United States District Court, D. Oregon
WESTERN WATERSHEDS PROJECT, CENTER FOR BIOLOGICAL DIVERSITY, and WILDEARTH GUARDIANS, Plaintiffs,
DAVID BERNHARDT, Secretary of the Interior, JEFFREY ROSE, District Manager Burns District Bureau of Land Management, and BUREAU OF LAND MANAGEMENT, Defendants.
H. Becker, Law Office of David H. Becker, LLC, Talasi B.
Brooks, Western Watersheds Project, Inc. Paul David Ruprecht,
Of Attorneys for Plaintiffs.
J. Williams, and Stephen J. Odell, Of Attorneys for
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
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
Zinke and Defendant Bureau of Land Management
(“BLM”) acted arbitrarily and capriciously in
violation of the Administrative Procedures Act
(“APA”) because they failed to follow the
requirements of the National Environmental Policy Act of 1969
(“NEPA”),  the Federal Land Policy and Management Act
of 1976 (“FLPMA),  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 further allege that they
were not provided copies of the Permit and CX until April
2019, after the first wave of grazing had already begun.
filed a motion for temporary restraining order
(“TRO”) and preliminary injunction to enjoin
grazing on the four allotments. Before the Court is
Plaintiffs' TRO motion. Plaintiffs request an order
temporarily enjoining Defendants from allowing turnout and
grazing of livestock on the Mud Creek and Hardie Summer
allotments, until the Court can adjudicate Plaintiffs'
motion for preliminary injunction. Defendants respond to
Plaintiffs' motion for a TRO by arguing that Plaintiffs
have not demonstrated that they will suffer irreparable harm
in the absence of immediate temporary relief, and that the
balance of the equities and public interest considerations do
not support issuing a temporary restraining order. Defendants
do not argue that Plaintiffs have failed to show a likelihood
of success on the merits. Defendants also did not dispute
most of the facts presented by Plaintiffs. On June 3, 2019,
the Court held a hearing on Plaintiffs' motion. For the
reasons discussed below, the Court grants Plaintiffs'
motion for a temporary restraining order.
Motions for Temporary Restraining Order
deciding whether to grant a motion for TRO, courts look to
substantially the same factors that apply to a court's
decision on whether to issue a preliminary
injunction. See Stuhlbarg Int'l Sales Co. v.
John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.
2001). 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 (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 (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).
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).
context of a contested (i.e., not ex parte)
TRO, some district courts have explained that the requirement
of a likelihood of irreparable harm should be evaluated only
in the intervening period between when the TRO motion is
heard and when a motion for preliminary injunction can be
decided. See, e.g., Shelley v. Am. Postal
Workers Union, 775 F.Supp.2d 197, 202 (D.D.C. 2011);
Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581,
588-89 (W.D. Pa. 2009). These cases generally cite to Rule
65(b) of the Federal Rules of Civil Procedure, which relates
to ex parte TROs, or to Supreme Court or circuit
court case law involving ex parte TROs, without
explanation for why those authorities should apply to a
contested TRO. The Court could not find, and Defendants did
not cite, any appellate decision applying this standard to a
contested TRO. Most cases, however, when considering
irreparable harm in the context of a contested TRO, cite the
standard of irreparable harm applicable to a motion for
preliminary injunction and do not limit consideration of the
plaintiff's claimed irreparable harm only to the time
period before a preliminary injunction motion can be heard.
See, e.g., Marin All. for Med. Marijuana v.
Holder, 866 F.Supp.2d 1142, 1159 (N.D. Cal. 2011);
Zango, Inc. v. PC Tools Pty Ltd., 494 F.Supp.2d
1189, 1194 (W.D. Wash. 2007).
Court concludes that in considering irreparable harm for a
contested TRO, the Court is not limited only to harm that may
occur before a preliminary injunction motion can be heard.
Instead, when a plaintiff seeks preliminary injunctive
relief, the Court may look to whether the plaintiff has shown
a likelihood of irreparable harm occurring between the time
of the motion and when a final decision on the merits can be
“a temporary restraining order serves a purpose
different from that of a preliminary injunction. ‘The
purpose of a temporary restraining order is to preserve an
existing situation in statu quo until the court has
an opportunity to pass upon the merits of the demand for a
preliminary injunction.'” Garcia v. Yonkers
Sch. Dist., 561 F.3d 97, 107 (2d Cir. 2009) (quoting
Pan Am. World Airways, Inc. v. Flight Eng'rs'
Int'l Ass'n, PAA Chapter, 306 F.2d 840, 842-43
(2d Cir. 1962)); see also Procter & Gamble Co. v.
Bankers Tr. Co., 78 F.3d 219, 226 (6th Cir. 1996)
(“[T]he purpose of a TRO under Rule 65 is to preserve
the status quo so that a reasoned resolution of a
dispute may be had.”); Bronco Wine Co. v. U.S.
Dep't of Treasury, 997 F.Supp. 1309, 1313 (E.D. Cal.
1996) (“The purpose of a TRO is to preserve the
status quo pending a full hearing on a preliminary
injunction.”). The Court therefore considers whether
the status quo would materially change before a
preliminary injunction could be heard.
National Environmental Policy Act
“is our basic national charter for protection of the
environment.” 40 C.F.R. § 1500.1(a). “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)
Federal Land Policy and Management Act and BLM
on federal lands is governed by, among other statutes and
regulations, the Taylor Grazing Act of 1934 (“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, and conditions renewal of a
grazing permit on compliance with rules and regulations. 43
U.S.C. § 315b. 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 (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; see also 43 C.F.R. §
4100.0-5 (defining AUM).
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 issued for a 10-year term, subject to
such terms and conditions as BLM deems appropriate and
consistent with governing law. 43 U.S.C. § 1752(a). The
FLPMA also establishes that, for a permittee holding an
expiring grazing permit to be given first priority for
renewal, the permittee must be “in compliance with the
rules and regulations issued [by the Secretary] and the terms
and conditions of the permit.” 43 U.S.C. §
issued regulations to implement the Taylor Grazing Act and
the FLPMA. 43 C.F.R. §§ 4100-4190.1
(2005). BLM's regulations specify
“mandatory qualifications” for an applicant for a
permit for grazing on public lands. 43 C.F.R. § 4110.1.
These include that any applicant for renewal of a grazing
permit “must be determined by the authorized
officer to have a satisfactory record of performance.”
Id. § 4110.1(b) (emphasis added). The
regulations further provide that the authorized officer
“will determine whether applicants for the
renewal of permits . . . and any affiliates, have a
satisfactory record of performance, ” and that
“[t]he authorized officer will not renew . . .
a permit . . . unless the applicant and all affiliates have a
satisfactory record of performance.” Id.
§ 4130.1-1(b) (emphasis added). A satisfactory record
means that the applicant is in “substantial compliance
with” regulations applicable to the permit.
Id. § 4110.l(b)(1). BLM regulations applicable
to a grazing permit prohibit: “(3) Cutting, burning,
spraying, destroying, or removing vegetation without
authorization”; and “(4) Damaging or removing
U.S. property without authorization.” Id.
§ 4140.l(b). BLM also has regulations applicable to
preventing wildfires, which apply to users of public lands,
including grazing permit holders. These regulations prohibit,
without authorization, a user to: “[c]ause a fire,
other than a campfire, or the industrial flaring of gas, to
be ignited by any source; [b]urn, timber, trees, slash,
brush, tundra or grass except as used in campfires; [l]eave a
fire without extinguishing it; [or] [r]esist or interfere
with the efforts of firefighter(s) to extinguish a
fire.” Id. § 9212.1(a), (c), (d), (f).
also directs the BLM to develop and maintain comprehensive
Resource Management Plans (“RMPs”) that govern
all aspects of public land management, including grazing
administration. 43 U.S.C. § 1712. Grazing permits must
be consistent with RMPs. 43 U.S.C. § 1732(a); 43 C.F.R.
§ 4100.0-8. RMPs constrain grazing permits by
determining where grazing will or will not be allowed and by
setting environmental standards that grazing permits must
meet. See 43 U.S.C. § 1732(a) (requiring
management “in accordance with the [RMPs]”);
id. § 1752(c)(1) (conditioning renewal of
grazing permits on lands remaining available for grazing in
accordance with RMPs).
land use plans covering the four allotments at issue in this
case are the Steens Mountain Cooperative Management and
Protection Area (“CMPA”) Resource RMP and the
Andrews Management Unit RMP, both approved in July 2005. In
2015 both of these RMPs were amended by the Oregon GSG-ARMPA.
The GSG-ARMPA defines various categories of important
sage-grouse habitat requiring special protection and
consideration, including Priority Habitat Management Areas
(“PHMAs”), General Habitat Management Areas
(“GHMAs”), and Sagebrush Focal Areas
(“SFAs”), which are a subset of PHMAs. PHMAs are
“BLM-administered lands identified as having the
highest value to maintaining sustainable [greater
sage-grouse] populations.” GHMAs are
“BLM-administered lands where some special management
will apply to sustain [greater sage-grouse populations; areas
of occupied seasonal or year-round habitat outside of
PHMA[s].” SFAs are areas that “represent
recognized strongholds for [greater sage-grouse].”
2015 GSG-ARMPA also specifies certain “Management
Decisions.” One of these requires that any “NEPA
analysis for renewals . . . of livestock grazing
permits/leases that include lands within SFA and PHMA will
include specific management thresholds based on [greater
sage-grouse] Habitat Objectives . . . Land Health Standards .
. . and ecological site potential, and one or more defined
responses that will allow the authorizing officer to make
adjustments to livestock grazing that have already been
subjected to NEPA analysis.”
Administrative Procedures Act
NEPA nor the FLPMA provide a separate standard of review.
Thus, claims under these Acts are reviewed under the
standards of the APA. See Jewell, 747 F.3d at 601
(NEPA); Mont. Wilderness Ass'n v. Connell, 725
F.3d 988, 994 (9th Cir. 2013) (FLPMA). Under the APA,
“an agency action must be upheld on review unless it is
‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'”
Jewell, 747 F.3d at 601 (quoting 5 U.S.C. §
706(2)(A)). A reviewing court “must consider whether
the decision was based on a consideration of the relevant
factors and whether there has been a clear error of
judgment.” Id. (quotation marks and citation
omitted). The reviewing court's inquiry must be
“thorough, ” but “the standard of review is
highly deferential; the agency's decision is entitled to
a presumption of regularity, and [the court] may not
substitute [its] judgment for that of the agency.”
Id. (quotation marks and citation omitted).
a court's review is deferential, the court “must
engage in a careful, searching review to ensure that the
agency has made a rational analysis and decision on the
record before it.” Nat'l Wildlife Fed. v.
Nat'l Marine Fisheries Serv., 524 F.3d 917, 927 (9th
Cir. 2007). “[T]he agency must examine the relevant
data and articulate a satisfactory explanation for its action
including a ‘rational connection between the facts
found and the choice made.'” Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962));
see also Brower v. Evans, 257 F.3d 1058, 1067 (9th
Cir. 2001) (“The presumption of agency expertise can be
rebutted when its decisions, while relying on scientific
expertise, are not reasoned.”). The
reasoned-decisionmaking requirement, the Supreme Court has
often observed, includes a duty to explain any
“departure from prior norms.” Atchison,
Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade,
412 U.S. 800, 808 (1973); see also Int'l Union, UAW
v. NLRB, 802 F.2d 969, 973-74 (7th Cir. 1986)
(“[A]n administrative agency is not allowed to change
direction without some explanation of what it is doing and
why.”). A court also “must not
‘rubber-stamp' . . . administrative decisions that
[it] deem[s] inconsistent with a statutory mandate or that
frustrate the congressional policy underlying a
statute.” Ocean Advocates v. U.S. Army Corps of
Engineers, 402 F.3d 846, 858 (9th Cir. 2005) (first
alteration in original, remaining alterations added).
on the evidence presented by the parties, the Court finds the
following facts are more likely true than not:
of HRI's Permit
is a family-owned Oregon ranching corporation. Its
shareholders are Steven Dwight Hammond, his wife Earlyna
Hammond, and his parents Dwight Lincoln Hammond and Susan
Hammond, through their Trust. Steven Hammond is the President
of HRI, Dwight Hammond is the Vice President, and Earlyna
Hammond is the Secretary.
began grazing on public BLM lands in 1964. Before the Permit
at issue in this case, the most recent permit granted to HRI
was Permit No. 3602564, which had a term from March 1, 2004
to February 28, 2014. This permit authorized, for each year,
390 cattle and 590 AUMs on Mud Creek, from May 16 to June 30;
68 cattle and 471 AUMs on Hammond, from April 1 to October
30; 408 cattle and 407 AUMs on Hardie Summer, from July 1 to
September 30; and 32 cattle and 32 AUMs on Hammond FFR, from
April 1 to April 30.
February 14, 2014, BLM denied HRI's Application for
Permit Renewal. BLM explained that under its regulations
permit holders and their “affiliates” must be in
compliance with the rules and regulations issued by the
Secretary of the Department of the Interior and the terms and
conditions in the permit. BLM found that Steven Hammond and
Dwight Hammond were affiliates of HRI. BLM also found that
their criminal convictions for intentionally setting fires on
public lands violated the regulations prohibiting cutting,
burning spraying, destroying, or removing vegetation without
authorization and damaging or removing U.S. property without
authorization. 43 C.F.R. § 4140.1. BLM further concluded
that the Hammonds' conduct violated 43 C.F.R. §
9212.1(a), (c), (d), and (f).
summarized in detail the witness testimony at the criminal
trial, and characterized this testimony as demonstrating
“how the Hammonds violated BLM grazing regulations and
the terms of [HRI's] grazing permit, endangered the lives
of numerous individuals, including firefighters, and altered
ecological conditions on public lands.” BLM described
testimony of the Hammonds lighting multiple fires.
Steven Hammond was convicted of two counts, one relating to a
2001 fire and one relating to a 2006 fire. Dwight Hammond was
convicted of one count, relating to a 2006 fire. The jury
acquitted the Hammonds of several charges. The jury could not
reach a verdict on several charges and the judge had the jury
continue deliberations on those charges. While the jury was
deliberating, the prosecution and defense reached an
agreement and the trial ended.
reaching its Final Decision, BLM accepted the sworn testimony
at trial and, after a “thorough review, ”
rejected the protest filed by HRI that the sworn testimony
was inaccurate or incomplete.
concluded that HRI and its affiliates had an unsatisfactory
record of performance. BLM stated: “The Hammond
fire-setting maliciously and knowingly placed public
recreationists, firefighters, and BLM range staff at high
risk just to further [HRI's] grazing interests.”
BLM also noted that the “Hammonds set the fires because
they disagreed with how BLM managed the land. The Hammonds
acted in the interest of improving the rangeland forage for
their cattle, but not necessarily for other resources like
concluded that each criminal conviction, standing alone or in
combination, constitutes an unsatisfactory record of
performance. BLM explained:
The Hammonds' malicious disregard for human life and
public property shows contempt for BLM regulation of public
land. The Hammonds' interference with firefighting
efforts is antithetical to orderly use of resources. The
Hammonds' disregard for orderly and planned prescribed
burning that accounts for ecological objectives and human
safety is incompatible with the orderly use and improvement
of resources. The BLM carefully plans and conducts prescribed
burns to meet ecological objectives, such as retaining
sagebrush and bitterbrush habitat. By taking matters into
their own hands and burning public lands outside of the
official BLM process, the Hammonds altered the Burns
District's prescribed fire management strategy for years
to come. Good stewardship is more than just producing grass
for livestock-it requires orderly conduct that protects the
multiple objectives of public lands and the lives of those
who work and recreate on public lands.
also concluded that the Hammonds' “additional
fire-setting described in the criminal trial, ” outside
of their criminal convictions, constituted an unsatisfactory
record of performance. BLM found that “the testimony
shows a pattern of intentional fire-setting by Dwight and
Steven Hammond-beyond the fires for which they were
convicted-demonstrating their callous disregard for human
life and BLM multiple use objectives for the land.”
appealed BLM's decision and sought a stay of the
decision. On April 28, 2014, the Office of Hearings and
Appeals (“OHA”) denied the Hammonds' motion
for a stay and BLM's decision went into effect. OHA found
that the criminal convictions were sufficient to establish
violations of governing regulations. OHA also found that BLM
correctly relied on other evidence of “multiple
instances of the Hammonds setting fires to eliminate juniper
for the purpose of increasing forage for their cattle”
and held that their “pattern of starting fires that
damage vegetation on public lands and endangers lives is
sufficiently serious to warrant permit non-renewal.”
appealed the stay denial to the Interior Board of Land
Appeals, and it affirmed. Meanwhile, in the appeal the OHA
was considering, the assigned judge was evaluating whether to
have the case proceed to summary judgment or directly to a
hearing. Industry trade organizations began lobbying
then-Secretary of the Interior Zinke and President Donald J.
Trump. Between May and November 2018, briefs were filed
before the assigned OHA judge.
July 10, 2018, President Trump issued Executive Grants of
Clemency, pardoning Steve and Dwight Hammond for their crimes
and commuting their sentences. Steve Hammond had served three
years of his five-year sentence and Dwight Hammond had served
four years of his five-year sentence.
December 28, 2018, Secretary Zinke exercised his authority to
assume jurisdiction over the appeal. On January 2, 2019, his
last day in office, Secretary Zinke issued his decision. He
set out the factual and procedural history of the case in
slightly more than one page, the applicable law in slightly
more than one page, and his analysis in one paragraph.
Secretary Zinke's analysis, in its entirety, states:
I find that the pardons constitute unique and important
changed circumstances since the BLM made its decision. In
light of the Grants of Executive Clemency, the years of
imprisonment, and civil damages paid by the Hammonds, I find
that it is consistent with the intent of the pardons-and in
particular their reflection of the President's judgment
as to the seriousness of the Hammonds' offenses-to renew
the Hammonds' permit for the duration of the term that
would have commenced in 2014. The Hammonds' continuance
of grazing will depend on compliance with BLM's grazing
regulations. I do not find fault with BLM's assessment of
the law and facts in its 2014 Decision and I reiterate
BLM's concern for human safety on public lands. The
safety of our ...