NEEDREPLACE, Case No. 1:12 CV–469 AWT.

CourtNew York District Court
Writing for the CourtA. WALLACE TASHIMA
Citation7 F.Supp.3d 1085
Decision Date25 March 2014
Docket NumberCase No. 1:12 CV–469 AWT.
PartiesIDAHO WOOL GROWERS ASSOCIATION; American Sheep Industry Association; Public Lands Council; Wyoming Wool Growers Association; Carlson Company, Inc.; Shirts Brothers Sheep; and Colorado Wool Growers Association, Plaintiffs, v. Tom VILSACK, in his official capacity as Secretary of Agriculture; Tom Tidwell, in his official capacity as the United States Forest Service Chief; Keith Lannom, in his official capacity as the Payette National Forest, Forest Supervisor; and United States Forest Service, Defendants, The Wilderness Society; Western Watersheds Project; and Hells Canyon Preservation Council, Intervenors–Defendants.

7 F.Supp.3d 1085

IDAHO WOOL GROWERS ASSOCIATION; American Sheep Industry Association; Public Lands Council; Wyoming Wool Growers Association; Carlson Company, Inc.; Shirts Brothers Sheep; and Colorado Wool Growers Association, Plaintiffs,
v.
Tom VILSACK, in his official capacity as Secretary of Agriculture; Tom Tidwell, in his official capacity as the United States Forest Service Chief; Keith Lannom, in his official capacity as the Payette National Forest, Forest Supervisor; and United States Forest Service, Defendants,
The Wilderness Society; Western Watersheds Project; and Hells Canyon Preservation Council, Intervenors–Defendants.

Case No. 1:12 CV–469 AWT.

United States District Court, D. Idaho.

Signed March 25, 2014


Plaintiffs' motion denied; intervenors-defendants' motions granted.

See also 637 F.Supp.2d 868.

[7 F.Supp.3d 1088]

Murray D. Feldman, William Gerry Myers, III, Holland & Hart, Boise, ID, for Plaintiffs.

David Bernard Glazer, U.S. Department of Justice, San Francisco, CA, Joshua David Hurwit, United States Attorney's Office, District of Idaho, Boise, ID, for Defendants.


Jennifer R. Schemm, La Grande, OR, Lauren M. Rule, Advocates for the West, Boise, ID, for Intervenors Defendants.
ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

A. WALLACE TASHIMA, United States Circuit Judge.

Now pending before the court are the parties' cross-motions for summary judgment, which have been fully briefed and argued and, on March 17, 2014, taken under submission. For the reasons set forth below, Defendants' and Intervenors–Defendants' motions are granted. Plaintiffs' motion is denied.

I. Background

In 2003, Defendants completed a revision of the 1988 Payette National Forest Land and Resource Management Plan. FS005768 [ROD at 1]. The Intermountain Regional Forester received a number of appeals of that revision, asserting that it failed adequately to address the risk of disease transmission between bighorn sheep and domestic sheep, and thus to protect bighorn sheep populations. Id. The Chief of the Forest Service agreed and instructed the Regional Forester to “reanalyze the potential impacts of domestic sheep grazing on bighorn sheep viability.” Id.

The 2010 Final Supplemental Environmental Impact Statement (FSEIS) and Record of Decision (ROD) are the product of that remand. In 2008, the Forest Service released a Draft SEIS that considered the effects on bighorn sheep viability of various wildlife management alternatives. FS017430–575. In 2010, following notice and comment, Defendants released the FSEIS and ROD. FS005762–98 (ROD); FS005028–5761 (FSEIS). Those documents formalized Defendants' decision to adopt an alternative (“Alternative 7O modified”) that reduces domestic sheep grazing on the Payette National Forest (Payette) by approximately 70%. FS005781 [ROD at 14]. Defendants concluded that it is necessary to limit domestic sheep grazing to protect bighorn sheep against the risk of disease transmission from domestic sheep. FS005777–83 [ROD at 10–16].

Plaintiffs brought suit for declaratory and injunctive relief under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370h, challenging the adequacy of the FSEIS and ROD. Plaintiffs now move for summary judgment, and Defendants and Intervenors–Defendants cross-move.

II. Legal Standard

Summary judgment is proper where there is no genuine issue of material fact

[7 F.Supp.3d 1089]

and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

“The Administrative Procedure Act (‘APA’) provides authority for the court's review of decisions under NEPA....” N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1152 (9th Cir.2008). “Under the APA, the district court may only set aside agency actions that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). A decision is arbitrary and capricious

only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.

Id. at 1152–53 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc)). “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Indeed, “[a] court generally must be at its most deferential when reviewing scientific judgments and technical analyses within the agency's expertise under NEPA.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir.2012) (internal quotation marks omitted).

III. Merits

NEPA is a procedural statute; “it does not dictate the substantive results of agency decision making.” Id. Rather, “[i]ts purpose is to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their proposed actions before deciding to proceed.” Id. “[T]he agency must, at a minimum, support its conclusions with studies that the agency deems reliable.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir.2011) (citing Lands Council, 537 F.3d at 994). “[T]he agency must ‘explain the conclusions it has drawn from its chosen methodology, and the reasons it considered the underlying evidence to be reliable.’ ” Id. (quoting Lands Council, 537 F.3d at 994). “An agency will have acted arbitrarily and capriciously only when ‘the record plainly demonstrates that [the agency] made a clear error in judgment in concluding that a project meets the requirements' of NEPA.” Weldon, 697 F.3d at 1043 (alteration in original) (quoting Lands Council, 537 F.3d at 994).

Plaintiffs contend that Defendants violated NEPA in three ways: by (A) failing adequately to support their assumption that domestic sheep transmit deadly bacteria to bighorn sheep; (B) failing to take a “hard look” at potential risk factors to bighorn sheep viability other than domestic sheep grazing; and (C) using inadequate data and models. Plaintiffs also contend that Defendants (D) violated this Court's previous orders by relying on the findings and conclusions of a committee formed in violation of the Federal Advisory Committee Act (FACA).1 The court considers each argument seriatim.

[7 F.Supp.3d 1090]

A. Failure to support disease transmission assumption

Plaintiffs first argue that Defendants failed adequately to support their assumption that domestic sheep transmit a deadly pathogen to bighorn sheep. Plaintiffs say that the assumption lacks adequate support for two reasons: (1) it failed to account for expert agency comments, in violation of 40 C.F.R. §§ 1500.1(b), 1502.24; and (2) it failed properly to address the relevance of unavailable or incomplete scientific information, in violation of 40 C.F.R. §§ 1502.22, 1500.2(b).

1. Failure to consider relevant expert agency comments

40 C.F.R. § 1500.1(b) provides that “expert agency comments” are one of a few factors that are “essential to implementing NEPA.” 40 C.F.R. § 1500.1(b); see also id. § 1502.24 (“Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements.”). Plaintiffs contend that Defendants violated this requirement by failing to consider input from the Agricultural Research Service (ARS), the in-house research agency of the U.S. Department of Agriculture. Plaintiffs focus on the allegedly overlooked input of two ARS scientists in particular, Drs. Knowles and Highland. Plaintiffs argue that Defendants failed to solicit input from the ARS, Knowles, or Highland; ignored a paper (the Knowles and Rink paper) casting doubt on the link between domestic sheep grazing and bighorn health issues; and ignored Knowles' criticism of a paper (the Lawrence, et al., paper) that found such a link. Defendants respond, first, that the ARS, Knowles, and Highland are not relevant “experts,” because they have no expertise in “wildlife management.” Second, they argue that they did account for opposing viewpoints, including Knowles'.

NEPA case law demands that courts give deference to agencies' reasonable selection of viewpoints among competing experts. See Marsh, 490 U.S. at 378, 109 S.Ct. 1851; Weldon, 697 F.3d at 1051. The evidence demonstrating that disease transmission occurs between domestic and bighorn sheep is by no means conclusive. See FS005778 [ROD at 11] (acknowledging this uncertainty). But nothing in the record suggests that it was unreasonable for Defendants to have concluded that that extensive (albeit developing) body of evidence “indicate[s] that contact of wild bighorn populations with domestic sheep does pose a risk of disease transmission and die-offs in the free-ranging bighorn populations.” FS005092 [FSEIS at 3–11]; see also FS005778 [ROD at 11] (concluding despite the “scientific uncertainty” that “the majority of literature” supports the plausibility of disease transmission). To the extent that Plaintiffs merely express an opposing position in that debate, Defendants did not act arbitrarily and capriciously by rejecting it.2 See

[7 F.Supp.3d 1091]

N. Idaho Cmty. Action Network, 545 F.3d at 1152–53 (explaining that an agency decision is arbitrary and capricious only if, among other things, it “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise”).

Plaintiffs' better argument is that Defendants simply consulted the wrong kinds of experts,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT