March 24, 2007
Supreme Court Declines Cert re: preliminary injunction detour around administrative record
On Friday, the Supreme Court denied cert in Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th Cir. 2006). The Forest Service had sought to eliminate plaintiff's dodge of record review in NEPA cases by filing a preliminary injunction based on non-record evidence. This, of course, has always been a favorite approach for plaintiffs who secure the necessary experts only after losing before the agency. Even though it was the 9th Cir., the Supreme Court doesn't seem concerned about stopping the practice.
The United States Supreme Court has denied certiorari in a case in which the Ninth Circuit held that environmental groups were entitled to a preliminary injunction barring the United States Forest Service from proceeding with logging projects in fire-damaged portions of the Eldorado National Forest. In approving the restoration projects, the Forest Service abused its discretion in its estimates of the likely tree mortality from the forest fires, the Ninth Circuit held. The Court also found that the Forest Service did not take the requisite "hard look" at the effects of the projects on the California spotted owl, or conduct population surveys for the hairy woodpecker and Williamson's sapsucker.
The Forest Service charged in its petition for certiorari that the Court of Appeals erred by relying on declarations filed by the environmental groups in the district court, rather than confining its review to the administrative record, in determining that the groups had shown a likelihood of success on the merits. The Forest Service also claimed that the Ninth Circuit found that the groups could satisfy the "irreparable injury" prong of the test for obtaining a preliminary injunction by showing only a "possibility" of such injury. Finally, the Forest Service claimed that the Ninth Circuit had erroneously discounted competing interests in the use of forest lands under multiple use principles and the Forest Service's balance of those competing uses, in weighing the balance of harms and the public interest.
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