United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT COURT.
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
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.)
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.
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.
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.
The Administrative Procedure Act
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).
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 ...