Guardians v. U.S. Dep't of Agric. Animal & Plant Health Inspection Serv.-Wildlife Servs.

• Docket Number: 3:21-cv-00508-LRH-CLB
• Decision Date: 28 August 2023
• Parties: WILDEARTH GUARDIANS and WESTERN WATERSHEDS PROJECT, Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE ANIMAL AND PLANT HEALTH INSPECTION SERVICES-WILDLIFE SERVICES, U.S. FOREST SERVICE, and BUREAU OF LAND MANAGEMENT, Defendants.
• Court: U.S. District Court — District of Nevada

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WILDEARTH GUARDIANS and WESTERN WATERSHEDS PROJECT, Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE ANIMAL AND PLANT HEALTH INSPECTION SERVICES-WILDLIFE SERVICES, U.S. FOREST SERVICE, and BUREAU OF LAND MANAGEMENT, Defendants.

No. 3:21-cv-00508-LRH-CLB

United States District Court, D. Nevada

August 28, 2023

ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiffs WildEarth Guardians and Western Watersheds Project's (Plaintiffs) motion for summary judgment (ECF No. 25), Defendants Wildlife Services, U.S Forest Service, and Bureau of Land Management's (collectively Wildlife Services) cross-motion for summary judgment (ECF No. 33), and Plaintiffs' motion to consider an extra-record declaration (ECF No. 26). As explained below the Court denies Plaintiffs' motion for summary judgment and motion to consider an extra-record declaration, and grants Wildlife Services' crossmotion for summary judgment.

I. BACKGROUND

Wildlife Services is a federal program that helps resolve conflicts that arise between humans and wildlife throughout the state of Nevada. For over eighty years, the Nevada branch of Wildlife Services has employed predator damage management (PDM) to resolve threats to public health and safety, prevent damage to private property, and prevent the loss of livestock or natural resources. WS017062; WS017064; WS017070. Wildlife Services acts only upon the request for assistance from “government, tribal, commercial, organizational, or private” entities.^[1] WS017063.

For several years, Wildlife Services responded to requests for assistance in wilderness and wilderness study areas only if the requests were to protect human health and safety. WS0005-06; WS017214. There is, however, a continuing need to respond to other requests as Wildlife Services did in the past because some portions of the wilderness areas in Nevada have historic grazing allotments. WS017074-75; WS017731. This led Wildlife Services, and cooperating agencies such as the Bureau of Land Management (BLM) and the Forest Service, to prepare a new environmental assessment (EA) to consider alternatives to its then current approach. WS017731.

The proposed EA was subjected to extensive public comment, revised, and then issued in final version in July 2020. WS017042-730. In the EA, Wildlife Services thoroughly reviewed five alternative approaches to PDM in Nevada. One of the proposed alternatives included responding to requests for assistance in wilderness and wilderness study areas by using a limited set of PDM methods as Wildlife Services had done in the past. WS017734. Wildlife Services ultimately adopted this alternative, finding that it would not have a significant impact on the environment. WS017748.

II. LEGAL STANDARD

The Administrative Procedure Act governs judicial review of alleged violations of the National Environmental Policy Act (NEPA), Or. Nat'l Res. Council Fund v. Brong, 492 F.3d 1120, 1124-25 (9th Cir. 2007), and requires a court to “hold unlawful and set aside agency action” if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A); see also Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001). An agency's action is considered “arbitrary and capricious” when

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

350 Mont. v. Haaland, 29 F.4th 1158, 1168 (9th Cir. 2022) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). When reviewing agency action under this standard, a court “may not substitute [its] judgment for that of the agency,” and must limit its review to “the grounds that the agency invoked when it took the action.” Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., 33 F.4th 1202, 1216 (9th Cir. 2022) (internal quotations omitted). “This standard is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (internal quotation marks omitted).

III. DISCUSSION

Plaintiffs contend that Wildlife Services (1) violated NEPA; (2) violated the Wilderness Act and related Nevada statutes; and (3) exceeded their statutory authority. As explained below, these arguments do not have merit.

A. Wildlife Services prepared an EA authorizing PDM throughout Nevada that satisfies NEPA.

Plaintiffs first argue that Wildlife Services violated NEPA. NEPA is a procedural statute that requires “federal agencies to consider the environmental impact of any major federal action.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 89 (1983). “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Generally, NEPA's process requires an agency to prepare an environmental impact statement (EIS) for all “major Federal actions significantly affecting the quality of the human environment” to ensure that that the agency took a “hard look” at the environmental impacts of its action and to ensure that the public played a role in the decisionmaking process and the implementation of the decision. 42 U.S.C. § 4332(C); WildEarth Guardians v. Mont. Snowmobile Ass'n, 790 F.3d 920, 924 (9th Cir. 2015); Nat'l Parks & Conservation Ass'n, 241 F.3d at 730.

“If an agency is unsure whether its proposed action will have significant environmental impacts, it may first prepare an EA. An EA is a ‘concise, public document' providing ‘sufficient evidence and analysis' for the agency to determine ‘whether to prepare an environmental impact statement.'” Environmental Def. Ctr. v. Bureau of Ocean Energy Management, 36 F.4th 850, 872 (9th Cir. 2022) (quoting 40 C.F.R. § 1508.9(a)(1)). An EA does not substitute or replace an EIS; it helps determine if an EIS is warranted. Id. If an agency prepares an EA and determines that the proposed action will not have significant environmental effects, the agency can issue a finding of no significant impact, which ends the NEPA process. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238-39 (9th Cir. 2005).

Here, Plaintiffs argue that Wildlife Services violated NEPA because (1) a state-level analysis of the effects of PDM was insufficient to satisfy NEPA requirements; (2) PDM will have a significant impact on the environment, thus requiring the creation of an EIS before it is authorized; and (3) BLM and the Forest Service needed to prepare new NEPA analyses to authorize PDM through annual work plans (AWPs).

1. Wildlife Services reasonably conducted a state-level analysis and was not required to conduct a site-specific analysis.

“[A]n agency has the discretion to determine the physical scope used for measuring environmental impacts.” Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002); see also Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976). The agency's choice must be a reasoned decision and cannot be arbitrary. Idaho Sporting Congress, 305 F.3d at 973. Here, Wildlife Services determined that a statewide analysis was appropriate for measuring the environmental impacts that PDM would have in Nevada. When possible, Wildlife Services used site-specific data to analyze the effects of PDM. As the EA demonstrates, this was a reasoned decision and was not arbitrary for several reasons.

First, Wildlife Services operates its PDM activities throughout the entire state of Nevada. WS017043; WS017095. At any given time, Wildlife Services may be called upon to assist with predator management in any part of the state. WS017094-95. A statewide analysis allowed Wildlife Services to create an exhaustive analysis that could “apply to any action that may occur in any locale and at any time.” WS017095. It also “provide[d] a more comprehensive and less redundant analysis” than smaller EAs would have and allowed for “the effective analysis of potential cumulative impacts.” WS017095. Further, it allowed for the use of “data and reports from state and federal wildlife management agencies, which are typically on a state-wide basis.” Id. The scope of the EA and the ultimate decision to conduct a statewide analysis was well-considered and reasonable.

Second, Wildlife Services reached reasonable conclusions based on the best data and peer-reviewed literature available. See WS017101-02; WS017582. For example, Wildlife Services determined that estimating the statewide population of coyotes and other species was appropriate and that there would not be a significant impact on their populations. Plaintiffs argue that this decision was arbitrary because Wildlife Services should have generated site-specific data for the species. The EA and available data, however, undermine this argument. The nationwide coyote population has increased in abundance and its distribution has grown wider over the past several decades. WS017305. In Nevada specifically, the coyote population is very healthy and has led Nevada to classify coyotes as an unprotected mammal, allowing them to be taken year-round without a license. WS017305-06. As a result of this classification, Nevada does not track or attempt to estimate coyote populations or densities. Id.

Given the lack of Nevada specific data, Wildlife Services conducted a coyote population impact analysis based on the peer-reviewed literature. W...