Wildwest Institute v. Bull

FILED
FOR PUBLICATION NOV 29 2006

CATHY A. CATTERSON, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILDWEST INSTITUTE; FRIENDS OF No. 06-35662
THE BITTERROOT, INC.,
D.C. No. CV-06-00066-DWM
Plaintiffs - Appellants,

v. OPINION

DAVE BULL; ABIGAIL KIMBELL;
UNITED STATES FOREST SERVICE,

Defendants - Appellees,

BITTER ROOT RESOURCE
CONSERVATION AND
DEVELOPMENT AREA, INC.;
RAVALLI COUNTY; SULA
VOLUNTEER FIRE DEPARTMENT;
ROBERT WETZTSEON; BECKI
LINDERMAN; ROCKY MOUNTAIN
LOG HOMES,

Defendants-Intervenors -
Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Argued and Submitted November 15, 2006
Portland, Oregon
 Filed November 29, 2006

Before: GOODWIN, O’SCANNLAIN, and FISHER, Circuit Judges.

Opinion by Judge O’Scannlain

O’SCANNLAIN, Circuit Judge

In this interlocutory appeal, we must decide whether the district court

abused its discretion in denying a preliminary injunction against the United States

Forest Service’s implementation of the Middle East Fork Hazardous Fuel

Reduction Project in the Bitterroot National Forest in Montana.

I

The Middle East Fork Hazardous Fuel Reduction Project (“MEF Project”)

was developed under the authority of the Healthy Forests Restoration Act

(“HFRA”), 16 U.S.C. § 6501 et seq., which directs the Forest Service (“Service”)

to implement fuel reduction projects “as soon as practicable” on federal land at

risk from an insect epidemic. After a long process, the Service adopted

“Alternative-2 Modified,” which calls for the treatment of 4938 acres of land in

the Bitterroot National Forest, as the plan for the MEF Project. The stated

purposes for the action are (1) to reduce wildland fire threats to the Middle East

Fork community, (2) to restore fire-adapted ecosystems in the Middle East Fork

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landscape, and (3) to restore stands affected by the Douglas-fir bark beetle

epidemic by treating infested areas and lands at risk.

A coalition of interested groups comprised of WildWest Institute and the

Friends of the Bitterroot (collectively “WildWest”) filed a complaint for

declaratory and injunctive relief against implementation of the MEF Project in the

district court for the District of Montana on April 26, 2006. A hearing on a

motion for a preliminary injunction was held on June 30, 2006, before Chief Judge

Molloy who promptly issued an Order which considered the probability of success

on the merits of each of plaintiffs’ claims, as well as the possibility of irreparable

injury. Although the court stated that some valid concerns about the MEF Project

were raised, especially regarding the opinions of the soil scientist Ken McBride, it

concluded that the likelihood of success on the merits of the claims before it was

low. It also found that as to irreparable injury, the “[p]laintiffs’ arguments are

asserted with little citation to either scientific evidence or case law.” In contrast,

the court considered the risk of a severe wildfire in the next 10-15 years and its

effect on the Middle East Fork community as a measurable injury. The district

court therefore denied Wildwest’s motion for a preliminary injunction.

Because a full trial on WildWest’s claims is to resume on December 8,

2006, we have expedited consideration of this timely appeal.

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 II

Our review of the denial of a preliminary injunction “is limited and

deferential.” Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914,

918 (9th Cir. 2003). We ask only whether the district court has abused its

discretion. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir. 1999); see

also Purcell v. Gonzalez, No. 06-532, 2006 WL 2988365 (U.S. Oct. 20, 2006). As

we have explained,

We typically will not reach the merits of a case when reviewing a
preliminary injunction . . . . By this we mean we will not second guess
whether the court correctly applied the law to the facts of the case,
which may be largely undeveloped at the early stages of litigation. As
long as the district court got the law right, it will not be reversed simply
because the appellate court would have arrived at a different result if it
had applied the law to the facts of the case.

Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003)

(internal citations omitted).

III

A

WildWest first argues that the court abused its discretion in failing to give

more weight to the probability of success on its claim that the Service irreversibly

and irretrievably committed resources in advance of a final decision by pre-

marking trees for harvesting, in violation of the National Environmental Policy

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Act (“NEPA”). The applicable regulations provide that the Service shall not take

preliminary action which would (1) have an adverse environmental impact, or (2)

limit the choice of reasonable alternatives. 40 C.F.R. § 1506.1. In other words,

agencies “shall not commit resources prejudicing selection of alternatives before

making a final decision.” 40 C.F.R. § 1502.2(f).

The record here shows that while the Service did indeed spend $208,000

before the issuance of the Record of Decision (“ROD”), such expenditure did not

necessarily prejudice the final outcome. At least 410 acres of timber that were

pre-marked for cutting were dropped from the final modified plan. In addition,

Project Director Dave Bull explained to interested members of the public, “As I

stated at my meeting . . . I am willing to meet with you during the objection

process to discuss options prior to issuing my decision. There is nothing that we

are doing on the ground in the East Fork than cannot be changed or deleted.”

Thus, although we make no determination as to WildWest’s ultimate success on

the merits of this claim, the record indicates that there was nothing irreversible

about the Service’s preparatory actions in this case. See Friends of Southeast’s

Future v. Morrison, 153 F.3d 1059, 1063 (9th Cir. 1998) (finding no irreversible

commitment of resources where the government retained absolute authority to

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decide whether any logging activities would take place). We are satisfied that

there was no abuse of discretion in the district court’s treatment of this claim.

B

WildWest next argues that the Service engaged in a “pattern and practice of

selective inclusion and exclusion” of public collaboration in choosing the plan for

the MEF Project. The district court pointed out that at least two noticed meetings

were held to discuss “recommendations concerning fuel reduction, thinning, bark

beetles, [and] timber harvest” In addition, the court considered the fact that there

were many informal gatherings and meetings in which the public, and specifically

WildWest and Friends of the Bitterroot, were involved. Finally, the court noted

that although there was an incident when Jim Miller, President of Friends of the

Bitterroot, was excluded from a press conference, his exclusion did not violate any

statutory right of attendance, even if it was a mistake from a public relations

perspective.

Once again, we cannot say that the district court abused its discretion. The

court made no legal errors, and its decision is adequately supported by the record.

C

WildWest next claims that the Service suppressed the concerns of its lead

soil scientist, Ken McBride. The district court considered the comments of

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McBride to be of “significant concern.” Nonetheless, the court acknowledged that

many of McBride’s recommendations were incorporated into the Final

Environmental Impact Statement (“EIS”) and therefore thought the probability of

success on this claim was low.

The record establishes that there was controversy over whether McBride’s

soil sampling technique adequately measured detrimental soil disturbance.1

However, the district court was correct in noting that the Service ultimately

adopted McBride’s recommendations in the Final EIS. As a result of the adoption

of McBride’s scientific assessments, “Alternative-2 Modified will not treat any

units with 15% or greater soil disturbance or units or portions of units projected to

possibly have 15% or greater detrimental disturbance after proposed treatments.”

Thus, on this record, we are unable to say that the district court abused its

discretion in determining that the probability of success on this claim was low.

D

Finally, WildWest argues that the Service did not adequately verify

concerns about the soil disturbance in certain units included within the MEF

Project. Although like the district court we consider this to be a close question, we

1
The Forest Plan and the Region 1 Soil Quality Standards do not allow
logging on any units that do have, or will have, above 15% detrimental soil
disturbance.

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are unable to say that the lower court abused its discretion. WildWest’s main

argument is that the Service’s failure to verify soil conditions in roughly 700 acres

of the treatment area runs afoul of our decision in Lands Council v. Powell, 395

F.3d 1019 (9th Cir. 2005) (as amended). The district court thought this case

distinguishable from Lands Council because the MEF Project only treats units that

were surveyed by McBride, terraced, or where first-hand knowledge of peer group

members supported the evidence found in the Timber Stand Management Record

System (“TSMRS”) and aerial photographs.

At this stage of the proceedings, we agree with the district court’s

conclusion that this case is different from Lands Council. In that case, “[t]he

Forest Service did not walk, much less test, the land in the activity area.” Id. at

1034. As was explained at oral argument, and confirmed by the record, here the

Service did not rely blindly upon the TSMRS, but put “boots on the ground” and

verified its projections and estimations with on-site monitoring by peer group

members. Significantly, as a result of walking the units to verify whether past

management activity had taken place, the Service dropped a number of units from

the plan where observations of individuals at the site indicated activity

inconsistent with the Service’s estimates.

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 This case is also distinguishable from Ecology Center, Inc. v. Austin, 430

F.3d 1057 (9th Cir. 2005), where the court found a violation of NEPA and the

National Forest Management Act in a situation in which the Service relied upon

data from areas with similar ecological characteristics to estimate soil disturbance.

Although there were field reports in Ecology Center like the ones in this record,

the court refused to credit the reports because they did not indicate whether the on-

site analysis differed from the Service’s estimates and “there [was] no indication in

the draft EIS or final EIS that the Forest Service actually consulted and relied upon

any of the field reports.” Id. at 1071. In contrast, the field reports here expressly

stated whether the on-site verification supported or contradicted the Service’s

estimates. It is also clear from the fact that the Service dropped a number of units

that it actually relied upon the field reports and on-site analysis in developing its

modified proposal.2 Although we expect that the Service will provide additional

information at trial to enable a more accurate “assess[ment of] the reliability or

significance of these reports,” id. at 1070, at this stage of the proceedings, we

2
The ROD states: “[T]he interdisciplinary team determined that their site
specific knowledge of 25 of the units was consistent with the lack of previous
harvest activity recorded in the forest data base, and therefore supported the
assessment of detrimental soil disturbance made by the soil scientist in the FEIS . .
. This leaves six units of concern. Alternative 2-Modified will not treat these six
units in order to obtain additional information concerning these units.”

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cannot say that the district court abused its discretion in not giving more weight to

WildWest’s probability of success on this claim.

III

The district court also weighed the possibility of irreparable harm to both

parties. In so doing, the district court recognized that HFRA has altered the

irreparable injury test to mandate that a reviewing court take account of the “short-

and long-term effects” of both action and inaction. 16 U.S.C. § 6516(c)(3). The

court further noted that the plaintiffs’ arguments were “asserted with little citation

to either scientific evidence or case law.” In contrast, the court concluded that the

possibility of a severe wildfire in the area, and the inherent danger to human life,

constituted measurable injuries, as did the money the Service would lose in

revenue from timber sales if the MEF Project were enjoined.

Overall, we cannot say that the district court abused its discretion in

weighing the respective hardships. On appeal, WildWest puts forth little more

than assertion to support its claims. For instance, although WildWest continually

asserts that the MEF Project will harvest “old growth” stands, the entire record

points to the contrary. In the ROD, the Service explained: “One hundred percent

of the treatment units in Alternative-2 Modified have been field inventoried to

assess old growth habitat. It has been verified that none of the units have old

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growth habitat in them.” As evidence of the “continuing value” of the alleged old

growth habitat that will be harvested in the MEF Project, WildWest asks the court

to “examin[e] representative photos from the proposed cutting units.” In effect,

WildWest asks the court to draw a contrary scientific conclusion from the Service

based upon this photographic evidence. However, when competing scientific

views are presented, “a reviewing court must generally be at its most deferential.”

Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103 (1983); see

also Marsh v. Or. Natural Res. Council, Inc., 490 U.S. 360, 377 (1989). In this

case, where only assertion and photography are offered by WildWest as contrary

scientific evidence, we are unwilling to say that the district court abused its

discretion.

IV

We reiterate that our review at this stage is limited and deferential.

Southwest Voter Registration Educ. Project, 344 F.3d at 918; Purcell, 2006 WL

2988365, at *2. We make no intimation about the ultimate merits of WildWest’s

claims. It may be that when the record is fully developed, a different view of the

MEF Project will emerge. For now, we are confident that there was no abuse of

discretion in the district court’s denial of a preliminary injunction against the

Service’s implementation of the MEF Project.

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 AFFIRMED.

COUNSEL LISTING

Thomas J. Woodbury, Missoula, Montana, argued the cause for the plaintiff-
appellants and filed a brief.

Lori L. Caramanian, U.S. Department of Justice, Environmental & Natural
Resources Division, Denver, Colorado, argued the cause for the defendant-
appellees. Sue Ellen Wooldridge, Assistant Attorney General, Lisa Jones,
Christine Everett and Alan Campbell were on the brief.

Julie A. Weis, Haglund Kelley Horngren Jones & Wilder, Portland, Oregon,
argued the cause for the defendant-intervenor-appellees. Scott W. Horngren and
George H. Corn, Ravalli County Attorney, were on the brief.

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