670 F.Supp.3d 1121
D. Mont.2023Background:
- Plaintiffs (Center for Biological Diversity, Alliance for the Wild Rockies, Yaak Valley Forest Council, Wildearth Guardians, Native Ecosystems Council) challenge the U.S. Forest Service and U.S. Fish & Wildlife Service approval of the Knotty Pine Project in the Kootenai National Forest and sought a preliminary injunction.
- The Knotty Pine Project covers ~56,009 acres (48,637 NFS acres), authorizes commercial harvest (2,593 acres), precommercial thinning (2,099 acres), fuels treatments and prescribed burning (7,465 acres total burning), and some road work over ~10 years.
- The Project lies within the Cabinet-Yaak Ecosystem Recovery Zone (CYE) and primarily in Grizzly Bear Management Unit (BMU) 12, an area used by female grizzly bears; the CYE population is small, has low resiliency and fecundity, and has unmet recovery targets.
- Plaintiffs’ central ESA/APA challenge: the FWS biological opinion (BiOp) failed to account adequately for illegal/unauthorized motorized access (breached closures/user-created routes) when calculating open and total motorized route density (OMRD/TMRD) and Core habitat metrics.
- Agencies argued illegal use is not an ‘‘action’’ under the ESA, unpredictable, and thus not reasonably certain to include in OMRD/TMRD/Core calculations; the court found the BiOp arbitrary and capricious for failing to explain why existing monitoring and prior methodology were not applied to account for illegal use.
- Relief: Court granted preliminary injunction, enjoining implementation of the Knotty Pine Project until the merits are resolved.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of BiOp’s consideration of illegal motorized access in OMRD/TMRD/Core | FWS ignored best available information and failed to consider illegal roads when calculating route densities and Core, violating ESA/APA | Illegal motorized use is not a federal action, unpredictable, and thus not reasonably certain to include; prior analyses considered illegal use | Court: Plaintiffs likely to succeed; BiOp arbitrary and capricious for failing to explain why it did not apply available monitoring/methodology to account for illegal use (post-hoc rationalizations rejected) |
| Irreparable harm to grizzly bears and plaintiffs’ members | Project activities will cause displacement, reduced reproductive success and habitat loss in a small vulnerable CYE population; displacement effects can be long-lasting and generational | Project effects are temporary, low-level, and affect at most one or two individuals; agencies found Project would not exceed Forest Plan standards | Court: Plaintiffs demonstrated likelihood of irreparable harm given small CYE population, importance of individual females, and deficient analysis undermining BiOp conclusions |
| Imminence of harm / timing of project activities | Project activities (fuels treatments, etc.) were scheduled to begin imminently and could irreversibly affect habitat and recreational/aesthetic interests | Agencies delayed most activities until June and promised notice; harm not imminent | Court: Imminence satisfied; short lead time does not defeat injunction request |
| Balance of equities & public interest | Protecting listed species and adequate ESA process outweigh project benefits; equities favor species | Project purportedly provides ecological and community benefits (fuels reduction, habitat improvement, local economy) | Court: Under ESA case law, equities and public interest tip toward species; preliminary injunction appropriate (narrowing possible by motion) |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction)
- Cottonwood Envtl. L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (equities/public interest favor protected species in ESA procedural cases)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action arbitrary and capricious standard; no post-hoc rationalizations)
- Alliance for the Wild Rockies v. Probert, 412 F. Supp. 3d 1188 (D. Mont. 2019) (unauthorized closures and illegal road use required reinitiated ESA consultation)
- Alliance for the Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir. 2017) (closure effectiveness and whether closed roads count in road-mile standards)
- Alliance for the Wild Rockies v. Gassmann, 604 F. Supp. 3d 1022 (D. Mont. 2022) (preliminary injunction where agencies failed to analyze reasonably certain private/state activities and cumulative effects)
- Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 886 F.3d 803 (9th Cir. 2018) (linking individual-level harms to species-level irreparable injury in ESA context)
- Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987) (environmental injury often irreparable and inadequately remediable by money damages)