Cottonwood Environmental Law Center et al v. U.S. Sheep Experiment Station et al

Filing 11

ORDER denying 4 Motion for Preliminary Injunction. Signed by Judge Dana L. Christensen on 5/4/2018. (NOS)

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

COTTONWOOD ENVIRONMENTAL
LAW CENTER, GALLATIN
WILDLIFE ASSOCIATION,
YELLOWSTONE BUFFALO
FOUNDATION,

CV 17-155-M-DLC

ORDER

Plaintiffs,
vs.
U.S. SHEEP EXPERIMENT
STATION; AGRICULTURAL
RESEARCH SERVICE,
Defendants.
Plaintiffs have filed a Motion for a Preliminary Injunction (Doc. 4)
requesting the Court to enjoin Defendants from entering a final Record of Decision
("ROD") and to allow Plaintiffs members to recreate on the subject property. On
April 23, 2018, this Court held a hearing on Plaintiffs' Motion. For the reasons
stated below, Plaintiffs' Motion will be denied.
BACKGROUND

This is Plaintiffs third lawsuit challenging the grazing of domestic sheep by
Defendants in southwest Montana's Centennial Mountains. The U.S. Agricultural

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Research Service and Sheep Experiment Station ("Sheep Station") at issue was
established in 1915 and is managed by the Agricultural Research Service. Sheep
have been historically grazed on three allotments in the Centennial Mountains: the
Summer West, Summer East, and the U.S. Forest Service Meyers Creek
allotments. These allotments span approximately 16,600 acres and are dissected
by roughly 16 miles of the Continental Divide Trail ("CDT"). While the public is
allowed access to that portion of the CDT crossing Sheep Station lands and a small
transection of lands abutting the CDT, use of the remaining 16,600 acres is strictly
limited in order to "maintain the Living Laboratories status" of the Sheep Station's
"high elevation rangelands." (Doc. 8 at 13.) Accordingly, the public is not
allowed access to Sheep Station lands year-round.
Defendants have been unable to graze any sheep over the last several years
because of Plaintiffs' continued litigation. In 2012, Plaintiffs filed a lawsuit
challenging the 2011 Biological Opinion for the Sheep Station resulting in the
preparation of a new Biological Opinion. See Cottonwood Envtl. Law Ctr. v. US.
Sheep Experiment Station, No. CV 12-45-M-DLC, Doc. 1 (D. Mont. Mar. 26,
2012). In 2014, Plaintiffs filed another lawsuit challenging the new Biological
Opinion as well as the Sheep Station's National Environmental Policy Act
("NEPA") analysis. See Cottonwood Envtl. Law Ctr. v. US. Sheep Experiment

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Station, No. CV 14-192-M-DLC, Doc. 1 (D. Mont. June 23, 2014). Plaintiffs
second suit was voluntarily dismissed after Defendants stated that no sheep would
be grazed on Sheep Station lands "until after the completion of ongoing
environmental analysis under [NEPA.]" (Doc. 4-12 at 3-4.) After Defendants had
completed their environmental analysis as promised and issued an Environmental
Impact Statement ("EIS"), Plaintiffs filed the present suit alleging that the EIS had
violated NEPA. (See Doc. 1.)
For grizzly bears, the Centennial Mountain Range "is the best linkage
habitat between Yellowstone and central Idaho." (Doc. 4-13 at 3.) The U.S. Fish
and Wildlife Service's 2014 Biological Opinion estimates that 22 grizzly bears
occupy the Centennial Mountain Range. (Doc. 4-4 at 26.) Through a Freedom of
Information Act request, Plaintiffs have obtained internal emails which, Plaintiffs
contend, establish that "grizzly bears have defended sheep carcasses and chased
sheepherders on ... at least two separate occasions." (Doc. 5 at 6 (citing Doc. 45).) Nonetheless, the EIS states that "herders have not encountered grizzly bears
on [Sheep Station] lands." (Doc. 4-2 at 12.) Plaintiffs argue that this evidence and
other evidence establishes human-grizzly bear conflict, Plaintiffs contend that the
EIS is inadequate and stands in contrast to the evidence of grizzly bear conflict
before the agency in violation of NEPA. Further, Plaintiffs assert that the grizzly

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bear "conflicts put the lives of sheepherders, hikers on the [CDT], and grizzly
bears at risk." (Doc. 5 at 6.)
Plaintiffs contend that a supplemental Environmental Impact Statement
("SEIS") is necessary in this case because the Final Environmental Impact
Statement ("FEIS") issued by Defendants in 2017 '"entirely failed to consider an
important aspect of the problem"' or "'offer[] an explanation for [the] decision
that runs counter to the evidence before the agency,"' namely the conflict between
humans and grizzly bears. (Doc. 5 at 13 (quoting Friends of Clearwater v.
McAllister, 214 F. Supp. 2d 1083, 1087 (D. Mont. 2002) (internal citation
omitted).) Plaintiffs' Motion seeks a preliminary injunction enjoining Defendants
from issuing a ROD before completing a SEIS thoroughly analyzing the evidence
of conflict between humans and grizzly bears in the Centennial Mountains and
providing an opportunity for public comment which would inform the public of the
risks of hiking on the CDT. Additionally, Plaintiffs seek affirmative injunctive
relief allowing the public to enjoy non-motorized recreation on Sheep Station lands
while Defendants prepare the requested SEIS.
DISCUSSION

Injunctive relief is an "extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res.

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Def Council, 555 U.S. 7, 22 (2008). "A plaintiff seeking a preliminary injunction

must 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 20. The
Ninth Circuit permits a preliminary injunction where a plaintiff shows "that serious
questions going to the merits were raised and the balance of hardships tips sharply
in the plaintiffs favor." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1134-35 (9th Cir. 2011) (internal quotation marks and citation omitted). The
Court first analyzes whether Plaintiffs "are likely to succeed on the merits of any
of their claims under prong one of Winter [v. Natural Resources Defense Council,
555 U.S. 7, 22 (2008)]. Upon determining that they are, we then proceed to
consider the remaining prongs of the Winter test." League of Wilderness
Defenders v. Connaughton, 752 F.3d 755, 760 (9th Cir. 2014).

The merits of Plaintiffs' claims are governed by NEPA. (Doc. 5 at 9-11.)
However, because NEPA does not "provide[ ] a private right of action for
violations of its provisions," Lujan v. Nat'/ Wildlife Fed'n, 497 U.S. 871, 882
(1990), Plaintiffs can obtainjudicial review of the alleged violations ofNEPA only
under the waiver of sovereign immunity contained within the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Earth Island Inst. v. U.S. Forest

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Serv., 351F.3d1291, 1300 (9th Cir. 2003). "[O]nly ' agency action made

reviewable by statute and final agency action for which there is no other adequate
remedy in a court' are subject to judicial review." Tucscon Airport Auth. v. Gen
Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998) (quoting 5 U.S.C. § 704).

Plaintiffs contend that the AP A permits the Court to "issue an order that
compels Defendants to supplement the FEIS before issuing a ROD." (Doc. 9 at 5.)
Quoting Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000),
Plaintiffs assert that "an action to compel an agency to prepare an [sic] SEIS . .. is
not a challenge to a final agency decision, but rather an action arising under 5
U.S.C. § 706(a), to compel agency action unlawfully withheld or unreasonably
delayed." (Docs. 5 at 11; 9 at 5.)
Defendants respond that Plaintiffs have not disputed that the FEIS has not
been approved by the agency and that, under NEPA, the FEIS will not be
considered "final agency action" for purposes of the APA until a ROD is issued.
(Doc. 7 at 11-12.) Consequently, Plaintiffs cannot seek review of a "final agency
action" under either§ 704 or§ 706(2). Importantly, Defendants contend that
Plaintiffs cannot satisfy their burden of establishing "failure to act" for purposes of
seeking review under§ 706(1). (Id. at 12.) The Court agrees.

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"Once an EIS' s analysis has been solidified in a ROD, an agency has taken
final action" for purposes of the APA. Oregon Natural Desert Ass 'n v. Bureau of
Land Mgmt., 625 F.3d 1092, 1118 (9th Cir. 2011). Again,§ 704 limits this Court's

ability to review only "agency action made reviewable by statute and final agency
action." Plaintiffs cannot direct this Court to a statute which makes their request
reviewable and, because a ROD has not yet issued, there has not yet been "final
agency action" permitting review. Consequently, neither§ 704 nor§ 706(2)
permit this Court to conduct the review requested by Plaintiffs.
Plaintiffs' argument that§ 706(1) permits this Court to "compel agency
action unlawfully withheld" in this situation is unavailing. Plaintiffs cannot direct
this Court to any case compelling the completion of a SEIS prior to the issuance of
a ROD. To compel agency action under§ 706(1), Plaintiffs bear the burden of
establishing that the action they seek is mandatory, discrete, ministerial, and "so
clearly set forth that it could traditionally have been enforced through a writ of
mandamus." Hells Canyon Pres. Council v. US. Forest Serv., 593 F.3d 923, 932
(9th Cir. 2010) (citing Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55,
62-63 (2004)). The Supreme Court has clarified that a claim under§ 706(1) "can
proceed only where ... an agency failed to take a discrete agency action that it is
required to take." Norton, 542 U.S. at 64. In support of this burden, Plaintiffs

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assert that 40 C.F .R. § 1502.9(c)(1 )(ii) requires the agency to "prepare
supplements" if "there are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts."
However, this argument presupposes that Defendants will approve the proposed
action in a ROD and, more importantly, that Defendants will have done so having
"unlawfully withheld" a SEIS. 1 Without a ROD, Plaintiffs cannot establish that
Defendants "failed to take a discrete agency action that [they are] required to take."

Norton, 542 U.S. at 64.
Plaintiffs rely solely upon Dombeck for the proposition that this Court may
compel this agency action before final agency action has been rendered. However,
that was not the case in Dombeck, where appellants requested the Ninth Circuit to
enjoin the Forest Service from proceeding with timber sales that had been
approved by a "final Record of Decision" until a SEIS had been completed. 222
F.3d at 554-555. The question of whether the Court could compel an SEIS prior to
a final agency action was not before the Ninth Circuit in Dombeck because a ROD
had already been issued. Further, Plaintiffs argument is insupportable in view of
the doctrine of prudential ripeness.

1

This statement is in no way intended to indicate whether a SEIS is actually required in this
case.

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"The ripeness doctrine is drawn both from Article III limitations on judicial
power2 and from prudential reasons for refusing to exercise jurisdiction." Wolfson
v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010) (internal quotation marks and
citation omitted). The "basic rationale" of the prudential ripeness doctrine "is to
prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to
protect the agencies from judicial interference until an administrative decision has
been formalized and its effect felt in a concrete way by the challenging parties."
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) overruled on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977). "The Ninth Circuit uses two factors to
determine whether a controversy is ripe for judicial review: the fitness of the issues
for judicial decision and the hardship to the parties of withholding court
consideration." Acura ofBellevue v. Reich, 90 F.3d 1403, 1408 (9th Cir. 1996).
It has been long established that a "claim is fit for decision if the issues
raised are primarily legal, do not require further factual development, and the
challenged action is final." Standard Alaska Production Co. v. Schaible, 874 F.2d
624, 627 (9th Cir. 1989) (citing Friedman Brothers Investment Co. v. Lewis, 676
F .2d 1317, 1319 (9th Cir. 1982); accord Dietary Supplemental Coalition, Inc. v.
2

For ease of discussion and to promote judicial economy, the Court assumes without deciding
that Plaintiffs have Article III standing.

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Sullivan, 978 F .2d 560, 562 (9th Cir. 1992); accord Verizon California Inc. v.
Peevey, 413 F .3d 1069, 107 5 (9th Cir. 2005) (Bea, J ., concurring). "Finality must
be interpreted in a pragmatic and flexible manner to ensure that judicial review
does not interfere with the agency's decision-making process." Acura, 90 F.3d at
1408.
Here, as discussed above, there is no final agency action. Further, there is
no flexible interpretation of "final agency action" which could ensure that "judicial
review does not interfere with the agency's decision-making process" in this
instance because Plaintiffs' request is that the court interfere with Defendants'
decision making process-the injunctive relief sought by Plaintiffs is that the Court
enjoin the issuance of a ROD until the completion of a SEIS. A request which, as
stated above, presupposes that Defendants will approve sheep grazing in a ROD
without completing a SEIS. 3 "A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or indeed may not occur
at all." Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks
and citation omitted).

3

Again, it is not the intention of the Court to make any statement which could be regarded as
suggesting that a SEIS is required in this case. This is a determination the Defendants need to
make.

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To establish hardship, Plaintiffs "must show that withholding judicial review
would result in direct and immediate hardship and would entail more than possible
financial loss." Sullivan, 978 F.2d at 564. The Court cannot foresee hardship to
Plaintiffs by the withholding of judicial review. Any hardship alleged by Plaintiffs
will not occur until Defendants have rendered a ROD which approves highelevation sheep grazing without the completion of a SEIS.
In light of the above, the Court is convinced that§ 706(1) does not permit
the Court to compel Defendants to complete a SEIS before issuing a ROD at this
juncture. Consequently, Plaintiffs' claims are barred by the APA. Accordingly,
IT IS ORDERED that Plaintiffs' Motion for a Preliminary Injunction (Doc.
4) is DENIED.
DATED this

4 .}h day of May, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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