Friends of the Wild Swan v. Weber
955 F. Supp. 2d 1191
D. Mont.
2013

Background

  • Plaintiffs (Friends of the Wild Swan and Swan View Coalition) moved for a TRO and preliminary injunction to halt logging projects (Spotted Bear River and Soldier Addition) on the South Fork of the Flathead River.
  • Magistrate Judge Lynch recommended denying Plaintiffs’ summary judgment motions and allowing the projects to proceed; Plaintiffs objected and filed the TRO after those recommendations issued.
  • Plaintiffs raised two new arguments in the TRO: (1) defendants failed to consider “connected/cumulative/similar actions” under 40 C.F.R. § 1508.25(a)(2) when scoping the EIS; and (2) this court’s decision in Salix requires enjoining the projects for flawed lynx-critical-habitat consultation under the ESA.
  • The Court treated Plaintiffs’ NEPA and NFMA claims largely as already analyzed by Judge Lynch and declined to revisit issues properly presented to the magistrate; it focused only on the new issues raised in the TRO.
  • For ESA-based claims tied to Salix, the Court found Plaintiffs failed to comply with the ESA’s 60-day notice requirement, depriving the Court of jurisdiction to consider that argument, and thus denied the TRO/PI.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether defendants failed to consider connected/cumulative/similar federal actions under 40 C.F.R. § 1508.25(a)(2) when scoping the EIS Plaintiffs: agencies omitted required connected/similar actions from EIS scope, requiring relief Defendants: argument was not raised earlier before the magistrate and is waived; no unlawful omission Court: declined to address § 1508.25(a)(2) claim because Plaintiffs raised it for the first time post-recommendation and gave no justification for late raising; Plaintiffs unlikely to succeed on merits
Whether Plaintiffs demonstrated likelihood of success on NEPA and NFMA claims sufficient for TRO/PI Plaintiffs: alleged procedural and substantive NEPA/NFMA violations supporting injunction Defendants: Judge Lynch already found plaintiffs’ claims legally insufficient; project avoids harm to lynx/old-growth in contested units; timber activity not inherently irreparable Court: Plaintiffs failed to show likelihood of success, irreparable harm, and the balance/public interest favors defendants; TRO/PI denied
Whether Salix requires enjoining parts of the Spotted Bear Project for flawed lynx consultation under the ESA Plaintiffs: Salix mandates injunction because consultation impermissibly relied on Lynx Amendment (VEG S6) standards Defendants: Salix irrelevant here; Tin Mule units are not in lynx critical habitat; Plaintiffs waived/failed to exhaust administrative/notice requirements; arguments lack merit Court: Plaintiffs failed to provide required 60-day notice under ESA; court lacks jurisdiction to reach Salix-based claim; claim dismissed for TRO purposes
Whether ESA preliminary injunction standard (vs. Winter) applies Plaintiffs: rely on Salix and ESA remedies to obtain injunction Defendants: argue Winter factors apply; court should balance harms Court: observed ESA injunctive framework limits traditional equitable balancing; nonetheless denied TRO because of jurisdictional/notice defect and failure to show irreparable harm

Key Cases Cited

  • Mazurek v. Armstrong, 520 U.S. 968 (1997) (burden and rigorous standard for TROs)
  • Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (four-factor preliminary injunction test)
  • Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) (plaintiff must show likelihood of success before other injunction factors weigh heavily)
  • Earth Island Institute v. Carlton, 626 F.3d 462 (9th Cir. 2010) (environmental impacts from logging do not automatically establish irreparable harm)
  • Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508 (9th Cir. 1994) (ESA constrains courts’ traditional equitable discretion in injunctions)
  • Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (ESA favors species in hardship balancing)
  • United States v. Howell, 231 F.3d 615 (9th Cir. 2000) (district court discretion to consider new evidence on objections to magistrate recommendations)
  • Greenhow v. Secretary of Health & Human Services, 863 F.2d 633 (9th Cir. 1988) (new arguments raised first on objection to magistrate generally barred absent exceptional circumstances)
  • S.W. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998) (ESA 60-day notice is jurisdictional and must be detailed)
  • Conservation Congress v. U.S. Forest Service, 720 F.3d 1048 (9th Cir. 2013) (discussion of Winter in ESA injunction context)
  • Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990) (legal issues raised first in reply briefs are waived)
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