Data source
Date of text
08 Nov 2010
Original language


Type of text
National - higher court
Reference number
No. 09-16914
Court name
United States Court of Appeal for the Ninth Circuit

After the “Moonlight” and “Wheeler” fires in the Plumas National Forest in California’s northern Sierra Nevada range in the summer of 2007, the Forest Service started two projects to remove burned trees and plant seedlings. Earth Island Institute identified the burned areas as providing “snag forest habitat” for, among others, the black-backed woodpecker. According to the court, “[t]he woodpecker can only use snag forest habitat for up to a decade after a high-intensity fire at which point in time the forest will have changed naturally and the woodpecker must seek out new suitable habitat.” 626 F.3d at 467. Snag forest habitat in scarce in the Sierra Nevadas, and the Forest Service’s Moonlight and Wheeler projects threatened to make it scarcer. Earth Island contended that the Forest Service projects would destroy 40-60% of the woodpecker’s habitat within the recovery areas, which the Forest Service disputed.
Wrangling between Earth Island and the Forest Service led eventually to a Revised Final Environmental Impact Statement. Six months after issuing this “RFEIS,” the Forest Service issued an Emergency Situation Determination that allowed it to move forward with a broad tree removal project. Earth Island sought a preliminary injunction against all aspects of the project, including felling, removal and sale of trees. The district court denied the injunction, and Earth Island Institute appealed.
The court of appeals held that the district court properly applied the four-part test of Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008), requiring Earth Island to demonstrate (1) likely success on the merits, (2) irreparable harm absent the preliminary relief, (3) the balance of equities tipping in its favor, and (4) the injunction would serve the public interest.
As to (1), Earth Island contended it was likely to succeed on the merits because (a) the Forest Service project violated requirements for species viability and therefore the National Forest Management Act, (b) the RFEIS failed to respond to Earth Island’s comments, and (c) the Forest Service failed to follow its own tree marking guidelines. The court of appeals disagreed with Earth Island’s interpretation of the Plumas National Forest Plan, specifically with its assertion that the Plan required the Forest Service to ensure viability of the woodpecker. A 2007 amendment to the Plan required habitat assessment, not species monitoring, and the record showed that the Forest Service met the habitat assessment requirement throughout the project area.
As to Earth Island’s comments on the RFEIS, the court of appeals said the district court cited to numerous specific instances where the Forest Service responded in detail to Earth Island comments, found five examples in the record, and said no more was required. And Earth Island’s objections to the Forest Service’s failure to follow its own tree marking guidelines incorrectly assumed that the guidelines were binding and enforceable.