From the Billings Gazette:
In denying the request to halt the project as the lawsuit plays out, Christensen found that the alliance and council waited too long to file its lawsuit. Citing issues finding legal counsel, the lawsuit and request to temporarily halt the project came after logging and other activities had begun. But the delay “undercut their claim of imminent harm,” the judge ruled.
“Being experienced environmental litigants, plaintiffs should have known of the project and its impending timeline in the spring,” Christensen wrote. “Ground operations began in late June and early July. Although Plaintiffs could have filed suit when Helena Hunters did in mid-March, they waited three months to file and then another two months to seek emergency relief. The delay of even a few months – significant months in terms of project implementation – is a significant delay in the life of a timber sale operation.”
Christensen further found that the alliance and council did not fully allege harm to grizzly bears if the project proceeds during trial.
“Plaintiffs do not assert that grizzly bears or their habitat are likely to be irreparably harmed if the project is allowed to continue during the pendency of this litigation,” the judge wrote. “Nor can the court find evidence of irreparable harm to the species, given that the Ten Mile Project is located in a grizzly bear linkage zone (which is critical to the species survival in the long term) but the project’s impacts are alleged to cause only short term.”
Nice to see some boundaries set.
But the court set a pretty low bar. Here’s a couple of other facts that distinguish this situation:
“The Court’s decision to halt the project now while the parties complete briefing on their motions for summary judgment would only prevent that work scheduled for the final weeks before snowfall brings much of the Project to its seasonal intermission.”
“At this point, an injunction would only prevent the Forest Service from doing what will occur through natural forces in the next few years” (since it is a salvage sale).
This is also a species that is not irreparably harmed by removal of trees, but arguably only temporarily harmed by the human activities associated with logging in a “linkage area” that arguably is not “occupied” by grizzly bears.
The dearth of “competent counsel” is an interesting twist that should be enlightening to those who believe in the super powers of environmental litigants (it has been an issue in other Montana cases), even though the court seems to dismiss it: “While the Court is sympathetic to NEC’s claim that it had difficulty finding counsel (Doc. 40-2 at 4), this difficulty does not negate the impression that if the need for a preliminary injunction had been deemed essential in the spring, counsel could have been found.” While the court doesn’t mention it, it might have considered the fact that the other plaintiffs in the consolidated case did not ask for an injunction (nor did they offer their attorney).