Friends of the Wild Swan v. Chip Weber
767 F.3d 936
| 9th Cir. | 2014Background
- Two Montana timber sale projects (Spotted Bear River and Soldier Addition II) in Flathead National Forest challenged under NEPA, NFMA, and ESA.
- Forests Service conducted EA with FONSI for each project; district court denied Wild Swan injunctions, Wild Swan appealed.
- Forest Service reanalyzed after initial denial, reauthorizing Soldier Addition in 2011; Spotted Bear approved in 2011.
- Wild Swan argued NEPA failures, improper NFMA compliance, and ESA consultation defects; district court held no likelihood of success or irreparable harm.
- Cases were consolidated on appeal; court reviewed under an abuse-of-discretion standard for injunctions and APA review of agency action.
- District court’s denial of injunctions was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA cumulative effects require EIS? | Wild Swan claims insufficient cumulative analysis. | FS analyzed cumulatives within defined geographic areas for each project. | Affirmed: no likelihood of success on NEPA claim; EIS not required. |
| Appropriateness of geographic scope for cumulative effects | Line-drawing arbitrary by limiting to one river side. | FS adequate, boundaries reasonable and not arbitrary. | Affirmed: agency’s scope reasonable and non-arbitrary. |
| NFMA VEG S6 compliance for lynx habitat | New methodology alters how VEG S6 is applied. | Methodology assesses compliance with existing standard; deference owed. | Affirmed: no likelihood of NFMA success; methodology permissible. |
| NFMA fisher viability proxy | Habitat proxy unreliable due to detection limitations. | Proxy based on habitat data is reasonable. | Affirmed: habitat proxy acceptable; no likelihood of NFMA success. |
| ESA consultation adequacy for bull trout/lynx/grizzly | Action area too narrow; potential effects overlooked. | Informal consultation satisfied; analysis within appropriate area. | Affirmed: no likelihood of ESA success; informal consultation appropriate. |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. Supreme Court 2008) (injunction factors; likelihood of irreparable harm not solely sufficient)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (Winter factors; high burden for irreparable harm)
- Te-Moak Tribe v. U.S. DOI, 608 F.3d 592 (9th Cir. 2010) (NEPA hard look requirement and cumulative impacts)
- Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (geographic scope for cumulative effects; potential dilution of impact)
- Inland Empire Public Lands Council v. USFS, 88 F.3d 754 (9th Cir. 1996) (reasonableness of agency geographic boundaries; adjacent lands)
- Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012) (deference to agency’s interpretation of forest plans)
- EPIC v. USFS, 451 F.3d 1005 (9th Cir. 2006) (habitat proxy validity; monitoring limitations acceptable)
- Gifford Pinchot Task Force v. USF&WS, 378 F.3d 1059 (9th Cir. 2004) (habitat-based viability analyses; proxy reliability)
- Conservation Congress v. USFS, 720 F.3d 1048 (9th Cir. 2013) (ESA informal consultation standards)