W. Watersheds Project v. Bernhardt

• Decision Date: 05 June 2019
• Docket Number: Case No. 2:19-cv-0750-SI
• Citation: 391 F.Supp.3d 1002
• Parties: WESTERN WATERSHEDS PROJECT, Center for Biological Diversity, and WildEarth Guardians, Plaintiffs, v. David BERNHARDT, Secretary of the Interior, Jeffrey Rose, District Manager Burns District Bureau of Land Management, and Bureau of Land Management, Defendants.
• Court: U.S. District Court — District of Oregon

391 F.Supp.3d 1002

WESTERN WATERSHEDS PROJECT, Center for Biological Diversity, and WildEarth Guardians, Plaintiffs,

v.David BERNHARDT, Secretary of the Interior, Jeffrey Rose, District Manager Burns District Bureau of Land Management, and Bureau of Land Management, Defendants.

Case No. 2:19-cv-0750-SI

United States District Court, D. Oregon.

Signed June 5, 2019

David H. Becker, Law Office of David H. Becker, LLC, 4110 SE Hawthorne Blvd. No. 168, Portland, OR 97214; Talasi B. Brooks, Western Watersheds Project, Inc., P.O. Box 2863, Boise, ID 83701; Paul David Ruprecht, Western Watersheds Project, Inc., PO Box 12356, Reno, NV 89510. Of Attorneys for Plaintiffs.

Billy J. Williams, United States Attorney, and Stephen J. Odell, Assistant United States Attorney, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, United States District Judge

Plaintiffs bring this action challenging Defendants' grant of a renewed Grazing Permit (the "Permit") to Hammond Ranches, Inc. ("HRI") on four allotments—Mud Creek, Hammond, Hammond FFR, and Hardie Summer. Plaintiffs argue that then-Secretary of the Interior Ryan Zinke¹ and Defendant Bureau of Land Management ("BLM") acted arbitrarily and capriciously in violation of the Administrative Procedures Act ("APA")² because they failed to follow the requirements of the National Environmental Policy Act of 1969 ("NEPA"),³ the Federal Land Policy and Management Act of 1976 ("FLPMA),⁴ and applicable BLM regulations. Plaintiffs allege that Defendants violated these statutes and regulations when Secretary Zinke ordered that HRI's previous grazing permit be renewed without conducting the analyses required by the FLPMA, BLM regulations, and NEPA, and under the 2015 Oregon Greater Sage-Grouse Approved RMP Amendment ("GSG-ARMPA"). Plaintiffs also allege that Defendants violated these statutes when BLM issued a categorical exclusion environmental review and approval ("CX") and the approved Permit without performing the required analyses. Plaintiffs further allege that they were not provided copies of the Permit and CX until April 2019, after the first wave of grazing had already begun.

Plaintiffs filed a motion for temporary restraining order ("TRO") and preliminary injunction to enjoin grazing on the four allotments. Before the Court is Plaintiffs' TRO motion. Plaintiffs request an order temporarily enjoining Defendants from allowing turnout and grazing of livestock on the Mud Creek and Hardie Summer allotments, until the Court can adjudicate Plaintiffs' motion for preliminary injunction. Defendants respond to Plaintiffs' motion for a TRO by arguing that Plaintiffs have not demonstrated that they will suffer irreparable harm in the absence of immediate temporary relief, and that the balance of the equities and public interest considerations do not support issuing a temporary restraining order. Defendants do not argue that Plaintiffs have failed to show a likelihood of success on the merits. Defendants also did not dispute most of the facts presented by Plaintiffs. On June 3, 2019, the Court held a hearing on Plaintiffs' motion. For the reasons discussed below, the Court grants Plaintiffs' motion for a temporary restraining order.

STANDARDS

A. Motions for Temporary Restraining Order

In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction.⁵ 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. Defense 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) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20, 129 S.Ct. 365 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

The Supreme Court's decision in Winter , however, did not disturb the Ninth Circuit's alternative "serious questions" test. 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 the context of a contested (i.e. , not ex parte ) TRO, some district courts have explained that the requirement of a likelihood of irreparable harm should be evaluated only in the intervening period between when the TRO motion is heard and when a motion for preliminary injunction can be decided. See, e.g. , Shelley v. Am. Postal Workers Union , 775 F. Supp. 2d 197, 202 (D.D.C. 2011) ; Trefelner v. Burrell Sch. Dist. , 655 F. Supp. 2d 581, 588-89 (W.D. Pa. 2009). These cases generally cite to Rule 65(b) of the Federal Rules of Civil Procedure, which relates to ex parte TROs, or to Supreme Court or circuit court case law involving ex parte TROs, without explanation for why those authorities should apply to a contested TRO. The Court could not find, and Defendants did not cite, any appellate decision applying this standard to a contested TRO. Most cases, however, when considering irreparable harm in the context of a contested TRO, cite the standard of irreparable harm applicable to a motion for preliminary injunction and do not limit consideration of the plaintiff's claimed irreparable harm only to the time period before a preliminary injunction motion can be heard. See, e.g. , Marin All. for Med. Marijuana v. Holder , 866 F. Supp. 2d 1142, 1159 (N.D. Cal. 2011) ; Zango, Inc. v. PC Tools Pty Ltd. , 494 F. Supp. 2d 1189, 1194 (W.D. Wash. 2007).

The Court concludes that in considering irreparable harm for a contested TRO, the Court is not limited only to harm that may occur before a preliminary injunction motion can be heard. Instead, when a plaintiff seeks preliminary injunctive relief, the Court may look to whether the plaintiff has shown a likelihood of irreparable harm occurring between the time of the motion and when a final decision on the merits can be entered.

Additionally, "a temporary restraining order serves a purpose different from that of a preliminary injunction. ‘The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.’ "

Garcia v. Yonkers Sch. Dist. , 561 F.3d 97, 107 (2d Cir. 2009) (quoting Pan Am. World Airways, Inc. v. Flight Eng'rs' Int'l Ass'n, PAA Chapter , 306 F.2d 840, 842-43 (2d Cir. 1962) ); see also Procter & Gamble Co. v. Bankers Tr. Co. , 78 F.3d 219, 226 (6th Cir. 1996) ("[T]he purpose of a TRO under Rule 65 is to preserve the status quo so that a reasoned resolution of a dispute may be had."); Bronco Wine Co. v. U.S. Dep't of Treasury , 997 F. Supp. 1309, 1313 (E.D. Cal. 1996) ("The purpose of a TRO is to preserve the status quo pending a full hearing on a preliminary injunction."). The Court therefore considers whether the status quo would materially change before a preliminary injunction could be heard.

B. National Environmental Policy Act

NEPA "is our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a).⁶ "NEPA requires that ‘to the fullest extent possible ... all agencies of the Federal Government shall’ complete an environmental impact statement (EIS) in connection with ‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.’ " San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581, 640-41 (9th Cir. 2014) (alteration in original) (quoting 42 U.S.C. § 4332(2)(C) ). "In addition to the proposed agency action, every EIS must ‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to that action. 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.’ " Ctr. for Biological Diversity v. U.S. Dep't of Interior , 623 F.3d 633, 642 (9th Cir. 2010) (second citation omitted). The purpose of NEPA is twofold: "(1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public." N. Plains Res. Council, Inc. v. Surface Transp. Bd. , 668 F.3d 1067, 1072 (9th Cir. 2011). "In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences." Lands Council v. Powell , 395 F.3d 1019, 1027 (9th Cir. 2005) (citation omitted).

C. Federal Land Policy and Management Act and BLM Regulations

Grazing on federal lands is governed by, among other statutes and regulations, the Taylor Grazing Act of 1934⁷ ("Taylor Grazing Act") and the FLPMA. The Taylor Grazing Act requires persons seeking to graze livestock on public lands to obtain a permit from the Department of the Interior. The Taylor Grazing Act provides for the "orderly use, improvement, and development of the range" on public lands, 43...