Swan View Coalition et al v. Weber et al

Filing 117

ORDER granting 112 Motion to Strike. IT IS ORDERED that 107 Motion for Injunction Pending Appeal is DENIED. Signed by Judge Donald W. Molloy on 2/27/2019. (NOS)

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

SWAN VIEW COALITION, et al.,

FEB 2 7 2019
Clerk, U.S. District Court
D1stnct Of Montana
Missoula

CV 13-129-M-DWM

Plaintiffs,
vs.

ORDER

CHIP WEBER, et al.,
Defendants.

Plaintiffs seek to enjoin the Glacier Loon Project pending appeal of the
Court's December 11, 2018 Order, (Doc. 104). (Doc. 107.) The motion is denied.
LEGAL STANDARD

A motion for an injunction pending appeal is considered under the same
standard as a motion for a preliminary injunction. See Tribal Vil/. ofAkutan v.

Hodel, 859 F.2d 662,663 (9th Cir. 1988); Fed. R. Civ. P. 62(d). A party seeking
an injunction must show ( 1) a likelihood of success on the merits, (2) it is likely to
suffer irreparable harm, (3) the balance of equities favors an injunction, and (4) an
injunction is in the public interest. See Winter v. Natural Res. Def Council, 555
U.S. 7, 20 (2008). The last two factors merge when the federal government is the
opposing party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). A party seeking an injunction "must establish that irreparable harm is
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likely, not just possible." All. for the Wild Rockies v. Cottrell, 632 F .3d 1127, 1131

(9th Cir. 2011). The other factors are then assessed on a sliding scale. Id. at 1135.
For example, when the "balance of hardships tips sharply in the plaintiff's favor,"
an injunction may issue on a showing of only "serious questions going to the
merits." Id.
ANALYSIS

I.

Likelihood of Success
Plaintiffs appear to concede that while they cannot show they are likely to

succeed on the merits, they at the very least raise serious questions as to those
issues. (Doc. 108 at 22.) While many of Plaintiffs' arguments are merely a rehash
of their summary judgment position, they raise some good points. First, the
dynamic status of the wolverine has complicated the evaluation of the Project's
impact on the species. Second, while Plaintiffs did not previously argue or brief
their assertion that amending a deadline under the Endangered Species Act
("ESA") cannot alter a deadline under the National Forest Management Act
(''NFMA"), they raise that challenge now. As argued by Plaintiffs, there does not
appear to be precedent directly on point. See Esparza v. SmartPay Leasing, Inc.,
2017 WL 6731595, at *2 (N.D. Cal. 2017). Though this argument may be waived,
see Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013)

(discussing administrative exhaustion), Plaintiffs have "assert[ed] specific grounds
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as to where or why this Court erred in its decision," Native Ecosystems Council v.

Marten, 2018 WL 4301371, at *1 (D. Mont. Sept. 10, 2018). Finally, Plaintiffs
emphasize that this Court labelled the 2014 grizzly bear decision a "close call."

(See Doc. 92 at 9.) As a result, Plaintiffs have raised serious questions on the
merits.
II.

Irreparable Harm
Plaintiffs must show that they are likely to suffer an irreparable harm in the

absence of injunctive relief. All. for the Wild Rockies, 632 F.3d at 1135. Such a
showing is required even in cases involving an ESA challenge. See Cottonwood

Envt'l Law Ctr. v. US. Forest Serv., 789 F.3d 1075, 1090-91 (9th Cir. 2015).
That said, "establishing irreparable injury should not be an onerous task for
plaintiffs," id. at 1091, and the standard is met so long as a plaintiff can show that a
"specific project[] will likely cause irreparable damage to its members' interests,"

id. at 1092.
Plaintiffs argue that the Project will interfere with ''the naturally functioning
ecosystems of the Forest and Project analysis areas, in particular their interests in
looking for, viewing, studying, and enjoying elk, grizzly bears, wolverine, and lynx
undisturbed in their natural surroundings." (Garrity Deel., Doc. 108-1 at 14.)
Plaintiffs further refer to "[l]ogging, burning, road-building, road use, and road
reconstruction" as "ecological and esthetic degradations" that "will render the area
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unsuitable for [Plaintiffs' members'] ... esthetic, recreational, scientific, spiritual,
vocational, and educational activities." (Id. at 16.) 1 In later-provided declarations,
Plaintiffs also raise general concerns about how a logging and treatment project
may affect Lindbergh Lake and its surrounding area. (Page Deel., Doc. 11 0; Giles
Deel., Doc. 111.)
Nevertheless, Plaintiffs fail to identify specific harms associated with the
Project. While they provide a general list of ground-disturbing activities, they fail
to show how the activities of this specific Project will affect their members. See

Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1111 (E.D. Cal. 2013).
The argument that logging is per se enough to warrant an injunction has been
rejected. Earth Island Inst. v. Carlton, 626 F.3d 462,474 (9th Cir. 2010).
Moreover, the schedule of ground-disturbing is greatly limited by the Swan Valley
Grizzly Bear Conservation Agreement. (See King Deel., Doc. 109-1 at 11 8, 9 10,
16; Ruby Deel., Doc. 109-4 at 15.) Plaintiffs fail to show specific activities that

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Plaintiffs also submitted two declarations after Defendants' response raising
concerns about the effects a logging and treatment project may have on Lindbergh
Lake and its surrounding area. (See Page Deel., Doc. 11 0; Giles Deel., Doc. 111.)
Defendants have moved to strike these documents on the grounds that their
dilatory filing deprived Defendants the opportunity to respond. (Doc. 112 (citing
Pacquiao v. Mayweather, 2010 WL 3271961, at *1 (D. Nev. Aug. 13, 2010).)
That motion is granted. See Tovar v. US.P.S., 3 F.3d 11271, 1273 n.3 (9th Cir.
1993). But, even if the declarations were part of the Court's consideration, they do
not provide the requisite link to Project-specific activities to show irreparable harm
is likely or that the failure to enjoin the Project will preserve the status quo.
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fall within the appellate timeframe would permanently affect their interest. That is
especially important because over the long term, the Project involves stewardship
contracts that will require "road decommissioning, re-contouring, fuels reduction
and slashing and pre-commercial thinning" as part of the logging projects. (King
Deel., Doc. 109-1 at ,r 3; Dowling Deel., Doc. 109-2 at ,r 6; Richardson Deel., Doc.
109-3 at ,r 8.) Such activities will ultimately reduce sediment, benefit wildlife, and
help restore watersheds. (Dowling Deel., Doc. 109-2 at ,r,r 5, 7, 11, 21.)
Additionally, treatment activities are expected to "facilitate regeneration of
desired species - western larch, western white pine, and ponderosa pine" and
improve overall forest health. (See id. at ,r,r 5, 29.) And, as discussed in more
detail below, Defendants have shown that Project activities will benefit a number
of the protected species and have minimal short-term impacts. Defendants also
identify a number of potential harms that may occur if the Project is delayed any
further, including deferring long-term habitat improvement, (Ruby Deel., Doc.
109-4 at ,r,r 8, 14 ), and increased wildfire risk that threatens the entire natural
landscape, (Dowling Deel., Doc. 109-2 at ,r,r 18, 19; Ruby Deel., Doc. 109-4 at

,r,r 9, 12, 13).
In light of Plaintiffs' general allegations about the impacts of the Project and
the limitations placed on Project activity, Plaintiffs fail to show irreparable harm.

III.

Balance of Equities and Public Interest
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Finally, Plaintiffs must show that the balance of the equities tip sharply in
their favor. All.for the Wild Rockies, 632 F.3d at 1135. They fail to do so.
Plaintiffs first argue that in cases involving the ESA, ''the public interest and
the balance of equities factors always weigh in favor of plaintiffs request for an
injunction." (Doc. 108 at 8.) That is not an accurate characterization of the law.
Rather, in an ESA case, the preservation of the species takes precedence over the
parties' interests, foregoing a balancing test. See Cottonwood Envt'l Law Ctr., 789
F.3d at 1090 (collecting cases); Weinberger v. Romero-Barcelo, 456 U.S. 305,
313-14 (1982) (focusing on what action is necessary to preserve the species).
There is a difference between the interests of a species and the interests of the party
seeking the injunction; Plaintiffs misstate the law by conflating the two.
In 2014, this Court rejected Plaintiffs' request for a preliminary injunction
on the grounds that "Defendants have presented evidence that enjoining the Project
would actually result in greater harm to the environment and protected species."
(Doc. 41 at 4.) That remains the case today. The Project will result in the
decommission and recontouring of roads, which will benefit both grizzly bears and
Canada lynx. (See Ruby Deel., Doc. 109-4 at ,r,r 8, 14.) The Project also includes
a number of measures to mitigate negative effects, such as coverage retention and
limiting activity during bears' active periods. (Id. at ,r 8.) Lynx will also benefit
from the elimination of dead and dense timber and the creation of more snow shoe
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hare habitat. (Id. at ,r,r 11, 13.) Project effects on wolverine are also anticipated to
be minimal. (Id. at mf 16, 17.) The Project is also expected to reduce wildfire risk,
(Dowling Deel., Doc. 109-2 at ,r 8), and aid in economic development, (Richardson
Deel., Doc. 109-3; Sanders Deel., Doc. 109-5). While these interests take a back
seat to those of the species, they further demonstrate an absence of a sharp
equitable tip in the Plaintiffs' favor.
As was the case in 2014, "even assuming Plaintiffs have raised substantial
questions on the merits, injunctive relief is not warranted." (Doc. 41 at 5.)
CONCLUSION

Because Plaintiffs have not made the requisite showing to obtain an
injunction pending appeal,
IT IS ORDERED that Defendants' motion to strike (Doc. 112) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs motion for an injunction
pending appeal (Doc. 107) is DENIED.
DATED this

':l�f February,

2019.

Donald W. Molloy, District Judge
United States District Court

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