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

Filing 40

ORDER denying 36 Motion for Preliminary Injunction Pending Appeal. Signed by Judge Dana L. Christensen on 7/22/2019. (ASG)

Case 9:17-cv-00155-DLC Document 40 Filed 07/22/19 Page 1 of 9

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.
Before the Court is Plaintiffs' Motion for Injunction Pending Appeal (Doc.
36) of the Court's May 30, 2019 order denying Plaintiffs' motion for permanent
injunction and summary judgment (Doc. 32) regarding Defendants' decision to
graze sheep in the Centennial Mountains. Plaintiffs file this motion because
grazing is scheduled to start this month and the appeal may not be resolved for
some time.
By definition of the relief sought here, this is not the first instance when the
Court has heard and weighed Plaintiffs' arguments against grazing sheep on the

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lands owned by Defendants. Nor is the Court' s experience limited to just the
briefing for summary judgment. Rather, this is the third round of motions and
briefing on the propriety of grazing sheep in the Centennial Mountains in the third
lawsuit filed by Plaintiffs on the matter. Accordingly, the Court will not revisit the
facts of the case but proceed directly to its analysis.
LEGAL STANDARD

Injunctions are extraordinary remedies, "never awarded as of right." Winter
v. Natural Res. Def Council, 555 U.S. 7, 24 (2008). Federal Rule of Civil
Procedure 62(d) authorizes this Court to "suspend, modify, restore, or grant an
injunction" while an appeal "is pending from an interlocutory order or final
judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve
or modify an injunction." A party seeking such an injunction must show: (1) it is
likely to suffer irreparable harm absent the injunction; (2) that it is likely to
succeed on the merits; (3) that the balance of equities tips in its favor; and (4) that
an injunction is in the public interest. Winter, 555 U.S. at 20. The party must
show more than the possibility of irreparable harm, it must demonstrate that
"irreparable injury is likely in the absence of an injunction." Id. at 22 (emphasis in
original). Once shown, the other factors are assessed on a sliding scale. Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). For
instance, if, after demonstrating that irreparable harm is likely, the party also

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makes a strong showing on the public interest and equities prongs, then an
injunction may issue so long as "serious questions going to the merits" have been
raised. Id. In such cases, the party is thus relieved of the requirement that it
demonstrate that it is likely to succeed on the merits, and may succeed on the lesser
"serious questions" standard. Id. When the federal government is a party, the
balance of equities and public interest factors may be merged. Drakes Bay Oyster
Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
DISCUSSION

Plaintiffs must satisfy all four Winter prongs in order to secure an injunction.
Alliance ofthe Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Because their showing on the likelihood of irreparable harm could influence the
required showing on the remaining factors, the Court begins its analysis there.

I.

Likelihood of Irreparable Harm

Plaintiffs present several arguments to show that they are likely to suffer
irreparable harm absent an injunction. First, Plaintiffs urge the Court to adopt the
"bureaucratic steam roller" theory of irreparable harm first coined in Sierra Club v.
Marsh, 872 F.2d 497,504 (1st Cir. 1989). This theory recognizes that the purpose
of NEPA is to present "governmental decision-makers with relevant environmental
data before they commit themselves to a course of action." Id. at 500 (quoting
Commonwealth ofMassachusetts v. Watt, 716 F.2d 946, 952 (1st Cir. 1983))
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( emphasis in original). Accordingly, when a decision implicating NEPA is made
"without the informed environmental consideration that NEPA requires, the harm
that NEPA intends to prevent has been suffered." Id. (quoting Watt, 716 F.2d at
952) (emphasis omitted). However, the harm should not be defined as merely
procedural harm to the NEPA process, rather, the harm is "to the environment,"
and "consists of the added risk to the environment that takes place when
governmental decisionmakers make up their minds without having before them an
analysis (with prior public comment) of the likely effects of their decision upon the
environment." Id. (emphasis in original). The image of the bureaucratic
steamroller is evoked by the reality of the situation where resources are committed
by implementing a decision while litigation concerning that decision continues on
appeal- in such a case, "new information ... may bring about a new decision, but
it is that much less likely to bring about a different one" because the bureaucratic
mind is "already made up." Id. (quoting Watt, 716 F.2d at 952) (emphasis in
original).
The Court is not satisfied that the "bureaucratic steamroller" theory is
applicable in this case. To apply that theory of irreparable harm, the Court would
need to be satisfied that there is, at least, a serious question regarding whether the
requirements of NEPA were met. In other words, the Court must be satisfied that
the bureaucratic steamroller is likely to cause the harm the theory contemplates-4-

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risk to the environment through implementation of a decision and commitment of
resources despite incomplete information. Where, as here, the Court has found that
NEPA was complied with because the information emphasized by Plaintiffs was
considered in the decision-making process, the Court cannot find that the harm
contemplated by the bureaucratic steamroller theory is likely. Additionally, as
Plaintiffs note, the Ninth Circuit has not "directly addressed" the viability of this
theory. (Doc. 37 at 13.)
Second, Plaintiffs claim that Defendants' actions are causing irreparable
harm to Plaintiffs by preventing them from "using public land." (Id. at 13.) In
support, Plaintiffs assert that they "cannot enjoy the Continental Divide Trail" for
fear of being chased by grizzly bears and "cannot hike with their dogs on the
Continental Divide Trail for fear they will be bit by aggressive sheep guard dogs."
(Id. at 13- 14.) The Court does not find that these complaints establish a likelihood

of irreparable harm because Plaintiffs have wholly failed to provide any evidence
which would indicate that these scenarios are likely.
Lastly, Plaintiffs claim that Defendants' decision to graze sheep will cause
"irreparable harm to [Plaintiffs'] interests in making the area secure for dispersing
grizzly bears." (Id. at 16.) In support, Plaintiffs quote portions ofDefendants'
Biological Opinion stating that grizzly bears are likely to prey on sheep
independent of the availability of natural foods and that most situations where

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bears are exposed to sheep result in conflict. (Id. (quoting Doc. 7-1 at 3 7).) The
Court will not rely on Plaintiffs' selective quotation from Defendants' Biological
Opinion to establish that irreparable harm is likely. The ultimate conclusion in the
Biological Opinion is clear, which is that the effects of grazing sheep are
"discountable and no adverse effects to grizzly bears would be likely from
implementing ... the proposed action." (Doc. 7-1 at 41.) To conclude that
Plaintiffs' selective quotations show that irreparable harm is likely would be to
substitute Plaintiffs' interpretation of the evidence for Defendant's expert opinions
regarding the implications of that evidence. 1
II.

Success on the Merits

Because Plaintiffs failed to successfully show a likelihood of irreparable
harm, the Court evaluates the second prong of the Winter test using the higher,
"success on the merits" standard. See Humane Society of US. v. Gutierrez, 523
F .3d 990, 991 (9th Cir. 2008) ("[T]he issues of likelihood of success and
irreparable injury represent two points on a sliding scale in which the required
degree of irreparable harm increases as the probability of success decreases."). In
denying Plaintiffs' summary judgment motion, the Court has already concluded

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Plaintiffs' also claim that the action will likely cause irreparable harm to the specific bears that
pass through the Centennial Mountains. (Doc. 37 at 16-17.) Plaintiffs provide no additional
evidence to support their assertion that harm is likely to these specific bears. As this argument is
unsupported, the Court will not address it further.

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that Plaintiffs do not succeed on the merits of their arguments. Plaintiffs do not
offer new argument here. Rather, they "respectfully disagree[]" with the Court's
analysis and reiterate their arguments in support of summary judgment. (Doc. 3 7
at 9.) Plaintiffs hold fast to their assumption that the incidents detailed in their
FOIA requests definitively involved grizzly bears and were inadequately disclosed
or addressed by Defendants. However, as detailed in the Court' s order on
summary judgment, that assumption lacks merit, the incidents were adequately
disclosed, and Plaintiffs' concerns were appropriately addressed. (Doc. 32 at I 016.) Having determined that these arguments did not have merit, the Court cannot
now find that they are likely to succeed. 2

III.

Public Interest and Balance of Equities

Lastly, the Court merges the public interest and balance of equities factors to
reflect that the federal government is defending this case. Jewell, 74 7 F .3d at
I 092. On these combined factors, Plaintiffs assert that "[h]uman safety always
sharply outweighs livestock grazing." (Doc. 37 at 18.) While the Court agrees that
this is likely true, there is no indication that sheep grazing increases the threat
grizzly bears pose to human safety. Plaintiffs again rely on assumptions that the
2

Although the Court employs the higher "success on the merits" showing here, which is a result
of Plaintiffs' failure to show that irreparable harm is likely, it is worth noting that the Court also
does not find that Plaintiffs raised serious questions going to the merits. The Court did not
identify any close calls during summary judgment and Plaintiffs' recitation of those arguments
here is insufficient to raise serious questions regarding the merits of their claims.

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Court does not share--that the incidents described in their FOIA request
definitively involved grizzly bears and, further, indicate that grazing sheep
increases the risk that hikers on the Continental Divide Trail will be chased or
mauled by grizzly bears. As noted in the Biological Opinion, there had been no
"verified grizzly bear/sheep conflicts" within the ten years preceding the issuance
of the Biological Opinion and, further, no grizzly bears have attacked herders on
Sheep Station lands throughout its history. (Doc. 7-1 at 31, 36.) Based upon this
history, the Court does not find that the unverified accounts of grizzly bears
chasing sheep herders as emphasized by Plaintiffs establish that grazing sheep will
increase the threat grizzly bears pose to hikers on the Continental Divide Trail to
the extent that it can be said that the public interest tips sharply in support of
enjoining the grazing.
Plaintiffs also point to the purported opinions and efforts of various
governmental agencies and officers to establish that grazing sheep is unpopular and
insignificant. As noted by Defendants, these opinions and efforts could be driven
by a myriad of motivations, are "outmoded," and made by "third parties that lacked
all the facts." (Doc. 39 at 25-26.) The Court agrees. Plaintiffs' reliance on these
statements fails to provide the sharp tilt in favor of an injunction that they require.
Plaintiffs having failed to make the requisite showing on all four prongs of
the Winter test,

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IT IS ORDERED that Plaintiffs Motion for Injunction Pending Appeal
(Doc. 36) is DENIED.
DATED this :Zl~day of July, 2019.

1/Al.

l.

Dana L. Christensen, Chief Judge
United States District Court

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