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Alpine Lakes Protection Society v. Schlapfer

United States Court of Appeals, Ninth Circuit
May 1, 1975
518 F.2d 1089 (9th Cir. 1975)

Summary

holding that an injunction was not in the public interest because many trees at issue were already infested by insects, which made large-scale spreading across other lands inevitable absent logging

Summary of this case from League of Wilderness Defenders/Blue Mountains Biodiversity Project, an Or. Nonprofit Corp. v. Connaughton

Opinion

No. 75-1651.

May 1, 1975.

Malachy R. Murphy, Deputy Atty. Gen., Olympia, Wash., Robert R. Ordal, Seattle, Wash., for plaintiffs-appellants.

Edward J. Parry, Robert M. Sweeney, Asst. U.S. Atty., Spokane, Wash., Wallace H. Johnson, Asst. Atty. Gen., Carl Strass, Glen R. Goodsell, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before KOELSCH and HUFSTEDLER, Circuit Judges.


OPINION


Appellants' motion for injunction pending appeal is denied.

Although the important congressional policy expressed in the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., has been said to weight the scale in favor of those seeking the suspension of all action until the Act's requirements are met ( see, e. g., Lathan v. Volpe (9th Cir. 1971) 455 F.2d 1111, 1116-17), the unusual circumstances in this case call for an individual weighing of the equities according to the traditional three-factor test: (1) Are the moving parties likely to prevail on the merits? (2) does the balance of irreparable damage favor the issuance of the injunction? and (3) does the public interest support granting the injunction? ( Schwartz v. Covington (9th Cir. 1965) 341 F.2d 537, 538.)

Although we do not reach the merits of appellants' claim that the Forest Service's failure to prepare a full-scale environmental impact statement (EIS) before granting the challenged easement was contrary to the requirements of NEPA, we observe that the procedures employed by the Forest Service raise a substantial issue on appeal.

Characterizing any piecemeal development of a project as "insignificant" merits close scrutiny to prevent the policies of NEPA from being nibbled away by multiple increments, no one of which may in and of itself be important enough to compel preparation of a full EIS. ( See, e.g., Named Individual Members of San Antonio Conservation Soc'y v. Texas Highway Dep't (5th Cir. 1971) 446 F.2d 1013.) Appellants have also raised a question concerning the adequacy of notice provided by the 1972 EIS, now claimed to represent a broad consideration of the management strategy to be employed in the Counter Planing Unit. NEPA is essentially a procedural statute ( Daly v. Volpe (9th Cir. 1975) 514 F.2d 1106), and we have recognized that careful compliance with its provisions is necessary to fulfill the statute's fundamental goals:

"[The EIS's] form, content, and preparation [must] substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information." Trout Unlimited v. Morton (9th Cir. 1974) 509 F.2d 1276.

The record before us does not show that the balance of irreparable damage favors the issuance of the injunction pending appeal. Appellants allege that irreparable harm will occur to their interests as the continued logging permitted by the use of the nearly completed access road further reduces the area's wilderness characteristics and effectively removes it from consideration for inclusion in the wilderness preservation system. Appellees contend that they face a much more tangible and immediate harm: many of the trees on the company's property are insect infested and, absent prompt removal, the timber will be worthless.

Finally, the public interest will not be served by granting the injunction, because access is necessary to remove the diseased timber and to prevent the insect infestation from spreading throughout the adjacent national forest lands.

The balance of the equities do not favor the granting of an injunction.


Summaries of

Alpine Lakes Protection Society v. Schlapfer

United States Court of Appeals, Ninth Circuit
May 1, 1975
518 F.2d 1089 (9th Cir. 1975)

holding that an injunction was not in the public interest because many trees at issue were already infested by insects, which made large-scale spreading across other lands inevitable absent logging

Summary of this case from League of Wilderness Defenders/Blue Mountains Biodiversity Project, an Or. Nonprofit Corp. v. Connaughton

holding that an injunction was not in the public interest because many trees at issue were already infested by insects, which made large-scale spreading across other lands inevitable absent logging

Summary of this case from League of Wilderness Defenders v. Peña

denying injunctive relief in NEPA case where more harm could occur to forest from disease if injunction was granted

Summary of this case from San Luis & Delta-Mendota Water Auth. v. Jewell

denying injunctive relief in NEPA case where more harm could occur to forest from disease if injunction was granted

Summary of this case from In re Consol. Delta Smelt

denying injunctive relief in NEPA case where more harm could occur to forest from disease if injunction was granted

Summary of this case from Consolidated Delta Smelt Cases

denying injunctive relief in NEPA case where more harm could occur to forest from disease if injunction was granted

Summary of this case from Consolidated Salmonid Cases

recognizing the potential spread of insect infestation in a forest as "unusual circumstances" in balance of equities and denying on that basis a request for an injunction pending appeal in NEPA action

Summary of this case from Forest Conserv. Council v. U.S. Forest Serv

refusing to grant injunction because "unusual circumstances" meant more harm could occur to forest from disease if injunction not granted

Summary of this case from Save Our Ecosystems v. Clark

In Alpine Lakes Protection Society v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975), we held that "unusual circumstances" required the court to determine whether the equities in fact favored an injunction.

Summary of this case from American Motorcyclist Ass'n v. Watt
Case details for

Alpine Lakes Protection Society v. Schlapfer

Case Details

Full title:ALPINE LAKES PROTECTION SOCIETY, A WASHINGTON CORPORATION, ET AL.…

Court:United States Court of Appeals, Ninth Circuit

Date published: May 1, 1975

Citations

518 F.2d 1089 (9th Cir. 1975)

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