Alliance for the Wild Rockies et al v. Marten et al
Filing
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ORDER: Jack Hirschy Livestock, Inc. is JOINED pursuant to Rule 19 as a defendant in this case. Alliance is required to serve the Amended Complaint 18 and a copy of this Order on Hirschy on or before August 5, 2016. Further Ordered that Alliance's motion for a preliminary injunction 16 is GRANTED. Further activity under the Timber Sale is stayed pending the outcome of this litigation. Signed by Judge Donald W. Molloy on 7/28/2016. (ASG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD ROCKIES,
NATIVE ECOSYSTEMS COUNCIL,
FILED
JUL 2 8 2016
Clerk, U S District Court
District Of Montana
Missoula
CV 16-35-M-DWM
ORDER
Plaintiffs,
vs.
LEANNE MARTEN, Regional Forester
of Region One of the U.S. Forest Service,
UNITED STATES FOREST SERVICE,
an agency of the U.S. Department of
Agriculture,
Defendants.
Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council
(collectively "Alliance") seek declaratory and injunctive relief against Defendants
Leanne Marten, Regional Forester of Region One of the United States Forest
Service, and the United States Forest Service (collectively "the Forest Service") on
the grounds that the Forest Service failed to comply with environmental and
regulatory procedures when it approved the Moosehom Ditch Timber Sale
("Timber Sale"). Alliance seeks a preliminary injunction preventing further
activity related to the Timber Sale, which may re-commence as soon as August 1,
2016. (Doc. 16.) That motion is granted.
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A preliminary injunction is an extraordinary remedy never awarded as a
matter of right. Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 22 (2008).
"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." Id. at 20. "'Serious questions going to the
merits' and a balance of hardships that tips sharply towards the plaintiff can
support issuance of a preliminary injunction, so long as" the remaining 'Winter
elements are also met. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1135 (9th Cir. 2011) (applying the "serious questions" test post-Winter). Alliance
has made such a showing here.
The actual and irreparable injury Alliance articulates satisfies the Winter
test. Alliance shows irreparable harm in that its members' use and enjoyment of
the area would be permanently disturbed by further activity, (see Johnson Deel.,
Doc. 17-17 at~ 9), despite the fact that the area remaining to be logged is only a
discrete portion of the project area, Cottrell, 632 F.3d at 1135 (rejecting the
argument that "a plaintiff can never suffer irreparable injury resulting from
environmental harm in a forest area so long as there are other areas of the forest
that are not harmed"). The balance of equities tips in favor of Alliance because it
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faces permanent damage if logging activity were to proceed and the Forest Service
faces only delay. League of Wilderness Defenders v. Connaughton, 752 F.3d 755,
765 (9th Cir. 2014); Cottrell, 632 F.3d at 1135. While mitigating the imminent
risk of forest fires and insect infestation is a valid public interest, Connaughton,
752 F.3d at 766, there is no indication of an imminent threat here. Without
evidence of an imminent threat it would be difficult to say that the inability to
mitigate such risks for a temporary period outweighs the public's interest in
maintaining the environment and requiring that agencies follow proper
procedures. Sierra Club v. Bosworth, 510 F.3d 1016, 1033 (9th Cir. 2007); Native
Ecosystems Council v. US. Forest Serv., 866 F. Supp. 2d 1209, 1234 (D. Idaho
2012).
Finally, Alliance raises serious questions on the merits as to whether or not,
and to what extent, the Forest Service was required to perform analysis pursuant to
both NFMA and NEPA. The Fore st Service argues that the logging activity falls
entirely within the bounds of the Jack Hirschy Livestock, Inc.'s ("Hirschy") vested
right-of-way under 43 U.S.C. § 661, and, as a result, it was neither required to
perform any NEPA analysis nor consider the Revised Forest Plan to the extent it
may limit that pre-existing right. As argued by Alliance, however, Hirschy's
vested right is subject to reasonable regulation by the Forest Service, Adams v.
.3
United States, 3 F.3d 1254, 1260 (9th Cir. 1993) (quiet title action holding vested
water rights under§ 661 remain subject to reasonable regulation); Grindstone
Butte Projectv. Kleppe, 638 F.2d 100, 103 (9th Cir. 1981) (holding environmental
regulations can be imposed upon rights-of-way granted under similar 1891 Act,
specifically addressing NEPA); Hyrup v. Kleppe, 406 F. Supp. 214, 217 (D. Colo.
1976) (recognizing that a right-of-way under§ 661 is subject to regulation to
protect the public interest, which may include "such reasonable conditions and
limitations as may be necessary for the protection of the environment"), and the
Forest Service must show it complied with the Revised Forest Plan, Native
Ecosystems Council v. US. Forest Serv., 418 F.3d 953, 965 (9th Cir. 2005)
("Because the record does not include a basis for the Forest Service's conclusion
that the project will not violate [that] Plan's ... standard, the agency's approval of
the project was arbitrary and capricious in violation ofNFMA.").
Hirschy' s unregulated ability to act in this case is limited to activities that
qualify as "ditch maintenance." See 36 C.F.R. § 251.50(e)(3) (allowing right-ofway holders to perform ditch maintenance without a special use permit);
Mussellshell Ranch Co. v. Seidel-Joukova, 261 P.3d 570, 573-75 (Mont. 2011)
(discussing the parameters of ditch maintenance under Montana law). In
reviewing the parties' arguments, the outcome of this case will likely tum on the
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definition of "ditch maintenance" and whether the Forest Service acted arbitrarily
and capriciously in determining that the logging activity provided for in the
Timber Sale fell within that definition. Alliance raises serious questions on the
merits as to both issues.
The parties' arguments and briefing also raise an additional matter,
however, which is the role Hirschy plays, or should play, in this litigation.
Pursuant to Rule 19 of the Federal Rules of Civil Procedure, a person is a required
party if"complete relief' cannot be accorded in his absence or the person claims
an interest in the action and "is so situated that disposing of the action in the
person's absence may (i) as a practical matter impair or impede the person's ability
to protect that interest; or (ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations because of the
interest." Fed. R. Civ. P. 19(a). Pursuant to this standard, Hirschy will be joined
in the case. See Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016, 1019 (9th Cir.
1999) ("Whether a party is necessary and indispensable is a pragmatic and
equitable judgment, not a jurisdictional one."). Serious questions have been raised
as to the scope ofHirschy's right to maintain its ditch right-of-way, and a potential
resolution to those questions could be harmful to Hirschy's interest or prevent
further litigation of those rights in the future. See E.E. 0. C. v. Peabody W. Coal
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Co., 400 F.3d 774, 783 (9th Cir. 2005) (allowing for a party to be joined under
Rule 19 against which the plaintiff does not or cannot state a cause of action);
Nat'/ Wildlife Fedn. v. Espy, 45 F.3d 1337, 1344-45 (9th Cir. 1995) (holding that
private parties could be named as defendants along with federal agencies in suit
brought under the Administrative Procedures Act to enforce rights conferred by
NEPA); see, e.g., Dawavendewa v. Salt River Project Agr. Imp. & Power Dist.,
276 F.3d 1150, 1156-57 (9th Cir. 2002) (action to set aside lease or contract
threatens non-party's interest in lease thereby raising Rule 19(a)(2)); cf Hage v.
United States, 51 Fed. Cl. 570, 585-86 (Fed. Cl. 2002) (citing 43 U.S.C. § 661)
(approving a 50-foot right-of-way for ditch maintenance in a civil takings case
against the Federal government). Hirschy "is a party against which relief has not
formally been sought but is so situated that effectiveness of relief for the present
parties will be impaired if it is not joined." Peabody W. Coal Co., 400 F .3d at
783-84. Additionally, joinder is feasible. See Fed. R. Civ. P. 19(a).
Accordingly, IT IS ORDERED that Jack Hirschy Livestock, Inc. is JOINED
pursuant to Rule 19 as a defendant in this case. Alliance is required to serve the
Amended Complaint (Doc. 18) and a copy of this Order on Hirschy on or before
August 5, 2016.
IT IS FURTHER ORDERED that Alliance's motion for a preliminary
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injunction (Doc. 16) is GRANTED.· Further activity under the Timber Sale is
stayed pending the outcome of this litigation.
Dated this _M_
ta; of July, 2016.
If: A. Z. f, "1f
-W-~l-1-'L~"r-~~~~~~~
olloy, District Judge
District Court
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