Pacific Rivers Council v. Thomas, Civ. No. 94-0159-S-DAE.

• Decision Date: 12 January 1995
• Docket Number: Civ. No. 94-0159-S-DAE.
• Citation: 873 F. Supp. 365
• Parties: PACIFIC RIVERS COUNCIL, and the Wilderness Society, Plaintiffs, v. Jack Ward THOMAS, in his official capacity as Chief of the United States Forest Service; and United States Forest Service, Defendants. and Intermountain Forest Industry Association; Shearer Lumber Products; Boise Cascade Company; Associated Logging Contractors; Hecla Mining Company; Meridian Gold Company; and Thompson Creek Mining Company, Defendants-Intervenors.
• Court: U.S. District Court — District of Idaho

873 F. Supp. 365

PACIFIC RIVERS COUNCIL, and the Wilderness Society, Plaintiffs, v. Jack Ward THOMAS, in his official capacity as Chief of the United States Forest Service; and United States Forest Service, Defendants and Intermountain Forest Industry Association; Shearer Lumber Products; Boise Cascade Company; Associated Logging Contractors; Hecla Mining Company; Meridian Gold Company; and Thompson Creek Mining Company, Defendants-Intervenors.

Civ. No. 94-0159-S-DAE.

United States District Court, D. Idaho.

January 12, 1995.

Todd D. True, Adam J. Berger, Kristen L. Boyles, Sierra Club Legal Defense Fund, Inc., Seattle, WA, Laird J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for Pacific Rivers Council.

Albert P. Barker, Hawley Troxell Ennis & Hawley, Boise, ID, Elizabeth H. Temkin, Scott W. Hardt, Ballard Spahr Andrews & Ingersoll, Denver, CO, for Hecla Min. Co.

B. Newal Squyres, Brian J. King, Murray D. Feldman, Holland & Hart, Boise, ID, Laurie L. Korneffel, Dean R. Massey, Parcel Mauro Hultin & Spaanstra, Denver, CO, Michael J. Brennan, C. William Groscup, Holland & Hart, Washington, DC, for Meridian Gold Co.

Scott L. Campbell, Elam & Burke, Boise, ID, Laurie L. Korneffel, Dean R. Massey, Parcel Mauro Hultin & Spaanstra, Denver, CO, for Thompson Creek Min. Co.

D. Marc Haws, Asst. U.S. Atty., Boise, ID, for Jack Ward Thomas.

ORDER GRANTING INJUNCTIVE RELIEF AND DENYING SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

I. INTRODUCTION

A. Procedural History.

Plaintiff conservation organizations filed their Complaint for Declaratory Judgment and Injunctive Relief against Jack Ward Thomas, Chief of the United States Forest Service, and the United States Forest Service (collectively "USFS") on April 12, 1994. In their first claim for relief, plaintiffs challenge the failure of the USFS to consult with the National Marine Fisheries Service ("NMFS") under § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), on the effects of the Land and Resource Management Plans ("LRMPs") for the Boise, Challis, Nez Perce, Payette, Salmon, and Sawtooth National Forests in the State of Idaho on endangered Snake River sockeye salmon and Snake River spring/summer and fall chinook salmon.

In their second claim for relief, plaintiffs challenge the failure of the USFS to consult with NMFS under § 7(a)(2) regarding effects on protected salmon of individual timber, grazing, mining, and road building projects implemented or being implemented by the LRMPs at issue. In their third claim for relief, plaintiffs allege that the USFS is in violation of § 7(d) of the ESA, 16 U.S.C. § 1536(d), by carrying out and allowing timber, range, mining, and road projects to continue that may adversely affect the endangered salmon prior to completing consultation with NMFS on both the individual projects and the LRMPs.

In their fourth and final claim for relief, plaintiffs allege that the USFS is in violation of § 9 of the ESA, 16 U.S.C. § 1538, and its implementing regulations, 50 C.F.R. §§ 222.21 and 227.21, by carrying out and allowing timber, range, mining, and road projects to continue on the national forests that will incidentally take endangered species of salmon, without obtaining an "incidental take" statement from NMFS. The court notes that, in connection with each claim for relief under the ESA, plaintiffs have also alleged a concomitant violation of the Administrative Procedures Act ("APA"), specifically 5 U.S.C. § 706.

When this case was filed, it was initially assigned to Senior United States District Judge Harold L. Ryan. In its early stages, Judge Ryan allowed certain interested parties to intervene. The intervenors have been grouped as follows. The "Mining Group" consists of Hecla Mining Company, Meridian Gold Company, and Thompson Creek Mining Company. The "Timber Group" consists of Intermountain Forest Industry Association, Shearer Lumber Products, Boise Cascade Company, and Associated Logging Contractors. All of these entities were granted permissive intervention only, subject to certain terms and conditions.¹

On August 19, 1994, plaintiffs filed a motion for preliminary injunction, and on September 13, 1994, the USFS filed a motion for partial summary judgment. After certain extensions of time and other accommodations allowed by the court, these motions were fully briefed and submitted on October 11, 1994. Then on November 2, 1994, the case was reassigned to this court for all further proceedings.²

On December 6, 1994, the court held a hearing on plaintiffs' motion for preliminary injunction and the USFS's motion for partial summary judgment. Accordingly, these motions are now ripe for decision. Briefly, the facts of the case are as follows.

B. Facts of the Case.

The Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614, requires the USFS to prepare Land and Resource Management Plans or LRMPs for individual units of the national forest system. The LRMPs at issue in this case and the dates of their adoption are as follows: (1) Boise National Forest LRMP — April 27, 1990; (2) Challis National Forest LRMP — June 3, 1987; (3) Nez Perce National Forest LRMP — October 8, 1987; (4) Payette National Forest LRMP — May 6, 1988; (5) Salmon National Forest LRMP — January 11, 1988; and (6) Sawtooth National Forest LRMP — September 6, 1987.

LRMPs are broad program frameworks which establish basic guidelines for USFS's management of a national forest for up to fifteen years at a time. They set forth the essential planning elements and standards which will govern future site-specific decisions. See 16 U.S.C. § 1604.

The Snake River sockeye salmon were listed by NMFS as an endangered species protected by the ESA on November 21, 1991. See 56 Fed.Reg. 58619 (1991). NMFS listed the spring/summer and fall chinook salmon as threatened on April 22, 1992. See 57 Fed.Reg. 14654 (1992). Then on August 18, 1994, NMFS took emergency action and listed the spring/summer and fall chinook salmon as endangered species. See 59 Fed.Reg. 42529 (1994). The listing announcements cited the destruction of spawning habitat by logging, grazing, mining, road building and other land disturbing activities as a significant factor in the decline of the species.

The LRMPs at issue in this action establish the management standards and guidelines for all activities on the national forests. The LRMPs provide the basis for implementation of all specific projects on vast expanses of public lands, and these lands encompass water drainages which are critical to the survival of these endangered species of salmon. Nevertheless, when the salmon were listed as endangered and threatened, the USFS did not reinitiate consultation on the LRMPs as required under § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2).

The same circumstances arose with respect to LRMPs for two national forests in Oregon, the Wallowa-Whitman and the Umatilla National Forests. Despite the listing of the salmon, the USFS also did not reinitiate consultation with NMFS on these LRMPs. Consequently, these same plaintiff conservation organizations, with others, filed suit against the USFS in the District of Oregon. That suit culminated in a specific pronouncement by the Ninth Circuit Court of Appeals that the USFS must reinitiate consultation with NMFS on the LRMPs. See Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1053-56 (9th Cir.1994). This directive from the Ninth Circuit prompted the USFS to reinitiate consultation with NMFS on the LRMPs at issue in this case on September 9, 1994.

II. ANALYSIS

A. The Preliminary Injunction Standard.

It is well established that the district court generally has broad discretion in deciding whether or not to issue a preliminary injunction. Appellate review is limited to ensuring that the district court did not abuse its discretion and/or base its decision on an erroneous legal standard or clearly erroneous finding of fact. See Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985); Sierra Club v. Marsh, 816 F.2d 1376, 1381-81 (9th Cir. 1987). The Marsh case is particularly instructive here, because in that case the Ninth Circuit addressed preliminary injunctions in the context of the ESA.

In Marsh, the court first laid out the traditional requirements for a preliminary injunction. These requirements are "(1) a likelihood of success on the merits and the possibility of irreparable injury or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party seeking relief." Sierra Club v. Marsh, 816 F.2d at 1382. The court then declared:

This is not the test for injunctions under the Endangered Species Act. In TVA v. Hill, 437 U.S. 153, 173, 193-95, 98 S.Ct. 2279, 2291, 2301-02, 57 L.Ed.2d 117 (1978), the Supreme Court held that Congress had explicitly foreclosed the exercise of traditional equitable discretion by courts faced with a violation of section 7 of the ESA.... Congress considered and rejected language that would have permitted an agency to weigh the preservation of species against the agency's primary mission.... In Congress's view, projects that jeopardized the continued existence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hardships and the public interest tip heavily in favor of endangered species.... We may not use equity's scales to strike a different balance.

Id. at 1383 (emphasis added) (citations omitted).

It is worth noting the specific language of § 7 which provides as follows:

Each Federal agency shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of

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