Helena Hunters and Anglers Association et al v. Marten et al

Filing 57

ORDER denying (24) Motion for Preliminary Injunction. Signed by Judge Dana L. Christensen on 10/9/2019. Associated Cases: 9:19-cv-00047-DLC, 9:19-cv-00106-DLC (NOS)

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

HELENA HUNTERS AND
ANGLERS ASSOCIATION, and
MONTANA WILDLIFE
FEDERATION,

FILED
OCT 09 2019
Clerk, U.S Courts
District Of Montana
Missoula Division

CV 19-47-M-DLC
(Consolidated with Case No.
CV 19-106-M-DLC)

Plaintiffs, and
ALLIANCE FOR THE WILD
ROCKIES, and NATIVE
ECOSYSTEM COUNCIL

ORDER

Consolidated Plaintiffs,
vs.
LEANNE MARTEN, in her official
capacity; UNITED STATES FOREST
SERVICE; UNITED STATES
DEPARTMENT OF AGRICULTURE,
Federal Defendants, and
STATE OF MONTANA, and
MONTANA BICYCLE GUILD
Defendant-Intervenors
On August 13, 2019, Plaintiffs Alliance for the Wild Rockies ("AWR") and
Native Ecosystem Council ("NEC") filed a Motion for Preliminary
Injunction/Temporary Restraining Order (Doc. 24) supported by the declaration of

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Michael Garrity, the Executive Director of A WR. (Doc. 24-1.) For the following
reasons, Plaintiffs' Motion will be denied.
BACKGROUND

At issue is the United States Forest Service's Tenmile-South Helena Project
("Project" or "Tenmile Project") on the Lewis and Clark National Forest. The
Project is a vegetation management project that the Forest Service developed to
protect the City of Helena's municipal watershed and to improve conditions
relative to forest fire. This Project is underway. The Forest Service began
vegetation treatments in May of 2019 after awarding two salvage sales in March
2019.
Plaintiffs assert that the Tenmile Project is unlawful because the Fish and
Wildlife Service ("the Service") failed to include a "detailed discussion of the
effects of the action" on grizzly bears in its Biological Opinion as required under
the Endangered Species Act ("ESA"). Plaintiffs also contend that the Tenmile
Project violates the National Forest Management Act because Project
implementation will increase road density levels above those authorized in the
Forest Plan to the detriment of grizzly bears.
DISCUSSION

"A preliminary injunction is an extraordinary remedy never awarded as of
right." Winter v. Nat. Res. Def Council, 555 U.S. 7, 24 (2008). Generally, a

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petitioner seeking an injunction must show that ( 1) it is likely to suffer irreparable
harm absent a preliminary injunction, (2) it is likely to succeed on the merits, (3)
the balance of equities tips in its favor, and (4) an injunction is in the public
interest. Id. at 20.
However, in ESA cases, the test is altered so that "the equities and public
interest factors always tip in favor of the protected species." Cottonwood Envtl.
Law Ctr. v. US. Forest Serv., 789 F.3d 1075, 1091-91 (9th Cir. 2015).

Accordingly, the Court is satisfied that the balance of equities and public interest
accrue in favor of a preliminary injunction in this ESA case. The Court will
proceed to discuss whether Plaintiffs are likely to suffer irreparable harm absent a
preliminary injunction.
This showing requires a petitioner to allege more than the mere possibility of
harm; they must demonstrate that "irreparable injury is likely in the absence of an
injunction." Winter, 555 U.S. at 22. Additionally, analysis of this element inquires
into the timeframe of the litigation. A court must determine that a preliminary
injunction is required to prevent the harm that will otherwise occur before the court
is able to reach a conclusion on the merits. Id. at 21.
Plaintiffs allege that their members will suffer irreparable harm to their
ability to "view, experience and utilize the area in [its] undisturbed state" if the
Project is allowed to continue for the next few months. (Doc. 25 at 13.) They

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contend that the "area will be irreversibly degraded because once logging and
burning occurs, the Forest Service cannot put the trees back on the stumps or
unburn the trees[.]" (Id.)
Federal Defendants argue that this allegation of harm is insufficient because:
(1) Plaintiffs' claim is undermined by their delay in filing this motion; (2) Plaintiffs
fail to allege any harm to an ESA-listed species; and (3) Plaintiffs' concerns
regarding the trees are unconvincing given that the Project primarily targets dead
or dying trees. (Doc. 3 6 at 15-19.)
Turning to the first argument, Federal Defendants contend that Plaintiffs'
months-long delay in filing suit and further delay in seeking a preliminary
injunction until Project activities were well underway should be construed to
undercut their claim of imminent harm. (Doc. 36 at 15.) Indeed, numerous courts
have considered a delay to weigh against finding imminent irreparable harm.

Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985)
("Plaintiffs long delay before seeking a preliminary injunction implies a lack of
urgency and irreparable harm[.]"); Lyda Enterprises, Inc. v. City ofLas Vegas, 745
F.2d 1211, 1213 (9th Cir. 1984) ("A delay in seeking a preliminary injunction is a
factor to be considered in weighing the propriety of relief.").
Plaintiffs assert that the delay was due to difficulty in finding competent
legal counsel and any delay here is not comparable to the cases cited above

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because this delay was a matter of months, whereas in those cases, the delay was
measured in years. (Doc. 40 at 7.) The Court is not convinced that the overall
length of delay is dispositive.
Here, the entire time line of this litigation is on a smaller scale. In early
March 2019, the Forest Service advertised both the Scotty Salvage and Upper
Tenmile Salvage timber sales and mailed a copy of the advertisement to Plaintiffs.
Being experienced environmental litigants, Plaintiffs should have known of the
Project and its impending timeline in the spring. Ground operations began in late
June and early July. Although Plaintiffs could have filed suit when Helena
Hunters did in mid-March (see Doc. 1), they waited three months to file (see Doc.
16 at 3), and then another two months to seek emergency relief (see Doc. 24). The
delay of even a few months-significant months in terms of project
implementation-is a significant delay in the life of a timber sale operation. While
the Court is sympathetic to NEC's claim that it had difficulty finding counsel (Doc.
40-2 at 4), this difficulty does not negate the impression that if the need for a
preliminary injunction had been deemed essential in the spring, counsel could have
been found.
The difference between the Court's view of the situation here and the
decision reached in Native Ecosystems Council v. Marten, 334 F. Supp. 3d 1124
(D. Mont. 2018) (where this Court overlooked the plaintiffs' ten-month delay when

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the project was set to begin on July 1, 2018 and the plaintiffs did not file until two
weeks before) is simple: there the plaintiffs did, in fact, file before the project had
begun, and filed before the bulk of the seasonal work had begun. Here, Plaintiffs
filed at the conclusion of summer after the Project was well underway. The
Court's decision to halt the project now while the parties complete briefing on their
motions for summary judgment would only prevent that work scheduled for the
final weeks before snowfall brings much of the Project to its seasonal intermission.
Delay alone, however, is not enough to deny Plaintiffs' motion. See Lyda

Enterprises, Inc, 745 F.2d at 1213 (construing a delay as merely one factor in a
larger analysis); see, e.g., Garcia v. Google, Inc., 786 F.3d 733, 746 (9th Cir. 2015)
(noting the delay but resolving the issue on other grounds). Federal Defendants
next argue that Plaintiffs cannot meet the standard for a preliminary injunction
because they have failed to allege that irreparable harm will befall the grizzly bear
before the court can issue its decision. (Doc. 36 at 19 (citing Native Ecosystems

Council v. Krueger, 40 F. Supp. 3d 1344, 1349 (D. Mont. 2014) (noting that
plaintiffs had not alleged any harm to wildlife) and Idaho Rivers United v. US.

Army Corps ofEng'rs, 156 F. Supp. 3d 1252, 1261 (W.D. Wash. 2015) (noting
that a preliminary injunction premised on an ESA claim required the plaintiffs to
"demonstrate a likelihood of irreparable harm to the Pacific lamprey").) Plaintiffs
argue that demonstrating harm to the species is not a prerequisite for a preliminary

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injunction and that the Ninth Circuit has upheld an injunction on the same harms
alleged in this case. (Doc. 40 at 6-7.)
Plaintiffs are correct that there is nothing inherently insufficient in an
aesthetic injury like the one advanced here. All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1135 (9th Cir. 2011). In Cottrell, the Ninth Circuit determined that
A WR had demonstrated that its members' ability to "view, experience, and utilize"
the forest in its undisturbed state would be irreparably harmed in the absence of an
injunction. Id. However, Cottrell was not an ESA case. See id. at 1129-30.
It is also true that this Court has not always required a plaintiff to
specifically assert an injury to the species in order to satisfy the irreparable harm
requirement. E.g., All. for Wild Rockies v. Marten, 253 F. Supp. 3d 1108, 1111 (D.
Mont. 2017). In Marten, this Court found that A WR's members' "recreational,
scientific, spiritual, vocational and educations interests" in viewing "the area in its
undisturbed state" would be harmed absent an injunction when the claim for relief
arose under the ESA. Id. at 11110-11. However, preventing harm to lynx and
their critical habitat was a chief reason the Court granted the injunction. Id. at
1115. The Court specifically noted that "the entire Project area is within
designated occupied and core lynx habitat, as well as lynx critical habitat ....
Because this Project is located at the heart of lynx habitat, any revisions to the

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Lynx Amendment resulting from consultation could have profound repercussions
upon the species." Id.
As these cases illustrate, the irreparable harm inquiry is flexible as
"environmental injury, by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration, i.e. irreparable."
League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton,
752 F.3d 755, 764 (9th Cir. 2014) (quoting Lands Council v. McNair, 537 F.3d
981, 1004 (9th Cir. 2008) (en bane)). The Ninth Circuit has "never made a rule
that a plaintiff must challenge all related harms to maintain an ability to challenge
the harm that it views as the most serious." Id. at 765 (finding an irreparable harm
to the members' interest in the project area where an injunction was necessary to
stop the "logging of thousands of mature trees" in an ESA case). Nevertheless, the
harm prevented by entry of a preliminary injunction must legitimately relate to the
legal theory asserted in a case. Garcia, 786 F.3d at 744; Krueger, 40 F. Supp. 3d
at 1348-39.
Here, Plaintiffs assert that an injunction is necessary to prevent logging so
that its members may enjoy the forest in a natural state. Plaintiffs do not allege
that the Project will irreparably harm their members' ability to view or enjoy
grizzly bears in the Project area. Cf Rockies v. Marten, No. CV-15-99-M-BMM,
2016 WL 6901264, at *6 (D. Mont. Nov. 22, 2016) (finding irreparable harm

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under an ESA claim where plaintiffs asserted an injury to their members "interests
in looking for, viewing, studying, and enjoying ... lynx"). Plaintiffs do not assert
that grizzly bears or their habitat are likely to be irreparably harmed if the Project
is allowed to continue during the pendency of this litigation. 1 Nor can the Court
find evidence of ~rreparable harm to the species, given that the Tenmile Project is
located in a grizzly bear linkage zone (which is critical to the species survival in
the long term) but the Project's impacts are alleged to cause only short term
disruption. (Doc. 25 at 19.)
Finally, because the Project primarily targets dead or dying trees, the
irreparable harm asserted in this case-that "once logging and burning occurs, the
Forest Service cannot put the trees back on the stumps or unburn the trees"-is not
overly compelling. At this point, an injunction would only prevent the Forest
Service from doing what will occur through natural forces in the next few years.
(Doc. 36 at 19.)
In this case, the Court cannot find an allegation of irreparable harm that is
consistent with the legal theories asserted. Plaintiffs have, at best, alleged only the

Plaintiffs have already filed their motions for summary judgment. (See Docs. 43 and
55). Federal Defendants cross-motion and response to Plaintiffs' motions are due on November
15, 2019. (Doc. 20.) Plaintiffs' consolidated response and reply is due on December 20, 2019.
(Id.) This matter will be fully briefed and ready for a hearing by January 17, 2020. (Id.) All of
this is to say that the Court will render its decision before work begins again in the spring.
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possibility of harm, which is not sufficient for this Court to issue the
"extraordinary remedy" that is a preliminary injunction.
Having found that Plaintiffs fail to establish a likelihood of irreparable harm,
the Court need not address the remaining factor. Garcia, 786 F.3d at 746.
IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction (Doc.
24) is DENIED.
DATED this q U. day of October, 2019.

Dana L. Christensen, Chief Judge
United States District Court

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