Freudenthal denies Green Mountain preliminary injunction

Laramie – On April 12 in Laramie Wyoming Federal District Judge Nancy Freudenthal entertained arguments relevant to a preliminary injunction filed by Western Watershed Projects (WWP) against the Wyoming BLM Lander Field Office in a case surrounding the Green Mountain Common Grazing Allotment.
WWP filed the preliminary injunction in an effort to prevent grazing on the over 500,000-acre allotment in the 2011 season, listing ongoing degradation of the land and a lack of appropriate action by the BLM as the primary reasons for filing.
“We are asking the court for extraordinary relief in what is admittedly a somewhat unusual procedural context in order to halt the ongoing degradation that has been occurring on the Green Mountain Common Allotment for quite some time,” stated Natalie Havlina of Advocates of the West, who spoke on behalf of the petitioners.
“Eight years ago the BLM found that degradation was occurring on this large and very unique allotment. They did not take any appropriate action at that time, as required by the Fundamentals of Rangeland Health. In 2005, following an administrative appeal by several groups, they promised they would take that appropriate action by the end of 2007. The petitioners waited patiently through delays in issuing that decision, then challenged the new decision that was released in 2010, partially on the grounds that it still did not constitute appropriate action, because it would not ensure that the allotment makes progress toward rangeland health compliance,” continued Havlina.
Of the merits of filing for a preliminary injunction, Havlina commented on the disagreement between WWP and the BLM as to what constitutes, “appropriate action.” She utilized a number of BLM documents, primarily from the years of 1999, 2002, 2005 and 2008, in addition citing BLM Environmental Assessments for the allotment, quoting experts associated with WWP and drawing comparisons to additional court cases, primarily filed in the 9th District Court in Idaho.
“Documents say that the years since the 2002 assessment was made have been the driest in recent history, and that the Lander Field Office shifted its attention to managing the potentially devastating impacts of improper grazing during the prolonged drought in cooperation with its permitees. The overall stocking rate levels on these three allotments were significantly reduced during the drought to mitigate long-term damage to riparian areas and upland vegetation. What that tells us is the stocking reductions were done to account for the drought, not to actually improve conditions on the allotment. The drought was no doubt a difficult circumstance for BLM to deal with, but drought is a normal part of the climate here in the West, and the Fundamentals of Rangeland Health do not make an exception for the requirement that significant progress be made when something, like drought, comes along.
“Moving to the issue of irrevocable harm, continued livestock grazing, for these longer seasons of use, at levels comparable to what has happened over the last 10 years, will cause irreparable harm. The permittees have raised the issue of economic harms, and that’s something that court will have to balance when the court makes it decision. But first consider that although it was BLM’s responsibility to take action following the 2002 determination, the permittees did benefit by having seasons of use and being able to graze increased numbers – the permittees did benefit from BLM’s illegal actions. In addition, there are things like conservation easements that are available to help the permittees when they are not able to graze or when they choose not to graze for various reasons.
“Congress has recognized the value of livestock grazing, and said that livestock grazing can happen on some parts of public lands. But when it adopted the Federal Lands Policy and Management Act, it also specifically held, as a policy, that the public lands should be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, arid atmospheric, water resources and archeological values, that will provide food and habitat for fish and wildlife and domestic animals and that will provide for outdoor recreation and human occupancy and use. While livestock grazing is allowed, it isn’t the policy of the U.S. to allow it to go on so long and to such an extreme that the land is devastated and becomes unsuitable for other uses, or doesn’t support other habitats,” stated Havlina in her argument.
“What the petitioners are asking for is a drastic and extraordinary remedy. The movement to a preliminary injunction has to be clear and it has to be unequivocal. On top of that, certain kinds of preliminary injunctions are particularly disfavorable, one being an attempt to alter the status quo,” responded Assistant U.S. District Attorney Nicholas Vassallo.
“Grazing has occurred on this allotment for at least a century, and probably longer. To say that grazing in these areas of Wyoming is not the statues quo is a pretty amazing statement.
“Another disfavor is the one that affords the movement of relief at the conclusion of the merits of the case, and here I think it would be an understatement that the type of preliminary injunction requested by the petitioners would give them more than they could get on the conclusion of the merits,” noted Vassallo.
“Any claim that the agency failed to act in the past, in our view, is asking for nothing more than an advisory opinion of this court. Declaratory judgment action is supposed to define the rights looking forward, not just to say somebody didn’t do something in the past. Even if the court does reach the merits of the petitioner’s claims, they have not shown strong likelihood of success on the failure to act claim.     
“They argue the BLM has taken no action from 2003 to present to address the conditions on the allotment. That just isn’t true, BLM has taken numerous actions, and these actions fall under the regulations that are referred to as appropriate actions. They’ve significantly reduced stocking rates and they’ve issued decisions closing the allotment early. They’ve issued trespass actions, engaged in numerous range improvement projects, including fencing, riparian enclosures and water projects, as have permitees,” defended Vassallo.
“The petitioners have also argued that the BLM took action to address the drought, and I think its disingenuous to suggest that taking action to address a drought is not taking action to address rangeland conditions. Action can be taken to address multiple purposes,” added Vassallo.
Cheyenne attorney Karen Budd-Falen represented the permittees of the allotment, and added that the most recent Environmental Assessment showed clear improvement of the land in question.
“I find it interesting that, with regard to irreparable injury, the only suggestion by WWP is some sort of a conservation easement if the permittees can’t graze for this year. Quite frankly that’s a ludicrous suggestion – conservation easements are created with a willing buyer and willing seller, they don’t apply to BLM lands, and only apply to private lands, and there has been no one in this room who has been offered a conservation easement by anyone.
“These permittees have all filed uncontested affidavits and declarations that they will suffer irreparable injury if grazing is eliminated. Grazing permittees will have to sell their cattle, and their private lands will be hurt. These lands all work together as a viable ranching unit – to simply say the permittees can eliminate livestock grazing on BLM lands and use their private and state lands simply shows there is no knowledge of grazing and ranch management. It is likely that if the court eliminates grazing in 2011, it will be eliminated permanently,” continued Budd-Falen.
Following arguments, Judge Freudenthal immediately ruled against the preliminary injunction.
“The court finds that for the allotment, grazing is the status quo, considering the preference rights and considering the decades, if not more than a century, of use of this land for grazing. I think it strains credibility to suggest that isn’t the status quo.
“The petitioners are seeking pretty drastic relief in this case – in fact, perhaps the most drastic alternative rather than a more narrowly tailored remedy of interim practice and protective measures.
“Weighing the incremental ecological harms against the harms to the rancher and their communities, and the harms to the administrative process, the court concludes that this factor of balancing the harms weighs in favor of maintaining the status quo,” concluded Freudenthal.
She added the court looked forward to hearing arguments on the case, and that she wished to move the case along and get it scheduled in a timely fashion.
Heather Hamilton is editor of the Wyoming Livestock Roundup and can be reached at heather@wylr.net.