Ninth Circuit Court Denies Government Request to Resume Clearcutting Upper Big Hole Valley

The ruling preserves the right of all citizens to request a preliminary injunction to stop construction before the damage is done.

(WISDOM, Mont.) - A ruling by the Ninth Circuit Court of Appeals this week has set a precedent by defining at what point environmental groups may stop federal projects.

In question was the Preliminary Injunction issued by the Ninth Circuit Court of Appeals last year that stopped a massive federal logging project about 15 miles west of Wisdom in Montana’s Big Hole Valley.

“This landmark precedent is vitally important because the court ruled that citizens can still get injunctions to temporarily stop government actions, such as clearcutting, while a case is being heard,” said Michael Garrity, Executive Director of the Alliance for the Wild Rockies who, along with the Native Ecosystems Council were co-plaintiffs in the original lawsuit.

“If the damage from clearcutting was allowed to continue while we argued in court, winning would mean nothing because all the trees would already have been cut.”

Initially, Federal District Judge Donald Molloy had refused to allow the temporary injunction to stop the logging, but was overruled by the Ninth Circuit, which allowed the Preliminary Injunction in June of 2010.

“We contended that the Rat Creek Timber Sale violated the National Forest Management Act by moving forward with logging before addressing dozens of appeals that were filed against the project,” Garrity added.

“But half of the sale had already been logged before the Court halted the project.”

Susan Jane M. Brown, Staff Attorney for the Western Environmental Law Center who represented the Alliance, explained why the ruling is so important. “The preliminary injunction is a critical tool for environmentalists because it allows opponents of a project to stave off an imminent destructive project.”

Brown said the issue clarifies a Supreme Court ruling in Winter v. Natural Resources Defense Council, in which the Court refused to grant plaintiffs an injunction against the U.S. Navy’s use of sonar off the California coast. In that case, the Supreme Court allowed Navy maneuvers to continue despite Plaintiffs’ contention that such use was causing damage to whales and other sea mammals.

“In the wake of the Supreme Court decision in Winter vs. NRDC, the Department of Justice (DOJ) began arguing nationally that Winter substantially curtailed Plaintiffs’ ability to obtain injunctive relief, and that the sliding scale test -- which allows the court to balance the often-great magnitude of environmental harm against the likelihood of plaintiff’s success -- was no longer good law,” Brown explained.

“We put DOJ’s theory to the test, and the Ninth Circuit Court of Appeals ruled in our favor. This is vitally important because it can be difficult to fully demonstrate damages when confronted with the short timelines and incomplete agency decision-making records that are common in preliminary injunction cases.”

“Environmentalists aren’t the only victors today,” added Garrity. “Right now we have farmers and ranchers fighting proposed transmission lines to export power from Montana. This ruling preserves the right of all citizens to request a preliminary injunction to stop construction before the damage is done.”