Alliance for the Wild Rockies v. Ashe et al

Filing 37

ORDER denying 7 Motion for Preliminary Injunction; finding as moot 15 Motion to Strike. Signed by Judge Donald W. Molloy on 3/31/2014. (dle)

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

ALLIANCE FOR THE WILD
ROCKIES,

CV 13–92–M–DWM

Plaintiff,
vs.

ORDER

DANIEL ASHE, TOM TIDWELL,
FAYE KRUEGER, PAUL
BRADFORD, the UNITED STATES
FOREST SERVICE, and the UNITED
STATES FISH AND WILDLIFE
SERVICE,
Defendants.

This is a civil action for declaratory and injunctive relief brought by
Plaintiff, Alliance for the Wild Rockies, under the citizen suit provision of the
Endangered Species Act, 16 U.S.C. § 1540(g) and the Administrative Procedure
Act, 5 U.S.C. §§ 551 et seq. (Doc. 19 at 2.) Defendants are the United States
Forest Service, the United States Fish & Wildlife Service, and related agency
supervisory officials. (Id. at 4.) Plaintiff’s suit challenges the Forest Service’s
April 2, 2012 decision to approve the Young Dodge project (“the Project”), largely
within the Kootenai National Forest in northwestern Montana. (Id. at 2.) Two
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motions are now before the Court. Plaintiff moves for a preliminary injunction to
prevent the Project’s implementation while the merits of the Complaint are under
review. (Doc. 7.) Defendants move to strike two exhibits submitted by Plaintiff
contemporaneous to its Reply in support of the Motion for Preliminary Injunction.
(Doc. 15.)
The applicable legal standard for a preliminary injunction is a matter the
parties dispute. Plaintiff argues that the formulation set forth in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), and the sliding scale
approach articulated by Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1135 (9th Cir. 2011), is appropriate in this case. (Doc. 8 at 11.) Plaintiff,
however, goes on to argue that an injunction is the mandatory remedy in an
Endangered Species Act case where a plaintiff raises substantial questions on the
merits of the Endangered Species Act claim, unless the agency proves its actions
will not result in a substantive violation of the Act. (Id. at 12 citing Wash. Toxics
Coalition v. EPA, 413 F.3d 1031, 1035 (9th Cir. 2005).) Defendant argues the
Winter and sliding scale tests are appropriate, and states that it is Plaintiff’s burden
to meet each of the factors set forth in the relevant tests. (Doc. 12 at 15-16 citing
DISH Network Corp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011).) Defendant
contests application of the Washington Toxics formulation to this case, arguing
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that standard only applies in the context of an agency action already found to have
violated the Endangered Species Act. (Doc. 12 at 27 citing Wash. Toxics, 413
F.3d 1024 at 1029.)
This dispute is understandable, given the conflicting line of cases that has
developed in the Ninth Circuit regarding the preliminary injunction standard in
Endangered Species Act cases. See Alliance for the Wild Rockies v. Krueger, 950
F. Supp. 2d 1196, 1200-04 (D. Mont 2013) (collecting cases). To reconcile this
conflicting line of authority, this Court adopted a burden shifting approach to
evaluate a motion for preliminary injunction in an Endangered Species Act case.
Id. This approach requires:
1. A plaintiff must initially allege a specific irreparable harm
resulting from the ESA violation so that the Court can tailor an
injunction to remedy the specific harm. If the plaintiff does so, then
the Court presumes that the challenged action will cause irreparable
harm.
2. The agency can rebut this presumption by showing that the
challenged action will not jeopardize the species or destroy or
adversely modify its critical habitat.
3. If the agency comes forward with evidence that the challenged
action will not jeopardize the species or destroy or adversely modify
its critical habitat, then an injunction should be issued only if the
plaintiff produces evidence that such harm is at least likely. If the
evidence from both sides presents a close question, then the court
should err on the side of issuing an injunction

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Id. at 1204. Neither Plaintiff nor Defendant frame their arguments on the pending
Motion using this Court’s burden shifting approach.
That issue, coupled with the introduction of exhibits probative of irreparable
harm in Plaintiff’s Reply in support of its Motion, (Docs. 13-1 and 13-2), which
Defendants now seek to strike from the record, (Doc. 15), warrants denial of
Plaintiff’s Motion, subject to renewal. The Court is aware that challenged project
activities are slated to begin this spring, (Doc. 12-1), and will give any renewed
Motion prompt consideration.
IT IS ORDERED that Plaintiff’s Motion for Preliminary Injunction, (Doc.
7), is DENIED SUBJECT TO RENEWAL. The parties are directed to apply the
legal standard set by the Court in Alliance for the Wild Rockies v. Krueger, 950 F.
Supp. 2d 1196 (D. Mont 2013), in any renewed Motion.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike, (Doc. 15),
is DENIED AS MOOT.
DATED this 31st day of March, 2014.

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