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; BUREAU OF LAND MANAGEMENT; and the DEPARTMENT OF THE INTERIOR, Defendants.
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
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.
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
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.)
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.)
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 ¶
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.
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.
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).
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).
Dr. Sara ...