United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, Regional Forester, USFS Region One, U.S. FOREST SERVICE, and U.S. FISH & WILDLIFE SERVICE, Defendants.
L. Christensen, Chief Judge
the Court is Plaintiffs' Motion for Preliminary
Injunction/Temporary Restraining Order (Doc. 6). The Motion
for a temporary restraining order is supported by the
declaration of Michael Garrity, the Executive Director of
Alliance for the Wild Rockies, and an excerpt of the Flathead
National Forest Plan Amendment 21 Final Environmental Impact
Statement. (Docs. 6-1; 6-2.) For the following reasons, the
Court will grant Plaintiffs Motion in part and reserve ruling
issue is United States Forest Service's North Hebgen
Project in the Custer-Gallatin National Forest, which
Plaintiffs submit may commence as soon as July 1, 2018. (Doc.
6 at 8.) Plaintiffs allege that Defendants failed to conduct
Endangered Species Act ("ESA") consultation on
Gallatin Forest Plan Amendment 51, the Forest Plan
controlling the North Hebgen Project, despite the fact that
the changes included in the Amendment "collectively
reduce the quality and amount of 'old growth'"
forest to the detriment of lynx, a species designated as
threatened under the ESA. (Id. at 26.) At this
juncture, Defendants have not yet responded to Plaintiffs
Motion. Nonetheless, the Court is satisfied that, pursuant to
Federal Rule of Civil Procedure 65(b), a temporary
restraining is warranted in this instance.
purpose of a preliminary injunction is to preserve the status
quo and prevent the "irreparable loss of rights"
before a final judgment on the merits, while the purpose of a
temporary restraining order is to preserve the status quo
until a hearing may be held on the appropriateness of a
preliminary injunction. See Textile Unlimited, Inc. v. A.
BMH and Co., 240 F.3d 781, 786 (9th Cir. 2001); Reno
Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31
(9th Cir. 2006). Both remedies are extraordinary and should
not be awarded as a matter of right, but only "upon a
clear showing that the plaintiff is entitled to such
relief." Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008).
standards for both a temporary restraining order and a
preliminary injunction are the same. Plaintiff must establish
"that [it] is likely to succeed on the merits, that [it]
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in
[its] favor, and that an injunction is in the public
interest." Id. at 20. However, in ESA cases
such as this one, the test is altered so that "the
equities and public interest factors always tip in favor of
the protected species." Cottonwood Envtl. Law Ctr.
v. USFS, 789 F.3d 1075, 1090-91 (9th Cir. 2015). As the
Court is presently without the benefit of Defendants'
argument as to the inapplicability of this altered test, it
is satisfied that the public interest and balance of equities
factors weigh in favor of a temporary restraining order.
Ninth Circuit has established that demonstrating
"irreparable injury should not be an onerous task for
plaintiffs." Id. (citing 16 U.S.C. §
1531). Indeed, Plaintiffs' expressed desire to visit the
area in an undisturbed state is all that is required to
sufficiently allege harm under the ESA. Alliance for Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
2011). Here, Plaintiffs have expressed just such a desire
through the declaration of Michael Garrity. (Doc. 6-1 at
3-5.) As further explained by Garrity, "[i]f operations
are allowed to proceed as planned, the area will be
irreversibly degraded because once logging occurs, the Forest
Service cannot put the trees back on the stumps, and our
interests in the area will be irreparably harmed."
(Id. at 5.) Consequently, this factor weighs in
favor of granting a temporary restraining order.
questions on the merits" are those questions that
present a "fair ground for litigation and thus for more
deliberative investigation." Republic of the
Philipines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.
1988). Here, Plaintiffs have presented questions concerning
Defendants' compliance with the directives of the ESA.
Based upon the Court's preliminary review of
Plaintiffs' claims and the Court's experience with
similar litigation concerning the ESA, Plaintiffs'
questions are serious in that the resolution of these
questions necessitates "deliberative investigation"
and further litigation.
Defendants have not yet been heard on this Motion, given the
short time until the project is anticipated to commence, the
irreparable injury apprehended by the initiation of
operations, and the need to address Plaintiffs' ESA
claims, the Court finds that a temporary restraining order is
appropriate to maintain the status quo until the Court can
have a hearing on this matter. A temporary restraining order
"expires at the time after entry-not to exceed 14
days-that the court sets, unless before that time the court,
for good cause, extends it for a like period or the adverse
party consents to a longer extension." Fed.R.Civ.P.
65(b)(2). The Court finds that the extension permitted in the
rule is necessary in this case because the Court's
criminal docket prohibits the scheduling of a hearing on the
requested preliminary injunction within the initial 14-day
period allotted by the rule. Accordingly, IT IS ORDERED that
Plaintiffs' Motion (Doc. 6) is GRANTED IN PART.
Plaintiffs' Motion is GRANTED to the extent that it
requests a temporary restraining order. Defendants are
temporarily restrained and enjoined from implementing the
North Hebgen Project. This Order shall remain in effect for
twenty-three days from this date.
FURTHER ORDERED that the Court reserves ruling on
Plaintiffs' Motion as far as it requests a preliminary
injunction until the time herein set for a hearing on this
FURTHER ORDERED that a hearing on Plaintiffs' request for
a preliminary injunction is set for July 20, 2018, at 1:30
p.m. in ...