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Cottonwood Environmental Law Center v. U.S. Sheep Experiment Station

United States District Court, D. Montana, Missoula Division

May 30, 2019

COTTONWOOD ENVIRONMENTAL LAW CENTER, GALLATIN WILDLIFE ASSOCIATION, YELLOWSTONE BUFFALO FOUNDATION, Plaintiffs,
v.
U.S. SHEEP EXPERIMENT STATION; AGRICULTURAL RESEARCH SERVICE, Defendants.

          ORDER

          DANA L. CHRISTENSEN, CHIEF JUDGE.

         Before the Court is the Plaintiffs' Second Motion for Preliminary Injunction (Doc. 21). At the Parties' joint request, the Court will resolve this Motion on the merits as being a motion for permanent injunction and summary judgment. For the reasons stated below, Plaintiffs' Motion will be denied.

         Background

         This is Plaintiffs third lawsuit challenging the grazing of domestic sheep by Defendants in southwest Montana's Centennial Mountains. The U.S. Agricultural Research Service and Sheep Experiment Station ("Sheep Station") at issue was established in 1915 and is managed by the Agricultural Research Service. Sheep have been historically grazed on three allotments in the Centennial Mountains: the Summer West, Summer East, and the U.S. Forest Service Meyers Creek allotments. These allotments span approximately 16, 600 acres and are dissected by roughly 16 miles of the Continental Divide Trail ("CDT"). While the public is allowed access to that portion of the CDT crossing Sheep Station lands and a small transection of lands abutting the CDT, use of the remaining 16, 600 acres is strictly limited in order to "maintain the Living Laboratories status" of the Sheep Station's "high elevation rangelands." (Doc. 8 at 13.) Accordingly, the public is not allowed access to Sheep Station lands year-round.

         Defendants have been unable to graze any sheep over the last several years because of Plaintiffs' continued litigation. In 2012, Plaintiffs filed a lawsuit challenging the 2011 Biological Opinion for the Sheep Station resulting in the preparation of a new Biological Opinion. See Cottonwood Envtl. Law Or. v. U.S. Sheep Experiment Station, No. CV 12-45-M-DLC, Doc. 1 (D. Mont. Mar. 26, 2012). In 2014, Plaintiffs filed another lawsuit challenging the new Biological Opinion as well as the Sheep Station's National Environmental Policy Act ("NEPA") analysis. See Cottonwood Envtl. Law Or. v. U.S. Sheep Experiment Station, No. CV 14-192-M-DLC, Doc. 1 (D. Mont. June 23, 2014). Plaintiffs second suit was voluntarily dismissed after Defendants stated that no sheep would be grazed on Sheep Station lands "until after the completion of ongoing environmental analysis under [NEPA.]" (Doc. 4-12 at 3-4.) After Defendants had completed their environmental analysis as promised and issued an Environmental Impact Statement ("EIS"), Plaintiffs filed the present suit alleging that the Defendants violated NEPA by failing to prepare a supplemental EIS. (See Doc. 1.)

         In March 2018, Plaintiffs moved for a preliminary injunction requiring Defendants to supplement the EIS before grazing any sheep on Sheep Station lands. This Court denied Plaintiffs' motion on the basis that there was no final agency action subject to judicial review in the absence of a Record of Decision ("ROD") authorizing the grazing of sheep on Sheep Station lands. (Doc. 11 at 7-11.) The Ninth Circuit affirmed this Court's decision. (Docs. 16 at 2-3; 27 at 1.)

         In July 2018, Defendants issued a ROD authorizing the grazing of sheep on Sheep Station lands. (Docs. 20 at 3; 23 at 3.) Thereafter, Plaintiffs amended their complaint to challenge the ROD and filed the Motion presently before the Court seeking a preliminary injunction of sheep grazing until Defendants complete a supplemental EIS ("SEIS"). The Court granted the Parties' Joint Motion to Convert the Preliminary Injunction to Summary Judgment and heard argument on this matter on May 8, 2019. (Doc. 30 at 1.)

         Through a Freedom of Information Act request, Plaintiffs have obtained internal emails which, Plaintiffs contend, establish that "grizzly bears have chased sheepherders to protect sheep carcasses." (Doc. 20 at 16.) Additionally, Plaintiffs claim they have evidence that the "mysterious[ ] disappearance]" of a grizzly bear in 2012 was a likely mortality caused by a confrontation between the grizzly and sheepherders. (Doc. 22 at 8.) Plaintiffs assert that this evidence shows an increased likelihood that dangerous grizzly bear-human conflicts will occur as a result of grazing sheep on Sheep Station land.

         Plaintiffs rely upon evidence of entries in a date book that were later transcribed by Animal and Plant Health Inspection Service ("APHIS") officer Jonathan Farr in internal emails regarding grizzly bear encounters on Sheep Station lands. Plaintiffs draw attention to two entries from 2008:

July 28-Big Mountain pasture in West Summer Range. [Sheep Station] personnel chased by grizzly bear. Investigation by APHIS found evidence of grizzly activity in the vicinity, but also found black bear sign as well.
August 1-Big Mountain pasture, West Summer Range. Herder chased by bear again. 1 ewe killed possibly by black bear.

(Doc. 4-5 at 7.) As regards the mysterious disappearance of a grizzly bear in 2012, Plaintiffs rely upon a report titled "Down Collar Retrieval Information." (Doc. 4-9 at 2.) The report describes an investigation into the suspicious circumstances under which a grizzly bear monitoring collar was found underneath a rock in a small stream near a hunting camp. Because the bear itself was never found, it is a presumed mortality. The report indicates that a rifle cartridge was found approximately 300 yards from where the grizzly "was last located alive." (Id. at 6.) The report further indicates that the rifle cartridge was found on a high point where it appeared that a sheep herder had tended a flock of sheep. Additionally, the report details an encounter between the investigators and two hunters who were camped near the downed collar. The hunters became visibly nervous when the collar was discussed and one of the first things they mentioned regarding the collar was that because it was in the water, there would be no fingerprints on it. However, the report is ultimately inconclusive as to the underlying cause for the presumed mortality. (Id. at 2-8.)

         Plaintiffs contend that Defendants' failure to address these encounters in the FEIS runs afoul of NEPA and invalidates both the FEIS and ROD in this case. (Docs. 20 at 16-17; 22 at 13.) Plaintiffs request the Court vacate the ROD and enjoin sheep grazing until such time as Defendants have complied with NEPA by issuing a SEIS discussing the implications of increased grizzly bear encounters resulting from Sheep Station activities. (Doc. 20 at 17-18.)

         Legal ...


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