United States District Court, D. Oregon, Medford Division
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,
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
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.
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).
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).
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,
The Antelope Allotment
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.
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.
The Oregon Spotted Frog
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.
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.
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
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