YJ Guide Service, LLC v. Probert et al

Filing 2

MEMORANDUM DECISION AND ORDER re 1 MOTION for Temporary Restraining Order filed by YJ Guide Service, LLC. IT IS ORDERED that Petitioner's Application for Temporary Restraining Order (Dkt. 1 ) is DENIED WITHOUT PREJUDICE. 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 (ckh)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
YJ GUIDE SERVICE, LLC, dba
Bungalow Outfitters a Washington
limited liability company,

Case No. 3:20-mc-00111-BLW
MEMORANDUM DECISION AND
ORDER

Petitioner,
v.
CHERYL PROBERT, in her official
capacity as Nez Perce-Clearwater
National Forest Supervisor; ANDREW
SKOWLUND, in his capacity as North
Fork District Ranger of the Nez PerceClearwater National Forest; UNITED
STATES FOREST SERVICE,
Respondents.

INTRODUCTION
Before the Court is Petitioner YJ Guide Service’s Application for Temporary
Restraining Order (Dkt. 1), which the Court construes as a Motion for a TRO. The Court
has carefully reviewed Petitioner’s pleadings. For the reasons that follow the Court will
deny the motion.
BACKGROUND

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Petitioner filed this application for a TRO asking the Court to order the U.S. Forest
Service to reinstate its special use permit for guided hunts, and issue a bear bait letter to
Idaho Department of Fish and Game. Of note, Petitioner did not file a complaint—only
the TRO application.
Petitioner alleges that the USFS has wrongly suspended its special use permit for
guiding and outfitting. Petitioner suggests that the various violations of the permit cited
by the USFS are either a misunderstanding or did not happen. See Dowdy Dec., Dkt. 1-2.
Petitioner states that it began operating in 2019 and concluded the season without any
indication from the USFS of the alleged violations. Pet.’s Mem. at 3, Dkt. 1-1. Petitioner
alleges that the notice of suspension will force Petitioner to cancel its currently scheduled
bear hunts this spring, refund the fees, and likely go out of business. Id. at 4. Petitioner
believes it will prevail in its appeal of the suspension, but requests a TRO to ensure it can
continue operating while it completes the USFS appeal process. Id. at 5.
LEGAL STANDARD
The substantive standard for issuing a temporary restraining order is identical to
the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v.
John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008). Preliminary injunctive relief “is an

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extraordinary and drastic remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (citation omitted). A “possibility” of irreparable harm is insufficient;
irreparable injury must be “likely” in the absence of an injunction. Winter, 555 U.S. at 24.
Under Rule 65, a court may issue a temporary restraining order without notice to
the adverse party only if “specific facts in an affidavit or verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). Rule 65 also
requires that “the movant’s attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.” Fed.R.Civ.P. 65(b)(1)(B).
ANALYSIS
Counsel cites Rule 65, but has not complied with its provisions, or the other
requirements of the Federal Rules. A civil action is commenced by filling a complaint.
Fed. R. Civ. P. 3. Under Rule 8 a pleading that states a claim for relief must include both
“grounds for the court’s jurisdiction” and “a short and plain statement showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1)-(2). “[T]he pleading standard Rule 8
announces … demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Here, Petitioner presents the inverse of the problem that was present in Iqbal—
legal conclusions without factual support. Petitioner has provided detailed factual
allegations of the wrongful acts of Forest Service employees and the impending harm to

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its business. No doubt Petitioner is facing serious harm. But, this is the only prong of
Winter Petitioner has addressed. Petitioner has not stated the legal grounds for relief it
believes it is entitled to, nor the grounds for this Court’s jurisdiction.
Petitioner asserts that it will likely succeed on its appeal. Apparently, this is
supposed to represent likelihood of success on the merits. However, success in
convincing agency staff to re-issue a special use permit does not equate to legal success
on the merits. Without a complaint, the Court does not know what legal theory Petitioner
is pursuing, or what the merits might be. Therefore, the Court cannot conduct the
requisite balancing under Winter. It is also somewhat doubtful this Court has jurisdiction
to consider Petitioner’s claim while the Forest Service’s appeal is pending.
Finally, Petitioner’s counsel has not complied with the requirement of Rule 65 that
he “certifies in writing” any efforts he has made to give notice to the adverse party and
the reasons why that party should not be heard. Fed. R. Civ. P. 65(b)(1)(B). The Court
notes that Petitioner’s Counsel sent the TRO application to Respondents. There is no
reason, besides the alleged immediacy of the harm, that the USFS should not be heard in
this matter.
For the reasons discussed the Court will deny the TRO application without
prejudice. If Petitioner wishes to enjoin the Forest Service’s decision to suspend its
special use permit, it must do so by complying with all of the Federal Rules of Civil
Procedure, filing a complaint, stating the grounds for relief and this Court’s jurisdiction,
and adequately addressing all of the Winter factors.

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ORDER
IT IS ORDERED that:
1. Petitioner’s Application for Temporary Restraining Order (Dkt. 1) is DENIED
WITHOUT PREJUDICE.
DATED: May 6, 2020

_________________________
B. Lynn Winmill
U.S. District Court Judge

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