Alliance for the Wild Rockies et al v. Martin et al

Filing 54

ORDER denying 51 motion for injunction pending appeal. Signed by Judge Dana L. Christensen on 9/10/2018. (ASG)

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

FILED
SEP l O

2018

Clerk, U.S Courts
District Of Montana
Missoula Division

NATIVE ECOSYSTEMS COUNCIL,
ALLIANCE FOR THE WILD
ROCKIES,

CV 17-47-M-DLC-JCL

Plaintiffs,

ORDER

vs.
LEANNE MARTEN, Regional
Forester of Region One of the U.S.
Forest Service, UNITED STATES
FOREST SERVICE, and UNITED
STATES FISH & WILFLIFE
SERVICE,
Defendants.

Before the Court is Plaintiffs' Motion for an Injunction Pending Appeal
(Doc. 51) of the Court's July 31, 2018 order granting Defendants' Motion for
Summary Judgment (Doc. 47) regarding the Telegraph Project (the "Project").
Plaintiffs file this motion because logging and road construction may commence
shortly whereas its appeal is not likely to be resolved for quite some time.
LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as of
right."

Winter v. Natural Res. Def Council, 555 U.S. 7, 24 (2008).

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A petitioner

seeking an injunction, whether it is an injunction pending an appeal or otherwise,
must show: (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.
20.

Id. at

Petitioners seeking an injunction must show more than the 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 factors are assessed
on a sliding scale.

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

1134-35 (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 ESA cases, the four-part test is altered so that the public interest and
balance of equities factors always weigh in favor of the plaintiffs request for an
injunction.

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075,

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1090-91 (9th Cir. 2015).

"[T]he issues of likelihood of success and irreparable

injury represent two points on a sliding scale in which the required degree of
irreparable harm increases as the probability of success decreases."
Soc '.Y of US. v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008).

Humane

Notwithstanding

the above, the Plaintiffs must still "make a showing on all four prongs."

Cottrell,

632 F.3d at 1134-35.
Plaintiffs argue that Defendants' success on summary judgment "is not
dispositive of whether Plaintiffs should receive an injunction pending appeal" in
this case, and baldly assert that they have raised "serious questions" regarding the
merits ofthe Court's decision.

(Doc. 52 at 11.)

Yet, the arguments raised in

support of this assertion regarding their ESA and NFMA claims are the very same
arguments Plaintiffs raised in their Motion for Summary Judgment (Doc. 12 at 1524, 26-36) and were largely reiterated in their objections to Judge Lynch's findings
and recommendation, recommending that Plaintiffs' claims lacked merit (Doc. 39
at 13-14, 22-25).

Having failed to assert specific grounds as to where or why this

Court erred in its decision, Plaintiffs have failed to meet their burden to
demonstrate that there are "serious questions" which warrant an injunction pending
appeal.
Plaintiffs argue that the Project irreparably harms its members' esthetic,
recreational, scientific, spiritual, vocational, and educational interests in the Project

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area because it will harm its members ability to view, experience, and utilize the
area in an undistributed state.

(Doc. 52 at 8-9; Doc. 52-1 at 3.)

The harm

alleged by Plaintiffs is the harm inherent in removing something irreplaceable from
the forest landscape.

See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,

545 (1987) ("Environmental injury ... is often permanent or at least of long
duration, i.e. irreparable."); see also Neighbors of Cuddy Mountain v. US. Forest
Serv., 137 F.3d 1372, 1382 (9th Cir. 1998) ("The old growth forests plaintiffs seek
to protect would, if cut, take hundreds of years to reproduce.") (citation omitted)).
Here, Plaintiffs allegation of harm is unpersuasive because the forest is already in a
disturbed state from the mountain pine beetle outbreak.

The Project is designed

to respond to this outbreak and targets areas of the forest that are overstocked,
diseased, dying, or already dead.

(Doc. 53 at 22.)

has experience more than 90% mortality.

Over 94% of the Project area

(Doc. 53-1 at 3).

trees will die and fall down even without the Project.

Most or all of the

(Id. at 6-7.)

Regardless of

the status of the Project, it will take several decades before these trees grow back.
For this reason, Plaintiffs have not demonstrated that absent an injunction, the
Project risks "irreparable harm" to Plaintiffs' members' interests.
Because Plaintiffs must demonstrate an adequate showing on all four prongs
of the Winter test and has failed to do so on the first two prongs, the Court need not
discuss the balance of harms and public interest with respect to Plaintiffs' claims.

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The Court denies the motion.
Accordingly, IT IS ORDERED that Plaintiffs motion for injunction pending
appeal (Doc. 51) is DENIED.
DATED this t OikAday of September, 2

Dana L. Christensen, Chief Judge
United States District Court

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