Friends Swan v. Weber

• Decision Date: 24 September 2014
• Docket Number: 13–35819.,Nos. 13–35817,s. 13–35817
• Citation: 767 F.3d 936
• Parties: FRIENDS OF THE WILD SWAN, a nonprofit organization; The Swan View Coalition, a non-profit organization, Plaintiffs–Appellants, v. Chip WEBER, in his official capacity as Forest Supervisor for the Flathead National Forest; vicki christiansen, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; United States Forest Service, an agency of the United States Department of Agriculture; Daniel M. Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior, Defendants–Appellees. Friends of the Wild Swan, a nonprofit organization; The Swan View coalition, a non-profit organization, Plaintiffs–Appellants, v. Vicki Christiansen, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; Chip Weber, in his official capacity as Forest Supervisor for the Flathead National Forest; United States Forest Service, an agency of the United States Department of Agriculture; Daniel M. Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

767 F.3d 936

FRIENDS OF THE WILD SWAN, a nonprofit organization; The Swan View Coalition, a non-profit organization, Plaintiffs–Appellants,

v.Chip WEBER, in his official capacity as Forest Supervisor for the Flathead National Forest; vicki christiansen, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; United States Forest Service, an agency of the United States Department of Agriculture; Daniel M. Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior, Defendants–Appellees.

Friends of the Wild Swan, a nonprofit organization; The Swan View coalition, a non-profit organization, Plaintiffs–Appellants,

v.Vicki Christiansen, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; Chip Weber, in his official capacity as Forest Supervisor for the Flathead National Forest; United States Forest Service, an agency of the United States Department of Agriculture; Daniel M. Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. Fish & Wildlife Service, an agency of the United States Department of the Interior, Defendants–Appellees.

Nos. 13–35817, 13–35819.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 9, 2014–Seattle, Washington.

Filed Sept. 24, 2014.

Matthew K. Bishop (argued), Western Environmental Law Center, Helena, MT, for Plaintiffs–Appellants.

Michael W. Cotter, United States Attorney, and Mark Steger Smith, Assistant United States Attorney, District of Montana, Billings, MT; Christine R. Everett, Office of General Counsel, United States Department of Agriculture; Kathyrn Williams–Shuck and Amanda Koehler, Office of the Solicitor, United States Department of the Interior; Robert G. Dreher, Acting Assistant Attorney General, Andrew C. Mergen, J. David Gunter, Paul D. Barker, Jr., Rickey D. Turner, Daniel J. Pollak, and Matthew Littleton (argued), Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants–Appellees.

Before: MICHAEL DALY HAWKINS, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.

OPINION

HAWKINS, Circuit Judge:

These environmental appeals for injunctive relief bring virtually identical challenges to two logging projects in Montana's Flathead National Forest: the Weber case challenges the United States Forest Service's (“Forest Service” or “Service”) decision to authorize the Spotted Bear River Project, and the Christiansen case challenges the Soldier Addition II Project. Plaintiffs Friends of the Wild Swan and The Swan View Coalition (collectively, “Wild Swan”) appeal the district court's simultaneous denial of preliminary injunctions in both cases. Friends of the Wild Swan v. Weber, 955 F.Supp.2d 1191 (D.Mont.2013); Friends of the Wild Swan v. Christiansen, 955 F.Supp.2d 1197 (D.Mont.2013).

Wild Swan contends the district court abused its discretion by denying its motion for injunctive relief because the Forest Service's approval of these projects violated the National Environmental Policy Act (“NEPA”), the National Forest Management Act (“NFMA”) and the Endangered Species Act (“ESA”). Wild Swan argues the court abused its discretion by failing to recognize its likelihood of success on the merits and in finding a lack of irreparable harm in the absence of an injunction. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The Soldier Addition Project was initially proposed in 2008. The project is located in the 2.4 million acre Flathead National Forest, and would affect approximately 3,285 acres on the west side of the Flathead River's South Fork. The project would entail a prescribed burn of 1,333 acres, harvest of 1,128 acres of timber, thinning of 823 acres and clearing flammable vegetation within 1.3 acres. The Soldier Addition Project's stated goals are to restore forest and vegetation to a historical condition that would be more resilient and resistant to wildfire, disease, and insect infestation, including improving the availability of seasonal habitats and proactively treating trees at risk of, or experiencing, high mortality.

The Forest Service designated an “action area” and then investigated whether the project would adversely affect threatened species or critical habitat under the ESA, including consultation with the U.S. Fish and Wildlife Service (“USFWS”). That agency prepared a Biological Assessment with respect to bull trout and its critical habitat and concluded the proposed action was not likely to have an adverse effect. USFWS prepared a formal Biological Opinion addressing the project's impact on lynx critical habitat and grizzly bears.

The Forest Service was also required to comply with the NFMA forest plan for the area, which included directions for the management of lynx, fisher (a member of the weasel family), and westslope cutthroat trout. Following NEPA's procedural requirements, the Forest Service prepared an Environmental Assessment (“EA”) to analyze potential impacts, including compliance with the forest plan, and to determine whether a full-blown Environmental Impact Statement (“EIS”) was required or whether the agency could instead issue a Finding of No Significant Impact (“FONSI”).

After proposing the Soldier Addition Project, the Forest Service received comments from Wild Swan and other interested parties and issued its decision authorizing the project in May 2010. Wild Swan challenged the decision in district court on NEPA and NFMA grounds, and the Forest Service decided to withdraw its authorization in order to reexamine its environmental analysis. It then issued a new EA, considered additional comments, and ultimately issued a new FONSI and reauthorized the project in December 2011.

In the midst of the decision-making process on the Soldier Addition Project, in 2009 the Forest Service proposed another nearby project on the other side of the South Fork of the Flathead River, known as the Spotted Bear River Project. Similar to the Soldier Addition Project, the Spotted Bear Project proposed prescribed burns of 1,346 acres, harvest of up to 1,193 acres of timber, thinning of up to 660 acres and added an additional five weeks to the motorized access season. The Spotted Bear Project also would serve similar purposes as the Soldier Addition Project, such as improving habitat and increasing resistance to fire and/or disease.

The Spotted Bear Project followed a similar procedural path, gathering input from the USFWS in the form of Biological Assessments and Biological Opinions, comments on the project from Wild Swan and other interested parties, and preparation of an EA for the project. The Forest Service issued a FONSI and authorized the Spotted Bear Project in August 2011.

The initial Soldier Addition Project EA was completed before the Spotted Bear Project was proposed; however, in its revised EA (prepared after withdrawing the initial approval on the Soldier Addition), the Forest Service acknowledged the Spotted Bear Project, but concluded there would be no significant cumulative adverse effects. The Forest Service reached the same conclusion regarding the Spotted Bear Project.

After unsuccessfully appealing both Forest Service decisions to the Regional Forester, Wild Swan brought two suits in district court regarding the two projects, raising virtually identical claims that the Forest Service had violated NEPA, NFMA, and the ESA. On cross-motions for summary judgment, the magistrate judge issued lengthy reports recommending awarding judgment to the United States on all claims.

Wild Swan not only objected to the magistrate judge's recommendations, but also moved for a Temporary Restraining Order and a Preliminary Injunction to halt all project activity pending disposition of the cases on the merits. This motion for injunctiverelief was prompted by a Forest Service notice that it was proceeding with project implementation by seeking bids for the “Tin Mule” timber sale, which would involve logging a portion of the units in each project (ten of sixty-two units in Spotted Bear and thirty-two of forty-nine units in Soldier Addition). In both cases, the district court denied the motion for preliminary injunction, finding Wild Swan had not demonstrated a likelihood of success on the merits, had not shown irreparable harm was likely in the absence of an injunction, and that the balance of equities tipped in favor of the Forest Service. Wild Swan appealed.

STANDARD OF REVIEW

We review the denial of preliminary injunctive relief for abuse of discretion. Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.2011). An abuse of discretion occurs when the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940, 944 (9th Cir.2013).

To obtain a preliminary injunction, a party must show that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “[I]f a plaintiff can only show that there are ‘serious questions going to the merits'—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir.2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011)).¹

Wild Swan's underlying substantive claims are reviewed under the Administrative Procedure Act, which allows ...