Friends of the Wild Swan et al v. Austin et al

Filing 119

ORDER denying 113 Motion to Alter Judgment. Signed by Judge Donald W. Molloy on 12/9/2016. (NOS)

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

FILED
DEC 09 2016
Clerk, IJ.S Courts

District Of M¢•1tana'

Mi$$0ula Division

CV 11-125-M-DWM

FRIENDS OF THE WILD SWAN, a
non-profit organization; et al.,
Plaintiffs,

ORDER
vs.
TIM GARCIA, in his official capacity
as Forest Supervisor for the Lolo
National Forest; et al.,
Defendants.

On October 6, 2016, this Court issued an Opinion and Order holding that
the defendants' conclusion that the Colt Summit Project is not likely to adversely
affect the lynx and lynx critical habitat was reasonable and supported by
independent facts and analyses-rending any reliance on the Lynx Amendments
harmless-and that the agencies met their obligations under Section 7 of the
Endangered Species Act ("ESA"). (Doc. 111.) Judgment was entered in favor of
the defendants. (Doc. 112.) Plaintiffs Friends of the Wild Swan, Alliance for the
Wild Rockies, Montana Ecosystem Defense Council, and Native Ecosystems
Council (collectively "Plaintiffs") seek to alter or amend that judgment on the

1

grounds that the Court committed clear error by failing to consider the legal
standard for injunctive relief and that an intervening change in controlling law
occurred in the Ninth Circuit's November 1, 2016 Order in Alliance for the Wild
Rockies v. Christiansen, and in the Supreme Court's October 11, 2016 denial of
the Forest Service's petition for writ of certiorari in Cottonwood Environmental
Law Center v. United States Forest Service, 789 F.3d 1075 (9th Cir. 2015). (Doc.
113.) Plaintiffs' motion is denied.
"Amendment or alteration is appropriate under Rule 59(e) if ( 1) the district
court is presented with newly discovered evidence, (2) the district court committed
clear error or made an initial decision that was manifestly unjust, or (3) there is an
intervening change in controlling law." Zimmerman v. City of Oakland, 255 F.3d
734, 740 (9th Cir. 2001 ). Plaintiffs face a "high hurdle," as "[j]udgment is not
properly reopened absent highly unusual circumstances." Weeks v. Bayer, 246
F.3d 1231, 1236 (9th Cir. 2001) (internal quotation marks omitted). While
presented within the framework of Rule 59(e), Plaintiffs' motion attempts to relitigate arguments previously considered and rejected in this Court's October 6
Order. Because the agencies met their Section 7 obligations, this Court did not
clearly err in failing to address injunctive relief. Moreover, neither the order in
Christiansen nor the denial of certiorari in Cottonwood amounts to an intervening
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change in controlling law, see Teamsters Local 617 Pension & Welfare Funds v.

Apollo Grp., Inc., 282 F.R.D. 216, 223-24 (discussing the "spectrum" of what
amounts to a change in controlling law), and, as previously discussed, neither
creates a per se rule for enjoining projects pending reconsultation. 1 Nor does
Section 7( d) mandate such a result in this case.
Accordingly, IT IS ORDERED that Plaintiffs' motion (Doc. 113) is
DENIED.
Dated this

-1:

day of December, 2016.

y, District Judge
i trict Court

1

While reconsideration here is not appropriate, further development of this issue may be
informative elsewhere. See Alliance for the Wild Rockies v. Marten, CV 15-99-M-BMM, Doc.
66 (D. Mont. November 22, 2016).
3