FRIENDS OF THE CLEARWATER; and ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. JEANNE HIGGINS, Idaho Panhandle National Forest Supervisor; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; and UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendants, and STIMSON LUMBER COMPANY, Intervenor-Defendant.
Case No. 2:20-cv-00243-BLW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
Filed 07/13/20
INTRODUCTION
Before the Court is Plaintiffs’ Motion for Preliminary Injunction. Dkt. 7. The Court held a hearing on the motion on June 25, 2020. For the reasons that follow the Court will deny the motion.
BACKGROUND
On October 3, 2019 the U.S. Forest Service issued a Decision Notice and Finding of No Significant Impact (FONSI) for the Brebner Flat project. FONSI, Dkt 24-2. The Brebner Flat project is located in the St. Joe Ranger District of the Idaho Panhandle National Forests in Shoshone County, Idaho. Id. The project area includes the Theriault Creek, Kelly Creek, Williams Creek, and Siwash Creek drainages within the St. Joe River watershed. EA, Dkt. 24-1 at 1. The northern boundary of the project includes the wildland-urban interface of Avery, Idaho and Forest Highway 50. Id. at 6. Shoshone County has identified this area as an area of concern for their Community Wildfire Protection Plan. Id. The northern boundary of the project is also within the St. Joe Wild and Scenic River Corridor. Dkt 24-2 at 9. However, there are no activities proposed within the corridor. Id.
The goals of the project are: 1) To improve forest health and increase vegetation resilience to large scale disturbances such as wild fire, drought, and disease; 2) provide sustainable use of natural resources and benefit local communities; and 3) reduce hazardous fuels to lessen wildfire severity and enable safe fire suppression efforts. Id. at 1. The project area is almost 12,000 acres and will include approximately 1,700 acres of timber harvest and prescribed burning. Dkt. 24-1 at 1. Approximately 10.5 miles of roads will be constructed or reconstructed for the project. Id. at 9-10.
In early 2018 the Forest Service issued a scoping notice soliciting public comments on the project. Id. at 6. A draft Environmental Assessment (EA) was issued in March 2019. Id. The final EA was issued in June 2019. Dkt. 24-1.
The Final EA found that no federally endangered or threatened wildlife species were likely to be affected by the project. Id. at 25. To determine whether any listed species were present in the project area the Forest Service checked the U.S. Fish and Wildlife Service (USFWS) Information and Planning and Consultation (IPaC) maps for Idaho.1 Wildlife Report, Dkt 24-5 at 3; Hendricks Dec., Dkt. 24-6. The IPaC
The wildlife report considered, but did not analyze in detail, impacts to canada lynx and grizzly bears. Dkt 24-5 at 10. The wildlife report found that there would be no effect to lynx because there was a lack of suitable habitat in the project area and lynx are not known or suspected in the project area. Id. at C-1. The wildlife report based its analysis on the Northern Rockies Lynx Management Direction and noted there is no lynx critical habitat on the St. Joe Ranger District, and the nearest Lynx Analysis Unit is 15 miles from the project area. Id.
The wildlife report also determined the project would have no effect on grizzly bears. Id. This determination was based largely on the lack of grizzly bear occurrence on the St. Joe Ranger District or the project area. The wildlife report noted that although, “based on current knowledge, the potential for grizzly bear occurrence on the St. Joe Ranger District and in the project area cannot be totally dismissed, there is nothing to suggest any occurrence other than the possibility of transient individuals; with even the potential for that considered to be unlikely.” Id. The wildlife report went on to state the “St. Joe Ranger District is not within any Bear Management Unit, linkage zone, or area of known grizzly bear use.” Id.
In response to the Plaintiffs’ notice of intent to sue, the Forest Service asked the USFWS for information regarding bears that have been found near the project area. Dkt. 7-9. The letter notes that a radio collared bear traveled from, and returned to, the Selway-Bitterroot in 2019. While the bear traveled into the Idaho Panhandle National Forest it was never closer than 15 miles to the project. Id. The letter noted that a 2007 bear mortality, and 2018 radio located bear were “also not close to the project area.” Id. In 2017, biologists from the Idaho Department of Fish and Game collected one grizzly bear scat sample from a den approximately 12 miles south of the project area. Dkt. 7-10. The biologists were not able to confirm what type of animal used the den, and no grizzly bears were recorded visiting bait stations set a little less than a mile from the den site. Id. On the other hand, the Idaho Department of Fish and Game hunting regulations warn black bear hunters that grizzly bears may be found in big game unit 7, in which the project area sits.2 Dkt. 7-12.
The EA does not explicitly state how the seasonal ATV trail closure would be implemented. Dkt. 24-1 at 27. However, the wildlife report shows that the closure would be implemented by installing a gate on the ATV trail. Dkt. 24-5 at 16-17. The EA discusses in some detail how gates are monitored to ensure the security of the gates in elk security habitat. Dkt. 24-1 at 27. The EA notes that gates on the ranger district are generally secure, but there are 5-10 “problem” gates that need to be monitored or repaired annually. Id. The wildlife report indicates that current levels of elk security in the area have been established by seasonally closing roads to motorized use during elk hunting season. Dkt. 24-5 at 18.
On page 1 of the EA it states that the “project area ... does not include ... the wild and scenic river corridor.” On page 7 the EA states that “the wild and scenic river corridor is not proposed for timber harvest.” While the FONSI states that parts of the northern boundary of the project fall within the St. Joe Wild and Scenic River Corridor, no activities are proposed in the corridor, and a section 7(a) evaluation was completed. Dkt. 24-2 at 9.
The EA considered impacts to the hydrology of the tributaries that flow into the St. Joe River. Dkt. 24-1 at 19. It also considered the impact to fisheries, specifically the potential for sediment generated from the project to reach the St. Joe River. Id. at 33. The fisheries section of the EA also called out impacts to the St. Joe River. Id. at 37. The project maps attached to the EA also show the project area bordering the St. Joe River.
The Forest Service prepared a section 7(a) Evaluation for the Wild and Scenic Rivers Act for the project.3 Dkt. 24-10. The evaluation specifically considered the removal of 15 culverts in the Siwash tributary, which are considered water resource projects. Id. The evaluation found that the culvert removals would not diminish the scenic, recreation, fish, or wildlife, values
The Forest Service received comments from Friends of the Clearwater regarding the lack of analysis in the EA on impacts to the Wild and Scenic River Corridor. Dkt. 24-4 at 8, 11. In its response to these comments the Forest Service noted that the Wild and Scenic Rivers Act was addressed in Appendix B of the Recreation Report, and concluded that no activities were planned in the corridor, and that water resource activities had been evaluated in a section 7(a) analysis.
Plaintiffs now seek a preliminary injunction to prevent timber harvest and road construction in the Brebner Flat Project. Plaintiffs allege the Forest Service violated the Administrative Procedures Act in the following ways: 1) by failing to request a species list from the USFWS and by failing to prepare a biological assessment that included grizzly bears and canada lynx as required by the Endangered Species Act (ESA); 2) by failing to take a hard look at the cumulative effects of the project on the elk population and failing to analyze the efficacy of the proposed mitigation measure as required by the National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA); and 3) by failing to take a hard look at potential impacts to the St. Joe Wild and Scenic River Corridor.
LEGAL STANDARD
A. Administrative Procedures Act
Plaintiffs’ claims are reviewed under the Administrative Procedure Act (“APA“),
B. Preliminary Injunction
The party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities/hardship tips in their favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def Council, 555 U.S. 7, 20-23 (2008). Since Winter was decided, the Ninth Circuit has held that the “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Even in cases involving endangered species, “there is no presumption of irreparable injury where there has been a procedural violation” of a federal environmental statute. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015).
ANALYSIS
A. Likelihood of Success on the Merits
1. Endangered Species Act – Grizzly Bears and Lynx
The question presented by Plaintiffs’ claim is whether the ESA requires the action agency to request a list of endangered or threatened species that may be present in the project area, and prepare a biological assessment for any species that may be present, even though the agency has determined that the project will have no effect on the species. Plaintiffs, citing the language of the ESA,
The ESA provides that:
Each Federal agency shall, in consultation with and with the assistance of the Secretary [of Interior], insure that any action authorized, funded, or carried out by such agency ([hereinafter] “agency action“) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species .... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.
To facilitate compliance with the requirements of subsection (a)(2), each Federal agency shall, with respect to any agency action of such agency ... request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any
endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated ... and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency‘s compliance with the requirements of section 102 of the National Environmental Policy Act of 1969
Id.
The regulations implementing the above sections of the ESA were promulgated by the USFWS and National Marine Fisheries Service in 1986. 51 Fed. Reg. 19926 (June 3, 1986);
The Services interpreted
biological assessment to assist with its determination in any action.
The Services, relying on the Conference Report to the 1978 ESA amendments, determined that the provisions of
The issue here is whether the plain language of
In a case decided before the regulations were promulgated, the Ninth Circuit described the requirements of the ESA as follows:
The Act prescribes a three-step process to ensure compliance with its substantive provisions by federal agencies. Each of the first two steps serves a screening function to determine if the successive steps are required. The steps are:
- An agency proposing to take an action must inquire of the [USFWS] whether any threatened or endangered species “may be present” in the area of the proposed action. See
16 U.S.C. § 1536(c)(1) .- If the answer is affirmative, the agency must prepare a “biological assessment” to determine whether such species “is likely to be affected” by the action. Id. The biological assessment may be part of an environmental impact statement or environmental assessment. Id.
- If the assessment determines that a threatened or endangered species “is likely to be affected,” the agency must formally consult with the USFWS. Id.
§ 1536(a)(2) .
Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985). The Ninth Circuit went on to state that
[o]nce an agency is aware that an endangered species may be present in the area of its proposed action, the ESA requires it to prepare a biological assessment to determine whether the proposed action “is likely to affect” the species and therefore requires formal consultation with the [USFWS].... Without a biological assessment, it cannot be determined whether the proposed project will result in a violation of the ESA‘s substantive provisions.
Id. In Thomas, the Ninth Circuit was considering whether the Forest Service violated the ESA by failing to request a species list from USFWS and prepare a BA for the grey wolf, which the Forest Service recognized, may be present in the area of planned forest road.
Since Thomas, and the promulgation of the regulations, the bulk of Ninth Circuit authority describes the ESA as requiring consultation only when the action agency has determined that its action “may affect” a listed species. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447–48 (9th Cir. 1996).9 Defendants rely on this line of caselaw to argue that, because the Forest Service has discretion to determine whether its action may affect a listed species in the first place, before initiating consultation, and because the requirements
The issue here, however, is not whether the Forest Service needs to initiate consultation, but instead whether it needs to follow the requirements of
This Court is aware of three district court cases within the Ninth Circuit addressing the issue presented here. In two of the cases the courts rejected the agencies’ arguments that, because the agency action was not a major construction activity, they were not required to request a species list or prepare a BA. Native Ecosystems Council v. Marten, 2020 WL 1479059, at *4 (D. Mont. Mar. 26, 2020); Ctr. for Food Safety v. Johanns, 2006 WL 2927121, at *1 (D. Haw. Oct. 11, 2006).10 In W. Watersheds Project v. Bureau of Land Mgmt., 552 F. Supp. 2d 1113, 1139-40 (D. Nev. 2008), the court agreed with the agencies that
requires a BA if the agency action is a major construction activity.11
In Marten the court rejected many of the same arguments Defendants make here. There the court found that Congress had clearly spoken on the issue through
First,
Second, subsection (c)(1) does not limit the applicability of its requirements in any way; by its terms it applies to “any agency action.” True, it does reference contracts for construction. But that reference is only to make clear (1) that the statute did not apply to contracts for construction that had already been signed, and (2) that the requirements must be met before a contract for construction is signed. Nothing about those two references expressly or implicitly exclude agency actions
where there is no contract for construction.12
By its plain terms
2. NEPA/NFMA - Elk
Plaintiffs challenge the Forest Service‘s analysis regarding elk, arguing that the agency failed to take the required hard look at the cumulative impacts of the project to the elk population, and failed to address the efficacy of the proposed mitigation measure in violation of
“An EA must include brief discussions of the need for the [federal action], of reasonable alternatives, and of the anticipated environmental impacts.” Hapner v. Tidwell, 621 F.3d 1239, 1244 (9th Cir.2010); see also
40 C.F.R. § 1508.9(b) . An EA need not meet all the requirements of an EIS, but “it must be sufficient to establish the reasonableness of the decision not to prepare an EIS.” Ctr. for Biological Diversity v. Nat‘l Highway Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir.2008) (internal quotation marks and brackets omitted).
The majority of the EA‘s wildlife analysis focuses on the projects impact to elk security habitat, but not its impact on the elk population. However, both the EA and wildlife report discuss motorized access management as an important tool for managing elk populations because of their popularity as a hunted species. Dkt. 24-1 at 26; Dkt. 24-5 at 15 (“elk are particularly vulnerable to disturbance emanating from increased human access into elk habitat“). The forest plan addresses elk population management through the concept of “elk security” and sets goals related to maintaining or improving elk security habitat. Dkt. 24-1 at 26. The Forest Plan has two goals related to elk security habitat: 1) “Management activities in elk management units should maintain existing levels of elk security,” 2) “Over the life of the Plan, increase by 3 the number of high or medium priority elk management units... that provide >30 percent elk security.” Dkt. 24-14 at 31, 32. Unit 7-6 is a low priority unit because of the limited opportunity to improve elk security, which is due to the large amount of private land in the unit. Dkt. 24-5 at 16. The Forest Service considers all private land in the unit as “not secure.” Id. The large amount of private land, and harvest on that land, in the unit ensures sufficient forage, however it also limits the amount of security habitat. Id.
Plaintiffs urge that the EA considered the cumulative impacts of the project on elk security habitat, it did not consider the cumulative effect on the elk population itself. However, the EA and wildlife report explicitly link elk security habitat to the elk population itself. The wildlife report considered the cumulative impacts of timber harvest, fire suppression, pre-commercial thinning, and public activities to elk security habitat. In its initial analysis the Forest Service had considered amending the Forest Plan to account for the reduction in security habitat due to the project. However, the Forest Service decided it could create additional security habitat through the seasonal closure of an ATV trail. While the EA has a brief discussion of cumulative effects to elk security habitat, and in turn the elk population, the wildlife report provides a thorough discussion of the cumulative effects of the project to elk security habitat. While the Plaintiffs may disagree with the Forest Service‘s conclusion, they have not raised serious
Under
While the agency is not required to develop a complete mitigation plan detailing the precise nature of the mitigation measures, the proposed mitigation measures must be developed to a reasonable degree. A perfunctory description, or mere listing of mitigation measures, without supporting analytical data, is insufficient to support a finding of no significant impact.
Id. (citations omitted).
Plaintiffs repeatedly argue that the Forest Service will use a “sign” to implement the seasonal closure of the ATV trail and that the Forest Service has not discussed the efficacy of such a measure. However, both the EA and wildlife report contemplate that a gate or gates will be used. Dkt. 7-5 at 27. The EA also discusses the Forest Service‘s plan to monitor all gates on the district and address gates that are breached or driven around, ensuring the effectiveness of these measures. Accordingly, the Court finds that Plaintiffs have failed to raise serious questions as to whether the Forest Service complied with
The Plaintiff also argues the EA fails to comply with the Forest Plan. The Forest Service violates
Here the Forest Service considered the possible reduction of elk security habitat in unit 7-6, which is a low priority unit. It then decided to seasonally close an ATV trail to increase elk security habitat. Because the court finds that the Plaintiffs’ have not raised serious questions relating to the Forest Service‘s
3. Wild and Scenic Rivers Act – St. Joe River
The
Plaintiffs emphasize the initial misstatement in the EA that the project area is not in the wild and scenic river corridor. Defendants, however, assert the Forest Service corrected the mistake in the FONSI. The EA states “the project area . . . does not include . . . the wild and scenic river corridor.” Dkt. 7-5 at 6. When discussing regeneration harvest treatments, the EA states “the wild and scenic river corridor were not proposed for timber harvest.” Id. at 12. The first reference to the corridor was incorrect, as the project area falls within the corridor. However, the second reference is correct, because no actual timber harvest was proposed in the corridor. The FONSI corrected the misstatement by explaining that, “[p]arts of the northern boundary of the project area falls within the St. Joe Wild and Scenic River Corridor (WSR). There are no activities proposed within the WSR corridor.” Dkt. 7-3 at 8.
The Plaintiffs argue, however, that the public was not given an opportunity to comment on the potential harms to the wild and scenic river corridor because it was not included in the EA and the misstatement was not corrected until after the public comment opportunity had passed. Dkt. 7-1 at 22. Plaintiffs further argue that the Forest Service failed to take a “hard look” at the impacts of the project to the corridor. The project includes the removal of 15 culverts in the Siwash tributary of the St. Joe River. Dkt. 24-10 at 1. These culvert removals are considered water resource projects under the
On the one hand, the EA mentions these culvert removals but does not specify whether they are located on tributaries to the St. Joe River. Dkt. 24-1 at 35. The EA never explicitly mentions impacts to the Wild and Scenic River Corridor nor the Section 7(a) evaluation that was prepared. The recreation report, included as an appendix to the EA, contains a brief statement related to the section 7(a) analysis and includes the analysis as a two page appendix. Dkt. 24-11 at 7; Dkt. 24-10. The section 7(a) evaluation provides a brief discussion of the culvert removals on the corridor and references the analysis of the Biological Assessment for fisheries. Dkt. 24-10.
On the other hand, the EA discussed in detail the impacts of the project to hydrology and fisheries in tributaries of the St. Joe River and to the river itself. Dkt. 24-1 at 19, 33. The EA also discussed impacts to scenery and recreation resources, including to the St. Joe River. Id. at 29, 30. Here, the main area of concern for the culvert removals, and the project generally, is an increase in sediment into the St. Joe River which may affect bull trout and their critical habitat. The Forest Service prepared a biological assessment for bull trout and received concurrence from the USFWS that the project may affect, but is not likely to adversely affect, bull trout and designated critical habitat. Dkt. 25-4, 25-5. The concurrence noted that, while the project may increase sediment loads in tributaries to the St. Joe, the sediment will settle out before reaching the St. Joe River.
While the EA could have been more explicit that the project area fell within the corridor, Plaintiffs have not raised serious questions on the merits of the Forest Service‘s compliance with the
B. Irreparable Harm
Since the Plaintiffs have shown a likelihood of success on the merits as to the
The FONSI was issued for the project in September 2019. However, Plaintiffs waited to file their complaint until May 20, 2020 and filed a motion for injunctive relief on June 1, 2020. Intervenor, Stimson Lumber, is set to begin project work on July 15. Plaintiff‘s delay suggests they did not perceive the project as creating an irreparable harm. However, in cases where courts have found that delay argues against an injunction the motion for injunctive relief was filed after work on the project had begun. Helena Hunters & Anglers Ass‘n v. Marten, 2019 WL 5069002, at *2 (D. Mont. Oct. 9, 2019). Ultimately delay is not enough to deny Plaintiffs’ motion. See id.
The irreparable harm inquiry is flexible as “environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.” League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 764 (9th Cir. 2014). Of course, this does not mean that “any potential environmental injury” warrants an injunction. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Further, the harm prevented by entry of a preliminary injunction must legitimately relate to the legal theory asserted in a case. See Garcia v. Google, Inc., 786 F.3d 733, 744 (9th Cir. 2015).
Certainly, there will be environmental harm from road construction and timber harvest activities. But, is this harm irreparable, rising to the level of injunctive relief? Plaintiffs argue that
[i]f operations are allowed to proceed as planned, the area will be irreversibly degraded because once logging occurs, the Forest Service cannot put the trees back on the stumps, and once the road work occurs, the Forest Service cannot remove the sedimentation from the bull trout habitat. Thus, our interests in the area will be irreparably harmed to the point that the area is no longer adequate for our esthetic, recreational, scientific, spiritual, vocational, and educational interests. Therefore, this specific project will likely cause irreparable damage to our members’ interests because it will harm our members’ ability to view, experience, and utilize the area in its undisturbed state and thus prevent the use and enjoyment by our members of hundreds of acres of the Forest.
Dkt. 7-1 at 6. Plaintiffs have also offered a declaration of Jeff Juel that suggests the Plaintiffs’ members interests will be harmed due to their interest in “viewing, studying, and enjoying elk, grizzly bears, lynx, bull trout and other wildlife species
Most of Plaintiffs statements of harm are only general allegations which do not relate to any of their legal theories in this case. Their concerns about elk, bull trout, and sedimentation are negated by the Courts finding that they have not raised a serious question going to the merits of their
Certainly, the concern about the project‘s impacts to grizzly bears and lynx would constitute irreparable harm if Plaintiffs had shown a likelihood that those species would be harmed by the project. However, they have not. Plaintiffs make general allegations that roads allow poachers to shoot grizzly bears, and that mother bears teach their cubs to stay away from roads. Dkt. 7-2 ¶ 5. Plaintiffs make no specific allegations of harm with regard to lynx beyond their members’ ability to enjoy lynx in the project area.
The problem here is how speculative Plaintiffs claims of harm are with regard to grizzly bears and lynx. The Court recognizes a transient bear may wander near the project area. However, no bears have ever been identified in the project area, there is no known bear population in the St. Joe Ranger District and the project area is not in critical bear habitat, a Grizzly Bear Recovery Area, nor even in the Bitterroot Grizzly Bear Evaluation Area. Dkt. 7-13 at 29-30. At most three grizzly bears have come within 12-15 miles of the project area in the past three years.
With regard to lynx, the project area is not in a Lynx Analysis Unit or critical habitat and there is a low amount of suitable habitat in the western half of the St. Joe Ranger District. Id. at 29. Further, lynx are not known or suspected in the project area due to the lack of suitable lynx habitat. Id. Plaintiffs must show more than a possibility of harm to an endangered species, they must show a likelihood of harm. Cottonwood, 789 F.3d at 1089. Even though “establishing irreparable injury should not be an onerous task,” Plaintiffs have failed to meet this low bar. Id. at 1091.
Accordingly, the Court finds that Plaintiffs have not shown a likelihood of irreparable harm from the project going forward.
C. Public Interest and Balance of equities
When the government is a party, the analyses of the public interest and balance of equities merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Plaintiffs did not meaningfully address the public interest or balance of equities. Instead, they relied on the statement in Cottonwood that “courts do not have discretion to balance the parties’ competing interests in
With regard to the public interest, the Ninth Circuit has recognized “the well-established public interest in preserving nature and avoiding irreparable environmental injury.” Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir. 2008). But, there is no irreparable injury here. On the other hand, the project is designed to reduce hazardous fuels and the threat of wildfire in the wildland-urban interface of Avery and improve the ingress and egress routes should there be a fire. See Dkt. 24 at 26. The project will also contribute to the local economy and is broadly supported by the local community. Id. Accordingly, the Court finds that the public interest and balance of equities tips in favor of the Defendants.
D. Conclusion
Plaintiffs have shown a likelihood of success on the merits of their
ORDER
IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Dkt. 7) is DENIED.
DATED: July 13, 2020
B. Lynn Winmill
U.S. District Court Judge
Notes
(a) Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in paragraph (b) of this section....
(b) Exceptions.
(1) A Federal agency need not initiate formal consultation if, as a result of the preparation of a biological assessment under § 402.12 or as a result of informal consultation with the Service under § 402.13, the Federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to adversely affect any listed species or critical habitat.