Non-profit environmental organizations Earth Island Institute and the Center for Biological Diversity (Earth Island) appealed the district court's denial of their motion for a preliminary injunction to enjoin the United States Forest Service (USFS) from implementing two post-fire logging projects in the El Dorado National Forest. The Ninth Circuit reversed, holding the appellants were entitled to a preliminary injunction because they showed: (1) a strong likelihood of success on the merits of their claim that USFS's final environmental impact statements (FEISs) did not comply with the National Environmental Policy Act (NEPA)[1] or the National Forest Management Act (NFMA),[2] and (2) the possibility of irreparable injury if preliminary relief was not granted. The court further held the preliminary injunction was warranted because appellants had shown that the balance of hardships tipped in their favor, and that an injunction would advance the public interest.

In October 2004, two extensive fires burned a combined 21,593 acres in California's El Dorado National Forest. These fires, dubbed the "Power" and "Freds" fires, burned at varying intensities through several Protected Activity Centers, Home Range Core Areas, and Riparian Conservation Areas.[3] After developing restoration plans and partitioning the burned areas into eight separate sale units, USFS published draft environmental impact statements (EISs) in the Federal Register on March 25, 2005. The Forest Supervisor for the El Dorado National Forest subsequently requested an Emergency Situation Determination from the Regional Forester for both projects,[4] estimating $12.1 million in lost revenue from timber deterioration if USFS delayed the Records of Decision (RODs). The Regional Forester granted the request, and issued final RODs for both projects on August 1, 2005.[5]

Earth Island sued in federal district court, seeking preliminary and permanent injunctions against implementation of the projects. The district court granted Earth Island's motion for a temporary restraining order (TRO), but subsequently vacated it and denied Earth Island's motion for a preliminary injunction. On expedited appeal, the Ninth Circuit initially denied Earth Island's emergency motion for an injunction pending appeal but later granted it sua sponte after oral argument.   

The Ninth Circuit reviewed the district court's denial of preliminary injunctive relief under an abuse of discretion standard, reviewing facts for clear error and conclusions of law de novo.[6] The court viewed Earth Island's challenges in light of the Administrative Procedure Act,[7] under which agency decisions may be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[8] When expert opinions conflict, an agency has discretion to rely on the views of its own staff; the court reviews only to confirm that the agency made "a reasoned decision based on its evaluation of the significance--or lack of significance--of the new information."[9]

The court first confirmed the controversy was not moot, for effective relief remained viable.[10] USFS conceded the appeal was not moot for the Power Project (where only two of six timber harvests were 100% complete), but contended that the Freds Project was moot because timber harvesting was complete. The court disagreed, noting that the logging company could still cut more trees, as its contract did not expire for two years. Effective relief also remained available, the court held, in the form of tree mortality guideline revisions, renewed spotted owl monitoring efforts and more accurate bird surveys.

The Ninth Circuit then held that the district court applied an improper legal standard for granting a preliminary injunction by requiring that Earth Island demonstrate a "significant threat of irreparable injury."[11] The Ninth Circuit held that to prevail on a motion for a preliminary injunction, plaintiffs who demonstrate probable success on the merits must only show the possibility of irreparable harm.[12] The Ninth Circuit held Earth Island had shown such a possibility.

Having set out the proper standard for a preliminary injunction the Ninth Circuit addressed whether Earth Island had demonstrated probable success on the merits of its NEPA claim. The court explained that NEPA's procedural requirements oblige agencies to take a "hard look" at the environmental consequences of their actions, including all foreseeable direct, indirect and cumulative impacts.[13] Pursuant to NEPA, USFS prepared FEISs for the Power and Freds Fire Restoration Projects. These documents used mortality guidelines to predict which trees would eventually die from fire-related injuries, thereby indicating which trees to log. Earth Island challenged the accuracy of the tree mortality guidelines and rebutted USFS conclusions that the project areas lacked adequate soil cover. Earth Island argued the FEISs' guidelines for logging burned and scorched trees substantially overpredicted tree mortality, thereby facilitating more logging than necessary. Earth Island also contested the USFS finding that large snags should be removed to reduce surface fuels. Earth Island asserted that the FEISs did not comply with NFMA because the USFS failed to compile sufficient population data and habitat analyses for Management Indicator Species (MIS)[14] like the black-backed woodpecker, hairy woodpecker and Williamson's sapsucker.

On the merits of Earth Island's NEPA challenges, the court held USFS abused its discretion as to the tree mortality estimates. While the data table at issue in both FEISs was labeled "Probability of Tree Mortality," what it actually described was the likelihood that predictions of probabilities of tree mortality and survival were correct. The court explained that the FEISs did not contain actual probabilities of tree mortality.[15] The court determined it was vital that this information be presented clearly, for the primary purpose of the FEISs was to justify cutting burned or scorched trees that would ultimately die. After reviewing expert testimony on both sides, the Ninth Circuit reasoned that the FEISs' "misleading" presentation of tree mortality estimates was an abuse of discretion in either of two alternatives: either USFS itself misread the data chart as actually predicting tree mortality and so failed to take the requisite "hard look" at the data underlying their action, or USFS understood the data to indicate the likelihood of an accurate tree mortality prediction, but misrepresented the method and concealed the actual predictions of tree mortality. The FEISs' unclear presentation of data, the court noted, also impaired fulfillment of NEPA's public participation mandates. 

The Ninth Circuit also held that the infirmities of the FEISs precluded the USFS from sufficiently assessing the potential effects on the California spotted owl, a potentially endangered species.[16] The court reasoned that the inadequate tree mortality predictions in the FEISs would likely lead to excessive logging, and the excessive logging, would have adverse effects on the owl that could not have been adequately assessed. The FEISs also failed to respond "explicitly and directly" to conflicting views about owl use of burned habitat, and failed to provide a detailed explanation as to why such habitat was unsuitable. As a result, the court held that the FEISs were deficient because the USFS improperly minimized negative side effects.[17] 

Earth Island challenged the FEISs' determinations that logging was needed to increase ground cover and that dead trees needed to be cut to reduce future fuel loads. On those claims, the court deferred to USFS reliance on the "reasonable" opinions of its own experts, holding the agency did not act arbitrarily or capriciously in discounting alternative evidence that Earth Island had offered.[18]

  The Ninth Circuit held Earth Island's NFMA challenges would also likely succeed on the merits. The court ruled that the FEISs' reliance on habitat surveys of the three bird MIS did not satisfy USFS obligations under NFMA regulations[19] and the Sierra Nevada Framework Plan. While the court recognized that habitat monitoring would have been appropriate in limited circumstances,[20] here it held USFS use of habitat analysis in lieu of population monitoring was arbitrary and capricious because the 2001 Framework expressly requires population monitoring for the hairy woodpecker and Williamson's sapsucker. Moreover, the court noted, habitat data used for the black-backed woodpecker appeared outdated and failed to identify the methodology behind its conclusions. 

The Ninth Circuit reversed the district court's denial of Earth Island's motion for a preliminary injunction, holding the organization was entitled to such relief upon showing a "strong likelihood of success" on the meritsand the possibility of irreparable harm. [21] The court held possible irreparable injury to Earth Island included unnecessary cutting of trees that would otherwise survive, harm to the California spotted owl, and harm to several MIS birds. Earth Island also showed that the balance of hardships tipped in its favor and that a preliminary injunction would advance the public interest.[22] While USFS showed it would suffer economic losses if the court enjoined further logging, the court held that such losses did not outweigh potential irreparable damage to the environment. After reviewing Earth Island's arguments, the court deemed the organization's substantive NEPA and NFMA claims persuasive and remanded to the district court for further proceedings.

Judge Noonan concurred in the judgment, agreeing that the district court articulated the wrong standard as to the level of harm Earth Island needed to show. Judge Noonan declined, however, to forecast Earth Island's probable success on the merits, preferring instead to remand to the district court. The district court, Judge Noonan argued, is better equipped to estimate the probability of Earth Island's success on the merits after reviewing the extensive scientific record. According to Judge Noonan, the district court should then apply the correct legal standard, pursuant to its factual findings.