Appeals court upholds Moonlight decision

Effort to protect woodpecker could affect salvage logging
Delaine Fragnoli
Managing Editor

The 9th U.S. Circuit Court of Appeals has upheld a district court decision denying an injunction for the Moonlight-Wheeler Fire Recovery and Restoration Project.

The appeals court found “the record shows that the district court correctly appliedlegal precedent “in its analysis throughout its thoroughly reasoned opinion.”

Environmental group Earth Island Institute (EII) had filed suit in July 2009 in U.S. District Court for the Eastern District of California to stop


The Wheeler Fire, part of the Antelope Complex of fires, burned in July 2007. The Moonlight Fire burned 66,000 acres—the largest wildfire in recorded Plumas County history—beginning in September 2007.

In June 2008, the John Muir Project of the Earth Island Institute filed an administrative appeal of the Moonlight roadside hazard logging decision. The Forest Service wanted to use a categorical exclusion to exempt it from having to do an environmental analysis of the project. EII argued such an analysis was needed for a project that was “fundamentally about salvage logging large trees.”

In September 2008, the Forest Service withdrew its decision to proceed with the roadside hazard project. Six weeks later, the parties entered an agreement in which the Forest Service said it would include the roadside activities in a new draft environmental study for the larger Moonlight-Wheeler project.

Soon thereafter, the Forest Service signed the record of decision for the project, choosing alternative A. This authorized the harvest of fire-killed trees on approximately 14,755 acres of the approximately 41,000 acres of high-severity burn areas using both ground- and air-based harvesting methods. The Forest Service subsequently awarded five logging contracts to local companies.

Earth Island filed a motion for a preliminary injunction seeking to stop the Forest Service from implementing all aspects of the project, including the felling, removal and sale of any trees except in emergency hazard circumstances. The district court denied Earth Island’s motion. EII appealed the decision to the 9th U.S. Circuit Court of Appeals.

the Moonlight project proposed by the Plumas National Forest. The group asked the court to enjoin the Forest Service from awarding, beginning or continuing the operation of any timber sales related to the project.

United States District Judge Frank C. Damrell Jr. issued his opinion in August 2009 denying the injunction.

Damrell’s opinion relied heavily on a 2008 Supreme Court decision, Winter v. NRDC (Natural Resources Defense Council). Damrell ruled that EII had not met the legal standard for a preliminary injunction.

As outlined in the Winter decision, a plaintiff seeking a preliminary injunction must meet four criteria: that it is likely to succeed on the merits of its claims; it is likely to suffer irreparable harm in the absence of preliminary relief; the balance of equities must tip in its favor; and the injunction must be in the public interest.

Damrell found that EII had failed all of these tests. The appeals court found that he had appropriately applied the Winter standards. One judge on the three-judge appeal panel dissented.

The decision has a greater effect moving forward as precedent than it does on the ground presently. According to Forest Service spokeswoman Lee Anne Schramel, because there was never an injunction, the agency went ahead with the work, which is now virtually complete.

In a move that could affect future salvage logging on private timberlands, EII and the Center for Biological Diversity filed a petition last month to have the black-backed woodpecker protected under the state Endangered Species Act.

The bird prefers post-fire ecosystems, nesting in burned trees and feeding on insects that attack fire-killed or weakened trees.

The petition claims the woodpecker is at risk of extinction because of a lack of burned forests in the state, the result of a century of fire suppression and, more recently, salvage logging.

In its Moonlight case, EEI claimed the black-backed woodpecker was one of the species the Forest Service did not adequately consider in its environmental analysis. Both Damrell and the 9th Circuit found that the agency had.

The Forest Service currently considers the bird a “sensitive” species.






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