Home » Case Summaries » 2015 » Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014)

 
 

Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014)

 

Friends of the Wild Swan and the Swan View Coalition (collectively, Wild Swan)[1] sought preliminary injunctions against the United Staes Forest Service (USFS)[2] to enjoin two logging projects in Montana’s Flathead National Forest. Wild Swan claimed that the proposed logging projects violated the National Environmental Policy Act of 1969 (NEPA),[3] the National Forest Management Act of 1976 (NFMA),[4] and the Endangered Species Act of 1973 (ESA).[5] The United States District Court for the District of Montana granted summary judgment for the Forest Service on both injunctions, and Wild Swan appealed. On appeal, the Ninth Circuit affirmed the district court’s holding.

The contested logging projects in this action—the Soldier Addition Project and the Spotted Bear River Project—are each around 3,000 acres. Although Wild Swan had some initial success appealing the Soldier Addition Project, the Forest Service eventually conducted Environmental Assessments (EA) and issued Findings of No Significant Impact (FONSI) with regard to each project. The EAs referenced one another but determined there would be no significant, cumulative effects. Wild Swan therefore challenged the authorization of both projects in district court and sought preliminary injunctions. A preliminary injunction requires the party to show that it “is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.”[6] Where a moving party can only show “serious questions going to the merits,” rather than likelihood of success, it may still obtain an injunction if “the balance of hardships tips sharply in the plaintiff’s favor.”[7] The Ninth Circuit reviewed the district court’s denial of the preliminary injunctions for abuse of discretion.

The Ninth Circuit first analyzed Wild Swan’s NEPA claims to determine whether they were likely to succeed on the merits. Wild Swan argued that the EAs did not satisfy NEPA because they did not assess the project’s cumulative impacts. Wild Swan believed the geographic scope of the EAs was too narrow and consequently did not correctly assess the impacts on lynx, grizzly bear, and fisheries. USFS responded that it had discretion to determine the scope of the assessment based on practicality, and that analyzing too large an area, rather than the specific area affected, could dilute the magnitude of the impact. The Ninth Circuit held that USFS had not arbitrarily set the scope of the EAs under NEPA. As a result, the Ninth Circuit determined that Wild Swan had failed to show a likelihood of success, or even a serious question on the merits, and therefore denied the preliminary injunction on NEPA grounds.

The Ninth Circuit next analyzed Wild Swan’s claims under NFMA. Wild Swan made two arguments that USFS did not comply with its forest plan. Wild Swan first argued that USFS violated its lynx management plan—which banned logging in habitat areas for favored lynx prey—by using an impermissible new methodology for classifying whether certain areas were actually habitat. However, the Ninth Circuit held that USFS’s methodology was entitled to deference, and that therefore the district court did not abuse its discretion in holding that the logging projects did not violate the Lynx management plan. Wild Swan next challenged USFS’s use of fisher habitat as a proxy for determining the effect of the logging plans on the fisher.[8] However, USFS argued that fisher population is difficult to measure because they are solitary creatures and that surveys conducted over the past decade showed no evidence of fisher population decline. The Ninth Circuit deferred to the USFS’s determination regarding an adequate fisher population in the project area because USFS had used the best available scientific methods. Consequently, the Ninth Circuit held that, because Wild Swan failed to show that there was a likelihood of success or even a serious question on the merits of its NFMA claims, the district court did not abuse its discretion by denying a preliminary injunction.

Lastly, the Ninth Circuit analyzed Wild Swan’s ESA claim. Wild Swan argued that USFS had considered too narrow an area when assessing the impacts of the proposed projects on bull trout, lynx, and grizzly bear. It argued that USFS should instead have considered the entire area of the proposed projects. The Ninth Circuit held that its reasoning regarding the NEPA claims applied with equal force to the ESA concerns for the lynx and grizzly bear. As to the bull trout, the Court held that an informal consultation between USFS and United States Fish and Wildlife Service satisfied the ESA requirements.

In sum, the Ninth Circuit held that the district court did not abuse its discretion in denying the preliminary injunctions. First, the court held that Wild Swan had failed to show a likelihood of success on the merits of its NEPA claims because the EAs on the various potentially affected species satisfied NEPA. Second, the court held that Wild Swan had also failed to show a likelihood of success on the merits of the NFMA claims because USFS had relied on the best science available and because its methods were entitled to deference. Finally, the Ninth Circuit held that Wild Swan had failed to show a likelihood of success or a serious question regarding the ESA claims, relying on the same analysis it used for the NEPA claims. Accordingly, the Ninth Circuit affirmed the district court’s denial of a preliminary injunction.

 

Footnotes    (↵ returns to text)

  1. Plaintiffs are local environmental protection nonprofits devoted to advocating for the environmental health of the area surrounding the Swan Range, which falls within the Flathead National Forest.
  2. Defendants also include Chip Weber, Forest Supervisor for Flathead National Forest, Vicki Christiansen, Acting Regional Forester for the Forest Service; Daniel M. Ashe, Director of U.S. Fish and Wildlife Service.
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  5. 16 U.S.C. §§ 1531–1544 (2012).
  6. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).
  7. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis added).
  8. The Ninth Circuit described the fisher as “a medium-sized, forest-dependent member of the weasel family.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 948 (9th Cir. 2014).
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