Swan View Coalition et al v. Weber et al
ORDER denying 36 Motion for Preliminary Injunction. Signed by Judge Donald W. Molloy on 7/14/2014. (NOS, )
JUL 1 4 2014
Clerk, u.s. District Court
District Of Montana
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
SWAN VIEW COALITION, FRIENDS
OF THE WILD SWAN, NATIVE
ECOSYSTEMS COUNCIL, and
ALLIANCE FOR THE WILD ROCKIES,
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
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
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).
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
their threshold burden of showing irreparable harm.
Although Plaintiffs challenge a specific project--
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