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Concerned Friends of Winema v. McKay

United States District Court, D. Oregon, Medford Division

July 9, 2019

CONCERNED FRIENDS OF THE WINEMA; KLAMATH SISKIYOU WILDLANDS CENTER; WESTERN WATERSHEDS PROJECT; OREGON WILD; CENTRAL OREGON BITTERBRUSH BROADS OF THE GREAT OLD BROADS FOR WILDERNESS, Plaintiffs,
v.
DOUGLAS C. McKAY; BARRY L. IMLER; UNITED STATES FOREST SERVICE; LAURIE SADA UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.

          OPINION & ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion for Preliminary Injunction. ECF No. 9. Oral argument was held on June 21, 2019. ECF No. 29. As Plaintiffs have failed to show a likelihood of irreparable harm in the absence of injunctive relief, the motion is DENIED.

         LEGAL STANDARD

         A preliminary injunction is an “extraordinary relief that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the plaintiff's 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 did not, however, disturb the Ninth Circuit's alternative “serious questions” test. Alliance 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).

         Injunctive relief “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original, quotation marks and citation omitted). These standards are not relaxed for environmental plaintiffs, and no “thumb on the scale” works in an environmental plaintiff's favor. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010).

         BACKGROUND

         I. The Antelope Allotment

         The Antelope Allotment is a substantial parcel of land on the eastern slopes of the Cascade Mountains, within the Fremont-Winema National Forest in south-central Oregon. The local climate is characterized by warm, dry summers and wet, cool winters. The Antelope Allotment is home to a shallow aquifer created by pumice deposits left by an ancient volcanic eruption. Over the millennia, the aquifer has created a complex of groundwater-dependent ecosystems, such as wet meadows and fens.

         The Antelope Allotment covers nearly 170, 000 acres, but contains only one perennial stream, known as Jack Creek, which flows through two pastures on the western side of the Allotment: Chemult Pasture and North Sheep Pasture. As Jack Creek flows south through the Allotment it becomes intermittent during the dry summer and autumn months, disappearing underground and breaking up into pools in the downstream reaches.

         II. The Oregon Spotted Frog

         Jack Creek is home to a population of Oregon spotted frogs (“OSF”). The OSF are the most aquatic of the native Pacific Northwest frog species and require a consistent supply of water, both to live and to reproduce. The water needs of the OSF are such that the frogs are unable to travel far overland if conditions deteriorate in their current habitat. The wider OSF population has declined in recent years, leading the U.S. Fish and Wildlife Service (“FWS”) to list the species as “threatened” under the Endangered Species Act (“ESA”) in 2014.

         Most of the ESA-designated critical OSF habitat in the Forest is found on the Antelope Allotment. Since the discovery of the Jack Creek OSF population in 1996, the population has declined precipitously, with frog egg masses reaching one percent of historical numbers in 2011. The decline of the Jack Creek OSF has coincided with years of drought conditions, exacerbated by algal blooms, poor water quality, loss of protective habitat, and alteration of bank conditions. Although the Jack Creek OSF population has recovered somewhat from its nadir in 2011, it remains critically small and isolated from other OSF populations in the Klamath Basin.

         III. Fens

         As noted above, the Antelope Allotment is home to a unique hydrogeological ecosystem, including a 500-acre wetland complex comprised largely of fens. Fens are wetlands with groundwater tables near the surface, which slows the decomposition of plant materials and produces high peat levels. The concentration of fens on the Antelope Allotment is found nowhere else on Forest Service lands in the Pacific Northwest. Fens are susceptible to damage from drought and soil disturbance and can take a long time to recover from such damage, if they recover at all. Some of the fens on the Antelope Allotment provide habitat for sensitive plant and mollusk species.

         IV. Cattle Grazing

         The Forest Service has historically issued permits authorizing the cattle grazing on the Antelope Allotment during the summer months, including grazing in the Chemult Pasture. Grazing cattle have been observed to congregate in riparian areas as they search for water and forage. Grazing cattle can remove vegetation, compact soil, trample streambanks, and consume or foul the limited supply of surface water on the Allotment. This can result in the degradation or destruction ...


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