Friends of the Wild Swan et al v. Kehr et al
ORDER denying 25 motion for injunction pending appeal. Signed by Judge Dana L. Christensen on 9/5/2018. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
FRIENDS OF THE WILD SWAN,
SWAN VIEW COALITION,
ALLIANCE FOR THE WILD
ROCKIES, and NATIVE
SEP . 5 2018
Clerk, U.S Courts
District Of Montana
RICH KEHR, U.S. Forest Service
Swan Lake District Ranger, CHIP
WEBER, U.S. Forest Service Flathead
National Forest Supervisor, LEANNE
MARTEN, U.S. Forest Service Region
One Forester, UNITED STATES
FOREST SERVICE, an agency of the
U.S. Department of Agriculture,
Before the Court is Plaintiffs' Motion for Injunction Pending Appeal (Doc.
25) of the Court's July 16, 2018 order granting Defendants' Motion for Summary
Judgment (Doc. 12) regarding the Beaver Creek Landscape Restoration Project
(the "Project") near Condon, Montana.
Plaintiffs file this motion because logging
and road construction may commence in late October 2018, whereas its appeal is
not likely to be resolved for quite some time.
The Project authorizes numerous activities related to road maintenance,
including the cutting of 7.5 miles of temporary roads, decommissioning some, and
placing others into intermittent storage.
Additionally, the Project authorizes
various pre-commercial thinning and silvicultural treatments.
an injunction pending appeal under the Endangered Species Act ("ESA").
26 at 6-8.)
For the reasons explained, Plaintiffs' motion is denied.
"A preliminary injunction is an extraordinary remedy never awarded as of
Winter v. Natural Res. Def Council, 555 U.S. 7, 24 (2008).
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.
Petitioners seeking an injunction must show more than the possibility of
Id. at 22.
Petitioners must demonstrate that "irreparable
injury is likely in the absence of an injunction."
Id. (emphasis in original).
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."
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.
When the federal
government is a party, the balance of equities and public interest factors may be
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
In BSA 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
Cottonwood Envtl. Law Ctr. v. US. Forest Serv., 789 F .3d 1075,
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).
the above, the Plaintiffs must still "make a showing on all four prongs."
632 F.3d at 1134-35.
Plaintiffs argue that an injunction pending appeal is necessary because there
are "serious questions" regarding the Court's determination that the Project
complied with Amendment 19's road density objectives in the Buck Holland
grizzly bear subunit.
Plaintiffs also argue that there are "serious questions"
regarding the Court's determination that a new Biological Opinion is not required
to measure the effects of the Amendment 19 on seven additional grizzly bear
For the reasons more fully explained in the Court's order granting
Defendants' Motion for Summary Judgment (Doc. 21), the Court does not believe
that Plaintiffs have met their burden.
First, even despite the Court's conclusion
that the Project as a whole complied with Amendment 19's standards and
objectives, the Buck Holland subunit arguably has until December 31, 2018 to
bring that subunit into compliance with the ten-year objectives.
Coalition v. Weber, 52 F. Supp. 3d 1133, 1148 (D. Mont. 2014).
See Swan View
Next, the Court
concludes that Plaintiffs have not shown that the application of Amendment 19 to
the seven additional subunits was "new information" that was "not previously
considered" when the roads within the transferred lands were included in the
access calculations of the 2014 Biological Opinion.
Having made, at best, a weak
showing that Plaintiffs are likely to succeed on the merits, Plaintiffs must show a
significant degree of harm in order to prevail.
Humane Soc y of US., 523 F .3d at
Both issues raised by Plaintiffs pertain to the Project's impact on grizzly
bears and grizzly bear habitat, and Plaintiffs frame their request for an injunction
under the ESA.
Plaintiffs must therefore allege some indication that the Project is
likely to irreparably harm grizzly bear species or habitat, causing harm to
Plaintiffs' ability to enjoy that species.
Further, to obtain relief, Plaintiffs must
show irreparable harm is likely, not just possible.
(citing Winter, U.S. at 22).
Cottrell, 632 F.3d at 1131
A plaintiff cannot simply allege imminent harm; it
must demonstrate it.
Caribbean Marine Servs. Co. v. Baldrige, 844 F .2d 668,
674 (9th Cir. 1988).
"Speculative injury does not constitute irreparable injury
sufficient to warrant granting a preliminary injunction."
Id. at 674.
First, regardless of Plaintiffs' belief that Defendants were required to
reinitiate consultation with the Fish and Wildlife Service regarding implementation
of Amendment 19 on seven new grizzly bear subunits, Plaintiffs fail to establish
any connection between the newly implemented management directives and any
adverse effect on grizzly bears causing irreparable injury to Plaintiffs' members
Nor is any such argument factually persuasive; Plaintiffs themselves
conceded at a hearing that the only effect from Amendment 19 has been positive
on local grizzly populations.
See also AR 60666.
Second, Plaintiffs' assertion
that the Project violates NFMA because the Buck Holland grizzly bear subunit will
not immediately meet road management objectives, also fails its necessary
Plaintiffs cannot allege that the Project is likely to harm their interests
when the Project improves conditions in that subunit by diminishing road density.
Plaintiffs' argument is that the Project does not do enough to decrease road
This is a far cry from demonstrating that harm to the species will result
absent an injunction.
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.
The Court denies the motion.
Accordingly, IT IS ORDERED that Plaintiffs motion for injunction pending
appeal (Doc. 25) is DENIED.
DATED this 5th day of September, 2018.
Dana L. Christensen, Chief istrict Judge
United States District Court
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