the Scott Mortality Guide-
    lines to select trees for harvest results in the marking of both
    6
    The parties agree that this provision does not apply to the harvesting
    of danger trees, which are defined in footnote 1, above.
    7
    The Forest Service also argues that the number of trees marked for har-
    vest that could be considered “live” is insignificant. This argument is
    beside the point: The Eastside Screens categorically prohibit the harvest-
    ing of “live trees.”
    1950                   LANDS COUNCIL v. MARTIN
    dead trees and dying trees, that is, trees that are likely to die
    in the relatively near future but that have not yet died. Relying
    on the deposition of the Forest Service’s own expert, the dis-
    trict court found that some trees that have not yet died have
    been marked for harvest in the sales areas. The parties do not
    challenge that finding. Accordingly, we must determine
    whether the Eastside Screens prohibit logging of dying trees.
    [7] We apply the common meaning of the term “live trees”
    because neither the NFMA nor the applicable Forest Plan
    defines the term. See Hells Canyon Alliance v. U.S. Forest
    Serv., 
    227 F.3d 1170
    , 1177 (9th Cir. 2000) (applying the
    “common meaning” of terms not defined in the statute). The
    common understanding of the term “live” is, quite simply,
    “not dead.” See, e.g., Merriam Webster’s Collegiate Dictio-
    nary 29, 681 (10th ed. 1993) (defining “live” as “to be alive”
    and “alive” as “not dead”). Accordingly, the common mean-
    ing of the term “all . . . live trees” is all trees that have not
    yet died.
    [8] A contextual clue in the Eastside Screens suggests that
    this common meaning was intended. The provision protects
    from harvest “all [old-growth] live trees [of a specified mini-
    mum size] that currently exist.” Eastside Screens (emphasis
    added). The phrase “that currently exist” suggests that even
    trees that are expected to die within a year, but that are not
    dead, are still “live” because they “currently exist.”8 Applying
    8
    The Forest Service argues that the phrase “currently exist” was
    intended instead to make clear that it is permissible to log trees that are
    not yet, but would otherwise become, sufficiently large to be covered by
    this provision, that is, greater than or equal to 21″ diameter at breast
    height. But the phrase “that currently exist” modifies “trees”; for the For-
    est Service’s meaning, the provision would say, more properly, “all trees
    that currently are ≥ 21” dbh.” Moreover, the Forest Service’s goal is
    achieved even without the phrase “that currently exist”: “Maintain all . . .
    live trees ≥ 21″ dbh . . . within stands proposed for harvest activities.”
    Eastside Screens. Under the Forest Service’s reading, the phrase “that cur-
    rently exist” would be superfluous, so we reject that interpretation. See
    TRW Inc. v. Andrews, 
    534 U.S. 19
    , 31 (2001) (“It is a cardinal principle
    of statutory construction that a statute ought, upon the whole, to be so con-
    strued that, if it can be prevented, no clause, sentence, or word shall be
    superfluous, void, or insignificant.” (internal quotation marks omitted)).
    LANDS COUNCIL v. MARTIN                  1951
    this definition, “live trees” will be harvested, which is
    expressly prohibited by the Eastside Screens.
    The Forest Service tries to escape this simple formulation
    by arguing that the term “live trees” is a technical term under-
    stood by foresters to exclude dying trees and that we must
    defer to its technical expertise. We need not decide whether,
    in theory, we must employ a technical definition in a Forest
    Plan because there is no evidence in this record that the Forest
    Service adopted a technical meaning. Not only are the NFMA
    and the Forest Plan silent on the definition of “live trees,” but
    neither the Forest Service nor Intervenors have cited any
    authoritative definition of the term “live trees.” The Forest
    Service introduced evidence of a practice of harvesting dying
    trees, but that does not establish a technical definition of the
    term “live trees.” Foresters very well may consider dying
    trees suitable for logging, but on this record we cannot con-
    clude that they consider dying trees not “live.” Indeed, the
    Forest Service’s own expert testified that some “live trees”
    had been designated for removal; in so testifying, he was
    applying the common meaning of “live trees” to include trees
    that were not dead but that, in his opinion, had a low likeli-
    hood of long-term survival. The Forest Service is free, of
    course, to amend the Eastside Screens to allow logging of old-
    growth dying trees, either by adding a definition of the term
    “live trees” or by changing the requirement to maintain all
    live trees of a certain size. Unless and until it does so, there
    is no basis to adopt its proposed definition.
    [9] In summary, the district court made a clear error of law,
    and Plaintiffs have established a very strong likelihood of suc-
    cess on the merits of their NFMA claim. Additionally, the
    resulting injury—logging of old-growth trees—is a permanent
    environmental injury. See Amoco Prod. Co. v. Vill. of Gam-
    bell, 
    480 U.S. 531
    , 545 (1987) (“Environmental injury, by its
    nature, can seldom be adequately remedied by money dam-
    ages and is often permanent or at least of long duration, i.e.,
    irreparable. If such injury is sufficiently likely, therefore, the
    1952                LANDS COUNCIL v. MARTIN
    balance of harms will usually favor the issuance of an injunc-
    tion to protect the environment.”). We therefore reverse the
    district court’s denial of a preliminary injunction on the
    NFMA claim and remand with instructions to grant immedi-
    ately a preliminary injunction to prohibit the logging of any
    “live tree” 21″ diameter at breast height that currently exists
    in the sales areas—i.e., any tree of the requisite size that is not
    yet dead. In accord with the “conservative definition” of a
    “live tree” given by the Forest Service’s own expert, no tree
    of the requisite size with green needles shall be harvested.
    AFFIRMED IN PART, REVERSED IN PART, AND
    REMANDED WITH INSTRUCTIONS. Costs on appeal are
    awarded to Plaintiffs. The mandate shall issue forthwith.