W. Watersheds Project v. Bernhardt

392 F.Supp.3d 1225

WESTERN WATERSHEDS PROJECT, Center for Biological Diversity, and Wildearth Guardians, Plaintiffs,

v.David BERNHARDT, Secretary of the Interior, Jeffrey Rose, District Manager Burns District Bureau of Land Management, and Bureau of Land Management, Defendants.

Case No. 2:19-cv-0750-SI

United States District Court, D. Oregon.

Signed July 16, 2019

David H. Becker, Law Office of David H. Becker, LLC, 4110 SE Hawthorne Blvd. No. 168, Portland, OR 97214; Talasi B. Brooks, Western Watersheds Project, Inc., P.O. Box 2863, Boise, ID 83701; Paul David Ruprecht, Western Watersheds Project, Inc., PO Box 12356, Reno, NV 89510. Of Attorneys for Plaintiffs.

Billy J. Williams, United States Attorney, and Stephen J. Odell, Assistant United States Attorney, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiffs bring this action challenging Defendants' grant of a renewed Grazing Permit (the "Permit") to Hammond Ranches, Inc. ("HRI") on four allotments—Mud Creek, Hammond, Hammond FFR, and Hardie Summer. Plaintiffs argue that then-Secretary of the Interior Ryan Zinke¹ and Defendant Bureau of Land Management ("BLM") acted arbitrarily and capriciously in violation of the Administrative Procedures Act ("APA")² because they failed to follow the requirements of the National Environmental Policy Act of 1969 ("NEPA"),³ the Federal Land Policy and Management Act of 1976 ("FLPMA),⁴ and applicable BLM regulations. Plaintiffs allege that Defendants violated these statutes and regulations when Secretary Zinke ordered that HRI's previous grazing permit be renewed without conducting the analyses required by the FLPMA, BLM regulations, and NEPA, and under the 2015 Oregon Greater Sage-Grouse Approved RMP Amendment ("GSG-ARMPA"). Plaintiffs also allege that Defendants violated these statutes when BLM issued a categorical exclusion environmental review and approval ("CX") and the approved Permit without performing the required analyses.

Plaintiffs filed a motion for temporary restraining order ("TRO") and preliminary injunction to enjoin grazing on the four allotments. On June 4, 2019, the Court granted Plaintiffs' motion for a TRO and enjoined grazing on the Mud Creek and Hardie Summer allotments through July 2, 2019. The TRO was extended until July 17, 2019 at 5:00 p.m., by the stipulation of the parties. Before the Court is Plaintiffs' amended motion for preliminary injunction, requesting an order enjoining Defendants from allowing turnout and grazing of livestock on the Mud Creek and Hardie Summer allotments until the Court resolves the merits of this case. It is the parties' and the Court's intention to resolve the merits of the case before the 2020 grazing season begins.

HRI's cattle are currently on the Hammond and Hammond FFR allotments. The cattle have not yet entered the Mud Creek or Hardie Summer allotments. Thus, the requested injunction would not require any cattle be removed from either allotment.

Defendants respond to Plaintiffs' motion for a preliminary injunction primarily by arguing that Plaintiffs have not demonstrated that they will suffer irreparable harm on the Hardie Summer allotment⁵ in the absence of preliminary relief. Defendants also argue Plaintiffs fail to show that they are likely to succeed on the merits of their claims and that the balance of the equities and public interest considerations support issuing a preliminary injunction. On June 28 and July 2, 2019, the Court held an evidentiary hearing on Plaintiffs' motion.

At the beginning of the hearing on June 28th, Defendants proposed an alternative grazing plan for the Court's consideration. Under this proposed amended grazing plan, there would be no authorized grazing on the Mud Creek allotment except for when the cattle "quickly and methodically trail through" to get to the Hardie Summer allotment.⁶ On the Hardie Summer allotment, the pasture known as Fir Creek⁷ would be rested, and the remaining pastures would be grazed at a 30 percent utilization standard instead of the 50 percent utilization standard authorized in the Permit. For the reasons discussed below, the Court grants in part Plaintiffs' motion for a preliminary injunction. The Court enjoins any turnout and grazing beyond the amended grazing plan proposed by Defendants at the beginning of the June 28, 2019 hearing.

STANDARDS

A. Motion for a Preliminary Injunction

A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20, 129 S.Ct. 365 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

The Supreme Court's decision in Winter , however, did not disturb the Ninth Circuit's alternative "serious questions" test. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, " ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus , 697 F.3d 706, 725 (9th Cir. 2012).

B. National Environmental Policy Act

NEPA "is our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a).⁸ "NEPA requires that ‘to the fullest extent possible ... all agencies of the Federal Government shall’ complete an environmental impact statement (EIS) in connection with ‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.’ " San Luis & Delta-Mendota Water Auth. v. Jewell , 747 F.3d 581, 640-41 (9th Cir. 2014) (alteration in original) (quoting 42 U.S.C. § 4332(2)(C) ). "In addition to the proposed agency action, every EIS must ‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to that action. 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.’ " Ctr. for Biological Diversity v. U.S. Dep't of Interior , 623 F.3d 633, 642 (9th Cir. 2010) (second citation omitted). The purpose of NEPA is twofold: "(1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public." N. Plains Res. Council, Inc. v. Surface Transp. Bd. , 668 F.3d 1067, 1072 (9th Cir. 2011). "In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences." Lands Council v. Powell , 395 F.3d 1019, 1027 (9th Cir. 2005) (citation omitted).

C. Federal Land Policy and Management Act and BLM Regulations

Grazing on federal lands is governed by, among other statutes and regulations, the Taylor Grazing Act of 1934⁹ ("Taylor Grazing Act") and the FLPMA. The Taylor Grazing Act requires persons seeking to graze livestock on public lands to obtain a permit from the Department of the Interior. The Taylor Grazing Act provides for the "orderly use, improvement, and development of the range" on public lands. 43 U.S.C. § 315a. "The Taylor Grazing Act authorized the Secretary of the Interior ‘to issue or cause to be issued permits to graze livestock’ pursuant to ‘his rules and regulations.’ " United States v. Estate of Hage , 810 F.3d 712, 717 (9th Cir. 2016) (quoting 43 U.S.C. § 315b ). "[T]he implied license under which the United States has suffered its public domain to be used as a pasture for sheep and cattle ... was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contravention of the rules and regulations." United States v. Grimaud , 220 U.S. 506, 521, 31 S.Ct. 480, 55 L.Ed. 563 (1911) (citation omitted).

The goals of the Taylor Grazing Act "are to ‘stop injury’ to the lands from ‘overgrazing and soil deterioration,’ to "provide for their use, improvement and development," and ‘to stabilize the livestock industry dependent on the public range.’ " Pub. Lands Council v. Babbitt , 529 U.S. 728, 733, 120 S.Ct. 1815, 146 L.Ed.2d 753 (2000) (quoting 48 Stat. 1269). "As grazing allocations were determined, the Department would issue a permit measuring grazing privileges in terms of ‘animal unit months’ (AUMs), i.e. , the right to obtain the forage needed to sustain one cow (or five sheep) for one month." Id. at 735, 120 S.Ct. 1815 ; see also 43 C.F.R. § 4100.0-5 (defining AUM).

The FLPMA provides additional direction for the management of public lands. "In enacting FLPMA, ‘Congress declared that it is the policy of the United States to manage the public lands in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air, and atmospheric, water resource, and archeological values.’ " W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 498-99 (9th Cir. 2011) (quoting Ctr. for Biological Diversity v. U.S. Dep't of Interior , 581 F.3d 1063, 1075 (9th Cir. 2009) ). The FLPMA instructs that permits for grazing on public lands ordinarily shall be...