Friends of the Clearwater v. Higgins, 472 F.Supp.3d 859

Background:

The U.S. Forest Service issued a FONSI for the Brebner Flat Project (Idaho Panhandle NF) on Oct. 3, 2019: ~12,000 acres in the St. Joe watershed, ~1,700 acres of harvest, and ~10.5 miles of road construction/reconstruction.
The EA used USFWS IPaC and a Forest Service wildlife report; the agency prepared a bull trout biological assessment and obtained USFWS concurrence that impacts were "may affect, not likely to adversely affect."
The wildlife report concluded neither grizzly bears nor Canada lynx were likely present or would be affected (no critical habitat, lack of suitable habitat, only transient bear occurrences many miles away).
Plaintiffs (Friends of the Clearwater, Alliance for the Wild Rockies) sought a preliminary injunction alleging APA violations: (1) ESA—USFS failed to request an USFWS species list and prepare BAs for grizzly and lynx; (2) NEPA/NFMA—insufficient cumulative-effects and mitigation analysis for elk security; (3) WSRA/NEPA—insufficient analysis of impacts to the St. Joe Wild & Scenic River corridor.
The Court found Plaintiffs likely to succeed on the ESA claim (concluding §1536(c)(1) requires an agency to request a species list and prepare a BA where a listed species may be present), but denied the preliminary injunction because Plaintiffs failed to show likely irreparable harm and the balance/public interest favored Defendants.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
ESA: Must agency request species list and prepare a biological assessment (BA) for any listed species that may be present?	§1536(c)(1) mandates requesting species lists and preparing BAs for any agency action where a listed species may be present; USFS violated ESA by not doing so for grizzly and lynx.	Regulations and agency practice limit mandatory BAs to "major construction activities;" consultation/BA unnecessary where agency determined "no effect."	Court: §1536(c)(1)’s plain text requires requesting lists and preparing BAs where species may be present; Plaintiffs showed likelihood of success on the merits (USFS did not prepare BAs for grizzly/lynx).
NEPA / NFMA (elk): Did EA take a hard look at cumulative impacts to elk population and analyze mitigation efficacy?	EA failed to analyze cumulative impacts on the elk population (not just elk security habitat) and inadequately evaluated mitigation (seasonal ATV closure/signs/gates).	EA and wildlife report adequately analyzed elk security habitat, cumulative effects, and described mitigation (gate(s), monitoring) consistent with Forest Plan.	Court: Plaintiffs did not raise serious questions; EA + wildlife report provided sufficient cumulative-effects discussion and a reasonably developed mitigation approach; NFMA claim fails at preliminary injunction stage.
Wild & Scenic Rivers Act (St. Joe River): Did Forest Service fail to take a hard look and deny public comment by misstating corridor coverage in EA?	EA misstated that project area did not include the WSR corridor and omitted explicit analysis, denying meaningful public comment and hard-look review for culvert removals in Siwash Creek.	FONSI and appendices corrected/contained the section 7(a) evaluation; fisheries and hydrology impacts to St. Joe River were analyzed and BPAs for bull trout were prepared.	Court: Although EA could be clearer, the combined record (EA + appendix + section 7(a) eval + fisheries BA) permits reasonable discernment; Plaintiffs did not raise serious questions as to WSRA/NEPA violations.
Preliminary injunction: Are Plaintiffs entitled to injunctive relief (irreparable harm; balance/public interest)?	Roadbuilding and logging will cause irreversible environmental injury and interfere with members’ aesthetic/recreational/scientific uses; ESA procedural violation favors injunction.	Harms are speculative for grizzly/lynx (no known presence); plaintiffs delayed in seeking relief; project reduces wildfire risk and benefits local community.	Court: Plaintiffs failed to show likely irreparable harm (speculative harm to grizzly/lynx); public interest and equities favor defendants; injunction DENIED despite ESA merits finding.

Key Cases Cited

Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction requiring likelihood of success, irreparable harm, balance of equities, and public interest).
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (serious-questions framework may support injunction when other factors align).
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (procedural ESA violation does not create a presumption of irreparable harm; plaintiff must show irreparable injury).
Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (interpreting §1536(c)(1) to require inquiry and BA when a listed species may be present).
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) (consultation required only where action agency determines action "may affect" listed species under implementing regs).
Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989 (9th Cir. 2004) (NEPA requires cumulative-effects analysis of past, present, and reasonably foreseeable actions).
Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) (NEPA requires discussion of mitigation measures beyond mere listing).
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (public interest in preserving nature and avoiding irreparable environmental injury).