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Swan View Coalition v. Weber

United States District Court, D. Montana, Missoula Division

December 8, 2014

SWAN VIEW COALITION, FRIENDS OF THE WILD SWAN, NATIVE ECOSYSTEMS COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
CHIP WEBER, Flathead National Forest Supervisor, 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, and UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of the Interior, Defendants

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

For Chip Weber, Flathead National Forest Supervisor, 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, United States Fish & Wildlife Service, an agency of the U.S. Department of the Interior, Defendants: Alison Finnegan, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC; Mark Steger Smith, LEAD ATTORNEY, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

ORDER

Donald W. Molloy, United States District Judge.

Defendants have moved pursuant to Rule 59(e) of the Federal Rules of Civil Procedure for clarification of this Court's Judgment and Order of September 25, 2014, (Docs. 51 and 52), which granted in part and denied in part the parties' cross-motions for summary judgment. For the reasons discussed below, Defendants' motion (Doc. 66) is granted in part and denied in part.

Pursuant to Rule 59(e), a court may alter or amend its judgment upon the motion

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by a party. Such a motion may be granted if the court is presented with newly discovered evidence, if the court committed clear error in its original decision, to prevent manifest injustice, or to account for an intervening change in controlling law. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). Federal district courts enjoy broad discretion in evaluating motions brought under Rule 59(e). McDowell v. Calderon, 197 F.3d 1253, 1256 (9th Cir. 1999) (en banc). " A post-judgment motion for clarification requesting a court to interpret the scope of its injunction is properly made under Rule 59(e) . . . . " Capacchione v. Charlotte-Mecklenburg Schs., 190 F.R.D. 170, 175 (W.D.N.C. 1999) (citing Birdsong v. Wrotenbery, 901 F.2d 1270, 1271-72 (5th Cir. 1990)).

Defendants raise three areas in which they believe clarification is necessary, including: (1) the nature of the injunction as it relates to the Agreed Operating Procedures and the extent of the directive to comply with the National Environmental Policy Act (" NEPA" ) and the Endangered Species Act (" ESA" ); (2) the effect of the injunction on site-specific projects; and (3) the steps that Defendants are required to take on remand in regards to the wolverine. Plaintiffs contend this Court's earlier order is clear on its face. In light of the concerns raised in Defendants' motion and Plum Creek Timber Company's motion for leave to file an amicus brief, (Doc. 70), Defendants are entitled to clarification of the scope of this Court's previous order.

A. Agreed Operating Procedures

Pursuant to this Court's order of September 25, 2014, the Forest Service is required to comply with the consultation requirements of Section 7 of the ESA with respect to those protected species affected on the lands covered by the Agreed Operating Procedures. Likewise, the Forest Service is required to follow the procedures outlined by NEPA for analyzing potential environmental effects, reasonable alternatives, and cumulative impacts on those lands subject to the Agreed Operating Procedures. The specific nature and extent of these analyses are dictated by applicable statutes, implementing regulations, and case law.

Existing site-specific projects approved or accepted pursuant to the Agreed Operating Procedures for which ground-disturbing activities were underway before the entry of this Court's September 25 Order may proceed as planned. Until the necessary analysis under NEPA and the ESA is complete, the Forest Service is enjoined from authorizing or accepting Harvest Plans for site-specific projects on the 111,740 acres subject to the Agreed Operating Procedures, including allowing such projects to proceed by default due to the Forest Service's failure to respond to a Harvest Plan.

Until the requisite analyses are performed, any project conducted on the 111,740 acres pursuant to the Agreed Operating Procedures will be at risk of violating Section 9 of the ESA should any take result. Defendants have raised concerns in their briefing that the Court's ruling in this matter threatens to unravel the Legacy Lands donation. Such fears appear premature at this juncture as, at this stage, the Court has compelled no substantive changes to Agreed Operating Procedures but merely required the Forest Service to take the procedural steps obligated by law. See Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1494, 1497 (W.D. Wash. 1992) ( " Difficulty of compliance will not permit an agency to avoid its duties under NEPA." ). In any case, the Forest Service's argument regarding the difficulties and potentially adverse consequences

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of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service's failure to follow the law in the first instance. Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed ...


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