Earth Island Institute v. United States Forest Service

Plaintiffs Earth Island Institute and the Center for Biological Diversity (collectively, “Earth Island”) appeal the district court’s denial of their motion for a preliminary injunction enjoining the implementation of two United States Forest Service (“USFS”) post-fire restoration projects in the El Dorado National Forest. Sierra Pacific Industries (“SPI”) has joined defendants USFS, Dale Bosworth, and John Berry as an intervenor.

Earth Island contends that the Final Environmental Impact Statements (“FEISs”) for both projects fail to meet the requirements set forth in the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., because the USFS used faulty scientific methodology in developing its tree mortality guidelines, and because the FEISs failed to consider adequately the adverse impacts of the projects on the California spotted owl. Earth Island also contends that the FEISs fail to comply with the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., because the USFS did not compile *1153 sufficient population data for certain bird Management Indicator Species (“MIS”).

The district court denied Earth Island’s request, finding (1) that the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARTH ISLAND INSTITUTE, a  California non-profit organization;

CENTER FOR BIOLOGICAL DIVERSITY,

a non-profit organization, Plaintiffs-Appellants, v. No. 05-16776

UNITED STATES FOREST SERVICE;

DALE BOSWORTH, Chief of the  D.C. No.

CV-05-01608-MCE

United States Forest Service; JOHN BERRY, Forest Supervisor for El OPINION Dorado National Forest, Defendants-Appellees,

SIERRA PACIFIC INDUSTRIES,

Defendant-intervenor- Appellee.  Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted January 9, 2006—San Francisco, California

Filed March 24, 2006

Before: John T. Noonan, A. Wallace Tashima, and William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher; Concurrence by Judge Noonan

3191 3196 EARTH ISLAND INSTITUTE v. USFS

COUNSEL

Rachel Marie Fazio, John Muir Project, Cedar Ridge, Califor- nia, for the appellants.

Ronald M. Spritzer and Jeffrey S. Dillen, United States Department of Justice, Washington,…

concurring:

There is no doubt that the district court articulated the wrong standard as to the possibility of harm that the plaintiffs must show. Earth Island v. United States Forest Service, 351 F.3d 1291 , 1298 (9th Cir.2003) (Earth Island I). There is also no doubt in my mind that the financial interest of the Forest Service requires further investigation and evaluation. See id. at 1309 (Noonan, J., concurring). That the parties have not pursued this problem does not give the Forest Service a pass. If it is indeed a biased adjudicator, its determination is a nullity. Tumey v. Ohio, 273 U.S. 510, 522 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927).

It is not too difficult for a court of appeals to discern the correct legal standard for an injunction and to see the problem created by a financial interest on the part of the adjudicator. It is more difficult for this court to master the massive record in an environmental case and to be confident in its discrimination between expert opinions. Recognizing the mastery of the available data that distinguishes the majority opinion, I cannot say that I am sure as to Earth Island’s probable success. I would remand to the district judge (1) to…