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Western Watersheds Project v. U.S. Forest Service

United States District Court, D. Idaho

November 20, 2017

WESTERN WATERSHEDS PROJECT and WILDEARTH GUARDIANS, Plaintiffs,
v.
U.S. FOREST SERVICE, Defendant.

          MEMORANDUM DECISION AND ORDER ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OR TRO (DKT 3)

          HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Pending before the Court is an emergency motion for a preliminary injunction or temporary restraining order filed by Plaintiffs Western Watersheds Project (“WWP”) and Wildearth Guardians (“Guardians”) against Defendant United States Forest Service (“Forest Service”). (Dkt. 3.) The Court is considering the motion as a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a). The parties had fair opportunity to provide full briefing supported by affidavits.[1] Moreover, the standard for issuing a preliminary injunction is virtually identical to the standard for issuing a temporary restraining order. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). The parties filed responsive briefing, and the Court conducted a hearing on November 15, 2017, at which the parties appeared and presented their arguments.[2] After carefully considering those arguments, the parties' written memoranda, exhibits, and relevant case law, for the reasons that follow, the Court will grant the motion.

         STANDARDS OF REVIEW

         A. Standard of Review for a Preliminary Injunction

         A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). It is not an adjudication on the merits, “but a device for preserving the status quo and preventing irreparable loss of rights before a judgment.” Idaho Rivers United v. Probert, No. 3:16-CV-00102-CWD, 2016 WL 2757690, at *6 (D. Idaho May 12, 2016). A plaintiff seeking preliminary injunctive relief must establish (1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary injunctive relief; (3) that the balance of equities is in plaintiff's favor; and (4) that the injunction is in the public interest. Winter at 7. The plaintiff must show suffering irreparable harm is likely, and not a just a possibility. Id. A court must consider each factor and balance the parties' competing claims of injury by considering the potential effects of the injunction on each party. In the United State Court of Appeals for the Ninth Circuit, issuance of a preliminary injunction is favored when the merits analysis and hardship balance both tip strongly toward the plaintiff, so long as the plaintiff shows also that there is “a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).

         B. Standard of Review of a Final Agency Action

         Courts review final agency actions under the Administrative Procedure Act (APA). According to the APA, courts must review such final agency actions under the “arbitrary and capricious” standard. Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000). A court must determine if the agency's action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (quoting Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (quoting the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)). The APA standard dictates that the reviewing court set aside the agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The party challenging an agency's action as arbitrary and capricious bears the burden of proof.” W. Watersheds Project v. Ashe, 948 F.Supp.2d 1166, 1174 (D. Idaho 2013) (citing WildEarth Guardians v. Salazar, 741 F.Supp.2d 89, 97 (D.D.C. 2010)).

         A court may reverse the agency's decision as arbitrary and capricious “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015). While the standard under the APA is narrow, the reviewing court must still conduct a “substantial inquiry” and “a thorough, probing, in-depth review, ” to determine whether “the agency present[ed] a rational connection between the facts found and the conclusions made.” Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 554 (9th Cir. 2009) (internal citations omitted). The Forest Service's action of issuing the 2017 AOIs authorizing domestic sheep grazing on the Snakey and Kelly Canyon allotments will be reviewed according to the APA standard for final agency actions for both the NEPA and the NFMA claims. The standards for each type of claim are set forth below.

         i. National Environmental Policy Act

         NEPA was designed to set forth a “national policy which will encourage productive and enjoyable harmony between man and his environment ... [and] promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” Metcalf v. Daley, 214 F.3d 1135, 1141-42 (9th Cir. 2000) (quoting 42 U.S.C.A. § 4321 (1994)). NEPA and its accompanying regulations require agencies to complete an Environmental Impact Statement (“EIS”) before making any irreversible or irretrievable commitment of resources. W. Watersheds Project v. Bureau of Land Mgmt., No. CIV. 09-0507-E-BLW, 2009 WL 3335365, at *6 (D. Idaho Oct. 14, 2009). This requirement is meant to prevent agencies from doing damage before considering the effects of their actions. Id.

         NEPA's requirements are not substantive. Instead, NEPA establishes “action-forcing” procedures requiring agencies to make a “hard look” at the environmental consequences of proposed actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). These “hard look” assessments need to be made “early enough” to practically serve as a meaningful contribution to the decision-making process. Id. at 718 (quoting 40 C.F.R. § 1502.5 (1987)). In other words, the agency must make a hard look assessment “at the earliest possible time to insure that planning and decisions reflect environmental values.” Andrus v. Sierra Club, 442 U.S. 347, 351, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979); see also 40 C.F.R. § 1501.2 (1999).

         The issuance of Annual Operating Instructions (AOIs) by the Forest Service to grazing permit holders is a final agency action. Oregon Nat. Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006). Thus, the Forest Service was required to complete an EIS prior to issuing the 2017 AOIs for the Snakey and Kelly Canyon allotments. However, in 1995 and in legislation thereafter, Congress enacted a series of riders allowing, in some instances, for the NEPA process to be completed after the re-issuance of expired or expiring grazing permits. The riders are now codifed within the Federal Land Policy and Management Act (“FLPMA”). These riders may affect the viability of the Plaintiffs' NEPA claims in this matter.

         ii. National Forest Management Act

         The National Forest Management Act (“NFMA”) creates a management framework for national forests. The framework is divided into a two-step process. First, the Forest Service must develop a Land Resource Management Plan and an EIS for the entire forest. 36 C.F.R. § 219.10(a), (b); Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998). Second, once a forest plan is created, site- specific projects require assessment by the Forest Service. Any action taken by the Forest Service must be consistent with the applicable forest plan. NEPA overlays the NFMA requirements. For example, whether an EIS needs to be prepared, and the process by which an EIS is prepared, i.e. the “hard look” requirement, is dictated by NEPA. See 40 C.F.R. Part 1501 et seq; Cuddy at 1376. However, unlike NEPA, NFMA imposes substantive requirements at each step. These include requirements insuring biological diversity of plants and animals and managing for the viability of sensitive species within the forest.

         PROCEDURAL BACKGROUND

         WWP and Guardians seek to have the Court enjoin grazing of domestic sheep on the Snakey and Kelly Canyon allotments (the “allotments”) in the Caribou-Targhee National Forest (the “Forest”). The Forest Service authorized the grazing through issuance of an annual temporary grazing permit in June of 2017 and corresponding Authorized Operating Instructions (“AOIs”). The documents were issued to the United States Department of Agriculture (“USDA”), Agricultural Research Service (“ARS”), for the benefit of the United States Sheep Experiment Station (“Sheep Station”) in Dubois, Idaho. ARS is the USDA's chief scientific in-house research agency.[3] The fall grazing season was set to begin on November 6, 2017. However, in light of Plaintiffs' motion, the Forest Service agreed to delay turnout of the sheep on both allotments until November 21, 2017.

         Plaintiffs argue that grazing domestic sheep on the allotments poses a grave risk to the nearby South Beaverhead bighorn sheep population. The risk to bighorns arises from the potential for the transmission of pneumonia pathogens from domestic sheep to bighorn sheep when the two species are in close proximity.

         Plaintiffs bring two claims for relief in their Complaint. (Dkt. 1.) First, they claim the Forest Service violated NEPA by issuing the September 2017 AOIs prior to completing and publishing its EIS on the impacts of domestic sheep grazing on the bighorn sheep. Second, Plaintiffs allege that authorizing the grazing is inconsistent with the direction set forth in the 1997 Revised Forest Plan for the Targhee National Forest (“Forest Plan”), and thus is also a violation of NFMA.

         Plaintiffs claim the Forest Service failed to close the two allotments as required by the Forest Plan. They allege the Forest Plan requires closure when an opportunity arises-opportunity is defined as “a suitable or favorable time.” The most recent interagency agreement between the Forest Service and ARS for the Sheep Station expired at the close of 2016. Plaintiffs claim the expiration of that agreement was “an opportunity” under the Forest Plan for the Forest Service to close the allotments. Instead, in early February of 2017, the parties renewed the agreement for five additional years. (2017 Interagency Agreement, Dkt. 19-3.) The February 2017 agreement specifically provides, in Section III(c), that the Forest Service shall “[i]ssue an annual Livestock Grazing Permit to ARS to authorize sheep grazing on NFS lands each season.” (Dkt. 19-3 at 3.)

         In their Complaint, Plaintiffs further allege the Forest Service's decision to issue the grazing permit and corresponding AOIs is not supported by this Court's precedent. (Dkt. 1.) They cite numerous decisions where this Court either approved of a closure or ordered closure of Forest Service or BLM managed allotments due to the same risk of disease transmission.[4]

         Finally, Plaintiffs argue the public has a “great interest in preserving [this] iconic western species that so many people value, including hunters, recreationalists, and wildlife enthusiasts.” (Dkt. 3-1 at 21.) And, that closing the allotments will cause “very little hardship to the Forest Service or the Sheep Station.” Id. Plaintiffs claim the Forest Service will actually benefit, due to cost savings (the Sheep Station pays no fee for the grazing rights). As to the Sheep Station, the Plaintiffs argue that, because the Sheep Station does not use the allotments specifically for research (but to support research it does on other lands), and because it cannot graze the allotments in high snow years, the use is not critical. Plaintiffs further allege the Sheep Station has been on the government's chopping block for years because it fails to provide a significant return of value in relation to the cost of running it each year.

         In response, the Forest Service argues the issuance of the grazing permit prior to completion of the EIS is not unlawful, and was approved by Plaintiff WWP as a party to a 2013 settlement agreement regarding grazing domestic sheep in the area that includes these two allotments, among others. The Forest Service alleges the settlement agreement expressly provides that grazing may continue on the Snakey and Kelly Canyon allotments until the EIS is complete.

         The Forest Service further argues that the issuance of the permits is actually required by law-claiming the Federal Land Policy and Management Act (FLPMA) requires the reissuance of permits until the necessary environmental analysis is complete.[5] In 1995, Congress enacted riders to an appropriations bill that were eventually recodified within FLPMA. The provisions were created because so many grazing allotments were coming up for renewal and required NEPA analysis. Congress enacted the laws to ease the administrative burden on the Forest Service and BLM, and to prevent unfairness to permit holders who otherwise would have to wait for review to continue grazing. The statute allows for continuation of expired or terminated permits under new permits with the same terms and conditions of the last permit pending required environmental analyses. 43 U.S.C. § 1752 (c)(2). However, the application of this provision is subject to dispute in case law.[6] The Forest Service alleges the provision applies not only to NEPA, but to “all other applicable” laws requiring up-front environmental analysis-such as NFMA.

         Finally, the Forest Service alleges it is in compliance with the Forest Plan because it has acted to limit domestic sheep grazing within the Forest and within the allotments at issue. The Forest Service argues it is acting consistently with the Forest Plan by maintaining the viability of the bighorn populations Forest-wide. It asserts that, even if the domestic sheep grazing does result in the South Beaverhead population dying-off due to pneumonia outbreak, it nevertheless is and will maintain compliance due to the health of the bighorn populations Forest-wide.

         Likewise, the Forest Service acknowledges it is possible that the South Beaverhead bighorn population could be exposed to the pneumonia pathogen from the grazing domestic sheep. However, it argues that a possibility does not warrant an injunction-and that Plaintiffs instead must show the result is likely to occur. The Sheep Station has been grazing the allotments for decades.[7] The Forest Service points out that, in all that time, the small population of bighorns has not been extirpated. And, as mentioned above, the Forest Service argues also that extirpation of the small herd would not jeopardize the viability of the bighorn population Forest-wide. See W. Watersheds Project v. BLM, No. 4:07-cv-151-BLW, ECF #166 at 15-18 (D. Idaho, Oct. 2, 2009) (where a threat to one bighorn population was a threat to all populations in the forest). In contrast, the Forest Service alleges the Sheep Station stands to lose years of valuable research and associated resources should the Court enjoin grazing during the 2017-2018 fall and winter season, which lasts for six weeks beginning on November 21, 2017.[8]

         FACTUAL BACKGROUND

         The U.S. Sheep Experiment Station

         The Sheep Station has been using the Snakey and Kelly Canyon allotments in the Caribou-Targhee National Forest to graze domestic sheep since approximately 1924. (Dkt. 19-1 at 4.) The allotments “provide a winter rangeland habitat that is representative of rangelands” used by a large section of the U.S. sheep industry. (Dkt. 19-1.) As such, according to the Sheep Station, the allotments offer the necessary environmental variables to successfully conduct various research projects related to studying the ecology of respiratory disease caused by the presence of the respiratory microbial floral called “Mycoplasma ovipneumoniae” in domestic sheep under rangeland conditions. The Sheep Station's current research is also aimed at increasing meat and wool quality in domestic sheep.

         The Forest Service asserts that the success of the Sheep Station's research requires an “annually-repeated grazing strategy, where the sheep graze the same properties each season within each year, ” and management of sheep in “an extensive rangeland-type system” is essential to success of this current research. (Taylor Dec., Dkt. 19-1 at 5.) According to the Sheep Station, the goal of the research involving domestic sheep grazed on the allotments “is to develop and release genetic lines of sheep that produce safe and premium products for the consumer, while minimizing the use of natural resources and eliminating negative impacts to the landscape or wildlife.” Id.

         Although the Sheep Station maintains management ownership of the genetics of the sheep it has developed through its research, the University of Idaho owns the animals. The University of Idaho also employs the sheep herders who watch and care for the grazing sheep.

         The number of domestic sheep grazed on the allotments has varied over the years.[9]For the 2017 fall and 2018 winter grazing season, the Sheep Station plans on turning out a herd of 720 domestic sheep on the Snakey Canyon allotment. This herd will be monitored by one sheep herder. The Sheep Station plans on turning out a herd of 450 sheep on the Kelly Canyon allotment. This herd will be monitored also by one herder. Each herd will graze from November 21, 2017, through the first few days of January of 2018 (see supra note 9). The total number proposed to be grazed on the allotments this season is 1, 170. Notably, according to the Sheep Station, all of the sheep except 315 are sheep that are in their final year of five-year research studies. The Sheep Station claims the efficacy of these five-year studies is dependent on those 855 sheep in the last study year being grazed on the allotments this season and that the “final year is critical for maintaining a statistically valid replication across years.” (Taylor Dec., Dkt. 19-1 at 7.)

         Rocky Mountain bighorn sheep also have a storied history in the area. Bighorn sheep are a native species of the Intermountain West. The former range of the type of bighorn sheep found in Idaho, Ovis Canadensis, extended from the Northern Rocky Mountains in Canada to Mexico and Baja, California.[10] However, many of the herds were extirpated by the early 1900s as a result of indiscriminate hunting, disease, and loss of habitat. (Idaho Department of Fish and Game, FY2015/FY2016 Statewide Report, Bighorn Sheep, Dkt. 19-6 at 72.)

         The bighorn populations that exist in Idaho today are by and large the result of reintroduction (translocation) efforts throughout the 1970s and 1980s. The South Beaverhead herd is the result of reintroduction efforts in 1976 and 1985, which placed a total of 41 bighorns in the area. The herds' size has varied throughout the years, but has remained low in number.[11] At last count, in 2016, the herd consisted of 36 bighorn sheep.

         According to bighorn experts, the definition of a “viable” bighorn population is a herd of 100 or more animals. The Idaho Department of Fish and Game (“IDFG”) estimates that the area where the South Beaverhead herd is located is habitat suited to support a bighorn population of 261 animals. (Dkt. 19-6 at 14.) It has been suggested that populations below 30 bighorns have a high-likelihood of extirpation, “and the recovery of populations at or below this number is unlikely without management intervention.” (Bighorn Sheep Risk Assessment for Region 4 National Forests, Dkt. 9-15 at 4.)

         The small herd size makes the South Beaverhead population especially vulnerable to die-offs caused by disease. Bighorn sheep are particularly susceptible to transmission of pneumonia pathogens commonly carried by domestic sheep asymptomatically. Transmission occurs through direct contact and aerosolization (dispersal through air). Researchers have identified the Mycoplasma ovipneumoniae bacteria as the pathogen “most strongly supported as a primary causal agent of pneumonia in bighorn sheep.” (Dkt. 4-3 at 3.) This is the exact bacteria strain being studied in some of the sheep grazed on the allotments.

         When domestic sheep introduce the pathogen to bighorn sheep populations, outbreaks of pneumonia may occur, which can result in high mortality rates in the infected herd. Bighorns that survive an outbreak are resistant to the disease. However, the resistance does not pass to offspring, resulting in pneumonia-induced mortality in the survivors' lambs. Additionally, “[t]here is a legitimate concern over the ability of small populations [of bighorns] to sustain disease events, particularly when domestic sheep are in close proximity to [bighorn sheep] populations.” (Dkt. 9-15 at 4.) According to the 2015 Bighorn Risk Assessment for Region 4 National Forests, analyses show that the distance between a bighorn herd and the nearest domestic sheep “is a significant predictor of pneumonia-induced die-off and translocation success.” (Dkt. 9-15 at 5 (internal citations omitted)).

         In 2010, the Forest Service published its final EIS for the Boise, Payette and Sawtooth National Forests. (Dkt. 9-1.) Within the EIS, the Forest Service explained the relationship between the ...


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