Friends of the Wild Swan v. Weber

In order to obtain a preliminary injunction against an agency, a party must demonstrate (1) a likelihood of success on the merits of a claim, and (2) that irreparable harm will ensue in the absence of preliminary relief; Also, an agency’s findings will be set aside only where particular actions are arbitrary and capricious.

In 2011, after conducting an Environmental Assessment (“EA”) in consultation with the United States Fish and Wildlife Service (“USFWS”), the United States Forest Service (“Forest Service”) authorized two logging projects in Montana’s Flathead National Forest. The Forest Service determined that the logging projects would not adversely affect threatened species and habitats under the Endangered Species Act (“ESA”). The Friends of the Wild Swan (“Wild Swan”) challenged the Forest Service’s decision, claiming it violated the National Environmental Policy Act (“NEPA”), National Forest Management Act (“NFMA”), and ESA. The district court denied preliminary injunctive relief. On appeal, the Ninth Circuit Court held that the Forest service did not arbitrarily and capriciously define the geographic scope of the EA under NEPA. That is, the Forest Service correctly analyzed potential cumulative effects on the environment and thus had discretion to limit the geographic scope accordingly in order to determine whether significant adverse environmental effects required additional assessments. On the NFMA claim, the panel concluded that Wild Swan did not establish a likelihood of success on the merits of their claim vis-à-vis the impact on wildlife because the Forest Service has discretion to determine which scientific methodologies to implement in conducting the EA. The panel further held that the Forest Service did not utilize an excessively narrow action area in the EA and therefore did not violate ESA, which required the Forest Service to consult with the USFWS to evaluate direct and indirect effects on the species and habitat in a particular action area, the Forest Service having discretion to chose which scientific methods to utilize in choosing the action area in question. Given the foregoing, the panel concluded that Wild Swan failed to establish that the logging projects posed a likelihood of irreparable harm in the absence of preliminary injunctive relief. AFFIRMED.