Opposition Brief — United States Forest Service v. Earth Island Institute, 127 S. Ct. 1829 (2007) (No. 06-797)

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/~Sipreme Coun, U.S. |

(4) FEB 9 - 2007

OFFICE OF THE CLERK

No. 06-797

in Une

Supreme Court of the Gnited States

UNITED STATES FOREST SERVICE, ET AL.,

Petitioners,

Vv.

EARTH ISLAND INSTITUTE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ScoTT L. NELSON RACHEL M. FAZIO

PUBLIC CITIZEN Counsel of Record

LITIGATION GROUP P.O. Box 697

1600 20th Street, N.W. CEDAR RIDGE, CA 95924

Washington, D.C. 20009 (530) 273-9290

(202) 588-1000

MARC D. FINK

MATT KENNA

Attorneys for Respondents Earth Island Institute

and Center for Biological Diversity

February 2007

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Should this Court further review the Ninth Circuit’s

issuance of a preliminary injunction, when that court prop-

erly relied on the administrative record to determine Respon-

dent’s probable success on the merits, and appropriately used

extra-record declarations (which had been admitted in evi-

dence in the discretion of the district court) only to assist in

determining whether Petitioners (Forest Service) considered

all relevant factors in their NEPA analysis—a use permitted

under legal principles widely accepted by the circuits?

2. Should this Court review the Ninth Circuit’s holding

that “possibility of irreparable harm” is the correct standard

for the “irreparable harm” prong of the well-established four-

part test for granting a preliminary injunction, when that

standard is used by ail/ the other circuits and does not mean

“speculative” harm but rather something less than certainty

of harm?

—

3. Should this Court review the Ninth Circuit’s holding

that, on the unique confluence of facts of this particular case,

the balance of hardships and public interest supported issu-

ance of a preliminary injunction, when the competing inter-

ests were properly taken into consideration pursuant to the

court’s equity jurisdiction, when the supposed public interest

benefits claimed by Petitioners, except the absolute maximi-

zation of profit, would not be foreclosed by issuance of the

injunction, and when the district court’s balancing of the eq-

uities was tainted by its abuses of discretion with regard to

the standard for issuance of a preliminary injunction and the

merits of Respondent’s claims?

PARTIES TO THE PROCEEDINGS

Respondent Earth Island Institute concurs in the state-

ment of the Parties to the Proceedings in the Petition.

RULE 29.6 STATEMENT

Respondents’ Earth Island Institute and Center for Bio-

logical Diversity have no parent companies, subsidiaries, or

affiliates that have issued shares to the public in the United

States or abroad.

ill

TABLE OF CONTENTS

SUD FI acisnsiccisscntssssicsceisnrecaecniendibeenianchipmedeteaaaiicacs i

Pees 0b Gis FI oeicikisceceverinieaionte li

IO Fe BN vaicnisssncininsinintditeticincemmmnidieminniadaaal ii

Fe Oe CE reer senssivisvinvinnnntintnciatanoaianaenns Ill

FE OE RN veeisssvicsistsntesaieniseiiinnidesiaeaeadaableguebdiaien iv

Summary of Reasons to Deny the Petition ..............:-sssseseee l

SNE OE TI Ci csecsscesisctssseinesbcnacnaesceciasiasintas daccaibiiainonations 2

Rompons Tor Demyitts Tie With... <sicccsccesocesciscseccsnissavetvecnanvents 5

I. The Ninth Circuit Did Not Err in Considering

Declarations Provided by Respondent.. .............::scesseeeee 5

II. The Ninth Circuit Correctly Identified and Applied

the Irreparable Harm Standard.................c.eccsccsesresersereees 12

A. The Ninth Circuit Has Consistently Used a

Possibility of Harm Standard and Correctly

PR DS Wa TE CI ssiiceeswerincnstinsaseiianisdiapitsiciiranie 12

B. The Ninth Circuit’s Irreparable Harm Standard

Does Not Conflict with This Court’s Decisions ....... 17

C. There Is No Split Among the Circuits Regarding

the Threshold Necessary to _ Establish

IE TRIG. scincrvicsntitiurrtacsidiciemsndadieiaiianinniieins 20

Iif. The Ninth Circuit Properly Balanced the Harms and

Adequately Analyzed the Public Interest........0...0.....00 26

CN i le ee 30

TABLE OF AUTHORITIES

Cases:

ACLU v. Janet Reno, 31 F. Supp. 2d 473 (E.D. Pa.

SN IPUNID acisiltciiksacececcceaipiaiddciatdaiideasdiaiebilahjatiaaaeaeladaaeuiasildionsadenads 18

AlliedSignal, Inc. v. B.F. Goodrich Co., 183 F.3d 568

SNS WU cctsdiibiieahnidicttcosaapsicsineidapsdiicedbctncbeesiinenunléoiuitinie 25

America Passage Media Corp. v. Cass

Communications, 750 F.2d 1470 (9th Cir. 1984)........... 14

America Coke & Coal Chems. Inst. v. EPA, 452 F.3d

TI, IN I a icaliteaiiccicheihciconshapesinleibtsindesvoici 10

American Mining Cong. v. Thomas, 772 F.2d 617 —

AL. SRE Soe aemes kane ear een Ot eid aeRO IE 7

Amoco Production Co., v. Village of Gambell,

SE PE RG CET Rscdcesiissnccsssiccsinnsbvedeccinces 14, 19, 20, 26

Animal Defense Council v. Hodel, 840 F.2d 1432 (9th

ane seccsttincdsceicicladsaisncheatiancabininsnipiabadiauesnoasbicdiladenesaeied 6

Asarco, Inc. v. United States Environmental

Protection Agency, 616 F.2d 1153 (9th Cir. 1980)........... 6

Ashcroft v. ACLU, 542 U.S. 656 (2004) ...cecssscssssessersesesseseee 18

Associated General Contractors of California v.

Coalition for Economic Equity, 950 F.2d 1401,

I aN: TE Pi dcesiccicnl Riahsccipiiinpiacliiehctlidadirlibilsicoserbisaiomichod 13

AT&T Information Systems v. General Services

Admin., 810 F.2d 1233 (D.C. Cir. 1987)......ccceccccsosesseeseees 6

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

SPP iaienihscNitsc csi tice esis isesicaliel ideale bastioicniaetliesiek 18

Benda v. Grand Lodge of International Association of

Machinists, 584 F.2d 308 (9th Cir. 1978)............000 12, 13

Big Country Foods, Inc. v. Board of Education, 368

FR Pe CAs BOD ciccicenccanenineadbiichioneniaisisnininbemasies 13

Blackwelder Furniture Co. v. Seilig Mfg. Co., 550

Pe ee ils SE TD acctisstasiteissmnsianinciiseinincasasnaliierciassshoenins 23

Borey v. National Union Fire Ins. Co., 934 F.2d 30

Se ae PM hschiaien icendepic sie rlcisaicscedaicasttisihcdsiabaliniubescaaise 21

Cases Continued:

Brown, Secretary of State of California v Chote,

OO ae ee GF bic evnutntihinrsnsovnintveinasabiinnasunnsianunens 17, 18

Camp v. Pitts, 411 U.S. 138 F.2d 30 (1973)... ceesscsseeeeeees 5

Carey v. Klutznick, 637 F.2d 834 (2d Cir. 1980)............. RE

Caribbean Marine Services Co., Inc. v. Baldrige,

PE Fe CO OE, FED ihiiknicihicrctrcipearescaemarsantoions 15

Coliseum Square Assn., Inc. v. Jackson,

OE FF ee Ce Ges Be sirsenicitcciniocasitnciernatesavinntitons 7

Continental Oil Co. v. Frontier Refining Co., 338

F.2d 780 (10th Cir. 1964) ............-c00e0es siasanvaniuiaeenieabion 25

County of Suffolk v. Secretary of the Interior, 562

ae SC ls FUT EE eteivinscivebeisssnsedaisadanicesnnedubiabeoictn 6

Custer County Action Assn. v. Garvey, 256 F.3d 1024

tL & Ao) ) Sener Liciieletishin Sutadenasatgiielooueuuntonions 7

Danielson v. Local 275, Laborers Intl Union of North

America, 479 F.2d 1033 (2d Cir. 1973)... eeeeeeeeeeeees 21

Dataphase Systems, Inc. v. C.L. Systems, Inc., 640

Fee Be Gs SHED iiiisiticrssnstcctnsnserccrtbomsccnecomeeah 24

Davis Mountains Trans-Pecos Heritage Assn. v.

Federal Aviation, 116 Fed. Appx. 3 (5th Cir.

PTD sine tcscicedcenadiaddaiintbantiadslbibaeisedguiimnedmananuaeimaimiait 7

Dept. of Transportation v. Public Citizen,

SEs: FH AP iitctivicsisniensipseidiidaliae 8

Doran v. Salem Inn, Inc.,

A Es IE CP Fa Rihcicahicccdesn tanvasetaeildaoccpagcatiniditees 14,17, 18

Earth Island Institute v. United States Forest

Service, 351 F.36 1291 (Ot Cir. 2005).....cccevereoseseseresasenanes a

e-Bay, Inc. v. MercExchange, L.L.C.,

Ce Te SE: SF Ce rssieaieescacsicncatanisiucressnsetinnl 16, 19, 20

Ellett Bros. In. v. U.S. Fidelity & Guar. Co.,

BIS Fe FOE EC, BOGE wricensvacsccmasanenctiossiniabenteseions 19

Environmental Defense Fund, Inc. v. Costle, 657 F.2d

BI Ce NEE oistnsnitavcssecdsarsmnssoninaamibaripietoacseniiomn 6

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) oo... 6

Cases Continued:

Flynt Distributing Co. v. Harvey, 734 F.2d 1389 (9th

aay II cceesusstecpshes i ueicesienscehinuintpenepansainsindnensdmuiinsbepiontiinaaeniiiaiey 14

Forest City Daly Housing, Inc. v. Town of N.

Hempstead, 175 F.3d 144 (2nd Cir. 1999)... eeseeeeees 22

Fort Sumter Tours Inc. v. Babbitt,

Oe ae Ee Geile CIE tec teiesiiciercncasiserienienitiireenenteis 7

FPC v. Transcontinental Gas Pipe Line Corp.,

A ii Se or PE eniorscnssiehutnesenenaaeticneckencrieneaieniniinlini 5

Friends of the Earth v. Hintz, 800 F.2d 822

Eilts: BOUTIN scicasinecunksenivieiaictipinouishenciabpenoesihiesnrtithedssesoninibadmnnsieis 6

Fund for Animals v. Frizzell, 530 F.2d 982

a a a Co icecaccaineicidicteeelinmictipngadniidonicibinnainiameatontiia 16

Fund for Animals v. Norton,

241 F. Sapp. 26 209 (D.D.C. ZOOS) wccvecvevcorscervercesseceoreres 24

Globe Nuclear Servs. & Supply GNSS, Ltd. V. AO

Techsnabexport, 376 F.3d 282 (4th Cir. 2004).............. 24

Golden v. Kelsey-Hayes Co., 73 F.3d 648 (6th Cir.

LT ickiscsiincicabideleidiciicedssheacsnibetsnciasenndaeiuiisibisoiiatieaditiiaeeiiipaind 24

Goldie’s Bookstore, Inc. v. Superior Court of the

State of California, 739 F.2d 466 (9th Cir. 1984)........... 12

Gray Line Motor Tours v. City of New Orleans,

AF ee Ce CN FE wriserccetnitttninineciseneniniceniani 22

Greater Yellowstone Coalition v. Flowers,

SEA F 36.1250 (1G Cae, BOOS D ccccevcrssevivverorsevvenesesere 16, 25

Greene/Guilford Environmental Assn. v. Wykle,

94 Fed. Appx. 876 (3d Cir. 2004)............ccoccrsscosevereserssneves 7

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond

PU, F., SF as OO CN OOF savesosnierencerninntntmniiceianven 18

High Country Citizens Alliance v. U.S. Forest

Service, 203 F.3d 835 (Table), 2000 WL 147381

IE i aU ss cicehcnsernitscesenes ish busnsceaprsesnselleinebipntatanaaeaseaiiibia 7

Industrial Electronics Corp. v. Cline, 330 F.2d 480

SEE as Be sions sicssatasecdaaiceninsstinieanaseantsnidadnsmamueco abana 22

James Madison Ltd. V. Ludwig, 82 F.3d 1085 (D.C.

es AED iinicisitieicavscncnisntssdsicibieinmispiniatintataddadaalaimmnaaneal 6

Vil

Cases Continued:

John B. Hull, Inc. v. Waterbury Petroleum Products, —

ae, Sie eae re ae Gale BEE eecertitscecinerticerinienicenten 25

Lee v. U.S. Air Force, 354 F.3d 1229 (10th Cir. 2004).......... 7

Los Angeles Memorial Coliseum v. National Football

League, 634 F.2d 1197 (9th Cir. 1980)........... ee eeeeeeeeeeee 19

Magnussen Furniture, Inc. v. Collezione Europa

USA, Inc., 116 F.3d 472 (Table), 1997 WL

Pe I ls RIT piaicoenstetaeerladicaninincenitanseipastbisinivtoranii 23

Martinez v. Mathews, 544 F.2d 1233 (Sth Cir. 1976)........... 23

Matos ex rel. Matos v. Clinton Sch. Dist.,

FE ee CN es Be niawiistiicircnitinaindcibidgnenitcncuapbdeii 20

McDowell v. Schlesinger,

edt ft. PEER | SE , 7.) enn omen 28

Mesa Petroleum Co. v. Cities Service Co.,

Fe ee Sr Ces SEE prensertivsnscntieniesitieentenneniins 25

Minnesota Public Interest Research Group v. Butz,

Re Fe FF CE le BFE ésecrnrettricsensienrecttoroensinnesic 28

Murphy v. Commissioner of Internal Revenue, 469

ae ee Oe Ces ee eiiaiaseiensicccccetbecbaiecdaiesntiencleiteticbataed 6

National Audubon Society v. Department of Navy,

BEE FSO 8 FC BID wsvitcsacsicevinrcestinntentscntnneresuntiees 7

National Audubon Society v. Hoffman,

Ee ee ee, BIG einctiseeciptiesennenienentitpntcionlonaon 6

National Audubon Society v. U.S. Forest Service,

G0 FF FGFs Ce ls BOD ci rstisinccinennincsncsianicwntrsienenes 6

Newton County Wildlife Assn. v. Rogers, 141 F.3d

I As a aciaichasncimntceiveicaeleiehinssconedesiciZbaiiancddiabaiintes 10

North Buckhead Civic Assn. v. Skinner, 903 F.2d

Fe Fee i Ri easerhndsencinstcinenatstaieseniiorcndintinine 8

Norton v. Southern Utah Wilderness Alliance, 542

Shs Se Cee ceesctscnicdesticdnicehdeccansenanihdibaapiaianialnibcbcmauts 11

Oakland Tribune v. The Chronicle Publishing Co.,

FOE FD US TE OCW, BOGS) anscnscriicevrccenictecncereosnne’ 13,14

O’Conner v. Board of Education of School Dist. No.

BF PS FBG SIG CH CR. UID occ cscs cere csectwevercioreness 24

Vili

Case” Continued:

Ohio rorestry Assn. v. Sierra Club, 523 U.S. 726

POTEET sciistscinabeidedstciiuaeniobentaniliscctedpiauanpaiammaauadaedala 11, 29

Olenhouse v. Commodity Credit Corp.,

G2 FOG TS CEG GG ninticsensetnncdioneteenstcicincnnen 7

Paco Rabanne Parfums, S.A. v. Norco Enterprises,

Inc., 680 F.2d 891 (2nd Cir. 1982) .....cccerscccorssssssccssrsesees 21

Porter v. Warner Holding Co., 328 U.S. 395 (1946)............ 26

Portland Audubon Society v. Babbitt, 998 F.2d 705

CAE, i ceccicccevebesccsisaiciahauinip camnesitiansicidlaaadiibindada 27

Portland Audubon Society v. Lujan, 795 F. Supp.

SE CR OE, FI ei csinicscsiciensesiteadaiettacomaaababiaraioes 16, 27

Portland Audubon Socy. v. Hodel, 866 F.2d 302

CIE Goll, FI Paccinsicccsinierinnsieicninsicdncesniuassinandaamabtapeiategal 28

CG, Bei iicssccnicshsdstisnatiapaasienitec mains 21

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d

ToS CA CA, TAR hitctscicbcttnceaninaneae 23, 24

Rushia v. Town of Ashburnham, 70\ F.2d 7

EGE A, TID cissssnsensnidcicdatonnenaeeiaantanaean 21

Sabine River Authority v. U.S. Dept. of Interior,

Sak FA GOP Gt GA, TFG sesscciceesssetsssidiesieeenieiinnns 7

Safety-Kleen Systems v. Hennkens, 301 F.3d 931

CO GA, Fa iviiesssceieiseisnilcsitisai aaa ania ieciiaaacma amas 24

Sampson vy. Murray, 415 U.S. 61 (1974) oes 18, 27

Sanders v. Air Line Pilots Assn., Intl.,

BIS Fb OF A Fa rccanssscesencertcrenivissvinelenipaianta 21

Sandison v. Michigan High School Athletic Assn.,

G4 FBG TO CGC, FI vreniniscineccrcseeeitintecivncenivetnne 24

Sierra Club v. Eubanks, 335 F. Supp. 2d 1070

CEE. RANG BO iapsickecpcicvhinsaibssedeadalateoteiamrannian 11,29

Sierra Club v. Martin, 71 F. Supp. 2d 1268

CE Se Fao iiaivectnotinnss assed 16

Sierra Club v. Peterson, 185 F.3d 349

CUA, FE ikecccscsinsicbinbiccsaetigiacateniibisaibiania manual 7

Cases Continued:

Sierra Club v. U.S. Army Corps of Engineers, 771

EE I, IIIS wesc scicsnssesnesecarenevessevenreseverssousvoovoees 7

Sierra Club v. U.S. Dept. of Agric., 116 F.3d 1482

(table), 1997 WL 295308 (7th Cir. 1997)... cee eeeeeeees 29

Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000)..........0.... 23

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716

acs decendesiivanenhtininsseahoeesernesensese 13

Southwest Center for Biological Diversity v. U.S.

Forest Service, 100 F.3d 1443 (9th Cir. 1996)............. 6, 8

Sperry Intl. Trade, Inc. v. Government of Israel, 670

EEE, SOE D vcecivcenrsevsieesteverssepsenrsatesesveteeeseveuren 21

State of California v. Bergland, 483 F. Supp. 465

iit assis cnsnetsonsvsorstiesbesvencerveesnsasseresbocivess 27

State of N. Y. v. Nuclear Regulatory Comm., 550 F.2d

sc cvarovuninennentaveoeseeeees 16, 21

Steel Co. v. Citizens for a Better Environment, 523

is in acceeuicbeenvndéimnsennenesenvenieneives 19, 20

Thompson v. U.S. Dept. of Labor, 885 F.2d 551 (9th

ENE SEES IS SESE eee eee 6

Tri-State Generation and Transmission Assn., Inc. v.

Shoshone River Power, Inc., 805 F.2d 351 (10th

ES Ee 25

Ty, Inc. v. The Jones Group, Inc., 237 F.3d 891 (7th

cena pinintpnioneniinesnonsie 25

U. §. Steel Corp. v. Fraternal Assn. of Steelhaulers,

ee BE SEE CIE. BGT Dan secsvevvnesvesecnsesecnsseresvorsveceses 22

Ulmet v. U.S., 888 F.2d 1028 (4th Cir. 1989)... ee 23

United States v. Akzo Coatings of Am., 949 F.2d 1409

EES Ee Ee 7

Universal Furniture Intl., Inc. v. Collezione Europa

USA, Inc., 196 Fed. Appx. 166 (4th Cir. 2006) .............. 23

Utah Envtl. Congress v. U.S. Bureau of Land

Management, 119 Fed. Appx. 218 (10th Cir.

leila cassis adeiesnbvexnesoubnaseseveevereseastenvesrsevns 25

Valley Citizens for a Safe Environment v. Aldridge,

SF ae CR, Fi ecneciniecensctnvinninnerencietetienneeei 6

Washington Metropolitan Area Transit Commission

v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir.

5 5 | ae MEER NEN RENE Ns NA rn 24

Wienberger v. Romero-Barcelo,

aie Fe arias ainenscrniiid cicceieetiniaileiioinioncii 18, 20, 26

Statutes and Regulations:

Administrative Procedure Act,

FUE. B TIEE ) sceecennnsnnsenssetuonsrnnieriittnaineesvisianiannenision 11

F ele POI seittitinitcntniinibisiniainndcinsnsiiinanil 1]

National Environmental Policy Act of 1969,

Sas 6. REE ecinegrtednhainapentiiniaeiiahiie 28

National Forest Management Act of 1976,

FF Siete Ak A RID susincilonsctciuntnacipinamianienetneineaniiead 29

Se ew OF SIU sisciietascenicicedoninteinbboaantnaninaeniagiae 11

Se Uk DP BAGG sumiunsniaimonanamaaa 26

PI Fi Ue seichinehsecacienesensitanieatidasciabaiaihaehaacpehaigsinecceeaaee 29

be oe i A SE 1: Se ere 3

5 tf EB |. RRR encom ree me oh eentan Nessie 8

a FB 8 Re RCO een MEN SET 8

Lt ee Bh | OE issshosiieeclieeieaiemdainccan 8

Rules:

OE Th Fi sehssensitninrassccihcastessescedaehciescnpituammapiamaeniataaaeed 1

Miscellaneous:

ei ag BY, 5, Fe eee et 2

SUMMARY OF REASONS TO DENY THE PETITION

This case presents the unexceptional and intensely fact-

bound question of whether the Ninth Circuit correctly held

that two post-fire logging projects in the Eldorado National

Forest should be preliminarily enjoined because Respondent

showed a possibility of irreparable harm and a high likeli-

hood of success on their National Environmental Policy Act

(NEPA) and National Forest Management Act (NFMA)

claims.

Petitioners’! assertion that the Ninth Circuit erred in con-

sidering extra-record evidence oveflooks that the circuits, and

this Court itself, agree that in some cases such evidence may

be considered to help determine whether an agency consid-

ered all relevant factors and adequately explained its deci-

sion. Petitioners’ claim of a conflict among the circuits over

whether a “possibility” of irreparable injury can justify pre-

liminary injunctive relief in cases where the plaintiff shows a

probability of success on the merits is similarly misguided.

The circuits broadly agree that a nonspeculative possibility of

ireparable injury suffices, and the language the government

extracts from the case law to suggest a conflict is either taken

out of context or addresses other issues. Finally, Petitioners’

claim that the Ninth Circuit failed to take into account the

full range of public interests in considering the appropriate-

ness of preliminary relief is incorrect, and, even if true,

would only suggest that the court erred in applying law to the

facts, which would not justify a grant of certiorari. Sup. Ct.

R. 10. Petitioners’ assertion that the public interest in logging

overrides the interest in preserving habitat critical to sensitive

and management indicator species is particularly implausible

' For the purposes of this brief “Petitioners” refers to both the Forest

Service, et. al, and Respondent Sierra Pacific Industries (SPI). Earth Is-

land, et al shall be referred to as “Respondent.” Citations to the Forest

Service’s Petition shall be “Pet.,” and citation to Respondent SPI’s bnef

shall hereinafter be “SPI Br.”.

here given that, because the district court failed to grant the

preliminary injunction, most of the logging has already oc-

curred. The Ninth Circuit’s ruling is well within the bounds

of extant law, and its decision to preliminarily enjoin two

timber sales is not of such substantial importance as to war-

rant review by this Court.

STATEMENT OF THE CASE

Factual Background

In October 2004, the Power and Freds fires burned parts

of the Eldorado National Forest in the Sierra Nevada. The

fires burned in a mosaic pattern, creating varying degrees of

burn across the landscape. Within two months of the fires,

the Forest Service proposed to log these areas intensively,

including logging within ten sites occupied by California

spotted owls.” Pet. App. 41a-43a. Project analyses and re-

quired public involvement were conducted over the winter,

before completion of owl surveys. Much of the proposed

logging included removal of live, green, old-growth forests,

with no tree diameter limit, within the spotted owls’ core for-

aging grounds using post-fire conifer mortality guidelines to

predict when a tree is likely to die from its fire related inju-

ries. Pet. App. 39a-43a. The Ninth Circuit found that the For-

est Service dramatically misrepresented, and overstated, the

probability that burned trees would die and failed to inform

the public of the likelihood that many, if not a majority, of

the trees selected for logging would otherwise survive. Pet.

App. 18a-33a, 44a-45a. The use of these guidelines resulted

in many occupied owl sites being erroneously classified as

“unsuitable” for owls and thus scheduled for logging without

* The Forest Service lists the spotted owl as a “species at risk” in the

Sierra Nevada, Pet. App. 37a, and as a “sensitive species,” Earth Island

Institute v. United States Forest Service, 351 F.3d 1291, 1296 n. 4 (9th

Cir. 2003), meaning that the viability of the overall population is of con-

cern. Forest Service Manual 2670.5.

analysis of adverse impacts to habitat from removing live

old-growth trees. Jd.

In areas where the fires actually killed most or all trees,

the Forest Service proposed to log the vast majority of this

newly created habitat, which certain Management Indicator

Species (MIS)’ such as the Black-backed Woodpecker and

Hairy Woodpecker need to survive,. Pet. App. 46a-54a. Ac-

cording to the scientific literature, heavily burned forest is a

highly biodiverse habitat supporting dozens of bird species.

Administrative Record Volume (“AR”) 9, p. 4799. One of

these birds, the rare and seriously imperiled Black-backed

Woodpecker, is “vulnerable to local and regional extinction

as fire-suppression programs and post-fire salvage logging

increase,” and the habitat it relies on is either not created or

cut down before it can use it. AR 10:5259 (emphasis added).

The Power and Freds projects authorized logging the major-

ity of the habitat created for these woodpeckers before the

collection of the required population data under the forest

plan and applicable NFMA regulations.’ Pet. App. 46a-54a.

The Final Environmental Impact Statements (FEISs) for

these projects were filed on July 1, 2005; the first timber sale

was advertised on July 18, 2005 and awarded on August 1,

* MISs are “bellwether” species that represent an entire class of simi-

lar species. Pet. App. 46a; 36 C.F.R. § 219.19(a)(1) (1982). If an MIS is

imperiled by habitat destruction, the entire class of species it represents

could also be imperiled. Without gathering the essential population and/or

habitat data required by the forest plan, there is no way to know the level

of risk an MIS species faces. Pet. App. at 5la-54a.

* The Freds FEIS states that, out of 3,025 acres of heavily burned

forest, AR 4:1817, less than 6% will be retained and not logged. AR

4:1816. Likewise, the Power FEIS states that, out of 6,282 acres of this

habitat, only 21% will be retained and not logged, AR 5:2203 (Table 3-

77), and that zero snags (dead trees) per acre would be retained on 5,734

of those acres. AR 5:2199 (Table 3-74). In addition, adjacent burned pri-

vate lands were also extensively logged and thus offer no refuge for these

species.

2005; and the Records of Decision (RODs) were issued on

August I, 2005. To maximize its revenue from logging, the

Forest Service exempted itself from the normal stay period

pending administrative appeal, thereby allowing implementa-

tion of logging immediately upon issuing project decisions,

and logging began on August 5, 2005. AR 8:4075-4076.

Procedural Background

On August 11, 2005, Respondent Earth Island Institute et

al. filed its complaint’ and request for a temporary restraining

order (TRO) and preliminary injunction in the U.S. District

Court for the Eastern District of California, challenging the

Forest Service’s decision to implement the Power and Freds

logging projects. The district court granted Respondent’s mo-

tion for a TRO, then denied its motion for preliminary in-

junction. Pet. App. 78a. Logging, which had begun before

issuance of the TRO, resumed and continued until the Ninth

Circuit granted an injunction pending appeal on January 11,

2006. /d. at 59a-60a. On March 24, 2006 the Ninth Circuit

unanimously. reversed the district court and remanded the

* Although it is not one of their questions presented, Petitioners im-

plicitly question Respondent’s standing to bring suit. Respondent’s com-

plaint properly alleged standing, and Petitioners did not challenge Re-

spondent’s standing during the TRO or preliminary injunction phases of

this litigation (which lasted from August 16, 2005 through August 24,

2005), nor during the expedited appeal (merits briefs filed simultaneously

on October 11, 2005). Petitioners first raised the issue of standing in their

petition for rehearing en banc, to which Respondent was not invited to

respond. Since remand to the district court (July 31, 2006), Petitioners

agreed to a stipulation entering the preliminary injunction and have filed

no motion for summary judgment or motion to dismiss, nor any other

challenge to Respondent’s standing in the district court. Respondent is

prepared to provide further evidence supporting its standing when the

issue is properly presented in the district court proceedings. Respondent

has, over the past five years, filed three similar lawsuits and has never

been found to lack standing to bring such suits. Standing is an issue that

can easily be dispensed with at the district court level and does not war-

rant review by this Court.

case for issuance of a preliminary injunction. Jd. at la-58a.

Petitioners requested panel rehearing and rehearing en banc,

but all three panel judges voted to deny both requests and no

other judge requested rehearing en banc. Id. at 146a-147a.

REASONS FOR DENYING THE WRIT

Contrary to Petitioners’ assertions, the Ninth Circuit util-

ized the correct legal standards in its review and reversal of

the district court’s denial of a preliminary injunction-In addi-

tion, there is no conflict between the legal standards used by

the Ninth Circuit and the precedents of other courts of ap-

peals or this Court. Finally, given the unique circumstances

of this case, review by this Court would not provide mean-

ingful guidance for future litigation. Consequently, the peti-

tion for a writ of certiorari should be denied.

I. The Ninth Circuit Did Not Err in Considering Dec-

larations Provided by Respondent.

Although Petitioners are correct in asserting that this

Court has ruled that the “focal point for judicial review

should be the administrative record already in existence, not

some new record made initially in the reviewing court,” FPC

v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331

(1976) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)),

this principle does not absolutely bar extra-record evidence.®

Accordingly, the Ninth Circuit has recognized that there are

limited circumstances in which extra-record evidence, such

as the declarations submitted in this matter, can be utilized in

° Here, the circumstances are very different from both FPC and

Camp. In both FPC and Camp, the Court excluded extra-record evidence

because the courts of appeals had overstepped their authority in conduct-

ing a factual investigation (in FPC) and in ordering the district court to

conduct a de novo trial (in Camp). FPC, 423 U.S. at 334; Camp, 411 US.

at 142. The case at hand, by contrast, simply involves consideration by

the court of appeals of declarations admitted into evidence by the district

court. Pet. App. 22a, 70a, 75a. .

judicial review of agency action.’ At the same time, the Ninth

Circuit has made clear that allowing extra-record materials is

not automatic, but is a case specific question of fact for the

court. Southwest Center for Biological Diversity v. U.S. For-

est Service, 100 F.3d 1443, 1450 (9th Cir. 1996).

Contrary to Petitioners’ assertion (Pet. App. 14-19), the

Ninth Circuit is not alone in allowing such limited evidence.

Courts of appeals, particularly in NEPA cases, have consis-

tently recognized that “it may sometimes be appropriate to

resort to extra-record information to enable judicial review to

become effective.” Esch v. Yeutter, 876 F.2d 976, 991 (D.C.

Cir. 1989)*; see also Valley Citizens for a Safe Environment

v. Aldridge, 886 F.2d 458, 460 (Ist Cir. 1989) (“[A] review-

ing court might want additional testimony by experts, simply

to help it understand matters in the agency record.”)’; Na-

tional Audubon Socy. v. Hoffman, 132 F.3d 7, 15 (2d Cir.

1997) (the court may need a plaintiffs aid in calling the

omission of technical scientific information to its attention,

and “the consideration of extra-record evidence may be ap-

propriate in the NEPA context to enable a reviewing court to

determine that the information available to the decisionmaker

included a complete discussion of environmental effects and

” See e.g. Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986)

(citing Asarco, Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir. 1980)); Animal

Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), modified,

867 F.2d 1244 (9th Cir. 1989); Thompson v. U.S. Dept. of Labor, 885

F.2d 551, 555 (9th Cir. 1989); and National Audubon Socy. v. U.S. Forest

Service, 46 F.3d 1437, 1447 (9th Cir. 1993) (citing Hodel, 840 F.2d at

1436, applying County of Suffolk v. Secretary of the Interior, 562 F.2d

1368, 1384-85 (2d Cir. 1977)).

® See also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C.

Cir. 1981) (quoting Environmental Defense Fund, Inc. v. Costle, 657 F.2d

275, 285 (D.C. Cir. 1981)); accord AT&T Information Systems v. General

Services Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987).

* See also Murphy v. Commissioner of Internal Revenue, 469 F.3d

27, 31 (1st Cir. 2006).

alternatives.”); Greene/Guilford Environmental Assn. Vv.

Wykle, 94 Fed. Appx. 876, 878-879 (3d Cir. 2004) (extra-

record evidence can facilitate judicial review by providing

added explanation of the reasons for decision); National

Audubon Socy. v. Department of Navy, 422 F.3d 174, 188 n.

4 (4th Cir. 2005) (citing Fort Sumter Tours Inc. v. Babbitt, 66

F.3d 1324, 1336 (4th Cir. 1995) (explaining that while re-

view of an agency decision is usually confined to the record,

“there may be circumstances to justify expanding the record

or permitting discovery”)); Sabine River Authority v. U.S.

Dept. of Interior, 951 F.2d 669, 678 (Sth Cir. 1992) (a re-

viewing court “is to review the administrative record as well

as other evidence to determine whether the agency ade-

quately considered the values set forth in NEPA and the po-

tential environmental effects of the project . . .”)'°; United

States v. Akzo Coatings of Am., 949 F.2d 1409, 1427 (6th Cir.

1991) (a “reviewing court may consider materials supple-

menting the administrative record in order to determine the

adequacy of the government agency’s decision . . .”); Sierra

Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413

(8th Cir. 1985) (an administrative record may be supple-

mented by affidavits, depositions, or other proof of an ex-

planatory nature); Lee v. U.S. Air Force, 354 F.3d 1229, 1242

(10th Cir. 2004)'' (extra-record evidence may aid the court in

determining whether the agency “ignored relevant factors it

should have considered or considered factors left out of the

10 See also Coliseum Square Assn., Inc. v. Jackson, 465 F.3d 215,

247 (5th Cir. 2006); Davis Mountains Trans-Pecos Heritage Assn. v.

Federal Aviation Admin., 116 Fed. Appx. 3, 12 (5th Cir. 2004); Sierra

Club v. Peterson, 185 F.3d 349, 369-370 (Sth Cir. 1999).

'! See also Custer County Action Assn. v. Garvey, 256 F.3d 1024,

1027 n. 1 (10th Cir. 2001) (citing American Mining Cong. v. Thomas, 772

F.2d 617, 626 (10th Cir. 1985), cert. denied, 476 U.S. 1158 (1986)); High

Country Citizens Alliance v. U.S. Forest Service, 203 F.3d 835 (Table),

2000 WL 147381, *5 (10th Cir. 2000) (quoting Olenhouse v. Commodity

Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994)).

formal record.”); and North Buckhead Civic Assn. v. Skinner,

903 F.2d 1533, 1539, 1543 (11th Cir. 1990).

Consistent with this weight of authority, the Ninth Circuit

in this case correctly noted that extra-record materials may be

allowed if needed to “ ‘determine whether the agency has

considered all relevant factors and has explained its deci-

sion.” ” Pet. App. 22a (quoting Southwest Center for Biologi-

cal Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450

(9th Cir. 1996)). Use of this exception was particularly ap-

propriate because the court was proceeding on a shortened

timeline, before the filing of the administrative record, and

because the chosen tree mortality guidelines and the study

(“Hood et al.”) upon which they were based were not made

public until the FEISs were issued. Respondent therefore

never had an opportunity to comment on the guidelines or

their scientific basis.’? The “Hood et al.” report on post-fire

conifer mortality probabilities was never even referenced nor

'? The Forest Service mistakenly argues that Respondent should have

submitted the Royce and Bond expert declarations “during the comment

period on the FEISs,” Pet. 7, but there was no comment period on the

FEISs because applicable regulations require comments only on draft

EISs, 40 C.F.R. §§ 1503.1(a), 1506.10(b). The Forest Service did not

invite comments on either FEIS. 40 C.F.R. §1503.1(b); see AR Index; see

also AR 3:1534; AR 4:1954; AR 5:2523-2524; ARS:2539-2540. Dept. of

Transportation v. Public Citizen, 41 U.S. 752 (2004), is easily reconciled

with the exceptions to the record rule espoused in this section and applied

in this case. Public Citizen did not concern whether an agency record

could be supplemented with evidence not presented during agency com-

ment periods, but whether a party had an obligation to make its general

position known during the comment penod. /d. at 764-65. Declarants

Royce and Bond did submit comments on the problems associated with

tree mortality guidelines and the impact on resident spotted owls during

the public comment period, but could not specifically comment on the

particular guidelines chosen by the Forest Service and whether the guide-

lines actually reflected the data upon which they were based for the sim-

ple reason that this information was not made known to the public until

the public comment period was closed. AR 1:0112-0137, 0291-0293,

0308-0321; AR 4:1860; AR 5:2377.

provided to the public during the comment period on the

draft EISs, even though it became the sole basis for determin-

ing which trees would be cut in the project areas. AR 1-

3:389-1137; AR 4:1610-1613; 2033-2036.

That this critical study and its results were not even in-

cluded within the FEISs required Respondent itself to submit

the document to the district court and provide some explana-

tion of the discrepancy between the highly technical docu-

ment itself and the decision and analysis in the FEISs. But for

Respondent’s submission of the study and explanatory state-

ments by Dr. Royce, the court would not have been informed

on this topic, the very cornerstone of the agency decision,

and judicial review would have been frustrated."

Petitioners incorrectly claim that the Ninth Circuit based

its decision regarding the post-fire conifer mortality guide-

lines on a “side-by-side” comparison of Respondent’s expert

declarations and the Forest Service’s expert declarations, and

assert that the Ninth Circuit’s determinations that the Forest

Service’s decisions were arbitrary and capricious were not

based on the administrative record. Pet. 13, 16.'* While the

Ninth Circuit did discuss the declarations at length, a review

of the opinion reveals that the Ninth Circuit properly utilized

the declarations for background and technical information

and to determine whether the agency considered all relevant

'? Given the Forest Service’s implementation of the “emergency ex-

emption” with regard to theses projects, Respondent was also unable to

vet the discrepancies between the study and the agency’s action with the

agency through the administrative appeals process and was therefore

forced to address this argument for the first time in the district court.

' Petitioners complain that the Ninth Circuit conducted an “essen-

tially” de novo review. Pet. 11; SPI Br. 19. Actually, the Ninth Circuit

properly explained that it reviewed the district court’s findings of fact for

clear error and its conclusions of law de novo. Pet. App. 10a. To the ex-

tent Petitioners allege that the Ninth Circuit misapplied these undisput-

edly correct standards of review, such an allegation would of course not

support a petition for certiorari even if it were correct. S. Ct. Rule 10.

factors and explained its decision. As is plain from the opin-

ion, the Ninth Circuit based its findings that the Forest Ser-

vice abused its discretion on the record itself. Pet. App. 18a-

33a, 37a-45a.'° Specifically, with regard to the mortality

guidelines, the Court determined that the Forest Service had

failed to consider or disclose the relevant factor of how many

trees scheduled to be logged under the chosen mortality

guidelines would otherwise survive their fire related injuries.

Id. 29a-33a. Throughout the discussion of the declarations

regarding tree mortality, the Court assumed that the Forest

Service’s statements were correct, but in the end it was un-

able to reconcile Forest Service statements with the content

of the FEISs and supporting documents and the requirements

of NEPA, resulting in the finding that the Forest Service

abused its discretion. Jd. 18a-33a. The Court based its finding

upon the administrative record and the deficiencies therein,

not on the testimony of Dr. Royce.

As with the declarations of Dr. Royce and Sheri Smith,

the declarations of Ms. Bond and Mr. Loffland similarly

helped to focus the Court’s attention on relevant portions of

the administrative record. As a result, upon review of the dis-

cussion within the FEISs, the Ninth Circuit found that the

Forest Service had rendered a decision that was not in accor-

dance with the law (i.e., NEPA) because: (a) its failure to

'S The cases cited by Petitioners (Pet. 17) pertain to circumstances

wherein plaintiffs submitted documentary evidence in court which was

not available to the agency when it made its decision. American Coke

and Coal Chems. Inst. v. EPA, 452 F.3d 930, 945 (D.C. Cir. 2006) (court

excluded data that was not before the EPA at the time of its rule-making);

Newton County Wildlife Assn. v. Rogers, 141 F.3d 803, 808 (8th Cir.

1998) (excluded evidence that was not available to the Forest Service

when it prepared the EA). Here by contrast documents referenced within

the declarations submitted by Respondent were in front of the agency at

the time it made its decision. AR 11: 5969-5993 (Hood et al); AR 9:

4407-4413; AR 3: 1219-1223, 1227-1240; AR5S:2259-2260 (reference list

citing studies); and Admin Record Index p. 13 (stating that scientific lit-

erature cited in FEIS is part of the administrative record).

adequately analyze probable tree mortality was likely to re-

sult in the removal of suitable ow] habitat, an impact that was

never discussed, (b) there was no explanation of how the

Forest Service determined which areas were “unsuitable” for

owls, and (c) the Forest Service had failed to respond to evi-

dence that owls utilize burned forests for foraging. /d. at 37a-

45a. Once again, these findings were all based upon the re-

cord itself and not on the declaration of Ms. Bond.

The Ninth Circuit panel found, through a searching re-

view of the record, that Respondent had a “strong likelihood

of success on the merits” of most of their claims.’® Jd. at 54a.

Petitioners’ disagreement with that conclusion rests on misin-

terpretations of case law, pertinent regulations, and the par-

ticular and unique facts of this case. The Ninth Circuit’s use

of declarations to supplement its review’ of the administrative

record in light of the particular facts of this case was proper,

and review by this Court is thus unwarranted.

'© In discussing the merits of Respondent’s NFMA claim, Petitioner

Forest Service argue that it “interprets” the forest plan provisions requir-

ing annual population monitoring for MIS as discretionary and dependent

upon funding. Pet. 18. Petitioner Forest Service cites to Norton v. South-

ern Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (“SUWA”), where,

in the context of a challenge to a BLM plan under the Federal Land Pol-

icy and Management Act, this Court held that plaintiffs could not bring a

broad “programmatic” challenge to affirmatively force the agency to

comply with general duties in the plan pursuant to 5 U.S.C. § 706(1).

Here, by contrast, Respondent challenges a specific agency action under

NFMaA for failing to comply with the applicable forest plan, pursuant to 5

U.S.C. § 706(2)(A). NFMA requires projects to be consistent with the

applicable forest plan, including the monitoring obligations at issue in

this case. 16 U.S.C. § 1604{i); Ohio Forestry Assn. v. Sierra Club, 523

U.S. 726, 729-30 (1998). The forest plan provisions at issue here are

mandatory and contain no exemption in the event the agency chooses not

to fund MIS monitoring. Pet. App. 46a-54a; see also Sierra Club v.

Eubanks, 335 F. Supp. 2d 1070, 1081-82 (E.D. Cal. 2004) (“the Frame-

work [forest plan] expressly requires annual population monitoring for

MJS”). Further, the Ninth Circuit was enforcing the 1982 NFMA regula-

tions, which were not at issue in SUWA. Pet. App. 47a-48a.

Ii. The Ninth Circuit Correctly Identified and Applied

the [rreparable Harm Standard.

A. The Ninth Circuit Has Consistently Used a Pos-

sibility of Irreparable Harm Standard and Cor-

rectly Applied It in This Case.

Petitioners make much of the Ninth Circuit’s articulation

of a “mere possibility of irreparable harm” standard for pre-

liminary injunctions, Pet. App. 15a, attempting to character-

ize this test as being in significant conflict with previous de-

cisions of this Court and the other circuits. Pet. 13, 19-26.

Petitioners’ focus on the word “mere” in an attempt to imply

that the Ninth Circuit allows claims of the smallest, most

speculative injury to satisfy the “possibility of irreparable

harm” standard. This is not the case. See e.g., Goldie’s Book-

store, Inc. v. Superior Court of the State of California, 739

F.2d 466, 472 (9th Cir. 1984) (“Speculative injury does not

constitute irreparable injury”). The Ninth Circuit used the

word “mere” to underscore, in the context of recently correct-

ing the same district court on this same issue, that the stan-

dard is solely the “possibility of irreparable harm” and that no

additional hurdles should be placed in front of plaintiffs with

regard to this portion of the preliminary injunction test.'’

The Ninth Circuit correctly identified and applied the ir-

reparable harm factor of the preliminary injunction standard

as being one of establishing “a possibility of irreparable

harm.” Jd. This has been and continues to be the standard in

the Ninth Circuit. The Ninth Circuit employs a sliding scale

'’ The district court asserted that Respondent must prove a “signifi-

cant threat of irreparable injury by clear and convincing evidence” re-

gardless of the showing of likelihood of success on the merits. Pet. App.

15a. Given the Ninth Circuit’s sliding scale approach, this is not correct.

Benda v. Grand Lodge of International Association of Machinists, 584

F.2d 308, 315 (9th Cir. 1978). The district court also completely failed to

make a finding with regard to plaintiffs showing of harm and the spotted

owl. Pet. App. 13a.

approach such that the requisite possibility of injury may in-

crease as the likelihood of success on the merits decreases,

with a possibility of harm sufficing when success on the mer-

its is probable, but a greater likelihood of harm necessary

when the plaintiff only shows the existence of a substantial

question on the merits. Benda v. Grand Lodge of Interna-

tional Association of Machinists, 584 F.2d 308, 315 (9th Cir.

1978), cert. dismissed, 441 U.S. 937 (1979). Petitioners’

claim of a split within the Ninth Circuit, with one line of

cases requiring a greater showing of irreparable injury than

another, is misleading. The cases Petitioners cite clearly iden-

tify the standard as requiring the moving party to show the

possibility of irreparable injury when there is a probability of

success. Oakland Tribune v. The Chronicle Publishing Co.,

762 F.2d 1374, 1376 (9th Cir. 1985);'* Associated General

Contractors of California v. Coalition for Economic Equity,

950 F.2d 1401, 1410, 1412 (9th Cir. 1991),.'?

'® The Ninth Circuit distinguished Oakland Tribune on the ground

that the significant threat standard was utilized in that case because plain-

tiffs had shown only a very low likelihood of success on the merits; thus,

the court applied the sliding scale approach articulated in Benda, 584

F.2d at 315. Pet. App. 15a-16a.

'? The other case cited by Petitioners, Simula, Inc. v, Autoliv, Inc.,

175 F.3d 716 (9th Cir. 1999), recites the standard as follows: “A prelimi-

nary injunction may only be granted when the moving party has demon-

strated a significant threat of irreparable injury, irrespective of the magni-

tude of the injury.” /d. at 725 (citing Big Country Foods, Inc. v. Board of

Education, 868 F.2d 1085, 1088 (9th Cir. 1989). It is clear from these

cases that this sentence is focused on the irreparability of the harm and

does not imply an elevated showing of likelihood of harm. In Simula, the

plaintiffs’ claim of harm was not found to be “irreparable” because provi-

sional relief was available from the Swiss Arbitral Tribunal. /d. at 725-

726. Likewise in Big Country Foods, plaintiffs’ only claim of injury was

loss of a contract, which was not found to be irreparable. Big Country

Foods, 868 F.2d at 1088. Thus these cases also fail to support the claim

that two standards for preliminary injunction exist in the Ninth Circuit.

The sentence on which Petitioners rely (“Under either

formulation, the moving party must demonstrate a significant

threat of irreparable injury”) to imply this split is taken out of

context from Oakland Tribune. Oakland Tribune, 762 F.2d at

1376. The sentence stems from America Passage Media

Corp. v. Cass Communications, 750 F.2d 1470, 1473 (9th

Cir. 1984), which in turn relies on Flynt Distributing Co. v.

Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984), establishing

that “[rJegardless of how the test for preliminary injunction is

phrased, the moving party must demonstrate irreparable

harm.” Jd. (emphasis added). In both American Passage and

Flynt Distributing Co. the issuance of the preliminary injunc-

tion was denied because the threatened injuries were not ir-

reparable. America Passage Media Corp. v. Cass Commu-

nications, 750 F.2d at 1473 (monetary damages are not ir-

reparable because plaintiffs will be entitled to treble damages

if they prevail on the merits), and Flynt Distributing Co, 734

F.2d at 1395 (“Monetary injury is not normally considered

irreparable.”) (citation omitted). Indeed, American Passage

makes clear that a “[rJeasonable apprehension of threatened

injury will suffice” so long as the injury is irreparable.

American Passage, 750 F.2d at 1473. Contrary to Petitioners’

claims, this does not equate to a threshold showing for irrepa-

rable harm which is more than a mere “possibility,” and thus

there is no conflict within the Ninth Circuit.

The district court’s ruling in this case demonstrated a

fundamental misunderstanding of what constitutes an “irrepa-

rable” injury and when a “possibility” of such an injury has

been established. An injury is “irreparable” where it cannot

be adequately remedied by money damages or other legal

remedies, where such injury is “permanent or at least of long

duration,” Amoco Production Co., v. Village of Gambell, 480

U.S. 531, 545 (1987), and where failure to enter the injunc-

tion would essentially render final judgment useless. Doran

v. Salem Inn, Inc., 422 U.S. 922, 932 (1975). To demonstrate

that the threatened injury is possible, it must be shown to be

imminent, Caribbean Marine Services Co., Inc. v. Baldrige,

844 F.2d 668, 674 (9th Cir. 1988), and its occurrence cannot

be speculative or remote. Goldie’s Bookstore, 739 F.2d at

472.

In this case, Respondent demonstrated that mature and

old-growth trees (both living and dead), which provide habi-

tat for rare MIS and resident sensitive species, would be

logged, resulting in wholesale removal of large tracts of con-

tinuous forest, had the injunction not been issued. Logging

and habitat removal had already commenced before issuance

of the TRO, and would resume absent a preliminary injunc-

tion. The injury was imminent and in no way remote or

speculative. Once these large old trees were removed they

could not be put back on the landscape, habitat for the spe-

cies of concern could not be restored for a century or more,

and final judgment on the legal issues would be meaningless

for Respondent’s members. Respondent therefore had clearly

met its burden of establishing the possibility of irreparable

harm. The district court was unable to perceive this because

it was focused on the magnitude of the harm, rather than the

possibility that it would occur. The district court essentially

ignored the “possibility” standard and effectively ruled that

unless plaintiffs demonstrated that a particular (logging) pro-

ject is likely to cause an immediate threat to the viability of,

or lead to the extinction of, MIS or sensitive species, ihey

could never establish harm sufficient to obtain a preliminary

injunction.’ Pet. App. 74a, 77a. This court has recently ruled

rable and possible, but still not be entitled to a preliminary injunction

because the practical effect of the irreparable harm, should it occur,

would be “trifling.” Caribbean Marine Services, 844 F.2d at 676 (recog-

nizing that the violation of a constitutional right could be irreparable, but

in this circumstance it would merely create an inconvenience, and “mere

inconvenience” is not sufficient to support issuance of an injunction).

*! In the case at hand, the district court acknowledged that the MIS in

question depend upon heavily burned forest, that none of the required

(Footnote continued)

that such decisions “suggesting that injunctive relief could

not issue in a broad swath of cases,” are not compatible with

traditional equitable principles. e-Bay, Inc. v. MercExchange,

126 S. Ct. 1837, 1840; 164 L. Ed. 2d 641; 2006 U.S. LEXIS

3872 (2006). The Ninth Circuit recognized this abuse of dis-

population trend monitoring had been conducted, and that most of their

habitat would be eliminated in the project areas, but nevertheless con-

cluded that this “does not necessarily mean that any immediate and ir-

reparable injury will occur... Plaintiffs have not demonstrated irrepara-

ble harm.” Pet. App. 74a (emphasis added).

Petitioners’ argument that a preliminary injunction should never is-

sue unless plaintiffs prove that species extinction will otherwise result,

Pet. 24-26, rests on a single cursory per curium opinion denying a tempo-

rary restraining order from 1975. See Fund for Animals v. Frizzell, 530

F.2d 982 (D.C. Cir. 1975). This case has recently been distinguished in a

case similar to the one at issue here—a case Petitioners cite favorably:

Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250 (10th Cir.

2003). See Pet. 22. In Greater Yellowstone, the Tenth Circuit reversed the

district court’s denial of a preliminary injunction against the building of a

golf course in violation of NEPA and the Clean Water Act. 321 F.3d at

1251. The Tenth Circuit rejected the idea, accepted by the district court

there, and argued by Petitioners here, that the plaintiff had to show harm

to a species as a whole to establish the possibility of irreparable harm. /d.

at 1257. The court approvingly cited Sierra Club v. Martin, which, like

the case at hand, dealt with logging projects that would “destroy” habitat

for sensitive and management indicator species, and found harm enough

to support a preliminary injunction on that basis alone. 71 F. Supp. 2d

1268, 1327 (N.D. Ga 1996). In fact, the courts have been clear that in

cases involving logging, the logging itself constitutes irreparable harm

since the trees cannot be put back. State of N.Y. v. Nuclear Regulatory

Commn., 550 F.2d 745, 755 (2d Cir. 1977) (“When trees are felled... it

is beyond question that irreparable ecological damage has occurred.”);

Portland Audubon Socy. v. Lujan, 795 F. Supp. 1489, 1509 (D. Or. 1992)

(“Courts in this circuit have recognized that timber cutting causes irrepa-

rable damage and have enjoined cutting when it occurs without proper

observance of NEPA procedures and other environmental laws.”), affd.,

998 F.2d 705 (9th Cir. 1993).

cretion and appropriately reversed the district court denial of

preliminary injunction.”

B. The Ninth Circuit’s Irreparable Harm Standard

Does Not Conflict with This Court’s Decisions.

Contrary to Petitioners’ claims (Pet. 20-21), the Ninth

Circuit’s preliminary injunction standard is consistent with

decisions of this Court. In Brown, Secretary of State of Cali-

fornia v. Chote, 411 U.S. 452, 456 (1973), Chief Justice Bur-

ger, expressing the unanimous views of the Court, deter-

mined that in issuing the requested preliminary injunction the

district court had “properly addressed itself to two relevant

factors: first, the appellee’s possibilities of success on the

merits, and second, the possibility that irreparable injury

would have resulted, absent interlocutory relief.” Jd. (empha-

sis added). Brown has not been superseded or overturned,

and a review of the actual circumstances of the cases cited by

Petitioners, Pet. 20-21 and SPI Br. 7, confirms that the equi-

table principles governing issuance of a preliminary injunc-

tion require that irreparable injury be possible, rather than

certain.

In Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), the

case upon which Petitioners rely to support their assertion

that this Court requires plaintiffs to show that they wi// suffer

irreparable injury, the use of the phrase “will suffer” did not

occur in a discussion of the degree of likelihood of irrepara-

ble harm that must be shown, but rather in a general listing of

the elements of a preliminary injunction showing. /d. at 931.

The phrase was not intended to set forth a standard of the re-

quired likelihood of irreparable injury, let alone the standard

the Petitioners appear to extract from it, i.e., that the plaintiff

must show to a certainty that he wi// suffer the injury. Jd. The

2 Indeed, even if the proper formulation of the standard were, as the

district court believed, that a “significant risk” of harm is necessary, such

a risk existed on the facts here.

actual basis articulated in Doran for finding that the requisite

showing of irreparable harm had been met was the mere alle-

gation by respondents of the possibility of bankruptcy should

the challenged ordinance not be enjoined. Jd. at 932. Doran

is consistent with the Court’s ruling in Brown and is not in-

apposite to the Ninth Circuits’ threshold for irreparable injury

as articulated in the case at hand.

Other cases cited by Petitioners further confirm that the

Ninth Circuit’s threshold is not contrary to the law of this

Court. In Ashcroft v. ACLU, 542 U.S. 656 (2004), this Court

dealt with the constitutionality of internet content restrictions

and never actually addressed irreparable harm because the

correctness of the district court’s conclusion that a likelihood

of irreparable injury had been established was undisputed. Jd.

at 666. The harm discerned by the district court in that case

centered on the claims by adult plaintiffs that their fear of

prosecution under the challenged act would lead them to self-

censor their online materials. These fears were found to be

reasonable given the breadth of the statute, and because the

self-censorship “could result in the censoring of constitution-

ally protected speech,” the threshold for irreparable harm was

met. ACLU v. Janet Reno, 31 F. Supp. 2d 473, 497 (E.D. Pa.

1999) (emphasis added). Once again the threshold was found

to be one of possibility (i.e. “could”), not certainty, and thus

Ashcroft is fully consistent with the Ninth Circuit’s holding.”

3 Other cases cited by Petitioners also fail to prove their point. The

dissent in Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 340 (1999), simply reiterates the standard as articu-

lated in Doran, and asserts only that “speculative injury” is insufficient,

while Sampson, Beacon Theatres, Inc. and Romero-Blanco are simply

cited for the basic premise that the basis for injunctive relief is irreparable

harm and inadequacy of legal remedies. Sampson v. Murray, 415 U.S. 61,

88 (1974); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507

(1959); Weinberger v. Romero-Blanco, 456 U.S. 305, 312 (1982). The

Ninth Circuit echoes both of these premises. See e.g. Goldie’s Bookstore,

(Footnote continued)

Petitioners’ citations to Amoco Prod. Co., 480 U.S. 531

(1987), and eBay, Inc., 126 S. Ct. 1837 (2006), also fail to

demonstrate a rift between Ninth Circuit law and the law of

this Court. Pet. 21, SPI Br. 7. Amoco corrected the Ninth Cir-

cuit when it overstepped equitable principles by establishing

a presumption of irreparable injury once a violation of an en-

vironmental statute was found to have occurred. Amoco, 480

U.S. at 542-545. Amoco, however, went on to recognize that

“the environment can be fully protected without this pre-

sumption. Environmental injury, by its nature, can seldom be

adequately remedied by money damages and is often perma-

nent or at least of long duration, i.e., irreparable.” Jd. at 545.

Thus, so long as environmental injury is “sufficiently likely,

the balance of harms will usually favor the issuance of an

injunction to protect the environment.” Jd. (emphasis added).

Once again, this Court identified the standard as the possibil-

ity rather than the actuality or certainty of irreparable harm,

so long as the likelihood of harm is not remote.

Finally, in eBay, Inc., the degree of likelihood of irrepa-

rable harm was not at issue, and the Court held only that in-

junctions in patent cases are subject to the same four-factor

equitable standard as injunctions in other cases. In reciting

that standard, the Court imprecisely stated the test as whether

“Tal plaintiff ... has suffered an irreparable injury,” 126 S.

Ct. at 1839 (emphasis added), but even Petitioners do not

suggest that a showing of past irreparable injury is required.”

739 F.2d at 472; Los Angeles Memorial Coliseum v. National Football

League, 634 F.2d 1197, 1202 (9th Cir. 1980).

*4 Indeed, an injunction would not be appropriate where the only ir-

reparable injury has already occurred, because it would not provide re-

dress. The very purpose of an injunction is to prevent injury that would

otherwise be irreparable, which is impossible if an irreparable injury has

already occurred. See Ellett Bros., Inc. v. U.S. Fidelity & Guar. Co., 275

F.3d 384, 391 (4th Cir. 2001) (“An injunction ... is forward looking relief

to prevent future harm, not relief to redress past harm.”) (Michael, J.,

concurring); see also Steel Co. v. Citizens for a Better Environment, 523

(Footnote continued)

Moreover, the recitation of equitable principles in the e-Bay,

Inc. case relies upon Weinberger v. Romero-Barcelo and

Amoco Prod. Co., neither of which requires such a showing.

Weinberger, 456 U.S. 305, 310-320 (1982); Amoco, 480 U.S.

at 545 (must show irreparable harm is sufficiently likely). No

other Supreme Court case recites the well established four

factor test as requiring the establishment of past harm as a

prerequisite for injunctive relief. e-Bay, Jnc. cannot be read

as fundamentally altering the law of this Court or conflicting

with the threshold established in the Ninth Circuit.

C. There Is No Split Among the Circuits Regarding

the Threshold Necessary to Establish Irrepara-

ble Injury.

Contrary to Petitioners’ assertions (Pet. 22-23), there ts

no split among the courts of appeal over the threshold neces-

sary to establish irreparable injury. All circuit courts employ

the “possibility” of irreparable harm standard consistent with

the Ninth Circuits usage in this case, and most circuits allow

some type of sliding scale analysis.

In Matos ex rel. Matos v. Clinton Sch. Dist., Pet 22, the

First Circuit did not disavow the use of a “possibility” of tr-

reparable harm threshold, but simply held that “[i]nasmuch

as the plaintiff failed to demonstrate a realistic prospect of

irreparable harm, she has not crossed that threshold.” 367

F.3d 68, 73 (1st Cir. 2004) (emphasis added). The court ex-

plained that plaintiff could not show any real danger that de-

fendants would tamper with her computer hard drive; thus,

there was “no plausible basis for speculating that such tam-

pering will occur before the case is tried.” Jd. This standard is

not in conflict with the Ninth Circuit’s possibility standard

U.S. 83, 108 (1998) (injunction cannot remedy completed harm, but only

continuing or future injury).

because the Ninth Circuit also rejects speculative and im-

plausible possibilities, as explained above.”

Similarly, the Second Circuit does not reject the “possi-

bility” standard, but holds that the remote possibility of an

injury is insufficient. Carey v. Klutznick, 637 F.2d 834, 837

(2d Cir. 1980) (“[E]very irreparable injury is merely a possi-

bility until it is actual and can no longer be averted. Real and

imminent, not remote, irreparable harm is what must be

demonstrated . . . .”) (emphasis added) (citing State of N. Y.

v. NRC, 550 F.2d 745, 754-55 (2d Cir. 1977) (infinitesimal

chance of irreparable injury insufficient; opinion contrasted

its facts with harm flowing from logging and land alteration).

When the phrase “possibility of irreparable harm” is

searched in Westlaw in the Second Circuit, seven of the eight

cases retrieved approve of this language. See, in addition to

two cases cited above, Register.com, Inc. v. Verio, Inc., 356

F.3d 393, 427 (2d Cir. 2004) (citing Danielson v. Local 275,

Laborers Intl Union of North America, 479 F.2d 1033, 1037

(2d Cir.1973)); Paco Rabanne Parfums, S.A. v. Norco Enter-

prises, Inc., 680 F.2d 891, 892 (2d Cir. 1982); Sperry Intl.

Trade, Inc. v. Government of Israel, 670 F.2d 8, 15 (2d Cir.

1982); Sanders v. Air Line Pilots Assn, Intl., 473 F.2d 244,

248 (2d Cir. 1972). The one Second Circuit case cited by the

Petitioners, Borey v. National Union Fire Ins. Co., 934 F.2d

30 (2d Cir. 1991), fails to provide any citation for its dictum

that “a mere possibility of irreparable harm is insufficient.”

Pet. at 22. Borey, like Petitioners, simply appears to miscon-

strue the meaning of the word “possibility” in this context, by

mis-explaining its proper holding that the alleged harm was

not ureparable because plaintiffs could be made whole with

monetary relief. See Borey, 934 F.2d at 34. Accordingly, the

5 Rushia v. Town of Ashburnham, 701 F.2d 7, 9 (1st Cir. 1983) does

not address the degree of likelihood of injury, but rather whether the in-

jury could be considered “irreparable” as a matter of law.

Ninth Circuit’s “possibility” threshold for showing irrepara-

ble injury is in accord with the law of the Second C ircuit.”°

Although the Third Circuit uses a slightly different for-

mulation from the Ninth Circuit, it is substantively the same.

The Third Circuit recognizes that “the grant or denial of a

preliminary injunction is almost always based on an abbrevi-

ated set of facts, requiring a delicate balancing of the prob-

abilities of ultimate success at final hearing with the conse-

quences of immediate irreparable injury which could possibly

flow from the denial of preliminary relief.” U. S. Steel Corp.

v. Fraternal Assn. of Steelhaulers, 431 F.2d 1046, 1048 (3d

Cir. 1970) (emphasis added); accord Industrial Electronics

Corp. v. Cline, 330 F.2d 480, 483 (3d Cir. 1964) (holding

that a showing that irreparable injury would “possibly result

pendente lite if relief is denied” is necessary to obtain a pre-

liminary injunction) (emphasis added).

In essence, the courts in the Fifth and Eleventh Circuits

have adopted the same language used in the Third Circuit.

See Gray Line Motor Tours v. City of New Orleans, 498 F.2d

293, 296 (Sth Cir. 1974) (the grant or denial of a preliminary

injunction requires “a delicate balancing of the probabilities

of ultimate success at final hearing with the consequences of

immediate irreparable injury which could possibly flow from

the denial of preliminary relief.” (emphasis added) (quoting

U.S. Steel Corp. v. Fraternal Assn. of Steelhaulers, 431 F.2d

1046, 1048 (3d Cir. 1970)). The Fifth Circuit went on to hold

that “[u]nderlying the grant of such [preliminary injunctive]

relief must, of course, be an evaluation of the equitable con-

siderations involved: the plaintiffs’ likelihood of prevailing

on the merits, the possibility of irreparable harm to the plain-

144 (2d Cir. 1999), does not even address the requisite showing of irrepa-

rable injury and merely establishes that a preliminary injunction will not

issue in agency review cases if a plaintiff fails to establish a strong likeli-

hood of success on the merits (which Respondent established here).

tiffs, the counterbalancing risk of harm to the defendants, and

the public interest.” Martinez v. Mathews, 544 F.2d 1233,

1243-44 (Sth Cir. 1976) (now serving as the Eleventh Cir-

cuit) (emphasis added). The recent Eleventh Circuit case,

Siegel v. LePore, which did not allow a “wholly speculative”

injury to support issuance of an injunction, is also fully con-

sistent with Ninth Circuit precedent 234 F.3d 1163, 1177

(11th Cir. 2000) (en banc).

Similarly, the Fourth Circuit specifically approves the

“possibility of irreparable harm” standard. Universal Furni-

ture Intl., Inc. v. Collezione Europa USA, Inc., 196 Fed.

Appx. 166, 169 (4th Cir. 2006) (courts should consider “the

possibility of irreparable harm to the plaintiff if preliminary

relief is denied”) (emphasis added) (citing Blackwelder Fur-

niture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir.

1977) (“The importance of probability of success increases as

the probability of irreparable injury diminishes, . . . and

where the latter may be characterized as simply ‘possible,’

the former can be decisive.”); accord, Magnussen Furniture,

Inc. v. Collezione Europa USA, Inc., 116 F.3d 472 (Table),

1997 WL 337465 at *1 (4th Cir. 1997); Ulmet v. U.S., 888

F.2d 1028, 1034 (4th Cir. 1989). Blackwelder, which ex-

pressly embraces issuance of injunctions to prevent “possi-

ble” harm when success on the merits is probable, has been

repeatedly cited as the standard in the Fourth Circuit for

thirty years. Petitioners’ citation of Rum Creek Coal Sales,

Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991), is not to

the contrary. See Pet. 22-23. Rum Creek explicitly applies the

Blackwelder standard, and holds, consistent with the Ninth

Circuit’s standard, that while a greater showing of irreparable

injury and balance of hardships is demanded where the plain-

tiff merely shows a “substantial question” on the merits, a

lesser showing is required where the plaintiff, as here, shows

a greater likelihood of success. Rum Creek, 926 F.2d at 359-

360.”

Petitioners ignore the Sixth, Eighth and D.C. Circuits,

most likely because these circuits also approve standards in

accord with the Ninth Circuit. See, e.g., Golden v. Kelsey-

Hayes Co., 73 F.3d 648, 653-54 (6th Cir. 1996) (district

courts are to consider four factors including “whether the

plaintiffs could suffer irreparable harm without the injunction

.... None of these factors, standing alone, is a prerequisite

to relief; the court should balance them.... [P]roving iurepa-

rable harm is not an absolute prerequisite to obtaining a pre-

liminary injunction.”) (emphasis added); Sandison v. Michi-

gan High School Athletic Assn., 64 F.3d 1026, 1030 (6th Cir.

1995); Dataphase Systems, Inc. v. C.L. Systems, Inc., 640

F.2d 109, 114 (8th Cir. 1981) (en banc) (clarifying that the

appropriate factors for the district courts to consider include

“(1) the threat of irreparable harm to the movant,” and em-

phasizing that “[i]n balancing the equities no single factor is

determinative”) (emphasis added); Safety-Kleen Systems v.

Hennkens, 301 F.3d 931, 935 (8th Cir. 2002); Washington

Metropolitan Area Transit Commission v. Holiday Tours,

Inc., 559 F.2d 841, 845 (D.C. Cir. 1977) (adopting “possibil-

ity of irreparable injury” standard); Fund for Animals v. Nor-

ton, 281 F. Supp. 2d 209, 219 (D.D.C. 2003) (sliding scale

approach).

Similarly, the Seventh Circuit considers four factors, one

asking “whether the threatened injury to the plaintiff out-

weighs the threatened harm the injunction may inflict on the

defendant.” O’Conner v. Board of Education of School Dist.

No. 23, 645 F.2d 578, 580 (7th Cir. 1981) (emphasis added).

7? Similarly, Globe Nuclear Servs. & Supply GNSS, Ltd. v. AO

Techsnabexport, 376 F.3d 282, 287 (4th Cir. 2004), does not support Pe-

titioners’ assertions, because the preliminary injunction issue was not

even before the court, and the court did not rule on the degree of likeli-

hood of harm required for a preliminary injunction.

As under the sliding scale test of the Ninth Circuit, “the more

likely the plaintiff will succeed on the merits, the less the

balance of irreparable harms need favor the plaintiffs posi-

tion.” Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th

Cir. 2001). Similarly, AlliedSignal, Inc. v. B.F. Goodrich Co.,

endorsed the “sliding scale” approach and held that despite

doubts about whether the claimed injury would occur, the

plaintiff had shown a “sufficient likelihood” of injury in view

of its showing of “some likelihood” of success. 183 F.3d 568,

576-577 (7th Cir. 1999).

Finally, the Tenth Circuit is no different from the other

Circuits in approving the “possibility of irreparable harm”

standard. See e.g. Utah Envtl. Congress v. BLM, 119 Fed.

Appx. 218, 220 (10th Cir. 2004) (using “possibility of irrepa-

rable harm” standard); Tri-State Generation and Transmis-

sion Assn., Inc. v. Shoshone River Power, Inc., 805 F.2d 351,

356 (10th Cir. 1986) (“possibility of going out of business is

irreparable harm’) (citing John B. Hull, Inc. v. Waterbury

Petroleum Products, Inc., 588 F.2d 24, 28-29 (2d Cir. 1978),

cert. denied, 440 U.S. 960 (1979)); Mesa Petroleum Co. v.

Cities Service Co., 715 F.2d 1425, 1432 (10th Cir. 1983); and

Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780,

781 (10th Cir. 1964). No cases in the Tenth Circuit disap-

prove its use.”®

In sum, the Ninth Circuit’s decision below is consistent in

substance with the jurisprudence of all of the other circuits,

and the issue raised by Petitioners is at best semantic and at

worst nonexistent. Because there is no circuit conflict with

regard to the threshold necessary to establish irreparable

harm, the issue does not require Supreme Court review.

—

8 Greater Yellowstone Coal, 321 F.3d at 1258, 1261-62, is not to the con-

trary. See Pet. 22-23. The Court stated that while “purely speculative harm does

not amount to ureparable injury[,] an injury is not speculative simply because it is

not certain to occur,” 321 F.3d at 1258 (citations omitted), and that a “significant

risk” suffices to establish that a possibility of harm is not speculative.

Ifl. The Ninth Circuit Properly Balanced the Harms

and Adequately Analyzed the Public Interest.

The Ninth Circuit properly and adequately conducted a

review of the hardships faced by the parties and took into ac-

count the public interest. Pet. App. 54a. The errors of the dis-

trict court with regard to the legal standard for preliminary

injunction, its clearly erroneous findings with regard to Re-

spondent’s likelihood of succeeding on the merits of their

NEPA claims, and its legal error with regard to Respondent’s

NFMA claims, necessarily led to an abuse of discretion by

the district court in the balancing of the equities. Pet App.

13a-16a, 18a-33a, 37a-45a, 47a-54a. Thus, no deference to

the district court’s determination was required.”’

Given the exigencies of the circumstances and the little

that remained of the status quo (most of the logging having

been completed), coupled with the appellate court’s power to

“remand the cause and direct the entry of such appropriate

judgment . . . as may be just under the circumstances” (28

U.S.C. § 2106), the Ninth Circuit properly balanced the equi-

ties and reviewed the public interest before remanding the

case to the district court for entry of a preliminary injunction.

In balancing the equities, the Ninth Circuit weighed the pos-

sibility of irreparable harm which Respondent demonstrated,

including the wholesale removal of forest within an area

where Respondent’s members recreate, bird-watch and per-

form scientific research on burned forests, against some

” Petitioners imply that the Courts should be bound by the agency’s

balancing and should give deference to its determination, but this argu-

ment runs afoul of the well established precedent that, “[uJnless a statute

in so many words, or by a necessary and inescapable inference, restricts

the court’s jurisdiction in equity, the full scope of that jurisdiction is to be

recognized and applied.” Amoco, 480 U.S. at 541-542 (citing Weinberger,

456 U.S. at 313 (quoting Porter v. Warner Holding Co., 328 US. 395,

398 (1946)). Neither NEPA nor NFMA so restrict the Courts equity juris-

diction, and thus the courts are not bound by the agency’s balancing.

claimed economic losses.*° Given that economic losses are

not typically irreparable, the court’s determination that the

balance tips in favor of Respondent was correct. See e.g.

Sampson v. Murray, 415 U.S. 61, 90 (1974), Portland Audu-

bon Socy. v. Lujan, 795 F. Supp. 1489, 1509 (D. Or. 1992),

affd., Portland Audubon Socy. v. Babbitt, 998 F.2d 705 (9th

Cir. 1993); State of California v. Bergland, 483 F. Supp. 465,

499 n. 43 (E.D. Cal 1980).”!

The Ninth Circuit’s discussion of the Petitioners’ eco-

nomic losses reflected the emphasis that Petitioners them-

selves placed on these alleged harms, as well as the Court’s

review of Respondent’s likelihood of success on the merits.

The primary harm asserted by Petitioners was economic, and

they tied their secondary claims of fire risk reduction, human

health and safety and erosion mitigation to proceeds from the

maximum possible revenue of the salvage sale. See FS Ap-

peal Br. 32-33; SPI Appeal Br. 24-27; Earth Island Appeal

Br. 48-52. In addition, all of the claimed benefits of the pro-

tional profits that would not be realized (or whose realization might be

delayed). Delays in implementation might simply result in some reduc-

tion in value of the timber from deterioration. Salvage logging projects

are often sold two years after a fire, and logging contracts run from two to

four years in duration. A considerable sum of money would be made even

if the project were temporarily enjoined to provide for a review on the

merits of Respondent’s claims. In addition, these “losses” only apply to

trees that have actually died from their fire-related injuries. Given that the

mortality guidelines overestimated mortality, much of the claimed loss

was speculative at best, which is probably why SPI is, three years after

the fire, still claiming that there is $4 million worth of timber available to

harvest. SPI. Br. S.

*! Petitioners also object to the Ninth Circuit’s mention of the Forest

Service’s financial interest in the Power and Freds timber sales (Pet Br.

28 n. 13; SPI. Br. 19-23), even though this interest was repeatedly

stressed by Petitioners themselves. This complaint references pure dictum

in the Ninth Circuit opinion, is not among the Questions Presented, and

thus also does not warrant Supreme Court review.

ject depended on the trees in question being dead and thus

were predicated on the assertion that the majority of the trees

scheduled for logging under the mortality guidelines would

in fact die. The Ninth Circuit determined that this conclusion

was not supported by the record and represented an abuse of

discretion. Pet. App. 32a-33a, 44a-45a. Moreover, contrary to

Petitioners’ claims that the Ninth Circuit disregarded some of

the Petitioners’ stated purposes for these logging projects

(Pet. 26-28), the panel specifically discussed these assertions

earlier in the opinion (Pet. App. 6a-8a), and all parties briefed

these matters fully. Even if the Ninth Circuit had misper-

ceived or ignored the government’s arguments, which it did

not, that would not be a matter appropriate for exercise of the

Court’s certiorari jurisdiction.

Moreover, in taking into account the public interest, the

Ninth Circuit reviewed the statutory scheme of NEPA and

NFMA and correctly determined that “[t]he preservation of

our environment, as required by NEPA and the NFMA, is

clearly in the public interest.” App. 55a. When Congress en-

acted NEPA it declared “a national policy . . . to promote ef-

forts which will prevent or eliminate damage to the environ-

ment.” 42 U.S.C. § 4321. “The purpose of NEPA is to protect

the environment, not the economic interests of those ad-

versely affected by agency decisions.” Portland Audubon

Socy. v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989), cert. de-

nied, 492 U.S. 911 (1989). Most importantly, “NEPA's re-

quirements are specifically designed to counter the inevitable

agency bias in favor of a proposal or project that it has rec-

ommended .. . and to effectuate substantive changes in the

agency decision making process.” McDowell v. Schlesinger,

404 F. Supp. 221, 241 (D. Mo. 1974) (citing Minnesota Pub-

lic Interest Research Group v. Butz, 498 F.2d 1314, 1320

(8th Cir. 1974) (en banc)).

Similarly, in enacting NFMA, Congress declared that it

was the policy of the United States to ensure that “forests and

rangeland, in all ownerships, should be managed. . . in an

environmentally sound manner... .” NFMA, Pub. L. No.

96-514, Title I{l, Sec. 310 (Dec. 12, 1980) (emphasis added);

see Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 726

(1998) (noting that before the Forest Service can permit log-

ging, the NFMA and applicable regulations require it to meet

a number of procedural and substantive requirements). Con-

trary to the Petitioners’ assertions, Pet. 28 n. 12, NFMA does

not “encourage” salvage logging but only permits it, and only

after the Forest Service has ensured that logging (1) does not

irreversibly damage soil or watershed conditions, (2) protects

streams, streambanks, shorelines, lakes, wetlands, and (3) is

consistent with protection of soil, watershed, fish, wildlife,

recreation, and esthetic resources, and regeneration of the

timber resource. 16 U.S.C. § 1604(g)(3). There is no federal

mandate that the Forest Service conduct logging, including

salvage logging. Sierra Club v. U.S. Dept. of Agric., 116 F.3d

1482 (table), 1997 WL 295308, **21 (7th Cir. 1997).

Absent an injunction here, the projects would have been

logged to completion and the public interest in preserving the

environment and ensuring that logging projects proceed in an

environmentally sound manner would be completely frus-

trated. In contrast, the public interest served by the claimed

benefits of the project could still be realized after final judg-

ment in the (unlikely) event that Respondent did not prevail

on the merits. The threat of future severe fire depends upon

myriad circumstances, is governed by small diameter fuels

not large trees (Sierra Club v. Eubanks, 335 F. Supp. 2d

1070, 1077-78 (E.D. Cal. 2004)) and does not begin until

significant numbers of trees start to fall, which takes from

several years to over a decade to occur. AR 4:2046-2054.

Thus, a temporary delay while the merits of the case were

adjudicated would not inhibit the attainment of this goal. In

addition, conifer regeneration is already occurring naturally

in the project areas. Replanting, if necessary, can also take

place at any time. With regard to erosion mitigation, the great

majority of erosion occurred in the first year after the fire,

AR 4:2084-2086, and prior to logging or the request for in-

junction. In addition, the logging of large trees is not neces-

sary to create down woody debris or ground cover to mitigate

any further erosion while the merits of the case were decided,

and felling of small trees for erosion control was not opposed

by Respondent.”

Finally, regarding the public interest in promoting public

safety, Respondent has never objected to the removal of ac-

tual hazard trees along roads maintained for public use, and

the injunction currently in place with regard to these two

timber sales allows for such activity. Thus, accommodations

to ensure public health and safety have been made even with

issuance of an injunction. Given the totality of the circum-

stances and the dubious nature of the claimed “benefits” ar-

ticulated by Petitioners, the Ninth Circuit properly considered

the public interest and found that issuance of an injunction

was in that interest. This Court need not review that quintes-

sentially fact-bound question.

CONCLUSION

The petition for a writ of certiorari should be denied.

» It should also be noted that, as was brought to the lower courts’ at-

tention, the “model” used by the Forest Service to reach its conclusion

that its post-fire logging projects would somehow mitigate erosion

“probably underestimate{s]” the erosion caused by the chosen alternatives

due to the fact that “all of the ground-disturbing activities of logging -

such as skid trails, landings, temporary roads . . . are not included” in the

model. AR 4:2107 (emphasis added). Thus it is entirely unclear what

beneficial impact, if any, logging would have on erosion and sediment.

Respectfully submitted,

RACHEL M. FAZIO,

Counsel of Record

JOHN MUIR PROJECT

P.O. Box 697

CEDAR RIDGE, CA 95924

(530) 273-9290

MARC D. FINK (Admission Pending)

4515 Robinson Street

Duluth, Minnesota 55804

(218) 525-3884

MATT KENNA

WESTERN ENVIRONMENTAL

LAW CENTER

679 E. 2nd Ave., Suite 11B

Durango, CO 81301

(970) 385-6941

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Attorneys for Respondents Earth Island Institute and Center

for Biological Diversity

Date: February 2007

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.