Appeal Court Issues Second Sweeping Injunction Against Illegal Logging and Grazing

by Kieran Suckling

On July 25, 1997, the 9th Circuit Court of Appeals issued an emergency injunction barring the Forest Service from approving new timber sales and grazing leases that violate 11 recently amended National Forest Plans in the Southwest. Even more significantly, the court enjoined all ongoing projects that violate the amended Forest Plans, including contracted timber sales and grazing allotments. Up to 25 timber sales and 400 grazing allotments could be affected.

The injunction will remain in place until the appeals court makes a final decision as to whether the US Forest Service (USFS) must revise ongoing projects to make them consistent with all aspects of the newly amended Forest Plans.

Spotted Owl

In 1989, Robin Silver, Conservation Chair of the Southwest Center for Biological Diversity, filed a petition to list the Mexican spotted owl as an endangered species. In 1993, it was listed as threatened. The Southwest Center and Forest Guardians filed suit in 1994 to force designation of critical habitat. The ruling forced the the US Fish and Wildlife Service (USFWS) to designate 4.6-million acres of critical habitat in the Southwest's 11 national forests.

Also in 1995, the Southwest Center and Forest Guardians sued the Forest Service for failing to consult with USFWS on the effects of the 11 regional Forest Plans on the spotted owl. Just days after the Salvage Rider was passed, a district court enjoined all timber sales in all national forests in Arizona and New Mexico until the USFWS issued a biological opinion for the Mexican spotted owl. That opinion took 16 months to complete and effectively shielded the Southwest against most Salvage Rider sales.

Upon completion, the biological opinion determined that the USFS could not continue to implement the forest plans because of further risk to the spotted owl. The Forest Service, therefore, amended all 11 plans in June 1996, to incorporate the Mexican Spotted Owl Recovery Plan. The amendments also finalized a conservation plan for the northern and Apache goshawks.

Goshawk

In 1992, the Southwest Center petitioned to list the Apache and Northern subspecies of the goshawk, as endangered in the western US. The Fish and Wildlife Service twice refused to list the goshawk for technical taxonomic reasons. Twice, a federal judge ruled that the denials were illegal. A third, and hopefully final, 90-day finding is due in September.

The Forest Service, meanwhile, in an effort to head off the listing, adopted a series of "interim" goshawk conservation plans. Because they were supposedly interim, the plans were implemented without an Environmental Impact Statement (EIS). In 1995, the Forest Conservation Council and the Southwest Center sued to compell an EIS. To escape the inevitable, the USFS did an EIS on the goshawk, simultaneously amending the region's 11 National Forest Plans to include the goshawk plan and the spotted owl plan.

How This Injunction Came About

Though the Fish and Wildlife Service declared that the old forest plans should be amended because continued logging and grazing jeopardized the Mexican spotted owl, the Forest Service "grandfathered" in all ongoing logging and grazing, making them exempt from the added protections of the newly revised plans.

In September 1996, Forest Guardians and the Southwest Center sued the Forest Service, arguing that the National Forest Management Act requires all ongoing projects (including timber sales and grazing allotments) be updated to comply with all aspects of newly amended forest plans. When the district court judge did not act on our preliminary injunction request, we appealed to the 9th Circuit, winning an injunction against 18 timber sales on May 30, 1997.

On July 14, 1997, the district court ruled against us, and the Forest Service moved to have the appeals court lift its injunction. We responded with an appeal and a request for an emergency injunction. On July 25, 1997, the appeals court simultaneously lifted the Preliminary Injunction and handed down a new emergency injunction which will remain in place until a final decision is made on the appeal.