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Friends of Wild Swan v. United States Forest Service

United States District Court, D. Montana, Missoula Division

April 4, 2014

FRIENDS OF THE WILD SWAN and others, Plaintiffs,
v.
UNITED STATES FOREST SERVICE and others, Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

INTRODUCTION

Defendant United States Forest Service filed a second motion to dissolve the injunction in response to the Court's July 11, 2012 order. (Doc. 68.) That order included a remand to the Forest Service to prepare a Supplemental Environmental Assessment ("SEA") regarding the cumulative effects on lynx of the Colt Summit Restoration and Fuels Reduction Project ("the project" or "Colt Summit Project") and an injunction preventing the implementation of the project unless and until the SEA was completed. The injunction is dissolved for the reasons set forth below.

BACKGROUND

The Forest Service initially prepared an Environmental Assessment ("EA") for the Colt Summit Project which proposes, among other things, to manage vegetation on 2, 038 acres of commercial and non-commercial land, to restore four miles of streamside road, to construct 1, 300 feet of road, to reconstruct 5.1 miles of road, to brush and to winter haul on approximately 13.1 miles of road, to construct 2.1 miles of temporary and snow road, to decommission 28.4 miles of road, to replace one and to repair one aquatic barrier culvert, and to treat noxious weeds along approximately 34 miles of road. After reviewing the EA, the Forest Supervisor issued a finding of no significant impact for the project.

After the project was approved, Plaintiffs brought suit and made multiple claims for summary judgment alleging failures to comply with the National Environmental Policy Act ("NEPA"), to ensure compliance with the forest plan standards required by the National Forest Management Act ("NFMA"), and to comply with Section 7 of the Endangered Species Act ("ESA"). (Docs. 30 and 31.) One aspect of Plaintiffs' motion was granted on the limited grounds that the Forest Service violated NEPA by failing to adequately analyze the Colt Summit Project's cumulative effects on lynx. The defendants prevailed in all other respects. (See Doc. 50.) Within the order granting summary judgment, the Court deferred to the agency's determination of the scope of review to the Clearwater Lynx Analysis Unit ("LAU"), a sufficient size to consider the project's cumulative effects for management considerations by lynx specialists. ( Id. at 41-43.) The issue was remanded to the Forest Service "so that it may prepare a supplemental environmental assessment consistent with this order and the law." ( Id. at 46.)

On January 25, 2013, the Forest Service prepared a "supplement to the environmental assessment" and filed a motion to dissolve the injunction. (Doc. 60.) The supplement was non-responsive so the request to dissolve was denied because the Forest Service's document was not a required NEPA document. (Doc. 67.) The Service then prepared a Supplemental Environmental Assessment ("SEA"), and on December 19, 2013, filed a second motion to dissolve the injunction. (Doc. 68.) This motion is currently before the Court.

SUMMARY CONCLUSION

The motion to dissolve is accompanied by an SEA within the meaning of NEPA and the NEPA regulations. The SEA analyzes the total cumulative impacts to lynx in the Clearwater LAU although with less than ideal clarity. Plaintiffs' objections to the July 2012 order determining the geographic scope of the cumulative effects analysis cannot be considered, as the time limit for making such a motion has expired pursuant to Rule 60(c)(1).[1] The injunction will not remain in place pending the completion of the consultation ordered in Salix, as it is beyond the scope of the injunction to reconsider the Court's order that the ESA's Section 7 obligations were met and Plaintiffs did not show "likely and irreparable" harm necessary to maintain an injunction.

STANDARD

Relief from a final judgment is appropriate if the judgment has been "satisfied, released or discharged... or applying it prospectively is no longer equitable[.]" Fed.R.Civ.P. 60(b)(5). Rule 60(b)(5) "provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest." Horne v. Flores, 557 U.S. 433, 447 (2009) (internal quotation marks and citation omitted). A party moving to dissolve an injunction "bears the burden of establishing that changed circumstances warrant relief." Id.

ANALYSIS

A. The SEA is consistent with the Court's order and procedures required by law.

In the first motion to dissolve the injunction, the NEPA procedures were not followed in the submitted supplementary EA. (Doc. 50 at 46.) Here, Plaintiffs do not object to the procedure utilized in developing this SEA. The SEA was prepared, circulated and filed in the same manner as a draft and final statement. The SEA followed NEPA procedural requirements. As such, the SEA is a ...


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