November 10, 2011

Briefing complete in ONDA case

By Damien M. Schiff Senior Attorney

Yesterday we filed our reply brief in Oregon Natural Desert Association v. Tidwell, in the Ninth Circuit Court of Appeals.  PLF attorneys represent a collection of cattle grazing folks who hold permits from the United States Forest Service to graze their cattle on the Malheur National Forests.  Environmentalists have been trying for years to eliminate productive use of national forests, particularly for grazing, and the Malheur has been the battleground for many lawsuits.  The Tidwell case arises out of ONDA’s challenge to a biological opinion issued by the National Marine Fisheries Service under the Endangered Species Act.  The biological opinion is intended to govern grazing on the Malheur and to provide prescriptions that, if followed, will avoid harm to the Middle Columbia River steelhead, an ESA-protected fish.

Not surprisingly, ONDA believed that the biological opinion and its implementation did not go far enough, and the district court agreed in part, ultimately issuing an injunction forbidding grazing in some areas of the Malheur and generally limiting grazing in all other areas.

The issue on appeal, however, does not concern the nuts and bolts of the biological opinion but rather deals with whether ONDA was entitled to an injunction.  The normal rule is that an injunction is an extraordinary remedy not awarded as of right.  But for many years the Ninth Circuit applied exceptions to that general rule when the plaintiffs were environmental groups and the requested injunctions would supposedly benefit endangered species or the environment.  Recent US Supreme Court jurisprudence, however, has rejected some of this Ninth Circuit case law.  In the Tidwell appeal, we hope to convince the Ninth Circuit that these recent case law from the high court requires abandonment of the court’s too-generous approach to injunctive relief for environmental concerns.

We also hope that the Ninth Circuit will adopt the rule espoused by the First Circuit Court of Appeals in a case decided last year concerning the Canada lynx, another ESA-protected species.  In that case, Animal Welfare Institute v. Martin (in which PLF participated as amicus), the environmentalists argued that they were entitled to an injunction against the State of Maine to prevent the use of certain types of trapping devices, even though there was no evidence that the use of such devices posed a risk to the lynx species as a whole.  The First Circuit ruled that no injunction was merited, reasoning that, to obtain an injunction under the ESA, a party must show not just that the ESA has been violated, but that the violation, if not enjoined, will lead to harm to the species as whole, not just to individual members of the species.

The Martin rule is sound both in law and in policy, and we hope it becomes the rule for all ESA cases throughout the country.

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