United States District Court, D. Montana, Missoula Division
W. Molloy, District Judge
the United States Forest Service, the United States Fish and
Wildlife Service, and their official representatives
(collectively "the agencies") move under Federal
Rule of Civil Procedure 60(b)(5) to dissolve the injunction
against the Miller West Fisher Project ("Miller
Project"). (Doc. 112.) The agencies argue that
dissolving the injunction is warranted because their Final
Supplemental Environmental Impact Statement ("Final
Supplemental EIS") and new Record of Decision for the
Miller Project comply with this Court's remand order
instructing them to address the deficiencies in the
administrative record. In opposition, plaintiff Alliance for
the Wild Rockies ("Alliance") argues that the
agencies have failed to address a violation of Section 7 of
the ESA. Alliance concedes, and the administrative record
supports, that the other violations have been resolved. The
motion to dissolve the injunction is granted and the
injunction is dissolved.
action commenced in 2009 when Alliance sought judicial review
of the Miller Project, the Grizzly Project, and the Little
Beaver Project on the Kootenai National Forest under the
Administrative Procedure Act ("APA"). Alliance
alleged the projects violated the Endangered Species Act
("ESA"), the National Forest Management Act
("NFMA"), and the National Environmental Policy Act
("NEPA"). On June 29, 2010, the Court granted
summary judgment for Alliance on five claims applicable to
the Miller Project. (Doc. 44.) Specifically, the Court held
that the agencies (1) violated Section 9 of the ESA because
the Miller Project would take grizzly bears beyond that
permitted by the incidental take statement, (2) violated
Section 7 of the ESA by concluding that unpermitted take was
"not likely to adversely affect" grizzly bear and
failing to substantiate their conclusion that helicopter
logging was "not likely to adversely affect"
grizzly bear, (3) violated NFMA by failing to show that the
Miller Project was consistent with the Kootenai Forest
Plan's requirement that projects be compatible with
grizzly bear needs, (4) violated NEPA by failing to explain
why analyzing cumulative effects at the Bear Management Unit
level was proper, and (5) violated NEPA by relying on the
Wakkinen and Kasworm study ("Wakkinen study") to
set grizzly bear habitat standards without addressing the
Court enjoined all three projects and remanded the matter to
the agencies to address the deficiencies in the
administrative record. The injunctions against the Grizzly
and Little Beaver Projects were dissolved after
determinations that the agencies satisfied the remand order
with respect to those projects. (Doc. 73; Doc. 94.) The
agencies now move to dissolve the injunction against the
Rule of Civil Procedure 60(b)(5) provides that "the
court may relieve a party or its legal representative from a
final judgment, order, or proceeding" when, among other
things, "the judgment has been satisfied, released or
discharged ... or applying it prospectively is no longer
equitable." Rule 60(b)(5) codifies a court's
inherent power to modify or vacate judgments when continued
enforcement would be inequitable. See Bellevue Manor
Assocs. v. United States, 165 F.3d 1249, 1252 (9th Cir.
1999). The party seeking relief from a judgment must
establish "a significant change either in factual
conditions or in law" that warrants relief. Home v.
Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v.
Inmates of Suffolk Jail, 502 U.S. 367, 384 (1992)).
"[A] court abuses its discretion 'when it refuses to
modify an injunction or consent decree in light of such
changes.'" Id. (quoting Agostini v.
Felton, 521 U.S. 203, 215 (1997)).
NEPA, and NFMA claims are reviewed under the APA, which
provides that a court shall "hold unlawful and set aside
agency actions, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 706(2)(a).
An action is arbitrary and capricious "if the agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise." Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 43 (1983).