United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, UNITED STATES FOREST SERVICE, and UNITED STATES FISH & WILFLIFE SERVICE, Defendants.
L. CHRISTENSEN, CHIEF JUDGE.
the Court is Plaintiffs' Motion for an Injunction Pending
Appeal (Doc. 51) of the Court's July 31, 2018 order
granting Defendants' Motion for Summary Judgment (Doc.
47) regarding the Telegraph Project (the
"Project"). Plaintiffs file this motion because
logging and road construction may commence shortly whereas
its appeal is not likely to be resolved for quite some time.
preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Natural Res. Def.
Council, 555 U.S. 7, 24 (2008). A petitioner seeking an
injunction, whether it is an injunction pending an appeal or
otherwise, must show: (1) it is likely to suffer irreparable
harm absent a preliminary injunction; (2) that it is likely
to succeed on the merits; (3) that the balance of equities
tips in its favor; and (4) that an injunction is in the
public interest. Id. at 20. Petitioners seeking an
injunction must show more than the possibility of irreparable
harm. Id. at 22. Petitioners must demonstrate that
"irreparable injury is likely in the absence of
an injunction." Id. (emphasis in original).
Once the petitioner shows that irreparable harm is likely,
the other factors are assessed on a sliding scale.
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134-35 (9th Cir. 2011). For instance, if, after
demonstrating likely irreparable harm, a petitioner also
makes a strong showing on the public interest and equities
prongs, then an injunction may issue so long as the
petitioner raises "serious questions going to the
merits." Id. A petitioner in such cases is thus
relieved of the requirement that it demonstrate that it is
likely to succeed on the merits, and may succeed on the
lesser "serious questions" standard. Id.
When the federal government is a party, the balance of
equities and public interest factors may be merged.
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092
(9th Cir. 2014).
cases, the four-part test is altered so that the public
interest and balance of equities factors always weigh in
favor of the plaintiffs request for an injunction.
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789
F.3d 1075, 1090-91 (9th Cir. 2015). "[T]he issues of
likelihood of success and irreparable injury represent two
points on a sliding scale in which the required degree of
irreparable harm increases as the probability of success
decreases." Humane Soc 'y of U.S. v.
Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008).
Notwithstanding the above, the Plaintiffs must still
"make a showing on all four prongs."
Cottrell, 632 F.3d at 1134-35.
argue that Defendants' success on summary judgment
"is not dispositive of whether Plaintiffs should receive
an injunction pending appeal" in this case, and baldly
assert that they have raised "serious questions"
regarding the merits of the Court's decision. (Doc. 52 at
11.) Yet, the arguments raised in support of this assertion
regarding their ESA and NFMA claims are the very same
arguments Plaintiffs raised in their Motion for Summary
Judgment (Doc. 12 at 15-24, 26-36) and were largely
reiterated in their objections to Judge Lynch's findings
and recommendation, recommending that Plaintiffs' claims
lacked merit (Doc. 39 at 13-14, 22-25). Having failed to
assert specific grounds as to where or why
this Court erred in its decision, Plaintiffs have failed to
meet their burden to demonstrate that there are "serious
questions" which warrant an injunction pending appeal.
argue that the Project irreparably harms its members'
esthetic, recreational, scientific, spiritual, vocational,
and educational interests in the Project area because it will
harm its members ability to view, experience, and utilize the
area in an undistributed state. (Doc. 52 at 8-9; Doc. 52-1 at
3.) The harm alleged by Plaintiffs is the harm inherent in
removing something irreplaceable from the forest landscape.
See Amoco Prod. Co. v. Village of Gambell, 480 U.S.
531, 545 (1987) ("Environmental injury ... is often
permanent or at least of long duration, i.e.
irreparable."); see also Neighbors of Cuddy Mountain
v. U.S. Forest Serv., 137 F.3d 1372, 1382 (9th Cir.
1998) ("The old growth forests plaintiffs seek to
protect would, if cut, take hundreds of years to
reproduce.") (citation omitted)). Here, Plaintiffs
allegation of harm is unpersuasive because the forest is
already in a disturbed state from the mountain pine beetle
outbreak. The Project is designed to respond to this outbreak
and targets areas of the forest that are overstocked,
diseased, dying, or already dead. (Doc. 53 at 22.) Over 94%
of the Project area has experience more than 90% mortality.
(Doc. 53-1 at 3). Most or all of the trees will die and fall
down even without the Project. (Id. at 6-7.)
Regardless of the status of the Project, it will take several
decades before these trees grow back. For this reason,
Plaintiffs have not demonstrated that absent an injunction,
the Project risks "irreparable harm" to
Plaintiffs' members' interests.
Plaintiffs must demonstrate an adequate showing on all four
prongs of the Winter test and has failed to do so on
the first two prongs, the Court need not discuss the balance
of harms and public interest with respect to Plaintiffs'
Court denies the motion.
IT IS ORDERED that Plaintiffs motion for injunction pending