Alliance for the Wild Rockies v. BRADFORD et al

Filing 149

ORDER denying 133 Motion for Reconsideration. Signed by Judge Donald W. Molloy on 3/13/2020. (ASG)

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.

CHAD BENSON,* etal..
Defendants.

In November 2018,this Court lifted the injunction against the Miller West
Fisher Project, reasoning in part that the Project’s compliance with the Access
Amendments’ incidental take statement remedied the Endangered Species Act
(“ESA”)violations. (Doc. 118 at 5-7,8-11.) While the decision to lift the

injunction was pending on appeal, this Court decided Alliancefor the Wild Rockies
V. Probert,412 F. Supp. 3d 1188(D. Mont. 2019), ordering the Forest Service to
reinitiate consultation on the Access Amendments under the ESA to take into

account ineffective road closures in the Bears Outside Recovery Zone(“BORZ”)

areas. In light ofProbert, the Ninth Circuit remanded this case for reconsideration
of whether the Miller Project complies with the ESA in the Cabinet Face BORZ

*Chad Benson is automatically substituted as a defendant. Fed. R. Civ. P. 25(d).
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area. (Docs. 131, 132.) On remand, Plaintiff Alliance for the Wild Rockies seeks

an order enjoining the Miller Project in the Cabinet Face BORZ area and requiring
the Forest Service to reinitiate consultation on the Project. (Doc. 133.) For the

following reasons. Alliance’s motion is denied.
Analysis

The issue on remand is whether the Miller Project complies with the ESA in

the Cabinet Face BORZ area. (Doc. 131 at 3.) In dissolving the injunction, this

Court reasoned that the Project would comply with the ESA as long as it satisfied
the conditions of the Access Amendments’ incidental take statement, including that

there would be no permanent increases in open and total road miles in the BORZ
areas. (Doc. 118 at 6-7, 10-11.) At the time, there was no dispute that the
conditions were met. {Id. at 6.) However,Probert determined that the incidental
take statement’s baseline road mileages were being regularly exceeded in the

Cabinet Face BORZ area, resulting in unpermitted incidental take. 412 F. Supp. 3d
at 1203-04. Because the Miller Project is tiered to the Access Amendments, based

on Proberfs findings, it violates the ESA in the Cabinet Face BORZ area.
Alliance argues that the injunction against the Miller Project should be

reimposed in the Cabinet Face BORZ area. But after Probert, the Forest Service
halted work there. (Benson Deck, Doc. 143-1 at

7, 14, 15.) As long as no work

is planned for the Cabinet Face BORZ area. Alliance cannot show a likelihood of
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irreparable harm and is therefore not entitled to an injunction. See Winter v.
Natural Res. Def. Council, 555 U.S. 7, 20(2008)(outlining four-factor test for
injunctive relief). Alliance argues that the Forest Service’s voluntary cessation of
activities does not bar its requested relief But the voluntary cessation doctrine

applies to mootness of claims, not injunctions. See Friends ofthe Earth, Inc. v.
Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. 167, 189(2000).

Alliance also argues that the Forest Service should reinitiate consultation on

the Miller Project. Probert ordered reinitiation on the Pilgrim Project because, like
the Miller Project, it was tiered to the Access Amendments. 412 F. Supp. 3d at
1206. But this case’s procedural posture distinguishes it from Probert. Probert
was a summary judgment decision in a case that simultaneously challenged the

Pilgrim Project and the Access Amendments under the ESA’s consultation
provisions. This case is on remand from the decision to lift the injunction against
the Miller Project. By arguing for reinitiation of consultation on the Miller Project,
Alliance is attempting to litigate a new ESA claim that was not and could not have

been brought previously, given this case pre-dates the Access Amendments. To be
sure. Alliance could have raised the issues with the Access Amendments’

incidental take statement that were ultimately litigated in Probert in response to the
Forest Service’s motion to dissolve the injunction. Indeed,Probert was then

pending with Alliance as the plaintiff represented by the same counsel as in this
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case. Instead, Alliance conceded that the incidental take statement’s conditions

were met. (Doc. 118 at 6.) The limited remand does not allow Alliance to bring a
new claim based on Probert now.

In any event, unlike when Probert was decided, reinitiation of consultation
on the Access Amendments is already underway. In the meantime,the Miller
Project’s tiered work has been put on hold. Ordering reinitiation of consultation on
the Miller Project now would interfere with the Forest Service’s options for how
best to proceed in light ofProbert. If ESA compliance becomes an issue going
forward. Alliance may file a new action.
Conclusion

IT IS ORDERED that Alliance’s motion for reconsideration(Doc. 133)is
DENIED.

DATED this 1^ day of March,2020.
kiK s
Donald W. Molloy, District Judge
United^tatea District Court

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