Earth Island Institute v. United States Forest Service

Earth Island Institute and the Center for Biological Diversity appeal the district court denial of their request for a preliminary injunction against implementation of a United States Forest Service restoration project involving two timber sales in the Sierra Nevada mountains. We reverse and remand.

I

In late August 2001, a large wildfire began in the Sierra Nevada mountains and quickly swept through two adjacent national forests as well as some private lands. By the time it was extinguished in September, the “Star Fire” had consumed thousands of acres in both the Eldorado National Forest and the Tahoe National Forest. Over the course of the next year, Forest Service personnel responsible for each forest developed and implemented management plans responding to the blaze. This appeal focuses on the Star Fire Restoration Project, which covered the Eldorado forest.

In the immediate aftermath of the fire, the Forest Service prepared an initial Burned Area Emergency Rehabilitation (BAER) report, which estimated that some 11% of the burned area in the Eldorado forest had experienced high fire intensity, 57% moderate intensity, and 32% low intensity. Subsequently, a more intensive…

concurring:

I concur in Judge Thomas’s opinion. I write separately to state my belief that the Forest Service, because of its financial interest in the sale, may be disqualified from approving the sale of timber from the Eldorado Forest. The “general rule” has been long established: “officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided.” Tumey v. Ohio, 273 U.S. 510, 521 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927). In deciding whether or not a sale should be made, the Forest Service determines the legal rights of a private corporation and the legal rights of those seeking to enforce the statutes protecting the environment. The Forest Supervisor and the Regional Forester making this determination are not judges in a black gown sitting on a bench, but as surely as such traditional figures they are applying law to resolve a legal controversy. Their function can be called judicial or quasi-judicial or even administrative without changing the relevant analysis because “[i]t has also come to be the prevailing view that ‘[m]ost of the law concerning disqualification because of interest applies with equal force to ...…

dissenting:

My disagreements with the majority opinion are limited, but they serve to push my position over the line to a respectfully dissenting one. I would affirm.

1. The Preliminary Injunction Standard

The majority concludes that the district court applied an improper legal standard. The district court’s order properly set forth both sets of criteria for preliminary injunctive relief recognized by our court, the “traditional” test and the “alternative” standard, citing to our decisions:

The concern identified by the majority is with the court’s articulation of one element of the test, the “possibility of irreparable injury.” What the district court said about that element in applying the “traditional” test was:

In applying the “alternative” test, the district court stated: “As discussed above, Plaintiffs have shown neither probable success on the merits or the possibility of any concrete irreparable injury.”

The majority concludes that the district court thus placed a higher burden of proof on Plaintiffs than is warranted. Though reluctant to invite a debate over semantics, I do not believe that was the case. Rather, I understand the language used by the district court…