United States District Court, D. Montana, Missoula Division
HELENA HUNTERS AND ANGLERS ASSOCIATION, and MONTANA WILDLIFE FEDERATION, Plaintiffs, and
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
L. Christensen, Chief Judge United States District Court
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.
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.
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.
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.
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.
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.
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
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
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
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.
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