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Alliance for The Wild Rockies v. Brazell

United States District Court, D. Idaho

July 25, 2014

ALLIANCE FOR THE WILD ROCKIES and FRIENDS OF THE CLEARWATER, Plaintiff,
v.
RICK BRAZELL, Supervisor of the Nez Perce National Forest; FAYE KRUEGER, Regional Forester of Region One of the U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; and UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendant.

ORDER DENYING MOTION FOR INJUNCTION PENDING APPEAL

MIKEL H. WILLIAMS, Magistrate Judge.

On June 6, 2014, Alliance for the Wild Rockies and Friends of the Clearwater ("Plaintiffs") filed a motion for injunction and stay pending resolution of Plaintiffs' appeal to the U.S. Court of Appeals of the Ninth Circuit of this Court's decision entered on November 27, 2013. See Mem. Dec. and Order, Dkt. 30. Defendants oppose the request for a stay and injunction pending appeal on the grounds that the request is based on the same arguments addressed in the Court's ruling denying Plaintiffs' Motion for Summary Judgment and finding that injunctive relief was not warranted.

Having reviewed the parties' submissions and taken a fresh look at its 63-page Memorandum Decision and Order, the Court denies Plaintiffs' motion for an injunction and stay.

TIMING OF MOTION FOR STAY

The Court entered its decision on November 27, 2013 denying Plaintiffs' motion for summary judgment and granting the Defendants' cross motion for summary judgment. Plaintiffs did not file their notice of appeal until almost two months later, on January 22, 2014. Plaintiffs not only did not move for any type of expedited briefing schedule and ruling from the Ninth Circuit, it requested an extension of time to file its opening brief which it ultimately filed on June 2, 2014.

According to Defendants, Plaintiffs were advised in February of 2014 that the Little Slate Project ("Project") logging operations would start in June of 2014 (since moved to July of 2014 due to weather and other factors). In March of 2014, two of three timber harvest contracts set to commence in June were purchased by Idaho County's largest private employer who paid a down payment of $150, 000 and posted a performance bond of $100, 000.[1] Finally, on June 6, 2014, almost four months after filing its notice of appeal and virtually on the eleventh hour of when the ground work was to commence, Plaintiffs moved to stay the three timber sales that were scheduled to proceed. This will be discussed in more detail later in this Order.

LEGAL STANDARD

It is well established that the standard for issuance of an injunction pending appeal is the same as the standard for issuance of a preliminary injunction. See Golden Gate Restaurant Association v. City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008); Southwest Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1100 (9th Cir. 2006).

Generally, a party seeking an injunction must demonstrate the existence of four factors: (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm absent the issuance of an injunction, (3) that the balance of equities tips in its favor, and (4) that issuance of an injunction is in the public interest. Winter v. Nat. Res. Defense Council, 555. U.S. 7, 20 (2008). However, the Ninth Circuit recognizes that an injunction may still be warranted without a demonstrated likelihood of succeeding on the merits where the moving party raises "serious questions going to the merits" and demonstrates that the "balance of hardships tips sharply" in its favor as long as it also demonstrates "the likelihood of irreparable injury and that the injunction is in the public interest." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (referring to its "serious questions" test and finding that the test survived Winter ).

A delay in seeking a preliminary injunction, while not dispositive, is an appropriate factor to be considered by a court in determining whether to grant the injunction. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984).

DISCUSSION

The parties and the Court are quite familiar with the underlying facts in this case. The overall goal of the Little Slate Project is to reduce fire risk and improve aquatic habitat in the Forest. The more specific goals and the plans to implement those goals are set forth in Appendix A attached to this decision.

A. Plaintiffs' Endangered Species Act Claims

Almost nine pages of Plaintiffs' opening brief in support of its motion for an injunction and stay are directed at the impact on the bull trout if the timber harvesting and other construction activities proceed ahead now in the Project area. Defendants first point out that while the Project will ultimately involve six separate timber sales, only three are under contract for 2014 and none will involve any bull trout habitat. Aside from the fact that bull trout habitat will not be affected by the three sales now under contract, it is important to keep in mind that the U.S. Fish and Wildlife biological opinion found that at most only 1.27 miles out of the nearly 20, 000 miles of critical bull trout habitat would be affected by the Project.

Plaintiffs have not responded to Defendants' additional arguments that delaying the three timber sales and watershed restoration activities pending appeal will actually exacerbate the existing problems with sedimentation in the streams that is generally harmful to bull trout habitat. These activities would ultimately include decommissioning and improving roads, completing 100-acres of soil restoration, improving 59 road crossings and 73 trail stream crossings, and reducing motorized access to many areas.

This Court has previously found that the Forest Service and Fish and Wildlife Service properly analyzed the impacts to bull trout in their Biological Assessment and Biological Opinion. Furthermore, the Court continues to adhere to its finding that Plaintiffs' best available science claim lacks merit because Plaintiffs have pointed to no better science to support their argument that "superior" data would support their position.

The Fish and Wildlife Service anticipated only minor impacts from any in-stream work because of the timing and other restrictions on how the work will be performed. Furthermore, it should be kept in mind that the three timber sales currently under contract do not involve any in-stream work. While Plaintiffs have entirely focused on the impact of this work in the short term, described as "minor" by the agencies, they have never addressed the ...


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