Crow Indian Tribe et al v. United States of America et al

Filing 254

ORDER granting in part (251) Motion for Preliminary Injunction; granting in part (252) Motion for TRO. The motions are granted to the degree that the Plaintiffs seek a temporary restraining order. Defendants and Defendant-Intervenors are temporari ly restrained and enjoined from authorizing and/or implementing grizzly bear hunting. This Order shall remain in effect for fourteen days from this date. IT IS FURTHER ORDERED that the Court will withhold ruling on the motions to the degree that the Plaintiffs seek a preliminary injunction or any other more long-term-relief. Signed by Judge Dana L. Christensen on 8/30/2018. Associated Cases: 9:17-cv-00089-DLC et al. (NOS)

FILED
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

Clerk, U.S District Co u1
District Of Montana
Missoula

CROW INDIAN TRIBE; et al.,
CV 17-89-M-DLC
Plaintiffs,
vs.
UNITED STATES OF AMERICA; et al.,
Federal Defendants.

(Consolidated with Case Nos.
CV 17-117-M-DLC
'
CV 17-118-M-DLC
'
CV 17-119-M-DLC
'
CV 17-123-M-DLC
and CV 18-16--M-DLC)

and
ORDER
STATE OF WYOMING; et al.,
Defendant-Intervenors.

Before the Court is the Organizational Plaintiffs' Joint Motion for
Temporary Restraining Order and Preliminary Injunction (Doc. 252) and pro se
plaintiff Robert Aland's motion for an injunction pursuant to the All Writs Act, 28
U.S.C. § 1651, and Federal Rule of Appellate Procedure 8(a)(l) (Doc. 251), which
the Court construes as a motion for a temporary restraining order and preliminary
injunction. The Organizational Plaintiffs' Motion is supported by the
Declarations of scientists Barrie K. Gilbert and David J. Mattson (Docs. 253-1 &

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252-2).
The Court held a hearing on August 30, 2018, addressing the merits of the
Plaintiffs' legal challenges to the recent delisting of the Greater Yellowstone
Ecosystem Grizzly bear. See 82 Fed. Reg. 30,502 (June 30, 2017). Following
that hearing, the Plaintiffs filed the present motions, seeking to restrain the
Defendants and Defendant-Intervenors from authorizing or implementing grizzly
bear hunting on September 1, 2018. The Defendants and Defendant-lntervenors
have not yet responded to the motions. Nonetheless, pursuant to Federal Rule of
Civil Procedure 65(b ), the Court is satisfied that a temporary restraining order
("TRO") is warranted.
The analysis "is substantially identical for [a preliminary] injunction and [a]
TRO." Stuhlbarg Intern. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7
(9th Cir. 2001). Plaintiffs "must establish that [they are] likely to succeed on the
merits, that [they are] likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tip in [their] favor, and that an
injunction is in the public interest." Winter v. Natural Res. Def Council, Inc., 555
U.S. 7, 20 (2008). However, in Endangered Species Act ("ESA") cases, the Court
"presume[ s] that remedies at law are inadequate, that the balance of interests
weighs in favor of protecting endangered species, and that the public interest
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would not be disserved by an injunction." Nat'/ Wildlife Fed'n v. Nat'/ Marine
Fisheries Serv., 886 F.3d 803, 817 (9th Cir. 2018). Thus, here the Plaintiffs must
demonstrate only that irreparable harm is likely and that they are likely to succeed
on the merits.
"In light of the stated purposes of the ESA in conserving endangered and
threatened species and the ecosystems that support them, establishing irreparable
injury should not be an onerous task for plaintiffs." Cottonwood Envtl. Law Ctr.
v. USFS, 789 F.3d 1075, 1091 (9th Cir. 2015). Here, the threat of death to

individual grizzly bears posed by the scheduled hunt is sufficient. Indeed, "[h]arm
to ... members [of endangered species] is irreparable because once a member of
an endangered species has been injured, the task of preserving that species
becomes all the more difficult." Nat'/ Wildlife Fed'n, 886 F.3d at 818 (internal
quotation marks, alteration, and citation omitted). Moreover, members of the
Organizational Plaintiffs, as well as pro se Plaintiff Robert Aland, have established
personal interests in continued enjoyment of the species. The Organizational
Plaintiffs have submitted substantial documentation of potential harm to the
species (Docs. 253-1 & 252-2) and to the organizations' members (Docs. 75-1, 752, 75-3, 75-4, 75-5, 186-3, 186-6, 194-1).
Where the "balance of hardships tips sharply [in the moving party's] favor"
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and the Winter factors are otherwise satisfied, it is enough for a plaintiff to
demonstrate the existence of"serious questions going to the merits." Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). "Serious

questions on the merits" are those questions that present a "fair ground for
litigation and thus for more deliberative investigation." Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).

Here, the Court finds that the Plaintiffs' arguments raise "serious questions
going to the merits." At minimum, the current issue is close to that recently
presented in Humane Society of the United States v. Zinke, 865 F.3d 585 (D.C. Cir.
2017), in which the D.C. Circuit Court of Appeals held that Fish and Wildlife
Service violated the Administrative Procedure Act and the ESA when it isolated
and delisted a distinct population segment without considering the legal and
functional impact on the remainder of the species.
IT IS ORDERED that the motions (Docs. 251 & 252) are GRANTED IN
PART. The motions are granted to the degree that the Plaintiffs seek a temporary
restraining order. Defendants and Defendant-Intervenors are temporarily
restrained and enjoined from authorizing and/or implementing grizzly bear
hunting. This Order shall remain in effect for fourteen days from this date.
IT IS FURTHER ORDERED that the Court will withhold ruling on the
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motions to the degree that the Plaintiffs seek a preliminary injunction or any other
more long-term relief.
DATED this

30~day of August, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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