Maughan et al v. Vilsack et al

Filing 40

MEMORANDUM DECISION AND ORDER Plaintiffs' Motions for Temporary Restraining Order and Preliminary Injunction (Dkt. 8 , 12 ) are DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RALPH MAUGHAN, DEFENDERS OF
WILDLIFE, WESTERN WATERSHEDS
PROJECT, WILDERNESS WATCH, and
CENTER FOR BIOLOGICAL
DIVERSITY,

Case No. 4:14-CV-0007-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
TOM VILSACK, U.S. Secretary of
Agriculture; TOM TIDWELL, Chief U.S.
Forest Service; NORA RASURE,
Regional Forester of Region Four of the
U.S. Forest Service, KEITH LANNOM,
Payette National Forest Supervisor; and
VIRGIL MOORE, Director, Idaho
Department of Fish and Game,
Defendant.

Pending before the Court in the above-entitled matter are Plaintiffs’ Motions for
Temporary Restraining Order (TRO) and Preliminary Injunction. (Dkt. 8, 12.)1 The
Defendants have filed responses and Plaintiffs have replied. (Dkt. 19, 24, 27, 36.) Having
fully reviewed the record herein, the Court finds that the facts and legal arguments are

1

Also pending in this matter is a Motion to Intervene. (Dkt. 28.) The Court will take up that
Motion at a later time in a separate order once the Motion is fully briefed.
MEMORANDUM DECISION AND ORDER - 1

adequately presented in the briefs and record. Accordingly, in the interest of avoiding further
delay, and because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, this Motion shall be decided on the record before this
Court without oral argument. The Court has reviewed the record and related filings and finds
as follows.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are individuals and organizations interested in conservation and preservation
of the wilderness character of the Frank Church-River of No Return Wilderness (Frank
Church Wilderness) in Idaho.2 Defendants are the relevant state and federal individuals and
agencies responsible for managing the Frank Church Wilderness. The “Federal Defendants”
named in this action are: Tom Vilsack, United States Secretary of Agriculture, Tom Tidwell,
Chief of the United States Forest Service (USFS), Nora Rasure, Regional Forester of Region
Four of the United States Forest Service, and Keith Lannom, United States Forest Service
Supervisor for the Payette National Forest. (Dkt. 15.) The “State Defendant” is Virgil Moore,
Director of the Idaho Department of Fish and Game (IDFG). (Dkt. 15.)
Plaintiffs have brought this action under the Administrative Procedure Act, 5 U.S.C.
§ 701 et al. (APA), against the Defendants alleging the IDFG’s program for “wolf
extermination” (the Program) is unlawful under the National Forest Management Act, 16
U.S.C. § 1604(i) (NFMA), the Wilderness Act, 16 U.S.C. § 1133(b), Special Use Permit
2

The named Plaintiffs are Ralph Maughan, Defenders of Wildlife, Western Watersheds Project,
Wilderness Watch, and Center for Biological Diversity. The Court will refer to the Plaintiffs collectively
in this Order unless otherwise specified.
MEMORANDUM DECISION AND ORDER - 2

Regulations, 36 C.F.R. Pt. 251, and the National Environmental Policy Act, 42 U.S.C.
§ 4332(2)(C) (NEPA). (Dkt. 15.) The conduct challenged in this action is IDFG’s hiring of
a hunter-trapper in mid-December of 2013 to “completely eradicate two of the resident wolf
packs” in the Frank Church Wilderness, the Golden Creek and Monumental Creek wolf packs,
and the Federal Defendants’ allowing/permitting of such activity. (Dkt. 15 at ¶ 45.) Plaintiffs
challenge that the Defendants’ did not undertake any environmental review, permitting
review, or interagency consultation nor secure the requisite approval needed to undertake such
a program in violation of the aforementioned statues and regulations. The Program, Plaintiffs
allege, has resulted in seven grey wolves being killed since mid-December 2013. Plaintiffs
have filed the instant Motions in order to halt further implementation of the Program until
such time as the Court is able to rule upon the issues presented in this case.
DISCUSSION
Plaintiffs’ Motions ask that the Court enjoin the IDFG’s ongoing wolf trapping and
hunting program in the Frank Church Wilderness in Idaho until the claims raised in this action
are resolved. The Defendants oppose the Motions on several grounds. (Dkt. 19, 24, 27.)
Injunctions and restraining orders are governed by Federal Rule of Civil Procedure 65.
Under Rule 65(a), a preliminary injunction can be issued only on notice to the adverse party.
Fed. R. Civ. P. 65(a)(1). Issuance of a TRO, on the other hand, requires the moving party to
show that “it clearly appears from specific facts shown by affidavit or by the verified
complaint that immediate and irreparable injury, loss, or damage will result to the applicant
before the adverse party . . . can be heard in opposition....” Fed. R. Civ. P. 65(b). In this case,
MEMORANDUM DECISION AND ORDER - 3

Plaintiffs have moved for both a preliminary injunction and a TRO and Defendants have been
served and allowed time to respond to the Motions.
The analysis required for a TRO and a preliminary injunction are “substantially
identical.” Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir.
2001). Plaintiffs seeking an injunction 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). Alternatively, if Plaintiffs cannot meet
the Winter test, they may still obtain an injunction where they can show there are “serious
questions going to the merits,” the balance of hardships tip sharply in their favor, there is a
likelihood of irreparable injury, and the injunction is in the public interest. Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). This “sliding scale approach”
allows a plaintiff to make a lesser showing of likelihood of success provided he will suffer
substantial harm in the absence of relief. Id. at 1133. Under this approach, however, “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.” See
Wildearth Guardians v. Mark, No. 4:13-cv-00533-CWD, 2013 WL 6842771, at *2 (D. Idaho
2013) (quoting Leiva–Perez v. Holder, 640 F.3d 962, 967–68 (9th Cir. 2011).
1.

Likelihood of Success on the Merits
In this case, Plaintiffs challenge the Defendants’ failure to conduct the requisite

environmental review, permitting review, and/or interagency consultation nor secure the
MEMORANDUM DECISION AND ORDER - 4

requisite approval needed to undertake the Program in violation of the aforementioned statues
and regulations. Specifically, Plaintiffs challenge the USFS’s decision allowing/approving the
Program and IDFG’s use the bunkhouse and airstrip to implement the Program without
undertaking statutory review or requiring a special use permit.
A.

Administrative Procedures Act

The claims are brought under the APA which provides for judicial review of an
agency’s 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.
See Wildearth Guardians, 2013 WL 6842771, at *2 (citing 5 U.S.C. § 706(2)). 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. United States Forest Serv., 329 F.3d 1089, 1097
(9th Cir. 2003) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
The Federal Defendants counter that there is no final agency action in this case that is
subject to judicial review. (Dkt. 24 at 5-7.) Similarly, the State Defendant argues the Plaintiffs
have not challenged any final agency action and have not shown any agency’s failure to take
a discrete action that it is required to take. (Dkt. 27 at 5-8.) “To maintain a cause of action
under the APA, a plaintiff must challenge ‘agency action’ that is ‘final.’” Wild Fish
MEMORANDUM DECISION AND ORDER - 5

Conservancy v. Jewell, 730 F.3d 791, 800 (9th Cir. 2013) (quoting Norton v. Southern Utah
Wilderness Alliance, 542 U.S. 55, 61–62 (2004)). The Ninth Circuit has explained:
The APA defines reviewable “agency action” to include “the whole or part of
an agency rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” 5 U.S.C. § 551(13). While this definition is
“expansive,” federal courts “have long recognized that the term [agency action]
is not so all-encompassing as to authorize us to exercise judicial review over
everything done by an administrative agency.” Fund for Animals, Inc. v. United
States BLM, 460 F.3d 13, 19 (D.C. Cir. 2006) (alteration in original) (internal
quotation marks omitted). To qualify as “final,” the action challenged must
“mark the consummation of the agency’s decisionmaking process” and “must
be one by which rights or obligations have been determined, or from which
legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(citations and internal quotation marks omitted).
Wild Fish Conservancy, 730 F.3d at 800-01. Here, the Federal Defendants characterize their
actions in question here as “day-to-day administrative communications.” (Dkt. 24 at 5.) All
of the Defendants maintain that no final agency action was taken by the USFS in regard to the
program or the use of the bunkhouse and airstrip. (Dkt. 24, 27.) The Court finds that, at this
stage, the Plaintiffs have not shown a likelihood of success on the merits or serious questions
going to the merits on this point.
The actions of the Federal Defendants concerning the airstrip and the bunkhouse
appear to be nothing more than the USFS District Ranger informing IDFG which public
airstrips were open and that the USFS bunkhouse in the area was unused and available for
IDFG’s use. Since June of 2010, the state and federal agencies have in place an existing
Memorandum of Understanding that they will share each other’s facilities when they are not
being used by the other agency. (Dkt. 25, Dec. Lannom at ¶ 7), (Dkt. 26 at FS000550-61),

MEMORANDUM DECISION AND ORDER - 6

(Dkt. 27, Ex. 1 at 2.) Under that agreement, IDFG contacted the USFS regarding the
availability of the bunkhouse and the USFS confirmed it was available for use. (Dkt. 25, Dec.
Lannom at ¶¶ 8 and 10), (Dkt. 26 at FS000815-16.) Similarly, the airstrip at issue is managed
by the USFS but open to use by the general public which the USFS confirmed with IDFG.
(Dkt. 9, Ex. 1 at 20-24) (Dkt. 25, Dec. Lannom at ¶ 6), (Dkt. 26 at FS000058, FS000815-16.)
The Court finds that these activities do not appear to be final agency actions that are
reviewable under the APA. Further, the USFS’ review and consideration of the IDFG’s
program appears, at this time, to be a discretionary matter that is not subject to judicial review
under the APA.
At this stage of the litigation, because there does not appear to be any reviewable final
agency action the Court finds the Plaintiffs have not demonstrated a likelihood of success on
the merits or any serious questions going to the merits. Accordingly, the Motions for TRO and
Preliminary Injunction are denied.
B.

Substantive Claims

As to the substance of the claims themselves, the Court again finds that, at least at this
stage, the Plaintiffs have failed to show a likelihood of success on the merits or serious
questions going to the merits.
1.

NFMA

Plaintiffs’ NFMA claim challenges that the IDFG’s activity is inconsistent with the
Forest Plan for the Frank Church Wilderness and, alternatively, that the USFS failed to act
as required under § 706(1) of the APA. (Dkt. 15 at ¶¶ 52-59.) The NFMA consistency
MEMORANDUM DECISION AND ORDER - 7

requirement, 16 U.S.C. § 1604(i), requires that any agency action taken by the USFS be
consistent with the governing forest plan. Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d
957, 962 (9th Cir. 2002) (“[A]ll management activities undertaken by the Forest Service must
comply with the forest plan, which in turn must comply with the Forest Act.” (citing Inland
Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 757 (9th Cir.1996))).
The action complained of here by Plaintiffs is that of IDFG, not the USFS. (Dkt. 27, Ex. 1 at
2) (Under the Memorandum of Understanding the USFS shall recognize the IDFG “as the
agency with the primary authority, jurisdiction, and responsibility to manage, control, and
regulate fish and wildlife populations on NFS lands.”)3; see also (Dkt. 27, Ex. 2 at 1) (Dkt.
27, Ex. 3 at 1.) Therefore, NFMA’s consistency requirement does not appear to apply here.
That being the case, the USFS would not be under any requirement to act under NFMA and,
therefore, there would be no violation of § 706(1) for the USFS having failed to act. Norton,
542 U.S. at 64 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take. )
2.

Wilderness Act Claim

On the Wilderness Act Claim, the Plaintiffs assert the Federal Defendants have failed
its statutory and management duties to preserve the wilderness character of the Frank Church
Wilderness and to protect the resident wildlife that contribute to that character and to follow

3

The correlating portion of the Memorandum of Understanding applicable to the
IDFG states that it shall recognize the USFS “as the agency responsible for the
management of NFS lands in Idaho and the fish and wildlife habitats on these lands.”
(Dkt. 27, Ex. 1 at 4.)
MEMORANDUM DECISION AND ORDER - 8

its own process for reviewing proposals to remove “problem animals” from the wilderness.
(Dkt. 15 at ¶¶ 60-66.). Specifically, Plaintiffs challenge the USFS’ authorization allowing the
IDFG to utilize the USFS’ cabin and airstrip for purposes of carrying out the Program. (Dkt.
15 at ¶ 65.)
Again, no final agency action has been taken in regards to the Wilderness Act. From
the current record, it appears the USFS has not yet determined whether or not IDFG’s
activities at issue here are in conflict with other resource use or wilderness values. The USFS
has only begun to review the information submitted less than a month ago and not yet had an
opportunity to weigh the competing interests and make a determination concerning whether
the Program conflicts with other resource use and wilderness values. Further, as noted above,
it does not appear that the USFS took any final action that is reviewable in regards to the
IDFG’s use of the bunkhouse and airstrip.
3.

Special Use Permit Regulations

Plaintiffs’ third cause of action alleges the USFS violated its own special use permit
regulations by not requiring IDFG to obtain a special use permit before undertaking its wolf
program. (Dkt. 15 at ¶¶ 67-72.) Again, Plaintiffs specifically point to the USFS’
“authorization for IDFG to use [the USFS’] cabin and airstrip” without a special use permit.
(Dkt. 15 at ¶ 71.) Defendants counter that a special use permit is not required under 36 C.F.R.
§ 251.50(e)(2) in this case because the activity is regulated by a State agency in a manner
adequate to protect the lands and resources. (Dkt. 24 at 18.) Further, Defendants maintain that
even if a special use permit is required, the USFS’ determination as to how to enforce that
MEMORANDUM DECISION AND ORDER - 9

requirement is the subject of the USFS’ discretionary enforcement authority and not subject
to judicial review.
At this stage, the Court finds the IDFG’s use of the bunkhouse and airstrip may not be
subject to a special permit requirement because the IDFG program for managing wolves is
a state regulated activity. See 36 C.F.R. § 251.50(e)(2); 16 U.S.C. § 528. If a special permit
is required, the USFS has discretion as to how to enforce that requirement in the first instance.
Here, the USFS has not yet reached a determination regarding the IDFG program let alone
concluded that a special use permit is required.
4.

NEPA

On the NEPA claim, Plaintiffs allege the USFS failed to complete an Environmental
Impact Statement (EIS) and other “mandatory review processes” before allowing the IDFG
program to proceed. (Dkt. 15 at ¶¶ 73-79.) Under NEPA, an agency is required to prepare an
EIS for “major Federal actions significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C). “‘Major Federal actions’ includes actions with effects that may be
major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. §
1508.18. The Defendants counter that NEPA does not require an EIS in this case because
there is no “major federal action.” (Dkt. 24, 27.)
To determine whether the USFS has undertaken a “major federal action,” the Court
examines two factors: 1) the amount and nature of Federal Defendants’ funding, and 2) the
extent of Federal Defendants’ involvement and control. Rattlesnake Coal. v. EPA, 509 F.3d
1095, 1102 (9th Cir. 2007). There is nothing in the record in this case indicating the USFS has
MEMORANDUM DECISION AND ORDER - 10

provided any new funding in support of the project or exercises any control of the project. To
the extent it is argued the IDFG’s use of the bunkhouse and airstrip are “funding,” the Court
finds such funding to be minuscule if any. The use of the bunkhouse is by virtue of the
agencies’ preexisting agreement and the airstrips are open for use by anyone including the
general public.4
The Plaintiffs’ claim here also alleges that the IDFG program required the issuance of
a federal permit which constitutes a major federal action. (Dkt. 15 at ¶ 76.) It is true that “if
a federal permit is a prerequisite for a project with adverse impact on the environment,
issuance of that permit does constitute major federal action....” Ramsey v. Kantor, 96 F.3d
434, 444 (9th Cir. 1996) (citations omitted). Likewise, federal inaction can trigger NEPA’s
EIS requirement. Id. at 445. Every denial of a request to act, however, is not considered a
“major federal action.” See Drakes Bay Oyster Co. v. Jewell, No. 13-15227, 2014 WL
114699, at *12 (9th Cir. 2014); State of Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979)
(explaining that “even if the Secretary had some power under a delegation by Congress to stop
the wolf-kill program ... his inaction was not the type of conduct that requires an
environmental impact statement.”); Fund for Animals v. Thomas, 932 F.Supp. 368, 371
(D.D.C. 1996) (holding that Forest Service policy of deferring to states on game-baiting was
not a major federal action).

4

The Memorandum of Understandings between the USFS and IFG explicitly state that under
those agreements there is no authorization by any of the parties “to obligate or transfer funds. Specific
projects or activities that involve the transfer of funds, services, or property among the parties require
execution of separate agreements and are contingent upon the availability of appropriated funds.” (Dkt.
27, Ex. 1-3.)
MEMORANDUM DECISION AND ORDER - 11

On this claim, the Court finds the Plaintiffs have not shown a likelihood of success or
serious questions going to the merits of the claim. At this point, and for the reasons stated
above, it does not appear that the USFS has undertaken a “major federal action” in regards
to IDFG using the bunkhouse or airstrip, failing to require/enforce/issue any special use
permits, or not compiling an EIS. Based on the record as it currently stands, no major federal
action has occurred. The USFS has neither approved nor disapproved the IDFG activities in
the Frank Church Wilderness.5 Further, it does not appear that the USFS has failed to act.
Instead, the USFS has just begun to review the matter and not yet had an opportunity to make
any determination. As such, the Court concludes that the Plaintiffs have failed to show a
likelihood of success on the merits or any serious questions going to the merits.
C.

Conclusion

For the reasons stated above, the Court finds that the Plaintiffs here have failed to show
a likelihood of success or any serious questions going to the merits of their claims.
Accordingly, the Motions for TRO and Preliminary Injunction are denied. In so concluding,
the Court makes clear that it is not ruling one way or another upon the merits of any of the
claims. That determination must be made in later motions. The ruling in this Order is limited

5

Even if it can be said that the USFS has “approved” the IDFG program, federal
approval of another party’s action does not, in and of itself, make that action federal
unless the federal government undertakes some “overt act” in furtherance of that other
party’s project. Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1244 (D.C.Cir.1980); see
also Rattlesnake Coal., 509 F.3d at 1102. On the current record, no such overt act has
been shown.
MEMORANDUM DECISION AND ORDER - 12

to a preliminary determination of the claims using the standard of law applicable to these
Motions based upon the record as it now stands.
2.

Likelihood of Irreparable Harm
A plaintiff may obtain an injunction only where he or she can “demonstrate immediate

threatened injury.” See, e.g., Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674
(9th Cir. 1988) (emphasis in original). A possibility of irreparable harm is insufficient.
Instead, Plaintiffs must establish that irreparable harm is likely, not just possible, in the
absence of an injunction. Alliance for the Wild Rockies, 632 F.3d at 1131; Winter, 555 U.S.
at 23. 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).
In this case, Plaintiffs claim they are suffering ongoing, irreparable injury from the
Program because it impairs the wilderness character of the Frank Church Wilderness. (Dkt.
36 at 15.) The wolf packs, Plaintiffs argue, are an intrinsic attribute of the wilderness
character of the Big Creek/Middle Fork area of the Frank Church Wilderness. Plaintiffs
represent that so far the hunter has killed at least seven wolves and will likely kill the
remaining wolves in the packs before the Plaintiffs’ claims are resolved. Further, Plaintiffs

MEMORANDUM DECISION AND ORDER - 13

assert that the Defendants’ failure to review the program prior to its implementation deprives
them of the procedural protections afforded by NEPA.
The State Defendant counter argues that the wilderness character of the Frank Church
Wilderness includes not only the presence of wolves but also the historical presence of elk
which have been particularly impacted by the “human intervention of wolf reintroduction”
into the area. (Dkt. 27 at 13-14.) The Federal Defendants also argue that there has been no
showing of a likelihood of irreparable harm in this case; noting the population growth of the
number of wolves since their reintroduction into Idaho. (Dkt. 24 at 19.)
In considering both sides’ arguments, the Court finds that the growth of the wolf
population since their reintroduction into Idaho and the number of wolves presently living in
Idaho cuts against a finding of a irreparable injury to the Plaintiffs. (Dkt. 19, Att. 1.) The
evidence in the current record shows that the IDFG program for hunting wolves will not result
in the loss of the species as a whole. Further, for the reasons stated above as to the substance
of the claims, it does not appear that Plaintiffs have suffered an irreparable injury due to the
Defendants’ failure to undertake any mandatory environmental review. As such, the Court
does not find that irreparable injury is likely absent the entry of an injunction in this case.
3.

Conclusion
Based on the foregoing, the Court finds that the Plaintiffs have not shown a likelihood

of success on the merits or raised serious questions such that issuance of an injunction is
warranted nor shown any irreparable injury. Accordingly, the Court will deny the Motions for
TRO and Preliminary Injunction.
MEMORANDUM DECISION AND ORDER - 14

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motions for
Temporary Restraining Order and Preliminary Injunction (Dkt. 8, 12) are DENIED.
DATED: January 17, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 15