United States District Court, D. Oregon, Portland Division
BARK, CASCADIA WILDLANDS, OREGON WILD, and WILDEARTH GUARDIANS, Plaintiffs,
UNITED STATES FOREST SERVICE, Defendant, and HIGH CASCADE, INC., Intervenor-Defendant.
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge.
Bark, Cascadia Wildlands, and Oregon Wild (collectively
“Bark”) have moved for an injunction  under
Federal Rule of Civil Procedure 62(d) and Federal Rule of
Appellate Procedure 8(a)(1)(C), pending the appeal of my May
7, 2019, Order  granting the United States Forest
Service's (USFS) and High Cascade's Motions for
Summary Judgment [29, 30] and denying Plaintiffs' Motion
for Summary Judgment . Plaintiffs brought this action to
challenge the Crystal Clear Restoration (CCR) Project, which
proposes the thinning of forest stands on almost 12, 000
acres along the southeastern slope of the Mount Hood National
Forest (MHNF). Bark seeks to enjoin “commercial logging
with mechanized equipment” in 132 acres of the CCR
Project that are scheduled for thinning in 2019. Mot. for
Inj.  at 1 n.1. For the reasons stated below, Bark's
Motion for Injunction Pending Appeal  is DENIED.
stated purpose of the CCR Project is to “provide forest
products from specific locations . . . where there is a need
to improve stand conditions, reduce the risk of
high-intensity wildfires, and promote safe fire suppression
activities.” Administrative R. at 20770. The USFS has
also stated that thinning will reduce the risk of
“stand-replacing” events such as disease and
insect infestation. Administrative R. at 21768. The Ahoy
Stewardship Contract was awarded to Intervenor-Defendant High
Cascade to implement one portion of the CCR Project. High
Cascade will receive timber in exchange for executing the
Project's “prescriptions, ” which include
clearing brush and ladder fuels in addition to thinning.
challenged the USFS's Decision Notice and Finding of No.
Significant Impact for the CCR Project by bringing claims
under the National Environmental Protection Act (NEPA), 42
U.S.C. § 4321 et seq., the National Forest
Management Act (NFMA), 16 U.S.C. § 1600 et
seq., and Subpart A of the Travel Management Rule, 36
C.F.R. §§ 212.1-.21. Mot. Summ. J.  at 1. For
the purposes of the Motion for Injunction Pending Appeal
, I have considered only the claims on which Bark argued
it is likely to succeed on appeal: (1) that NEPA required the
USFS to perform an Environmental Impact Statement (EIS)
because the effects of the CCR Project are highly
controversial or uncertain; (2) that NEPA required the USFS
to perform an EIS because the CCR Project will adversely
affect the Northern Spotted Owl (NSO), a threatened species,
and its habitat; (3) that the CCR Project violates the NFMA
because it does not comply with the Northwest Forest
Plan's (NWFP) Snag Retention Standard, and (4) that the
NWFP prohibits logging of the type proposed by the CCR
Project in Late Successional Reserves (LSR).
Rule of Civil Procedure 62(d) provides that “[w]hile an
appeal is pending from [a] . . . final judgment that . . .
denies an injunction, the court may . . . grant an injunction
on terms for bond or other terms that secure the opposing
party's rights.” “A party must ordinarily
move first in the district court for . . . an injunction
while an appeal is pending.” Fed. R. App. P.
8(a)(1)(C). “The district court retains jurisdiction
during the pendency of an appeal to act to preserve the
status quo.” Nat. Res. Def. Council, Inc. v. Sw.
Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). The
same standards govern motions for preliminary injunctions and
motions for injunctions pending appeal. See Se. Alaska
Conservation Council v. U.S. Army Corps of Eng'rs,
472 F.3d 1097, 1100 (9th Cir. 2006).
the four-part test for injunctive relief, a party seeking an
injunction pending appeal must establish: (1) that it is
likely to succeed on the merits, (2) that it will likely
suffer irreparable harm in the absence of injunctive relief,
(3) that the balance of equities or hardships tips in its
favor, and (4) that an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). “But if a plaintiff can only show that there
are ‘serious questions going to the merits'-a
lesser showing than likelihood of success on the merits-then
a preliminary injunction may still issue if the
‘balance of hardships tips sharply in the
plaintiff's favor' . . . .” Shell Offshore,
Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir.
2013) (quoting All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). A court
may not issue a preliminary injunction unless the moving
party meets its burden to show all four factors.
Cottrell, 632 F.3d at 1135. “Injunctive relief
is ‘an extraordinary remedy,' and ‘must be
tailored to remedy the specific harm alleged.'”
McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.
2012) (quoting Winter, 555 U.S. at 24; Park
Vill. Apartment Tenants Ass'n v. Mortimer Howard
Trust, 636 F.3d 1150, 1160 (9th Cir. 2011)). A party
moving for injunctive relief must carry the burden of
persuasion “by a clear showing.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). These standards are
not relaxed for plaintiffs asserting NEPA violations.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
argues that its members will be irreparably harmed in the
absence of an injunction because the thinning sought to be
enjoined will “greatly reduce [the forest's]
scenic, recreational, wildlife and botanical values.”
Mot. for Inj.  at 4. Bark submitted declarations
detailing its members' activities in the MHNF and the CCR
Project area. The USFS and High Cascade note, however, that
the declarations only establish Bark members' use and
enjoyment of one unit that is scheduled for thinning in
2019-unit 8L. Resp.  at 13-14.
enjoin thinning in units other than 8L, Bark must demonstrate
that its members will be harmed by thinning in those units.
Bark has not carried this burden by demonstrating irreparable
harm in unit 8L. A declaration supporting harm in Unit 8L
states that 8L is unique because it is located in a Late
Successional Reserve (LSR). Krochta Decl.  at 4. Although
the CCR Project includes one other unit in the LSR, Unit 9L,
it is not scheduled for thinning in 2019 and Bark has not
included Unit 9L in its motion. Resp.  at 4; Mot. for
Inj.  at 1 n.1. Other than Unit 8L, Bark's
declarations do not identify with any particularity the areas
scheduled for thinning in 2019 where its members will be
harmed. The declarations only establish that Bark's
members use and enjoy the MHNF or the CCR Project area.
Because there is no ineluctable connection between use and
enjoyment of the MHNF or the CCR Project area and the 132
acres on which Bark seeks to enjoin thinning, these
declarations fail to establish irreparable harm from the
thinning that will occur during the pendency of Bark's
the USFS conceded at oral argument that, under Ninth Circuit
precedent, Bark members' inability to “view,
experience, and utilize” forestland in unit 8L in its
present state is an irreparable injury. See
Cottrell, 632 F.3d at 1135. I agree that Bark has
established irreparable harm, at least with respect to the
use and enjoyment of forestland in unit 8L.
extent that Bark claims a reduced number of snags will affect
its members in a way that is distinct from use and enjoyment
of the forest in its present state, I find no irreparable
harm. NWFP standard FW-215 requires that new timber harvest
units maintain a “sufficient quantity and quality [of
snags and green reserve trees] to support over time at least
60 percent of the maximum biological potential of primary
cavity nesting species.” Administrative R. at 01422.
The CCR Project area does not currently meet that standard
and the CCR Environmental Assessment stated that “the
current conditions would remain unchanged.”
Administrative R. at 18965. Current conditions are expected
to remain unchanged because no snags are proposed to be cut
and any snags that must be cut for safety reasons will remain
nearby. Administrative R. at 17384. Although thinning would
result in fewer snags over time, the Environmental Assessment
found that thinning would “speed the ability of stands
to provide the size of snags and downed wood needed to meet
Forest Plan standard FW-215.” ...