Alliance for the Wild Rockies v. Weldon et al
Filing
118
ORDER denying 110 Motion for Injunction Pending Appeal. Signed by Judge Charles C. Lovell on 5/15/2013. (MKB)
IN THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MONTANA
MISSOULA DIVISION
*******
ALLIANCE FOR THE
WILD ROCKIES,
CV 11-76-M-CCL
Plaintiff,
-vUNITED STATES DEPARTMENT
OF AGRICULTURE, UNITED
STATES ANIMAL AND PLANT
HEALTH INSPECTION SERVICE,
an agency of the U.S. Department
of Agriculture, UNITED STATES
FOREST SERVICE, an agency of
the U.S. Department of Agriculture,
LESLIE WELDON, in her official
capacity as Regional Forester of
Region One of the U.S. Forest Service,
UNITED STATES DEPARTMENT
OF INTERIOR, UNITED STATES
FISH AND WILDLIFE SERVICE,
an agency of the U.S. Department of
Interior, UNITED STATES
NATIONAL PARK SERVICE, an
ORDER
agency of the U.S. Department of
Interior, and CHRISTIAN MACKAY,
in his official capacity as Executive
Director of the State of Montana
Department of Livestock,
Defendants,
and
BILL MYERS, individually,
Intervenor.
*******
Now before the Court is the Motion for Injunction Pending Appeal filed by
Plaintiff Alliance for the Wild Rockies. Plaintiff asks the Court to enjoin
Defendants from allowing, authorizing, or participating in helicopter hazing
operations in grizzly bear-occupied habitat adjacent to Yellowstone National Park
(“YNP”) until the Ninth Circuit issues a final decision on the merits of Plaintiff’s
appeal. Plaintiff asserts that it is entitled to an injunction pending appeal because
the public interest and balance of equities tip sharply in Plaintiff’s favor, Plaintiff
is likely to suffer irreparable harm in the absence of relief, and Plaintiff raises
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serious questions on the merits.
Defendants and Defendant-Intervenor oppose the motion.
Last year, this Court granted Plaintiff’s motion for temporary restraining
order to restrain the State of Montana from conducting helicopter hazing of bison.
It was obvious to the Court that the threatened Yellowstone grizzly bear was
present to some extent in the general location of helicopter hazing outside YNP,
and at this time last year the Court had not yet had an opportunity to consider
Plaintiff’s evidence. Plaintiff had not yet filed its summary judgment motion and
thereby presented its full case to the Court. Under the circumstances, the Court
felt it had no choice but to assume that the case presented serious questions under
the Endangered Species Act. The Court’s primary intention then was to stop the
helicopter hazing while the question whether or not it should be permitted--which
was arguably one of the principal determinations to be made in this case--was
under the Court’s consideration. One year later, however, it having become
abundantly clear to the Court that Plaintiff is entitled to no relief on the merits, this
Court does not believe that injunctive relief is appropriate in this case.
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The Court has concluded on the merits of this case that helicopter hazing
does not pose any harm to the Yellowstone grizzly bear. By policy and practice,
helicopter hazing near Yellowstone National Park is not conducted in the presence
of any grizzly bear. Instances of contact between helicopter hazing activity and
grizzly bears have been few and brief. NEPA analysis has concluded that
helicopter hazing may affect, but is not likely to adversely affect grizzly bears.
After reviewing the environmental analysis conducted for the Final Environmental
Impact Statement supporting the Intergovernmental Bison Management Plan
(“IBMP”) and the National Park Service’s 2012 Biological Evaluation (“Effects of
Hazing Yellowstone Bison on Threatened Grizzly Bears (ECF No. 89-2)), this
Court has concluded that there is no new circumstance or information that requires
a supplemental EIS as demanded by Plaintiff. The Court has also concluded that
Plaintiff has presented insufficient evidence to support a finding of any taking of
grizzly bears under § 9 of the Endangered Species Act. The Court relied, in part,
on the most recent and authoritative scientific statement on the matter, by Dr.
Chris Servheen, the USFWS Grizzly Bear Recovery Coordinator, who states that
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[i]n summary, in my experience as a professional grizzly bear
biologist for 37 year, I find no evidence in this [helicopter hazing]
video that this bear is harmed or ‘taken in any way. Occasional
helicopter hazing of bison is not an issue for grizzly bear recovery
and conservation and it will not harm or harass bears from habitats or
result in any measurable impact on the bears or their young.
(ECF No. 71, Supp. AR 1415-16, Servheen Memo. to A. Vandehey, dated
8/22/12.)
As asserted by Defendants Montana Department of Livestock and Christian
Mackay, on good authority, the status quo in this case is the IBMP, which has
been operating for over ten years, and about as many years of helicopter hazing,
without any demonstrable harm to the Yellowstone grizzly bear. The IBMP
merely recognizes Montana’s authority to conduct helicopter hazing, which arises
from Montana’s legal authority to manage its own wildlife and protect public
health, safety, and welfare.
Plaintiff must satisfy four criteria to demonstrate the appropriateness of an
injunction pending appeal. See Winters v. Natural Res. Def. Council, 555 U.S. 7,
19-20, 129 S. Ct. 365 (2008). “A plaintiff seeking a preliminary injunction must
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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.” Id. at 19
(citations omitted). As the Federal Defendants correctly point out, the Court has
already found that Plaintiff has not shown a likelihood of success on the merits
(and in fact failed to establish standing) and that there has been no showing of a
substantial likelihood of irreparable harm to the Yellowstone National Park
(“YNP”) grizzly bear. Now, saving its best evidence for last, the Plaintiff has
attached to its Reply Brief certain voluminous documents (consisting in part of
repetitive photographs of grizzly bear paw prints and dated NEPA documents that
do not appear to be part of our administrative record) that do not persuade the
Court otherwise. However, and to quote the very last sentence of Attachment Six
to the Second Declaration of M. Garrity (all attached to Plaintiff’s Reply Brief),
the September 10, 2012, report of the Interagency Grizzly Bear Study Team
concludes that “[t]he consensus among the group is the GYE [Greater Yellowstone
Ecosystem] bear population remains healthy and stable at this time and there are
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no indications the grizzly bear population has entered a prolonged declining
trend.” (ECF No. 116-2, p. 88.)
Despite the foregoing, even were the Court to assume, arguendo, that
Plaintiff raises serious questions on the merits, the Court could not, in addition,
also find that the balance of the equities tips sharply in Plaintiff’s favor. See
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)
(sliding scale test requiring serious questions going to the merits, a balance of
hardships tipping sharply, a likelihood of irreparable injury, and an injunction
serving the public interest). The State of Montana and the Federal Defendants
struggled for decades to construct a border management program that serves the
needs of the environment, the natural resources, and the public. The balance of
the equities does not favor unraveling that program now to protect against a
hypothetical harm to YNP grizzly bears, especially when Plaintiff’s own evidence
demonstrates that the YNP grizzly bear population is healthy and stable.
The Court concludes that Plaintiff is not entitled to succeed on the merits of
the underlying litigation and that Plaintiff has not presented serious questions on
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the merits. Plaintiff has failed to demonstrate any likelihood of harm, much less
an imminent, irreparable harm. The balance of the equities does not tip at all in
Plaintiff’s favor and the public interest clearly would be disserved by the proposed
injunction. Plaintiff thus fails to support the motion for injunction pending appeal.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Injunction Pending
Appeal (ECF No. 110) is DENIED.
DONE and DATED this 15th day of May, 2013.
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