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Maughan v. Vilsack

United States District Court, Ninth Circuit

January 17, 2014

TOM VILSACK, U.S. Secretary of Agriculture; TOM TIDWELL, Chief U.S. Forest Service; NORA RASURE, Regional Forester of Region Four of the U.S. Forest Service, KEITH LANNOM, Payette National Forest Supervisor; and VIRGIL MOORE, Director, Idaho Department of Fish and Game, Defendant.


EDWARD J. LODGE, District Judge.

Pending before the Court in the above-entitled matter are Plaintiffs' Motions for Temporary Restraining Order (TRO) and Preliminary Injunction. (Dkt. 8, 12.)[1] The Defendants have filed responses and Plaintiffs have replied. (Dkt. 19, 24, 27, 36.) Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this Motion shall be decided on the record before this Court without oral argument. The Court has reviewed the record and related filings and finds as follows.


Plaintiffs are individuals and organizations interested in conservation and preservation of the wilderness character of the Frank Church-River of No Return Wilderness (Frank Church Wilderness) in Idaho.[2] Defendants are the relevant state and federal individuals and agencies responsible for managing the Frank Church Wilderness. The "Federal Defendants" named in this action are: Tom Vilsack, United States Secretary of Agriculture, Tom Tidwell, Chief of the United States Forest Service (USFS), Nora Rasure, Regional Forester of Region Four of the United States Forest Service, and Keith Lannom, United States Forest Service Supervisor for the Payette National Forest. (Dkt. 15.) The "State Defendant" is Virgil Moore, Director of the Idaho Department of Fish and Game (IDFG). (Dkt. 15.)

Plaintiffs have brought this action under the Administrative Procedure Act, 5 U.S.C. § 701 et al. (APA), against the Defendants alleging the IDFG's program for "wolf extermination" (the Program) is unlawful under the National Forest Management Act, 16 U.S.C. § 1604(i) (NFMA), the Wilderness Act, 16 U.S.C. § 1133(b), Special Use Permit Regulations, 36 C.F.R. Pt. 251, and the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (NEPA). (Dkt. 15.) The conduct challenged in this action is IDFG's hiring of a hunter-trapper in mid-December of 2013 to "completely eradicate two of the resident wolf packs" in the Frank Church Wilderness, the Golden Creek and Monumental Creek wolf packs, and the Federal Defendants' allowing/permitting of such activity. (Dkt. 15 at ¶ 45.) Plaintiffs challenge that the Defendants' did not undertake any environmental review, permitting review, or interagency consultation nor secure the requisite approval needed to undertake such a program in violation of the aforementioned statues and regulations. The Program, Plaintiffs allege, has resulted in seven grey wolves being killed since mid-December 2013. Plaintiffs have filed the instant Motions in order to halt further implementation of the Program until such time as the Court is able to rule upon the issues presented in this case.


Plaintiffs' Motions ask that the Court enjoin the IDFG's ongoing wolf trapping and hunting program in the Frank Church Wilderness in Idaho until the claims raised in this action are resolved. The Defendants oppose the Motions on several grounds. (Dkt. 19, 24, 27.)

Injunctions and restraining orders are governed by Federal Rule of Civil Procedure 65. Under Rule 65(a), a preliminary injunction can be issued only on notice to the adverse party. Fed.R.Civ.P. 65(a)(1). Issuance of a TRO, on the other hand, requires the moving party to show that "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party... can be heard in opposition...." Fed.R.Civ.P. 65(b). In this case, Plaintiffs have moved for both a preliminary injunction and a TRO and Defendants have been served and allowed time to respond to the Motions.

The analysis required for a TRO and a preliminary injunction are "substantially identical." Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). Plaintiffs seeking an injunction must show: 1) a likelihood of success on the merits; 2) a likelihood of irreparable harm to them in the absence of preliminary relief; 3) that the balance of equities tips in their favor; and 4) that an injunction is in the public interest. Winter v. Natural Res. Def Council, 555 U.S. 7, 20-23 (2008). Alternatively, if Plaintiffs cannot meet the Winter test, they may still obtain an injunction where they can show there are "serious questions going to the merits, " the balance of hardships tip sharply in their favor, there is a likelihood of irreparable injury, and the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). This "sliding scale approach" allows a plaintiff to make a lesser showing of likelihood of success provided he will suffer substantial harm in the absence of relief. Id. at 1133. Under this approach, however, "serious questions going to the merits" requires more than showing that "success is more likely than not; "it requires a plaintiff to demonstrate a "substantial case for relief on the merits." See Wildearth Guardians v. Mark, No. 4:13-cv-00533-CWD, 2013 WL 6842771, at *2 (D. Idaho 2013) (quoting Leiva-Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).

1. Likelihood of Success on the Merits

In this case, Plaintiffs challenge the Defendants' failure to conduct the requisite environmental review, permitting review, and/or interagency consultation nor secure the requisite approval needed to undertake the Program in violation of the aforementioned statues and regulations. Specifically, Plaintiffs challenge the USFS's decision allowing/approving the Program and IDFG's use the bunkhouse and airstrip to implement the Program without undertaking statutory review or requiring a special use permit.

A. Administrative Procedures Act

The claims are brought under the APA which provides for judicial review of an agency's action. 5 U.S.C. § 702. The law provides that when "agency action, findings, or conclusions" are found to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" or "(D) without observance of procedure required by law" the reviewing court shall hold unlawful and set aside those actions, findings, and conclusions. See Wildearth Guardians, 2013 WL 6842771, at *2 (citing 5 U.S.C. § 706(2)). A court may set aside an agency action only if the court determines that the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "[T]he [Forest] Service is entitled to substantial deference to its interpretation of its own regulations." Forest Guardians v. United States Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).

The Federal Defendants counter that there is no final agency action in this case that is subject to judicial review. (Dkt. 24 at 5-7.) Similarly, the State Defendant argues the Plaintiffs have not challenged any final agency action and have not shown any agency's failure to take a discrete action that it is required to take. (Dkt. 27 at 5-8.) "To maintain a cause of action under the APA, a plaintiff must challenge agency action' that is final.'" Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800 ...

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