|| In May 2005, the U.S. Forest Service completed the Shields River Watershed Risk Assessment to evaluate the risk of wildfire and insect loss to approximately 44,000 acres in the Smith Creek/Shields River area of the Gallatin National Forest of Montana. The analysis concluded there was a high risk of wildfire in the area, which, coupled with limited access, formed unsafe conditions for the public and firefighters. Further, the Park County Wildfire Protection Plan, completed in the spring of 2006, identified the Smith Creek area as a priority wildland-urban interface area at high risk from wildfire and a priority for fuels reduction projects. In response, the Forest Service developed—-with comments from adjacent private homeowners and state, county, and local officials and groups—-the Smith Creek Vegetation Treatment Project to address the dangerous fuel buildups and mitigate the risk of catastrophic wildfire.
The Project will reduce fuel loads on a maximum of 1,110 acres, in 10 separate units, by thinning medium- and large-diameter green conifers, selectively harvesting insect- or disease-damaged conifers, cutting small-diameter conifers, slashing trees encroaching into meadows or aspen stands, prescribed burning in meadows and the understory of treated stands, and piling and removing or burning downed woody debris. Plus, a local, quasi-governmental association is being formed to provide grant monies to local landowners to conduct fuels reduction projects on private lands.
On July 1, 2008, after unsuccessful administrative appeals, two environmental groups, the Alliance for the Wild Rockies and the Native Ecosystems Council, and a summer resident of the area, Sharon Hapner, filed suit against the Forest Service alleging violations of the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). On July 2, 2008, Ms. Hapner and the environmental groups moved for a preliminary injunction to prevent the Forest Service from implementing the Project. Because the Forest Service is not scheduled to begin implementing the Project before November 2008, on July 18, 2008, Judge Molloy denied the preliminary injunction motion and set an expedited briefing schedule.
On August 13, 2008, full-time residents and property owners Janet and Ronald Hartman filed a motion to intervene as defendants, and on August 19, 2008, the Court granted the motion.
On August 14, 2008, the plaintiffs appealed the denial of their motion for preliminary injunction to the Ninth Circuit. Their opening brief was due on September 11, 2008. On September 12, 2008, plaintiffs filed a motion to stay the appellate proceedings. That same date the Ninth Circuit granted the motion and ordered that on or before October 27, 2008, plaintiffs must file either a status report on the district court proceedings, a motion to reset the appeals briefing schedule, or a motion for voluntary dismissal of the appeal.
On August 21, 2008, the plaintiffs filed a motion for summary judgment with the district court. On September 19, 2008, the Hartmans filed a cross-motion for summary judgment and a response to plaintiffs' motion for summary judgment.
On October 30, 2008, the Court ruled for the Forest Service and the Hartmans regarding all claims except one regarding the mapping of key habitat components for elk. That matter was remanded to the Forest Service to prepare the map and the Forest Service was enjoined from beginning the project.
On June 5, 2009, environmental groups again sued, with the Center for Native Ecosystems as lead plaintiff. On June 17, 2009, the Forest Service filed a motion to dismiss those parts of the complaint already decided in Hapner v. Tidwell; that is, everything except the elk mapping ordered by the Court. On July 1, 2009, the Hartmans filed a motion to intervene. Subsequently, the Court held that this new suit was merely a continuation of the earlier suit and ruled that both motions thus were moot.
On July 27, 2009, plaintiffs filed a motion to enforce the earlier injunction and for declaratory relief, arguing that the Forest Service is violating the injunction and must cease all activity related to the fire mitigation project. On August 14, 2009, the Hartmans filed a motion to dissolve the injunction prohibiting the government from proceeding with fire mitigation pending completion of the elk habitat study. On August 17, 2009, the Forest Service filed a response to plaintiffs' motion to enforce the injunction and for declaratory relief and a cross-motion to dissolve the injunction.
On August 25, 2009, plaintiffs filed their reply in support of their motion to enforce the injunction and their response in opposition to the Forest Service and the Hartmans’ cross-motions to dissolve the injunction.
On October 8, 2009, the Court issued an order denying plaintiffs' motion to enforce the injunction and granting the motions to dissolve the injunction of the Hartmans and the Forest Service. The Court stated that the Forest Service may proceed with the Smith Creek Vegetation Project.
On October 9, 2009, the plaintiffs filed a notice of appeal. Briefing was completed and oral argument held on February 4, 2010. On February 8, 2010, the Ninth Circuit panel hearing the case issued an order staying the district court's order dissolving the permanent injunction, which would have allowed the fire mitigation project to proceed.
On September 15, 2010, the panel issued its long-awaited opinion holding that the Forest Service violated the Forest plan’s elk hiding cover standard. On April 1, 2011, after completing additional NEPA analysis, the Forest Service filed a motion to dissolve the injunction. On May 25, 2011, the Hartmans filed a notice joining in the Forest Service’s motion to dissolve the injunction.
On July 12, 2011, the district court entered an order dissolving its injunction. On August 9, 2011, the plaintiffs filed a motion for reconsideration, which the district court denied on August 11, 2011.
On September 22, 2011, the plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for a stay of the district court's ruling, which the Hartmans opposed in a filing on November 25, 2011. On November 30, 2011, the Ninth Circuit granted the motion for a stay; the Hartmans filed their brief urging the Ninth Circuit to uphold the district court's ruling.