Ninth Circuit Court Thumbs Nose At the Supremes

Wednesday the United States Court of Appeals, Ninth Circuit, in the persons of William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Michael W. Mosman, District Judge sitting in, enjoined the Rat Creek Salvage Project.

In August and September of 2007, the Rat Creek Wildfire burned about 27,000 acres in the Beaverhead-Deerlodge National Forest in Montana. On July 1, 2009, almost two years later, the Chief Forester of the Forest Service made an Emergency Situation Determination for the Rat Creek Salvage Project (”the Project”).

The Project permits salvage logging of trees on approximately 1,652 of the 27,000 acres that were burned on thirty-five units of land ranging from 3 to 320 acres in size.

Appeals court halts logging in Rat Creek Salvage project

By MATT VOLZ, Helena IR, June 26, 2010 [here]

A federal appeals court has blocked the U.S. Forest Service from logging trees on more than 1,600 acres of burned forest in southwestern Montana, but the agency says most of the timber already has been harvested.

The 9th U.S. Circuit Court of Appeals on Thursday ordered a preliminary injunction against the Rat Creek Salvage Project in the Beaverhead-Deerlodge National Forest. The injunction halts the project until a final decision is made in the case.

The project, about 15 miles west of Wisdom, calls for logging trees that have died or are likely to die as a result of a 2007 fire or due to insect attacks. It also calls for building seven miles of temporary roads that would be destroyed after the project, and reconditioning three miles of existing roads.

In a lawsuit filed last July, the Alliance for the Wild Rockies and Native Ecosystems Council said forest managers underestimated the environmental damage that could result from the logging project. …

Forest Service spokeswoman Leona Rodreik said spring weather had halted the project, and it was unclear when it had been planned to start up again.

She said her agency is disappointed in the appeals court’s decision but that 85 percent of the 1,652 acres have been logged already.

“Until an opinion is issued, there’s really not much we can say or do,” she said. …

The Opinion was issued July 28th [here]. The 9th Court ruled:

Alliance for the Wild Rockies (”AWR”) appeals the district court’s denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, we issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010).

The logic (or ill-logic) the 9th Court used is important. First, they noted that the District Court (U.S. District for Montana, Judge Donald Molloy presiding) ruled that the Plaintiffs:

…do not show a likelihood of success on the merits, nor that irreparable injury is likely in the absence of an injunction. This determination prevents the issuance of a preliminary injunction at this stage of the proceedings.

The 9th Court also noted that their job is to “review a district court’s denial of a preliminary injunction for abuse of discretion.” They also noted that the Supreme Court had overruled a previous 9th Court decision on this point, in the aforementioned Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), which the district court cited.

The 9th Court interpreted the Supreme Court’s decision as follows:

In Winter, the Supreme Court disagreed with one aspect of this circuit’s approach to preliminary injunctions. We had held that the “possibility” of irreparable harm was sufficient, in some circumstances, to justify a preliminary injunction. Winter explicitly rejected that approach. Winter, 129 S. Ct. at 375-76. Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction. Id. The Court wrote, “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 374. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 376.

However, the 9th Court judges continued, the Supremes made a crucial error. They did not address the “sliding scale approach” invented by the 9th Court in previous cases:

The majority opinion in Winter did not, however, explicitly discuss the continuing validity of the “sliding scale” approach to preliminary injunctions employed by this circuit and others. Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. See, e.g., Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003).

Whoops! Those silly Supremes. They screwed up!

The Supremes said a Plaintiff must show the likelihood of injury, should the action take place, in order to get an injunction. But the 9th Court says no, there is a “sliding scale.” and the Plaintiff’s burden is relative. Plaintiffs need not show likelihood of harms. Instead a Plaintiff can use any old argument to “balance” the scales of justice, just so long as a weak argument is “offset” by something else.

Note that the 9th Court garbled the logic. The trial judge (Molloy) found that the Plaintiffs failed to show the likelihood of irreparable harm. The 9th Court held that “a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” But that’s not the situation. The Plaintiffs did NOT present a “stronger showing of irreparable harm.” That’s exactly where their case fell apart. The 9th got confused, deliberately. They want everybody to think that irreparable harm was shown to be likely, when it wasn’t.

All of the Plaintiffs’ arguments were weak. There was no “strong showing” in some aspect that would “offset” the weakness of the other aspects of their case.

But oh well, the 9th Court, using garbled and erroneous ill-logic, therefore chucks the Supreme’s decision to the wind, and goes back to their same old same old. Instead of a Plaintiff needing to show likelihood of irreparable harms, the Plaintiff need only raise “serious questions”.

For the reasons that follow, we hold that the “serious questions” approach survives Winter when applied as part of the four-element Winter test. In other words, “serious questions going to the merits” and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.

Justice Ginsburg explicitly noted in her dissent in Winter that the “Court has never rejected [the sliding scale] formulation, and I do not believe it does so today.” Winter, 129 S. Ct. at 392 (Ginsburg, J., dissenting). …

Catch that? The 9th Court cites the dissenting opinion of ACLU-trained Supreme Ginsberg, not the majority opinion. And directly and explicitly counters the very specific directions they were given by Winters. In your face, Supremes!

So the 9th Court went back to their old schemes and issued the injunction anyway.

The value of this circuit’s approach to assessing the merits of a claim at the preliminary injunction stage lies in its flexibility in the face of varying factual scenarios and the greater uncertainties inherent at the outset of particularly complex litigation.

The Supreme Court’s recent opinions… have not undermined its approval of the more flexible approach…

It would be most unfortunate if the Supreme Court or the Ninth Circuit had eliminated the longstanding discretion of a district judge to preserve the status quo with provisional relief until the merits could be sorted out in cases where clear irreparable injury would otherwise result and at least “serious questions” going to the merits are raised…

Yeah well, unfortunate or not, that’s what the Supreme’s did. At any rate, they ruled that the Plaintiff must show the likelihood of harms. Judge Molloy applied the Supreme’s decision and found that the Plaintiffs “had not shown the requisite likelihood of irreparable injury and success on the merits.”

What is it about the words “not shown” that the 9th Court interprets as a “clear” showing? When something is not shown, that means it is not shown. End of case.

The 9th Court, however, found that Judge Molloy had not touched all the right bases. He followed Winters all right, but did not substitute the “serious questions” for “likelihood of harms”. Molloy did what the Supremes ordered federal judges to do. The 9th Court didn’t like that:

Because it did not apply the “serious questions” test, the district court made an error of law in denying the preliminary injunction sought by AWR. We conclude that AWR has shown that there is a likelihood of irreparable harm; that there are at least serious questions on the merits concerning the validity of the Forest Service’s Emergency Situation Determination; that the balance of hardships tips sharply in its favor; and that the public interest favors a preliminary injunction.

Catch that? The District Judge found that the Plaintiffs did NOT show the “requisite likelihood of irreparable injury” but the 9th Court found that didn’t matter, as long as they raised some “serious questions”.

The 9th Court pulled their ruling out of their collective nowheres.

Note also that the 9th Court did not rule based on NEPA or the ESA or any other law that addresses environmental harm. Nope, environmental harm was not at issue.

While that public interest is most often noted in the context of NEPA cases, we see no reason why it does not apply equally to violations of the ARA.

But ARA (the Appeals Reform Act, [here]) says absolutely nothing about the environment. It is strictly the procedure the USFS must follow in collecting public comments and processing appeals.

That did not dissuade the 9th Court that finding “environmental” injury in ARA, despite the fact that the trial judge (Molloy) found that the Plaintiffs FAILED to show the likelihood of any environmental harm.

The 9th Court in effect thumbed their noses at the Supremes. That’s what this case was all about. Alleged environmental harms had nothing to do with their decision. It was all about spitting back at the Supremes in an attempt to gut the Supreme’s decision in Winters. Judge Michael W. Mosman, United States District Judge for the District of Oregon, sitting on the 9th Court panel “by designation” wrote:

Today’s holding that the “serious questions” test remains valid post-Winter is an important one for district courts tasked with evaluating requests for preliminary injunctions. The task is often a delicate and difficult balancing act, with complex factual scenarios teed up on an expedited basis, and supported only by limited discovery. A sliding scale approach, including the “serious questions” test, preserves the flexibility that is so essential to handling preliminary injunctions, and that is the hallmark of relief in equity. See Winter, 129 S. Ct. at 391 (Ginsburg, J., dissenting); see also Miller v. French, 530 U.S. 327, 361 (2000) (Breyer, J., dissenting).

Get that? Once again the 9th Court cites dissents for the purpose of undercutting the MAJORITY opinion of the U.S. Supreme Court.

And what is the upshot? That the commies win! The pro-holocaust, burn America to the ground lobby gets to monkey wrench healthy forest restoration and recovery treatments while megafires rage across whole regions.

The rogue 9th Court spits on the Supremes, but they love holocausts. They abjure forest treatments to prevent or repair catastrophic fires. They are arsonists par arsonists, America-hating nutballs.

And so it goes.

30 Jul 2010, 2:27pm
by Larry H.

I have “serious questions” about the sanity of our current legal system and the 9th Circuit Court. Many judges think that forestry is easy, compared to the law. I say, let’s drag those judges out into the soot and char of a high-intensity wildfire and let them see, hear, taste and smell all the damage of a re-burn. When fuels aren’t reduced after a wildfire, the “irreparable damage” becomes a certainty when the next inevitable wildfire returns within 20 years.

Also, I have questioned the Planning Rule folks about why we aren’t revising the salvage policies of today’s National Forests. The new Rules are supposed to be addressing “climate change”, water quality, forest health, rural jobs and restoration. Salvage projects deal with ALL of those issues but, there hasn’t been a peep from ANYONE about that flavor of gridlock and legal monkeywrenching.

The “snaghuggers” also feed at the EAJA slop trough, too! The strategy of the Forest Service on some salvage projects is to whip the plans together, get the decision signed, sell the timber and get logging “substantially-completed” before the eco-lawyers can reach the 9th Circuit. I think we need to start own own kind of “delay tactics”, to enable the projects to become as finished as possible.

Reply: The old “chain the judge to a tree during a forest fire” suggestion. It’s still a good one.

31 Jul 2010, 2:55pm
by Larry H.

Usually, these salvage projects first go to a local court, where the Judge is more sympathetic to the restoration of burned areas in their own jurisdictions. The strategy should be to drag out those procedings, presenting every shred of scientific evidence supporting today’s cutting-edge salvage “restoration” and “fuels reduction” projects. As well, I have been pushing for increased analysis of the “No Action” alternative, laying out just what damage “is likely to happen” if the project(s) are not implemented. Salvage projects are truly multiple use/multiple benefit projects we need to be doing more of.

The longer it takes to get through the lower court, the longer our loggers have to make an eco-appeal to the 9th a “moot point”. Unfortunately, they will probably catch on to the tactic and speed up their own devious schemings.

12 Aug 2010, 6:31am
by Mike

A more lawyerly review of this case may be found at Marten Law [here]

…With respect to Plaintiffs’ likelihood of success on the merits, the Ninth Circuit determined that, because the Forest Service considered the local economy in making its emergency designation for logging – a factor that the ARA does not allow it to consider in that context – Plaintiffs raised “serious questions on the merits of its claim” regarding the validity of the emergency determination.

Balancing the hardships, the Ninth Circuit found that Plaintiffs would suffer more harm than Defendants, as logging will result in “work and recreational opportunities [being] … irreparably lost,” and Plaintiffs were denied their right to seek an administrative remedy through the Forest Service process due to the emergency determination. The Ninth Circuit found that the Forest Service’s potential loss of between $16,000 and $70,000 in revenue, as well as its potential inability to mitigate the mistletoe infestation, did not weigh as heavily.

Finally, the Ninth Circuit weighed the public interest in (a) between 18 and 26 temporary jobs for one year and associated benefits to the local economy against (b) “preserving nature and avoiding irreparable environmental injury.”[17] The court determined that the scales tipped sharply toward the latter interest.

Accordingly, the Ninth Circuit reversed the district court and remanded the case with direction to enjoin the logging project.

In Winter and related cases, the Supreme Court explicitly rejected the Ninth Circuit’s lower standards for finding irreparable harm in the context of injunctive relief requests, requiring that harm to be likely, not just possible. In Alliance, the Ninth Circuit purports to follow Winter. Whether it actually does is arguable. Regardless, the court has set a low bar to establish irreparable harm, possibly improving plaintiffs’ prospects for obtaining injunctive relief in environmental cases.

12 Aug 2010, 7:20am
by Larry H.

Economics is undeniably linked to salvage logging, and it MUST be in order to accomplish the true measure of a fire salvage project. That goal should be the maximum utilization of the smallest merchantable snags. A “proper” mix of snag diameters can be found and the projects should be enabled to do their beneficial work in an economical and professional way.

Those judges need to see some of my photos showing no impacts to the land after a mere 6 months of work completion.

12 Aug 2010, 12:06pm
by Bob Zybach


Justice is blind. So are these judges. They are both woefully and willfully blind, and are not about to have their agenda challenged by facts — whether provided by your photographs or any other sources of information.

These people are the public enemies of rural economies and forest health, and their consistent words and deeds underscore that charge. Their minds are made up and they refuse to be swayed by common sense or legal evidence.

We need foresters managing our forests, pilots flying our planes, medical doctors performing our surgeries — these are not the jobs or specialties of judges, nor should they be.

Time for a change. But how?



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