Wild Earth Guardians et al v. Mark et al

Filing 23

ORDER denying 4 Motion for TRO. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILDEARTH GUARDIANS,
PROJECT COYOTE, WESTERN
WATERSHEDS PROJECT,
BOULDER-WHITE CLOUDS
COUNCIL, ANIMAL WELFARE
INSTITUTE,

Case No. 4:13-cv-00533-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
CHARLES A. MARK, in official
capacity as Forest Supervisor of the
Salmon-Challis National Forest, NORA
RASURE, in official capacity as
Regional Forester for Region Four,
THOMAS TIDWELL, in official
capacity as Chief of the U.S. Forest
Service, and U.S. FOREST SERVICE, a
federal agency,
Defendants.

INTRODUCTION
Plaintiffs, who comprise several local and national environmental groups, filed a
complaint and motion for temporary restraining order on December 23, 2013, against the
United States Forest Service (“USFS”) seeking an injunction to prevent a wolf and
MEMORANDUM DECISION AND ORDER - 1

coyote derby advertised for Saturday, December 28-29, 2013, in Salmon, Idaho. The
USFS filed a combined response and motion to dismiss the complaint. The Court
conducted a hearing on an expedited basis 1 regarding the motion for temporary
restraining order on Friday, December 27, 2013, at 9:30 a.m. After carefully considering
the parties’ briefs, arguments, and the relevant authorities, the Court will deny Plaintiffs’
motion for temporary restraining order. 2
BACKGROUND
On December 11, 2013, Plaintiffs learned of the December 28-29, 2013, “First
Annual Coyote and Wolf Derby,” with rules to be picked up and prizes awarded in
Salmon, Idaho, at two local sportsmen’s stores. The event is sponsored by the Salmon
Chapter for Idaho for Wildlife, a local sportsmen’s group, and is a contest hunt
specifically targeting wolves and coyotes. The advertisement explains that contestants
may enter the event for a $20 entry fee and that “all Idaho fish and game rules apply.
Public and private land hunting with permission. Hunting in Idaho only.” Ex. 1 (Dkt. 42.) 3 Registration for the contest is scheduled for December 27, 2013, between 4-8 p.m., in
Salmon, Idaho.
Coyotes can be hunted at any time in Idaho with a hunting license, and there is no
limit to the amount of animals that may be harvested. Wolves in Idaho have been
removed from protection under the Endangered Species Act since May 5, 2011, and can
1

All parties consented to the jurisdiction of a United States Magistrate Judge entering a final order in this matter.
(Dkt. 9, 15, 17.)
2
The Court need not address the standing issue raised in Defendants’ motion to dismiss, but will take the issue up
once the motion to dismiss is fully briefed.
3
Although the flyer advertised an entry fee, Idaho for Wildlife decided to drop the entry fee requirement as of
December 23, 2013, the day this lawsuit was filed. Decl. of Adler ¶ 5 (Dkt. 20-3.)

MEMORANDUM DECISION AND ORDER - 2

be hunted from August 31 to March 31 each year, or until harvest limits are reached. See
Decl. of Keegan (Dkt. 20-1.) 4 Hunters are required by Idaho Department of Fish and
Game regulations to report a wolf kill within 72 hours, and have it verified by state
authorities within 10 days. Id. ¶ 12.
USFS regulations require a special use permit for certain activities that occur on
USFS public lands. However, a special use authorization is not required for
“noncommercial recreational activities, such as camping, picnicking, hiking, fishing,
boating, hunting, and horseback riding....” 36 C.F.R. § 251.50(c). In contrast, a
commercial use or activity is “any use or activity on National Forest System lands (a)
where an entry or participation fee is charged, or (b) where the primary purpose is the
sale of a good or service, and in either case, regardless of whether the use or activity is
intended to produce a profit.” 36 C.F.R. § 251.51.
Plaintiffs alerted the USFS to the Salmon wolf and coyote derby, and inquired
whether the USFS would require or had already issued a permit. The USFS determined
that the contest, which takes place on private property in Salmon, Idaho, is not a
“commercial event occurring on NFS land.” Rather, hunters will follow all laws and
regulations promulgated by Idaho Fish and Game, and will take their kills to Salmon to
obtain the prizes advertised. In other words, the USFS’s position is that the participants
are not paying to enter a contest that actually takes place on or in the National Forest.
Hunting will take place in the forest, which is lawful, and the contest occurs in Salmon,

4

For the 2013/14 season, the harvest limit for grey wolves in the Salmon zone is 45, and by December 24, 2013,
only 6 had been harvested in the area. Decl. of Keegan ¶ 17 (Dkt. 20-1.)

MEMORANDUM DECISION AND ORDER - 3

Idaho, on private property. The USFS position is that the hunters will be dispersed,
hunting on public, private, or federal lands, such that there is no concentrated “gathering”
or “group” on USFS land, and no permit required.
Plaintiffs generally aver that their members use and visit the Salmon-Challis
National Forest, and will be injured because their use and enjoyment of the forest will be
diminished during the two days of the derby hunt. Specifically, the individuals aver that
they will be adversely affected because they will be unable to hike and enjoy the forest
over the weekend due to the concentration of hunters, and may be subjected to the
possibility of viewing coyotes and wolves being shot by derby participants, or seeing
dead or wounded animals. Decl. of Wagenknecht ¶ 10 (Dkt. 4-6.) Plaintiffs allege also
that they will be harmed because “many” animals will be killed thereby “permanently
harming” their enjoyment of the forest lands, and their ability to observe the predators in
the wild. Id. ¶11 (Dkt. 4-6.) See also Decl. of Stone ¶12 (Dkt. 4-7); Decl. of Fox ¶¶ 11,
12 (Dkt. 4-8); Decl. of Miller ¶¶ 5-6 (Dkt. 4-9).
Plaintiffs challenge the decision of the USFS determining that no special use
authorization is required, and request that this Court grant the following relief:
A. An order temporarily restraining USFS from allowing the Contest to occur on
the Salmon-Challis National Forest without a special use authorization and without
complying with NEPA, pending expedited resolution of this matter by the Court, or
pending resolution of preliminary injunction motion if such motion is necessary;
B. An order waiving the bond requirement of Federal Rule of Civil Procedure
65(c);
MEMORANDUM DECISION AND ORDER - 4

C. An order that USFS affirmatively inform the Killing Contest sponsors that
hunting on the Salmon-Challis National Forest for purposes of competing in the Killing
Contest is prohibited without a special use permit; and
D. An order that USFS law enforcement officers enforce the prohibition of Killing
Contest related hunting on the Salmon-Challis Forest on December 28 and 29, 2013.
ANALYSIS
1.

Applicable Law
Plaintiffs bring their challenge under the Administrative Procedure Act, which

allows judicial review by individuals aggrieved or adversely affected by agency action. 5
U.S.C. § 702. The law provides that when “agency action, findings, or conclusions” are
found to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law” or “(D) without observance of procedure required by law” the
reviewing court shall hold unlawful and set aside those actions, findings, and
conclusions. 5 U.S.C. § 706(2). Plaintiffs challenge the USFS’s decision not to require a
special use permit. A court may set aside an agency action only if the court determines
that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he [Forest] Service is entitled to
substantial deference to its interpretation of its own regulations.” Forest Guardians v. US.
Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (citing Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994)).

MEMORANDUM DECISION AND ORDER - 5

2.

Standards for Issuance of Temporary Restraining Order
To obtain a temporary restraining order, Plaintiffs must show: (1) a likelihood of

success on the merits; (2) a likelihood of irreparable harm to them in the absence of
preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an
injunction is in the public interest. Winter v. Natural Res. Def Council, 555 U.S. 7, 20-23
(2008). The Ninth Circuit has held that “‘serious questions going to the merits’ and a
balance of hardships that tips sharply towards the plaintiff can support issuance of a
preliminary injunction, so long as the plaintiff also shows that there is a likelihood of
irreparable injury and that the injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Under this approach, “serious
questions going to the merits” requires more than showing that “success is more likely
than not;” it requires a plaintiff to demonstrate a “substantial case for relief on the
merits.” Leiva-Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).
Further, “under Winter, plaintiffs must establish that irreparable harm is likely, not
just possible, in order to obtain a preliminary injunction.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in original). Irreparable harm has
been described as “[p]erhaps the single most important prerequisite for the issuance of a
preliminary injunction.” 11A Wright & Miller, FED. PRAC. & PROC. § 2948. Where a
plaintiff fails to demonstrate a likelihood of irreparable harm in the absence of
preliminary relief, the court need not address the remaining elements of the preliminary
injunction standard. See Center for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir.
2011).
MEMORANDUM DECISION AND ORDER - 6

Plaintiffs have not clearly established a likelihood of success on the merits. There
are two aspects of the USFS regulations at issue. First, USFS regulations do not require a
special use authorization for noncommercial recreational activities such as hunting. 36
C.F.R. 251.50(c). Commercial use or activity is defined by any use or activity on national
forest land where an entry or participation fee is charged. 36 F.F.R. § 251.52. Even
assuming the Salmon Chapter for Idaho for Wildlife was still charging an entry fee, the
private encouragement of hunting, a permissible activity on USFS managed lands, does
not appear to be encompassed within the regulations. Hunting, regardless of participation
in the derby, may still occur in the forest. 5
Plaintiffs cite U.S. v. Brown, 200 F.3d 710 (10th Cir. 1999), for the proposition
that the USFS’s interpretation of its regulations defeats the purpose of the permitting
requirements for commercial activity. In Brown, the United States Court of Appeals for
the Tenth Circuit rejected the argument that an individual who conducted his snowmobile
rental operations outside of Forest Service lands did not need a special use authorization.
There, however, the snowmobile operator was renting snowmobiles and offering
merchandise for sale for use in the forest---he was delivering the snowmobiles to users in
the forest, knew that his services were being used exclusively in the forest, and was
engaged in a profit making venture. Under those circumstances, the Tenth Circuit held
that Brown violated USFS’s regulation requiring a permit for commercial activities. 200
F.3d at 715.

5

The Court is cognizant of Plaintiffs’ argument that the plain language of the USFS’s regulation suggests an entry
fee converts the noncommercial use to commercial use. But the Court is not deciding that issue at this time.

MEMORANDUM DECISION AND ORDER - 7

In this case, the private promoters of the derby are not offering merchandise for
sale. Rather, they are encouraging the use of the forest for a lawful activity---hunting--and, to compete for prizes, the derby participants must return to Salmon to claim them.
None of the judging, awarding of prizes, or viewing of the animals will be on USFS
lands. Only hunting will occur there. The entry fee, if charged, is not being charged to
gain hunting privileges, and the derby is not a profit making venture capitalizing on the
use of the forest as was the snowmobile rental and delivery operation in Brown.
The second aspect of USFS regulations at issue involves “group use.” For
noncommercial activity conducted on National Forest System lands involving a group of
75 or more people, either as participants or spectators, a special use authorization is
required. 36 C.F.R. § 251.50(e); §251.51. Plaintiffs contest the post-hoc rationale
provided by the USFS for not following this regulation. Nonetheless, the derby hunt is
not like a foot race or ski race, where organizers would require the use of a loop or track
for all participants to race upon. Rather, hunters will be dispersed throughout the forest,
hunting at their own pace and in their own preferred territory, and not in a prescribed
location within a designated perimeter. The hunters may hunt anywhere they wish--whether on public (Idaho state managed) lands, private lands, or USFS managed lands, as
long as they follow Idaho state hunting regulations. 6 There is no evidence that there will

6

The Bureau of Land Management regulations, which are more specific, would have required a special use permit.
See Decl. of Cotton ¶ 11 (Dkt. 4-10.) The BLM, which manages lands near Salmon, declined to allow hunters
participating in the derby to hunt on BLM managed lands, because the BLM was unable to issue the required permit
for them to do so. Decl. of Alder ¶6, 8 (Dkt. 20-3.) Idaho for Wildlife, the derby sponsor, is informing participants
that they may not hunt on BLM lands near Salmon. Decl. of Alder ¶ 6—9 (Dkt. 20-3.)

MEMORANDUM DECISION AND ORDER - 8

be a concentration of hunters any greater over this two-day period than experienced at
other peak time periods during the hunting season.
Plaintiffs fear the behavior of the hunters may be different because the derby is
encouraging a large group of hunters to invade the forest over a condensed time period,
as well as encouraging competitive hunting. Although this precise issue is not addressed
by the declarations submitted by the USFS, Plaintiffs have not presented specific
evidence to support their fear. Rather, Plaintiffs’ declarations provide only generalized
fears regarding their safety, the safety of others, and the safety of the environment that is
no different than what may occur during any use of the forest. There is insufficient
evidence that the competitive nature of the derby will alter or interfere with the ability of
law enforcement (both state and federal) to enforce the hunting laws, and the regulations
regarding use of the forest.
Second, Plaintiffs have not shown a likelihood of irreparable harm in the absence
of preliminary relief. Even if the Court were to conclude Plaintiffs raise serious questions
going to the merits, the Court finds Plaintiffs have not demonstrated that the balance of
hardships tips sharply in their favor. Plaintiffs’ general description of their collective fear
for their safety and that of their families and pets because of the two-day event does not
describe a fear different than what would otherwise occur during hunting season in
general. Hunting is legal, authorized, and encouraged during this same time period
regardless of derby participation. Wolf hunting season will continue after the derby until
March of 2014, unless harvest limits are reached earlier. Coyotes have no hunting season,
and may be killed in concentrated amounts at any time.
MEMORANDUM DECISION AND ORDER - 9

Plaintiffs claim they will witness animals being killed or see dead animal
carcasses, and will be frightened by shooters and gunshots in a concentrated time and
place. However, Plaintiffs may see dead animal carcasses regardless of the derby,
because it is hunting season. Further, the forest comprises hundreds of acres, and
Plaintiffs have not identified how an increase in hunting over such a large area will ruin
the enjoyment of the forest during a two-day period, when people may hunt on public,
private, or USFS managed lands. None of the declarants indicated they were planning to
alter their plans for enjoying the forest this weekend.
Plaintiffs fear also that large numbers of wolves and coyotes will be killed,
diminishing the animals’ overall numbers and decreasing Plaintiffs ability to observe the
animals in the forest. Additionally, Plaintiffs describe a generalized harm to the stability
of the animal populations that may occur with a concentrated hunt. However, Idaho Fish
and Game regulates the harvesting of wolves. To date, wolf quotas have not been met for
the Salmon-Challis National Forest regions. 7 Thus, the likelihood is extremely remote
that the number of wolves killed would even come close to reaching or exceeding the
harvest limits. And, there is no quota on the number of coyotes that may be hunted.
The two-day derby is the “first annual,” and there is no evidence that the event
will occur over multiple weekends during hunting season, or will become an annual
event. Accordingly, Plaintiffs have not identified they will suffer harm other than what

7

The declaration of Thomas Keegan, (Dkt. 20-1), describes the harvest limits in the various management zones
within the forest.

MEMORANDUM DECISION AND ORDER - 10

might ordinarily occur during a successful hunting season within lawful limits prescribed
by the state of Idaho.
While Plaintiffs and others may find the concept of a derby and prizes being
awarded for the killing of animals repugnant, hunting is a lawful activity in Idaho. The
derby advertisement states that hunters will be required to comply with Idaho state law.
The promoter is providing educational packets and rule sheets, as well as youth mentors
available to help train hunters. Decl. of Alder ¶ 6 (Dkt. 20-3.) There is no evidence before
the Court that the promoters of the event are encouraging disregard for Idaho state law or,
for that matter, forest service regulations regarding use of the forest in general. Plaintiffs
have not, therefore, articulated an irreparable harm justifying the Court’s award of the
extraordinary preliminary relief Plaintiffs seek.
CONCLUSION
For the reasons set forth above, the Court concludes that Plaintiffs have not met
their burden for the issuance of a temporary restraining order.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiffs’ Motion for Temporary Restraining Order (Dkt. 4) is DENIED.

December 27, 2013

MEMORANDUM DECISION AND ORDER - 11