Two projects calling for prescribed burns, timber harvesting and thinning in the Flathead National Forest stayed on track after the Ninth Circuit said environmental groups did not present enough evidence to warrant halting them (Friends of the Wild Swan v. Weber. 13-35817, and Friends of the Wild Swan v. Christiansen, 13-35819).
Technically, the appeals court affirmed a district court judge's rejection of a request for injunctive relief to stop the neighboring projects -- the Spotted Bear River Project and the Soldier Addition II Project.
The district court decisions are Friends of the Wild Swan v. Weber, 955 F. Supp. 2d 1191 (D. Mont. 2013) and Friends of the Wild Swan v. Christiansen, 955 F. Supp. 2d 1197 (D. Mont. 2013).
In each case, the plaintiffs claimed that the Forest Service violated the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act. Species adversely affected by the projects include the westslope cutthroat trout, grizzly bear, Canada lynx, and bull trout, the groups said.
The selection of particular geographic areas for considering cumulative effects on lynx "was neither arbitrary nor capricious, and Wild Swan has not demonstrated a likelihood of success or serious questions
going to its NEPA claim with respect to lynx," the court said. It reached a similar conclusion with regard to the effects on grizzlies.
Regarding fisheries, the court said, in part:
Wild Swan correctly points out that the EAs did not specifically consider the impact to the main channel of South Fork if the “worst-case” scenario for both projects occurred and delivered sediment to the main channel simultaneously. However, even assuming Wild Swan has shown a possibility of success on this issue or at least serious questions on the merits, we nonetheless affirm the denial of the preliminary injunction because Wild Swan has not established a likelihood of irreparable harm to the fisheries in the absence of an injunction. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[P]laintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”). Both [Environmental Assessments] indicate it is highly unlikely that the “worst-case scenario” event (intense storm following prescribed burn) for either project would ever occur because of the seasonal timing of the burns, and thus it appears doubly unlikely that all potential sediment discharge from both projects would occur simultaneously.