Defenders of Wildlife v. Martin

• Decision Date: 22 September 2006
• Docket Number: No. CV-50-248-RHW.,CV-50-248-RHW.
• Citation: 454 F.Supp.2d 1085
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Susan MARTIN, et al., Defendants v. Idaho State Snowmobile Association, et al., Defendant-Intervenor-Cross Claimants.
• Court: U.S. District Court — District of Washington

454 F.Supp.2d 1085

DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Susan MARTIN, et al., Defendants v. Idaho State Snowmobile Association, et al., Defendant-Intervenor-Cross Claimants.

No. CV-50-248-RHW.

United States District Court, E.D. Washington.

September 22, 2006.

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Lauren M. Rule, Advocates for the West, Boise, ID, Michael T. Leahy, Defenders of Wildlife, Washington, DC, Richard K. Eichstaedt, Spokane, WA, for Plaintiffs.

Jimmy Anthony Rodriguez, Department of Justice, Joseph Hosu Kim, Jeffrey S. Dillen, Department of Justice, Environmental and Natural Resource Division, Washington, DC, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTING DEFENDANTS' CROSS-MOTION AND PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF

WHALEY, Chief Judge.

Before the Court are Plaintiffs' Motion for Partial Summary Judgment (Ct. Rec.36), Defendants' Cross-Motion for Partial Summary Judgment (Ct.Rec.78), and Plaintiffs' Second Motion for Injunctive Relief (Ct.Rec.105). A hearing was held on September 7, 2008, in Spokane, Washington. Lauren Rule, Michael Leahy, and Richard Eichstaedt appeared on behalf of Plaintiffs; Jimmy Rodriguez appeared on behalf of Defendants; and Paul Turcke and Mark Ellingsen appeared on behalf of Defendant-Intervenors.

BACKGROUND

In their Complaint, Plaintiffs challenge two biological opinions issued by Defendants Martin and the U.S. Fish and Wildlife Service ("FWS" or "Service"), and actions by Defendants McNair and U.S. Forest Service ("USFS"), in violation of the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 et seq. The Complaint alleges Defendants are allowing the decline of the remaining woodland caribou in the continental United States by implementing National Forest Management actions on the Colville and Idaho Panhandle National Forests ("IPNF").

The Court granted Plaintiffs' First Motion for Preliminary Injunction by Order on December 20, 2005 (Ct.Rec.65). Plaintiffs' motion was narrow in scope, asking for an order enjoining Federal Defendants from implementing their Challenge Cost Share Agreement ("CCSA") for snowmobile trail grooming in certain areas of the Idaho Panhandle National Forest during the winter of 2005-2006. The Court granted Plaintiffs' motion, finding that the CCSA was an agency action under § 7(a)(2) of the ESA which required consultation with the Fish and Wildlife Service before implementation.

Plaintiffs' second motion for injunctive relief asks the Court to issue an injunction to prohibit the Federal Defendants from authorizing snowmobiling or snowmobile trail grooming in the "Caribou Recovery Area" inside the IPNF until it has adequately completed consultation with the Fish and Wildlife Service over the effects of these activities on woodland caribou. Plaintiffs' current motion for partial summary judgment lists four specific issues for the Court's consideration:

(1) The amended [IPNF BiOp] issued by defendants Susan Martin and U.S. Fish and Wildlife Service is arbitrary, capricious, an abuse of discretion, and/or contrary to law pursuant to the ESA and the Administrative Procedure Act ("APA");

(2) The Incidental Take Statement within the IPNF BiOp is arbitrary, capricious, an abuse of discretion, and/or contrary to law, pursuant to the ESA and the APA;

(3) Defendants have further violated the ESA by not reinitiating consultation over the IPNF BiOP, after the U.S. Forest Service failed to comply with the non-discretionary Terms and Conditions within the Incidental Take Statement; and/or (4) Defendants McNair and U.S. Forest Service have violated the ESA by failing to consult with U.S. Fish and Wildlife Service over their [CCSA] for snowmobile trail grooming on the IPNF, and by failing to ensure that the [CCSA] will not jeopardize the continued existence of the woodland caribou.

(Ct. Rec. 36, Pls.' Mot. Partial Summ. J., at 3). Defendants' cross-motion for partial summary judgment exactly mirrors Plaintiffs' motion, raising the same issues for judgment in their favor.

FACTS

Defendants and Intervenors submit the Court is limited to reviewing the administrative record for the pending motions. Plaintiffs assert otherwise because they are basing their motion for injunctive relief on ongoing violations of the substantive provisions of §§ 7(a)(2) and 9. As discussed below, the ESA contains a citizen suit provision that independently authorizes a private right of action to challenge its violations. 16 U.S.C. § 1540(g)(1). The Court finds Plaintiffs' motion for injunctive relief is pursuant to this provision and therefore considers all evidence submitted for review in support of that motion. The following findings incorporate both the administrative records and the declarations and other evidence supporting and opposing Plaintiffs' motion for injunctive relief.

I. Snowmobiling and its Effects an the Woodland Caribou

The Selkirk Mountains woodland caribou is listed as "endangered" under the ESA. 50 C.F.R. § 17.11. At the time of listing in the early 1980s, the woodland caribou's population in the United States was reduced to only 25-30 animals. (Fish & Wildlife Service Admin. R., at 00019 (hereinafter "FWS AR")). Since 1987, 103 caribou have been transplanted into the region from other populations in British Columbia to bolster numbers and help stabilize the population. (Id.). Nevertheless, its remaining population numbers only about 35 animals; most of the population is located in southern British Columbia and a few are found in northern Idaho and Washington. (Id. at 00019). In its 2001 Amended Biological Opinion, the Service recognized that this population "is considered to be in decline and in danger of extirpation." (Id.). Only a few caribou are likely to be found anywhere south of the Canadian border — the Idaho Fish and Game Department has found one to three caribou in several different areas of the Selkirk Mountains during surveys of northern Idaho over the last five years. (Forest Service Admin. R. D220, at 2 (hereinafter "USFS AR")).

The late winter habitat of the woodland caribou consists generally of high elevation areas, where they walk on top of the snow and feed on nutrient-poor lichen found above the snowline on mature and old-growth trees. (FWS AR, at 00018). There are groomed trails and snowmobile "play areas" throughout the Selkirk Mountains, including areas close to and in caribou habitat. (Id. at 00021). In its IPNF 2001 Amended Biological Opinion ("BiOp"), the Service states "[m]uch of the late winter habitat available for caribou is being increasingly impacted by winter recreational activities (i.e. snowmobile activity). ... As the remaining suitable late winter habitat is increasingly infringed upon by winter recreationists, the potential increases for caribou harassment and possible injury, as well as displacement from these key habitats." (Id. (citation omitted)).

Although no critical habitat has been designated for the population of woodland caribou, a caribou recovery plan was developed in 1985 and revised in 1994. (Id. at 00017). The recovery area outlined in the plan encompasses approximately 2200 square miles in the Selkirk Mountains of northern Idaho, northeastern Washington, and southern British Columbia. (Id.). About 53 percent of the recovery area is within the United States, and about 57 percent (175,000 acres) of this area is within the IPNF. (Id. at 00017, 00049). As a result of the 1994 revision of the Caribou Recovery Plan, USFS closed a 25-square-mile area of the IPNF including the Selkirk Crest to snowmobile access to assist in caribou recovery. (Id. at 00057; USFS AR D220, at 2).

Approximately 77,000 acres within the caribou recovery area are currently used by winter recreationists, including snowmobilers. (USFS AR D220, at 2). There are about 50 miles of groomed snowmobile routes mapped and permitted on national forest lands within the recovery area. (Id.). Although the actual area used by snowmobiles varies depending on snowfall and snow conditions, aerial monitoring over the past several years has shown an increasing level of use within areas such as open canopied timbered habitats. (Id.). The Forest Service reports this type of use was rare in the past. (Id.). This use appears to directly overlap the late winter caribou habitat described in the 2001 IPNF Amended BiOp — "mature and old growth spruce-subalpine fir forests and parkland." (FWS AR, at 00018).

One study has recommended that snowmobiling be restricted from high quality mountain caribou winter habitat or at least limited to a small proportion of the total high quality habitat for each herd. (Ct. Rec. 107, Rule Decl., Ex. 4, at 24). Additionally, the Forest Service observed snowmobiling activity that conflicted with affected caribou in or near the IPNF in the recent past: in an email, a Forest Service Wildlife Biologist referred to a sighting of two caribou that were "bumped" out of the Abandon Creek area in March 2004 by snowmobiles in the area. (Id. at 6).

Keith Simpson, an expert on woodland caribou and the author of studies cited by the Forest Service and the FWS, states that "protecting caribou travel routes between southern areas and northern areas is critical to maintain the genetic linkage within the population. Small populations are vulnerable to inbreeding and loss of fitness if members of the population become isolated and cannot interbreed." (Ct. Rec. 108, 2d Simpson Decl., ¶ 3). Simpson notes that the USFS's current snowmobile plans allow for snowmobile use that will block movement between high quality habitat on the Selkirk Crest in Idaho and habitat in Canada. (Id. 917). He concludes that the measures currently in place "will harm individual caribou that may be displaced from [] habitat; and will not insure the survival of the population due to the failure to provide for movement between the southern and northern portions...