Or. Natural Desert Ass'n v. Bushue
| Decision Date | 29 March 2022 |
| Docket Number | Case No. 3:19-cv-1550-SI |
| Parties | OREGON NATURAL DESERT ASS'N, Audubon Society of Portland, and Defenders of Wildlife, Plaintiffs, v. Barry BUSHUE, State Director of BLM Oregon/Washington, and Bureau of Land Management, an agency of the United States Department of Interior, Defendants, and Cahill Ranches Inc., an Oregon Corporation, Defendant-Intervenor |
| Court | U.S. District Court — District of Oregon |
Peter Macnamara Lacy, Oregon Natural Desert Association, 2009 NE Alberta Street, Suite 207, Portland, OR 97211; and David H. Becker, Law Office of David H. Becker, llc, 24242 S Engstrom Road, Colton, OR 97017. Of Attorneys for Plaintiffs.
Barclay T. Samford, Arwyn Carroll, and Luther Langdon Hajek, U.S. Department of Justice, Environment & Natural Resources Division, 1961 Stout Street, 8th Floor, Denver, CO 80294. Of Attorneys for Defendants Barry Bushue and Bureau of Land Management.
Caroline Lobdell and Tate F. Justesen, Western Resources Legal Center, 9220 SW Barbur Blvd., Suite 327, Portland, OR 97219. Of Attorneys for Defendant-Intervenor Cahill Ranches Inc.
Plaintiffs bring this action challenging Defendants’ authorization of grazing on pastures containing 13 Research Natural Areas (RNAs) for the 2022 season. Plaintiffs allege that Bureau of Land Management (BLM) regulations required Defendants to install fencing to section off the RNAs from surrounding pastures so that they would not be grazed and provide baseline data for research into the recovery of sage grouse habitat. Plaintiffs claim that Defendants have unlawfully withheld compliance with that requirement. Defendants respond that under the Federal Land Policy and Management Act (FLMPA) and its regulations, they were required to send two-year notices to permittees and lessees of those pastures and that under the National Environmental Policy Act (NEPA), they are required to conduct site-specific analyses of the environmental impact of fencing before any fencing is installed. Defendants contend they are currently reviewing the impact of the proposed fencing. Plaintiffs move for a temporary restraining order (TRO) enjoining Defendants from allowing grazing on the pastures that contain the RNAs, which would not require additional fencing. For the reasons below, the Court denies Plaintiffs’ motion.
In deciding whether to grant a motion for temporary restraining order (TRO), courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001).
A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) that an injunction is in the public interest. Id. at 20, 129 S.Ct. 365 (). The Supreme Court's decision in Winter , however, did not disturb the Ninth Circuit's alternative "serious questions" test. See All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, " ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus , 697 F.3d 706, 725 (9th Cir. 2012).
In addition, a TRO is necessarily of a shorter and more limited duration than a preliminary injunction.1 Thus, the application of the relevant factors may differ, depending on whether the court is considering a TRO or a preliminary injunction.2 Indeed, the two factors most likely to be affected by whether the motion at issue is for a TRO or a preliminary injunction are the "balancing of the equities among the parties" and "the public interest." Finally, "[d]ue to the urgency of obtaining a preliminary injunction at a point when there has been limited factual development, the rules of evidence do not apply strictly to preliminary injunction proceedings." Herb Reed Enters., LLC v. Fla. Entmt. Mgmt., Inc. , 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) ; see also Johnson v. Couturier , 572 F.3d 1067, 1083 (9th Cir. 2009).
The Greater Sage-Grouse is a bird that depends on large expanses of sagebrush grasslands. Today, fewer than 16,000 sage grouse remain in Oregon. In 2010, the U.S. Fish and Wildlife Service determined that Endangered Species Act protection was warranted for the sage grouse due to a loss and fragmentation of habitat. The Fish and Wildlife Service ultimately declined to include the sage grouse as an endangered species due to other species with higher priorities. Nevertheless, BLM and the U.S. Forest Service (USFS) have developed protections for the sage grouse, some of which include minimizing the impact of livestock grazing.
Livestock grazing is one of many factors that have contributed to sage grouse population decline. BLM and USFS have determined that livestock impact sage grouse habitat by consuming native plants, trampling shrubs, contributing to soil erosion, and spreading weeds. Other factors not affected by livestock grazing, however, also impact sage grouse habitat, such as the spread of juniper. Carefully managed livestock grazing may also help mitigate fire risks, which in turn benefits sage grouse habitat.
In 2015, BLM and USFS issued a series of conservation plans designed to promote the protection of sage grouse. Among those plans was the 2015 Oregon Greater Sage-Grouse Record of Decision/Approved Resource Management Plan Amendment (2015 ARMPA), which made 15 RNAs unavailable for livestock grazing. BLM and USFS set aside these key RNAs to provide a set of control data for research on the restoration of sage grouse habitat. The 2015 ARMPA provides that BLM will not issue any new grazing permits for those key RNAs and will make the RNAs unavailable to grazing for existing permitholders within five years. When the 2015 ARMPA was issued, livestock had already been removed from two of the RNAs. To close off the remaining 13 RNAs, the 2015 ARMPA explains that BLM will have to take additional steps such as building approximately 39 miles of fencing and deciding whether to remove existing fences, corrals, or water storage facilities. The fencing is necessary to section off the RNAs from adjacent BLM land that will remain available for grazing.
In accord with the 2015 ARMPA, BLM did not issue any new grazing permits for the key RNAs.3 In June 2017, Defendant-Intervenor Cahill Ranches (Cahill) filed a lawsuit challenging the validity of the 2015 ARMPA.
Shortly after Cahill filed its lawsuit and after a change in administration, BLM issued the 2018-2019 Sage-Grouse Resource Management Plan Amendment (2019 ARMPA), which altered the priorities of the 2015 ARMPA and again made the previously identified 15 RNAs available for grazing. Plaintiffs filed this lawsuit in September 2019, challenging the validity of the 2019 ARMPA. One month later, another district court enjoined BLM from implementing the 2019 ARMPA and reinstated the 2015 ARMPA. See W. Watersheds Project v. Schneider , 417 F. Supp. 3d 1319, 1335 (D. Idaho 2019).
After the injunction issued, BLM took up the planning and decision making process necessary to close off the 13 remaining RNAs. In January 2020, BLM issued two-year notices to grazing permittees and lessees for pastures containing the RNAs. These notices advised the permittees and lessees that BLM may decrease permitted use or cancel their permit or lease due to the decrease in public land available for grazing. After issuing the notices, several BLM field offices began the scoping process to ensure that new fencing would minimize impact on other resources within the RNAs. In the process, BLM identified several resource conflicts between the proposed new fencing and Wilderness Study Areas and sage grouse leks. BLM then examined other methods it could use to close off the RNAs without causing resource conflicts, which include establishing range line agreements with permittees, requiring active herding, removing water developments, and adjusting the timing of available grazing.
BLM also began site-specific NEPA analyses of the impacts of installing fencing to close the RNAs and evaluate the identified alternatives to fencing. This analysis aimed to identify potential adverse impacts of the fencing, including interference with sage grouse leks, populations of sensitive plants, cultural resources, local wildlife populations, and habitat. In December 2021 and January 2022, BLM issued notices that opened a 30-day scoping period seeking public comment on the proposed fencing. The periods of public comment closed in January and February 2022, and BLM is reviewing the public comments it received. BLM has been able to close one of the key RNAs by reaching a voluntary range-line agreement with one of the permittees.
As noted above, Plaintiffs filed this lawsuit in 2019, one month before another district court enjoined Defendan...
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