Swan View Coalition et al v. Weber et al

Filing 40

ORDER denying 36 Motion for Preliminary Injunction. Signed by Judge Donald W. Molloy on 7/14/2014. (NOS, )

FILED
JUL 1 4 2014
Clerk, u.s. District Court
District Of Montana
Missoula

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

SWAN VIEW COALITION, FRIENDS
OF THE WILD SWAN, NATIVE
ECOSYSTEMS COUNCIL, and
ALLIANCE FOR THE WILD ROCKIES,

CV 13-129-M-DWM

ORDER

Plaintiffs,
vs.
CHIP WEBER, Flathead National Forest
Supervisor, FAYE KRUEGER, 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 UNITED
STATES FISH & WILDLIFE SERVICE,
an agency of the U.S. Department of the
Interior,
Defendants.
On July 1, 2014, Plaintiffs filed a motion for a preliminary injunction
preventing the implementation of the Glacier Loon Project ("the Project"). (Doc.
36.) On-the-ground activities for the Project are expected to commence on July
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15,2014. (Defs.' Resp., Doc. 39 at 9.) The Project was planned to improve the
Flathead National Forest's resistance to fITe and insect infestation, reduce
hazardous fuels, improve water quality, decommission roads, and provide timber
products. Plaintiffs challenge the Project under the Endangered Species Act
("ESA") and the National Environmental Procedure Act ("NEPA"). For the
reasons discussed below, Plaintiffs' motion is denied.
In general, "[a] plaintiff seeking a preliminary injunction must establish that
[it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in [its] favor, and
that an injunction is in the public interest." Winter v. Natural Resource Defense

Council, 555 U.S. 7,20 (2008). When the Federal government is a party, the
balance of equities and public interest factors may be merged. Drakes Bay Oyster

Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The likelihood of success on
the merits is measured on a sliding scale, such that if a plaintiff raises "serious
questions going to the merits," and can demonstrate "a balance of hardships that
tips sharply towards the plaintiff," the plaintiff secures preliminary injunctive
relief "so long as the plaintiff also shows that there is a likelihood of irreparable
injury and that the injunction is in the public interest." Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
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In ESA cases, ''the balance of hardships always tips sharply in favor of the
endangered or threatened species." Wash. Toxics Coalition v. Envir. Protection

Agency, 413 F.3d 1024, 1035 (9th Cir. 2005). However, that does not mean that
an injunction should be issued for every potential ESA violation. The plaintiff in
an ESA case bears some evidentiary burden in asking for a preliminary injunction.
The plaintiff is still obligated to show an irreparable injury to support the issuance
and scope ofan injunction. Salix v. US. Forest Serv., 944 F. Supp. 2d 984, 1001
(D. Mont. 2013); Alliance/or the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196,
1202 (D. Mont. 2013). In this burden shifting approach, a plaintiff must
substantiate its claim by alleging a specific irreparable harm resulting from the
ESA violation. Krueger, 950 F. Supp. 2d at 1202. If the plaintiff cannot identify a
specific harm, the Court cannot tailor an injunction to remedy the harm. ld. The
plaintiff must allege more than an ESA violation, it 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." ld. If the plaintiff alleges specific harm, the Court, at that point,
presumes that harm is irreparable. ld. Once the plaintiff meets its burden, the
burden shifts to the agency to show that the action will not jeopardize the species
or destroy or adversely modify its critical habitat. ld. Here, Plaintiffs' fail to meet
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their threshold burden of showing irreparable harm.
Although Plaintiffs challenge a specific project--<iistinguishing this case
from that of Salix-Plaintiffs do not allege a specific irreparable harm resulting
from any of the ESA violations contained in their Complaint. Plaintiffs allege
only that their members' interests in the naturally functioning ecosystems of the
area and their use and enjoyment of the environment have been harmed. (Doc. 37
at 5-6.) Such allegations provide an insufficient bases for this Court to order
injunctive relief. See Friends ofthe Wild Swan v. Christiansen, 955 F. Supp. 2d
1197, 1202 (D. Mont. 2013) (denying the plaintiffs' request for injunctive reliefin
part due to the plaintiffs' failure to allege site-specific harms); Sierra Forest

Legacy v. Sherman, 951 F. Supp. 2d 1100, 1111 (E.D. Cal. 2013) ("To the extent
that plaintiffs are alleging injury from the harvest of trees independent of the
wildlife impacts of such harvest, they have failed to show a particularizing injury
to their interests rather than an abstract injury to the environment.").
Further, Defendants have presented evidence that enjoining the Project
would actually result in greater harm to the environment and protected species.
The Project will decommission roads, which in turn will decrease harmful erosion
and sediment. V2:44619. Road decommissioning under the Project is also
expected to benefit grizzlies by improving long-term habitat and removing
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motorized use from the landscape. (Ruby Dec. ,Doc. 39-10 at ~ 9.) Lynx are also
expected to benefit from increased forage through the conversion of stem­
exclusion habitat into snowshoe hare habitat and from the elimination of dense
and dead timber that could fuel stand-replacing wildfires. (Id. at ~~ 17,23.) The
Project also addresses the fire risk in the Project area, which is very high. (Kehr
Dec., Doc. 39-6, ~~ 8-10); see Winters, 555 U.S. at 23-24 (recognizing a public
interest in considerations other than the environment). Defendants have also
presented evidence that if the Project is enjoined and can only commence during
the winter months, the resulting harm could be multiplied and restoration activities
may be more difficult. (Doc. 39 at 28.)
These interests must be weighed against the possible environmental and
recreational interests that are before the Court. Plaintiffs present no evidence,
however, that allowing the Project to move forward will likely result in
environmental harm. As discussed above, the evidence suggests the opposite.
While the Court does not question the seriousness of Plaintiffs' interests, the
consideration of the balance of the equities and the public interest tip in favor of
the Forest Service. As a result, even assuming Plaintiffs have raised substantial
questions on the merits, injunctive relief is not warranted.
Accordingly, IT IS ORDERED that Plaintiffs' motion for a preliminary
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injunction (Doc. 36) is DENIED.
Dated this

l4:

y of July, 2014.

Donald W. Molloy, District
United States District Court

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