Alliance for the Wild Rockies v. BRADFORD et al

Filing 129

ORDER denying 121 Motion for Injunction Pending Appeal; denying as moot 124 Motion to Strike. Signed by Judge Donald W. Molloy on 5/17/2019. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

CV 09-160-M- DWM

ALLIANCE FOR THE WILD
ROCKIES,
Plaintiff,

ORDER
vs.
CHRIS SAVAGE, et al.,
Defendants.

Plaintiff Alliance for the Wild Rockies ("Alliance") moves for an injunction
pending appeal of the Court's order approving the Miller West Fisher Project
("Miller Project") on the Kootenai National Forest. (Doc. 121 .) Defendants
United States Forest Service, United States Fish and Wildlife Service, and their
official representatives (collectively "the agencies") oppose the motion, (Doc.
123), and move to strike extra-record exhibits on which Alliance relies, (Doc. 124).
Alliance's motion for an injunction pending appeal is denied. The agencies'
motion to strike is denied as moot.
BACKGROUND

This action commenced in 2009 when Alliance alleged the Miller Project
-, .,_

violated the Endangered Species Act ("ESA"), the National Forest Management
Act ("NFMA"), and the National Environmental Policy Act ("NEPA"). (Docs. 1,

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8.) On June 29, 2010, the Court granted summary judgment for Alliance on five
claims applicable to the Miller Project. (Doc. 44 at 68---69.) The Miller Project
was enjoined and the matter was remanded to the agencies to address the
deficiencies in the project. (Id. at 69.) After extensive analysis on remand,
including a Final Supplemental Environmental Impact Statement and new Record
of Decision, the agencies moved to dissolve the injunction. (Doc. 112.) The Court
granted the motion, allowing the Miller Project to proceed. (Doc. 118.) Alliance
appealed. (Doc. 119.) Alliance now asks this Court to enjoin the Miller Project
again pending the appeal. (Doc. 121.) In support of its motion, Alliance submitted
two reports by the Fish and Wildlife Service regarding grizzly bear monitoring in
the Cabinet-Yaak Recovery Area that are not part of the Administrative Record in
this case. (See Docs. 122-3, 122-5.) The agencies have moved to strike these
exhibits. (Doc. 124.)
ANALYSIS

I.

Motion for Injunction Pending Appeal

A motion for an injunction pending appeal is considered under the same
standard as a motion for a preliminary injunction. See Tribal Vil/. ofAkutan v.

Hodel, 859 F.2d 662,663 (9th Cir. 1988). Generally, a party seeking an injunction
must show ( 1) a likelihood of success on the merits, (2) it is likely to suffer
irreparable harm, (3) the balance of equities favors an injunction, and (4) an
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injunction is in the public interest. See Winter v. Natural Res. Def Council, 555
U.S. 7, 20 (2008). However, in ESA cases, "the equities and public interest factors
always tip in favor of the protected species." Cottonwood Envtl. Law Ctr. v. US.
Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015). A party seeking an injunction

must make an initial showing on all four Winter factors; the factors are then
assessed on a sliding scale. Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134-35 (9th Cir. 2011). For example, when the "balance of hardships tips
sharply in the plaintiffs favor," an injunction may issue on a showing of only
"serious questions going to the merits," and not the stricter showing of "likelihood
of success on the merits." Id. at 1135.
Here, Alliance has not made even the lesser showing of serious questions
going to the merits. Its sole argument is that the June 29, 2010 Order-which
ultimately enjoined the Miller Project- referred to a ruling for the agencies on one
of the ESA claims as a "close call." (Doc. 44 at 46.) Specifically, the Court
upheld the agencies' determination that road building activities were not likely to
adversely affect grizzly bears, but recognized it was a close question. (Id.)
However, the operative order, and the one from which Alliance appeals, is the
November 15, 2018 Order lifting the injunction against the Miller Project. (Doc.
118.) That Order considered the changes to road building standards since the
"close call" ruling, including that in 2011 the Forest Service adopted the Forest
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Plan Amendments for Motorized Access Management within the Selkirk and
Cabinet-Yaak Grizzly Bear Recovery Zones to govern motorized vehicle access to
grizzly bear habitat in the Kootenai National Forest. (Doc. 118 at 6 (citing AR 1165).) The Access Amendments were incorporated into the Kootenai Forest Plan,
AR 10-4:19, with which the Miller Project complies, (Doc. 118 at 12). Alliance
does not raise any questions, never mind serious questions, on the merits of the
November 15, 2018 Order. Accordingly, an injunction is not warranted even
assuming Alliance has made the requisite showing on the other Winter factors.
II.

Motion to Strike

Subject to exceptions not relevant here, judicial review of agency action
under the Administrative Procedure Act is limited to the administrative record at
the time the agency made its decision. San Luis & Delta-Mendota Water Auth. v.
Locke, 776 F.3d 971, 992 (9th Cir. 2014). "Parties may not use post-decision

information as a new rationalization either for sustaining or attacking the
[a]gency' s decision." Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,
450 F .3d 930, 943 (9th Cir. 2006) (internal quotation marks omitted).
Here, the agencies argue Exhibits 3 and 5, (Docs. 122-3, 122-5), submitted
in support of Alliance's motion for an injunction pending appeal, should be
stricken as improper extra-record material. The exhibits are annual reports by the
Fish and Wildlife Service regarding grizzly bear monitoring in the Cabinet-Yaak
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Recovery Area. Exhibit 3 presents data collected in 2017. (Doc. 122-3 at 2-3.)
Exhibit 5 presents data collected in early 2018. (Doc. 122-5 at 2.) Alliance argues
the reports show the grizzly bear population in the Cabinet-Yaak region is failing
to meet target recovery rates, and thus the equities tip sharply in favor of an
injunction pending appeal. The agencies argue this is a backdoor challenge to their
determinations based on post-decision information. The Ninth Circuit has not
addressed whether a court's inquiry into an injunction pending appeal of a decision
reviewing agency action is confined to the administrative record like the initial
decision is. However, because the Court has not considered Alliance's equities
argument in deciding the injunction pending appeal, the motion to strike is moot.
CONCLUSION

IT IS ORDERED that Alliance's Motion for Injunction Pending Appeal
(Doc. 121) is DENIED.
IT IS FURTHER ORDERED that the agencies' Motion to Strike (Doc. 124)
is DENIED as MOOT.
DATED this

lI

J---

day of May, 2019.

.M .
y, District Judge
United State~ i ttict Court

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