Native Ecosystem Council et al v. Krueger et al
Filing
41
ORDER denying 38 Motion to Stay. Signed by Chief Judge Dana L. Christensen on 7/21/2014. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
NATIVE ECOSYSTEMS COUNCIL,
a non-profit organization, ALLIANCE
FOR THE WILD ROCKIES, a nonprofit organization
CV 13–167–M–DLC
Plaintiffs,
vs.
ORDER
FAYE KRUEGER, in her capacity as
Regional Forester for the United States
Forest Service, Region One, 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
Interior,
Defendants.
Following this Court’s Order granting summary judgment in Defendants’
favor, Plaintiffs, on July 1, 2014, filed a motion for a stay pending appeal, or
motion for preliminary injunction, preventing implementation of the Millie
Roadside Hazard Tree Removal Project. Ground-disturbing activities for the
Project are expected to commence on July 20, 2014.
The Project authorizes removal of dead or dying burned “hazard trees” that
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stand within 150 feet of certain existing roads in the Gallatin National Forest. The
Project area is popular for recreation and is home to “existing high human
development and activity.” FS-A-1:1-2. The Project is designed to address the
“immediate hazard” posed by the hazard trees, which are predicted to fall or roll
on to the roads, thereby disrupting road use and potentially endangering users. Id.
at 1-2. All told, the Project is estimated to affect approximately 300 acres of land
alongside the roads. Plaintiffs challenge the Project under the National
Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the
Administrative Procedure Act. For the reasons explained, Plaintiffs’ motion is
denied.
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter, 555 U.S. at 24. A petitioner seeking an injunction, whether it is an
injunction pending an appeal or otherwise, must show that (1) it is likely to suffer
irreparable harm absent a preliminary injunction, (2) that it is likely to succeed on
the merits, (3) that the balance of equities tips in its favor, and (4) that an
injunction is in the public interest. Winter v. Natural Resource Defense Council,
555 U.S. 7, 20 (2008). Petitioners seeking an injunction must show more than a
possibility of irreparable harm. Id. at 22. Petitioners must demonstrate that
“irreparable injury is likely in the absence of an injunction.” Id. (emphasis in
original). Once the petitioner shows that irreparable harm is likely, the other
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factors are assessed on a sliding scale. Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1134 (9th Cir. 2011). For instance, if, after demonstrating likely
irreparable harm, a petitioner also makes a strong showing on the public interest
and equities prongs, then an injunction may issue so long as the petitioner raises
“serious questions going to the merits.” Id. A petitioner in such cases is thus
relieved of the requirement that it demonstrate that it is likely to succeed on the
merits, and may succeed on the lesser “serious questions” standard. Id. 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).
In seeking an injunction, Plaintiffs here do not contend that the Project will
irreparably harm any endangered or threatened species. Plaintiffs 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. (Doc. 39 at 8.) Plaintiffs offer no evidence that the Project is
likely to disturb grizzly bears. Plaintiffs offer no evidence that the Project will
harm lynx. Also, notably, Plaintiffs did not raise any objection to the Project
related to elk at any previous stage of these proceedings and there has been no
showing in this case that elk, or Plaintiffs’ asserted interest in viewing elk, will be
impacted by Project activities. Plaintiffs premise their asserted injury on its
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“members’ use and enjoyment of the Project area in its undisturbed state.” Id.
Plaintiffs ignore, however, the fact that all Project activities will occur either on
existing roads or within 150 feet of existing roads – areas not generally associated
with undisturbed nature. Plaintiffs further ignore the fact that the Project is
designed to ensure continued and safe access to the Gallatin National Forest in
order for people, like Plaintiffs, to recreate in the Gallatin National Forest. At
best, Plaintiffs raise the faintest possibility that they will suffer irreparable harm
absent an injunction. This is insufficient to warrant an injunction. Winter, 555
U.S. at 20. Plaintiffs fail to demonstrate a likelihood of irreparable injury absent an
injunction. The Court need not inquire further, but will nonetheless provide an
analysis of Plaintiffs’ showing on the merits.
With respect to Plaintiffs’ showing on the merits, Plaintiffs contend the
Project violates the ESA by increasing road density beyond that allowed in the
2006 Gallatin Travel Plan’s incidental take statement. This contention was
squarely rejected by the Court’s previous Order and Plaintiffs raise no new issues,
nor point to any conflicting law on the subject.
Plaintiffs continue to misstate the administrative record regarding the
Project, asserting that the Project will “open eight miles of roads that are currently
closed.” (Doc. 39 at 9.) Not so. All Project activities will occur on currently
existing, motorized roads. Some of these roads are currently open to public
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motorized use and others are open only for administrative motorized use. During
Project implementation, the roads will be closed to public motorized use. They
will be open only for the administrative purpose of removing the hazard trees.
Thus, the Project will not increase road density and will not violate the incidental
take statement.
The Project also will not affect secure habitat for grizzly bears. All Project
activities will occur within 150 feet of existing motorized roads. Secure grizzly
bear habitat exists, by definition, only in areas that are at least 500 yards from any
existing roads.
With respect to lynx, Plaintiffs simply summarize the Court’s June 4, 2014
Order and provide no comment or analysis as to why they are likely to succeed on
the merits regarding lynx. Plaintiffs offer nothing to demonstrate that there are
serious questions regarding the merits of the Court’s Order.
Plaintiffs fail to demonstrate a likelihood of success on the merits. Plaintiffs
also fail to meet the lesser burden of demonstrating that there are serious questions
going to the merits.
Plaintiffs contend that the balance of harms and public interest tip heavily in
their favor because they have alleged an ESA claim, citing Washington Toxics
Coalition v. Environmental Protection Agency, 413 F.3d 1024 (9th Cir. 2005). As
explained above, however, Plaintiffs fail to raise serious questions going to the
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merits of their ESA claims, and fail to demonstrate that irreparable harm is likely
absent an injunction. Winter requires petitioners “to make a showing on all four
prongs” of the injunction test. Cottrell, 632 F.3d at 1135. Thus, the Court need
not discuss the balance of harms and public interest with respect to Plaintiffs’ ESA
claims.
Moreover, Plaintiffs fail to address the balance of harms 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.
Plaintiffs fail to raise serious questions as to the merits with respect to their NEPA
and APA claims and fail to demonstrate likely irreparable harm absent an
injunction. Thus, the Court need not balance the equities or weigh the public
interest. Id. For the sake of completeness, however, the Court notes that it
perceives little, if any, damage to Plaintiffs’ asserted interest in viewing grizzly
bears or lynx in undisturbed nature by allowing this small roadside hazard tree
removal project to go forward. Meanwhile, the interests of public safety are
served, and certain economic benefits are gained, by allowing the Project to go
forward.
For all the above reasons, and because there is a limited and diminishing
window in which to reap any economic benefit from this Project, the Court also
denies Plaintiffs’ alternative request for a 21-day injunction.
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Accordingly, IT IS ORDERED that the motion (Doc. 38) is DENIED.
DATED this 21st day of July, 2014.
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