Friends of the Wild Swan et al v. Christiansen et al
Filing
51
ORDER denying 43 Motion for TRO. Signed by Chief Judge Dana L. Christensen on 7/8/2013. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FRIENDS OF THE WILD SWAN, et
al.,
CV 12–59–M–DLC
Plaintiffs,
vs.
ORDER
VICKI CHRISTIANSEN, in her
official capacity as Acting Regional
Forester for the U.S. Forest Service,
Region One et al.,
Defendants.
Plaintiffs Friends of the Wild Swan and the Swan View Coalition filed a
motion for a temporary restraining order and preliminary injunction in this case on
June 21, 2013. Plaintiffs filed a nearly identical motion seeking a temporary
restraining order and preliminary injunction in a related case, CV 12-29-M-DLCJCL, on June 20, 2013. The motions request temporary injunctions of the Spotted
Bear River (12-29) and Soldier Addition (12-59) logging projects on the South
Fork of the Flathead River (“South Fork”). The parties filed cross-summary
judgment motions in both cases, and those motions were referred to United States
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Magistrate Judge Jeremiah C. Lynch for findings and recommendations. Judge
Lynch has issued findings and recommendations in both cases, and recommends
denying Plaintiffs’ summary judgment motions in each case, granting Defendants’
motions, and allowing the logging projects to proceed as scheduled.
Plaintiffs recently objected to the findings and recommendations and their
objections closely mirror their TRO arguments. This Court has carefully reviewed
the findings and recommendations in both cases. Plaintiffs’ arguments in the
present motion and in their objections raise only two new issues not already
addressed by Judge Lynch. First, Plaintiffs argue Defendants violated their
obligation to consider “connected actions”, “cumulative actions”, and “similar
actions” under 40 C.F.R. § 1508.25(a)(2) when determining the scope of the EIS.
Second, Plaintiffs argue this Court’s decision in Salix v. United States Forest
Service, 2013 WL 2099811 mandates that both projects be enjoined. The Court
will address the first issue and Plaintiffs’ NEPA and NFMA claims pursuant to the
Winter preliminary injunction factors, while the second issue is governed by the
preliminary injunction analysis outlined recently by this Court in Alliance for the
Wild Rockies v. Krueger, 12-55-M-DLC (June 25, 2013)(“Krueger”).1
Defendants argue the Winter factors apply to ESA claims and this Court erred in its contrary
analysis in Krueger, citing Conservation Cong. v. USFS, 2013 WL 2631449 (9th Cir. June 13,
2013). While Defendants are correct that the Ninth Circuit did cite Winter in an ESA preliminary
injunction case, the Court never reached the second step of irreparable harm nor did the Court
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I. TRO and Preliminary Injunction Standard
Issuance of a temporary restraining order, as a form of preliminary
injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of
proving such a remedy is warranted by clear and convincing evidence. Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). A preliminary injunction is appropriate if
Plaintiffs establish (1) they are likely to succeed on the merits; (2) they are likely
to suffer irreparable harm in the absence of preliminary injunctive relief; (3) the
balance of equities tips in their favor; and (4) injunction serves the public interest.
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).
The parties thoroughly analyze all of Plaintiffs’ claims in their TRO
arguments. However, this Court will only provide in-depth analysis of the issues
not already reviewed by Judge Lynch for the first Winter factor because his
recommendation dismissing Plaintiffs’ claims serves as an indication that such
claims fall short of the likelihood of success necessary to grant a TRO. Rather,
Judge Lynch questioned the legal sufficiency of each of Plaintiffs’ causes of action
under NEPA, NFMA, and the ESA. While the Court will not adopt Judge Lynch’s
findings at this time, it has reviewed them carefully and finds that his analysis is
sufficient to demonstrate that Plaintiffs cannot prove by clear and convincing
determine which party bears the burden to prove irreparable harm. Thus, Conservation Cong. is
not directly contrary to this Court’s analysis in Krueger.
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evidence that they are likely to succeed on the merits of any of the claims raised in
their summary judgment motion. Therefore, the Court will only squarely address
Plaintiffs’ claims raised for the first time in the TRO motion regarding likelihood
of success. Plaintiff’s objections to Judge Lynch’s findings and recommendations
will be addressed fully in a subsequent order under the applicable de
novo standard.
Plaintiffs’ arguments regarding Defendants’ obligation to consider
“connected actions”, “cumulative actions”, and “similar actions” under 40 C.F.R.
§ 1508.25(a)(2) when determining the scope of the EIS were not properly raised in
their summary judgment motion.2 This argument is different from Plaintiffs’
arguments regarding cumulative effect s under 40 C.F.R. § 1508.7. Analysis
pursuant to 40 C.F.R. § 1508.25(a)(2) determines the scope of all federal actions
that need to be considered in an EA or EIS, instead of the analysis required within
a single EA or EIS. Generally, district courts do not consider legal issues not
initially raised in a party’s summary judgment motion when ruling on findings and
recommendations.
2
Plaintiffs briefly mention 40 C.F.R. § 1508.25(a)(2) in their reply brief, but “legal issues
raised for the first time in reply briefs are waived.” Eberle v. City of Anaheim, 901 F.2d 814, 818
(9th Cir. 1990). Plaintiffs’ contention that they did not waive the argument because they did not
find out about Tin Mule until after filing their original summary judgment brief is unavailing
because the facts supporting their argument–the existence of the two projects on either side of the
South Fork–existed well before that time.
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“A district court has discretion, but is not required, to consider evidence
presented for the first time in a party’s objection to a magistrate judge’s
recommendation,” but it “must actually exercise its discretion, rather than
summarily accepting or denying the motion.” United States v. Howell, 231 F.3d
615, 621-22 (9th Cir. 2000). A district court is well within its discretion in barring
arguments raised for the first time on objections to a magistrate’s findings and
recommendations absent exceptional circumstances. Greenhow v. Secretary of
Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988) (overruled on
other grounds). Plaintiffs provide no reason at all for failing to raise this issue in
their summary judgment motion–let alone exceptional circumstances. No facts
have changed nor was any new evidence presented that would excuse Plaintiffs
from raising this argument in the first instance. “[A]llowing parties to litigate
fully their case before the magistrate and, if unsuccessful, to change their strategy
and present a different theory to the district court would frustrate the purpose of
the Magistrates Act.” Id. at 638. Further, “the Magistrates Act was [not] intended
to give litigants an opportunity to run one version of their case past the magistrate,
then another past the district court.” Id.
The Court recognizes that the new arguments are brought before it as a part
of Plaintiffs’ TRO motion, so the above-cited law relating to orders on findings
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and recommendations does not appear directly applicable to this procedural
standpoint. However, this TRO motion was filed after findings and
recommendations have been issued on summary judgment–it is not a typical TRO
motion filed at the beginning of a case. The TRO here seeks only to postpone the
projects until the Court can rule on the findings and recommendations. The case
law pertaining to orders on findings and recommendations thus applies in this
instance. For these reasons, the Court will not address Plaintiffs’ new legal
arguments regarding 40 C.F.R. § 1508.25(a)(2). As this argument is the only one
not already analyzed by Judge Lynch, the Court need not address the remaining
Winter factors for Plaintiffs’ NEPA and NFMA claims because they are not likely
to succeed on the merits. Thalheimer v. City of San Diego, 645 F.3d 1109, 1115
(9th Cir. 2011). Despite this, the Court will briefly address the remaining factors as
relates to Plaintiffs’ NEPA and NFMA claims.
Irreparable Harm
Plaintiffs must prove that irreparable harm is likely, not only possible, in the
absence of their requested relief to obtain a preliminary injunction post-Winter.
AWR v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). Although Plaintiffs seek
injunction of the entire Soldier Addition Project, Defendants’ arguments primarily
address the harm that will be suffered if only the Tin Mule sale and the Stony Hill
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Communications Site Fuels Reduction (“Stony Hill”)3 are enjoined. Defendants’
narrowing of the scope of the issues is appropriate in this case because the
requested injunction was in response to Tin Mule’s start date of July 5, 2013, and
is to remain in effect only until the Court can fully rule on the merits of Plaintiff’s
objections to the findings and recommendations.
Plaintiffs do not show that irreparable harm is likely if Tin Mule is not
enjoined. The harm Plaintiffs allegedly will suffer is their recreational enjoyment
of mature and old growth forest stands. The Tin Mule project only implements a
portion of the Soldier Addition Project, with the remainder of the Project finishing
over the next several years. Plaintiffs fail to allege site-specific harms because
none of the units identified as reducing hare habitat in multi-story mature forests
are within the Tin Mule area. Further, the Spotted Bear District Ranger, Debra
Mucklow Starling, asserts that Tin Mule does not treat old growth stands so it is
difficult to see how its activities will irreparably harm Plaintiffs’ alleged interests.
As Defendants point out, timber cutting is not inherently damaging to forests and
irreparable harm does not automatically arise from all environmental impacts
caused by logging. Earth Island Institute v. Carlton, 626 F.3d 462, 474 (9th Cir.
2010).
3
Plaintiffs clarify that they do not object to Stony Hill in their reply brief. (Doc. 49 at 11.)
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Plaintiffs’ claims that lynx and other wildlife and their habitat will be
irreparably harmed absent injunction fails because none of the treatment units in
Tin Mule are within designated lynx critical habitat. (Doc. 48 at 21.) Starling also
states that none of the units are multi-storied mature snow-shoe hare habitat falling
within Standard VEG S6. (Doc. 48-1 at 16.) Standard VEG S6 does not apply to
these units, nor have Plaintiffs so argued. For these reasons, Plaintiffs have not
established that irreparable harm is likely to occur absent enjoining of the Tin
Mule ground-breaking activity prior to the Court’s order on the parties’ summary
judgment motions.
Balance of Equities and Public Interest
While “the balance of harms will usually favor the issuance of an injunction
to protect the environment,” the law does not require abandonment of a balance of
harms analysis just because a potential environmental injury is at issue. Earth
Island, 626 F.3d at 475. Rather, courts must “balance all of the competing
interests at stake” including potential economic harm to the government. Id.
Defendants argue the Project benefits the environment by opening up
foraging areas, diminishing fire danger in priority areas, removing hazard trees,
and reducing pine beetle infestation while minimizing impacts to endangered
species and critical habitat. Defendants also point out that the Project provides a
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significant economic benefit to the local economy, and delay of the project would
result in increased fire danger in units adjacent to an airfield and a Forest Service
communications center, as well as negatively impact local sawmill operators.
Plaintiffs respond that they only seek delay on the Project until they can ensure
compliance with federal law, and such compliance is in the public interest.
Plaintiffs state that Defendants decided to award a contract for the Project well
after filing of the complaint in this matter, so they essentially assumed the risk of
any economic impacts. Plaintiffs challenge the Starling affidavit as a highly
speculative extra-record declaration that is not based on any evidence, and argue
the Project is not as time-sensitive as Defendants would have the Court believe.
As in Earth Institute, the balance of equities and public interest
considerations here weigh in favor of Defendants. The Project will reduce both
the likelihood and severity of forest fires in the area, thus protecting the many
governmental buildings and facilities located in the Wildland Urban Interface.
The Project will remove mountain pine beetle breeding ground and hazard trees.
Enjoining the Tin Mule sale will negatively affect the local economy, which is
reliant on the timber industry. Defendants point to many negative effects a delay
would have on the Project including increased wildfire danger, loss of timber
value, and the layoff of 120 employees at the sawmill company servicing the
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Project. The temporary delay Plaintiffs seek will actually have significant
consequences on the Project. Judge Lynch has recommended denial of all
Plaintiffs’ claims, finding the Project does not pose the severe environmental
threat Plaintiffs allege. The balance of equities and public interest considerations
weigh in favor of Defendants in this case. The Plaintiffs therefore do not meet any
of the four factors required for a TRO or preliminary injunction regarding their
NEPA and NFMA claims.
II. TRO and Preliminary Injunction Standard for ESA Claims
The traditional preliminary injunction analysis does not apply to injunctions
sought pursuant to the ESA. “In cases involving the ESA, Congress removed from
the courts their traditional equitable discretion in injunction proceedings of
balancing the parties' competing interests.” Nat'l Wildlife Fed'n v. Burlington N.
R.R., Inc., 23 F.3d 1508, 1510 (9th Cir.1994) (citing Friends of the Earth v. United
States Navy, 841 F.2d 927, 933 (9th Cir.1988)). Congress has determined that
under the ESA, the balance of hardships always sharply favors the endangered or
threatened species. Id.; see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073
(9th Cir.1996). The preliminary injunction standard for ESA cases is more liberal
than the traditional standard, but that does not mean that an injunction should
issue for every ESA violation. See Burlington N., 23 F.3d at 1511.
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Plaintiffs argue Salix requires injunction of the Spotted Bear Project
because consultation on lynx critical habitat for both projects impermissibly relied
upon the 2007 Northern Rockies Lynx Amendment (“Lynx Amendment”)
standards, particularly the VEG S6 standards. Defendants respond that Plaintiffs’
arguments fail for four reasons. First, Salix is irrelevant to the Tin Mule sale
because the ten treatment units included in the Tin Mule sale are not within any
designated lynx critical habitat. Second, Defendants assert Standard VEG S6 does
not apply to the ten units, so there can be no irreparable harm based on flawed
consultation of lynx critical habitat. Third, Defendants argue Plaintiffs waived
their argument regarding the Lynx Amendment because they never raised it in
their summary judgment briefs nor in their 60-day notice. Finally, Defendants
contend Plaintiffs’ Salix-based arguments fail on the merits.
The Court will first address Defendants’ argument that Plaintiffs waived
their arguments regarding Salix by failing to raise the issue in their 60-day notice
and in their summary judgment motion, since the resolution of this issue is
dispositive.
60-Day Notice Requirement
A citizen suit under the ESA may not be commenced “prior to sixty days
after written notice of the violation has been given to the Secretary, and to any
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alleged violator.” 16 U.S.C. § 1540(g)(2)(A)(i). “The purpose of the 60-day
notice provision is to put the agencies on notice of a perceived violation of the
statute and an intent to sue.” S.W. Ctr. for Biological Diversity v. U.S. Bureau of
Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). Failure to strictly comply with
the notice requirement serves as an absolute bar to filing suit under the ESA. Id.
The notice must provide sufficient detail “so that the Secretary or [alleged violator
can] identify and attempt to abate the violation.” Id. at 522. Otherwise, courts
lack jurisdiction to consider the case. Id. at 520; 16 U.S.C. § 1540(g)(3)(A).
Plaintiffs’ arguments regarding Salix fail because they have not satisfied the
60-day notice provision required by 16 U.S.C. § 1540(g)(2)(A)(i). Defendants
raised this defense in their response to the TRO motion. Plaintiffs do not refute
this argument because they did not raise the Lynx Amendment issue raised by the
plaintiffs in Salix in their 60-day notice. Plaintiffs admit in their reply brief that “it
is correct that Plaintiffs are not challenging the Lynx Amendment on its own, i.e.,
not challenging the Service’s and FWS’s failure to reinitiate consultation on the
Lynx Amendment.” (Doc. 49 at 9.) This Court therefore lacks jurisdiction to
address Plaintiffs’ arguments regarding the effects of Salix on the two challenged
projects until the required 60-day notice has been given.
Plaintiffs also failed to raise these arguments in their summary judgment
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motion, and have thus waived them as discussed prior regarding Plaintiffs’ 40
C.F.R. § 1508.25(a)(2) argument.
III. Conclusion
Regarding Plaintiffs’ NEPA and NFMA claims, Plaintiffs have not met their
burden to show they are likely to succeed on the merits, they will suffer irreparable
harm absent their requested relief, and the balance of equities and public interest
considerations weigh in their favor. Plaintiffs’ attempt to enjoin the Tin Mule sale
portion of the Project pending a final decision from this Court based on Salix fails
because Plaintiffs did not provide the required 60-day notice of intent to sue under
the ESA. Plaintiffs’ TRO motion will therefore be denied.
IT IS ORDERED that Plaintiffs’ motion for temporary restraining order and
preliminary injunction (doc. 43) is DENIED.
Dated this 8th day of July, 2013.
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