Where does “common sense” come into play?
|August 6, 2010||Posted by russmead under Wild horses and burros|
Injunctions issued by a court are invaluable to animal welfare advocates trying to save animal lives. Temporary restraining orders or preliminary injunctions can be issued to maintain the status quo and avoid "irreparable harm" that could result during the time it takes to resolve a lawsuit.
But there are a number of elements a plaintiff must satisfy before a judge can issue an injunction. Typically, a temporary restraining order or preliminary injunction issued by a federal court requires proof that there is a likelihood of success on the merits, that plaintiff is likely to suffer irreparable harm in the absence of the court order, that the balance of equities tips in the plaintiff’s favor, and that an injunction is in the public interest. Fed. R. Civ. P. 65
A plaintiff is also required to post a bond.
A temporary restraining order or preliminary injunction is considered to be "an extraordinary remedy".
The requirements for a temporary restraining order or preliminary injunction may vary in state courts.
The Supreme Court’s decision in the case of Winter v. NRDC, Inc., 129 S. Ct. 365 (2008) sets the standard for granting injunctions in federal cases particularly where plaintiffs are bringing a lawsuit to prevent harm to wild animals. In that case the Supreme court vacated an injunction against the Navy’s use of "mid-frequency active" (MFA) sonar during integrated training exercises in the waters off southern California (SOCAL). "In these exercises, ships, submarines, and aircraft train together as members of a ‘strike group.’ Due to the importance of antisubmarine warfare, a strike group may not be certified for deployment until it demonstrates proficiency in the use of active sonar to detect, track, and neutralize enemy submarines."
But the SOCAL waters contain at least 37 species of marine mammals. Eventually, the 9th Circuit Court of Appeals upheld an injunction imposing restrictions on the Navy’s use of sonar during its SOCAL training exercises. The Navy did not dispute several of the requirements but challenged the order that the Navy must "shut down MFA sonar when a marine mammal was spotted within 2,200 yards of a vessel, and to power down sonar by 6 decibels during conditions known as surface ducting.’"
In vacating the injunction, the Supreme Court did not disagree that there was a strong likelihood the plaintiffs would win on the merits of their claims. Plaintiffs had sued the Navy basically for violations of the Marine Mammal Protection Act of 1972 (MMPA), 16 U.S. C. Sec. 1361 et seq. which generally prohibits the "taking" of a marine mammal, defined as harassing, hunting, capturing, or killing it; and the National Environmental Policy Act, 42 U.SC. Sec. 4321, et seq. specifically failing to obtain an environmental impact statement . The Secretary of Defense exempted the Navy from MMPA as long as it undertook certain mitigation measures, stating the Navy’s use of MFA sonar was "necessary for national defense". For more on the history of this case….
The Supreme Court opinion authored by Chief Justice John Roberts, noted that even "under the Navy’s own figures the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior." The Supreme Court described the plaintiffs’ interests included taking "whale watching trips, observ[ing] marine mammals underwater, conduct[ing] scientific research on marine mammals, and photograph[ing] these animals in their natural habitats. Plaintiffs contend that the Navy’s use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs’ ability to study and observe the animals."
Justice Roberts concluded, "While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe"
The Supreme Court seems to have set an almost insurmountable burden to obtain a preliminary injunction. If the certain injuries and deaths of individual animals, even thousands of them, are not sufficient evidence of a likelihood of "irreparable injury" to warrant a preliminary injunction in a case where it is conceded the plaintiffs are likely to prevail ultimately, then what is?
The Court evaluated only the individual plaintiffs’ personal interests in observing and studying the marine mammals against the public’s interest in national security. It would be rare for the personal interests of plaintiffs, absent some implication of a constitutional right, to ever outweigh a serious public interest. Surely the real interest to be considered in these cases is the effect on the animals, their habitat and the environment and not in whether a particular person likes to watch an animal in the wild? The person after all is bringing suit, not so much for their own personal losses, but to save animal lives.
But the news is not all bad. This past month, the 9th Circuit Court of Appeals joined at least 2 other federal Circuits in determining that the decision in Winter did not invalidate the "sliding scale" test where a judge could find one factor should be given more weight and the injunction issued even if other factors are weaker. A showing of irreparable injury alone, for example, is not enough to obtain an injunction. But if there are also at least "serious" questions raised on the merits of the case and more good than harm will be done, the federal court may still grant a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 2010 U.S. App. LEXIS 15537; Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009); Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)
Laura Leigh is hoping U.S. District Judge Larry Hicks will accept the "sliding scale" approach in re-considering her motion asking the judge to reconsider his order denying her a temporary restraining order to delay the Tuscarora wild horse roundup past foaling season. In an earlier order, the judge basically found there was insufficient showing of a violation of the law.
Leigh is an author, journalist, artist and works avidly as an advocate for wild horses.
Leigh argues in her motion to reconsider this order the "Wild Free Roaming Horses and Burros Act of 1971 …mandates that the removal of excess wild horses, if necessary, shall be accomplished humanely. 16 USC §1333 (b)(2)(iv)(B). If the [BLM] do[es] not gather humanely, then they have violated the clear language, the clear intent, and the clear purpose of 16 USC Â§1333 (b)(2)(iv)(B)." Leigh says she has presented evidence the roundup was inhumane.
Leigh herself told the court: "To see foals threatened to the point where they are injured, maimed, suffering or expire, is hard to fathom but it happens when the BLM conducts its gathers. I’ve seen this first hand now, multiple times. I’ve seen the BLM and their contracted help run foals and their moms with helicopters where they bear down on them with the helicopter’s rotor to within feet of the animals. I’ve watched them die in BLM holding pens following BLM gathers. I’ve seen foals hardly able to walk after having been run on rocky ground for unknown, lengthy distances, causing severe and irreparable injury to their soft, young hoofs. To me, these personal observations are most disheartening, disturbing and unforgettable."
"To me, to see this tragic event repeat itself as what is likely to occur with this federal decision to drive baby horses with a helicopter from the Tuscarora Gather area, in desert heat, before they are mature enough to survive the trip, causing their demise, is unspeakable and causes me personal grief the extent of which I cannot measure. I am in disbelief that my own federal government which I love, cherish, support and appreciate, and which… recognizes these horses as living symbols of the historic and pioneer spirit of the West,’ could cause the demise of young foals who have not been provided the chance of a full life in their native habitat."
Two noted equine veterinarians, Drs. Nena Winand and Lisa Jacobson, and Bruce Nock, Ph.D., a neurobiologist who has studied wild horses in captivity, as well as other witnesses to prior BLM roundups, submitted evidence confirming the roundups are inhumane particularly to mares and foals during the heat of summer and the foaling season. For more on the Tuscarora roundup and this case…..
On top of the abject cruelty, BLM represented to the Court the roundups must proceed on an "emergency" basis because of lack of water on the range. BLM made no such claim until after Leigh filed her lawsuit and after horses began dying and suffering from dehydration during the roundup. Craig Downer, a respected wildlife ecologist who has studied wild horses and burros for decades, pointed out there are 10 times as many cattle on the Tuscarora range as wild horses. Yet BLM did not find there was an "emergency" requiring their removal. In fact, Leigh presented evidence there was no emergency on the range, that there was plenty of water and the dehydration resulted from fencing blocking access to the water and the grueling, inhumane roundups. BLM hires a contactor to use a helicopter to chase horses for miles in the heat of summer. Many mares have just given birth or are about to do so.
Leigh found a video on BLM’s website where the agency admits the reason for this roundup is not because there are too many or they are "excess", but to make it easier to prevent them from leaving the herd management areas. Nothing was said about lack of water either. BLM has no authority to remove wild horses or burros from public lands that are not "excess", meaning an overpopulation. Federal District Court Judge Rosemary Collyer in a case last year rejected that BLM has the authority to remove non-excess horses. The judge said the "decision to remove … concededly non-excess wild free-roaming horses and burros is … impermissible". The judge put it bluntly, "Congress did not intend for BLM’s management authority to be so broad." WFRHBA does after all require BLM to protect wild horses and burros from "harassment" and "capture" and manage them as free -roaming components of the public lands humanely at the "minimal feasible level".
Really, how many more egregious violations of WFRHBA does Leigh have to show before a judge finds there are "serious" questions here and puts a stop to this? Leigh begs the court, "Where does common sense’ come into play?"
Leigh also asks Judge Hicks to reconsider the court’s earlier order finding there was no violation of her First Amendment right to observe and report on the roundup as a member of the media. The judge earlier decided the Bureau of Land Management’s blanket closure of 27,000 acres of public lands during the roundup was too broad and that Leigh and the public should be allowed access to observe and report on the roundup. The BLM, however, conducted most of the roundup activities on private land, and the judge then found there was no violation of her First Amendment rights for the landowner’s refusal to allow her on the property.
Leigh notes she "loses assignments in her job as a journalist when she cannot reasonably observe and visualize the gather. She cannot observe and report which is part of the Plaintiff’s job. She is denied First Amendment protections from a prior restraint in being shut out from effectively reporting events involving government in action in an issue of significant public interest."
The Supreme Court has said that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" for purposes of the issuance of a preliminary injunction. Elrod v. Burns, 427 U.S. 347 (1976)
The sad news is that the Tuscarora roundup is over with reports of 34 horses dead and untold numbers injured or ill. The judge doesn’t have to guess whether there will be irreparable harm. There already has been.