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Native Ecosystem Council v. Raby

United States District Court, D. Montana, Billings Division

July 24, 2018

NATIVE ECOSYSTEM COUNCIL and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
JON RABY, Acting State Director, the Bureau of Land Management; BUREAU OF LAND MANAGEMENT; and the DEPARTMENT OF THE INTERIOR, Defendants.

          FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          TIMOTHY J. CAVAN United States Magistrate Judge.

         Before the Court is plaintiffs Native Ecosystem Council and Alliance for the Wild Rockies' (collectively, “Plaintiffs”) Motion for Temporary Restraining Order (Doc. 11) (the “Motion”), which asks the Court to issue a temporary restraining order preventing defendants Jon Raby, Bureau of Land Management (“BLM”), and Department of the Interior (“DOI”) (collectively, Defendants) from implementing “vegetation and riparian treatments” in the Iron Mask Planning Area (the “Planning Area”) until such time as the Court has considered Plaintiffs' earlier Motion for Preliminary Injunction (Doc. 9.) For the following reasons, the Court recommends that Plaintiffs' Motion be DENIED.

         I. Pertinent Facts

         The following facts are taken from the parties' briefing on the instant Motion[1] and are assumed to be true for the purposes of these Findings and Recommendation. These facts are undisputed unless otherwise noted.

         The Planning Area is located in the Upper Missouri Watershed Basin near the town of Towsend, Montana. (Doc. 10 at 1.) The germane tract of the Planning Area consists of 19 BLM-owned parcels totalling 26, 235 acres. (Id. at 2.) BLM completed a draft Environmental Assessment (the “Draft EA”) in 2014, which, according to Defendants, “analyzed three management alternatives designed to improve land health, enhance biodiversity, and address management needs of a recent BLM land acquisition; address management of a forage reserve allotment created by the Butte Resource Management Plan (“RMP”); and provide for continued livestock grazing as described in the [RMP].” (Doc. 15 at 6.) Plaintiffs filed comments on the Draft EA during the prescribed comment period. (Id.)

         On July 1, 2015, BLM both published its Final Iron Mask EA (the “EA”) and issued the Decision Record for Vegetation and Riparian Treatments (the “Treatments Decision”). (Id.) The EA is tiered to the RMP (Id. at 7), which documented several special status wildlife species within the Planning Area, including grey wolves, Brewer's sparrow, golden eagle, McCown's longspur, sage thrasher, Northern leopard frog, and westslope cutthroat trout. (Doc. 10 at 3-4.)

         The Treatments Decision approved vegetation and riparian treatment on up to 5, 937 acres in 6 units. (Doc. 7 at 7.) Treatments on roughly 1, 600 acres have been performed to-date, including 200 acres in 2015, 496 acres in 2016, and 455 acres in 2017, and 425 acres in 2018. (Doc. 16-1.) Pertinent to the instant Motion is approved treatment to reduce “conifer encroachment” through burning or removal by hand or mechanical means. On June 28, 2018, “BLM awarded a [~$140, 000.00] contract for hand-cutting and slashing for a 416-acre area in the [Project Area].” (Doc. 7 at 8.) The proposed treatments contemplate “slashing and thinning all conifers/junipers to achieve a 30 foot by 30 foot spacing within a 166 acre area, as well as slashing and thinning all conifers/junipers to achieve a 10 foot by 10 foot spacing within a 250 acre area.” (Doc. 16 at ¶ 8.) No burning is contemplated until spring of 2019. (Id. at ¶ 11.)

         Work on the contract began on July 19, 2018. (Doc. 7 at 8) Plaintiffs now seek to restrain Defendants from performing any more treatments until the Court has the opportunity to consider the merits of Plaintiffs' Motion for Preliminary Injunction.

         II. Legal Standard

         “A temporary restraining order is intended to preserve the status quo until the court can rule upon a motion for a preliminary injunction.” Klinkenborg Aerial Spraying and Seeding, Inc. v. Rotorcraft Development Corp., 2013 WL 12109900, *2 (D. Mont. Jan. 18, 2013). The standards for a temporary restraining order (“TRO”) and a preliminary injunction are the same. Id.

         “A preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (quotations omitted). To obtain a preliminary injunction, a plaintiff must show that: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 20 (2008).

         If a plaintiff can raise “serious questions going to the merits” and “demonstrate a balance of hardships that tips sharply towards the plaintiff, ” the plaintiff is entitled to a TRO “so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The Supreme Court has emphasized that a plaintiff must show irreparable harm is “likely” and that the mere “possibility” of irreparable harm is insufficient to justify an injunction. Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc., 736 F.3d 1239, 1249 (9th Cir. 2013) (citing Winter, 555 U.S. at 22).

         III. Discussion

         The Court finds that Plaintiffs are unable to demonstrate a likelihood of irreparable harm, and therefore ...


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