Alpine Lakes Protection Society v. Schlapfer

No. 75-1651 (9th Cir. May 1, 1975)

The balance of prospective irreparable damages to plaintiffs and defendants does not favor issuance of an injunction pending appeal in a suit challenging the adequacy of a Forest Servide-prepared NEPA impact statement on the granting of an easement across national forest land for construction of a logging access road. Plaintiffs have raised substantial questions regarding the adequacy of the EIS under NEPA, and allege that the continued logging permitted by 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. Many of the trees on the logging company's property are insect infested, however, and will be worthless if not promptly removed. Under these circumstances, the public interest will not be served by granting the injunction which plaintiffs request, because access is necessary to remove the diseased timber and to prevent the insect infestation from spreading to the adjacent national forest lands.

Counsel for Plaintiffs-Appellants
Robert E. Ordal
312 1411 4th Avenue Building
Seattle, Wash. 98101

Counsel for Defendants-Appellees
Slade Gorton Attorney General
Temple of Justice
Olympia, Wash. 98504

[5 ELR 20322]

PER CURIAM:

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 casement 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 the 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 Coulter Planning Unit. NEPA is essentially a procedural statute (Daly v. Volpe (9th Cir. March 20, 1975) __ F.2d __), 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) __ F.2d __.

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.