Gallatin Wildlife Association v. United States Forest Service et al

Filing 202

ORDER denying 178 Motion for Injunction Pending Appeal. Signed by Judge Brian Morris on 4/16/2018. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

GALLATIN WILDLIFE
ASSOCIATION, YELLOWSTONE
BUFFALO FOUNDATION,

CV-15-27-BU-BMM

Plaintiff,
v.
ORDER
UNITED STATES FOREST
SERVICE; et al.,
Defendants,
and
HELLE LIVESTOCK, a partnership;
and REBISH/KONEN LIVESTOCK
LIMITED PARTNERSHIP,
Defendant-Intervenors,
and
MONTANA WOOL GROWERS
ASSOCIATION and the AMERICAN
SHEEP INDUSTRY,
Defendant-Intervenors
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Before the Court is Plaintiff Gallatin Wildlife Association’s motion for an
injunction pending appeal. (Doc. 178.) The Court held a hearing on this motion on
March 7, 2018. (Doc. 200.)
PROCEDURAL HISTORY
Plaintiffs Gallatin Wildlife Association (“Gallatin”), WildEarth Guardians,
Western Watersheds Project, and Yellowstone Buffalo Foundation filed their
complaint on June 11, 2015. Plaintiffs challenged the Revised Forest Plan,
Allotment Management Plans, and Annual Operating Instructions for the domestic
sheep allotments in the Gravelly Mountains on the Beaverhead-Deerlodge National
Forest (“BDNF”). (Doc. 73 at 1.) Plaintiffs alleged that the United States Forest
Service (“USFS”), Leanne Marten in her official capacity as Regional Forester of
the USFS, and the United States Fish and Wildlife Service (“USFWS”)
(collectively “Federal Defendants”) violated the National Environmental Policy
Act (“NEPA”), the National Forest Management Act (“NFMA”), and the
Administrative Procedures Act (“APA”), when they authorized the Revised Forest
Plan, Allotment Management Plans, and Annual Operating Instructions. (Doc. 73
at 3, 11-13.)
The Court granted leave to intervene as Defendant-Intervenors to Helle
Livestock and Rebish/Konen Livestock Limited Partnership (“Permitees”) on June

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3, 2015. (Doc. 28.) The Court likewise granted leave to intervene as DefendantIntervenors to Montana Wool Growers on August 31, 2015. (Doc. 68.)
Gallatin moved the Court for a preliminary injunction (“Injunction I”)
against the USFS on June 15, 2015. (Doc. 3.) Gallatin sought to enjoin domestic
sheep grazing on the Cottonwood and Fossil-Hellroaring allotments. These
allotments constitute two of the seven allotments subject to this action. The Court
held a hearing on the motion on July 8, 2015. (Doc. 39.) The Court denied
Gallatin’s motion for Injunction I on July 10, 2015. (Doc. 43.)
Gallatin appealed the Court’s denial of the preliminary injunction to the
Ninth Circuit (“Appeal I”) and requested an emergency injunction pending appeal
(“Injunction II”) on July 13, 2015. (Doc. 44.) The Ninth Circuit denied Gallatin’s
emergency motion for Injunction II on July 17, 2015. (Doc. 49.)
Gallatin also moved this Court for an injunction pending its appeal of the
denial of the preliminary injunction on July 16, 2015 (“Injunction III”). (Doc. 47.)
The Court denied the motion for Injunction III on August 4, 2015. (Doc. 61.)
Gallatin moved to dismiss voluntarily Appeal I on July 30, 2015. (Doc. 59 at 1.)
The Ninth Circuit granted the motion to dismiss on July 31, 2015. (Doc. 59.)
Plaintiffs moved for summary judgment on February 25, 2016. (Doc. 116.)
Plaintiffs sought judgment that the USFS had violated NEPA in three ways.

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Plaintiffs sought, in the alternative, permanent injunctive relief (“Injunction IV”)
from domestic sheep grazing and trailing in the BDNF. Id. at 3.
The Court granted summary judgment on two of Gallatin’s three claims.
(Doc. 148.) The Court determined that the USFS had not acted arbitrarily and
capriciously in using “coarse filter” methodology in its Forest Plan NEPA analysis.
(Doc. 148 at 15.) The Court determined that the USFS had failed to comply with
NEPA, however, by failing to disclose and analyze the impacts of two Memoranda
of Understanding that Federal Defendants had entered with the Permittees to allow
domestic sheep to graze in the BDNF. (Doc. 148 at 26.) The Court further
concluded that the USFS had violated NEPA when it failed to evaluate whether
new information warranted supplemental NEPA analyses of allotment
management plans. (Doc. 148 at 34-35.)
The Court denied Plaintiffs’ request for Injunction IV. (Doc. 148 at 36.) The
Court instead ordered the USFS to complete expedited environmental review to
resolve the deficiencies in the environmental analysis. The Court reasoned that the
supplemental environmental review process would require the USFS to address the
conflict between domestic sheep grazing and the reintroduction of bighorn sheep.
(Doc. 148 at 37.)
The USFS appealed the summary judgment order on August 15, 2016
(“Appeal II”). (Doc. 153.) The USFS moved to dismiss voluntarily Appeal II on
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November 23, 2016. (Doc. 157 at 1.) The Ninth Circuit granted that motion on
November 30, 2016. (Doc. 157.)
Gallatin appealed the summary judgment order on August 18, 2018
(“Appeal III”). (Doc. 155.) The Ninth Circuit released Appeal III from mediation
on December 13, 2016, and set a briefing schedule. Gallatin Wildlife Association,
et. al., v. USFS, et. al, No. 16-35665, Doc. 11 (December 13, 2016).
Gallatin filed its opening brief on appeal on February 15, 2017. Gallatin
Wildlife Association, et. al., v. USFS, et. al, No. 16-35665, Doc. 12 (February 15,
2017). Gallatin argues that the Court erred in upholding the USFS’s selection of
“coarse filter” methodology. Id. at 21. Gallatin further argues that the Court abused
its discretion in denying its request for Injunction IV. Id. at 22.
The parties returned to mediation. The Ninth Circuit again released Appeal
III from mediation on December 27, 2017. Gallatin Wildlife Association, et. al., v.
USFS, et. al, No. 16-35665, Doc. 34 (December 27, 2017). The USFS filed its
answer brief on February 21, 2018. Gallatin Wildlife Association, et. al., v. USFS,
et. al, No. 16-35665, Doc. 35 (December 13, 2016). Appeal III remains pending.
The Court on January 17, 2018, ordered the parties to file a joint status
report by February 9, 2018. (Doc. 177.) Gallatin filed the instant motion for
injunction pending appeal (“Injunction V”) on January 18, 2018. (Doc. 178.)
Plaintiffs WildEarth Guardians and Western Watersheds Project notified the Court
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on January 31, 2018, that they did not participate in the appeal and are not parties
to this stage of the litigation. (Doc. 182.)

LEGAL STANDARD
Federal Rule of Civil Procedure 62(c) provides that a court may “suspend,
modify, restore, or grant an injunction” when “an appeal is pending from an
interlocutory or final judgment” which “denies an injunction.” A court must apply
the same standard to a request for an injunction pending appeal that it applies when
considering a motion for a preliminary injunction. Alliance for the Wild Rockies v.
Kruger, 35 F.Supp.3d 1259, 1270 (D. Mont. 2014).
An injunction represents an extraordinary remedy that a court should never
award as a matter of right. Winter v. Natural Res. Def. Council, 555 U.S. 7, 22
(2008). A party seeking a preliminary injunction must establish: (1) that he is
likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the
absence of preliminary relief; (3) that the balance of equities tips in his favor; and
(4) that an injunction serves the public interest. Winter, 555 U.S. at 20. The Court
“need not consider” the latter three elements where the moving party has failed to
demonstrate likelihood of success on the merits. Garcia v. Google, Inc., 786 F.3d
733, 740 (9th Cir. 2015).
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Where a party fails to demonstrate likelihood of success on the merits, a
preliminary injunction may yet be appropriate where: 1) a plaintiff raises “serious
questions going to the merits;” 2) “the balance of hardships tips sharply in the
Plaintiff’s favor;” and 3) Plaintiffs “satisfy the other Winter factors.” Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citations
omitted).
DISCUSSION
Gallatin argues that the balance of harms has shifted in its favor since this
Court’s denial of Injunction IV. (Doc. 178-1 at 3.) Gallatin bases its motion for
injunction pending appeal on the NEPA claim that USFS did not disclose permittee
MOUs as a part of the Forest Plan Analysis (hereafter the “MOU NEPA claim”).
Id. at 5. Gallatin already has prevailed on this claim and argues, therefore, that this
success meets the threshold question of the Winter analysis: likelihood of success
on the merits. Id. Neither party has raised the MOU NEPA claim on appeal.
Federal Defendants argue that Gallatin’s failure to demonstrate a likelihood of
success on the merits, or raise serious questions on the merits of its appeal, defeats
its motion for injunction pending appeal. (Doc. 183 at 15-16.)
I.

Gallatin’s Motion for Injunction Pending Appeal Constitutes a Motion
for Reconsideration

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Gallatin cites this District’s decision in Kruger in support of its motion.
Gallatin relies on Kruger for the proposition that an injunction would be
“appropriate” here because this Court “ruled in favor of the defendants, yet
acknowledge[d] the fact that its ruling was a close call.” 35 F.Supp.3d at 1270;
(Doc. 43 at 3).
Kruger concerned alleged violations of the Endangered Species Act
(“ESA”), NFMA, and NEPA by the Cabin Gulch Project on the Helena National
Forest based on potential harm to lynx, grizzly bears, and elk. Kruger, 35
F.Supp.3d at 1262-63. The Court granted summary judgment to the plaintiffs on an
ESA claim involving lynx. Id. at 1262. The Court ruled in favor of the defendants
on all other claims, however, including those pertaining to grizzly bears under the
ESA, and those pertaining to elk under NEPA and NFMA. Id. at 1263.
The Court enjoined the Project. Id. The Court ordered defendants to remedy
the ESA deficiencies. Id. The Court dissolved the injunction after defendants had
remedied the deficiencies. Id. Following dissolution of the injunction, the plaintiffs
appealed the dissolution order and the Court’s adverse rulings on summary
judgment. Id. The plaintiffs moved for an injunction pending appeal based on their
elk and grizzly bear claims. Id.
Kruger differs from this case in one notable regard. The plaintiffs in Kruger
based their grizzly bear claims on the ESA. A modified, less-demanding standard
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applies to ESA claims. Kruger, 35 F.Supp.3d at 1265. In ESA claims, “the balance
of the hardships always tips sharply in favor of the endangered or threatened
species.” Id. at 1266 (citations omitted). The Court applied this test to the grizzly
bear claims. Id. at 1270. The Court applied the “complete and more exacting
Winter test” to the elk claims, as elk are not an ESA-listed species. Id. at 1268.
The Court discussed the Federal Rule of Civil Procedure 62(c) standard
under both the “serious question” and “likelihood of success on the merits”
standards. Kruger, 35 F.Supp.3d at 1270. The Kruger court noted that an
injunction pending appeal could provide a “middle ground” where “a district court
rules in favor of the defendants, yet acknowledges the fact that its ruling was a
close call, or that the law upon which its ruling rests is unsettled or opaque.” Id.
The Kruger plaintiffs failed ultimately to secure a preliminary injunction. Id.
The grizzly bear claim raised a presumption that the balance of the hardships
tipped in favor of the species under the ESA. The plaintiffs still failed, however, to
“articulate serious questions going to the merits.” Id. Plaintiffs failed further to
“demonstrate either likelihood of success of the merits or serious questions on the
merits” on the elk claim. Id. at 1271.
Kruger fails to support Gallatin’s assertion that it may rely on a claim not on
appeal to satisfy the threshold showing required by Winter. The Kruger “close
call” language on which Gallatin relies goes directly to the “likelihood of success
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on the merits” or “serious question” requirement where a party moving for an
injunction received an adverse ruling based on uncertainties in the law.
Gallatin’s claim, by contrast, does not rely on a “close call” that Gallatin
lost. Gallatin instead asks this Court to determine that interim developments should
change the Court’s ruling on the previously denied preliminary injunction. Gallatin
has cited no authority, and the Court has found none, to support the novel claim
that success on a claim not appealed can establish a likelihood of success on the
merits or raise serious questions going to the merits to satisfy the standard for an
injunction pending appeal.
Gallatin has failed to demonstrate likelihood of success on the merits, or to
raise serious questions going to the merits, by relying on a claim on which it
already has prevailed. Gallatin instead asks this Court, in effect, to reconsider its
ruling to deny Injunction IV. The Court declines to reconsider its ruling given
Gallatin’s pending appeal of the denial of Injunction IV and of the Court’s ruling
on the “coarse filter” methodology.
II.

The Balance of Equities Does Not Favor an Injunction Pending Appeal
Gallatin’s failure to show likelihood of success on the merits relieves the

Court of the need to proceed further with the Winter analysis. Garcia, 786 F.3d at
740. The Court will discuss briefly Gallatin’s balance of equities argument for the
sake of completeness. The Court has denied three previous requests for injunctive
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relief. (Docs. 43; 61; 148 at 36.) Gallatin’s motion for injunction pending appeal
would fail even if Gallatin had established a likelihood of success on the merits.

A.

Irreparable Harm

To satisfy the “irreparable harm” prong of Winter, Gallatin must show that
irreparable harm is not just possible, but likely to occur. Cottrell, 632 F.3d at 1131
(citing Winter, 55 U.S. at 22).
i.

Bighorn Sheep

Gallatin asserts that bighorn sheep will suffer irreparable harm without an
injunction pending appeal. In support, Gallatin claims a dead bighorn sheep has
been found “on one of the domestic sheep allotments.” (Doc. 178-1 at 8.) Craig
Fager, a Biologist for Montana Fish, Wildlife, and Parks (“FWP”) confirmed by
sworn declaration that Fager received a call from Steve Primm of Ennis, Montana
on August 8, 2013. (Doc. 186 at 2.) Fager declares that Primm reported a dead
bighorn ewe “in the vicinity of Black Butte in the Gravelly Mountains.” Id. Fager
further indicates that the Dillon field office recorded the mortality electronically
and forwarded the information to the Region 3 Wildlife Manager. Id.
FWP never confirmed the bighorn sheep fatality. FWP treats wildlife reports
as “unconfirmed” until or unless FWP staff observes a fatality directly or in a
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photograph, or receives a first-person detailed communication from a firsthand
observer. (Doc. 188 at 2.) Fager cites a vacancy in the position normally tasked
with confirming a reported bighorn mortality as the reason this investigation did
not occur. (Doc. 186 at 2.)
The report of the dead bighorn sheep occurred nearly two years before the
filing of Gallatin’s complaint. Gallatin has raised no confirmed or unconfirmed
bighorn sheep fatalities in the intervening five years. The USFS represented at oral
argument that the supplemental EIS would account for the dead bighorn ewe. The
unconfirmed report of one bighorn fatality in 2013 fails to demonstrate a likelihood
of irreparable harm to bighorn sheep that would justify imposition of an injunction
pending appeal.
ii.

Grizzly Bears

Gallatin next contends that grizzly bears likely would suffer irreparable
harm based on an affidavit reporting claims of illegal grizzly bear killing and an
expert declaration regarding elevated levels of grizzly bear mortality associated
with domestic sheep operations. (Doc. 178-1 at 8.) Both the declaration regarding
grizzly bear mortality (Doc. 36) and the declaration alleging illegal killing of
grizzly bears on sheep allotments (Doc. 40) were before this Court at the time the
Court denied Injunctions I, III, and IV.

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The Court’s July 27, 2015, memorandum explained the 150-year history of
domestic sheep grazing in the Gravelly Mountains. (Doc. 56 at 9-10.) In the
context of that history, the same expert declaration upon which Gallatin relies here
fails to demonstrate that irreparable harm would come to grizzly bears as a result
domestic sheep grazing during the 2018 season.
The declaration regarding illegal grizzly bear killing relates a story about an
encounter with an unidentified person who was walking down a rural road in the
fall of 2012. (Doc. 40 at 5.) The declarant gave the unidentified person a ride to
town. Id. The unidentified person claimed to work for a Permittee. Id. When the
declarant asked the unidentified third party about grizzly bears in the Gravelly
mountains, the third party related that “they ‘shoot, shovel, and shut up.’” Id.
In response, the USFS has submitted the declaration of Kevin Frey, a
Grizzly Bear Specialist for Montana Fish Wildlife and Parks. (Doc. 187.) Frey is
involved in all investigations of grizzly bear mortalities. Id. at 1. Frey attests that
he has no knowledge or record of any poached or unresolved grizzly bear
mortalities in the Gravelly Mountains between 2015 and January 26, 2018. Id. at 2.
The declaration Gallatin relies on constitutes inadmissible hearsay. The Frey
declaration demonstrates that the hearsay regarding grizzly bear killing remains
unsubstantiated. Gallatin’s declaration fails to demonstrate a likelihood of
irreparable harm to grizzly bears.
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iii.

Gallatin’s Members

Gallatin asserts that its members will suffer irreparable harm in the absence
of an injunction pending appeal. (Doc. 178-1 at 5.) Gallatin bases this argument on
the conservation and recreation interests of its members, combined with the
advanced age of one member and the recent death of another. Id. at 5-6. Gallatin’s
members attest that the presence of domestic sheep harms their aesthetic and
recreational interests. (Docs. 178-3 at 2-3; 178-2 at 2; 178-4 at 3.) These members
attest the unsightly appearance of the sheep, the loud and threatening sheep dogs,
and the fact that the presence of domestic sheep impacts the declarants’ ability to
view wildlife in the area. Id.
Gallatin relies upon Cottrell to demonstrate the likelihood of irreparable
harm to its members. (Doc. 178-1 at 6.) The Ninth Circuit in Cottrell reversed the
district court’s denial of a preliminary injunction against a timber salvage sale. 632
F.3d at 1128-29. The Court determined, in part, that the plaintiffs had shown a
likelihood of irreparable harm because the timber salvage sale and resultant
logging would prevent plaintiffs’ members from using 1,652 acres of the forest in
their undisturbed state. Id. at 1135. Gallatin similarly claims that its members
“cannot use and enjoy over 50,000 acres of the Beaverhead Deerlodge National
Forest.” (Doc. 178-1 at 6.)

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Two factors distinguish this case from Cottrell. First, the presence of
domestic sheep and sheep dogs does not prevent Gallatin’s members from using
the area in question. Second, in Cottrell, the Ninth Circuit considered the ongoing
and imminent removal of trees in response to a wildfire. 632 F.3d at 1129. Gallatin
challenges grazing practices that have been ongoing for the last 150 years. As
discussed in this Court’s July 27, 2015, memorandum, Gallatin has raised nothing
about the grazing that will change in 2018 to demonstrate a likelihood of new,
irreparable harm that would warrant injunctive relief. (See Doc. 56 at 9.)
Gallatin further has cited no authority, and the Court has found none, that
suggests that the age of its members renders sufficient an otherwise insufficient
showing of a likelihood of irreparable harm. In fact, domestic sheep have grazed in
the Gravelly Mountains over the entire life of Gallatin’s 90-year-old member. In
the context of the history of the Gravelly Mountains, Gallatin has failed to
demonstrate a likelihood of irreparable harm to justify an injunction pending
appeal.
B.

Balance of Equities and Public Interest

Gallatin cites this Court’s observation that the balance of equities and public
interest inquiries “present[ed] questions that [were] to[o] close to resolve” at the
time this Court denied Injunction I. (Doc. 43 at 3.) This Court determined at that

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time, however, that Gallatin had also failed to demonstrate likelihood of success on
the merits or a likelihood of irreparable harm. Id.
Gallatin argues that the balance of equities and public interest now “tips
sharply” in its favor. (Doc. 178-1 at 12.) As discussed above, Gallatin again has
failed to demonstrate likelihood of success on the merits, raise serious questions
going to the merits, or demonstrate a likelihood of irreparable harm. In order to
secure an injunction, a plaintiff must satisfy all four Winter prongs. Cottrell, 632
F.3d at 1135. Thus, even if Gallatin could demonstrate that the balance of equities
and public interest now “tips sharply” in its favor, that showing alone would not be
sufficient to secure an injunction pending appeal.
Gallatin has not demonstrated, however, that the balance of equities and
public interest “tip sharply” in its favor. Gallatin largely relies upon its claims
regarding illegal grizzly bear killing, and the presence of sheep dogs deterring
recreation. These claims prove insufficient to demonstrate irreparable harm. They
are similarly unpersuasive to demonstrate that issuing an injunction “sharply”
would favor the public interest. Further, with regard to the grizzly bear declaration,
this information is not new, and cannot now “tip” the balance of harms in
Gallatin’s favor.

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CONCLUSION AND ORDER
Gallatin’s reliance on a claim not on appeal fails to demonstrate a likelihood
of success on the merits, or raise serious questions going to the merits, warranting
an injunction pending appeal. Even if Gallatin’s success on the MOU NEPA claim
sufficiently met the first prong of the Winter test, Gallatin has failed to demonstrate
a likelihood of irreparable harm to wildlife or its members, or that the balance of
equities and the public interest favor an injunction pending appeal.
Accordingly, for the reasons set forth in the above Order, Gallatin’s Motion
for Injunction Pending Appeal (Doc. 178) is DENIED.
DATED this 16th day of April, 2018.

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