United States District Court, D. Montana, Missoula Division
W. Molloy, District Judge.
Alliance for the Wild Rockies ("Alliance") moves
for an injunction pending appeal of the Court's order
approving the Miller West Fisher Project ("Miller
Project") on the Kootenai National Forest. (Doc. 121.)
Defendants United States Forest Service, United States Fish
and Wildlife Service, and their official representatives
(collectively "the agencies") oppose the motion,
(Doc. 123), and move to strike extra-record exhibits on which
Alliance relies, (Doc. 124). Alliance's motion for an
injunction pending appeal is denied. The agencies' motion
to strike is denied as moot.
action commenced in 2009 when Alliance alleged the Miller
Project\violated the Endangered Species Act
("ESA"), the National Forest Management Act
("NFMA"), and the National Environmental Policy Act
("NEPA"). (Docs. 1, 8.) On June 29, 2010, the Court
granted summary judgment for Alliance on five claims
applicable to the Miller Project. (Doc. 44 at 68-69.) The
Miller Project was enjoined and the matter was remanded to
the agencies to address the deficiencies in the project.
(Id. at 69.) After extensive analysis on remand,
including a Final Supplemental Environmental Impact Statement
and new Record of Decision, the agencies moved to dissolve
the injunction. (Doc. 112.) The Court granted the motion,
allowing the Miller Project to proceed. (Doc. 118.) Alliance
appealed. (Doc. 119.) Alliance now asks this Court to enjoin
the Miller Project again pending the appeal. (Doc. 121.) In
support of its motion, Alliance submitted two reports by the
Fish and Wildlife Service regarding grizzly bear monitoring
in the Cabinet-Yaak Recovery Area that are not part of the
Administrative Record in this case. (See Docs. 122-3, 122-5.)
The agencies have moved to strike these exhibits. (Doc. 124.)
Motion for Injunction Pending Appeal
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. Model, 859 F.2d 662,
663 (9th Cir. 1988). Generally, 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). However, in ESA cases,
"the equities and public interest factors always tip in
favor of the protected species." Cottonwood Envtl.
Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th
Cir. 2015). A party seeking an injunction must make an
initial showing on all four Winter factors; the factors are
then assessed on a sliding scale. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.
2011). 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.
Alliance has not made even the lesser showing of serious
questions going to the merits. Its sole argument is that the
June 29, 2010 Order-which ultimately enjoined the Miller
Project-referred to a ruling for the agencies on one of the
ESA claims as a "close call." (Doc. 44 at 46.)
Specifically, the Court upheld the agencies'
determination that road building activities were not likely
to adversely affect grizzly bears, but recognized it was a
close question. (Id.) However, the operative order,
and the one from which Alliance appeals, is the November 15,
2018 Order lifting the injunction against the Miller Project.
(Doc. 118.) That Order considered the changes to road
building standards since the "close call" ruling,
including that in 2011 the Forest Service adopted the Forest
Plan Amendments for Motorized Access Management within the
Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones to
govern motorized vehicle access to grizzly bear habitat in
the Kootenai National Forest. (Doc. 118 at 6 (citing AR
11-65).) The Access Amendments were incorporated into the
Kootenai Forest Plan, AR 10-4:19, with which the Miller
Project complies, (Doc. 118 at 12). Alliance does not raise
any questions, never mind serious questions, on the merits of
the November 15, 2018 Order. Accordingly, an injunction is
not warranted even assuming Alliance has made the requisite
showing on the other Winter factors.
Motion to Strike
to exceptions not relevant here, judicial review of agency
action under the Administrative Procedure Act is limited to
the administrative record at the time the agency made its
decision. San Luis & Delta-Mendota Water Auth. v.
Locke, lib F.3d 971, 992 (9th Cir. 2014). "Parties
may not use post-decision information as a new
rationalization either for sustaining or attacking the
[a]gency's decision." Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d
930, 943 (9th Cir. 2006) (internal quotation marks omitted).
the agencies argue Exhibits 3 and 5, (Docs. 122-3, 122-5),
submitted in support of Alliance's motion for an
injunction pending appeal, should be stricken as improper
extra-record material. The exhibits are annual reports by the
Fish and Wildlife Service regarding grizzly bear monitoring
in the Cabinet-Yaak Recovery Area. Exhibit 3 presents data
collected in 2017. (Doc. 122-3 at 2-3.) Exhibit 5 presents
data collected in early 2018. (Doc. 122-5 at 2.) Alliance
argues the reports show the grizzly bear population in the
Cabinet-Yaak region is failing to meet target recovery rates,
and thus the equities tip sharply in favor of an injunction
pending appeal. The agencies argue this is a backdoor
challenge to their determinations based on post-decision
information. The Ninth Circuit has not addressed whether a
court's inquiry into an injunction pending appeal of a
decision reviewing agency action is confined to the
administrative record like the initial decision is. However,
because the Court has not considered Alliance's equities
argument in deciding the injunction pending appeal, the
motion to strike is moot.
ORDERED that Alliance's Motion for Injunction Pending