Pacific Rivers Council v. Thomas

• Decision Date: 05 July 1996
• Docket Number: CV. No. 94-0159-S-HLR/DAE.
• Citation: 936 F. Supp. 738
• Parties: PACIFIC RIVERS COUNCIL; and The Wilderness Society, Plaintiffs, v. Jack Ward THOMAS, in his official capacity as Chief of the United States Forest Service; and United States Forest Service; Defendants. and Intermountain Forest Industry Association; Shearer Lumber Products; Boise Cascade Company Associated Logging Contractors; Hecla Mining Company; Meridian Gold Company; and Thompson Creek Mining Company, Defendant-Intervenors.
• Court: U.S. District Court — District of Idaho

936 F. Supp. 738

PACIFIC RIVERS COUNCIL; and The Wilderness Society, Plaintiffs, v. Jack Ward THOMAS, in his official capacity as Chief of the United States Forest Service; and United States Forest Service; Defendants and Intermountain Forest Industry Association; Shearer Lumber Products; Boise Cascade Company Associated Logging Contractors; Hecla Mining Company; Meridian Gold Company; and Thompson Creek Mining Company, Defendant-Intervenors.

CV. No. 94-0159-S-HLR/DAE.

United States District Court, D. Idaho.

July 5, 1996.

COPYRIGHT MATERIAL OMITTED

Todd D. True, Adam J. Berger, Kristen L. Boyles, Sierra Club Legal Defense Fund Inc., Seattle, WA, Laird J. Lucas, Land & Water Fund of the Rockies, Boise, ID, for Pacific Rivers Council.

Albert P. Barker, Hawley Troxell Ennis & Hawley, Boise, ID, Elizabeth H. Temkin, Scott W. Hardt, Ballard Spahr Andrews & Ingersoll, Denver, CO, for Hecla Mining Company.

B. Newal Squyres, Brian J. King, Murray D. Feldman, Holland & Hart, Boise, ID, Laurie L. Korneffel, Dean R. Massey, Parcel Mauro Hultin & Spaanstra, Denver, CO, Michael J. Brennan, C. William Groscup, Holland & Hart, Washington, DC, for Meridian Gold Company.

Scott L. Campbell, Elam & Burke, Boise, ID, Laurie L. Korneffel, Dean R. Massey, Parcel Mauro Hultin & Spaanstra, Denver, CO, for Thompson Creek Mining Company.

D. Marc Haws, Asst. U.S. Atty., U.S. Attorney's Office, Boise, ID, Lois J. Schiffer, U.S. Dept. of Justice, Land & Natural Resources Division, Washington, DC, Elinor Colbourn, U.S. Dept. of Justice, Washington, DC, Fred R. Disheroon, Charles R. Schockey, James C. Kilbourne, U.S. Dept. of Justice, Environment & Natural Resources Division, Washington, DC, for Jack Ward Thomas.

D. Marc Haws, Asst. U.S. Atty., U.S. Attorney's Office, Boise, ID, Lois J. Schiffer, U.S. Dept. of Justice, Land & Natural Resources Division, Washington, DC, Bruce M. Smith, Patrick D. Madigan, Rosholt Robertson & Tucker, Boise, ID, Elinor Colbourn, U.S. Dept. of Justice, Washington, DC, Fred R. Disheroon, Charles R. Shockey, James C. Kilbourne, U.S. Dept. of Justice, Environment & Natural Resources Division, Washington, DC, for U.S. Forest Service.

Bruce M. Smith, Patrick D. Madigan, Rosholt Robertson & Tucker, Boise, ID, for Intermountain Forest Industry Association, Shearer Lumber Products, Boise Cascade Company.

Nancy A. Wolff, Richard S. Christensen, Morris & Wolff, St. Maries, ID, for Associated Logging Contractors, Inc.

Charles L.A. Cox, Justin W. Julian, Evans Keane Koontz Boyd Simko & Ripley, Kellogg, ID, for United States Antimony Corporation.

ORDER DENYING DEFENDANTS' MOTION TO MODIFY ORDER ON PENDING CLAIMS AND DENYING DEFENDANTS' MOTION TO STRIKE DECLARATION OF CINDY DEACON WILLIAMS

DAVID ALAN ERZA, District Judge.

The court heard Defendants' Motion on July 2, 1996. Kristen L. Boyles, Esq., and Laird J. Lucas, Esq., appeared at the hearing on behalf of Plaintiffs Pacific Rivers Council and The Wilderness Society ("Plaintiffs" or "PRC"); Elinor Colburn, Esq., and Joseph Stringer, Esq., appeared at the hearing on behalf of Defendants Jack Ward Thomas and the United States Forest Service ("Defendants" or "Forest Service"). After reviewing the motion and the supporting and opposing memoranda, viewing the site of the proposed action, and having heard oral argument of counsel, the court DENIES Defendants' Motion to Modify Order on Pending Claims. The court also DENIES as MOOT Defendants' Motion to Strike Declaration of Cindy Deacon Williams.

BACKGROUND

The focus of the instant motion is a 48,000 acre-tract of land, referred to as the "Elk Creek" allotment.¹ The Elk Creek allotment is located in the Bear Valley Basin within the Loman Ranger District of the scenic Boise National Forest, and is comprised of three pastures: (1) the Elk Creek Riparian Pasture ("Riparian Pasture"); (2) the Poker Ayers Unit; and (3) the Stanfield Unit. The primary stream running through the allotment is Elk Creek, a meandering stream channel. See Exhibit 1 (Section 7(d) Determination) to Motion to Modify at 3-4. Numerous tributaries of Elk Creek also run through the allotment. The Riparian Pasture and the Poker Ayers Unit are the subjects of Defendants' motion.

The Bear Valley Basin was designated critical habitat for Snake River spring/summer Chinook Salmon ("salmon") on December 28, 1993. As published in the Federal Register, critical habitat includes the entire Bear Valley Basin. 50 C.F.R. § 226.1 et seq. The threatened salmon spawn in Elk Creek, creating annually between two dozen to well over one hundred redds (nests), beginning from July to August and concluding by approximately the first week in September. The Riparian Pasture consists of 8,000 acres and spawning habitat; the Poker Ayers Unit consists of 16,000 acres containing tributaries and rearing habitat; and the Stanfield Unit consists of 24,000 acres, including spawning habitat.

The Elk Creek allotment is permitted to Cattle, Inc., and A.D. Watkins ("permittees"), and is managed as part of a corporate ranch operation by ranch manager Rollin Baker. The permitted season of use is July 1 through October 15 (subject to modification for range conditions), during which time up to 738 cattle (cow/calf pairs) and 11 horses graze the allotment. In the past, during the season, the cattle graze in turn the three pastures identified above.

On December 20, 1995, this court entered an Order on Pending Claims enjoining the Forest Service from allowing any livestock to be turned out on the Elk Creek allotment until either: (1) consultation is completed pursuant to section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), or (2) a court hearing is held and the prohibition against grazing the allotment prior to completion is lifted. As required by section 1536(a)(2), the Forest Service has initiated consultation with the National Marine Fisheries Service ("NMFS") in order to insure that the proposed grazing activity "is not likely to jeopardize the continued existence of" the salmon. However, it is undisputed that consultation between the Forest Service and the NMFS is not yet complete. While the record reflects that the Forest Service and the NMFS have made some meaningful progress in their discussions, the NMFS's present position is that it does not concur in the Forest Service's grazing proposal for the Elk Creek allotment. See AR 26, AR 28, AR 31.²

The Forest Service proposes that this year, the livestock be scheduled to turn out on the Riparian Pasture in the Elk Creek allotment on or about July 8, 1996 for about one to three weeks, and that turn-out on the Poker Ayers Unit occur on July 22-29, 1996 for approximately five to six weeks.³ Because consultation is not expected to be complete as of these turn out dates, the Forest Service presents the court with a document entitled "Section 7(d) Determination for the Elk Creek Allotment (Riparian Pasture and Poker Ayers Unit)," issued on June 21, 1996. According to the Forest Service, section 7(d) of the ESA provides it with the authority to determine whether it can proceed with an proposed action as long as it has initiated consultation with the NMFS. Under section 7(d), an agency:

Shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.

16 U.S.C. § 1536(d). In its section 7(d) determination, the Forest Service has concluded that grazing on the Riparian Pasture and on the Poker Ayers Unit prior to completion of consultation with the NMFS complies with the ESA and is "not likely to adversely affect" the salmon. Accordingly, the Forest Service now moves for a modification of the court's Order on Pending Claims, in order to permit the livestock to be turned out prior to the completion of consultation.

Plaintiffs oppose the motion, principally arguing that the ESA does not entitle the Forest Service to the exception sought here. Alternatively, Plaintiffs take the position that the Forest Service errs in its determination that turning out the livestock on the two pastures is not likely to adversely affect the endangered salmon.

STANDARD OF REVIEW

The parties dispute whether the applicable standard of review with respect to the Forest Service's § 7(d) determination is deferential or de novo. The Forest Service argues that the § 7(d) action is an agency action governed by the Administrative Procedure Act, which provides that agency actions, findings and conclusions may be set aside only if "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (D). Plaintiffs on the other hand, claim that Defendants bear the burden of proof because Plaintiffs have not challenged the Forest Service's § 7(d) determination. Plaintiffs are correct.⁴

As stated above, this court entered an Order on Pending Claims in this action on December 20, 1995, enjoining the Forest Service from turning out livestock to graze on the Elk Creek allotment. An injunction is an equitable remedy issued under established principles which guide courts of equity. Sierra Club v. United States Army of Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984). A court retains the power to modify the terms of its injunction in the event that changed circumstances require it. United States v. State of Oregon, 769 F.2d 1410, 1416 (9th Cir.1985); System Federation v. Wright, 364 U.S. 642, 646, 81 S.Ct. 368, 370, 5 L.Ed.2d 349 (1961); Anderson v. Central Point School Dist. No. 6, 746 F.2d 505, 507 (9th Cir.1984) (per curiam). Generally, in order to prevail on a motion to modify, the movant must establish a change in circumstances that would make the original preliminary injunction...