Conservation Congress v. United States Forest Service et al

Filing 188

ORDER signed by District Judge John A. Mendez on 8/16/2018 DENYING 175 Motion to Stay. (Washington, S)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 CONSERVATION CONGRESS, 13 No. 2:13-cv-1977-JAM-DB Plaintiff, 14 v. 15 UNITED STATES FOREST SERVICE, UNITED STATES FISH AND WILDLIFE SERVICE, 16 17 ORDER DENYING PLAINTIFF’S MOTION FOR STAY PENDING APPEAL Defendants, 18 & 19 TRINITY RIVER LUMBER COMPANY, 20 Defendant Intervenor. 21 22 Conservation Congress (“Plaintiff”) seeks to enjoin 23 commencement of the Smokey Project while its lawsuit remains 24 pending on appeal. 25 motion is denied.1 For the reasons set forth below, Plaintiff’s 26 27 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for August 7, 2018. 1 1 1 2 I. BACKGROUND On February 17, 2017, this Court ruled on the parties’ 3 cross-motions for summary judgment. The Court ruled in favor of 4 Conservation Congress on two of its claims, finding that the 5 United States Forest Service failed to take a “hard look” and 6 failed to develop a reasonable range of alternatives in its 7 analysis of the Smokey Project. 8 and Defendants’ Cross Motion for Summary Judgment, ECF No. 121. 9 The Court granted Defendants’ cross motion for summary judgment See Order Re Plaintiff’s Motion 10 on Plaintiff’s remaining claims. Id. Following a round of 11 supplemental briefing, the Court issued its Final Judgment, in 12 which it remanded the NEPA analysis to the United States Forest 13 Service to cure the violations identified in the summary judgment 14 order and enjoined the removal of any trees with 20 inches dbh or 15 greater in implementing the Smokey Project. 16 No. 142. 17 judgment (to dissolve the injunction) on the grounds that the 18 supplemental analysis had been completed. 19 Court granted the motion and dissolved the injunction on March 2, 20 2018. Final Judgment, ECF In December of 2017, Defendants moved to amend the ECF No. 162. The ECF No. 171. 21 II. OPINION 22 A. Legal Standard 23 Although Plaintiff frames its motion to the Court as a 24 request for a “stay” pending appeal, Plaintiff is asking the 25 Court to enter an injunction pending appeal. 26 556 U.S. 418, 428–29 (2009) (“A stay ‘simply suspend[s] judicial 27 alteration of the status quo,’ while injunctive relief ‘grants 28 judicial intervention that has been withheld by lower courts.’”) 2 See Nken v. Holder, 1 (citation omitted). Federal Rule of Civil Procedure 62(c) makes 2 available an injunction pending appeal. 3 pending appeal is governed by a legal standard like that for a 4 preliminary injunction. 5 Service, 803 F. Supp. 2d 1126, 1129 (E.D. Cal. 2011). 6 to obtain an injunction pending appeal, Plaintiff must establish 7 it “is likely to succeed on the merits, that [it] is likely to 8 suffer irreparable harm in the absence of [] relief, that the 9 balance of equities tips in [its] favor, and that an injunction A motion for injunction Conservation Congress v. U.S. Forest Therefore, 10 is in the public interest.” 11 Council, Inc., 555 U.S. 7, 20 (2008). 12 may obtain injunctive relief if it shows that there are serious 13 questions going to the merits, the balance of the hardships tip 14 sharply in Plaintiff’s favor, and the other two Winter’s factors 15 are satisfied. 16 F.3d 1211, 1217 (9th Cir. 2017). 17 B. 18 Alternatively, Plaintiff See Alliance for the Wild Rockies v. Pena, 865 Analysis 1. 19 See Winter v. Nat. Res. Def. Merits The Court has carefully evaluated Plaintiff’s challenges to 20 the USFS’s and FWS’s analyses and conclusions related to the 21 Smokey Project at each stage of this litigation. 22 analysis of these claims is set forth in its Order Re Plaintiff’s 23 Motion and Defendants’ Cross Motion for Summary Judgment, ECF No. 24 121, Final Judgment, ECF No. 142, and Order Granting Defendants’ 25 Motion to Amend the Judgment and Dissolve the Injunction, ECF No. 26 162. 27 Court’s findings or analysis that would cause the Court to 28 question the validity of the conclusions it has already drawn. Its detailed Plaintiff has not identified any critical errors in the 3 1 See Mot. at 9–20. 2 likely to succeed on the merits of its claims. 3 The Court therefore does not find Plaintiff is At most, the issues Plaintiff reiterates in its motion might 4 raise serious questions going to the merits. 5 the equitable factors in this case weigh against granting the 6 extraordinary relief requested, the Court need not make a finding 7 on these challenges. 8 9 2. However, because Irreparable Harm The Court previously entered a limited injunction in this 10 case after finding that the procedural harm Plaintiff suffered— 11 namely, the agency’s failure to address or consider a large 12 diameter cap during its NEPA analysis—coupled with the permanent 13 removal of trees that might otherwise be protected by such a cap 14 consisted irreparable harm. 15 Defendants and Intervenor point out, the Court found USFS’s 16 supplemental NEPA process ameliorated the procedural harm. 17 Def. Opp’n at 7; Int. Opp’n at 17–18; Order Granting Defendants’ 18 Motion to Amend the Judgment and Dissolve the Injunction at 22. 19 The Court reiterates that finding here: the USFS’s additional 20 post-judgment analysis cured the identified procedural harm. 21 Final Judgment at 4-5. As See Plaintiff’s motion therefore turns on irreparable harm to 22 the environment, specifically as it relates to the Northern 23 Spotted Owl. 24 extinction to the species to meet its burden. 25 Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th 26 Cir. 2018). 27 to the ‘overall population.’” 28 F. Supp. 2d 1205, 1210 (D. Mont. 2009); see Pac. Coast Fed’n of Plaintiff need not demonstrate a threat of Nat’l Wildlife But, “irreparable injury requires harm ‘significant’ Defs. of Wildlife v. Salazar, 812 4 1 Fishermen’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1195, 1254 n. 12 2 (E.D. Cal. 2008) (“Other district courts have issued injunctive 3 relief where an agency action would cause harm to a small number 4 of individual species’ members, but always under circumstances in 5 which the loss of those individuals would be significant for the 6 species as a whole.”). 7 Through its cited evidence, Plaintiff has shown a 8 possibility of harm to several NSOs that live in Smokey Project 9 area. However, in the face of competing evidence, the Court 10 cannot conclude that the stated harm is irreparable. 11 Plaintiff has not shown a likelihood of irreparable harm to the 12 species. 13 warrant relief, the harm inflicted must still befall the species 14 and not only individual members. 15 16 Further, Although an extinction level threat is not necessary to 3. Balance of Equities and Public Interest To obtain injunctive relief, Plaintiff must establish that 17 the balance of the equities and public interest weigh in favor of 18 granting such relief. 19 likelihood of success on the merits, Plaintiff must establish 20 serious questions going to the merits and that the balance of the 21 equities tip sharply in Plaintiff’s favor. 22 Wild Rockies v. Pena, 865 F.3d at 1217. 23 Where, as here, Plaintiff has not shown a See Alliance for the Plaintiff does not address these two factors in its moving 24 papers. It mentions, in passing, that there is a “strong public 25 interest in the preservation of the little remaining late 26 successional and old growth forest habitat in northwestern 27 forests and the lack of any countervailing non-monetary interest 28 in the immediate harvest of commercial timber in the Smokey 5 1 Project area.” See Mot. at 22. 2 equitable factors fails to address the overarching aim of the 3 project: reducing the risk of fire hazards and restoring forest 4 stands in the Smokey Project area. 5 as well as the arguments and evidence cited in the two 6 Oppositions, the Court does not find that the equitable factors 7 weigh in favor of granting relief. 8 entitled to the extraordinary relief it seeks. 9 10 11 12 13 III. This cursory treatment of these Because of this deficiency, Plaintiff has not shown it is ORDER For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Stay Pending Appeal. IT IS SO ORDERED. Dated: August 16, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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