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Western Watersheds Project v. Bernhardt

United States District Court, D. Oregon

June 5, 2019

DAVID BERNHARDT, Secretary of the Interior, JEFFREY ROSE, District Manager Burns District Bureau of Land Management, and BUREAU OF LAND MANAGEMENT, Defendants.

          David H. Becker, Law Office of David H. Becker, LLC, Talasi B. Brooks, Western Watersheds Project, Inc. Paul David Ruprecht, Of Attorneys for Plaintiffs.

          Billy J. Williams, and Stephen J. Odell, Of Attorneys for Defendants.



         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 Zinke[1] 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 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.

         Plaintiffs 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.


         A. Motions for Temporary Restraining Order

         In 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.[5] 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).

         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).

         In the 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).

         The 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 entered.

         Additionally, “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.

         B. National Environmental Policy Act

         NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a).[6] “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 1934[7] (“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).

         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 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. § 1752(c).

         BLM has issued regulations to implement the Taylor Grazing Act and the FLPMA. 43 C.F.R. §§ 4100-4190.1 (2005).[8] 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).

         FLPMA 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).

         The 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].”

         The 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.”

         D. Administrative Procedures Act

         Neither 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).

         Although 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).


         Based on the evidence presented by the parties, the Court finds the following facts are more likely true than not:

         Background of HRI's Permit

         1. HRI 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.

         2. HRI 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.

         3. On 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).

         4. BLM 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.

         5. 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.

         6. In 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.

         7. BLM 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 wildlife habitat.”

         8. BLM 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.

         9. BLM 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.”

         10. HRI 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.”

         11. HRI 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.

         12. On 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.

         13. On 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 ...

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