Western Watersheds v. Bennett, et al

Filing 463

MEMORANDUM DECISION AND ORDER denying 433 Motion to Stay. The permittees shall be required to move their cattle off the enjoined allotments when conditions allow, but in no event later than 5/3/2011. The Clerk shall set a hearing on the 431 Motion to Set Aside Judment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)(emailed to jlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT
Case No. CV 04-181-S-BLW

Plaintiff,
v.

MEMORANDUM DECISION
AND ORDER

STEVEN ELLIS, Director, Idaho State
Office, Bureau of Land Management; RICK
VANDERVOET, Jarbidge Field Manager,
BLM; BUREAU OF LAND MANAGEMENT,
an agency of the United
States,
Defendants.

INTRODUCTION
The Court has before it a motion to stay the injunction filed on August 1, 2005.
See Memorandum Decision and Order (Dkt. 123). The motion is fully briefed and at
issue. For the reasons explained below, the Court will deny the motion but will give the
permittees until May 3, 2011, to remove the cattle from the enjoined areas.
BACKGROUND
In 2005, the Court enjoined grazing on 28 allotments in the Jarbidge Resource
Area (JRA). Thereafter, the parties reached agreement in a Stipulated Settlement
Agreement (SSA) to, among other things, allow grazing to proceed under Interim Grazing
Management Plans (IGMPs) through 2010. When the parties were unable to agree on

Memorandum Decision & Order - 1

extending the IGMPs into the 2011 grazing season, the BLM brought a motion to extend
the conditions. The Court denied the motion, refusing to extend an agreement when there
was no longer any agreement.
The dissolution of the IGMPs meant that grazing was once again enjoined on the
28 allotments, as the Court’s original decision was never withdrawn and remains in
effect. The BLM accordingly notified permittees that they needed to move their cattle off
the 28 allotments.
The permittees responded by filing a motion to set aside the Court’s injunction, on
the ground of improved conditions, and a motion to stay the injunction until the motion to
set aside the injunction could be resolved. The parties agreed to a temporary stay of the
injunction on three pastures until the Court could resolve the motion to stay.
ANALYSIS
If granted, a stay would essentially give the BLM and permittees the same relief
they requested in their motion to extend the IGMPs. For that reason, the motion to stay
should be denied on the same grounds as the motion to extend the IGMPs.
It is not quite that simple, however. The motion to stay raises two additional
grounds. First, removing the cattle now will require bunching them together and cause
trampling damage to wet, muddy ground. Second, two permittees (Camas Creek and
Cedar Creek) have over 2,000 cows (on 5 different pastures) that have just given birth or
are about to do so. These newly-born calves could die or become seriously weakened by
having to walk long distances if required to move off the pastures where they are now
Memorandum Decision & Order - 2

located.
With regard to the first argument, there will always be damage caused by the
bunching of cattle when they are removed from an allotment pursuant to an injunction
enjoining grazing. If that became a reason to stay the injunction, no injunction on grazing
would ever take effect. The Court therefore rejects this argument.
The second argument is stronger but ultimately not persuasive. The Declarations
explaining the dangers of moving birthing cows stated that the calving should end about
now. While calves face dangers walking long distances, the Declaration of Kenneth Cole
shows that an improved main road runs by many of these allotments, and would be
available for hauling cattle. The permittees respond that the road is too muddy to use.
See, e.g. Oman Declaration (Dkt. 456) ¶ 28 at p. 9. But Cole describes a semi-truck with
a livestock trailer traveling on the road on March 1, 2011, and includes a photograph of
the truck. See Cole Declaration (Dkt. 447-3) at p. 7. It would appear that even if the road
is too muddy at times, it is passable at other times.
In the final analysis, the Court cannot find either reason compelling enough to
warrant staying the injunction. The Court will, however, give the permittees a window to
time to move the cattle in order to avoid muddy and impassible roads. In addition, the
Court will direct the Clerk to set an evidentiary hearing as soon as possible on the motion
to set aside the injunction.
The Court recognizes that the injunction is causing substantial financial losses to
the permittees. However, the Court’s injunction is now in effect due to dissolution of the
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agreement of the parties and the BLM’s original violations of NEPA, FLPMA, and the
JRA RMP. Until that injunction is lifted, the cattle must be removed.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to stay (docket
no. 433) is DENIED.
IT IS FURTHER ORDERED, that the permittees shall be required to move their
cattle off the enjoined allotments when conditions allow, but in no event later than May 3,
2011.
IT IS FURTHER ORDERED, that the Clerk set a hearing on the motion to set
aside injunction (docket no. 431).

DATED: April 13, 2011

B. LYNN WINMILL
Chief Judge
United States District Court

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