Alliance for the Wild Rockies v. Marten

• Citation: 253 F.Supp.3d 1108
• Decision Date: 30 May 2017
• Docket Number: CV 17-21-M-DLC.
• Parties: ALLIANCE FOR the WILD ROCKIES, Native Ecosystems Council, Plaintiffs, v. 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.
• Court: U.S. District Court — District of Montana

253 F.Supp.3d 1108

ALLIANCE FOR the WILD ROCKIES, Native Ecosystems Council, Plaintiffs,

v.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.

CV 17-21-M-DLC.

United States District Court, D. Montana, Missoula Division.

Signed May 30, 2017

Kristine Marie Akland, Akland Law Firm, PLLC, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Rebecca Kay Smith, Missoula, MT, for Plaintiffs.

Mark Steger Smith, U.S. Attorney's Office, Billings, MT, Melissa Anne Hornbein, U.S. Attorney's Office, Helena, MT, John H. Martin, U.S. Department of Justice, Denver, CO, for Defendants.

ORDER

Dana L. Christensen, Chief Judge

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.

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 of 0.9 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 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. U.S. 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 the Court's determination that section 7 consultation must be reinitiated. Cottonwood Envtl. L. Ctr. v. U.S. Forest Serv. , 789 F.3d 1075, 1088 (9th Cir. 2015), cert. denied, ––– U.S. ––––, 137 S.Ct. 293, 196 L.Ed.2d 213 (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 Forest 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 129 S.Ct. 365 (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 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 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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 species."); see also Tennessee Valley Auth. v. Hill , 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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 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...