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Coalition v. Weber

United States District Court, D. Montana, Missoula Division

December 11, 2018

SWAN VIEW COALITION, et al, Plaintiffs,
v.
CHIP WEBER, et al, Defendants.

          OPINION AND ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT COURT.

         In June 2013, Plaintiffs Swan View Coalition, Friends of the Wild Swan, Native Ecosystems Council, and Alliance for the Wild Rockies ("Plaintiffs") filed a lawsuit challenging the Glacier Loon Fuels Reduction and Forest Health Project ("the Project") under the Environmental Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), and the National Forest Management Act ("NFMA"). Following summary judgment, the Court enjoined the Project and remanded it to the agency for further action. Pending before the Court is Defendants' Second Motion to Dissolve Injunction. (Doc. 98.) That motion is granted. Plaintiffs unsuccessfully attempt to re-litigate matters already decided. Because Defendants have shown compliance with the ESA with regard to the wolverine and the Court has already held there is no NFMA violation with respect to Amendment 19 compliance, the injunction is dissolved.

         Background

         The Project area includes 37, 320 acres within the boundaries of the Glacier Loon and Buck Holland Grizzly Bear Subunits in the Swan Lake Ranger District of the Flathead National Forest. AA-147:00069980. It "was initiated in 2011 to reduce the risk of high-severity landscape ..., improve forest health and resistance to insect epidemics, and provide wood products to the local timber industry." AA-147:00069981. The original Draft EA was released to the public in August 2012 and a Decision Notice and Finding of No. Significant Impact were signed by the Forest Supervisor on February 12, 2013. Id. On September 25, 2014, this Court granted summary judgment in favor of the defendants on all but four of Plaintiffs' claims, two of which relate to the Project. (Doc. 51.) First, the United States Forest Service ("Forest Service") improperly reached a "no effect" determination for water howellia and bull trout under ESA Section 7 by failing to recognize the low threshold for a "may affect" determination. (Id. at 20-21.) Second, the Forest Service erroneously determined Amendment 19, which provides protections for grizzly bears, did not apply to certain subunits in the Project area. (Id. at 26-27.) The Project was enjoined and remanded to the agency. (Id. at 55.)

         In December 2015, Defendants moved to lift the injunction on the grounds that the Forest Service and the United States Fish and Wildlife Service ("Fish and Wildlife Service") completed the necessary analysis. (Doc. 86.) The Court determined that while the agencies met their Section 7 obligations for all three species, a supplemental environmental assessment ("EA") was required under NEPA. (Doc. 92.) The injunction remained in place.

         Defendants seek to dissolve that injunction on the grounds that the Forest Service has since supplemented its NEPA analysis. The agency published a Draft Supplemental EA in July 2017, a Final Supplemental EA in April 2018, and a Final Decision Notice and Finding of No. Significant Impact approving the Project in September 2018. Defendants insist that "[b]ecause the agencies have completed the analysis required on remand and remedied the procedural violations identified in the Court's September 25, 2014 Order, there is no reason for the Glacier Loon Project to continue to be enjoined." (Id. at 4-5.) Plaintiffs disagree, arguing the injunction should be maintained because (1) Defendants have not shown ESA compliance for the wolverine and (2) the Project fails to meet the Amendment 19 access criteria deadline in violation of NFMA.

         Legal Standards

         I. Rule 60(b)

         Rule 60(b) allows courts to "relieve a party or its legal representative from a final judgment, order, or proceeding [if] ... the judgment has been satisfied, released, or discharged." Fed.R.Civ.P. 60(b)(5). A party seeking dissolution of an injunction may meet its initial burden by showing that there has been a significant change in facts or law. Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384(1992).

         II. The Administrative Procedure Act

         Courts review claims regarding the ESA, NEPA, and NFMA under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706 et seq. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). Under the APA, "[a] reviewing court shall... hold unlawful and set aside agency action, 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).

         Analysis

         I. Wolverine

         Plaintiffs' first challenge is based on the dynamic status of the wolverine under the ESA. At the time of the original decision documents for the Project, the wolverine was not yet proposed for listing and was therefore not considered in the agency's Biological Assessment. (See Doc. 51 at 22.) But, the Forest Service considered Project impacts to the wolverine in the context of its status as a "sensitive species" under the Forest Plan. (See id.) The wolverine's status under the ESA changed in February 2013, when it was proposed for listing. See 78 Fed. Reg. 7864 (Feb. 4, 2013). Accordingly, on February 22, 2013, the Forest Service prepared an additional analysis, concluding "the project would not result in Jeopardy to the wolverine population." (Doc. 51 at 23 (citing H160:11901-03).) The Court's September 25, 2014 Order held these two documents were ...


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