Tillett v. Bureau of Land Management et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 1 Motion for Preliminary Injunction filed by Jerri Joette Tillett. IT IS HEREBY ORDERED that the proposed Findings and Recommendations 17 entered by United Sates Magistrate Judge Cavan are adopted in full. IT IS FURTHER ORDERED that Plaintiff Jerri Tillett's Motion for Preliminary Injunction is DENIED. Signed by Judge Susan P. Watters on 4/11/2017. Copy sent to J. Tillett via US Mail 4/11/2017. (JEC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
APR I l 2017
Clerk, U.S. District Court
District Of Montana
JERRI JOETTE TILLETT,
BUREAU OF LAND
BOARD OF LANDS APPEALS, and
DEPARTMENT OF THE INTERIOR
Plaintiff Jerri Joette Tillett brought this action seeking to stop alleged
ongoing malfeasance by Defendants Bureau of Land Management ("BLM"),
Interior Board of Land Appeals ("IBLA"), and Department of the Interior ("DOI")
(collectively, "Defendants"), with respect to the Pryor Mountain Wild Horse
Range ("PMWHR"). Specifically, Tillett seeks to prevent the Defendants from
implementing a prescribed burn in the PMWHR "for at least this fall schedule, in
the year 2016." (Doc. 1-1 at 23). Tillett also seeks to prevent the Defendants from
the "utilization of poisons on the PMWHR." (Doc. 10 at 2).
Pending before the Court are United States Magistrate Judge Timothy
Cavan's Findings and Recommendations on Tillett's Motion for Preliminary
Injunction. (Doc. 17). Judge Cavan recommends that this Court deny Tillett's
Motion for Preliminary Injunction because she is unlikely to succeed on the merits
and is unlikely to suffer irreparable harm. (Doc. 17 at 6-7). Tillett filed timely
objections to the Findings and Recommendations. (Doc. 23).
Statement of facts
Tillett does not object to the Statement of Facts contained in Judge Cavan's
Findings and Recommendations. Judge Cavan's Statement of Fact are therefore
adopted in full.
Standard of review
A district court reviews de novo any part of a Magistrate Judge's Findings
and Recommendations to which there has been proper objections. 28 U.S.C. §
636(b)(l); Fed. R. Civ. P. 72(b)(3).
"A preliminary injunction is an extraordinary and drastic remedy." Munaf v.
Geren, 553 U.S. 674, 689 (2008) (quotations omitted). To obtain a preliminary
injunction, a plaintiff must show that: (1) she is likely to succeed on the merits; (2)
she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the
balance of equities tips in her favor; and (4) an injunction is in the public interest.
Winter v. Nat. Resources Def Council, Inc., 555 U.S. 7, 20 (2008).
Judge Cavan recommends denying Tillett's Motion for a Preliminary
Injunction for two reasons. First, Judge Cavan recommends Tillett will not suffer
irreparable harm before the Court can issue a decision on the merits because the
earliest the prescribed bum will take place is September 2017. (Doc. 17 at 6).
Second, Judge Cavan recommends Tillett is unlikely to succeed on the merits of
her poisons claim because this Court already decided the issue of poisons in the
PMWHR adversely to Tillett. (Doc. 17 at 7 (citing Tillett v. ELM, et al., CV 1473-BLG-SPW (D. Mont. (Doc. 35 at 15))).
Tillett objects. First, Tillett argues the Defendants cannot be trusted to delay
implementation of the prescribed bum. (Doc. 23 at 6). Second, Tillett argues the
Court's prior order was based on lies by the Defendants. (Doc. 23 at 7). The
Court agrees with Judge Cavan.
Tillett has not shown she will likely suffer irreparable harm
before the Court can issue a decision on the merits
The mere possibility of irreparable harm is insufficient to justify an
injunction. Herb Reed Enterprises, LLC v. Florida Entertainment Management,
Inc., 736 F.3d 1239, 1249 (9th Cir. 2013). Instead, a party seeking a preliminary
injunction must show irreparable harm is likely. Herb Reed Enterprises, 736 F.3d
Here, Tillett has failed to carry her burden that irreparable harm is likely.
The only evidence in the record concerning the date of the prescribed bum is
Defendants' Notice of Delayed Implementation of Prescribed Bum Decision and
the accompanying affidavit of James M. Sparks, Field Manager for the Billings
Field Officer of the Montana State Office, Bureau of Land Management. The
Notice and accompanying affidavit state no prescribed bum will take place before
September 2017. Although Tillett alleges generally that the Defendants "can't be
TRUSTED," (Doc. 23 at 6) (emphasis original), she has provided no evidence that
the Defendants will initiate the prescribed bum sooner than September 2017.
Tillett has failed to establish irreparable harm is likely.
The Court has already determined the issue of the use of poisons
in the PMWHR adversely to Tillett
Res judicata is applicable whenever there is (1) an identity of claims; (2) a
final judgment on the merits; and (3) privity between parties. Stratosphere
Litigation, L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1142 n. 3 (9th Cir. 2002).
Tillett makes general allegations regarding the use of "POISONS," (Doc. 23
at 6-7) (emphasis original), but provides no specifics. Judge Cavan correctly noted
that the Court previously addressed the use of poisons in the PMWHR in a prior
order. (Doc. 17 at 7 (citing Tillett, CV 14-73-BLG-SPW (D. Mont. (Doc. 35 at
15))). The Court's order concluded the 2014 Environmental Assessment
appropriately restricted the use of poisons in the PMWHR to those "previously
vetted through the prior Vegetation Treatment EIS conducted in 2007." Tillett, CV
14-73-BLG-SPW (D. Mont. (Doc. 35 at 15)). Tillett apparently wishes to litigate
the use of poisons again, but has not articulated how her claim is different than the
claim addressed in the Court's prior order. The Court therefore has no option but
to conclude the present poisons claim is identical to the prior poisons claim,
satisfying the first element of res judicata. Stratosphere Litigation, 298 F.3d at
1142 n. 3. The other two elements of res judicata are met because the Court issued
an adverse final judgment on the merits of the prior poisons claim and the parties
are identical. Tillett, CV 14-73-BLG-SPW (D. Mont. (Doc. 35 at 15));
Stratosphere Litigation, 298 F.3d at 1142 n. 3. Therefore, Tillett is unable to show
she is likely to succeed on the merits of the present poisons claim unless and until
she articulates how the present poisons claim is different than the prior poisons
IT IS ORDERED that the proposed Findings and Recommendations entered
by United States Magistrate Judge Cavan (Doc. 17) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff Jerri Tillet's Motion for
Preliminary Injunction (Doc. 1) is DENIED.
DATED this //7diy of
-~ /. u/,:(:'/6>. SUSAN P. WATTERS
United States District Judge
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