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Friends of Wild Swan v. Weber

United States Court of Appeals, Ninth Circuit

September 24, 2014

FRIENDS OF THE WILD SWAN, a non-profit organization; THE SWAN VIEW COALITION, a non-profit organization, Plaintiffs-Appellants,
v.
CHIP WEBER, in his official capacity as Forest Supervisor for the Flathead National Forest; VICKI CHRISTIANSEN, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; DANIEL M. ASHE, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. FISH & WILDLIFE SERVICE, an agency of the United States Department of the Interior, Defendants-Appellees. FRIENDS OF THE WILD SWAN, a non-profit organization; THE SWAN VIEW COALITION, a non-profit organization, Plaintiffs-Appellants,
v.
VICKI CHRISTIANSEN, in her official capacity as Acting Regional Forester for the United States Forest Service, Region One; CHIP WEBER, in his official capacity as Forest Supervisor for the Flathead National Forest; UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; DANIEL M. ASHE, in his official capacity as Director of the U.S. Fish & Wildlife Service; U.S. FISH & WILDLIFE SERVICE, an agency of the United States Department of the Interior, Defendants-Appellees

Argued and Submitted, Seattle, Washington April 9, 2014.

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Appeal from the United States District Court for the District of Montana. D.C. No. 9:12-cv-00029-DLC-JCL. D.C. No. 9:12-cv-00059-DLC-JCL. Dana L. Christensen, Chief District Judge, Presiding.

SUMMARY[*]

Environmental Law

The panel affirmed the district court's denial of two preliminary injunctions in plaintiff environmental groups' challenges to the United States Forest Service's approval of two neighboring logging projects in Montana's Flathead National Forest.

The panel held that plaintiffs failed to demonstrate an imminent injury in the absence of injunctive relief with respect to their National Environmental Policy Act claim that the Environmental Assessments prepared by the United States Forest Service failed to analyze sufficiently the cumulative impact of the two logging projects in the same segment of the Flathead River's South Fork at the same time. The panel also rejected plaintiffs' related claim under NEPA that the Forest Service should have considered the cumulative impact in determining whether or not to prepare a full-blown Environmental Impact Statement.

The panel also held that plaintiffs neither showed a likelihood of success on the merits nor raised serious questions on the merits of their National Forest Management Act claims that (1) the logging projects violate a standard set forth in the Northern Rockies Lynx Management Direction that prohibits logging and burning that reduces snowshoe hare, a favorite prey of the lynx; and (2) the Forest Service's habitat analysis did not account for the fisher, a member of the weasel family.

Finally, the panel held that plaintiffs neither showed a likelihood of success on the merits nor raised serious questions on the merits of their Endangered Species Act claim. Specifically, the panel rejected plaintiffs' argument that, when evaluating the effects of the action on potentially affected species, the Forest Service defined too narrowly the " action area" for the potentially affected species of the lynx, grizzly bear, and bull trout.

Matthew K. Bishop (argued), Western Environmental Law Center, Helena, Montana, for Plaintiffs-Appellants.

Michael W. Cotter, United States Attorney, and Mark Steger Smith, Assistant United States Attorney, District of Montana, Billings, Montana; Christine R. Everett, Office of General Counsel, United States Department of Agriculture; Kathyrn Williams-Shuck and Amanda Koehler, Office of the Solicitor, United States Department of the Interior; Robert G. Dreher, Acting Assistant Attorney General, Andrew C. Mergen, J. David Gunter, Paul D. Barker, Jr., Rickey D. Turner, Daniel J. Pollak, and Matthew Littleton (argued), Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges. Opinion by Judge Hawkins.

OPINION

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HAWKINS, Circuit Judge:

These environmental appeals for injunctive relief bring virtually identical challenges to two logging projects in Montana's Flathead National Forest: the Weber case challenges the United States Forest Service's (" Forest Service" or " Service" ) decision to authorize the Spotted Bear River Project, and the Christiansen case challenges the Soldier Addition II Project. Plaintiffs Friends of the Wild Swan and The Swan View Coalition (collectively, " Wild Swan" ) appeal the district court's simultaneous denial of preliminary injunctions in both cases. Friends of the Wild Swan v. Weber, 955 F.Supp.2d 1191 (D. Mont. 2013); Friends of the Wild Swan v. Christiansen, 955 F.Supp.2d 1197 (D. Mont. 2013).

Wild Swan contends the district court abused its discretion by denying its motion for injunctive relief because the Forest Service's approval of these projects violated the National Environmental Policy Act (" NEPA" ), the National Forest Management Act (" NFMA" ) and the Endangered Species Act (" ESA" ). Wild Swan argues the court abused its discretion by failing to recognize its likelihood of success on the merits and in finding a lack of irreparable harm in the absence of an injunction. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The Soldier Addition Project was initially proposed in 2008. The project is located in the 2.4 million acre Flathead National Forest, and would affect approximately 3,285 acres on the west side of the Flathead River's South Fork. The project would entail a prescribed burn of 1,333 acres, harvest of 1,128 acres of timber, thinning of 823 acres and clearing flammable vegetation within 1.3 acres. The Soldier Addition Project's stated goals are to restore forest and vegetation to a historical condition that would be more resilient and resistant to wildfire, disease, and insect infestation, including improving the availability of seasonal habitats and proactively treating trees at risk of, or experiencing, high mortality.

The Forest Service designated an " action area" and then investigated whether the project would adversely affect threatened species or critical habitat under the

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ESA, including consultation with the U.S. Fish and Wildlife Service (" USFWS" ). That agency prepared a Biological Assessment with respect to bull trout and its critical habitat and concluded the proposed action was not likely to have an adverse effect. USFWS prepared a formal Biological Opinion addressing the project's impact on lynx critical habitat and grizzly bears.

The Forest Service was also required to comply with the NFMA forest plan for the area, which included directions for the management of lynx, fisher (a member of the weasel family), and westslope cutthroat trout. Following NEPA's procedural requirements, the Forest Service prepared an Environmental Assessment (" EA" ) to analyze potential impacts, including compliance with the forest plan, and to determine whether a full-blown Environmental Impact Statement (" EIS" ) was required or whether the agency could instead issue a Finding of No Significant Impact (" FONSI" ).

After proposing the Soldier Addition Project, the Forest Service received comments from Wild Swan and other interested parties and issued its decision authorizing the project in May 2010. Wild Swan challenged the decision in district court on NEPA and NFMA grounds, and the Forest Service decided to withdraw its authorization in order to re-examine its environmental analysis. It then issued a new EA, considered additional comments, and ultimately issued a new FONSI and reauthorized the project in December 2011.

In the midst of the decision-making process on the Soldier Addition Project, in 2009 the Forest Service proposed another nearby project on the other side of the South Fork of the Flathead River, known as the Spotted Bear River Project. Similar to the Soldier Addition Project, the Spotted Bear Project proposed prescribed burns of 1,346 acres, harvest of up to 1,193 acres of timber, thinning of up to 660 acres and added an additional five weeks to the motorized access season. The Spotted Bear Project also would serve similar purposes as the Soldier Addition Project, such as improving habitat and increasing resistance to fire and/or disease.

The Spotted Bear Project followed a similar procedural path, gathering input from the USFWS in the form of Biological Assessments and Biological Opinions, comments on the project from Wild Swan and other interested parties, and preparation of an EA for the project. The Forest Service issued a FONSI and authorized the Spotted Bear Project in August 2011.

The initial Soldier Addition Project EA was completed before the Spotted Bear Project was proposed; however, in its revised EA (prepared after withdrawing the initial approval on the Soldier Addition), the Forest Service acknowledged the Spotted Bear Project, but concluded there would be no significant cumulative adverse effects. The Forest Service reached the same conclusion regarding the Spotted Bear Project.

After unsuccessfully appealing both Forest Service decisions to the Regional Forester, Wild Swan brought two suits in district court regarding the two projects, raising virtually identical claims that the Forest Service had violated NEPA, NFMA, and the ESA. On cross-motions for summary judgment, the magistrate judge issued lengthy reports recommending awarding judgment to the United States on all claims.

Wild Swan not only objected to the magistrate judge's recommendations, but also moved for a Temporary Restraining Order and a Preliminary Injunction to halt all project activity pending disposition of ...


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