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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

SIERRA NEVADA FOREST

PROTECTION CAMPAIGN, PLUMAS

FOREST PROJECT EARTH ISLAND

INSTITUTE; and CENTER FOR

BIOLOGICAL DIVERSITY, nonprofit organizations,

NO. CIV. S 04-2023 MCE GGH

Plaintiffs,

v. ORDER

UNITED STATES FOREST SERVICE;

JACK BLACKWELL, in his

official capacity as Regional

Forester, Region 5, United

States Forest Service; and

JAMES M. PEÑA,

 Federal Defendants,

and

QUINCY LIBRARY GROUP,

an unincorporated citizens

group; and PLUMAS COUNTY,

 Defendant-Intervenors.

----oo0oo----

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Following this Court’s May 9, 2005 issuance of summary 

judgment in favor of Defendants United States Forest Service,

Jack Blackwell, and James Peña (hereinafter “Forest Service”),

Plaintiffs filed a notice of appeal with the Ninth Circuit Court

of Appeals on May 13, 2005. Concurrently with that appeal,

Plaintiffs also submitted a motion for injunction pending 

appeal. Pursuant to Rule 8(a)(1)(C) of the Federal Rules of

Appellate Procedure, Plaintiffs’ motion asks this Court to enjoin

the Forest Service from awarding any timber sale contracts, which

implement the Meadow Valley Project (“MVP”) at issue in this

litigation, pending final disposition of Plaintiffs’ appeal.

In considering whether to grant an injunction pending

appeal, three factors must be assessed. Plaintiffs, as the

moving party, must first show a strong likelihood of success on

the merits. If that prerequisite is satisfied, Plaintiffs must

then show that the balance of irreparable harm favors their

position. Finally, whether or not the public interest militates

in favor of an injunction must be considered. Warm Springs Dam

Task Force v. Gribble, 565 F.2d 549, 551 (9 Cir. 1977). th

Assessment of both the second and third factors merges into a

single equitable judgment which must be weighed in the event that

the potential for irreparable environmental injury has been

established. See id.

Plaintiffs have not shown a likelihood of success on the

merits of their claims in this case, as they must to qualify for

the “extraordinary remedy” of injunctive relief. See Shelton v.

Nat’l Collegiate Athletics Ass’n, 539 F.2d 1197, 1199 (9 Cir. th

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1976). In its May 9, 2005 Memorandum and Order granting summary

judgment, this Court found that no Environmental Impact Statement

was required because the Forest Service demonstrated that the MVP

posed no significant effect on the environment either in terms of

its impact to the California spotted owl, or with respect to

increased fire risk. The Court granted summary judgment in

favor of the Forest Service as to those issues, which are the

very same bases proffered by Plaintiffs in now attempting to

again justify injunctive relief. Consequently there is no

likelihood of success on the merits and Plaintiffs cannot satisfy

their initial hurdle in obtaining an injunction pending appeal.

Even if Plaintiffs were to establish a likelihood of success

on the merits, the balancing of equities entailed by the second

and third Warm Springs factors still does not warrant the

injunctive relief they seek. The only irreparable harm

identified by Plaintiffs in this case stems from the Forest

Service’s alleged violations of NEPA, NFMA and the QLG Act in

allegedly increasing fire risk through implementation of the MVP

and in degrading old forest area constituting suitable habitat

for the California spotted owl. (See Pls.’ Mem. in Support of

Mot. for Summ. J., 44:26-45:2l; Pls.’ Mem. in Support of

Injunction Pending Appeal, 6:2-6). As indicated above, the Court

has already determined that no such violations occurred. In

light of that determination there is no irreparable harm to

Plaintiffs which must be balanced.

Moreover, as set forth in the Court’s Amended Memorandum and

Order filed concurrently with this Order, the public interest

also does not favor issuance of an injunction in this case. 

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Construction of the DFPZs encompassed within the MVP are designed

to reduce the risk of catastrophic wildfire which has threatened

the Meadow Valley community on at least two occasions since 1999. 

In addition, as previously indicated the MVP seeks to promote

forest restructuring (and a return to conditions more closely

approximating pre-European settlement conditions) that will

achieve a more fire-resilient forest in the long run by opening

the canopy cover to facilitate the growth of more fire resistant

pine species. Such long-term fire resilience, which not only

reduces the risk to Meadow Valley and surrounding communities,

improves firefighter safety and efficiency, and reduces the

potential for a devastating crown fire that could ultimately

impact old-growth forest habitat essential for species like the

California spotted owl, is also in the public interest. 

For all these reasons, Plaintiffs’ request for injunction

pending appeal is hereby DENIED. 

IT IS SO ORDERED.

DATED: May 26, 2005

___________________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-02023-MCE -GGH Document 92 Filed 05/27/05 Page 4 of 4