Alliance for the Wild Rockies v. Paul Bradford

MEMORANDUM *

In 2009, Appellant Alliance for the Wild Rockies (“Alliance”) moved to enjoin the Forest Service from implementing the Grizzly Project based on violations of the Endangered Species Act (ESA), the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA). The district court granted summary judgment for the Forest Service on the ESA claim but enjoined the Grizzly Project on the basis of NFMA and NEPA violations. The Forest Service later moved to dissolve the injunction on the ground that it had cured the NFMA and NEPA deficiencies previously identified by the district court. Alliance opposed the motion and reasserted its ESA claim. The district court granted the motion, finding the NFMA and NEPA deficiencies cured, declining to revisit the ESA claim, and dissolving the injunction. Alliance now appeals.

We have jurisdiction under 28 U.S.C. § 1292 (a)(1). Reviewing the district court’s order dissolving the injunction for an abuse of discretion, and the legal determinations underlying the dissolution de novo, N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886 , 889 (9th Cir.1992), we affirm.

“Because NFMA and NEPA do not provide a private cause…

FILED

NOT FOR PUBLICATION FEB 26 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES, No. 13-35768

Plaintiff - Appellant, D.C. No. 9:09-cv-00160-DWM

v.

MEMORANDUM*

PAUL BRADFORD, Supervisor of the Kootenai National Forest; JANE L. COTTRELL, Acting Regional Forester of Region One of the U.S. Forest Service;

UNITED STATES FOREST SERVICE,

an agency of the U.S. Department of Agriculture; U.S. FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, Senior District Judge, Presiding

Argued and Submitted February 5, 2015 Seattle, Washington

Before: FISHER, BEA, and MURGUIA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. In 2009, Appellant Alliance for the Wild Rockies (“Alliance”) moved to

enjoin the Forest Service from implementing the Grizzly Project based on

violations of the Endangered Species…

concurring:

I concur in the majority’s conclusion that the district court correctly granted the Forest Service’s motion to dissolve the injunction. But because I do not think Plaintiff-Appellant Alliance’s Endangered Species Act (“ESA”) claim is rightly before this court, I do not agree with the majority’s decision to reach the merits of that claim. I write separately to explain my reasoning.

In 2009, the Alliance filed this lawsuit in federal district court to enjoin the Forest Service from implementing the Grizzly Project. It won summary judgment on its NFMA and NEPA claims, but the district court granted summary judgment to the Forest Service on one of Alliances’s ESA claims. The grant of summary judgment to the Forest Service validated its conclusion in the 2009 Biological Assessment that the Grizzly Project was “not likely to adversely affect” the grizzly; the district court found this conclusion was neither arbitrary nor capricious. 1 The Forest Service filed an appeal of the grant of summary judgment against it on the NFMA and NEPA claims, and Alliance cross-appealed the grant of summary judgment against it on its ESA claim. So far, so good. But then the Forest Service…