In a decision issued on April 29, Federal District Judge Dana Christensen denied a request from the Friends of the Bitterroot for a Preliminary Injunction/Temporary Restraining Order to stop the Bitterroot National Forest from proceeding with a timber sale associated with the Darby Lumber Lands II Project.
The Forest Service acquired the former Darby Lumber Company lands back in 2005 and 2013. The land had been heavily roaded and logged by the company. Many of the roads were not built to Forest Service standards and have not been properly maintained, resulting in heavy sedimentation. The Forest Service designed the Darby Lumber Lands II Project to develop a suitable transportation system throughout the Project area, and to improve watershed and forest health.
Specifically, the Project will decommission 39 miles of road, place 16 miles into long-term storage, construct 4.3 miles of permanent road and 1.9 miles of connector routes. This will result in a net reduction of approximately 38 miles of open road during the summer months.
The Forest Service authorized the project in July 2019. It then awarded a timber sales contract to Pyramid Mountain Lumber in mid-September 2019. Friends of the Bitterroot (FOB), a local non-profit conservation organization, was presented a copy for review in late October 2019 and filed suit to stop the project on February 19. Then, on April 10, 2020, FOB filed the motion for a preliminary injunction/temporary restraining order.
Road work on the project is set to begin in early May. Timber harvest is estimated to begin in October once the road work is complete.
The judge notes that a plaintiff seeking an injunction must show that: (1) it is likely to suffer irreparable harm absent a preliminary injunction, (2) it is likely to succeed on the merits, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. When the gfovernment is a party, the analyses of the final two elements merge.
In order to obtain a preliminary injunction, a plaintiff must allege more than the possibility of harm. A plaintiff must demonstrate that absent such an order, irreparable harm is likely. Analysis of this element probes the timeframe of the litigation. A court must determine that a preliminary injunction is required to prevent harm likely to occur before it can decide the case on the merits. Courts addressing this element often note that a delay on the part of the plaintiff in filing suit or seeking an injunction cuts against finding imminent irreparable harm.
Judge Christiansen quotes a few cases in which it was found that “a Plaintiff’s long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm. And another in which it was found that “a delay in seeking a preliminary injunction is a factor to be considered in weighing the propriety of relief.”
Forest Service attorneys asserted that the allegation made was only a generic allegation of harm and that the organization’s delay in filing suit and seeking an injunction undermines its concern that any harm is imminent. The Court agreed.
FOB also asserted that an environmental injury “by its nature” satisfies the irreparable harm element because such an injury “can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.” FOB argued that an injunction is necessary to protect its members’ ability to “view, experience and utilize the area in [its] undisturbed state” because “once logging occurs, the Forest Service . . . cannot put trees back on the stumps and unbuild roads.”
Judge Christiansen called it a “stock allegation” that he said “fails to address the particular circumstances of the Project.”
“Plaintiff asserts that logging and road work pose an imminent threat to the quiet seclusion of the forest but fails to acknowledge that the Project will not commence logging activities until October—by which time the Court can decide the case on the merits. Furthermore, Plaintiff’s complaint that the interim road work will jeopardize the otherwise undisturbed environment is particularly anemic in this context. The bulk of the road work targets those areas where roads already disturb the natural landscape, casting doubt on Plaintiff’s assertion that the work planned will interfere with its members’ ‘aesthetic, recreational, [and] . . . spiritual . . . interests’ in enjoying the natural areas in an undisturbed state,” wrote Christiansen.
“What’s more,” he wrote, “the majority of the road work advances Plaintiff’s interests.” He reasons that although the Project proposes to construct 4.3 miles of permanent new roads, it will decommission 39 miles of other roads, resulting in a net decrease of approximately 38 miles of roads.
“Plaintiff’s allegation that any harm will be irreparable because the Forest Service cannot ‘unbuild roads’ is senseless is this context,” states Christiansen. He found a preliminary injunction was not warranted because the plaintiff failed to allege an injury that is likely to follow from the Project’s upcoming activities.
Christiansen goes on to say that his conclusion is further compounded by FOB’s four-month delay in filing suit and additional seven-week delay in seeking an injunction, an issue he says the plaintiff failed to address in its brief.
“A delay measured in months followed by an eleventh-hour motion for a preliminary injunction calls the imminence of the alleged harm into doubt,” he wrote.
Christiansen agreed with the Forest Service attorneys that, if FOB had promptly filed suit upon learning of the contract award, this case could have been fully briefed on summary judgment by now. As the attorneys stated in their brief, given the fact that logging is not planned until October, and the road work proposed on the whole furthers the plaintiff’s interests in enjoying the forest in an undisturbed state by closing portions of the existing road network, the Court can mitigate any remaining potential harm by imposing an aggressive briefing schedule and issuing a timely decision on the merits. Because this element is not met, the Court need not address the remaining elements.
Christiansen expressed his agreement and denied the requested Restraining Order. He ordered both parties to confer and propose a briefing schedule for the motions for summary judgment and wants them fully briefed by August 14, 2020.
Larry Campbell, Conservation Director for the Friends of the Bitterroot, said that they were disappointed in the ruling, but still hoping to win the case on its merits.
Campbell said the long delay in filing suit was not due to lack of any feeling of urgency on their part but just the time it took to put their case together and seek counsel.
“It’s unfortunate that it took us so long,” said Campbell, “but the judge has not ruled on the merits of the case and we do believe we have a strong case on the merits even though we weren’t able to forestall the roadbuilding. We still think we are going to win the case. It’s just sad that there will be this unnecessary roadbuilding in the meantime.”
The Forest Service did not answer a request for comment on the decision in time for publication.