Sierra Forest v. Ray Et ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY; 
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; SIERRA CLUB; THE
WILDERNESS SOCIETY,
Plaintiffs-Appellants,
SIERRA FOREST LEGACY,
Intervenor-Appellant,
v.
MARK REY, in his official capacity
as Under Secretary of Agriculture;
ABIGAIL KIMBELL, in her official No. 07-16892
capacity as Chief of the United
States Forest Service; BERNARD D.C. No.
WEINGARDT, in his official capacity  CV-05-00205-MCE
as Regional Forester, United States ORDER AND
Forest Service Region 5; ALICE AMENDED
CARLTON, in her official capacity OPINION
as Forest Supervisor, Plumas
National Forest,
Defendants-Appellees,
TUOLUMNE COUNTY ALLIANCE FOR
RESOURCES & ENVIRONMENT;
CALIFORNIA FOREST COUNTIES
SCHOOLS COALITION; REGIONAL
COUNCIL OF RURAL COUNTIES;
WESTERN COUNCIL OF INDUSTRIAL
WORKERS; KLAMATH ALLIANCE FOR
RESOURCES &

5767
5768 SIERRA FOREST LEGACY v. REY
ENVIRONMENT; COARSE GOLD 
RESOURCE CONSERVATION DISTRICT/
EASTERN MADERA COUNTY FIRE
SAFE COUNCIL; TULARE COUNTY
RESOURCE CONSERVATION DISTRICT;
SIERRA RESOURCE CONSERVATION
DISTRICT; STRAWBERRY PROPERTY
OWNERS’ ASSOCIATION; HUNTINGTON
LAKE ASSOCIATION; HUNTINGTON
LAKE BIG CREEK HISTORICAL
CONSERVANCY; CALIFORNIA
EQUESTRIAN TRAILS & LANDS
COALITION; CALIFORNIA FORESTRY
ASSOCIATION; CALIFORNIA LICENSED 
FORESTERS ASSOCIATION;
CALIFORNIA/NEVADA SNOWMOBILE
ASSOCIATION; AMERICAN FOREST &
PAPER ASSOCIATION; AMERICAN
FOREST RESOURCE COUNCIL;
BLUERIBBON COALITION; CALIFORNIA
SKI INDUSTRY ASSOCIATION;
CALIFORNIA CATTLEMEN’S
ASSOCIATION; QUINCY LIBRARY
GROUP; PLUMAS COUNTY,
Defendant-intervenors-
Appellees.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
March 10, 2008—San Francisco, California
Filed May 14, 2008
Amended May 15, 2008
SIERRA FOREST LEGACY v. REY 5769
Before: Stephen Reinhardt, John T. Noonan,
Raymond C. Fisher, Circuit Judges
Opinion by Judge Noonan;
Concurrence by Judge Noonan
SIERRA FOREST LEGACY v. REY 5771
COUNSEL
David Edelson, Berkeley, California, for the plaintiffs-
appellants.
Jennifer Scheller, Washington, D.C., for the defendants-
appellees.
ORDER
The opinion filed on May 14, 2008 is amended as follows:
Replace the final paragraph with “For the reasons stated,
we REVERSE the district court’s denial of a preliminary
injunction and REMAND with instructions to grant immedi-
ately a preliminary injunction on the three proposed projects
to the extent that they are inconsistent with the 2001 FEIS.”
OPINION
NOONAN, Circuit Judge:
Sierra Forest Legacy (Sierra Forest) appeals the decision of
the district court denying a preliminary injunction against the
United States Forest Service (the USFS or the Forest Service)
in a suit challenging its decision to permit logging in accor-
dance with changes made in 2004 by the USFS in the relevant
forest plan. Other parties, noted in the caption, have inter-
vened on each side. The Attorney General of California,
Edmund G. Brown, Jr., has filed an amicus brief in support
of Sierra Forest.
We hold that the district court abused its discretion. We
reverse and remand.
5772 SIERRA FOREST LEGACY v. REY
PROCEEDINGS
Sierra Forest is comprised of the Sierra Nevada Forest Pro-
tection Campaign, Center for Biological Diversity, Natural
Resources Defense Council, Sierra Club, and The Wilderness
Society, many of whose members enjoy and are educated by
the affected forests and the wildlife dependent on habitats
within them. This suit was begun in 2005 in response to the
Supplemental Environmental Impact Statement (SEIS) issued
by the USFS in January of 2004 as a supplement to the Final
Environmental Impact Statement (FEIS), issued by the USFS
in 2001 in implementation of the Sierra Nevada Forest Plan
Amendment.
Under the SEIS, the USFS approved logging in three spe-
cific sites: Basin, Empire, and Slapjack. On September 10,
2007, the USFS announced that it intended to advertise and
award logging contracts for these sites. On September 21,
2007, Sierra Forest moved for a preliminary injunction. On
October 15, 2007, the district court denied the motion.
Sierra Forest appeals, raising several claims under the
National Forest Management Act (NFMA), 16 U.S.C.
§§ 1600-1614, and the National Environmental Policy Act
(NEPA), 42 U.S.C. §§ 4321-4370f. In light of our disposition,
we do not reach all of the arguments raised by Sierra Forest.
ANALYSIS
The Standard
Our review is a review of a motion preliminary to a trial.
As the district court’s decision is preliminary, so must our
decision be preliminary. It is not on the merits. We need not
address all aspects of the projects. Our decision must defer to
the discretion of the district judge who has had to act with
some dispatch. See Lands Council v. Martin, 479 F.3d 636,
639 (9th Cir. 2007) (citation omitted). When a preliminary
SIERRA FOREST LEGACY v. REY 5773
injunction is sought, there is a sense of urgency on each side
— to go ahead expeditiously with the project; to stop what is
seen as harm that cannot be undone. Deferential as we are, we
cannot default in reviewing de novo the law binding on the
judge who has discretion but not carte blanche. See Sports
Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th
Cir. 1982). We state only the facts relevant to the result.
A district court abuses its discretion if it bases its decision
on an erroneous legal standard or clearly erroneous finding of
fact. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d
1291, 1298 (9th Cir. 2003) (citation omitted). The familiar
criteria to be met to obtain the issuance of an injunction
before the trial are a strong likelihood of success on the mer-
its; the possibility of irreparable harm; a balance of hardships
favoring the plaintiffs; and advancement of the public interest.
See id. at 1297-98 (citation omitted).
Probability of Success on the Merits
There is no disagreement that USFS is authorized to take
action to prevent the occurrence of forest fires. One necessary
step is the clearing of brush, including the removal of small
trees. Doing so involves the expenditure of funds. The USFS
does not assert, however, that it is necessary as a preventive
measure to cut down the larger trees that provide the habitat
in which various species thrive. These trees constitute a desir-
able prize for loggers who seek to convert them into lumber
for commercial purposes. The USFS acknowledges that its
reason for selling the forest trees to commercial loggers is to
raise funds to carry on its fire prevention duties. Sierra Forest
and the State of California seek to preserve the larger trees
and so to preserve the habitat that supports various species.
We need decide here a limited and narrow issue: Does the
2004 SEIS prepared by USFS regarding its plans to sell off
the forest trees comply with the requirements of NEPA?
[1] Sierra Forest argues that USFS violated NEPA’s
requirement to “[r]igorously explore and objectively evaluate
5774 SIERRA FOREST LEGACY v. REY
all reasonable alternatives” to a proposed plan that has signifi-
cant environmental effects. 40 C.F.R. § 1502.14(a) (2000).
USFS cannot rely on its discussion of alternatives in the 2001
FEIS to satisfy this requirement for the 2004 SEIS. “[W]here
changed circumstances affect the factors relevant to the devel-
opment and evaluation of alternatives,” USFS “must account
for such change in the alternatives it considers.” Natural Res.
Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th
Cir. 2005) (citation omitted).
[2] Such changed circumstances plainly exist here. First,
USFS altered its modeling techniques between the issuance of
the 2001 FEIS and the 2004 SEIS and failed to update its
analysis of the 2001 FEIS alternatives under these new tech-
niques. Second, the 2004 SEIS introduced substantively new
objectives from those contained within the 2001 FEIS. A pri-
mary purpose of the new framework adopted by the SEIS is
the provision of funds for the reduction of fuel, that is, for the
reduction of the risk of fire in the forests. This goal has
become an imperative after the catastrophic fires that have
devastated forests in the northwest. Severe wildfires have
increased dramatically in the Sierra Nevada from an average
of 43,000 acres per year ten years ago to an average of 63,000
acres per year. Control of wildfires is an imperative for the
inhabitants of land bordering the forests. It is an imperative
for defenders of the habitat and the wildlife within them. Fire
is a force that must be managed if the environment is to be
protected.
The SEIS proposes a simple solution:
Opportunities for Leveraging Appropriated Funds to
Accomplish Fuels Treatments
Under Alternative S2, revenues from the sale of
commercial forest products could be obtained from
some fuels treatments. This would increase the like-
lihood of accomplishing the projected acres of treat-
SIERRA FOREST LEGACY v. REY 5775
ment, an essential first step in achieving the desired
reductions in acres burned. Where consistent with
desired conditions, area treatments would be
designed to be economically efficient and meet mul-
tiple objectives.
Timber sale contracts provide a mechanism for the
efficient removal of commercially-valuable sawtim-
ber. Contracts that have sufficient value offer capa-
bilities for funding the accomplishment of additional
resource management goals. Records from recent
timber offerings indicate that sales with higher vol-
umes per acre attract higher bids. Sales yielding an
average 4.5 mbf/acre provide approximately $112/
mbf, compared to only $38/mbf for 1.5 mbf/acre
(Lamdram, pers comm).
The size of tree made available for harvest has a
significant influence on sale volume per acre aver-
ages and thus, per unit bid values. Assuming typical
heights, the board foot volume for a 12-inch dbh tree
is 39, compared to 317 for a 20 inch tree and 710 for
a 24 inch tree. Using these assumptions, 77 twelve-
inch dbh tress would be needed to reach the mini-
mum economically feasible sale volume (estimated
at 3 mbf/acre). This compares to 9 trees of 20-inch
dbh and 4 trees of 24-inch dbh. In summary, includ-
ing only a few medium-sized trees can make an
impact on the economic viability of a given project.
A number of options are available for deriving
commercially-valuable wood products from fuels
treatments. Where wood-fired electrical generation
facilities exist and sufficient sawtimber value is pres-
ent, small trees, e.g. biomass, can be removed. Bids
in excess of required collections may also be made
available for fuel reduction treatments within the
sale area boundary. These may include:
5776 SIERRA FOREST LEGACY v. REY
1) Shredding of ladder fuels, i.e. small
trees, woody shrubs, and surface fuel,
2) Prescribed fire treatment following tim-
ber harvest, or
3) Fuel reduction treatment outside timber
sale units (within the time sale area bound-
ary).
Alternatively, a stewardship contract package (a
service contract, not a timber sale contract), that
includes commercially-valuable sawtimber, may
provide for cost-effective implementation of multi-
ple fuels reduction projects within the contracted
area.
In amplification, the USFS replied to the following public
comment:
9.2.4. Public Concern: The Final SEIS should not
claim that increased logging levels will increase for-
est protection, or it should scientifically justify that
assertion.
Response: Alternative S2 in the SEIS was developed
to provide opportunities for increasing available
funds for fuels reduction work on the national for-
ests. This alternative increases revenues by permit-
ting the removal of some medium-sized trees from
some areas. The SEIS does not suggest that remov-
ing these trees will alter stand structure in ways that
significantly enhance fire protection. It is the
increase in available funds from logging that can be
used to increase fuels reduction work. But the work
would be done on other lands. See the discussion on
fuels treatment economics in the SEIS (Chapter 4,
Economics of Fuels Treatments) for more informa-
SIERRA FOREST LEGACY v. REY 5777
tion about treatment costs and the value of additional
timber harvest to fuels reduction work. The Final
SEIS (Chapter 4, Fire and Fuels Management) has
an expanded discussion regarding the economics of
fuels treatments.
Sell trees to loggers. Use the money to clear areas of what
is potential fuel for fire. The solution has a secondary benefit:
what the loggers cut can, at least in part, be timber that was
potential for fire. In one sale, a fire hazard can be removed
and the USFS paid so that it can remove the fuel of future
fires.
Two for one always has an attractive ring. But are there no
alternative ways of getting money to do the clearing that is
imperative? Obviously, there may be. First of all, there is the
USFS’s own budget. Does that budget contain any funds that
could be devoted to fuel removal? Is every one of its activities
so necessary and so tightly allocated that no money could be
shifted? We do not know the answer because this alternative
has not been explored.
Suppose that the USFS and its parent, the Department of
Agriculture, cannot spare a dime. What then? Appropriate
appropriations come from Congress. The work of fire preven-
tion is work of the first importance. If the USFS does not have
enough, why should not Congress be asked to give it more?
Surely the avoidance of catastrophic fire in the national for-
ests must rate a high priority among the needs of the nation.
[3] Alternatives considered in the 2001 FEIS address the
critical problem of fuel reduction. Several of them (F3, F4,
F6, and F7) are projected as achieving an acreage reduction
of over 30% in the first five decades as opposed to a 22%
reduction that is projected in the adopted Alternative S2.
These alternatives do not appear to have been reexamined in
the light of the new urgency of fire prevention.
5778 SIERRA FOREST LEGACY v. REY
[4] The Attorney General of California raised several alter-
native methods to fund USFS’s fire reduction objectives,
including requesting a special appropriation from Congress,
re-prioritizing other funding, and altering its fuel treatment
program. USFS failed to consider these alternatives in its
implementation of the 2004 SEIS. So long as all these alterna-
tives remain unexamined or unreexamined, so long does the
SEIS fail to conform to the law. The district court abused its
discretion in concluding that USFS complied with NEPA’s
requirement to “[r]igorously explore and objectively evaluate
all reasonable alternatives.” 40 C.F.R. § 1502.14(a) (2000).
Balancing of Equities
[5] The legal merits of the Sierra Forest’s case, at this stage
of the litigation, are strong. To justify a preliminary halt to the
projects the real possibility of irreparable harm is still
required. It is not necessary to canvass all the species that may
be affected and all the environmental harm that might ensue.
It suffices in this case to take account of the status of the spot-
ted owl whose range relates to the affected forests. True, the
species exists in southern California as well as in the north-
west; but the species as a whole has been classified as “sensi-
tive” by the Forest Service. The proposed logging will not
destroy the species. What it will do is reduce its established
habitat. The possibility that this reduction in its range will
irreparably damage the sensitive species cannot be dismissed.
[6] Postponement of the Forest Service plans may increase
the danger posed by fires; but the Forest Service and Congress
do not appear helpless to find the funds to decrease the dan-
gers. The question we address here is whether USFS’s choice
of funding for fire reduction — rather than fire reduction itself
— outweighs California’s preservation interests. We conclude
that it does not, given that “special solicitude” should be
afforded California’s stake in its natural resources and that the
Forest Service did not consider alternatives to its choice of
SIERRA FOREST LEGACY v. REY 5779
funding. Massachusetts v. Envtl. Prot. Agency, 127 S. Ct.
1438, 1454-55 (2007).
Public interests are further implicated: the importance of
preserving the environment and of enforcing the law intended
to preserve it. See Amoco Prod. Co. v. Vill. of Gambell, 480
U.S. 531, 545 (1987).
[7] For the reasons stated, we REVERSE the district court’s
denial of a preliminary injunction and REMAND with
instructions to grant immediately a preliminary injunction on
the three proposed projects to the extent that they are incon-
sistent with the 2001 FEIS.
NOONAN, Circuit Judge, concurring:
Impaired Impartiality. That judges cannot supplement their
salaries, however inadequate they may be, by imposing fines
provided by law on those convicted of lawbreaking seems to
be a pretty elementary principle of justice. Yet the civilized
state of Ohio and the Supreme Court of that state saw nothing
to object to in the practice until the Supreme Court of the
United States unanimously held it to be a deprivation of due
process for a municipal officer to get $12 out of a $100 fine
that he had legally imposed. Tumey v. Ohio, 273 U.S. 510(1927).
Almost as elementary is the extension of this principle to
administrative adjudicators. See Gibson v. Berryhill, 411 U.S.
564, 579 (1973) (citation omitted).
The bias created need not be personal, that is, the adjudica-
tor to be found biased need not be paid off by his decision.
The bias can arise from his decision being a way of raising
money for the municipality he serves. Ward v. Vill. of Mon-
roeville, 409 U.S. 57 (1972). Once again, the civilized state
5780 SIERRA FOREST LEGACY v. REY
of Ohio and its Supreme Court had to be corrected by the
United States Supreme Court finding a denial of due process
when fines imposed by the mayor were “a substantial portion”
of the municipality’s income, although the mayor’s own sal-
ary was fixed and independent of the fines. Id. at 59. The test,
failed by Ohio’s statutory scheme, was whether “a possible
temptation” was offered the mayor acting as judge “not to
hold the balance nice, clear, and true.” Id. at 60 (quoting
Tumey, 273 U.S. at 532).
It would not seem to require a Euclid to draw appropriate
inferences from the governing principle of impartiality. Yet it
has not been easy. Two justices dissented in Gibson, asserting
that only personal gain disqualified the decider. 411 U.S. at
84 (White, J. and Rehnquist, J., dissenting). Forty years after
Tumey, three states still used the statutory scheme of a judge
supporting himself by his own judgments that was condemned
as unconstitutional in Tumey. See K. Davis, Administrative
Law Text § 12.04 (1972). In many instances the necessity of
having a judge has been allowed to trump the necessity of a
judge who is impartial. Id. at § 12.05. A distinction has also
been drawn between a judicial or quasi-judicial role and a leg-
islative role where impartiality is not a requisite. Id. at
§ 12.04. A financial interest may also be so slight as to be dis-
counted as a disqualifier. Marshall v. Jerrico, Inc., 446 U.S.
238, 245-46 (1980).
Custom or indifference cannot legalize a departure from
what is required by the criterion of impartiality. Necessity
may make an inroad, and it might be argued that the USFS is
necessitous; it says it doesn’t have the money it needs unless
it sells the forests. That argument takes too narrow a view of
the position of the USFS. It has a budget that may be mallea-
ble. It exists within a department that may have discretionary
funds. It is the arm of a nation whose credit, not inexhaustible,
is strong enough not to require supplementation by sales of
the nation’s timber. Necessity, in a word, has not been estab-
lished.
SIERRA FOREST LEGACY v. REY 5781
We do not need, on the facts of this case, more information
on the budget of the Forest Service. It has been suggested in
earlier litigation concerning similar timber sales by the Forest
Service that this information should be furnished. See Earth
Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1178 (9th Cir.
2006) (Noonan, J., concurring); Earth Island Inst. v. U.S. For-
est Serv., 351 F.3d 1291, 1309 (9th Cir. 2003) (Noonan, J.,
concurring). In this case, the Forest Service makes no secret
of the importance of the sales to its approval of the projects.
Fund-raising for fuel-reduction is a substantial purpose.
The Forest Service has a final argument, unfurled as its
lead argument in oral argument. It is that its approval of the
three contested projects denies no person the right to life, lib-
erty or property. Hence due process of law is not required and
nothing but due process requires impartiality. This bold claim
calls for careful consideration.
Undisputed is the standing of Sierra Forest to assert the
interest of those individual members affected by the destruc-
tion of the environment and its species. “Aesthetic and envi-
ronmental well-being, like economic well-being, are
important ingredients of the quality of life in our society,”
important enough to confer standing under the Administrative
Procedure Act, 5 U.S.C. § 702, to redress an injury in fact.
Sierra Club v. Morton, 405 U.S. 727, 734 (1972). These are
elements of the liberty enjoyed by a citizen. An injury in fact
inflicted by a decision of the USFS must necessarily be the
denial of a result to which the plaintiffs were legally entitled.
If the plaintiffs were entitled to the result, were the plaintiffs
not entitled to an unbiased decision-maker? The injury
asserted here is alleged to arise under NEPA. Invoking the
federal law, Sierra Forest was entitled to seek its application
by an agency which was without an interest of its own in a
result contrary to the law.
Why is there a case before us if no person’s rights were at
stake? We do not sit to adjudicate general policy disputes but
5782 SIERRA FOREST LEGACY v. REY
to decide controversies. A controversy calls for two parties,
each asserting an interest and a right that protects that interest.
So here, Sierra Forest is not a plaintiff without an interest and
a right. We do not need to dismiss the case for want of a con-
troversy. Nor do we need to find that no right is at issue. The
right Sierra Forest seeks to vindicate here did not arise with
the USFS’s decision. The right was what Sierra Forest sought
to vindicate before the USFS.
It is possible that a crucial distinction here may be made
between rulemaking and adjudicating, if it is meaningful to
separate administrative action into these two tight compart-
ments. Rulemaking by an administrative agency, like legisla-
tion by a legislature, seems exempted from scrutiny for
conflict of interest. When the Forest Service develops a forest
plan it is engaged in rulemaking and it needs only to provide
for the kind of notice and comment that rulemaking requires.
See 36 CF.R. § 219.9. Forest plans “do not grant, withhold, or
modify any contract, permit, or other legal instrument, subject
anyone to civil or criminal liability, or create any legal
rights.” Id. at § 219.3(b). A forest plan in itself “does not give
anyone a legal right to cut trees, nor does it abolish anyone’s
legal authority to object to trees being cut.” Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
Rights enter the picture when the Forest Service moves to
site-specific projects. In this step, the Forest Service imple-
ments the plan in a specific location by selecting a timber sale
area, preparing an environmental assessment in accordance
with NEPA, allowing public comment, and awarding a timber
harvesting contract to the highest bidder. See id. at 729-30;
Sierra Club v. Peterson, 228 F.3d 559, 562 (5th Cir. 2000);
36 C.F.R. § 223.1. Each site-specific project and timber sale
contract must be consistent with the applicable forest plan. 36
C.F.R. § 219.8(e), § 223.30.
The Forest Service introduces its bias at the stage of mak-
ing the forest plan, while case law prohibits bias only at the
SIERRA FOREST LEGACY v. REY 5783
stage of awarding contracts. This delay in the bite of the bias
should not insulate it from judicial review. The financial
incentive of the Forest Service in implementing the forest
plan is as operative, as tangible, and as troublesome as it
would be if instead of an impartial agency decision the agency
was the paid accomplice of the loggers.
That the difference between judicial and legislative func-
tions makes a difference as to the impropriety of monetary
benefit to the decision-makers is a fallacy. The bribery of a
congressman is a crime. See 18 U.S.C. § 201; United States
v. Brewster, 408 U.S. 501 (1972). It would not make a differ-
ence if the bribe came from a trade association on behalf of
a whole industry. See, e.g., United States v. Sun-Diamond
Growers of California, 526 U.S. 398 (1999). In the instant
case the decision-makers are influenced by the monetary
reward to their agency, a reward to be paid by a successful
bidder as part of the agency’s plan.
Independently of the grounds set out in my opinion for the
court, I would hold this defect in the process to vitiate entirely
the ultimate decisions, without the necessity of balancing, and
to require judicial setting aside of the implementation of the
process.