AWR Blog

by Lawrence Hurley of Greenwire

A federal appeals court today rejected a government request that it rehear a case that set a precedent on how to interpret a 2008 Supreme Court ruling that seemed to limit the ability of environmental groups to put a stop to certain government actions.

The San Francisco-based 9th U.S. Circuit Court of Appeals, which has jurisdiction over the nine Western states and handles a lot of environmental matters, said today it had denied the government’s request to rehear Alliance for the Wild Rockies v. Cottrell, a case that focused on a timber salvage sale in Montana.

The case has broader importance because the ruling saw the 9th Circuit examine to what extent the Supreme Court’s decision in Winter v. Natural Resources Defense Council makes it harder to temporarily stop a government action, such as a logging project, while the issue is litigated.

In Winter, the justices allowed Navy maneuvers off the coast of California to proceed despite environmentalists’ concern that the use of sonar could be harmful to whales and other sea mammals.

Legal experts believe the case had broader implications because the Supreme Court stated that there needs to be “the likelihood of irreparable harm” for an injunction to be granted. Previously, in the 9th Circuit, litigants only had to show the “possibility” of irreparable harm (Greenwire, Nov. 1, 2010).

The 9th Circuit opinion (pdf), issued in September, effectively downplayed the impact of Winter. The court ruled in favor of environmental groups that wanted a preliminary injunction to prevent the timber salvage sale proposed by the Forest Service from going ahead in the Beaverhead-Deerlodge National Forest in Montana. The proposed logging would take place on 1,652 acres of the forest.

The appeals court reversed U.S. District Judge Donald Molloy of the District of Montana, who had denied the request for a preliminary injunction made by a number of environmental groups.

Molloy had concluded that, in light of Winter, the plaintiffs had not shown a likelihood of success on the merits or that “irreparable injury is likely.”

Writing for the 9th Circuit, Judge William Fletcher said Winter did not decisively resolve the issue in the government’s favor. The Supreme Court ruling only touched upon “one aspect” of the 9th Circuit’s approach to preliminary injunctions, he said.

The 9th Circuit has what is known as a “sliding scale” test that is used to determine whether a preliminary injunction is justified.

Judges have the discretion to balance competing arguments and decide whether a stronger argument on one issue trumps a weak argument on another issue.

Susan Jane Brown, an attorney at the Western Environmental Law Center, which represents the environmental groups, said she was especially gratified that no judges on the 9th Circuit had requested a vote on a rehearing en banc, which would have seen a panel of 11 judges tackle the matter instead of the usual three.

By declining to take up the matter again, the judges indicated that “the panel made the right decision and that the sliding scale test remains the law in the 9th Circuit,” Brown added.

The government could petition the Supreme Court to review the 9th Circuit ruling. A Justice Department spokesman declined to comment.

Originally published here.

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