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Alliance for the Wild Rockies v. Kruger

United States District Court, D. Montana, Missoula Division

April 23, 2014

ALLIANCE FOR THE WILD ROCKIES, NATIVE ECOSYSTEMS COUNCIL, Plaintiffs,
v.
FAYE KRUGER, Regional Forester of Region One of the U.S. Forest Service, UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, and U.S. FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants

For Alliance for the Wild Rockies, Native Ecosystems Council, Plaintiffs: Rebecca Kay Smith, LEAD ATTORNEY, PUBLIC INTEREST DEFENSE CENTER, Missoula, MT; Timothy M. Bechtold, LEAD ATTORNEY, BECHTOLD LAW FIRM, Missoula, MT.

For Faye Krueger, Regional Forester of Region One of the U.S. Forest Service, United States Forest Service, an agency of the U.S. Department of Agriculture, U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior, Defendants: Daniel J. Pollak, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Wildlife and Marine Resources Section, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

OPINION

Page 1053

ORDER

Dana L. Christensen, Chief United States District Judge.

Before the Court is Defendants' motion to dissolve the injunction issued on June 24, 2013. Defendants argue the injunction should be lifted because they have complied with the Court's order on remand by remedying their procedural shortcut regarding Section 7 of the Endangered Species Act (" ESA" ). Plaintiffs oppose the motion, contending Defendants' consultation was inadequate, the biological assessment fails to address the wolverine, and for their previously argued reasons involving impacts to grizzly bears and elk habitat. Defendants' motion will be granted and the injunction will be dissolved.

I. Background

Plaintiffs' complaint sought to enjoin the Cabin Gulch Vegetation Treatment Project (" Project" ) for many reasons pursuant to the ESA, NEPA, and NFMA. The Court granted Plaintiffs' motion for summary judgment based on their argument that Defendants violated the ESA by improperly substituting an occupancy standard in determining whether lynx are a species that " may be present" in the Project area. The Project was therefore enjoined and remanded to the agencies to reexamine whether lynx " may be present" under the appropriate standard, and, if so, to carry out consultation pursuant to ESA Section 7.

Defendants reconsidered and determined that lynx are a species that " may be present" within the Project area. ESA Section 7 consultation was performed, and Defendants concluded that the Project was not likely to have significant adverse effects on lynx. In so concluding, the Fish and Wildlife Service (" FWS" ) revised its species list for the Helena National Forest to include lynx as a possible transient species. (Doc. 54-1.) The Forest Service then prepared a biological assessment in November 2013. (Doc. 54-2.) The biological assessment found the Project was not likely to adversely affect lynx, and FWS agreed with this conclusion. Defendants

Page 1054

contend that this concurrence fulfilled their obligations under the ESA and the Court's remand, obviating the need for a continued injunction of the Project.

II. Standard of Review

Courts may relieve a party from a final judgment or order if the judgment has been satisfied, released, discharged, or its application is no longer equitable. Fed.R.Civ.P. 60(b)(5). The party seeking dissolution of the injunction bears the burden of establishing that a significant change in the facts or law has occurred. Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000). " [O]nce a party carries this burden, a court abuses its discretion when it refuses to modify an injunction or consent decree in light ...


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