Am. Forest Res. Council v. Williams

MEMORANDUM OPINION

[DKT. # 29]

RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.

Plaintiffs, a trade association and several local governmental entities located in the Pacific Northwest, brought this action to challenge the defendant agencies' decision to delay, via two rules issued in March and April 2021, the effective date of a January 2021 rule designating-and, more relevantly, de-designating-portions of Washington, Oregon, and California as "critical habitat" for the northern spotted owl. Currently pending before the Court is plaintiffs' motion for a preliminary injunction, filed at the end of September 2021, through which the plaintiffs seek immediate relief enjoining the two "delay rules" on the theory that plaintiffs will suffer irreparable harm absent this Court's intervention. Because plaintiffs do not meet their burden of establishing the existence of such harm as required to justify the extraordinary relief they seek, their motion for a preliminary injunction is DENIED.

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BACKGROUND

The present dispute is the latest centered on the management of a large area of forest in the Pacific Northwest, which requires a complex balance of competing economic, environmental, and conservation priorities governed by an overlapping patchwork of statutory and regulatory directives. To say the least, such management has spawned a bevy of litigation in both this and other courts. See, e.g., Am. Forest Res. Council v. Hammond, 422 F.Supp.3d 184, 187-89 (D.D.C. 2019) (summarizing this history). Here, the plaintiffs-a trade association and several counties in the area^[1]-challenge the decision by the U.S. Fish and Wildlife Service ("FWS") and the Department of the Interior to twice delay the effective date of a rule promulgated in the final days of the previous Administration. That rule designated a new "critical habitat" area for the northern spotted owl, a threatened species that lives in portions of the forest in question, pursuant to the Endangered Species Act ("ESA"). See Revised Designation of Critical Habitat for the Northern Spotted Owl, 86 Fed. Reg. 4, 820 (Jan. 15, 2021) ("2021 Designation Rule"). The rulemaking leading to the 2021 Designation Rule was itself prompted by the settlement of previous litigation in this Court, according to which the Government agreed to update a 2012 rule designating the owl's habitat. See Mem. in Support of Pis.' Mot. for Prelim. Injunction 1 [Dkt. #29-1]; see also Designation of Revised Critical Habitat for the

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Northern Spotted Owl, 77 Fed. Reg. 71, 876 (Dec. 4, 2012) ("2012 Designation Rule"); Carpenters Indus. Council v. Jewell, Case No. 1:13-cv-00361-RJL (ECF No. 126). After the settlement was approved in April 2020, FWS promulgated a proposed rule in August 2020, which, in relevant part, removed 204, 653 acres of forest in Oregon from the owl's 2012 critical habitat designation. See Proposed Rule, Revised Designation of Critical Habitat for the Northern Spotted Owl, 85 Fed. Reg. 48, 487 (Aug. 11, 2020). On January 15, 2021, the 2021 Designation Rule was published, with the final rule ultimately excluding approximately 3, 472, 064 acres from the critical habitat, including forest in California and Washington as well as Oregon. See 2021 Designation Rule, 86 Fed. Reg. at 4, 820.

The 2021 Designation Rule did not take immediate effect, providing instead for an effective date of March 16, 2021. See 2021 Designation Rule, 86 Fed. Reg. at 4, 820. On March 1, 2021, however, FWS published a notice in the Federal Register that: (1) purported to delay the effective date of the 2021 Designation Rule from March 16 until April 30, 2021; and (2) "open[ed] ¶ 30-day comment period to allow interested parties to comment on issues of fact, law, and policy raised by [the 2021 Designation Rule] and whether further delay of the effective date is necessary." See Revised Designation of Critical Habitat for the Northern Spotted Owl; Delay of Effective Date, 86 Fed. Reg. 11895 (Mar. 1, 2021) ("First Delay Rule"). On March 5, 2021, the plaintiffs filed their first Complaint in this proceeding, challenging the validity of the First Delay Rule under the APA, and on March 23, 2021, the plaintiffs moved for summary judgment. See generally Compl.; Pis.' Mot. For Summ.J. [Dkt. # 13].

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Subsequently, on April 30, 2021, FWS published a second notice in the Federal Register, this time informing the public that the effective date of the 2021 Designation Rule would be delayed until December 15, 2021. See Revised Designation of Critical Habitat for the Northern Spotted Owl; Delay of Effective Date, 86 Fed. Reg. 22, 876 (Apr. 30, 2021) ("Second Delay Rule"). In that notice, FWS stated that further delay was "necessary to avoid placing undue risk on the conservation of northern spotted owl caused by allowing exclusions from its designated critical habitat to go into effect while the Service prepares a revision or withdrawal of the January 15, 2021, rule through additional rulemaking to address apparent defects." Id. Thereafter, in July 2021, FWS issued a proposed rule to withdraw the 2021 Designation Rule and instead implement a new habitat designation that excluded 204, 797 acres from the 2012 habitat area. See Revised Designation of Critical Habitat for the Northern Spotted Owl, 86 Fed. Reg. 38, 246 (July 20, 2021), In August 2021, plaintiffs sought leave of this Court to amend their Complaint, seeking to add both new ESA-based claims against the First Delay Rule as well as APA and ESA claims against the Second Delay Rule. See Pis. Mot. for Leave to File Second Compl. [Dkt. # 26]^[2]And finally, on September 27, 2021, the plaintiffs filed their currently pending motion for a preliminary injunction, asking this Court to enjoin the First and Second Delay Rules and thereby make effective the 2021 Designation Rule in light of what plaintiffs claim to be "irreparable injury" caused by the "unlawful" delays. See Pis.' Mot.

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for Prelim. Injunction [Dkt. # 29]; Mem. in Support of Pis.' Mot. for Prelim. Injunction 1-4, 45.

LEGAL STANDARD

Because it is an "extraordinary remedy," a preliminary injunction "should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). The requirements for obtaining such an injunction are well established: a plaintiff must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (citations omitted).^[3] Our Circuit has traditionally applied a "sliding scale" approach to these four factors, pursuant to which "a strong showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Though the ongoing validity of this approach has been called into question following the Supreme Court's decision in Winter, it has not been overruled and thus remains the law of this Court. See, e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018). In any event, even under the sliding-scale approach, the plaintiff "must demonstrate at least some injury for a preliminary injunction to issue." Chaplaincy of Full Gospel Churches v. England, 454 F.3d...