WaterLegacy v. USDA Forest Service et al

Filing 81

ORDER: WaterLegacy's Motion for Preliminary Injunction [Docket No. 9 ] is DENIED. (Written Opinion) Signed by Judge Joan N. Ericksen on August 31, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WaterLegacy,
Plaintiff,
v.

Case No. 17-cv-276 (JNE/LIB)
ORDER

USDA Forest Service; Thomas Tidwell, in
his official capacity as Chief of the USDA
Forest Service; Constance Cummins, in her
official capacity as Forest Supervisor of the
Superior National Forest; and Poly Met
Mining, Inc.,
Defendants.
Poly Met Mining, Inc., controls mineral rights on land that is located in the
Superior National Forest. The United States owns the remainder of the property rights.
Poly Met Mining wants to build an open-pit mine on the land. The United States
Department of Agriculture Forest Service will not authorize surface mining on the land.
To eliminate the conflict between Poly Met Mining’s desire to build and open-pit mine
and the Forest Service’s ownership and management of the land, Poly Met Mining and
the Forest Service proposed a land exchange, which is known as the NorthMet Project
Land Exchange. In January 2017, the Forest Service issued a Final Record of Decision
that approved the land exchange.
Claiming that the appraisal of the federal land failed to comply with the Federal
Land Policy and Management Act, WaterLegacy brought this action against the Forest
Service; the Forest Service’s chief, Thomas Tidwell; and the forest supervisor of the
Superior National Forest, Constance Cummins. A few weeks later, WaterLegacy filed a
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Motion for Preliminary Injunction. It sought to restrain the Forest Service, Tidwell, and
Cummins from signing an exchange agreement with Poly Met Mining or taking other
action to proceed with the land exchange and to restrain them from making or allowing
any changes in the management or use of the federal lands proposed for the exchange.
Poly Met Mining intervened as a defendant and filed a Motion to Dismiss for Lack of
Standing.
The Forest Service, Tidwell, and Cummins opposed WaterLegacy’s motion. Poly
Met Mining separately opposed WaterLegacy’s motion. In their opposition to
WaterLegacy’s motion, the Forest Service, Tidwell, and Cummins stated that “the Forest
Service will not facilitate or allow any ground-disturbing activity to occur on the federal
parcel prior to the actual transfer of titles.”
At the motion hearing, WaterLegacy discussed whether a preliminary injunction
that was less restrictive than the one it initially requested would satisfy its concerns.
WaterLegacy suggested two conditions: (1) that site conditions will not be changed; and
(2) that the exchange agreement could be unwound depending on the results of this
litigation. The Forest Service, Tidwell, and Cummins disclosed that they had included a
litigation contingency in the agreement they and Poly Met Mining were prepared to
execute. The Forest Service, Tidwell, and Cummins recently submitted a copy of the
draft agreement, which includes the term recited at the hearing:
The Parties recognize that the land exchange contemplated herein
may be affected by existing and/or threatened litigation (the “Litigation”)
and that, due to such Litigation, the Forest Service may delay or suspend
action on this exchange to conform with the orders of a court or
administrative body with jurisdiction over this exchange, or to conform
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with stipulations or agreements filed with such court. The Non-Federal
party waives and releases any and all claims against the Forest Service,
Department of Agriculture, and the United States (the “Government”)
based in whole or in part on any such delay or suspension, or on any
Government action taken to comply with any court order or other legally
binding decision.
The Forest Service indicated that it intends to sign the exchange agreement on August 31
for reasons that include “the need to obligate funds prior to the end of the fiscal year.”
In light of the litigation contingency, the representation that the Forest Service will
not allow ground-disturbing activity on the federal land before the transfer of titles, and
the issues raised with respect to WaterLegacy’s standing, the Court denies
WaterLegacy’s motion for a preliminary injunction. See Laclede Gas Co. v. St. Charles
Cnty., Mo., 713 F.3d 413, 416-17 (8th Cir. 2013); Desert Citizens Against Pollution v.
Bisson, 231 F.3d 1172, 1187 (9th Cir. 2000). Therefore, IT IS ORDERED THAT:
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WaterLegacy’s Motion for Preliminary Injunction [Docket No. 9] is
DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 31, 2017
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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