Sierra Club v. Wagner, et a l . 07-CV-257-SM 08/15/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sierra Club; The Wilderness Society; and Center for Biological Diversity, Plaintiffs

v. Civil No. 0 7-cv-25 7-SM Opinion No.

Thomas Wagner. White Mountain National Forest Supervisor; Abiaail Kimball, U.S. Forest Chief; United States Forest Service; Edward T . Schafer, Secretarv, U.S. Department of Aariculture; and U.S. Department of Aariculture, Defendants

O R D E R

Plaintiffs, the Sierra Club, the Center for Biological

Diversity (formerly. Forest Watch), and The Wilderness Society

(collectively, the "Sierra Club"), brought this action under the

Administrative Procedure Act seeking declaratory and injunctive

relief. Specifically, they sought a judicial declaration that

defendants (collectively, the "Forest Service") violated the

National Environmental Policy Act and the National Forest

Management Act when they approved two forest resource management

projects in the White Mountain National Forest: the Than Forest

Resource Management Project (the "Than Project") and the

Batchelder Brook Vegetation Management Project (the "Batchelder

Brook Project"). By order dated June 6, 2008, the court denied the Sierra

Club's motion for summary judgment and granted the Forest

Service's motion for summary judgment. On July 25, 2008,

plaintiffs filed a notice of appeal and, four days later, they

filed an Emergency Motion for a Stay Pending Appeal (document no.

61), by which they move the court to "issue an injunction pending

appeal on the Than Brook [sic] and Batchelder timber sales, to

prohibit logging, road construction and associated activities,

until a final decision on the merits is made by the First Circuit

Court of Appeals." Plaintiffs' motion (document no. 61) at 3.

Although such equitable relief is available from the court of

appeals, a party must ordinarily seek such relief from this court

first. See Fed. R. A p p . P. 8(a).

Standard of Review

Although they disagree as to precisely what is required of a

litigant seeking a stay pending appeal, the parties agree that

the Supreme Court has articulated the four essential elements of

the relevant test:

Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal. See Fed. Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under both Rules, however, the factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the

2 merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill,

(1987) (citations

omitted) (emphasis supplied). The Forest Service asserts that

the first prong of the test means precisely what is says -

plaintiffs bear the burden of making a strong showing that they

are likely to prevail on appeal. The Sierra Club, on the other

hand, claims "[t]he first prong of this test has not been

interpreted or applied literally," plaintiffs' memorandum

(document no. 61-2) at 3, and a party appearing before the

district court and seeking a injunction pending appeal need only

show that the "appeal raises serious and difficult question of

law in an area where the law is somewhat unclear," j^d. at 4.1

The Sierra Club's view of the governing law is not

consistent with Supreme Court or circuit precedent and its

arguments to the contrary are misguided. First, plaintiffs'

notion that a party seeking a stay pending appeal in the district

1 The cases cited by the Sierra Club for this proposition of law are unpersuasive. They include opinions from the Courts of Appeals for the Fifth Circuit and the Eleventh Circuit that pre-date Hilton, and an opinion from the United States District Court for the District of Massachusetts that, although issued after Hilton, makes no mention of it and, instead, relies entirely upon pre-Hilton precedent.

3 court bears a less substantial burden than a party seeking the

same relief from the court of appeals is at odds with the Supreme

Court's discussion in Hilton. As noted above, the Court stated

that, although the governing rules in the appellate court and the

district court are different, "the factors regulating the

issuance of a stay [pending appeal] are generally the same."

.

Consistent with the Supreme Court's statement of the

relevant law in Hilton, the Court of Appeals for the First

Circuit has held that:

The sine qua non of the stay pending appeal standard is whether the movants are likely to succeed on the merits. In essence, the issuance of a stay depends on whether the harm caused [movants] without the stay, in light of the [movants'] likelihood of eventual success on the merits, outweighs the harm the stay will cause the non-moving party.

Acevedo-Garcia v. Vera-Monroiq.

(1st Cir.

2002) (citations and internal punctuation omitted), criticized on

other grounds by Rodriquez-Vasauez v. Lopez-Martinez.

(1st Cir. 2003). See also Elias v. Sumski (In re Elias). 182

Fed. A p p x . 3, 4,

, 1 (1st Cir. June 2, 2006)

(citing Acevedo and noting that "the courts below properly

applied the traditional four-part standard applicable to

preliminary injunctions in determining whether to grant a stay

4 pending appeal" and rejecting the appellant's argument that "the

lower courts should have given greater weight to the balance of

harms - as opposed to the [appellant's] likelihood of success on

appeal").2

2 In an effort to distinguish Elias, the Sierra Club says the plaintiff in that case "mistakenly stipulated to that [i.e., the Hilton four part] standard in the district court," - a proposition that is entirely without support in the written decision of the court of appeals. More troubling, however, is the Sierra Club's assertion that the Elias court actually embraced (and applied) the "serious and difficult question of law" standard advocated by the Sierra Club, rather than the "strong showing of success on the merits" standard articulated in Hilton. In support of that erroneous interpretation of Elias, the Sierra Club says the following:

And the Court of Appeals actually applied a "substantial question" test to the issue of injunction pending appeal, stating: "Although the appellant has not filed a motion for a stay pending appeal in this court, his brief seeks such relief and alleges that he will be irreparably harmed without it. Because we find that this appeal presents no substantial question, see 1st Cir. R 27(c), we proceed to the merits."

Plaintiff's reply memorandum (document no. 65) at 3 (quoting Elias) (emphasis in plaintiff's memorandum). Plainly, however, the local rule cited by the court of appeals addresses a procedural issue (that is, the summary disposition of a motion if it "is clear that no substantial question is presented," 1st Cir. L.R. 27(c)) and not the substantive legal standard applicable to the issuance of a stay pending appeal. This is not the first time in this proceeding that plaintiffs' counsel has misstated precedent. In the future, counsel should exercise greater care when making representations to the court.

5 Discussion

Applying the governing four-part test to the circumstances

presented in this case, the court concludes that the Sierra Club

has failed to demonstrate that it is entitled to a stay pending

appeal of this court's order dated June 6, 2008. First,

plaintiffs have not made a "strong showing that [they are] likely

to succeed on the merits." Hilton.

. Even if the

court were to apply the more lenient test advocated by the Sierra

Club - that is, whether there is a "serious and difficult

question of law" - it still would not have borne its burden.

While the court acknowledges the differences of opinion among the

circuits over the issue of whether site-specific projects must be

reviewed under the same regulations that guided the establishment

of the Forest Plan, the legal debate on that issue, at least in

the context of the facts presented in this case, is decidedly

one-sided and, in the court's view, the issue does not present a

"difficult question of law." The Sierra Club's assertion that

"many courts have held that even after the 2000 regulations[,]

the 1982 regulations continue to apply to site-specific

projects," plaintiffs' memorandum (document no. 61) at 6, is not

terribly persuasive since the "many courts" referenced in the

Sierra Club's memorandum actually consists of one: the Court of

Appeals for the Ninth Circuit. And, it probably bears noting

that one of the opinions from the Ninth Circuit upon which

6 plaintiffs heavily relied during the course of this litigation

and upon which they now rely in seeking a stay pending appeal -

Ecology Center v. Austin,

(9th Cir. 2005) - has

been overruled. See The Lands Council v. McNair. __ F.3d ,

(9th Cir. July 2, 2008) (en banc).

The Court of Appeals' en banc opinion in McNair is

significant not only because it overruled the panel opinion in

Ecology Center, but also because it addresses an issue at the

very core of this litigation (and, no doubt, the Sierra Club's

appeal) - that is, the appropriate standard of review this court

should employ when reviewing decisions rendered by the Forest

Service and the amount of deference to which such agency

decisions are entitled. In McNair, the en banc court observed

that the plaintiff:

asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty.

I d . at *4. Importantly, however, the court then went on to hold

that:

[T]his is not a proper role for a federal appellate court. But [plaintiff's] arguments illustrate how, in

7 recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.

The opinion in McNair is plainly one of the most significant

environmental decision issued by the Court of Appeals for the

Ninth Circuit in recent years. Among other things, it

acknowledges that that court's environmental jurisprudence, as

expressed in various panel opinions over time, has embraced the

notion that federal courts should engage in a far more active

role in the oversight of forest management than is legally

appropriate. That opinion also reaffirms the limited and highly

deferential standard of review that courts must employ when asked

to review decisions rendered by the Forest Service.

Additionally, it either overrules or substantially undermines

several prominent panel opinions upon which plaintiffs continue

to rely heavily in this litigation, including at least one

plaintiffs have invoked in support of their motion for a stay

pending appeal.

As for the remaining three factors identified in the Hilton

opinion, the court need not address them in detail as they are

thoroughly and persuasively discussed in the Forest Service's

memorandum. The court simply notes that, while it is aware that

aspects of the Than and Batchelder Brook projects involve timber cutting, it is also conscious of the fact that the mere existence

of potential environmental harm, standing alone, does not

necessarily compel the conclusion that there will be "irreparable

injury." See Amoco Prod. Co. v. Village of Gambell,

(1987). As the McNair court has observed:

[T]he Supreme Court has instructed us that "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction." But, the Supreme Court has not established that, as a rule, any potential environmental injury merits an injunction.

(citing Amoco,

). The en

banc panel in McNair went on to conclude that:

Our law does not, however, allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue. . . . Accordingly, we decline to adopt a rule that any potential environmental injury automatically merits an injunction, particularly where, as in this case, we have determined that the plaintiffs are not likely to succeed on the merits of their claims.

I d . at *21 (emphasis in original).

In this case, the court must consider not only the potential

environmental harm at issue should it deny plaintiffs'’ request

for a stay, but also the harm associated with undermining and

frustrating a well thought-out and publically vetted

9 comprehensive forest management plan, as well as the economic

harm that will result if such a stay is granted (an issue

persuasively addressed in the Forest Service's memorandum, and

the attached declarations of Richard Alimi and Roger Boyer). The

court must also consider the public's interest in seeing that the

Forest Plan for the White Mountain National Forest is implemented

in a timely and efficient manner, under the direction of the

Forest Service. As the Forest Service points out, the site-level

projects at issue in this case are the result of thorough and

comprehensive planning and have been designed to improve wildlife

habitat diversity and quality, fisheries habitat quality, forest

health, and recreation opportunities - all issues of substantial

interest to the public, and all issues that have been balanced

along with timber management in the plan.

Conclusion

Having carefully considered the four relevant factors

identified in Hilton, the court concludes that the equities weigh

in favor of denying plaintiffs' request for a stay pending

appeal. Accordingly, for the foregoing reasons, as well as those

set forth in the Forest Service's memorandum (document no. 64),

the Sierra Club's Emergency Motion for a Stay Pending Appeal

(document no. 61) is denied.

10 SO ORDERED.

McAuliffe ''Chief Judge

August 15, 2 00 8

cc: John T. Alexander, Esq. Anthony I. Blenkinsop, Esq. John S. Harbison, Esq. Kristin A. Henry, Esq. Cynthia S. Huber, Esq. Eric E. Huber, Esq. Bradford W. Kuster, Esq. Jared M. Margolis, Esq.

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