Native Ecosystems Council v. Krueger

348 F. Supp. 3d 1065
CourtDistrict Court, D. Montana
DecidedOctober 15, 2018
DocketCV 12-27-M-DLC
StatusPublished
Cited by3 cases

This text of 348 F. Supp. 3d 1065 (Native Ecosystems Council v. Krueger) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Native Ecosystems Council v. Krueger, 348 F. Supp. 3d 1065 (D. Mont. 2018).

Opinion

Dana L. Christensen, Chief Judge

Before the Court is Federal Defendants' Motion to Alter Judgment and Dissolve Injunction (Doc. 55). On May 24, 2013, this Court enjoined the Fleecer Mountains Project ("the Project") until the Forest Service and Fish and Wildlife Service ("FWS") corrected certain deficiencies under the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") identified in this Court's remand order. (Doc. 27.)

There, Plaintiffs claimed that the Project and the Beaverhead-Deerlodge National Forest Plan ("Forest Plan") violated various environmental laws because the Forest Service failed to complete consultation with the FWS regarding the potential effects of the "Project and Plan on grizzly bears and Canada lynx." Native Ecosystems Council v. Krueger , 946 F.Supp.2d 1060, 1066 (D. Mont. 2013). In addition, Plaintiffs argued that the Forest Plan and Project failed to disclose and apply the best available science in its decision to exclude temporary, permitted, and administrative roads from road density calculations *1068and failed to discuss the impact of temporary roads on elk. Id. This Court agreed, and enjoined the Project until the Forest Service and FWS corrected the deficiencies pertaining to lynx, grizzly bears, roads, and elk. Id. at 1067.

For the reasons explained, the Court denies the motion to dissolve the injunction. The Court will address each issue below.

LEGAL STANDARD

This Court "retains the power to modify the terms of its injunction in the event that changed circumstances require it." United States v. Oregon , 769 F.2d 1410, 1416 (9th Cir. 1985) (citations omitted). A court may "relieve a party or its legal representative from a final judgment, order, or proceeding [if] the judgment has been satisfied, released or discharged." Fed. R. Civ. P. 60 (b)(5). A party seeking a dissolution of an injunction may demonstrate that the change is warranted by showing "a significant change either in factual conditions or in law." Alliance for the Wild Rockies v. Weldon , 2011 WL 3348000, at *2 (D. Mont. Aug. 3, 2011) (quoting Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) ). A significant change in facts occurs when a party demonstrates its compliance with a court's remand order. Sharp v. Weston , 233 F.3d 1166, 1170 (9th Cir. 2000).

DISCUSSION

I. Lynx

In its remand order, the Court instructed the agencies "to consider whether lynx 'may be present' in the Forest" and to "complete any consultation that might become necessary " as a result of that determination. Native Ecosystems Council , 946 F.Supp.2d at 1067 (emphasis added). The FWS subsequently determined that lynx "may be present" across the Beaverhead-Deerlodge National Forest. (Doc. 56-7 at 1.) This caused the Forest Service to develop and issue a biological assessment in which the agency concluded that the Project "may affect, but is not likely to adversely affect" lynx. (Doc. 56-8 at 1, 3-4.) The FWS concurred. (Id. )

Federal Defendants now argue that the Court should lift the injunction because the agencies have complied with the Court's remand instructions. (Doc. 56 at 6.) Plaintiffs disagree, and argue that the site-specific biological assessment is insufficient because it does not examine the effects that the Forest Plan may have on lynx. (Doc. 63 at 28.) Plaintiffs argue that forest-wide consultation became necessary when the FWS determined that lynx "may be present" across the entire Beaverhead-Deerlodge National Forest. (Id. at 29.) In light of this unfulfilled requirement, Plaintiffs assert that the Project must remain enjoined until Federal Defendants fully comply with the Court's order. (Id. at 30.) In response, Federal Defendants assert that this Court never ordered a programmatic consult and that such consult never became "necessary." (Doc. 65 at 13.) Federal Defendants further argue that even if the Court determines that forest-wide consultation was and is required, the Court could still allow the Project to go forward. (Id. at 14.)

Federal Defendants final argument misconstrues the standard of review. The narrow question before the Court is whether Federal Defendants fully complied with the remand order. For reasons more fully explained, the Court concludes that it did not.

From the beginning, Plaintiffs asserted both a site-specific and programmatic challenge concerning lynx. See Native Ecosystems Council , 946 F.Supp.2d at 1066 ("Plaintiffs claim that the Project and the Forest Plan violate Section 7 of the Endangered Species Act"). Neither party disputes *1069that the Forest Service and FWS discharged their obligations concerning the Project. (Docs. 56 at 9; 63 at 29.) The issue is whether the FWS's determination that lynx "may be present" on the Beaverhead-Deerlodge National Forest rendered forest-wide consult necessary. To determine what is necessary, the Court turns to the ESA and its implementing regulations.

"The ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are 'threatened' or 'endangered' under specified criteria, and to designate their 'critical habitat.' " Bennett v. Spear , 520 U.S. 154, 157-58, 117 S.Ct. 1154

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Bluebook (online)
348 F. Supp. 3d 1065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/native-ecosystems-council-v-krueger-mtd-2018.