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Native Ecosystem Council v. Raby

United States District Court, D. Montana, Billings Division

August 22, 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 RECOMMENDATIONS 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 Preliminary Injunction (Doc. 9) (the “Motion”). Plaintiffs seek to enjoin defendants Jon Raby, Bureau of Land Management (“BLM”), and Department of the Interior's (collectively, “Defendants”) implementation of “vegetation and riparian treatments” in the Iron Mask Planning Area (the “Project Area”) until such time as the Court can consider the merits of Plaintiffs' Complaint for Injunctive Relief. See Docs. 1, 10. For the following reasons, the Court recommends that Plaintiffs' Motion be DENIED.

         I. Pertinent Facts

         The following facts are taken from the parties' briefing, and are assumed to be true for the purposes of these Findings and Recommendations. These facts are undisputed unless otherwise noted.

         The Project Area is located in the Upper Missouri Watershed Basin near the town of Townsend, Montana. (Doc. 10 at 1.) The germane tract of the Project 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 Butte RMP.” (Doc. 15 at 6.) Plaintiffs filed comments on the Draft EA during the prescribed comment period. (Id.)

         Over three years ago, on July 1, 2015, BLM published its Final Iron Mask EA (the “EA”), and also issued the Decision Record for Vegetation and Riparian Treatments (the “Treatments Decision”). (Id.) The EA is tiered to the Butte Resource Management Plan (Id. at 7), which documented several special status wildlife species within the Project Area, including the grey wolf, 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 2, 000 acres have been performed to-date, including 200 acres in 2015, 496 acres in 2016, 455 acres in 2017, and 425 acres in the spring of 2018. (Doc. 16-1.) On July 18, 2018, work was also commenced on hand-cutting and slashing an additional 416 acres. That project was completed on August 4, 2018. (Doc. 32 at ¶ 2.)

         At a hearing on the instant Motion (Doc. 30), Defendants represented that only two additional treatments are currently scheduled. There is an additional round of “lop and scatter” scheduled on roughly 263 acres. (Doc. 32 at ¶ 4.) This treatment was scheduled to begin August 17, 2018, but Defendants have filed a notice indicating that the treatment likely will begin September 4, 2018, but in any case no sooner than August 27, 2018. (Doc. 35.) No other treatments are planned for this fiscal year. (Doc. 32 at ¶ 5.) In the spring of 2019, however, a prescribed burn is scheduled for the same 416 acres which were hand-cut and slashed in July and August 2018. Id.

         Plaintiffs now seek to enjoin Defendants from performing any more treatments until the Court has the opportunity to consider the merits of their claims against Defendants.

         II. Legal Standard

         “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).

         The Ninth Circuit has established a “sliding scale” approach to the application of these requirements. Under that analysis, 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). 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).

         III. Discussion

         A. Dr. Sara ...


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