Temporary restraining order denied in Kootenai National Forest dispute over timber harvest and grizzly bears
Alliance for the Wild Rockies v. U.S. Forest Service, U.S. Fish and Wildlife Service, Order, CV 07-150-M-DWM (D.Montana, June 26, 2008)
Photo of timber resources in Kootenai National Forest, by U.S. Forest Service.
SUMMARY: Plaintiff challenges the U.S. Forest Service’s determination that the Northeast Yaak Project (the “Project”) in the Kootenai National Forest may affect, but is not likely to adversely affect, the grizzly bear, and the U.S. Fish & Wildlife Service’s concurrence with this determination. Briefing is set to be completed on July 10, 2008. On June 16, 2008, Federal Defendants began implementing the Project with the commencement of logging activities for the "Joe Mama" timber sale. Plaintiff moves for a temporary restraining order and preliminary injunction to halt implementation of the Project pending the Court’s ruling on the parties’ cross motions for summary judgment.
RULING: "In this case, Plaintiff has failed to show a reasonable likelihood of future harm to the grizzly bear. Plaintiff’s motion for a temporary restraining order and preliminary injunction does not even discuss future harm. Plaintiff asserts logging will commence on the Joe Mama timber sale and lists roads that will be opened to accomplish the sale. Plaintiff, however, does not explain how these activities will harm the grizzly bear. Plaintiff alleges certain roads opened during implementation of a prior project in the Project area have not yet been closed and notes Federal Defendants’ no adverse effects determination was based on the closure of these roads... Additionally, none of the timber units to be harvested in the next sixty days as part of the Joe Mama timber sale are in grizzly bear core habitat and only one-half mile of temporary road construction will occur during this time period. Harper Decl. ¶ 8. Because Plaintiff has made no allegations of immediate harm to the grizzly bear, its motions for a temporary restraining order and preliminary injunction are denied."
KEITHINKING: Although the Court ruled in favor of the Federal Defendants, it may have mistakenly used an outdated TRO analysis, given last week's en banc decision in The Lands Council and Wild West Institute v. Ranotte McNair and U.S. Forest Service, No. 07-35000, D.C. No. CV-06-00425-EJL (9th Cir. EN BANC July 2, 2008). In that case, the Ninth Circuit reversed a decade of timber harvest precedents and held -- admittedly, in the non-Endangered Species Act case -- that, "Our law does not, however, allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue... Indeed, the Supreme Court has instructed us not to “exercise [our] equitable powers loosely or casually whenever a claim of ‘environmental damage’ is asserted.” (citations omitted)
In this case, however, the District Court did not consider the traditional injunction analysis, nor Land Council, at all. "Because Plaintiff asserts claims under the ESA, the traditional test for determining whether temporary or preliminary injunctive relief is warranted does not apply. Instead, the test articulated in National Wildlife Federation v. Burlington Northern Railroad, Inc., 23 F.3d 1508, 1510–11 (9th Cir. 1994) applies. Under this test, a plaintiff must demonstrate a combination of probable success on the merits and a reasonable likelihood of future harm. Id. at 1511. Once the plaintiff makes this showing, the court may not fine-tune its analysis by weighing the hardships of the parties. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 793–94 (9th Cir. 2005)."
Eventually, some future District Court will apply a similar approach to an ESA case, and grant the injunction against the Federal Defendants. And when that happens, the Ninth Circuit may have an opportunity to revisit its abandonment of the traditional analysis of equities in Endangered Species Act cases.