Ctr. for Biological Diversity v. Branton
| Decision Date | 25 June 2015 |
| Docket Number | No. CV 10–330 TUC AWT,CV 10–330 TUC AWT |
| Citation | 126 F.Supp.3d 1090 |
| Parties | Center for Biological Diversity, Plaintiff, v. Nicole Branton, et al., Federal Defendants, and Ward Arizona Ranch Properties, LLC, Defendant–intervenor |
| Court | U.S. District Court — District of Arizona |
Todd Christopher Tucci, Advocates for the West Incorporated, Boise, ID, for Plaintiff.
Andrew Allen Smith, U.S. Dept of Justice, Albuquerque, NM, for Federal Defendants.
Karen Budd–Falen, Andrea R. Buzzard, Kathryn Brack Morrow, Budd–Falen Law Offices LLC, Cheyenne, WY, for Defendant–Intervenor.
This case arises out of the reauthorization of a grazing permit ("the Proposed Action") on the Fossil Creek Range Allotment ("FCRA"), located in the Coconino National Forest in central Arizona. In 2013, pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., the United States Forest Service ("Forest Service") issued a Decision Notice and Finding of No Significant Impact ("FONSI") (the "2013 Decision Notice and FONSI") approving the Proposed Action; in the same year, the United States Fish and Wildlife Service ("FWS") issued a Biological Opinion (the "2013 BiOp"), which assessed the impacts that the Proposed Action might have on the threatened Chiricahua Leopard Frog ("CLF"). Plaintiff Center for Biological Diversity (the "Center") challenges each agency action, asking this Court to grant summary judgment on its claims that the 2013 Decision Notice and FONSI violate the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., and that the 2013 BiOp violates the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 et seq.See Ctr.'s Mo. for Partial Summ. Jdgt., Dkt. 95. FWS and the Forest Service (together, the "Federal Defendants"), as well as intervenor Ward Arizona Ranch Properties, LLC (the "permittee")1 filed cross-motions for summary judgment, asking this Court to deny the Center's motion and grant theirs as to each of the Center's claims.See Permittee's Cross–Mot. for Summ. Jdgt., Dkt. 104; Fed.Defs.' Mo. for Summ. Jdgt., Dkt. 107.
This Court has jurisdiction over the Center's claims pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 704. For the reasons set forth below, the Court GRANTS in part and DENIES the Center's motion for summary judgment; and GRANTS in part and DENIES in part the Federal Defendants' and the permittee's motions for summary judgment.
The Forest Service is charged with administering the lands of the National Forest Service, which include the Coconino National Forest. See 36 C.F.R. § 200.1. The Forest Service is "required by statute and regulation to safeguard the continued viability of wildlife in the Forest." Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961 (9th Cir.2002). Among other things, the Forest Service must comply with the mandate of the NFMA that the "Forest Service ... develop a land and resource management plan ('forest plan') for each forest that it manages." Id. (citing 16 U.S.C. § 1604 ). Each forest plan must comply with a series of substantive requirements set forth in the NFMA. See 16 U.S.C. § 1604(g)(3) ().
"In order to ensure compliance with the forest plan and the [NFMA], the Forest Service must conduct an analysis of each 'site specific' action ... to ensure that the action is consistent with the forest plan." Idaho Sporting Cong., 305 F.3d at 962 ; see also 16 U.S.C. § 1604(i) (). Pursuant to the Federal Land Policy and Management Act of 1976, livestock grazing is one of the site specific actions that the Forest Service may authorize within the National Forest System. See Buckingham v. Sec'y of U.S. Dep't of Agric., 603 F.3d 1073, 1076 (9th Cir.2010). Livestock grazing is authorized on "allotments"—areas that have been designated within a national forest for this purpose—which are divided up into smaller areas, called "units" or "pastures." Id. at 1076–77.
The Forest Service authorizes livestock grazing on allotments via "three different types of site-specific actions, all of which must be consistent with the applicable Forest Plan." Id. at 1077 (citations omitted). First, the Forest Service issues grazing permits, which typically specify the number, kind, and class of livestock; the allotment to be grazed; and the period of use (usually ten years). Id. Second, the Forest Service develops an "allotment management plan" ("AMP"), a "document that specifies the program of action designated to reach a given set of objectives as to a specific allotment, including the manner in and extent to which livestock operations will be conducted in order to meet the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands, involved." Id. (citations and internal quotation marks omitted). AMPs are generally incorporated into the applicable grazing permit. Id. Third, the Forest Service develops and issues annual operating plans ("AOPs") or instructions ("AOIs"). Id. AOIs or AOPs translate the long-term directives of the applicable Forest Plan into instructions to the permittee for annual operations. Id. Because AOIs or AOPs are issued on an annual basis, they are "responsive to conditions that the Forest Service could not or may not have anticipated and planned for in the AMP or grazing permit." Id. (citation and internal quotation marks omitted). Typically, the Forest Service incorporates an AOI or AOP into the grazing permit, which governs the permittee's grazing operations for the ensuing year. Id.
The ESA has been described by the Supreme Court as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," reflecting a "conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies." TVA v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA is designed to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). Under the ESA, either the Secretary of Commerce or the Secretary of the Interior is required to determine whether "any species is an endangered species or a threatened species" based on certain, specified factors. 16 U.S.C. § 1533(a)(1). A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range," and is threatened if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. §§ 1532(6), (20). If a species is found to be either endangered or threatened, the Secretary of the Interior or the Secretary of Commerce must concurrently "designate any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533(a)(3)(A)(i). A species' critical habitat includes those areas occupied by the species at the time it is listed "on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A)(i). FWS refers to these "physical or biological features" as "primary constituent elements" ("PCEs"). See 50 C.F.R. § 424.12(b).
Section 7(a)(2) of the ESA ("§ 7") requires every federal agency 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 the designated critical habitat of the listed species. 16 U.S.C. § 1536(a)(2). To assist agencies in complying with this provision, "§ 7 and its implementing regulations set out a detailed consultation process for determining the impacts of the proposed agency action." Ctr. for Biological Diversity v. Salazar, 804 F.Supp.2d 987, 990 (D.Ariz.2011) (citing 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402). An agency seeking to authorize a particular action begins this process by preparing a "biological assessment" ("BA"), which evaluates (1) the potential effects of the action on the listed species and designated critical habitat; and, (2) whether any such species or habitat is likely to be adversely affected by the action. 16 U.S.C. § 1536(c) ; 50 C.F.R. § 402.12(a). If, after preparing the BA, the agency determines "that the proposed action is not likely to adversely affect any listed species or critical habitat," then it need not take any further action. 50 C.F.R. § 402.14(b)(1).
If, however, the "agency determines that its proposed action 'may affect' listed species or critical habitat, it must formally consult with the 'consulting agency.' " Ctr. for Biological Diversity, 804 F.Supp.2d at 990 (quoting 50 C.F.R. § 402.14(a) ).2 Once a request is submitted, the consulting agency must review all relevant information, evaluate the current status of the endangered or threatened species and its critical habitat, evaluate the effects of the action and cumulative effects on the listed species or its critical habitat, and, finally, formulate a BiOp...
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