United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge.
the Court is the Organizational Plaintiffs' Joint Motion
for Temporary Restraining Order and Preliminary Injunction
(Doc. 252) and pro se plaintiff Robert Aland's motion for
an injunction pursuant to the All Writs Act, 28 U.S.C. §
1651, and Federal Rule of Appellate Procedure 8(a)(1) (Doc.
251), which the Court construes as a motion for a temporary
restraining order and preliminary injunction. The
Organizational Plaintiffs' Motion is supported by the
Declarations of scientists Barrie K. Gilbert and David J.
Mattson (Docs. 253-1 & 252-2).
Court held a hearing on August 30, 2018, addressing the
merits of the Plaintiffs' legal challenges to the recent
delisting of the Greater Yellowstone Ecosystem Grizzly bear.
See 82 Fed. Reg. 30, 502 (June 30, 2017). Following
that hearing, the Plaintiffs filed the present motions,
seeking to restrain the Defendants and Defendant-Intervenors
from authorizing or implementing grizzly bear hunting on
September 1, 2018. The Defendants and Defendant-Intervenors
have not yet responded to the motions. Nonetheless, pursuant
to Federal Rule of Civil Procedure 65(b), the Court is
satisfied that a temporary restraining order
("TRO") is warranted.
analysis "is substantially identical for [a preliminary]
injunction and [a] TRO." Stuhlbarg Intern. Sales Co.
v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th
Cir. 2001). Plaintiffs "must establish that [they are]
likely to succeed on the merits, that [they are] likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tip in [their] favor, and that
an injunction is in the public interest." Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
However, in Endangered Species Act ("ESA") cases,
the Court "presume[s] that remedies at law are
inadequate, that the balance of interests weighs in favor of
protecting endangered species, and that the public interest
would not be disserved by an injunction."
Nat'l Wildlife Fed'n v. Nat'l
Marine Fisheries Serv., 886 F.3d 803, 817 (9th Cir.
2018). Thus, here the Plaintiffs must demonstrate only that
irreparable harm is likely and that they are likely to
succeed on the merits.
light of the stated purposes of the ESA in conserving
endangered and threatened species and the ecosystems that
support them, establishing irreparable injury should not be
an onerous task for plaintiffs." Cottonwood Envtl.
Law Ctr. v. USFS, 789 F.3d 1075, 1091 (9th Cir. 2015).
Here, the threat of death to individual grizzly bears posed
by the scheduled hunt is sufficient. Indeed, "[h]arm to
... members [of endangered species] is irreparable because
once a member of an endangered species has been injured, the
task of preserving that species becomes all the more
difficult." Nat'l Wildlife Fed'n, 886
F.3d at 818 (internal quotation marks, alteration, and
citation omitted). Moreover, members of the Organizational
Plaintiffs, as well as pro se Plaintiff Robert Aland, have
established personal interests in continued enjoyment of the
species. The Organizational Plaintiffs have submitted
substantial documentation of potential harm to the species
(Docs. 253-1 & 252-2) and to the organizations'
members (Docs. 75-1, 75-2, 75-3, 75-4, 75-5, 186-3, 186-6,
the "balance of hardships tips sharply [in the moving
party's] favor" and the Winter factors are
otherwise satisfied, it is enough for a plaintiff to
demonstrate the existence of "serious questions going to
the merits." Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
"Serious questions on the merits" are those
questions that present a "fair ground for litigation and
thus for more deliberative investigation." Republic
of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th
the Court finds that the Plaintiffs' arguments raise
"serious questions going to the merits." At
minimum, the current issue is close to that recently
presented in Humane Society of the United States v.
Zinke, 865 F.3d 585 (D.C. Cir. 2017), in which the D.C.
Circuit Court of Appeals held that Fish and Wildlife Service
violated the Administrative Procedure Act and the ESA when it
isolated and delisted a distinct population segment without
considering the legal and functional impact on the remainder
of the species.
ORDERED that the motions (Docs. 251 & 252) are GRANTED IN
PART. The motions are granted to the degree that the
Plaintiffs seek a temporary restraining order. Defendants and
Defendant-Intervenors are temporarily restrained and enjoined
from authorizing and/or implementing grizzly bear hunting.
This Order shall remain in effect for fourteen days from this
FURTHER ORDERED that the Court will withhold ruling on the
motions to the degree that the Plaintiffs seek a preliminary