Alliance for the Wild Rockies et al v. Krueger et al

Filing 75

ORDER denying 70 Motion for injunction pending appeal. Signed by Judge Dana L. Christensen on 8/6/2014. (ASG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

ALLIANCE FOR THE WILD ROCKIES,
NATIVE ECOSYSTEMS COUNCIL,
Plaintiffs,

CV 12-150-M-DLC

ORDER

vs.

FAYE KRUGER, Regional Forester of

Region One of the U.S. Forest Service,

UNITED STATES FOREST SERVICE,

an agency of the U.S. Department of
Agriculture, and U.S. FISH AND

WILDLIFE SERVICE, an agency of the
U.S. Department of Interior,

FILED
AUG 06 2014

Clert<. u.s District Court
District Of Montana
Missoula

Defendants.

Plaintiffs filed suit against the Federal Defendants alleging that the Cabin
Gulch Project ("Project") on the Helena Natural Forest violated the Endangered
Species Act ("ESA") with respect to grizzly bears and lynx, and the National
Forest Management Act (''NFMA'') and National Environmental Policy Act
(''NEPA'') in various ways. On June 24, 2013, the Court issued an order resolving
the parties' motions for summary judgment, ruling in favor ofthe Plaintiffs on
their ESA lynx claim, and in favor of the Defendants on all other claims, including
those pertaining to grizzly bears and elk. (Doc. 26.) The Court enjoined the Project
1

and remanded the matter to the Defendants to address the deficiencies identified in
its order. On April 23, 2014, the Court dissolved the injunction after finding that
the Defendants had cured the Project's deficiencies. The following day, Plaintiffs
appealed both the dissolution order and the Court's adverse rulings on summary
judgment. Ground-disturbing activities on the Project began on May 30, 2014.
Presently before the Court is Plaintiffs' motion for an injunction pending
appeal, filed on June 17,2014. Plaintiffs focus on their elk and grizzly bear claims,
characterizing this as an ESA case while making no mention of their NEPA or
NFMA claims. For the reasons articulated herein, Plaintiffs' motion will be
denied.

I.

Standard of Review for Injunctions Based on ESA Claims

District courts are empowered to "suspend, modify, restore, or grant an
injunction ... [w]hile an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction." Fed. R. Civ. P. 62(c).
Courts evaluate motions for preliminary injunction and motions for injunction
pending appeal using the same standard. Se. Alaska Conservation Council v. U.S.

Army Corps o/Engineers, 472 F.3d 1097, 1100 (9th Cir. 2006). In the landmark
case of Winter v. Natural Resources De/ense Council, the Supreme Court clarified
that in order to obtain an injunction, a plaintiff must establish that (1) it is likely to
2

succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of
injunctive relief, (3) the balance of the equities tips in its favor, and (4) an
injunction is in the public interest. 555 U.S. 7,20 (2008).
Given the vast swaths of public land within this District and the diversity
and iconic nature of the wildlife that inhabits those lands, this Court is frequently
presented with injunction requests based on ESA claims. Through the briefing on
this motion, as well as in other recent cases, the Court has become aware of some
confusion as to the appropriate standard for injunctive relief for such claims ­
specifically, whether or not Winter applies. l Much of this confusion stems from a
series of pre-Winter cases holding that the "traditional approach" to injunctive
relief does not apply to ESA claims, and setting a lower bar for ESA injunctions.
This Court's ruling in A lliance for the Wild Rockies v. Krueger, 950 F.Supp.2d
1196 (D. Mont. 2013) (hereinafter "Bozeman"), appears to have further muddied

For example, the Defendants in this case state "[a] recent order by this Court
suggests that the Winter test does not apply to preliminary injunctions based on ESA claims.
Alliance/or the Wild Rockies v. Krueger, 950 F.Supp.2d 1196, 1200-04 (D. Mont. 2013)
("Bozeman")." (Doc. 72 at 13, fn. 3.) While Defendants assert that Winter is the appropriate
standard, they also attempt to remove the lesser "serious questions" test from the equation here,
arguing that "the 'serious questions' test is proper only when used within the Winter framework."
(Id at 12, fn. 2 (emphasis in original).) In a different case, several Federal defendants recently
claimed that the Bozeman burden-shifting approach was inconsistent with Winter, and implied
that Bozeman established a different standard, requesting that "the Winter standard govem[] the
Plaintiffs' motion." Cottonwood Environmental Law Center v. Us. Sheep Experiment Station,
CV 14-192-DLC, Doc. 8 at 10-11 (D. Mont. July 8, 2014).

3

the waters. 2
Before Winter, a party was entitled to an injunction after clearly
demonstrating "( 1) a likelihood of success on the merits and the possibility of
irreparable injury or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of the hardships
tipping decidedly in favor of the party seeking relief' (hereinafter referred to as
the ''traditional standard"). Sierra Club v. Marsh, 816 F.2d 1376, 1382 (9th Cir.
1987). These were not ''two independent tests but simply the extremes of the
continuum of equitable discretion." Id. at 1383-84. Thus, courts' authority to issue

2

In Bozeman, the Court addressed the proper standard for evaluating the likelihood
of irreparable harm, establishing what has become known as the Bozeman burden-shifting
framework. By way of introduction to the overarching issue of injunctions regarding ESA claims,
the Court wrote:
As the Court explained in Salix, the traditional preliminary injunction
analysis set out in Winter 'V. Natural Resources Defense Council, 555
U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), does not apply to
alleged ESA violations. Salix, 944 F.Supp.2d at 1001, 2013 WL
2099811 at *16 (citing Natl. Wildlife Fedn. 'V. Natl. Marine Fisheries
Serv., 422 F .3d 782, 793 (9th Cir.2005». In ESA cases, courts do not
have equitable discretion to balance the parties' competing interests.
Natl. Wildlife Fedn. 'V. Burlington N R.R., 23 F.3d 1508, 1510 (9th
Cir.1994). The equitable scales are always tipped in favor of the
endangered or threatened species. Id; see also TVA 'V. Hill, 437 U.S.
153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); Natl. Marine
Fisheries Serv., 422 F.3d at 794.
950 F. Supp. 2d at 1200.

4

injunctions stemmed from its equitable powers.
In the seminal case of Tennessee Valley Authority v. Hill, the Supreme
Court addressed preliminary injunctions in the context of ESA claims, conducting
a thorough review ofthe Act and its legislative history and concluding "beyond a
doubt that Congress intended endangered species to be afforded the highest of
priorities." 437 U.S. 153, 174 (1978). The Court held that because the ESA was a
manifestation of Congress's view that the value of endangered species was
"incalculable," courts' equitable powers may not be used to balance the loss of a
sum certain against such an incalculable value. Id. at 187-88. Citing its own lack
of "a mandate from the people to strike the balance of equities" on the side of the
Federal defendants, the Court concluded that "Congress has spoken in the plainest
of words, making it abundantly clear that the balance has been struck in favor of
affording endangered species the highest of priorities ...." Id. at 194.
In a series of opinions issued in the wake of Hill, the Ninth Circuit held that
the traditional standard was not the proper test for ESA injunctions because "the
Supreme Court held that Congress had explicitly foreclosed the exercise of
traditional equitable discretion by courts faced with [ESA violations]." Marsh, 816
F.2d at 1383. In Marsh, the Court stated that "the balance of hardships and the
public interest tip heavily in favor of endangered species" and that courts "may not
5

use equity's scales to strike a different balance." Id.; see also Friends ofthe Earth
v.

us. Navy, 841 F.2d 927, 933 (9th Cir. 1988) (citing Hill and Marsh for the

propositions that the balance of hardships and the public interest tip heavily in
favor of endangered species, and that Congress removed from the courts their
traditional equitable discretion in injunction proceedings); Nat 'I Wildlife Fed'n v.

Nat 'I Marine Fisheries Serv., 422 F.3d 782, 793-94 (9th Cir. 2005) (same).
In National Wildlife Federation v. Burlington Northern Railroad, the Ninth
Circuit reaffirmed its position in Marsh and Friends ofthe Earth, adding:
''Nevertheless, these cases do not stand for the proposition that courts no longer
must look at the likelihood of future harm before deciding whether to grant an
injunction under the ESA. Federal courts are not obligated to grant an injunction
for every violation of the law. The plaintiff must make a showing that a violation
of the ESA is at least likely in the future." 23 F.3d 1508, 1511 (9th Cir. 1994).
Thus, the Court recognized that Hill did not strip courts of all discretion to grant
preliminary injunctions in ESA cases, and that the likelihood of future harm
remained a key factor that must be considered.
In 2008, Winter modified and formalized the Ninth Circuit's traditional
approach, requiring a plaintiff to establish that "he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary
6

relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest." 555 U.S. at 20. Winter pertained to the general standard for
injunctions and did not address the lower standard traditionally applied to ESA
claims. However, Winter contains broad language, and does not in any way
suggest that its standard is inapplicable in the ESA context.ld. (stating that "[a]
plaintiff seeking a preliminary injunction must establish ... "); id. at 24
(characterizing injunctive relief as "an extraordinary remedy never awarded as a
matter of right") (emphasis added). More significantly, as several cases resolved
by this Court and others demonstrate, Winter can be harmonized with Hill and its
Ninth Circuit progeny.
The "traditional analysis" rejected by this Court in Bozeman does not refer
to the overall Winter analysis, but to what became the third and fourth prongs of
that analysis: the balance of the equities and the public interest. See Burlington N.,
23 F.3d at 1510-11 (stating that in claims involving the ESA, "Congress removed
from the courts their traditional equitable discretion in injunction proceedings of
balancing the parties' competing interests" and ''the balance of hardships and the
public interest tips heavily in favor of protected species"). Neither Hill nor any
subsequent case proscribes consideration of the likelihood of success on the merits
or likelihood of irreparable harm in ESA cases. To the contrary, the jurisprudence
7

in this area requires a court to consider these factors before it may issue an
injunction. See Conservation Congo v. U.S. Forest Serv., 720 F.3d 1048, 1054 (9th
Cir. 2013) (applying the Winter analysis to a motion for injunction in a case
alleging ESA violations, and affirming the district court's denial of an injunction
based on plaintiff's failure to establish a probability of success on the merits of its
ESA claim). United States District Judge Donald Molloy accurately and succinctly
summarized the current paradigm in Defenders ofWildlife v. Salazar, stating:
While Hill does hold that courts shall defer to Congress
when it has decided priorities in a given area, and that
Congress has done so with the ESA, this is not the
promulgation of a unique preliminary injunction standard.
Instead, Hill affects how the Court balances the equities in
the third and fourth part of the preliminary injunction
standard laid out in Winter, but it does not command a
separate ESA standard when measured by the Court's
ruling in Winter.
812 F.Supp.2d 1205, 1207 (D. Mont. 2009).
The Court clarifies that the Winter analysis - as modified by the principles
articulated in Hill- applies to motions for injunctive relief based on alleged ESA
violations. Any contrary interpretation ofthe Court's holding in Bozeman is
erroneous. The Court will now summarize the modified Winter analysis.
In order to secure an injunction, a plaintiff must satisfy all four Winter
prongs. Alliancefor the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
8

2011). A plaintiff must show that absent an injunction, irreparable harm is not
only possible, but likely. Winter, 555 U.S. at 22. In Bozeman, this Court developed
what has become known as the Bozeman burden-shifting framework as a practical
means to guide its analysis of irreparable harm in light of two divergent lines of
Ninth Circuit cases articulating the plaintiff s burden in ESA cases. First, "a
plaintiff must substantiate its claim by alleging a specific irreparable harm
resulting from the ESA violation" so that the court may "tailor an injunction to
remedy that harm." Bozeman, 950 F.Supp.2d at 1202. At the outset, "the plaintiff
must allege that, as a result of the ESA violation, a project will jeopardize the
continued existence of a specific endangered or threatened species or will destroy
or adversely modify its critical habitat." Id. (relying on Burlington N, 23 F.3d at
1511). If the plaintiff satisfactorily alleges specific harm, the court presumes the
harm to be irreparable and the burden shifts to the agency, "which must show that
the action will not jeopardize the species or destroy or adversely modify its critical
habitat." Id. (citing Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th Cir.
2005)). If the agency presents sufficient evidence, the plaintiff must produce its
own evidence of irreparable harm in order for an injunction to issue. Id. at 1203
(relying on Burlington Northern and National Marine Fisheries Service).

9

As to likelihood of success on the merits, the long-entrenched but lesser
"serious questions" standard remains viable after Winter. Cottrell, 632 F.3d at
1134-35. In Cottrell, the Court held that '''serious questions going to the merits'
and a hardship balance that tips sharply toward the plaintiff can support issuance
of an injunction, assuming the other two elements of the Winter test are also met."

Id. at 1132. Cottrell clarifies that district courts retain discretion to employ a
sliding scale, and that plaintiffs are entitled to judicial application of the lesser
"serious questions" test upon satisfactory showing on the other three Winter
prongs.ld. at 1135 ("Because it did not employ the 'serious questions' test, the
district court made an error of law in denying the preliminary injunction sought by
AWR. We conclude that AWR has shown that there is a likelihood of irreparable
harm; that there are at least serious questions on the merits ...; that the balance of
hardships tips sharply in its favor; and that the public interest favors a preliminary
injunction").
As discussed at length above, in ESA claims, the balance of the hardships
always tips sharply in favor ofthe endangered or threatened species. Wash. Toxies,
413 F.3d at 1035; see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th
Cir. 1996) ("Congress has determined that under the ESA the balance of hardships
always tips sharply in favor of endangered or threatened species"). Courts and
10

litigants often conflate the interests of the plaintiff and the interests of the
endangered or threatened species, thus invariably placing Congress's thumb on the
plaintiffs side of the scale. Undoubtedly, in many cases the plaintiffs and
species' interests align, such that tipping the balance in favor of the species has the
effect of tipping the balance in favor ofthe plaintiff. However, such a result is not
always justified. 3 The law is clear that threatened and endangered species are the
beneficiaries of Hall, rather than plaintiffs professing to act on their behalf. It
follows that a plaintiff cannot merely state that the balance of the hardships and
the public interest falls in its favor. Instead, as with irreparable harm, a plaintiff

3

This position is consistent with several orders recently issued by judges in this
District. See Swan View Coal. v. Weber, 2014 WL 3510166, *2 (D. Mont. July 14,2014) (after
stating that "Defendants have presented evidence that enjoining the Project would actually result
in greater harm to the environment and protected species," and describing that evidence and
Defendants arguments, the Court held that "the consideration of the balance of the equities and
the public interest tip in favor ofthe Forest Service"); Friends ofthe Wild Swan v. US. Forest
Serv., CV 11-125-M-DWM, Doc. 89 at 4 (D. Mont. June 20, 2014) (stating that in light ofthe
fact that "evidence here suggests that irreparable harm may be more likely if the Colt Summit
Project is stayed as it is a restoration project that is designed to arrest ongoing environmental
harms," "enjoining the project would not be in the public interest of halting the trend towards
species extinction and environmental degradation," and concluding that "Plaintiffs have also
failed to demonstrate that the balance ofthe equities weigh in their favor. The Forest Service
found the project not only results in greater protections for the environment, but also has
economic benefits and is expected to decrease the risk: of catastrophic fire .... [T]he balance of
equities and the consideration of the public interest tips in favor of the Forest Service"); Alliance
for the Wild Rockies v. Bradford, 979 F.Supp.2d 1139, 1142 (D. Mont. 2013) ("Contrary to
Plaintiff s assertion ... inaction, will, over time, likely result in more dire consequences for the
grizzly bear than implementation of the project. Plaintiff has not met their burden to show a
likelihood of irreparable injury. Given the public interest in halting the trend toward species
extinction, failure to take action to improve habitat conditions for the Cabinet-Yaak grizzly bear
is contrary to the public interest as well" (internal citations omitted».
11

must present the court with some basis on which it can conclude that an injunction
would in fact benefit the protected species.
As discussed at greater length below, this case presents a situation where the
species in question would perhaps best be served by the absence of an injunction,
thus tipping the balance of the equities and public interest prongs in the
Defendants' favor. When a defendant produces evidence that denial of an
injunction is in the best interest of the species, Hill demands that courts closely
evaluate those claims and tip the balance in favor of whatever action is in the best
interest of the species, regardless of which party supports that action. In keeping
with Cottrell's sliding scale approach, if the plaintiff has made a weak showing on
the other Winter prongs and the defendant presents substantial evidence that its
position is in fact consistent with the species' best interests, the court should deny
the injunction. On the other hand, if the plaintiff has made a strong showing on the
other prongs, the court should approach defendant's arguments with caution,
especially if plaintiff advances a viable argument on the same point. Clearly, there
will be considerable overlap between this inquiry and the sufficiency of a
plaintiffs allegations of irreparable harm.
Finally, consideration of the public interest is generally subsumed by the
balance of the equities analysis when the Federal government is a party. Drakes
12

Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (when the
government is a party, the factors of public interest and balance of the equities
merge). In the context ofESA claims, the public interest also tips in favor of the
species. Friends ofthe Earth, 841 F .2d at 933 ("the balance of hardships and the
public interest tip heavily in favor of the endangered species"). Thus, analysis on
this prong is appropriately tied to the balancing of the equities, and will tip in
favor of the same party.

II.

Standard of Review for Injunction as to Plaintiffs' Non-ESA Claims
Plaintiffs attempt to bootstrap the modified Winter standard for ESA

injunctions onto their entire case, which they characterize as an "ESA case" (Doc.
71 at 3). Specifically, Plaintiffs seek an injunction based on their elk and grizzly
bear claims, analyzing both under the modified Winter standard, even though elk
is not an ESA-listed species, and as such, was properly not included in the ESA
claim.
Injunctions are extraordinary remedies, never awarded as of right. Winter,
555 U.S. at 22. Accordingly, the modified Winter analysis may be applied
exclusively to ESA claims; it cannot be stretched to cover all claims pled in a case
that contains an ESA claim. In such situations, plaintiff must seek an injunction
related to any non-ESA claims under the complete and more exacting Winter test.
13

See Native Ecosystems Council v. Krueger, CV 13-167-DLC, Doc. 41 at 5-6, 2014
WL 3615775, *2 (D. Mont. July 21,2014) (denying injunctions, stating "Plaintiffs
fail to address the balance of the hanns or the public interest with respect to their
NEPA or APA claims. Plaintiffs appear to argue that the scales tip in their favor
simply because they have alleged an ESA claim"); see also Friends ofthe Wild

Swan v. Christensen, 955 F.Supp.2d 1197 (D. Mont. 2013) (applying the "more
liberal standard" to ESA claims, and the complete Winter standard to NEPA and
NFMA claims).

III.
A.

Analysis

Injunction Based on Grizzly Bear ESA Claims
Plaintiffs' allegation as to irreparable hann reads in its entirety:
As the Ninth Circuit has stated, "[e]nvironmental injury, by
its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long
duration, i.e., irreparable." Sierra Club v. Bosworth, 510
F.3d 1016, 1033 (9th Cir. 2007) (internal quotations and
citations omitted). In this case, Plaintiffs' members use the
Project area for vocational and recreational purposes.
Garrity Declaration ~~ 2-9. Plaintiffs assert that the
challenged activities will irreparably hann their members'
interests in the naturally functioning ecosystems of the
area, in particular their interests in attempted viewing,
studying, and enjoying grizzly bears and elk undisturbed in
their natural surroundings. Garrity Declaration ~~ 2-9. The
challenged activities will prevent Plaintiffs' members' use
and enjoyment of the Project area in its undisturbed state
14

for this purpose. Garrity Declaration ~~ 2-9. This type of
harm to Plaintiffs' members' interests satisfies the
irreparable harm prong of the preliminary injunction test.
Cottrell, 632 F.3d at 1135.
(Doc. 71 at 7-8.) At the outset, the Court notes that this assertion is identical 4 to an
assertion made by these same Plaintiffs in support of a motion for stay pending
appeal recently filed in another case before this Court. Krueger, CV 13-167-DLC,
Doc. 39 at 7-8 (D. Mont. July 1,2014). In Krueger, the Court determined that
Plaintiffs failed to demonstrate a likelihood of irreparable injury absent an
injunction, and it reaches the same conclusion here. 2014 WL 3615775, *2.

Bozeman sets a relatively low bar for a plaintiffs initial showing on
irreparable harm, but it requires more than general allegations related to human
enjoyment of a rich ecosystem. See Swan View Coalition v. Weber, 2014 WL
3510166, *2 (D. Mont. 2014) ("Plaintiffs allege only that their members' interests
in the naturally functioning ecosystems ofthe area and their and enjoyment of the
environment have been harmed ... [s]uch allegations provide an insufficient bases
for this Court to order injunctive relief'); Krueger, 2014 WL 3615775, *2.
(holding that Plaintiffs fail to demonstrate likelihood of irreparable harm because

4

The two statements differ only in that they are supported by and cite different
declarations, and the use of the word "Plaintiffs" to begin the third sentence in the statement in
this case, as opposed to the word "Counsel" used in Krueger.
15

they "do not contend that the Project will irreparably harm any endangered or
threatened species. Plaintiff contend instead that 'their interests in attempted
viewing, studying, and enjoying grizzly bears and elk undisturbed in their natural
surroundings' will be irreparably harmed by the Project's activities. Plaintiffs offer
no evidence that the Project is likely to disturb grizzly bears ... [or] harm lynx").
While injury to the plaintiff is a critical element of standing, Friends ofthe

Earth v. Laidlaw Envntl.Services, 528 U.S. 167, 181 (2000), which is not disputed
here, it is not sufficient to satisfy the element of irreparable harm in the context of
ESA-based injunctions. See Ctr.for Food Safety v. Vi/sack, 636 F.3d 1166, 1171
n. 6 (9th Cir. 2011) ("Of course ... a plaintiff may establish standing to seek
injunctive relief yet fail to show the likelihood of irreparable harm necessary to
obtain it"). Any alleged harm to the plaintiff must be anchored in a specific and
detailed allegation of harm to a particular species or critical habitat. See Sierra

Forest Legacy v. Sherman, 951 F.Supp.2d 1100, 1111 (E.D. Cal. 2013) (holding
that "To show such an [irreparable] injury, a plaintiff must identify specifically
planned tree-cutting, link the proposed tree-cutting to its members' specific
interests, and demonstrate that the proposed tree-cutting will harm their
interests"). On a practical level, specificity is required so that the Court may craft
its injunction to remedy the harm. Bozeman, 950 F.Supp.2d at 1202.
16

Plaintiffs do not sufficiently identify any specific activity that will harm
grizzlies, nor any specific way in which the Project will affect their interest in
observing those animals. Thus, Plaintiffs fail to allege specific irreparable harm to
a listed species or critical habitat. See ide (requiring allegations of "specific
irreparable harm" to species or critical habitat); Burlington Northern, 23 F.3d at
1511 (implying that the harm in the ESA context constitutes jeopardy to ''the
continued existence of any endangered species or threatened species or result in
the destruction or modification" of critical habitat).
Finally, the Court notes that the Plaintiffs' emaciated stock paragraph on
irreparable harm may be the result of excessive confidence placed in Cottrell, in
which A WR, one of the Plaintiffs in the instant case, succeeded on the irreparable
harm prong based on the impact ofa project on its members' ability to view,
experience, and utilize the project area. 632 F.3d at 1135. However, Cottrell is
distinguishable in both the substance and sufficiency of AWR's showing on
irreparable harm. As to substance, A WR did not advance any ESA claims in

Cottrell. As described herein, Plaintiffs must specifically allege harm to a
threatened or endangered species or its critical habitat to obtain an ESA-based
injunction, which is not required for injunctions based on the environmental
statutes at issue in Cottrell. As to sufficiency, although the Ninth Circuit's analysis
17

of AWR's assertions on the likelihood of irreparable harm is succinct, A WR's
briefing on the issue was far more specific, thoroughly-developed, and well­
supported than its stock paragraph. See Plaintiffs' -Appellants' Opening Appellate
Brief at VII(A){l) Alliance/or the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th
Cir. Sept. 14,2009) (No. 09-35756),2009 WL 4832092. Plaintiffs cannot merely
utter the same general harm under which they succeeded in Cottrell as an
incantation and expect the same outcome. Plaintiffs must be specific, adequately
explain their assertion, and in ESA claims, sufficiently allege harm to a species or
habitat.
Because the Plaintiffs have failed to demonstrate the likelihood of
irreparable harm absent an injunction, the Court need not proceed further in the
modified Winter analysis. Cottrell, 632 F.3d at 1135 (stating that Winter requires
plaintiffs to make a showing on all four prongs). However, for the sake of
thoroughness and in order to present a complete analysis under the modified

Winter standard, the Court will continue.
Plaintiffs argue that they have presented a serious question as to whether
grizzlies "may be present" in the project area, thus requiring their inclusion in the
Project's Biological Assessment. This is merely a restatement of Plaintiffs ,
summary judgment argument, which the Court rejected (Doc. 26 at 11-16), and is
18

insufficient to raise serious questions regarding the merits of their claim. See

Friends ofthe Wild Swan, CV 11-125-M-DWM, Doc. 89, at 3. Once again,
injunctions are extraordinary remedies. This maxim carries particular significance
when a plaintiff seeks an injunction pending appeal following the court's
resolution of the case and its dissolution of a preliminary injunction, as is the case
here. The very existence of Federal Rule 62(c), to which courts have consistently
applied the same standard as preliminary injunctions - including the need to show
"serious questions" or likelihood of success on the merits - indicates that a middle
ground exists in instances where a district court rules in favor of the defendants,
yet acknowledges the fact that its ruling was a close call, or that the law upon
which its ruling rests is unsettled or opaque. It is in those instances where an
injunction pending appeal is appropriate; if the Court adopted a broad~r
application of Rule 62( c), the exception would swallow the rule and injunctions
would be issued as a matter of course. Here, Plaintiffs fail to articulate serious
questions going to the merits, which is fatal to their motion.
Finally, the Court turns to the balance ofthe equities and public interest
prongs, which tip heavily in favor of the endangered species. Friends ofthe Earth,
841 F.2d at 933. Plaintiffs simply conflate the species' best interests with their
own position regarding the need for an injunction pending appeal without
19

presenting any argument or evidence as to why their interests align. As discussed
above, the Court may not merely assume that the Plaintiffs are acting in the
species' best interest, especially when confronted with the type of comprehensive
contradictory evidence that the Defendants have presented here. (Docs. 72-2
through 72-8.) Defendants assert that an injunction would delay various Project
components designed to enhance the environment. (Doc. 72 at 23-25; see
generally Docs. 72-2 through 72-8.) For example, one of the main effects of the
Project is to reduce the risk of catastrophic wildfires, which can be devastating to
the environment. (Id.) Additionally, the Project will likely restore grasslands and
shrublands, stimulate growth of wildlife forage, decommission roads, increase
wildlife security habitat, improve soil and water quality, and reduce sediment
delivery to streams. (Id.) While there is no indication that grizzlies regularly
inhabit the Project area, should they ever expand their range into the area, these
environmental enhancements will almost certainly benefit them.
Plaintiffs have failed to show that an injunction is in the grizzlies' best
interest, and are therefore not entitled to Hill's tip in their favor on the balance of
the equities and the public interest.

20

B.

Elk Claims
Plaintiffs improperly apply the modified Winter standard to their elk claims

pled under NEPA and NFMA. Regardless of which standard the Court applies,
Plaintiffs claims fail. Plaintiffs did not meet their initial burden to allege
likelihood of irreparable harm under Bozeman, much less under the more
demanding general Winter standard. Plaintiffs merely rehash their summary
judgment arguments, and fail to demonstrate either likelihood of success on the
merits or serious questions on the merits. Finally, Plaintiffs make no argument as
to balance of the equities or the public interest, which is particularly detrimental to
their success on non-ESA claims, since there is no automatic ''tip'' available in
favor of the environment or non-endangered or threatened species.

IV.

Conclusion

Plaintiffs have failed to sufficiently allege irreparable harm, to demonstrate
serious questions on the merits, and to show that an injunction is consistent with
the species' best interests, which must be the Court's dominant concern when
evaluating the balance of the equities and the public interest for injunctions based
on ESA claims. Accordingly,
IT IS ORDERED that the Plaintiffs' motion for injunction pending appeal
(Doc. 70) is DENIED.
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Dated this

~ Jk day of August, 201

.

Dana L. Christensen, Chief Judge
United States District Court

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