United States District Court, D. Montana, Billings Division
NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
JON RABY, Acting State Director, the BUREAU OF LAND MANAGEMENT; and the DEPARTMENT OF THE INTERIOR, Defendants.
P. WATTERS, UNITED STATES DISTRICT JUDGE.
Native Ecosystem Council and Alliance for the Wild Rockies
have filed a motion for preliminary injunction (Doc. 9) and a
motion for a temporary restraining order (Doc. 11) in this
case. The motions request temporary injunctions against
implementation of "vegetation and riparian
treatments" authorized by the Iron Mask project area.
These motions were referred to United States Magistrate Judge
Timothy Cavan for findings and recommendations. Judge Cavan
has issued findings and recommendations on the TRO and
recommends denying it. (Doc. 21).
filed timely objections to the findings and recommendations,
(Doc. 25), and Defendants have responded to their objections.
(Doc. 31). Plaintiffs are entitled to de novo review of those
portions of Judge Cavan's findings and recommendations to
which they properly object. 28 U.S.C. § 636(b)(1);
object to Judge Cavan's conclusion that they did not show
a likelihood of irreparable harm, and his failure to consider
all four prongs required for a TRO under Winter. (See
gen. Doc. 25). Plaintiffs do not object to Judge
Cavan's factual findings. Judge Cavan's factual
findings are adopted in full.
obtain a temporary restraining order, Plaintiffs must show:
(1) a likelihood of success on the merits; (2) a likelihood
of irreparable harm to them in the absence of preliminary
relief; (3) that the balance of equities tips in their favor;
and (4) that an injunction is in the public interest.
Winter v. Natural Res. Def Council, 555 U.S. 7,
20-23 (2008). The Ninth Circuit has held that "serious
questions going to the merits" and "a balance of
hardships that tips sharply towards the plaintiff can support
issuance of a preliminary injunction, 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). Under
this approach, "serious questions going to the
merits" requires more than showing that "success is
more likely than not;" it requires a plaintiff to
demonstrate a "substantial case for relief on the
merits." Leiva-Perez v. Holder, 640 F.3d 962,
967-68 (9th Cir. 2011).
"under Winter, plaintiffs must establish that
irreparable harm is likely, not just possible, in
order to obtain a preliminary injunction."
Cottrell, 632 F.3d at 1131 (emphasis in original).
Irreparable harm has been described as "[p]erhaps the
single most important prerequisite for the issuance of a
preliminary injunction." 11A Wright & Miller, FED.
PRAC. & PROC. § 2948. Where a plaintiff fails to
demonstrate a likelihood of irreparable harm in the absence
of preliminary relief, the court need not address the
remaining elements of the preliminary injunction standard
See Center for Food Safety v. Vilsack, 636 F.3d
1166, 1174 (9th Cir. 2011).
assert that the treatments will "imminently and
irreparably harm their members' ability to view,
experience, and utilize the ear (sic) in their undisturbed
state." (Doc. 10 at 15). Plaintiffs allege that if the
treatments proceed, the "area will be irreversibly
degraded because once logging and burning occurs, the BLM
cannot put the trees back on the stumps or unburn
trees," and their "interests in the area" will
be irreparably harmed. (Doc. 10 at 9-10). The court finds
that Plaintiffs have failed to show a particularized injury
to their interests, however, rather than an abstract injury
to the environment. Friends of the Earth, Inc. v. Laidlaw
Envtl Servs., Inc., 528 U.S. 167, 180-81 (2000) (Article
III remedies must redress an "injury to the plaintiff
rather than an "injury to the environment").
Sierra Forest Legacy v. Sherman, 951 F.Supp.2d 1100,
1111 (E. D. Cal. Apr. 15, 2013), the court considered whether
a plaintiff generally asserting irreparable injury from
harvesting old forest habitat stated an irreparable injury
sufficient for injunctive relief. Applying a case that
analyzed the less demanding injury-in-fact standard for
standing purposes, the court found that project-specific
injunctive relief may not be appropriate if plaintiffs have
not "identified any imminent [project] in any specific
area and explained how such [project] will harm their
interests." Id. at 1111 -1112 (citing
Wilderness Soc > v. Rey, 622 F.3d 1251,
1256-57 (9th Cir. 2010). The court reasoned that if a
plaintiff had to be specific in a less demanding standing
case, like Rey, plaintiffs seeking injunctive relief
would need to be at least as specific. Id.
on this analysis, the court stated that "broad and
untethered allegations of harm cannot serve as the
irreparable injury required to demonstrate the need for
injunctive relief." Id. Instead, a plaintiff
must "identify specifically planned tree cutting, link
the proposed tree-cutting to its members' specific
interests, and demonstrate how the proposed tree-cutting will
harm those interests." Id. at 1111. This Court
finds the Sierra Forest Legacy analysis persuasive,
and agrees with Judge Cavan that Plaintiffs' harm
allegations are too attenuated to justify injunctive relief.
have not identified any imminent slashing and thinning of
conifers in a specific area of the Iron Mask project area and
explained how that particular conduct will harm their
interests. Plaintiffs have not provided any statements or
evidence that their members have aesthetic or other interest
in the specific units to be treated. Plaintiffs'
statements from Michael Garrity simply lack those details.
(See e.g. Doc. 10-1, ¶ 8, Garrity Decl.
("The Project threatens myself and the Alliance and its
members with concrete and particularized injury to our
esthetic, recreational, scientific, spiritual, vocational and
educational interest in the area .. .")). The Iron Mask
project area totals 26, 235 acres. (Doc. 15 at 5). Such broad
and untethered allegations of harm cannot serve as the
irreparable injury required to demonstrate the need for