Opinion · Court of Appeals for the Ninth Circuit
Alpine Lakes Protection Society v. Schlapfer
Alpine Lakes Prot. Soc’y v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975)
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1975-05-01
- Topic
- bankruptcy
How later courts describe this case
- injunction against timbering would lead to damage of timber by insects, rendering it worthless
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UpLaw has not yet analyzed Alpine Lakes Protection Society v. Schlapfer. The absence of a flag is not a finding that it is good law.
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ALPINE LAKES PROTECTION SOCIETY v. SCHLAPFER,518 F.2d 1089(9th Cir. 1975)
ALPINE LAKES PROTECTION SOCIETY, A WASHINGTON CORPORATION, ET AL.,
PLAINTIFFS-APPELLANTS, V. T. A. SCHLAPFER, REGIONAL FORESTER OF REGION SIX
OF THE UNITED STATES FOREST SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY, AND PACK RIVER COMPANY, A WASHINGTON CORPORATION,
DEFENDANTS-APPELLEES.
No. 75-1651.
United States Court of Appeals, Ninth Circuit.
May 1, 1975.
Edward J. Parry, Robert M. Sweeney, Asst. U.S. Atty., Spokane, Wash., Wallace H. Johnson, Asst. Atty. Gen., Carl Strass, Glen R. Goodsell, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.
[1] OPINION
Before KOELSCH and HUFSTEDLER, Circuit Judges.
[3] Although the important congressional policy expressed in the National Environmental Policy Act (NEPA),42 U.S.C. § 4321etseq.,has been said to weight the scale in favor of those seeking the suspension of all action until the Act's requirements are met (see, e. g., Lathan v. Volpe(9th Cir. 1971)455 F.2d 1111, 1116-17), the unusual circumstances in this case call for an individual weighing of the equities according to the traditional three-factor test: (1) Are the moving parties likely to prevail on the merits? (2) does the balance of irreparable damage favor the issuance of the injunction? and (3) does the public interest support granting the injunction? (Schwartz v.Covington(9th Cir. 1965)341 F.2d 537, 538.)
[4] Although we do not reach the merits of appellants' claim that the Forest Service's failure to prepare a full-scale environmental impact statement (EIS) before granting the challenged easement was contrary to the requirements of NEPA, we observe that the procedures employed by the Forest Service raise a substantial issue on appeal.
[5] Characterizing any piecemeal development of a project as "insignificant" merits close scrutiny to prevent the policies of NEPA from being nibbled away by multiple increments, no one of which may in and of itself be important enough to compel preparation of a full EIS. (See, e.g., Named Individual Membersof San Antonio Conservation Soc'y v. Texas Highway Dep't(5th Cir. 1971)446 F.2d 1013.) Appellants have also raised a question concerning the adequacy of notice provided by the 1972 EIS, now claimed to represent a broad consideration of the management strategy to be employed in the Counter Planing Unit. NEPA is essentially a procedural statute (Daly v. Volpe(9th Cir. 1975)514 F.2d 1106), and we have recognized that careful compliance with its provisions is necessary to fulfill the statute's fundamental goals:
"[The EIS's] form, content, and preparation [must] substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information."Trout Unlimited v.Morton(9th Cir. 1974)509 F.2d 1276.
[6] The record before us does not show that the balance of irreparable damage favors the issuance of the injunction pending appeal. Appellants allege that irreparable harm will occur to their interests as the continued logging permitted by the use of the nearly completed access road further reduces the area's wilderness characteristics and effectively removes it from consideration for inclusion in the wilderness preservation system. Appellees contend that they face a much more tangible and immediate harm: many of the trees on the company's property are insect infested and, absent prompt removal, the timber will be worthless.
[7] Finally, the public interest will not be served by granting the injunction, because access is necessary to remove the diseased timber and to prevent the insect infestation from spreading throughout the adjacent national forest lands.
[8] The balance of the equities do not favor the granting of an injunction.Page 1105