Californians for Alternatives to Toxics v. United States Fish & Wildlife Serv.

• Citation: 814 F.Supp.2d 992
• Decision Date: 06 September 2011
• Docket Number: No. CIV. S–10–1477 FCD/CMK.,CIV. S–10–1477 FCD/CMK.
• Parties: CALIFORNIANS FOR ALTERNATIVES TO TOXICS, a non-profit 10/21 corporation; Wilderness Watch, a non-profit corporation; the Friends of Silver King Creek, a California non-profit corporation; Laurel Ames, an individual and Ann McCampbell, an individual, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE; Alexandra Pitts, in her official capacity; United States Forest Service; Jeanne M. Higgins, in her official capacity, Defendants.
• Court: U.S. District Court — Eastern District of California

814 F.Supp.2d 992

CALIFORNIANS FOR ALTERNATIVES TO TOXICS, a non-profit 10/21 corporation; Wilderness Watch, a non-profit corporation; the Friends of Silver King Creek, a California non-profit corporation; Laurel Ames, an individual and Ann McCampbell, an individual, Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; Alexandra Pitts, in her official capacity; United States Forest Service; Jeanne M. Higgins, in her official capacity, Defendants.

No. CIV. S–10–1477 FCD/CMK.

United States District Court, E.D. California.

Sept. 6, 2011.

[814 F.Supp.2d 995]

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, for Plaintiffs.

Edward A. Olsen, United States Attorney's Office, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER FRANK C. DAMRELL, JR., District Judge.

This matter is before the court on the parties' cross-motions for summary judgment in this environmental case in which plaintiffs ¹ seek to set aside the EIR/EIS ²

[814 F.Supp.2d 996]

and the agencies' decisions authorizing the Paiute Cutthroat Trout Restoration Project (the “Project”) in Silver King Creek, located in the Carson–Iceberg Wilderness in Alpine County, California. The Project will restore the Paiute cutthroat trout (“PCT”) to its historic range in Silver King Creek by eradicating non-native trout between Llewellyn Falls and Silver King Canyon with the pesticide rotenone and restocking the treated area with pure PCT from donor streams. According to defendants, the Project is a critical and necessary step towards removing the PCT from the Endangered Species Act's threatened species list and preventing its extinction.

By their complaint, filed June 15, 2010, plaintiffs challenge the EIR/EIS, jointly prepared by the United States Fish and Wildlife Service (“USFWS”) and the California Department of Fish and Game (“CDFG”), to authorize the Project under the National Environmental Policy Act (“NEPA”), the Wilderness Act of 1964 (the “Wilderness Act”), the Endangered Species Act (“ESA”), the Federal Water Pollution Control Act (“Clean Water Act”), the California Environmental Quality Act (“CEQA”) and the Administrative Procedures Act (“APA”).

Plaintiffs filed their motion for summary judgment on April 3, 2011, seeking partial summary judgment in their favor on their NEPA and Wilderness Act claims. On May 5, 2011, USFWS and the United States Forest Service (“USFS”) filed an opposition and cross-motion for summary judgment on plaintiffs' other claims for relief under the ESA, Clean Water Act and APA.³ The court heard oral argument on the motions on August 11, 2011, and by this order now renders its decision on the motions.

Plaintiffs' motion is GRANTED in part and denied in part. Plaintiffs have not demonstrated a violation of NEPA and therefore, their motion on that claim is DENIED. However, plaintiffs have shown a violation of the Wilderness Act because in choosing one competing value (the conservation of the PCT) over another value (preservation of the wilderness character), the agencies left native invertebrate species out of the balance, and thus improperly concluded that authorization of motorized equipment will comply with the Act by achieving the purpose of preserving wilderness character.

Having shown success on the merits of their Wilderness Act claim, plaintiffs are

[814 F.Supp.2d 997]

entitled to a permanent injunction, enjoining implementation of the Project because: (1) through the expert declaration of Nancy Erman, they have demonstrated that the rotenone treatment will kill sensitive macroinvertebrate species and that recolonization will not occur for some species because they cannot adapt to the Project area habitat; and (2) the balance of equities tips in their favor as no exigency exists to begin the Project now; and (3) the public interest favors preservation of the unimpaired wilderness.

Defendants' cross-motion is accordingly DENIED in part and GRANTED in part. Their motion is denied as to plaintiffs' Wilderness Act claim but granted with respect to plaintiffs' NEPA, ESA and Clean Water Act claims.

BACKGROUND ⁴

The USFWS, the CDFG and the USFS (sometimes collectively, the “Agencies”) have proposed the Paiute Cutthroat Trout Restoration Project to poison with rotenone ⁵ eleven miles of Silver King Creek and then stock this area with pure PCT from established populations in the upper portions of the watershed. (UF # 125.) Silver King Creek is within the Carson–Iceberg Wilderness of the Humboldt–Toiyabe National Forest in California's Sierra Nevada Mountains. (UF # 11.) The eleven-mile project area includes a six-mile stretch of the mainstem of the river downstream of Llewellyn Falls to Silver King Canyon, sometimes referred to as lower Silver King Creek, and five miles of tributaries. (UF # 84.) Currently six populations of PCT inhabit eleven and one-half miles of Silver King Creek, including above Llewellyn Falls. (UF # 33.)

Originally, the USFWS and CDFG planned to begin project implementation in the late summer or early fall of 2011; however, due to record snowfall this winter, the Agencies recently announced that they will postpone implementation of the Project until the late summer or early Fall of 2012. (UF # 126.) The Agencies propose to apply rotenone over two to three years. (UF # 91.) Each application of rotenone would require seven working days and could be done twice a year. (UF # 87.) An auger, powered by a gasoline-powered generator, will distribute potassium permanganate that will neutralize the toxicity of the rotenone downstream.⁶

[814 F.Supp.2d 998]

(UF # 100.) Last, the Agencies propose to stock the project area with PCT the summer after the final poisoning, and continue annually until the population has reached the target size.⁷ (UF # 124.)

The objective of the Project is to eradicate non-native fish in the proposed area and establish PCT as the only salmonid fish species in the Silver King Creek system-an action proposed ⁸ in the 2004 Revised Recovery Plan (the “2004 Plan”) to prevent extinction of the PCT, as required by the ESA. (AR 182.) The PCT is native to only Silver King Creek and is listed under the ESA as threatened with extinction. (AR 180, 33235.) The initial Recovery Plan, issued in 1985 (the “1985 Plan”), did not propose to establish PCT in Silver King Creek below Llewellyn Falls or to poison that stretch of the creek. (UF # 56.) Instead, the 1985 Plan concluded that the PCT could be considered recovered “when a pure population of PCT has been reestablished in Silver King Creek above Llewellyn Falls, and the integrity of the habitats in Silver King Creek, Cottonwood Creek, and Stairway Creek has been secured and maintained over a consecutive five-year period with stable or increasing overwintering ⁹ populations of 500 or more adult fish in each of these streams.” ¹⁰ (UF # 54.)

Under the 2004 Plan, the PCT would have to be successfully reintroduced into Silver King Creek from Llewellyn Falls downstream to Silver King Canyon to avoid extinction. (AR 33237.) The USFWS stated reasons for the change from the 1985 Plan, including “1) the discovery of fish barriers downstream of Llewellyn Falls that would enable the expansion of Paiute cutthroat trout into historic habitat, 2) elimination and reduction of threats to existing populations, [and] 3) increased knowledge about Paiute cutthroat trout population dynamics based on long-term trend data.” (UF # 61.) According to this plan, the PCT listing for recovery under the ESA indicates a “moderate degree of threat for extinction.” (UF # 62.) The 2004 Plan concludes, however, that if the PCT remain only in their currently occupied habitat, they will be “highly vulnerable to extinction.” (AR 33238.)

In 2004, the USFS ratified a Finding of No Significant Impact (“FONSI”) under NEPA for an earlier iteration ¹¹ of the project at issue in this case. Some of the plaintiffs in this case challenged the FONSI for failing to comply with NEPA, and this court ordered a preliminary injunction enjoining implementation of the project; specifically, any application of rotenone formulations and potassium permanganate to Silver King Creek, its tributaries and backwaters, and Tamarack Lake. (UF # 76.) The court found that the plaintiffs made a strong showing of the likelihood of irreparable harm to native Silver King Creek species and the balance of interests tipped decisively in the plaintiffs' favor.

[814 F.Supp.2d 999]

Californians for Alternatives to Toxics v. Troyer, No. CIV–05–633–FCD–KJM, 2005 WL 2105343, at *2 (E.D.Cal. Aug. 31, 2005).

Thereafter, in 2010, the Agencies published the EIR/EIS for the Project at issue in this case.¹² (UF # 83.) The EIR/EIS analyzes three alternatives: the No Action Alternative (“Alternative One”); the Proposed Action Alternative (“Alternative Two”); and the Combined Physical Removal Alternative (“Alternative Three”). (AR 177.) Alternative One continues current management of existing PCT populations in Silver King Creek, without introducing new populations or efforts to eradicate non-native trout; the EIR/EIS concluded that this alternative would not result in direct environmental benefits. (AR 193.)

Alternative Two analyzes the Project at issue here. The analysis acknowledges that this alternative could result in loss of individual macroinvertebrate taxa, potentially including rare or as yet unidentified species endemic to Silver King Creek.¹³ (UF # 115.) While common macroinvertebrate taxa would recolonize the Project areas, rarer taxa may be eradicated for a number of years or indefinitely. (UF # 114.) There is no information about the existence of rare or endemic macroinvertebrate species in Silver King Creek because current studies do not provide the level of taxonomic resolution needed to detect rare or endemic species. (UF # 118.) ¹⁴ The Agencies conclude in the EIR/EIS that performing species studies to determine whether endemic or rare taxa exist in Silver King Creek would require an intensive effort that...