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The parties waived oral argument. (Pl.’s Mot. at 2.) *

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ENVIRONMENTAL PROTECTION ) 02:04-CV-1705-GEB-KJM

AND INFORMATION CENTER, a )

California nonprofit corporation, )

)

Plaintiff, )

)

v. ) ORDER*

)

UNITED STATES FOREST SERVICE, ) 

)

Defendant. )

)

Plaintiff moves for an injunction under Rule 62(c) of the

Federal Rules of Civil Procedure. Defendant opposes the motion. 

BACKGROUND

On August 20, 2004, Plaintiff filed an action challenging

the decision of the United States Forest Service (“Forest Service”) to

authorize tree thinning and treatment of fire fuels on 2,077 acres of

land in the Shasta-Trinity National Forest, commonly referred to as

the East Fork Timber Sale or the East Fork Project (“Project”). (See

Order, Aug. 22, 2005, at 1.) Specifically, Plaintiff asserted the

Forest Service violated the National Forest Management Act (“NFMA”) as

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Plaintiff asserts Trinity began logging on July 10, 2006, 1

but neither Plaintiff nor its counsel appear to have personal

knowledge of when logging operations first commenced. (See Dugan

Decl. ¶ 2, 4-5.) 

2

well as National Environmental Policy Act (“NEPA”) by approving the

Project. (See id. at 2.) 

On February 4, 2005, Plaintiff filed a motion for summary

judgment; the Forest Service filed a cross motion for summary judgment

on March 31, 2005. (Id. at 1.) An Order filed August 22, 2005,

granted summary judgment in favor of the Forest Service (“Summary

Judgment Order”); judgment was subsequently entered against Plaintiff. 

(Id. at 26.) On October 20, 2005, Plaintiff filed a Notice of Appeal

to the Ninth Circuit. (Pl.’s Not. of Appeal at 1.) 

After the Summary Judgment Order issued, the Forest Service

awarded Trinity River Lumber Company (“Trinity Lumber”) the contract

to perform the tree thinning and fire fuel treatment process. 

(Sanders Decl. ¶ 4.) Trinity Lumber began work on the Project in

November 2005, but only a “minor amount” of trees were logged over

“about a two-week period because the fall rains prevented further

work.” (Id. ¶ 5.) Trinity Lumber resumed work in early May 2006, and

to date has logged “between 200-240 acres.” (Id.) 1

On July 12, 2006, Plaintiff learned the contract had been

awarded to Trinity Lumber and that the logging process had begun. 

(Dungan Decl. ¶¶ 2, 5-6.) Plaintiff apparently “had no idea at all

that logging would begin prior to a decision from the Ninth Circuit,”

because it believed a “voluntary stay was still in effect which

Defendant had agreed to in [a Joint Status Report filed November 1,

2004].” (Id. ¶ 8.) On July 13, 2006, Plaintiff filed a motion for

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Plaintiff argues it “is . . . entitled to an injunction 2

pending appeal if [it] demonstrate[s] either: (1) a likelihood of

success on the merits and a possibility of irreparable injury; or (2)

the existence of serious questions on the merits and a balance of

hardships tipping in [its] favor.” (Pl.’s Mot. at 3.) However, the

case Plaintiff relies upon “is not on point . . . because it deals

with a party’s request for pre-litigation preliminary injunctive

(continued...)

3

“an injunction of logging and other ground disturbing activities [in

the Project area] pending an appeal of this case.” (Pl.’s Mot. at 1.) 

DISCUSSION

“Once a notice of appeal is filed, the district court is

divested of jurisdiction over the matters being appealed.” Natural

Resources Defense Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163,

1166 (9th Cir. 2001). “The principle of exclusive appellate

jurisdiction is not, however, absolute. The district court retains

jurisdiction during the pendency of an appeal to act to preserve the

status quo.” Id. (citations omitted). “This exception to the

jurisdictional transfer principle has been codified in Rule 62(c) of

the Federal Rules of Civil Procedure, which allows a district court to

‘suspend, modify, restore, or grant an injunction during the pendency

of the appeal upon such terms as to bond or otherwise as it considers

proper for the security of the rights of the adverse party.’” Id.

In Hilton v. Braunskill, the Supreme Court articulated four

factors a district court should consider when analyzing a Rule 62(c)

motion: “(1) whether the [injunction] applicant has made a strong

showing that he is likely to succeed on the merits; (2) whether the

applicant will be irreparably injured absent a[n] injunction; (3)

whether issuance of the [injunction] will substantially injure the

other parties interested in the proceeding; and (4) where the public

interest lies.” 481 U.S. 770, 776 (1987).2

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(...continued) 2

relief.” McAfee v. United States, 2006 WL 829135, *2 (E.D. Cal.

2006). The test articulated by the Supreme Court in Hilton applies

when a party seeks an injunction pending appeal. Id.; Digital Comm’n

Network, Inc. v. AB Cellular Holding LLC, 1999 WL 1044234, *4 (C.D.

Cal. 1999). 

4

A. Likelihood of Success on Appeal

Plaintiff asserts it “has throughly briefed the merits of

the case in its summary judgment brief and reply brief . . . [and]

although this Court ruled against Plaintiff on the merits, Plaintiff

certainly raised ‘serious questions going to the merits’ [in those

briefs] . . . .” (Pl.’s Mot. at 8.) The Forest Service rejoins that

“[b]y granting summary judgment on all issues raised by Plaintiff,

this Court has already determined that Plaintiff cannot succeed on the

merits of its case.” (Def.’s Opp’n at 2.) The Forest Service further

contends “Plaintiff has wholly failed to show any bases for concluding

that it is likely to prevail on the appeal . . . .” (Id.) 

“Several courts have observed that the success on the merits

factor cannot be rigidly applied because if it were, an injunction

would seldom, if ever be granted because the district court would have

to conclude that it was probably incorrect in its determination on the

merits.” Protect Our Water v. Flowers, 377 F. Supp. 2d 882, 884 (E.D.

Cal. 2004) (citations and quotation marks omitted). Consequently,

district courts “have interpreted [the success on the merits factor]

as requiring . . . the movant [to] show that ‘the appeal raises

serious and difficult questions of law in an area where the law is

somewhat unclear.’” Overstreet v. Thomas Davis Med. Ctrs., P.C., 978

F. Supp. 1313, 1314 (D. Ariz. 1997); Protect Our Water, 377 F. Supp.

2d at 844 (stating that “district courts properly stay their own

orders [pending appeal] when they have ruled on an admittedly

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difficult legal question”); Stop H-3 Ass’n v. Volpe, 353 F. Supp. 14,

16 (D. Hawaii 1972) (observing that injunctions pending appeal are

“issued where the trial court is charting a new and unexplored ground

and the court determines that a novel interpretation of the law may

succumb to appellate review”). 

Plaintiff does not explain the specific basis of its appeal;

presumably, the appeal concerns whether the Summary Judgment Order

correctly concluded that the Forest Service did not violate NEPA and

NFMA by authorizing the Project. (See Order, Aug. 22, 2005, at 2.) 

In general, a ruling as to “whether an agency decision violated

environmental statutes does not [raise] novel legal issues.” Protect

Our Water, 377 F. Supp. 2d at 844 (collecting cases). Plaintiff has

not identified any “novel” legal issues in the Summary Judgment Order,

or explained how that Order charted new and unexplored grounds. Id. 

In addition, Plaintiff has not articulated “any factual error []or any

rationale for concluding that [the Summary Judgment Order] was

incorrect.” Id. Consequently, the first Hilton factor does not favor

an injunction pending appeal. 

B. Irreparable Injury

Plaintiff argues the “logging of the forest habitat within

[the Project area] would constitute irreparable harm” because the area

is “of pristine biological value for riparian dependant species” and

other “sensitive species,” such as the Pacific Fisher and Northern

Spotted Owl. (Pl.’s Mot. at 5-6.) Plaintiff also indicates logging

in the Project area would cause irreparable harm to “old growth

forest,” because if cut, the forest would take hundreds of years to

reproduce. (Id. at 6.) The Forest Service rejoins that “[b]y

granting summary judgment to the Forest Service . . . the Court has

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Plaintiff appears to argue that a violation of NEPA or NFMA 3

“by itself constitutes irreparable harm.” (Pl.’s Mot. at 6-7.) 

However, the Summary Judgment Order concluded that the Project did not

violate either environmental Act. (Order, Aug. 22, 2005, at 26.) 

Furthermore, “[t]he Supreme Court has rejected a presumption of

(continued...)

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. . . determined that the impacts from the East Fork Project will not

have a significant effect on the environment.” (Def.’s Opp’n at 3.) 

In addition, the Forest Service asserts that the Project does not

affect “large, old growth timber,” but rather involves the removal of

“small tress to enhance growing conditions for larger trees.” 

(Sanders Decl. ¶¶ 3, 6, 9, 10.) 

When evaluating the harm that will occur if an injunction

pending appeal is not granted, “a court may consider: ‘(1) the

substantiality of the injury alleged; (2) the likelihood of its

occurrence; and (3) the adequacy of the proof provided.’” EEOC v.

Harris Farms, 2006 WL 1881236, *1 (E.D. Cal. 2006) (quoting Michigan

Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d

150, 153 (6th Cir. 1991)). Plaintiff has not demonstrated the Project

will likely cause substantial injury because contrary to its

assertions, the Project area is not of “pristine biological value,”

but rather consists of “young growth” conifer stands “stocked with too

many trees . . . [that] are beyond site capacity to maintain a

healthy, vigorous forest.” (Order, Aug. 22, 2005, at 6.) Further, a

biological assessment of the Project determined that it will not

significantly impact any sensitive species or their habitats. (Id. at

9-13, 24.) Since Plaintiff has submitted no evidence to demonstrate a

substantial or likely injury exists to the forest or species in the

Project area, Plaintiff has not shown that the second Hilton factor

favors an injunction. See Harris Farms, 2006 WL 1881236 at *1 3

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(...continued) 3

irreparable injury when an agency fails to evaluate thoroughly the

environmental impact of a proposed action.” Idaho Sporting Congress

Inc. v. Alexander, 222 F.3d 562, 569 (9th Cir. 2000). 

Although the proposed injunction would prohibit Trinity 4

Lumber from logging the Project area, the parties have not addressed

whether Trinity Lumber is a necessary or indispensable party to this

litigation. See Kettle Range Conservation Group v. United States

Bureau of Land Mgmt., 150 F.3d 1083 (9th Cir. 1998) (holding the

district court correctly determined it was without authority to grant

injunctive relief in the absence of third parties whose interests

would be affected by the proposed injunction). Since the necessary or

indispensable status of Trinity Lumber need not be reached to resolve

this motion, the issue is not decided. 

7

(stating that a “speculative injury does not constitute irreparable

injury”). 

C. Injury to Other Parties 

Plaintiff does not address whether its proposed injunction

would cause injury to third parties, but the Forest Service argues the

injunction would “cause hardship to [Trinity Lumber] . . . and to the

local community.” (Def.’s Opp’n at 3.) A declaration submitted by 4

Dee Sanders, the general manager of Trinity Lumber, explains that the

company has already paid the Forest Service a “down payment of

$55,000" and “four payment units . . . [totaling] $95,000,” has spent

“$50,000 on road reconstruction,” and paid an additional $290,000 to

Project contractors. (Sanders Decl. ¶ 4.) In addition, Sanders

declares that Trinity Lumber is “relying on [the Project] in [its]

summer and fall operating plans,” and that if the company “is unable

to continue harvest . . . [it] may not be able to replace the [timber]

and will likely have to pay [an estimated $3.5 million dollars] for

the timber if it can be replaced.” (Id. ¶ 8.) Sanders further

asserts that “there are about 20 people involved in the harvesting,

yarding, loading, and hauling of the timber from the sale area,” and

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that if the Project was “enjoined even for a short time . . . [the]

crew would suffer certain financial hardship.” (Id. ¶ 9.) 

In light of the Sanders declaration, it appears the proposed

injunction would cause injury to Trinity Lumber and possibly to its

employees. Consequently, Plaintiff has not demonstrated the third

Hilton factor favors an injunction.

D. Public Interest

Neither party has addressed whether the public interest

favors granting the proposed injunction; consequently, it cannot be

determined whether the fourth Hilton factor favors an injunction. 

CONCLUSION 

Since Plaintiff has not demonstrated any of the four Hilton

factors favor an injunction, its motion for an injunction pending an

appeal is denied. 

Dated: July 25, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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