                             FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                 FILED
                          FOR THE NINTH CIRCUIT                    MAY 14 2008

                                                              MOLLY C. DWYER, CLERK
                                                                U .S. C O U R T OF APPE ALS

CENTER FOR BIOLOGICAL                        No. 07-16892
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL, INC.; SIERRA                D.C. No. CV-05-00205-MCE
CLUB; THE WILDERNESS SOCIETY,

            Plaintiffs - Appellants          OPINION

SIERRA FOREST LEGACY,

            Intervenor - Appellee

v.

MARK REY, in his official capacity as
Under Secretary of Agriculture; ABIGAIL
KIMBELL, in her official capacity as
Chief of the United States Forest Service;
BERNARD WEINGARDT, in his official
capacity as Regional Forester, United
States Forest Service Region 5; ALICE
CARLTON, in her official capacity as
Forest Supervisor, Plumas National Forest,

            Defendants - Appellees

TUOLUMNE COUNTY ALLIANCE
FOR RESOURCES & ENVIRONMENT;
CALIFORNIA FOREST COUNTIES


                                       1
SCHOOLS COALITION; REGIONAL
COUNCIL OF RURAL COUNTIES;
WESTERN COUNCIL OF INDUSTRIAL
WORKERS; KLAMATH ALLIANCE
FOR RESOURCES & ENVIRONMENT;
COARSE GOLD RESOURCE
CONSERVATION DISTRICT/EASTERN
MADERA COUNTY FIRE SAFE
COUNCIL; TULARE COUNTY
RESOURCE CONSERVATION
DISTRICT; SIERRA RESOURCE
CONSERVATION DISTRICT;
STRAWBERRY PROPERTY OWNERS’
ASSOCIATION; HUNTINGTON LAKE
ASSOCIATION; HUNTINGTON LAKE
BIG CREEK HISTORICAL
CONSERVANCY; CALIFORNIA
EQUESTRIAN TRAILS & LANDS
COALITION; CALIFORNIA
FORESTRY ASSOCIATION;
CALIFORNIA LICENSED FORESTERS
ASSOCIATION; CALIFORNIA/
NEVADA SNOWMOBILE
ASSOCIATION; AMERICAN FOREST
& PAPER ASSOCIATION; AMERICAN
FOREST RESOURCE COUNCIL;
BLUERIBBON COALITION;
CALIFORNIA SKI INDUSTRY
ASSOCIATION; CALIFORNIA
CATTLEMEN’S ASSOCIATION;
QUINCY LIBRARY GROUP; PLUMAS
COUNTY,

            Defendant-intervenors -
Appellees


                                      2
                     Appeal from the United States District Court
                         for the Eastern District of California
                    Morrison C. England, District Judge, Presiding

                        Argued and Submitted March 10, 2008
                                 San Francisco, CA

                                        Filed

Before: REINHARDT, NOONAN, FISHER, Circuit Judges

                              Opinion by Judge Noonan

NOONAN, Circuit Judge:

      Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court

denying a preliminary injunction against the United States Forest Service (the

USFS or the Forest Service) in a suit challenging its decision to permit logging in

accordance with changes made in 2004 by the USFS in the relevant forest plan.

Other parties, noted in the caption, have intervened on each side. The Attorney

General of California, Edmund G. Brown, Jr., has filed an amicus brief in support

of Sierra Forest.

      We hold that the district court abused its discretion. We reverse and remand.

                                  PROCEEDINGS

      Sierra Forest is comprised of the Sierra Nevada Forest Protection Campaign,

Center for Biological Diversity, Natural Resources Defense Council, Sierra Club,



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and The Wilderness Society, many of whose members enjoy and are educated by

the affected forests and the wildlife dependent on habitats within them. This suit

was begun in 2005 in response to the Supplemental Environmental Impact

Statement (SEIS) issued by the USFS in January of 2004 as a supplement to the

Final Environmental Impact Statement (FEIS), issued by the USFS in 2001 in

implementation of the Sierra Nevada Forest Plan Amendment.

      Under the SEIS, the USFS approved logging in three specific sites: Basin,

Empire, and Slapjack. On September 10, 2007, the USFS announced that it

intended to advertise and award logging contracts for these sites. On September

21, 2007, Sierra Forest moved for a preliminary injunction. On October 15, 2007,

the district court denied the motion.

      Sierra Forest appeals, raising several claims under the National Forest

Management Act (NFMA), 16 U.S.C. §§ 1600-1614, and the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370f. In light of our

disposition, we do not reach all of the arguments raised by Sierra Forest.

                                        ANALYSIS

The Standard

      Our review is a review of a motion preliminary to a trial. As the district

court’s decision is preliminary, so must our decision be preliminary. It is not on


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the merits. We need not address all aspects of the projects. Our decision must

defer to the discretion of the district judge who has had to act with some dispatch.

See Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (citation omitted).

When a preliminary injunction is sought, there is a sense of urgency on each side –

to go ahead expeditiously with the project; to stop what is seen as harm that cannot

be undone. Deferential as we are, we cannot default in reviewing de novo the law

binding on the judge who has discretion but not carte blanche. See Sports Form,

Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir. 1982). We state only

the facts relevant to the result.

       A district court abuses its discretion if it bases its decision on an erroneous

legal standard or clearly erroneous finding of fact. See Earth Island Inst. v. U.S.

Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted). The familiar

criteria to be met to obtain the issuance of an injunction before the trial are a strong

likelihood of success on the merits; the possibility of irreparable harm; a balance of

hardships favoring the plaintiffs; and advancement of the public interest. See id. at

1297-98 (citation omitted).

Probability of Success on the Merits

       There is no disagreement that USFS is authorized to take action to prevent

the occurrence of forest fires. One necessary step is the clearing of brush,


                                            5
including the removal of small trees. Doing so involves the expenditure of funds.

The USFS does not assert, however, that it is necessary as a preventive measure to

cut down the larger trees that provide the habitat in which various species thrive.

These trees constitute a desirable prize for loggers who seek to convert them into

lumber for commercial purposes. The USFS acknowledges that its reason for

selling the forest trees to commercial loggers is to raise funds to carry on its fire

prevention duties. Sierra Forest and the State of California seek to preserve the

larger trees and so to preserve the habitat that supports various species. We need

decide here a limited and narrow issue: Does the 2004 SEIS prepared by USFS

regarding its plans to sell off the forest trees comply with the requirements of

NEPA?

      Sierra Forest argues that USFS violated NEPA’s requirement to

“[r]igorously explore and objectively evaluate all reasonable alternatives” to a

proposed plan that has significant environmental effects. 40 C.F.R. § 1502.14(a)

(2000). USFS cannot rely on its discussion of alternatives in the 2001 FEIS to

satisfy this requirement for the 2004 SEIS. “[W]here changed circumstances affect

the factors relevant to the development and evaluation of alternatives,” USFS

“must account for such change in the alternatives it considers.” Natural Res. Def.




                                            6
Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005) (citation

omitted).

      Such changed circumstances plainly exist here. First, USFS altered its

modeling techniques between the issuance of the 2001 FEIS and the 2004 SEIS

and failed to update its analysis of the 2001 FEIS alternatives under these new

techniques. Second, the 2004 SEIS introduced substantively new objectives from

those contained within the 2001 FEIS. A primary purpose of the new framework

adopted by the SEIS is the provision of funds for the reduction of fuel, that is, for

the reduction of the risk of fire in the forests. This goal has become an imperative

after the catastrophic fires that have devastated forests in the northwest. Severe

wildfires have increased dramatically in the Sierra Nevada from an average of

43,000 acres per year ten years ago to an average of 63,000 acres per year. Control

of wildfires is an imperative for the inhabitants of land bordering the forests. It is

an imperative for defenders of the habitat and the wildlife within them. Fire is a

force that must be managed if the environment is to be protected.

      The SEIS proposes a simple solution:

      Opportunities for Leveraging Appropriated Funds to Accomplish
      Fuels Treatments
             Under Alternative S2, revenues from the sale of commercial
      forest products could be obtained from some fuels treatments. This
      would increase the likelihood of accomplishing the projected acres of


                                           7
treatment, an essential first step in achieving the desired reductions in
acres burned. Where consistent with desired conditions, area
treatments would be designed to be economically efficient and meet
multiple objectives.
       Timber sale contracts provide a mechanism for the efficient
removal of commercially-valuable sawtimber. Contracts that have
sufficient value offer capabilities for funding the accomplishment of
additional resource management goals. Records from recent timber
offerings indicate that sales with higher volumes per acre attract
higher bids. Sales yielding an average 4.5 mbf/acre provide
approximately $112/mbf, compared to only $38/mbf for 1.5 mbf/acre
(Lamdram, pers comm).
       The size of tree made available for harvest has a significant
influence on sale volume per acre averages and thus, per unit bid
values. Assuming typical heights, the board foot volume for a 12-inch
dbh tree is 39, compared to 317 for a 20 inch tree and 710 for a 24
inch tree. Using these assumptions, 77 twelve-inch dbh tress would
be needed to reach the minimum economically feasible sale volume
(estimated at 3 mbf/acre). This compares to 9 trees of 20-inch dbh
and 4 trees of 24-inch dbh. In summary, including only a few
medium-sized trees can make an impact on the economic viability of a
given project.
       A number of options are available for deriving commercially-
valuable wood products from fuels treatments. Where wood-fired
electrical generation facilities exist and sufficient sawtimber value is
present, small trees, e.g. biomass, can be removed. Bids in excess of
required collections may also be made available for fuel reduction
treatments within the sale area boundary. These may include:
       1) Shredding of ladder fuels, i.e. small trees, woody shrubs, and
       surface fuel,
       2) Prescribed fire treatment following timber harvest, or
       3) Fuel reduction treatment outside timber sale units (within the
       time sale area boundary).
       Alternatively, a stewardship contract package (a service
contract, not a timber sale contract), that includes commercially-
valuable sawtimber, may provide for cost-effective implementation of
multiple fuels reduction projects within the contracted area.


                                    8
      In amplification, the USFS replied to the following public comment:

      9.2.4. Public Concern: The Final SEIS should not claim that
      increased logging levels will increase forest protection, or it should
      scientifically justify that assertion.

      Response: Alternative S2 in the SEIS was developed to provide
      opportunities for increasing available funds for fuels reduction work
      on the national forests. This alternative increases revenues by
      permitting the removal of some medium-sized trees from some areas.
      The SEIS does not suggest that removing these trees will alter stand
      structure in ways that significantly enhance fire protection. It is the
      increase in available funds from logging that can be used to increase
      fuels reduction work. But the work would be done on other lands.
      See the discussion on fuels treatment economics in the SEIS (Chapter
      4, Economics of Fuels Treatments) for more information about
      treatment costs and the value of additional timber harvest to fuels
      reduction work. The Final SEIS (Chapter 4, Fire and Fuels
      Management) has an expanded discussion regarding the economics of
      fuels treatments.

      Sell trees to loggers. Use the money to clear areas of what is potential fuel

for fire. The solution has a secondary benefit: what the loggers cut can, at least in

part, be timber that was potential for fire. In one sale, a fire hazard can be removed

and the USFS paid so that it can remove the fuel of future fires.

      Two for one always has an attractive ring. But are there no alternative ways

of getting money to do the clearing that is imperative? Obviously, there may be.

First of all, there is the USFS’s own budget. Does that budget contain any funds

that could be devoted to fuel removal? Is every one of its activities so necessary



                                           9
and so tightly allocated that no money could be shifted? We do not know the

answer because this alternative has not been explored.

      Suppose that the USFS and its parent, the Department of Agriculture, cannot

spare a dime. What then? Appropriate appropriations come from Congress. The

work of fire prevention is work of the first importance. If the USFS does not have

enough, why should not Congress be asked to give it more? Surely the avoidance

of catastrophic fire in the national forests must rate a high priority among the needs

of the nation.

      Alternatives considered in the 2001 FEIS address the critical problem of fuel

reduction. Several of them (F3, F4, F6, and F7) are projected as achieving an

acreage reduction of over 30% in the first five decades as opposed to a 22%

reduction that is projected in the adopted Alternative S2. These alternatives do not

appear to have been reexamined in the light of the new urgency of fire prevention.

      The Attorney General of California raised several alternative methods to

fund USFS’s fire reduction objectives, including requesting a special appropriation

from Congress, re-prioritizing other funding, and altering its fuel treatment

program. USFS failed to consider these alternatives in its implementation of the

2004 SEIS. So long as all these alternatives remain unexamined or unreexamined,

so long does the SEIS fail to conform to the law. The district court abused its


                                          10
discretion in concluding that USFS complied with NEPA’s requirement to

“[r]igorously explore and objectively evaluate all reasonable alternatives.” 40

C.F.R. § 1502.14(a) (2000).

Balancing of Equities

        The legal merits of the Sierra Forest’s case, at this stage of the litigation,

are strong. To justify a preliminary halt to the projects the real possibility of

irreparable harm is still required. It is not necessary to canvass all the species that

may be affected and all the environmental harm that might ensue. It suffices in this

case to take account of the status of the spotted owl whose range relates to the

affected forests. True, the species exists in southern California as well as in the

northwest; but the species as a whole has been classified as “sensitive” by the

Forest Service. The proposed logging will not destroy the species. What it will do

is reduce its established habitat. The possibility that this reduction in its range will

irreparably damage the sensitive species cannot be dismissed.

      Postponement of the Forest Service plans may increase the danger posed by

fires; but the Forest Service and Congress do not appear helpless to find the funds

to decrease the dangers. The question we address here is whether USFS’s choice

of funding for fire reduction – rather than fire reduction itself – outweighs

California’s preservation interests. We conclude that it does not, given that


                                           11
“special solicitude” should be afforded California’s stake in its natural resources

and that the Forest Service did not consider alternatives to its choice of funding.

Massachusetts v. Envtl. Prot. Agency, 127 S. Ct. 1438, 1454-55 (2007).

      Public interests are further implicated: the importance of preserving the

environment and of enforcing the law intended to preserve it. See Amoco Prod.

Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).

      For the reasons stated, the judgment of the district court is REVERSED and

the three proposed projects are preliminarily enjoined to the extent that they are

inconsistent with the 2001 FEIS. The case is REMANDED for further proceedings

in accordance with this opinion.




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                                                                            FILED
                                                                             MAY 14 2008

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS




NOONAN, Circuit Judge, concurring:

      Impaired Impartiality. That judges cannot supplement their salaries,

however inadequate they may be, by imposing fines provided by law on those

convicted of lawbreaking seems to be a pretty elementary principle of justice. Yet

the civilized state of Ohio and the Supreme Court of that state saw nothing to

object to in the practice until the Supreme Court of the United States unanimously

held it to be a deprivation of due process for a municipal officer to get $12 out of a

$100 fine that he had legally imposed. Tumey v. Ohio, 273 U.S. 510 (1927).

      Almost as elementary is the extension of this principle to administrative

adjudicators. See Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (citation omitted).

      The bias created need not be personal, that is, the adjudicator to be found

biased need not be paid off by his decision. The bias can arise from his decision

being a way of raising money for the municipality he serves. Ward v. Vill. of

Monroeville, 409 U.S. 57 (1972). Once again, the civilized state of Ohio and its

Supreme Court had to be corrected by the United States Supreme Court finding a

denial of due process when fines imposed by the mayor were “a substantial

portion” of the municipality’s income, although the mayor’s own salary was fixed


                                          13
and independent of the fines. Id. at 59. The test, failed by Ohio’s statutory

scheme, was whether “a possible temptation” was offered the mayor acting as

judge “not to hold the balance nice, clear, and true.” Id. at 60 (quoting Tumey, 273

U.S. at 532).

      It would not seem to require a Euclid to draw appropriate inferences from

the governing principle of impartiality. Yet it has not been easy. Two justices

dissented in Gibson, asserting that only personal gain disqualified the decider. 411

U.S. at 84 (White, J. and Rehnquist, J., dissenting). Forty years after Tumey, three

states still used the statutory scheme of a judge supporting himself by his own

judgments that was condemned as unconstitutional in Tumey. See K. Davis,

Administrative Law Text § 12.04 (1972). In many instances the necessity of having

a judge has been allowed to trump the necessity of a judge who is impartial. Id. at

§ 12.05. A distinction has also been drawn between a judicial or quasi-judicial role

and a legislative role where impartiality is not a requisite. Id. at § 12.04. A

financial interest may also be so slight as to be discounted as a disqualifier.

Marshall v. Jerrico, Inc., 446 U.S. 238, 245-46 (1980).

      Custom or indifference cannot legalize a departure from what is required by

the criterion of impartiality. Necessity may make an inroad, and it might be argued

that the USFS is necessitous; it says it doesn’t have the money it needs unless it


                                           14
sells the forests. That argument takes too narrow a view of the position of the

USFS. It has a budget that may be malleable. It exists within a department that

may have discretionary funds. It is the arm of a nation whose credit, not

inexhaustible, is strong enough not to require supplementation by sales of the

nation’s timber. Necessity, in a word, has not been established.

      We do not need, on the facts of this case, more information on the budget of

the Forest Service. It has been suggested in earlier litigation concerning similar

timber sales by the Forest Service that this information should be furnished. See

Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1178 (9th Cir. 2006)

(Noonan, J., concurring); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291,

1309 (9th Cir. 2003) (Noonan, J., concurring). In this case, the Forest Service

makes no secret of the importance of the sales to its approval of the projects.

Fund-raising for fuel-reduction is a substantial purpose.

      The Forest Service has a final argument, unfurled as its lead argument in

oral argument. It is that its approval of the three contested projects denies no

person the right to life, liberty or property. Hence due process of law is not

required and nothing but due process requires impartiality. This bold claim calls

for careful consideration.




                                          15
       Undisputed is the standing of Sierra Forest to assert the interest of those

individual members affected by the destruction of the environment and its species.

“Aesthetic and environmental well-being, like economic well-being, are important

ingredients of the quality of life in our society,” important enough to confer

standing under the Administrative Procedure Act, 5 U.S.C. § 702, to redress an

injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734 (1972). These are

elements of the liberty enjoyed by a citizen. An injury in fact inflicted by a

decision of the USFS must necessarily be the denial of a result to which the

plaintiffs were legally entitled. If the plaintiffs were entitled to the result, were the

plaintiffs not entitled to an unbiased decision-maker? The injury asserted here is

alleged to arise under NEPA. Invoking the federal law, Sierra Forest was entitled

to seek its application by an agency which was without an interest of its own in a

result contrary to the law.

       Why is there a case before us if no person’s rights were at stake? We do not

sit to adjudicate general policy disputes but to decide controversies. A controversy

calls for two parties, each asserting an interest and a right that protects that interest.

So here, Sierra Forest is not a plaintiff without an interest and a right. We do not

need to dismiss the case for want of a controversy. Nor do we need to find that no

right is at issue. The right Sierra Forest seeks to vindicate here did not arise with


                                            16
the USFS’s decision. The right was what Sierra Forest sought to vindicate before

the USFS.

      It is possible that a crucial distinction here may be made between rulemaking

and adjudicating, if it is meaningful to separate administrative action into these two

tight compartments. Rulemaking by an administrative agency, like legislation by a

legislature, seems exempted from scrutiny for conflict of interest. When the Forest

Service develops a forest plan it is engaged in rulemaking and it needs only to

provide for the kind of notice and comment that rulemaking requires. See 36

CF.R. § 219.9. Forest plans “do not grant, withhold, or modify any contract,

permit, or other legal instrument, subject anyone to civil or criminal liability, or

create any legal rights.” Id. at § 219.3(b). A forest plan in itself “does not give

anyone a legal right to cut trees, nor does it abolish anyone’s legal authority to

object to trees being cut.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,

733 (1998).

      Rights enter the picture when the Forest Service moves to site-specific

projects. In this step, the Forest Service implements the plan in a specific location

by selecting a timber sale area, preparing an environmental assessment in

accordance with NEPA, allowing public comment, and awarding a timber

harvesting contract to the highest bidder. See id. at 729-30; Sierra Club v.


                                           17
Peterson, 228 F.3d 559, 562 (5th Cir. 2000); 36 C.F.R. § 223.1. Each site-specific

project and timber sale contract must be consistent with the applicable forest plan.

36 C.F.R. § 219.8(e), § 223.30.

      The Forest Service introduces its bias at the stage of making the forest plan,

while case law prohibits bias only at the stage of awarding contracts. This delay in

the bite of the bias should not insulate it from judicial review. The financial

incentive of the Forest Service in implementing the forest plan is as operative, as

tangible, and as troublesome as it would be if instead of an impartial agency

decision the agency was the paid accomplice of the loggers.

      That the difference between judicial and legislative functions makes a

difference as to the impropriety of monetary benefit to the decision-makers is a

fallacy. The bribery of a congressman is a crime. See 18 U.S.C. § 201; United

States v. Brewster, 408 U.S. 501 (1972). It would not make a difference if the

bribe came from a trade association on behalf of a whole industry. See, e.g.,

United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). In the

instant case the decision-makers are influenced by the monetary reward to their

agency, a reward to be paid by a successful bidder as part of the agency’s plan.

      Independently of the grounds set out in my opinion for the court, I would

hold this defect in the process to vitiate entirely the ultimate decisions, without the


                                           18
necessity of balancing, and to require judicial setting aside of the implementation

of the process.




                                         19
                             Counsel List

David Edelson, Berkeley, California, for plaintiffs-appellants.

Jennifer Scheller, Washington, D.C., for defendants-appellees.




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