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Friends of Wild Swan v. Christiansen

United States District Court, D. Montana

July 8, 2013

FRIENDS OF THE WILD SWAN, et al., Plaintiffs,
v.
VICKI CHRISTIANSEN, in her official capacity as Acting Regional Forester for the U.S. Forest Service, Region One et al., Defendants

Page 1198

[Copyrighted Material Omitted]

Page 1199

For Friends of the Wild Swan, a non-profit organization, The Swan View Coalition, a non-profit organization, Plaintiffs: Matthew Kellogg Bishop, LEAD ATTORNEY, Western Environmental Law Center, Helena, MT.

For 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, Defendants: Daniel J. Pollak, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Wildlife and Marine Resources Section, Washington, DC; Marissa Ann Piropato, LEAD ATTORNEY, Department of Justice, Washington, DC; Paul David Barker, Jr., LEAD ATTORNEY, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

For Daniel Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service, United States Fish & Wildlife Service, an agency of the United States Department of the Interior, Defendants: Daniel J. Pollak, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Wildlife and Marine Resources Section, Washington, DC; Paul David Barker, Jr., LEAD ATTORNEY, U.S. Department of Justice, Environmental and Natural Resources Division, Washington, DC; Marissa Ann Piropato, Department of Justice, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

OPINION

Dana L. Christensen, Chief United States District Judge.

Page 1200

ORDER

Plaintiffs Friends of the Wild Swan and the Swan View Coalition filed a motion for a temporary restraining order and preliminary injunction in this case on June 21, 2013. Plaintiffs filed a nearly identical motion seeking a temporary restraining order and preliminary injunction in a related case, CV 12-29-M-DLC-JCL, on June 20, 2013. The motions request temporary injunctions of the Spotted Bear River (12-29) and Soldier Addition (12-59) logging projects on the South Fork of the Flathead River (" South Fork" ). The parties filed cross-summary judgment motions in both cases, and those motions were referred to United States Magistrate Judge Jeremiah C. Lynch for findings and recommendations. Judge Lynch has issued findings and recommendations in both cases, and recommends denying Plaintiffs' summary judgment motions in each case, granting Defendants' motions, and allowing the logging projects to proceed as scheduled.

Plaintiffs recently objected to the findings and recommendations and their objections closely mirror their TRO arguments. This Court has carefully reviewed the findings and recommendations in both cases. Plaintiffs' arguments in the present motion and in their objections raise only two new issues not already addressed by Judge Lynch. First, Plaintiffs argue Defendants violated their obligation to consider " connected actions", " cumulative actions", and " similar actions" under 40 C.F.R. § 1508.25(a)(2) when determining the scope of the EIS. Second, Plaintiffs argue this Court's decision in Salix v. United States Forest Service, 944 F.Supp.2d 984, 2013 WL 2099811 mandates that both projects be enjoined. The Court will address the first issue and Plaintiffs' NEPA and NFMA claims pursuant to the Winter preliminary injunction factors, while the second issue is governed by the preliminary injunction analysis outlined recently by this Court in Alliance for the Wild Rockies v. Krueger, 12-55-M-DLC, 950 F.Supp.2d 1196, (June 25, 2013)(" Krueger " ). [1]

I. TRO and Preliminary Injunction Standard

Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of proving such a remedy is warranted by clear and convincing evidence. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). A preliminary injunction is appropriate if Plaintiffs establish (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary injunctive relief; (3) the balance of equities tips in their favor; and (4) injunction serves the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The parties thoroughly analyze all of Plaintiffs' claims in their TRO arguments. However, this Court will only provide in-depth analysis of the issues not ...


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