Center for Native Ecosystems v. Cables

• Decision Date: 17 December 2007
• Docket Number: No. 06-1130.,06-1130.
• Citation: 509 F.3d 1310
• Parties: CENTER FOR NATIVE ECOSYSTEMS; Biodiversity Conservation Alliance; and Forest Guardians, Plaintiffs-Appellants, v. Rick CABLES, in his official capacity as Regional Forester, Region 2, United States Forest Service; and United States Forest Service, Defendants-Appellees, and Pole Mountain Cattlemen's Association, an Unincorporated Association, and its members; Bath Sisters, LLC, a Wyoming Limited Liability Company; Mark Eisele; Warren Lifestock, LLC, a Wyoming Limited Liability Company; Peter Hansen; Bonham Ranch, LLC, a Wyoming Limited Liability Company; C.C. Davis & Co., LLC, a Wyoming Limited Liability Company; Ferguson Ranch, INC., a Wyoming Corporation; Gardner Bros.; Willadsen Bros.; Quarter Circle F Quarter Circle Lone Tree Ranch, Inc., a Wyoming Corporation; Wyoming Stock Growers Association, a nonprofit Wyoming Corporation on behalf of its members; Laramie County Farmers Union, a nonprofit Wyoming Corporation on behalf of its members; Wyoming Farm Bureau Federation, a nonprofit Wyoming Corporation on behalf of its members; Wyoming Association of Conservation Districts, a nonprofit Wyoming Corporation on behalf of its members, Defendant-Intervenors-Appellees. State of Wyoming; Pacific Legal Foundation; National Association of Home Builders; American Forest & Paper Association, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

509 F.3d 1310

CENTER FOR NATIVE ECOSYSTEMS; Biodiversity Conservation Alliance; and Forest Guardians, Plaintiffs-Appellants, v. Rick CABLES, in his official capacity as Regional Forester, Region 2, United States Forest Service; and United States Forest Service, Defendants-Appellees, and Pole Mountain Cattlemen's Association, an Unincorporated Association, and its members; Bath Sisters, LLC, a Wyoming Limited Liability Company; Mark Eisele; Warren Lifestock, LLC, a Wyoming Limited Liability Company; Peter Hansen; Bonham Ranch, LLC, a Wyoming Limited Liability Company; C.C. Davis & Co., LLC, a Wyoming Limited Liability Company; Ferguson Ranch, INC., a Wyoming Corporation; Gardner Bros.; Willadsen Bros.; Quarter Circle F Quarter Circle Lone Tree Ranch, Inc., a Wyoming Corporation; Wyoming Stock Growers Association, a nonprofit Wyoming Corporation on behalf of its members; Laramie County Farmers Union, a nonprofit Wyoming Corporation on behalf of its members; Wyoming Farm Bureau Federation, a nonprofit Wyoming Corporation on behalf of its members; Wyoming Association of Conservation Districts, a nonprofit Wyoming Corporation on behalf of its members, Defendant-Intervenors-Appellees.

State of Wyoming; Pacific Legal Foundation; National Association of Home Builders; American Forest & Paper Association, Amici Curiae.

No. 06-1130.

United States Court of Appeals, Tenth Circuit.

December 17, 2007.

McCrystie Adams (Neil Levine with her on brief), of Earthjustice, Denver, CO, for Plaintiffs-Appellants.

Mark R. Haag, Environment & Natural Resources Division, Department of Justice, Washington, D.C., (Sue Ellen Wooldridge, Assistant Attorney General, and David Shilton, Department of Justice, Washington, D.C.; Diane M. Conolly, Deputy Regional Attorney, and Kenneth P. Pitt, General Attorney, Office of the General Counsel, Department of Agriculture, Golden, CO, with him on the brief), for Defendants-Appellees.

Karen Budd-Falen and Marc R. Stimpert, Budd-Falen Law Offices, LLC, Cheyenne, WY, for Defendant-Intervenor-Appellees Wyoming Association of Conservation Districts.

Daniel B. Frank, Frank Law Office, P.C., Cheyenne, WY, for Defendant-Intervenor-Appellees Pole Mountain Cattlemen's Association, Wyoming Stock Growers Association, Wyoming Farm Bureau Federation, and Laramie County Farmers Union.

Thomas R. Lundquist, J. Michael Klise, Crowell & Moring, LLP, Washington, D.C., and Duane J. Desiderio, Staff Vice President, Legal Affairs, National Association of Home Builders, Washington, D.C., filed an amicus curiae brief for the National Association of Home Builders and American Forest & Paper Association.

Patrick J. Crank, Attorney General, and Thomas W. Rumpke, Cheyenne, WY, filed an amicus curiae brief for the State of Wyoming.

M. Reed Hopper and Scott Sommerdorf, Pacific Legal Foundation, Sacramento, CA, filed an amicus curiae brief for Pacific Legal Foundation.

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

The Center for Native Ecosystems, the Biodiversity Conservation Alliance, and the Forest Guardians (collectively CNE) appeal the district court's order denying a petition for review of the United States Forest Service's authorization of livestock grazing in Medicine Bow National Forest. CNE first contends that the Forest Service violated § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), because (1) its consultation with the United States Fish and Wildlife Service (FWS) after the designation of portions of the forest as critical habitat for the Preble's meadow jumping mouse (Preble's mouse) failed to consider how grazing in the mouse's critical habitat would affect its recovery, and (2) it must reinitiate consultation with the FWS regarding the effects of grazing on the mouse itself because grazing has exceeded previously established limits. CNE also contends that the Forest Service has violated § 313(a) of the Clean Water Act because it has not complied with Wyoming water-quality requirements "in the same manner, and to the same extent as any nongovernmental entity," 33 U.S.C. § 1323(a). The Pole Mountain Cattlemen's Association, the Wyoming Stock Growers Association, the Wyoming Farm Bureau Federation, and the Laramie County Farmers Union (collectively the Cattlemen's Association), along with the Wyoming Association of Conservation Districts, intervened in the district-court proceeding as defendants in support of the Forest Service's actions. The State of Wyoming, the Pacific Legal Foundation, and the National Association of Home Builders in conjunction with the American Forest and Paper Association have filed amicus briefs supporting various aspects of the Forest Service's actions. We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's decision.

I. BACKGROUND

A. The Pole Mountain Area in Medicine Bow National Forest

The Forest Service has long permitted livestock grazing in the Pole Mountain area of Medicine Bow National Forest, near Laramie, Wyoming. Under federal regulations the Forest Service may allow grazing on national forest land by issuing an allotment management plan, 36 C.F.R. § 222.2, and grazing or livestock-use permits, id. § 222.3(a). The allotment management plan must be consistent with the land management plan for the area, id. § 222.2(c), which in this case is the "Medicine Bow National Forest and Thunder Basin National Grassland Land and Resource Management Plan" (the Forest Plan), issued in October 1985.

The Pole Mountain allotment management plan allows grazing of up to 2086 cattle and 1200 sheep during an annual season from June 1 to October 15. It divides Pole Mountain into eight livestock allotments, seven of which are used for grazing. It also adopts certain best management practices for grazing, including a prohibition on season-long grazing in a pasture, standards limiting the utilization of forage by livestock, and the use of a deferred-rotation grazing system in which "only one pasture in an allotment will be grazed at a time" and "the order in which the pastures are used will be rotated each grazing season." Aplts. App. Vol. 2 at 409. Such practices are outlined in a publication of the Wyoming Department of Environmental Quality entitled "Grazing Best Management Practices." Aplees. Jt. Supp. App. Vol. 2 at 378.

Grazing permits, which generally are for a 10-year term, 36 C.F.R. § 222.3(c)(1), were issued for the seven Pole Mountain allotments in 1999. They identify the maximum number of livestock and maximum length of grazing season for each allotment. They also explain that they can

be cancelled, in whole or in part, or otherwise modified, at any time during the [10-year] term to conform with needed changes brought about by law, regulation, Executive order, allotment management plans, land management planning, numbers permitted or seasons of use necessary because of resource conditions, or the lands described otherwise being unavailable for grazing.

Aplees. Jt. Supp. App. Vol. 3 at 575. The permits explicitly incorporate the allotment management plan into their terms.

The limits set by the allotment management plan and permits on the length of the grazing season and number of permissible livestock may be altered by annual operating instructions issued by the Forest Service to grazing permittees. Annual operating instructions are not required by any statute or regulation; but the Forest Service Handbook for the Rocky Mountain Region contemplates their use and describes their function: They specify the annual actions necessary to implement the Forest Service's decision to authorize grazing in a particular area. They "identify the obligations of the permittee and the Forest Service, . . . articulate annual grazing management requirements and standards, and [set forth the] monitoring necessary to document compliance." Aplts. App. Vol. 2 at 321. They also take into account developments, such as a drought, occurring after issuance of the allotment management plan and accordingly specify the maximum amount of grazing authorized for a particular allotment, the precise sequence of grazing on the allotment, and any other standards the permittee must follow that year when grazing.

B. Facts Related to Claims Under the Endangered Species Act

In 1998 the FWS added the Preble's mouse, which resided in areas of Pole Mountain where grazing was authorized, to the threatened-species list. See 63 Fed. Reg. 26,517 (May 13, 1998). The FWS's action triggered § 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), which generally requires federal agencies—in this case the Forest Service—to consult with the FWS, on behalf of the Secretary of the Interior, to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be critical." (For some species, federal agencies are required to consult with the National Marine Fisheries Service on behalf of the Secretary of Commerce, instead of the FWS. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___, 127 S.Ct. 2518, 2526, 168 L.Ed.2d 467 (2007); 50 C.F.R. § 402.01(b). That is not the case here.)

Following the threatened-species designation, the Forest Service began preparing revisions to the Pole Mountain allotment management plan. As it explained at the time, one of the reasons for doing so was to "[i]ncorporate mitigation measures designed to protect sensitive and [threatened and endangered] species into [the Pole Mountain allotment management plan]." Aplees. Jt. Supp. App. Vol. 1 at 77. At the same time, the Forest Service sought to satisfy its consultation obligation under 16 U.S.C. § 1536(a)(2). FWS regulations provide that an agency's consultation obligation may be satisfied through either formal or informal consultation,...