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Hunters v. Marten

United States District Court, D. Montana, Missoula Division

October 9, 2019

HELENA HUNTERS AND ANGLERS ASSOCIATION, and MONTANA WILDLIFE FEDERATION, Plaintiffs, and
v.
LEANNE MARTEN, in her official capacity; UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE, Federal Defendants, ALLIANCE FOR THE WILD ROCKIES, and NATIVE ECOSYSTEM COUNCIL Consolidated Plaintiffs, and STATE OF MONTANA, and MONTANA BICYCLE GUILD Defendant-Intervenors

          ORDER

          Dana L. Christensen, Chief Judge United States District Court

         On August 13, 2019, Plaintiffs Alliance for the Wild Rockies ("AWR") and Native Ecosystem Council ("NEC") filed a Motion for Preliminary Injunction/Temporary Restraining Order (Doc. 24) supported by the declaration of Michael Garrity, the Executive Director of AWR. (Doc. 24-1.) For the following reasons, Plaintiffs' Motion will be denied.

         Background

         At issue is the United States Forest Service's Tenmile-South Helena Project ("Project" or "Tenmile Project") on the Lewis and Clark National Forest. The Project is a vegetation management project that the Forest Service developed to protect the City of Helena's municipal watershed and to improve conditions relative to forest fire. This Project is underway. The Forest Service began vegetation treatments in May of 2019 after awarding two salvage sales in March 2019.

         Plaintiffs assert that the Tenmile Project is unlawful because the Fish and Wildlife Service ("the Service") failed to include a "detailed discussion of the effects of the action" on grizzly bears in its Biological Opinion as required under the Endangered Species Act ("ESA"). Plaintiffs also contend that the Tenmile Project violates the National Forest Management Act because Project implementation will increase road density levels above those authorized in the Forest Plan to the detriment of grizzly bears.

         Discussion

         "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). Generally, a petitioner seeking an injunction must show that (1) it is likely to suffer irreparable harm absent a preliminary injunction, (2) it is likely to succeed on the merits, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Id. at 20.

         However, in ESA cases, the test is altered so that "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, 1091-91 (9th Cir. 2015). Accordingly, the Court is satisfied that the balance of equities and public interest accrue in favor of a preliminary injunction in this ESA case. The Court will proceed to discuss whether Plaintiffs are likely to suffer irreparable harm absent a preliminary injunction.

         This showing requires a petitioner to allege more than the mere possibility of harm; they must demonstrate that "irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22. Additionally, analysis of this element inquires into the timeframe of the litigation. A court must determine that a preliminary injunction is required to prevent the harm that will otherwise occur before the court is able to reach a conclusion on the merits. Id. at 21.

         Plaintiffs allege that their members will suffer irreparable harm to their ability to "view, experience and utilize the area in [its] undisturbed state" if the Project is allowed to continue for the next few months. (Doc. 25 at 13.) They contend that the "area will be irreversibly degraded because once logging and burning occurs, the Forest Service cannot put the trees back on the stumps or unburn the trees[.]" (Id.)

         Federal Defendants argue that this allegation of harm is insufficient because: (1) Plaintiffs' claim is undermined by their delay in filing this motion; (2) Plaintiffs fail to allege any harm to an ESA-listed species; and (3) Plaintiffs' concerns regarding the trees are unconvincing given that the Project primarily targets dead or dying trees. (Doc. 36 at 15-19.)

         Turning to the first argument, Federal Defendants contend that Plaintiffs' months-long delay in filing suit and further delay in seeking a preliminary injunction until Project activities were well underway should be construed to undercut their claim of imminent harm. (Doc. 36 at 15.) Indeed, numerous courts have considered a delay to weigh against finding imminent irreparable harm. Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985) ("Plaintiffs long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm[.]"); Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) ("A delay in seeking a preliminary injunction is a factor to be considered in weighing the propriety of relief").

         Plaintiffs assert that the delay was due to difficulty in finding competent legal counsel and any delay here is not comparable to the cases cited above because this delay was a matter of months, whereas in those cases, the delay was measured in years. (Doc. 40 at 7.) The Court is not convinced that the overall length of delay is dispositive.

         Here, the entire timeline of this litigation is on a smaller scale. In early March 2019, the Forest Service advertised both the Scotty Salvage and Upper Tenmile Salvage timber sales and mailed a copy of the advertisement to Plaintiffs. Being experienced environmental litigants, Plaintiffs should have known of the Project and its impending timeline in the spring. Ground operations began in late June and early July. Although Plaintiffs could have filed suit when Helena Hunters did in mid-March (see Doc. 1), they waited three months to file (see Doc. 16 at 3), and then another two months to seek emergency relief (see Doc. 24). The delay of even a few months-significant months in terms of project implementation-is a significant delay in the life of a timber sale operation. While the Court is sympathetic to NEC's ...


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