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Wildearth Guardians v. Mark

United States District Court, Ninth Circuit

December 27, 2013

CHARLES A. MARK, in official capacity as Forest Supervisor of the Salmon-Challis National Forest, NORA RASURE, in official capacity as Regional Forester for Region Four, THOMAS TIDWELL, in official capacity as Chief of the U.S. Forest Service, and U.S. FOREST SERVICE, a federal agency, Defendants.


CANDY W. DALE, District Judge.


Plaintiffs, who comprise several local and national environmental groups, filed a complaint and motion for temporary restraining order on December 23, 2013, against the United States Forest Service ("USFS") seeking an injunction to prevent a wolf and coyote derby advertised for Saturday, December 28-29, 2013, in Salmon, Idaho. The USFS filed a combined response and motion to dismiss the complaint. The Court conducted a hearing on an expedited basis[1] regarding the motion for temporary restraining order on Friday, December 27, 2013, at 9:30 a.m. After carefully considering the parties' briefs, arguments, and the relevant authorities, the Court will deny Plaintiffs' motion for temporary restraining order.[2]


On December 11, 2013, Plaintiffs learned of the December 28-29, 2013, "First Annual Coyote and Wolf Derby, " with rules to be picked up and prizes awarded in Salmon, Idaho, at two local sportsmen's stores. The event is sponsored by the Salmon Chapter for Idaho for Wildlife, a local sportsmen's group, and is a contest hunt specifically targeting wolves and coyotes. The advertisement explains that contestants may enter the event for a $20 entry fee and that "all Idaho fish and game rules apply. Public and private land hunting with permission. Hunting in Idaho only." Ex. 1 (Dkt. 4-2.)[3] Registration for the contest is scheduled for December 27, 2013, between 4-8 p.m., in Salmon, Idaho.

Coyotes can be hunted at any time in Idaho with a hunting license, and there is no limit to the amount of animals that may be harvested. Wolves in Idaho have been removed from protection under the Endangered Species Act since May 5, 2011, and can be hunted from August 31 to March 31 each year, or until harvest limits are reached. See Decl. of Keegan (Dkt. 20-1.)[4] Hunters are required by Idaho Department of Fish and Game regulations to report a wolf kill within 72 hours, and have it verified by state authorities within 10 days. Id. ¶ 12.

USFS regulations require a special use permit for certain activities that occur on USFS public lands. However, a special use authorization is not required for "noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding...." 36 C.F.R. § 251.50(c). In contrast, a commercial use or activity is "any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit." 36 C.F.R. § 251.51.

Plaintiffs alerted the USFS to the Salmon wolf and coyote derby, and inquired whether the USFS would require or had already issued a permit. The USFS determined that the contest, which takes place on private property in Salmon, Idaho, is not a "commercial event occurring on NFS land." Rather, hunters will follow all laws and regulations promulgated by Idaho Fish and Game, and will take their kills to Salmon to obtain the prizes advertised. In other words, the USFS's position is that the participants are not paying to enter a contest that actually takes place on or in the National Forest. Hunting will take place in the forest, which is lawful, and the contest occurs in Salmon, Idaho, on private property. The USFS position is that the hunters will be dispersed, hunting on public, private, or federal lands, such that there is no concentrated "gathering" or "group" on USFS land, and no permit required.

Plaintiffs generally aver that their members use and visit the Salmon-Challis National Forest, and will be injured because their use and enjoyment of the forest will be diminished during the two days of the derby hunt. Specifically, the individuals aver that they will be adversely affected because they will be unable to hike and enjoy the forest over the weekend due to the concentration of hunters, and may be subjected to the possibility of viewing coyotes and wolves being shot by derby participants, or seeing dead or wounded animals. Decl. of Wagenknecht ¶ 10 (Dkt. 4-6.) Plaintiffs allege also that they will be harmed because "many" animals will be killed thereby "permanently harming" their enjoyment of the forest lands, and their ability to observe the predators in the wild. Id. ¶11 (Dkt. 4-6.) See also Decl. of Stone ¶12 (Dkt. 4-7); Decl. of Fox ¶¶ 11, 12 (Dkt. 4-8); Decl. of Miller ¶¶ 5-6 (Dkt. 4-9).

Plaintiffs challenge the decision of the USFS determining that no special use authorization is required, and request that this Court grant the following relief:

A. An order temporarily restraining USFS from allowing the Contest to occur on the Salmon-Challis National Forest without a special use authorization and without complying with NEPA, pending expedited resolution of this matter by the Court, or pending resolution of preliminary injunction motion if such motion is necessary;

B. An order waiving the bond requirement of Federal Rule of Civil Procedure 65(c);

C. An order that USFS affirmatively inform the Killing Contest sponsors that hunting on the Salmon-Challis National Forest for purposes of competing in the Killing Contest is prohibited without a special use permit; and

D. An order that USFS law enforcement officers enforce the prohibition of Killing Contest related hunting on the Salmon-Challis ...

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