Friends of the Wild Swan et al v. Kehr et al

Filing 31

ORDER denying 25 motion for injunction pending appeal. Signed by Judge Dana L. Christensen on 9/5/2018. (ASG)

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

FRIENDS OF THE WILD SWAN,
SWAN VIEW COALITION,
ALLIANCE FOR THE WILD
ROCKIES, and NATIVE
ECOSYSTEMS COUNCIL,

SEP . 5 2018
Clerk, U.S Courts
District Of Montana
Missoula Division

CV 17-120-M-DLC

ORDER

Plaintiffs,
vs.
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,
Defendants.

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.

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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.

Plaintiffs request

an injunction pending appeal under the Endangered Species Act ("ESA").
26 at 6-8.)

(Doc.

For the reasons explained, Plaintiffs' motion is denied.
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).

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

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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 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
injunction.

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).

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 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

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to measure the effects of the Amendment 19 on seven additional grizzly bear
subunits.
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

991.
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

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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
interests.

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
showing.

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
density.

This is a far cry from demonstrating that harm to the species will result

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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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