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League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Connaughton

United States Court of Appeals, Ninth Circuit

May 8, 2014

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation; HELLS CANYON PRESERVATION COUNCIL, an Oregon nonprofit corporation, Plaintiffs-Appellants,
v.
KENT CONNAUGHTON, Regional Forester, Pacific Northwest Region of the Forest Service, in his official capacity; UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; U.S. FISH & WILDLIFE SERVICE, an agency of the United States Department of the Interior; GARY MILLER, Field Supervisor, United States Fish and Wildlife Service, in his official capacity, Defendants-Appellees, BAKER COUNTY, a political subdivision of the State of Oregon; UNION COUNTY, a political subdivision of the State of Oregon; BOISE CASCADE WOOD PRODUCTS, a Delaware limited liability company; AMERICAN FOREST RESOURCE COUNCIL, an Oregon nonprofit corporation; CHARY MIRES, an individual; OREGON SMALL WOODLANDS ASSOCIATION, an Oregon nonprofit corporation, Intervenor-Defendants-Appellees

Argued and Submitted, Seattle, Washington February 5, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Oregon. D.C. No. 3:12-cv-02271-HZ. Marco A. Hernandez, District Judge, Presiding.

Thomas Buchele (argued), Earthrise Law Center, Portland, Oregon, for Plaintiff-Appellant League of Wilderness Defenders/Blue Mountain Preservation Project and Jennifer Schemm, La Grande, Oregon, for Plaintiff-Appellant Hells Canyon Preservation Council.

J. David Gunter II (argued), Robert G. Dreher, and Beverly F. Li, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Caroline Lobdell (argued), Western Resources Legal Center, Portland, Oregon, and Scott W. Horngren, American Forest Resource Council, Portland, Oregon, for Defendant-Intervenors-Appellees.

Before: Raymond C. Fisher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Gould.

OPINION

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GOULD, Circuit Judge:

The League of Wilderness Defenders/Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council (collectively " the LOWD plaintiffs" ) appeal from the district court's denial of their motion to preliminarily enjoin the Snow Basin logging project. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm in part and reverse in part the district court's order, and remand the case to the district court for the entry of a preliminary injunction, the scope of which the district court should determine on remand.

I

The Snow Basin project area encompasses nearly 29,000 acres of the Whitman-Wallowa National Forest (" the Forest" ) in northeast Oregon, and the United

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States Forest Service (" USFS" ) has been planning a logging project in this area since 2008. A draft environmental impact statement (" EIS" ) was issued in March 2011, and the final EIS (" FEIS" ) was issued in March 2012. One way in which the FEIS differed from the draft EIS is that one segment of the project, about 170 acres of regenerative logging, had been removed from consideration in the FEIS. After the adoption of the FEIS, in April 2012, the Forest Supervisor withdrew the Forest's Travel Management Plan (" TMP" ), which had proposed to regulate off-road motorized travel and reduce the amount of roads within the Forest, and which had been mentioned in addressing environmental harms from the logging project. In July 2012, the USFS issued a correction notice that said that " group selection" treatment was being considered for 130 of the 170 acres that had been removed from the draft EIS and not considered in the FEIS.

The LOWD plaintiffs filed suit seeking to enjoin the timber sale on the grounds that the USFS and the United States Fish & Wildlife Service (" USFWS" ) had violated the National Environmental Policy Act (" NEPA" ) and the Endangered Species Act (" ESA" ). The district court held that the LOWD plaintiffs were not likely to succeed on any of their claims, and that the balance of harms did not tip sharply in the LOWD plaintiffs' favor. The district court therefore denied the preliminary injunction. The LOWD plaintiffs filed a timely notice of appeal.

II

We review a district court's denial of a preliminary injunction for abuse of discretion. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940, 944 (9th Cir. 2013). An abuse of discretion occurs when the district court " based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). Because all claims raised in this appeal relate to whether the district court's view of the law was erroneous, our review of this decision of the district court is de novo. Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 744 (9th Cir. 2012).

A motion for a preliminary injunction requires that a plaintiff show 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." Winte r v. NRDC, Inc.., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).[1]

The LOWD plaintiffs' substantive NEPA and ESA claims are reviewed under the Administrative Procedure Act, which allows courts to set aside agency actions that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Factual determinations must be supported by substantial evidence. Dickinson v. Zurko,

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527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The arbitrary and capricious standard requires " a rational connection between facts found and conclusions made." W. Watersheds Project v. ...


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