United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, et al., Defendants, and MONTANA WOOD PRODUCTS ASSOCIATION, et ah, Defendant-Intervenors.
W. Molloy, District Judge
Native Ecosystems Council and Alliance for the Wild Rockies
(collectively "Native Ecosystems") seek an
injunction pending appeal of the Moose Creek Vegetation
Project (the "Project"). (Doc. 47.) That motion is
Standard A 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. 2014). A party 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
"serious questions going to the merits."
Ecosystems challenged two decisions of the United States
Forest Service ("Forest Service"): (1) the
designation of approximately five million acres in Montana
pursuant to the 2014 Farm Bill Amendment to the Healthy
Forests Restoration Act ("HFRA") and (2) approval
of the Project via categorical exclusion under the National
Environmental Policy Act ("NEPA"). On November 19,
2018, this Court granted summary judgment in favor of the
defendants, concluding that the Forest Service met its
obligations under both FIFRA and NEPA. (See Doc.
43.) Native Ecosystems relies almost entirely on its summary
judgment briefing to argue the present motion. (See
Doc. 48.) As the Court more fully explained in its previous
order, (see Doc. 43), those arguments are without
Likelihood of Success
Ecosystems has limited its merits argument here to the
dispute over whether the Forest Service's interpretation
of the Lewis and Clark National Forest Plan's old growth
standard is arbitrary and capricious. Projects approved under
HFRA must be carried out in a manner that "maximizes the
retention of old-growth and large trees, as appropriate for
the forest type, to the extent that the trees promote stands
that are resilient to insects and disease." 16 U.S.C.
§ 6591b(b)(1)(A). Here, the Forest Plan includes the
following old growth forest objective: "A minimum of 5
percent of the commercial forest land within a timber
compartment should be maintained in an old growth forest
condition. A minimum stand size of 20 acres is recommended
for old growth management" AR0019732. The Plan further
explains that "[a] minimum stand size is recommended
because in very small patch sizes, old growth cannot provide
the environment needed for many species to function."
explained more fully in this Court's November 2018 Order,
(see Doc, 43), Native Ecosystems fails to read HFRA
in its entirety, ignoring the language limiting old growth
retention "as appropriate for the forest type, to the
extent that the trees promote stands that are resilient to
insects and disease." 16 U.S.C. § 6591b(b)(1)(A).
The Forest Service has determined that this requirement is
only met for stands of a certain size, consistent with the
Forest Plan. That conclusion is entitled to deference.
Ariz. Cattle Growers' Ass'n v. U.S. Fish &
Wildlife, 273 F.3d 1129, 1236 (9th Cir. 2001).
Accordingly, Native Ecosystems has not shown a likelihood of
success, nor raised serious questions, as to the
Project's compliance with HFRA.
Ecosystems makes no specific harm argument except to say that
"old forested habitat, once logged, can not be
replaced," (Doc. 48 at 5), and vaguely allege that
"[r]oadwork has commenced, and logging is
imminent," (Doc. 47 at 2). These opaque allegations are
insufficient to meet its preliminary injunction burden.
Balance of Equities and Public Interest
Ecosystems once again only makes a general allegation of
public interest or equities: "The public interest in
preserving what little old growth remains in the U.S.
generally, and in the Helena National Forest and Moose Creek
project area specifically, is reflected in [HFRA]'s
mandate to maximize the extent of old growth." (Doc. 48
at 5.) It offers no other support for its position. Such
conclusory statements do not sustain Native Ecosystems'
burden here, even considering that these factors merge when
the federal government is the opposing party. See Drakes
Bay Oyster Co., 747 F.3d at 1092.
Native Ecosystems has not made the requisite showings to
obtain an injunction pending appeal, IT IS ORDERED ...