United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
MARY C. ERICKSON, Custer Gallatin National Forest Supervisor, LEANNE MARTEN, Regional Forester of Region One of the U.S. Forest Service, THOMAS L. TIDWELL, Chief of the U.S. Forest Service, an agency of the Department of Agriculture, and the U.S. FISH & WILDLIFE SERVICE, an agency of the Department of the Interior, Defendants.
W. JWCMOY, DISTRICT JUDGE UNITED STATES DISTRICT COURT
Native Ecosystems Council and Alliance for the Wild Rockies
(collectively "Native Ecosystems Council") have
moved for an injunction pending appeal, (Doc. 51), of the
Court's August 1, 2018, order granting the Forest Service
Defendants' Motion for Summary Judgment, (Doc. 25).
Native Ecosystems Council asks the Court to enjoin the Forest
Service's Smith Shields Forest Health Project
("Project") in the Crazy Mountains near Wilsall,
Montana. Native Ecosystems Council's motion is denied.
motion for an injunction pending appeal is considered under
the same standard as a motion for a preliminary injunction.
See Tribal Vill. of Akutan v. Hodel, 859 F.2d 662,
663 (9th Cir. 1988). A party seeking an injunction must show
(1) a likelihood of success on the merits, (2) it is likely
to suffer irreparable harm, (3) the balance of equities
favors an injunction, and (4) an injunction is in the public
interest. See Winter v. Natural Res. Def. Council,
555 U.S. 7, 20 (2008). The last two factors merge when the
federal government is the opposing party. Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
seeking an injunction "must establish that irreparable
harm is likely, not just possible."
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). The other factors are then
assessed on a sliding scale. Id. at 1135. For
example, when the "balance of hardships tips sharply in
the plaintiffs favor," an injunction may issue on a
showing of only "serious questions going to the
merits," and not the stricter showing of
"likelihood of success on the merits." Id.
Native Ecosystems Council Has Not Shown a Likelihood of
Success on the Merits.
Ecosystems Council contends that it is likely to succeed on
the merits because the Project will not maximize the
retention of old-growth and large trees as required by the
Healthy Forests Restoration Act ("HFRA"). However,
as the Court more fully explained in its previous order,
(Doc. 47), the Project complies with HFRA.
calls for the exercise of Forest Service expertise in
determining how to maximize old-growth retention "as
appropriate for the forest type," 16 U.S.C. §
659lb(b)(1)(A), and the administrative record supplies a
reasoned basis for the Forest Service's determination
here. See Motor Vehicle Mfs. Ass 'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). First, the
Forest Service has identified units in the Project area with
possible old growth and has not proposed any harvest or
treatment in old growth or potential old growth stands. (Doc.
47 at 48; SmithShields 001185.) Further, the Forest
Service's Decision Memo comports with HFRA's
requirements. (Doc. 47 at 48; SmithShields 014434.)
support its claim that the Project does not comply with HFRA,
Native Ecosystems Council relies on a map from 2006 and asks
the Court to take "judicial notice of the logical
proposition that old growth habitat does not become less
old with the passage of time." (Doc. 52 at 9.)
However, the map is not part of the record and does not fit
within the narrow circumstances permitting extra-record
evidence. See Fence Creek Cattle Co. v. U.S. Forest
Service, 602 F.3d 1125, 1131 (9th Cir. 2010). The Court
denied Native Ecosystems Council's motion to supplement
the record on these grounds. (Doc. 47 at 20.) Further, Native
Ecosystems Council is incorrect that old growth habitat never
becomes less old- old growth habitat becomes less old if it
is destroyed by fire or disease.
Ecosystems Council also contends that it is likely to succeed
on the merits because the Forest Service did not adequately
consider elk hiding cover when evaluating elk security areas
in the Project. However, as the Court more fully explained in
its previous order, (Doc. 47), the Forest Service did analyze
the Project in part based on hiding cover. SmithShields
002616-2617. Unlike Native Ecosystems Council's
contention, hiding cover is only one of several factors that
may contribute to elk security, and the Forest Service took
the requisite hard look. (See Doc. 47 at 41.)
Ecosystems Council has not shown a likelihood of success, nor
has it made the lesser showing that serious questions exist,
as to the Project's compliance with HFRA or the Forest
Service's treatment of elk hiding cover.
Native Ecosystems Council Has Not Shown that Irreparable Harm
Ecosystems Council contends that irreparable harm is likely
absent an injunction because the "potential
clearcutting" of old-growth will render it unable to
"view, experience and utilize the areas in their
undisturbed state." (Doc.52 at 12-13.) However, Native
Ecosystems Council offers no evidence that such clearcutting
will occur, never mind that it is likely. ...