Ctr. for Biological Diversity v. Haaland
| Decision Date | 16 May 2022 |
| Docket Number | Lead Case No. 20-cv-231-NDF,Member Case No. 20-cv-234-NDF |
| Citation | 603 F.Supp.3d 1094 |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY and Sierra Club, and Western Watersheds Project, Alliance for the Wild Rockies, and Yellowstone to Uintas Connection, Petitioners, v. Debra A. HAALAND et al., Federal Respondents, and State of Wyoming and Upper Green River Cattle Association et al., Respondent-Intervenors. |
| Court | U.S. District Court — District of Wyoming |
Andrea L. Santarsiere, Andrea Zaccardi, Center For Biological Diversity, Victor, ID, William John Snape, III, Pro Hac Vice, American University Law School, Washington, DC, for Petitioners Center for Biological Diversity, Sierra Club.
John Sterling Persell, III, Pro Hac Vice, Western Watersheds Project, Hailey, ID, for Petitioners Western Watersheds Project, Alliance for the Wild Rockies, Yellowstone to Uintas Connection.
J. Brett Grosko, Pro Hac Vice, Robert Norway, Pro Hac Vice, U.S. Department of Justice, Environmental and Nature Resources Division, Washington, DC, Nicholas Vassallo, US Attorney's Office, Cheyenne, WY, for Federal Respondents.
Jay A. Jerde, Wyoming Attorney General, Water & Natural Resources Division, Cheyenne, WY, Kelly Shaw, Wyoming Attorney General's Office, Cheyenne, WY, for Respondent-Intervenor State of Wyoming.
Joseph Bingham, Pro Hac Vice, Zhonette M. Brown, Pro Hac Vice, Mountain States Legal Foundation, Lakewood, CO, Timothy Michael Stubson, Crowley Fleck PLLP, Casper, WY, for Respondent-Intervenors Upper Green River Cattle Association, Sommers Ranch, LLC, Price Cattle Ranch, Murdock Land and Livestock Co., Wyoming Stock Growers Association.
This consolidated matter comes before the Court upon the Amended Complaint/Petition for Review of Petitioners Center for Biological Diversity and Sierra Club (collectively, "CBD"), and the Supplemented and Amended Petition for Review of Agency Action of Western Watersheds Project, Alliance for the Wild Rockies, and Yellowstone to Uintas Connection (collectively, "WWP"), against Respondents Debra A. Haaland in her official capacity as United States Department of Interior Secretary, United States Forest Service, and United States Fish and Wildlife Service (collectively, "Federal Respondents"). On July 29, 2020, the State of Wyoming was granted permission to intervene, as were the Upper Green River Cattle Association, Sommers Ranch, LLC, Price Cattle Ranch, Murdock Land and Livestock Co., and the Wyoming Stock Growers Association.
As an aid, the Court provides the following list of less familiar acronyms:
After considering the administrative record, reading the briefs of the parties, reviewing the materials on file, and being fully advised in the premises, the Court FINDS and ORDERS as follows:
I. Introduction
On October 11, 2019, the United States Forest Service (USFS) signed the Record of Decision (ROD) for the Upper Green River Area Rangeland Project (UGRA Project). NFMA-FS-SAR-062815. The 170,643-acre project area is located in western Wyoming—and within the Greater Yellowstone Ecosystem (GYE) — approximately 30 miles northwest of Pinedale near the Green River Lakes. NFMA-FS-SAR-062816. The GYE is one of the largest intact ecosystems remaining in the temperate zones of the world. FS-012073.
There are six cattle and horse grazing allotments in the project area: Badger Creek, Beaver-Twin Creeks, Noble Pastures, Roaring Fork, Wagon Creek, and Upper Green River. FS-13686. The stated purpose of the UGRA Project is to "authorize livestock grazing in a manner that will maintain or improve resource conditions." Id. Under the UGRA Project ROD, USFS will issue grazing permits for the project for a period of 10 years. FWS-664. The project allows approximately 8,819 livestock, including 8,772 cow/calf pairs and yearlings and 47 horses, to graze in the six allotments from June 14th to October 15th. FS-13699.
To assess the effects of the UGRA Project on the federally threatened grizzly bear, USFS requested consultation with the United States Fish and Wildlife Service (FWS). FWS-648. USFS also requested concurrence from FWS on its determination for the endangered Kendall Warm Springs dace (KWS dace). Id. On April 29, 2019, FWS issued its biological opinion (BiOp) finding that the effects of livestock grazing as proposed in the UGRA Project are not likely to jeopardize the continued existence of the grizzly bear. FWS-706. As part of its informal consultation, FWS also concurred with USFS's determination that the project is not likely to adversely affect the KWS dace. FWS-653.
Petitioners CBD and WWP jointly argue that FWS's 2019 BiOp is arbitrary, capricious, and violates the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), and the Administrative Procedure Act (APA), 5 U.S.C. § 706. Petitioners also jointly argue that USFS arbitrarily, unreasonably, and unlawfully relied on the BiOp when approving the UGRA Project. Petitioner WWP additionally argues that USFS and FWS unlawfully failed to engage in formal consultation regarding the UGRA Project's effects on the KWS dace. WWP also argues that, in violation of the National Forest Management Act (NFMA), the UGRA Project's ROD and associated Annual Operating Instructions (AOIs) and Allotment Management Plans (AMPs) do not prescribe the site-specific forage utilization levels needed to meet Bridger-Teton National Forest (BTNF) Plan objectives and fail to retain cover for sensitive amphibians and birds.
Petitioners request that the Court 1) set aside/vacate FWS's 2019 BiOp and Incidental Take Statement (ITS) for the UGRA Project as well as FWS's concurrence regarding the KWS dace; 2) set aside/vacate USFS's UGRA Project ROD and associated AOIs; 3) enjoin the lethal removal of grizzly bears from UGRA Project allotments until FWS and USFS complete consultation in compliance with the ESA; 4) enjoin cattle trailing through the KWS dace enclosure until FWS and USFS complete consultation in compliance with the ESA; 5) enjoin grazing authorizations within the UGRA Project area until USFS ensures that such authorizations comply with the BTNF Plan's Forage Utilization Standard.
For the reasons that follow, the Court AFFIRMS the UGRA Project ROD, associated AOIs, and associated BiOp and ITS, as supported by substantial evidence, and neither arbitrary, capricious, an abuse of discretion, or inconsistent with law. Consequently, CBD's Amended Complaint/Petition for Review and WWP's Supplemented and Amended Petition for Review of Agency Action are DISMISSED .
II. Legal Background
The ESA defines an endangered species as one "which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species is one "which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). Once FWS lists a species, Section 7 of the ESA dictates that federal agencies must ensure that any federal agency action 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[.]" Id. § 1536(a)(2). To achieve this goal, an "action agency must first determine whether its proposed discretionary action may affect a listed species or a critical habitat." Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1105 (10th Cir. 2010) (citing to 50 C.F.R. § 402.14(a), (c) ). "If so, the agency must consult with the FWS." Id. The FWS then formulates a biological opinion, and, based on the best scientific and commercial data available, determines whether the action is likely to jeopardize the continued existence of listed species. Id.
Section 9 of the ESA prohibits the "taking" of any endangered species. 16 U.S.C. § 1538(a)(1)(B). However, "[i]f the biological opinion concludes that jeopardy is not likely ... the consulting agency can issue an ‘Incidental Take Statement.’ " Rio Grande , 601 F.3d at 1106 (quoting Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. , 524 F.3d 917, 924 (9th Cir. 2008) ); 16 U.S.C. § 1536(b)(4). An ITS "constitutes a permit authorizing the action agency to take the endangered or threatened species so long as it respects the [FWS's] terms and conditions." Rio Grande, 601 F.3d at 1106. (quoting Bennett v. Spear , 520 U.S. 154, 170, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ).
NFMA requires the USFS to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System[.]" 16 U.S.C. § 1604(a). These "forest plans" must "provide for multiple use and sustained yield" and "include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness[.]" Id. § 1604(e)(1). A forest plan must also "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1247 (10th Cir. 2010) (citing 16 U.S.C. § 1604(g)(3)(B) ).
Projects approved by the USFS "must be consistent with the applicable forest plan." Forest Guardians v. U.S. Forest Serv. , 641 F.3d 423, 427 (10th Cir. 2011) (citing Utah Env't Cong. v. Bosworth (UEC III) , 443 F.3d 732, 737 (10th Cir. 2006) ; 16 U.S.C. § 1604(i) ). Specifically, "AMPs must be consistent with the [f]orest [p]lan for the forest in which the allotment sits."...
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