Alliance for the Wild Rockies et al

Filing 19

ORDER granting 7 Motion for Preliminary Injunction. The Stonewall Vegetation Project is ENJOINED until further Order by this Court. Signed by Judge Dana L. Christensen on 5/30/2017. (ASG)

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

ALLIANCE FOR THE WILD
ROCKIES, NATIVE ECOSYSTEMS
COUNCIL,

CV 17-21-M-DLC

ORDER

Plaintiffs,
vs.
LEANNE MARTEN, Regional Forester
of Region One of the U.S. Forest
Service, and UNITED STATES
FOREST SERVICE, an agency of the
U.S. Department of Agriculture,
Defendants.

Before the Court is the motion for preliminary injunction of Plaintiffs
Alliance for the Wild Rockies and Native Ecosystems Council (collectively
"Plaintiffs"). Defendants Leanne Marten, Regional Forester for Region One of the
United States Forest Service and the United States Forest Service (collectively
"Defendants") oppose the motion. As discussed below, the Court will grant the
motion and preliminarily enjoin the Stonewall Vegetation Project until a final
ruling is issued on the merits.

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BACKGROUND
On February 17, 2017, Plaintiffs filed suit seeking declaratory and
injunctive relief contending that Defendants' approval of the Stonewall Vegetation
Project (the "Project") violates federal law, specifically the Endangered Species
Act ("ESA"), 16 U.S.C. § 1531 et seq. The Project is located on the Lincoln
Ranger District in the Helena National Forest and is approximately four miles
from the town of Lincoln, Montana. The Project area totals approximately 24,010
acres and includes management activities on 4,868 acres. Planned management
activities are set to begin June 1, 2017, and include logging or thinning on 2,668
acres and prescribed burning on 2,220 acres. 1 The Project authorizes the
construction of0.9 miles of temporary roads and 31.5 miles of road maintenance
or reconstruction. Defendants state that this area largely consists of dead
lodgepole pine due to disease and insect infestation. As a result, Defendants
contend that implementation of the Project will improve forest health and reduce
the risk of high-intensity wildfires in the area. However, this area is also
frequented by various wildlife, including the Canada lynx.
In 2000, Canada lynx were listed as a threatened species under the ESA. In

1

Plaintiffs' Amended Complaint asserts that management activities will actually include
2,113 acres oflogging and 2,755 acres of prescribed burning. (Doc. 6 at 7.) However, this
distinction is immaterial for purposes of the present motion.
2

2006, the United States Fish and Wildlife Service ("FWS") designated 1,841
square miles as critical habitat for the species. However, the FWS failed to
designate any National Forest land as critical habitat. Later, in 2007, the Forest
Service adopted the Northern Rocky Mountain Lynx Management Direction,
known as the "Lynx Amendment," which set specific guidelines and standards for
activities that may have an adverse effect on the species. At the same time the
Forest Service initiated consultation with the FWS pursuant to section 7 of the
ESA, 16 U.S.C. § 1536(a)(2), and determined that the management direction
outlined in the Lynx Amendment did not jeopardize the Canada lynx. However,
after completing the consultation process the FWS determined that its decisions
relating to the designation of critical habitat were flawed and reevaluated its data.
As a result of this reevaluation, the FWS subsequently revised the critical habitat
designation for the lynx from 1,841 to 39,000 square miles.
In 2012, an environmental organization filed suit in this Court alleging that
the Forest Service violated the ESA by failing to reinitiate section 7 consultation
following the redesignation of Canada lynx critical habitat. Salix v. US. Forest

Serv., 944 F. Supp. 2d 984, 986 (D. Mont. 2013). The Court agreed and ordered
reinitiation of consultation. Salix, 944 F. Supp. 2d at 1002-1003.

Following an

appeal by the Forest Service, the Court of Appeals for the Ninth Circuit affirmed
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the Court's determination that section 7 consultation must be reinitiated.

Cottonwood Envtl. L. Ctr. v. US. Forest Serv., 789 F.3d 1075, 1088 (9th Cir.
2015), cert. denied, 137 S. Ct. 293 (2016). Consequently, reconsultation between
the FWS and the Forest Service began on November 2, 2016, and is currently
ongoing. Plaintiffs contend, among other arguments, that the Fore st Service is
violating the ESA, specifically section 7(d), by implementing the Project prior to
the completion of consultation. Accordingly, Plaintiffs seek to enjoin
commencement of the Project until the parties' cross-motions for summary
judgment can be adjudicated on the merits.
ANALYSIS

"A preliminary injunction is an extraordinary remedy never awarded as of
right." Winter v. Nat. Resources Def Council, Inc., 555 U.S. 7, 24 (2008) (citation
omitted). Generally, a party seeking a preliminary injunction must establish that:
(1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in

the absence of preliminary relief; (3) the balance of equities tips in its favor; and
(4) an injunction is in the public interest. Winter, 555 U.S. at 20 (citations
omitted). However, "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 plaintiff also shows that there is a likelihood
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of irreparable injury and that the injunction is in the public interest." All. for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
A. Likelihood of Irreparable Injury
The Court will first address whether Plaintiffs have alleged a sufficient
likelihood of irreparable harm to warrant a preliminary injunction of the Project. 2
Plaintiffs have adequately alleged that implementation of the Project would likely
cause irreparable harm to their members. These members have expressed
"recreational, scientific, spiritual, vocational and educational interests" in viewing
and utilizing "the area in its undisturbed state." (Doc. 8-1 at 3.) Implementation
of the Project, Plaintiffs argue, would cause irreparable harm to these interests.
As previously stated by the Ninth Circuit, establishing a likelihood of
irreparable harm "should not be an onerous task for plaintiffs." Cottonwood, 789
F.3d at 1091. Indeed, Plaintiffs' expressed desire to visit the area in an
undisturbed state is all that is required to sufficiently allege harm under ESA.

Cottrell, 632 F.3d at 1135 (finding plaintiffs' allegation that a proposed timber
project would "harm its members' ability to 'view, experience, and utilize' the
2

The Court will address the issue of harm as a threshold issue because Defendants'
briefing suggests that Plaintiffs lack Article III standing as well as fail to allege a likelihood of
irreparable harm. Plaintiffs have satisfied the standing requirements in that they have described
plans to visit the area in future. (Doc. 8-1 at 2) (describing Plaintiffs' plans to visit the area in the
summer of 2017 and 2020).) These "specific and concrete plan[s]" satisfy constitutional
standing requirements. Summers v. Earth Island Inst., 555 U.S. 488, 493, 495 (2009).
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areas in their undisturbed state" satisfied the irreparable harm requirement under

Winter). Plaintiffs have sufficiently alleged a likelihood of irreparable injury to
warrant a preliminary injunction.
B. Public Interest and Balance of Hardships

When the government is a party under a preliminary injunction analysis, the
public interest and balance of equities factors merge. Drakes Bay Oyster Co. v.

Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418,
435 (2009)). Defendants contend that these factors weigh in its favor for two
principal reasons: (1) the Project, though it will temporarily degrade lynx habitat,
will improve snowshoe hare habitat and in the long run will ultimately benefit the
lynx; and (2) the Project will address the risk of severe wildfire caused "by a
nearly contiguous fuel-bed, with heavy accumulations of dead and downed
timber." (Doc. 12 at 32.)
However, in the context of alleged procedural violations of the ESA, the
public interest and the balance of hardships weighs heavily in favor of a
preliminary injunction due the emphasis placed by Congress on the protection of
endangered and threatened species. Cottonwood, 789 F .3d at 1091 ("[W]hen
evaluating a request for injunctive relief to remedy an ESA procedural violation,
the equities and public interest factors always tip in favor of the protected
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species."); see also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)
("Congress has spoken in the plainest of words, making it abundantly clear that the
balance has been struck in favor of affording endangered species the highest of
priorities .... "). Here, the arguments offered by the Defendants against a
preliminary injunction fail to overcome the public interest in preservation of the
Canada lynx and the interest in ensuring that the Forest Service does not approve
the Project in violation of the ESA.
First, the long term positive gains to the lynx cited by Defendants will only
be delayed by enjoining the Project. Thus, if Defendants are successful at the
conclusion of this lawsuit and the Project is allowed to proceed, the benefits to the
species would only be temporarily postponed. See All. for the Wild Rockies v.
Marten, 200 F. Supp. 3d 1110, 1112 (D. Mont. 2016) ("The balance of equities

tips in favor of Alliance because it faces permanent damage if logging activity
were to proceed and the Forest Service faces only delay.").
Second, the risk of fire danger to the community of Lincoln, though a
serious matter, does not outweigh this Court's obligation to ensure that the Forest
Service is complying with the ESA. The Court acknowledges that Defendants
have presented evidence that the Project area is susceptible to severe and intense
wildfires due to elevated fuel levels caused by "heavy accumulations of dead and
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down timber." (Doc. 12-2 at 5.) However, though there is the possibility of
serious fire activity within the boundaries of the Project, there is no indication that
this area is at risk of imminent fire activity. See League of Wilderness Defs./Blue
Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir.

2014) (describing the risk posed by wildfires as "speculative"); see also All. for
the Wild Rockies, 200 F. Supp. 3d at 1112 (granting preliminary injunction against

proposed timber project after finding that risk of wildfire did not constitute
imminent threat). Defendants argument to the contrary is undercut by the fact that
pine beetle infestations in this area "peaked in 2008" and, presumably, the risk of
severe fire danger has existed since then. (Doc. 12-2 at 8.) Accordingly, the
argument that operations must begin immediately lest the area become subject to
imminent fire activity is unpersuasive. Again, if Defendants are ultimately
successful in this case then a preliminary injunction would only temporarily delay
these mitigation efforts. Accordingly, the Court finds that the public interest and
balance of equities factors weigh in favor of an injunction.
C. Serious Questions Going to the Merits

The Court will next address whether Plaintiffs have presented serious
questions as to whether the Project violates section 7(d) of the ESA because
reconsultation on the Lynx Amendment has been reinitiated. This section
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mandates that:
After initiation of consultation required under subsection (a)(2), the
Federal agency and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with respect to
the agency action which has the effect of foreclosing the formulation
or implementation of any reasonable and prudent alternative measures
which would not violate subsection (a)(2) of this section.
16 U.S.C. § 1536(d). Thus, once consultation under section 7(a)(2) of the ESA
has been initiated, the agency is prohibited from (1) making any irreversible or
irretrievable commitment of resources, that (2) foreclose the formulation or
implementation of any reasonable and prudent alternative measures with respect to
section 7(a)(2) consultation. See 50 C.F.R. § 402.09 ("After initiation or
reinitiation of consultation required under section 7(a)(2) of the Act, the Federal
agency and any applicant shall make no irreversible or irretrievable commitment
of resources with respect to the agency action which has the effect of foreclosing
the formulation or implementation of any reasonable and prudent alternatives
which would avoid violating section 7(a)(2)."). Accordingly, satisfaction of these
two elements requires that the Project be enjoined until consultation has been
completed.
The Court first finds that Plaintiffs have made a strong showing that the
Project is an irreversible or irretrievable commitment of resources by the agency.

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As stated by the Ninth Circuit "timber sales constitute per se irreversible and
irretrievable commitments of resources under § 7( d)." Pac. Rivers Council v.

Thomas, 30 F.3d 1050, 1057 (9th Cir. 1994); see also Lane County Audubon Soc.
v. Jamison, 958 F.2d 290, 295 (9th Cir. 1992) ("The ESA prohibits the
'irreversible or irretrievable commitment of resources' during the consultation
period. The [timber] sales are such commitments."). Pursuant to this case law,
Plaintiffs have presented a serious question as to the first element under section
7(d).
Under the second element, Defendants argues that implementation of the
project would not foreclose the formulation or implementation of any reasonable
and prudent alternative measures because the Forest Service has determined that:
projects for which there is compliance with the Lynx Amendment and
there is an independent lynx critical habitat [Primary Constituent
Element] analysis in a Biological Opinion that the project is not likely
to destroy or adversely modify lynx critical habitat are consistent with
the requirements ofESA Section 7(d) because, should the Lynx
Amendment consultation arrive at a jeopardy conclusion that would
necessitate the development of reasonable and prudent alternatives,
[the Forest Service] would still retain the necessary flexibility to work
with FWS to develop such an alternative for Lynx Amendment
programmatic direction and nothing about proceeding with
site-specific projects determined to not adversely modify lynx critical
habitat would preclude that.
(Doc. 12 at 18) (quoting the Administrative Record at WL25-21 :018772,

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WL25-20:018761-62) (internal punctuation marks omitted).) Put another way, the
Project specific Biological Opinion found that proceeding with management
activities will not adversely modify lynx critical habitat and, even if reconsultation
concludes that agency action is jeopardizing the Canada lynx, the Forest Service
retains the flexibility to implement any revisions to the Lynx Amendment to the
Project.
In contrast, Plaintiffs cite to two decisions in this circuit which discussed
whether the implementation of section 7(a)(2) consultation under the ESA
warranted enjoining agency action until consultation was complete. First, in Lane
County Audubon Society v. Jamison, the Ninth Circuit found that all future timber

sales at issue in the case should be enjoined until agency consultation was
complete with respect to management guidelines for the conservation of the
northern spotted owl. 958 F.2d at 295 ("Accordingly, the individual sales cannot
go forward until the consultation process is complete on the underlying plans
which [the agency] uses to drive their development."). In making its
determination, the Lane County Court found that, under section 7(d), these sales
constitute the "irreversible or irretrievable commitment of resources" and cannot
commence until consultation was compete.
Second, Plaintiffs cite to the Ninth Circuit's decision in Pacific Rivers
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Council v. Thomas. There, the Ninth Circuit affirmed the district court's order

which found that the Forest Service violated the ESA when it failed to initiate
section 7 consultation with the National Marine Fisheries Service with respect to
land and resource management plans concerning the Snake River chinook salmon.
Pac. Rivers Council v. Thomas, 30 F.3d at 1051-1052. Upon affirming the district

court's finding that the Forest Service must initiate consultation under the ESA, it
remanded to the district court to implement an injunction enjoining all "ongoing
and announced timber, range and road projects" that affected the Snake River
chinook salmon. Id. at 1057.
Upon remand, the Forest Service argued that the timber sales should go
forward despite the initiation of consultation because it had conducted section 7(d)
"evaluations" on all projects deemed to "not adversely affect" the chinook salmon
and "issued determinations that all of the proposed ongoing activities ... will not
result in the irreversible or irretrievable commitment of resources which will
foreclose the implementation of reasonable and prudent alternatives being
contemplated with the [land and resource management plans] consultations." Pac.
Rivers Council v. Thomas, Civ. No. 92-1322-MA, 1994 WL 908600, at *1 (D. Or.

Oct. 20, 1994). The district court rejected this argument, however, after finding
that the Forest Service failed to offer identifiable "reasonable and prudent
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alternatives" resulting from the consultation process. Pac. Rivers Council, 1994
WL 908600, at *4-5. The court reasoned that under the ESA "reasonable and
prudent alternatives" are the product of the formal consultation process and, as
such, these alternative cannot be contemplated prior to consultation. Id. at 4 ("I do
have a problem with the reasoning which concludes that no alternatives are
precluded when no 'reasonable and prudent alternatives' have been identified.
Until consultations reach a stage at which reasonable and prudent alternatives are
identified in the [biological opinion] process, any§ 7(d) analysis necessarily must
be premised upon guesswork."); see also 50 C.F.R. § 402.02 (defining "reasonable
and prudent alternatives" as "alternative actions identified during formal
consultation"). Thus, rather then engage in conjecture, the district court enjoined
all timber activities until reasonable and alternative measures were identified
through the consultation process. Id. at 5.
Here, the Court concludes that this authority raises serious questions as to
whether the Project should be enjoined pending completion of consultation on the
Lynx Amendment. 3 Similar to the Forest Service in Pacific Rivers Council v.
3

The Court recognizes that upon first glance it may appear that this decision runs counter
to its holding in Alliance for the Wild Rockies v. Savage, 209 F. Supp. 3d 1181 (D. Mont. 2016).
There, this Court rejected the argument that the Cottonwood decision represented a per se rule
prohibiting timber projects pending the completion of section 7(a)(2) reconsultation. Savage,
209 F. Supp. 3d at 1196. Instead, upon a review of its prior decisions, the Court reasoned that
certain projects affecting lynx should be allowed to go forward pending the initiation of
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Thomas, here, Defendants argue that there is no need to identify any reasonable
and prudent alternatives because the FWS has already determined "that the Project
will not destroy or adversely modify lynx critical habitat and that the two affected
Lynx Analysis Units will remain conducive to supporting lynx." (Doc. 12 at 21.)
However, this argument is similar to the one rejected by the district court in

Pacific Rivers Council. Accordingly, this authority raises serious questions as to
whether Plaintiffs will ultimately be successful on the merits.
Finally, the Court is ultimately persuaded that an injunction is appropriate at
this juncture due to Plaintiffs' representations that the entire Project area is within
designated occupied and core lynx habitat, as well as lynx critical habitat. (Doc. 6
at 13.) Because this Project is located at the heart of lynx habitat, any revisions to
the Lynx Amendment resulting from consultation could have profound
repercussions upon the species. This fact, combined with the authority cited by
Plaintiffs, counsels in favor of preliminarily enjoining the Project.

consultation if the applicable agencies could "show an independent basis for their conclusions
regarding lynx critical habitat by demonstrating that 'the affected critical habitat will remain
functional and that the primary constituent elements for critical habitat will not be altered to an
extent that appreciably reduces the conservation value of the critical habitat, and neither the
recovery nor the survival of the species will be jeopardized."' Id at 1194-1195 (citing Native
Ecosystems Council v. Krueger, CV 13-167-M-DLC, 2014 WL 9954189, at *7 (D. Mont. June 4,
2014)). The Court's decision today, however, does nothing to disturb its prior decisions. Unlike
the case at bar, at the time Savage was decided, consultation had yet to be reinitiated and the
prohibitions under section 7(d) were not yet in effect.
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CONCLUSION

The Court does not intend by issuing a preliminary injunction in this case to
halt all timber sales in lynx critical habitat. Because of the fact that the entire
Project area is within lynx critical habitat, and the risk of fire is not imminent, the
wise course is to delay this project until the Court has the opportunity to issue a
final decision on the merits of this case.
Accordingly, IT IS ORDERED that Plaintiffs' Motion for Preliminary
Injunction (Doc. 7) is GRANTED. The Stonewall Vegetation Project is
ENJOINED until further Order by this Court.
DATED this

30 "'day of May, 2017

Dana L. Christensen, Chief Judge
United States District Court

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