Or. Wild v. Constance Cummins

• Decision Date: 08 March 2017
• Docket Number: Case No. 1:15–cv–01360–CL
• Citation: 239 F.Supp.3d 1247
• Parties: OREGON WILD, an Oregon non-profit corporation; Friends of Living Oregon Waters, an Oregon non-profit corporation; and Western Watersheds Project, an Oregon non-profit corporation, Plaintiffs, v. CONSTANCE CUMMINS, Forest Supervisor, Fremont–Winema National Forests ; U.S. Forest Service, a federal agency; Laurie R. Sada, Field Supervisor, Klamath Falls Office, U.S. Fish & Wildlife Service; and U.S. Fish & Wildlife Service, a federal agency, Defendants, Ed Garrett Ranch, Inc., an Oregon Corporation; Philip Grohs, dba Grohs Ranch ; Matt Owens, an individual; Adam Owens, an individual; Kness Cattle, Inc., an Oregon Corporation; Steve Simmons, an individual; Holiday Ranches, Inc., a California Corporation; and C & A Vogt Community Property Trust, a California Trust, Intervenor–Defendants.
• Court: U.S. District Court — District of Oregon

239 F.Supp.3d 1247

OREGON WILD, an Oregon non-profit corporation; Friends of Living Oregon Waters, an Oregon non-profit corporation; and Western Watersheds Project, an Oregon non-profit corporation, Plaintiffs,

v.CONSTANCE CUMMINS, Forest Supervisor, Fremont–Winema National Forests ; U.S. Forest Service, a federal agency; Laurie R. Sada, Field Supervisor, Klamath Falls Office, U.S. Fish & Wildlife Service; and U.S. Fish & Wildlife Service, a federal agency, Defendants,Ed Garrett Ranch, Inc., an Oregon Corporation; Philip Grohs, dba Grohs Ranch ; Matt Owens, an individual; Adam Owens, an individual; Kness Cattle, Inc., an Oregon Corporation; Steve Simmons, an individual; Holiday Ranches, Inc., a California Corporation; and C & A Vogt Community Property Trust, a California Trust, Intervenor–Defendants.

Case No. 1:15–cv–01360–CL

United States District Court, D. Oregon.

Filed March 8, 2017

David H. Becker, Law Office of David H. Becker, LLC, Portland, OR, Lauren M. Rule, Elizabeth Hunter Zultoski, Advocates for the West, Portland, OR, for Plaintiff.

Sean E. Martin, U.S. Attorney's Office, Portland, OR, for Defendant.

Scott W. Horngren, Caroline Lobdell, Portland, OR, for Intervenor Defendant.

ORDER

MARK D. CLARKE, United States Magistrate Judge

Plaintiffs Oregon Wild, Friends of Living Oregon Waters, and Western Watersheds Project (collectively, "Plaintiffs") bring this suit against Defendants Constance Cummins, the United States Forest Service, Laurie R. Sada, and the United States Fish and Wildlife Service (collectively, "Defendants"). Ed Garrett Ranch, Inc.; Philip Grohs; Matt Owens; Adam Owens; Kness Cattle, Inc.; Steve Simmons; Holiday Ranches, Inc.; and C & A Vogt Community Property Trust (collectively, "Intervenor–Defendants") timely intervened. Plaintiffs allege Defendants violated and are violating the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), and the National Environmental Policy Act ("NEPA"). This case comes before the Court on Plaintiffs' motion for summary judgment (# 23), Defendants' cross-motion for summary judgment (# 32), and Intervenor-Defendants' cross-motion for summary judgment (# 35). For the reasons below, Defendants' and Intervenor-Defendants' motions are GRANTED and Plaintiffs' motion is DENIED.¹

FACTUAL BACKGROUND

Livestock have grazed on the Lost River and Sprague Watersheds, part of the Upper Klamath Basin, since the late 1800s. Much of the area is now incorporated into the Fremont–Winema National Forests. Congress requires the Forest Service "to consider the use of National Forest lands for grazing of livestock." Forest Guardians v. U.S. Forest Serv. , 329 F.3d 1089, 1097 (9th Cir. 2003) (citing 16 U.S.C. § 531 & 16 U.S.C. § 1604(e)(1) ). "The Forest Service manages livestock grazing on an allotment by issuing a grazing permit; an allotment management plan (AMP); and an annual operating ... instruction (AOI)." Or. Nat. Desert Ass'n v. Sabo , 854 F.Supp.2d 889, 902 (D. Or. 2012). Grazing permits authorize livestock use on federal lands and set limits on the allowable timing and amount of that use. Id. The Forest Service generally issues permits for ten-year periods. Id. AMPs are allotment-specific planning documents that:

(i) Prescribe [ ] 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; and

(ii) Describe [ ] the type, location, ownership, and general specifications for the range improvements in place or to be installed and maintained on the lands to meet the livestock grazing and other objectives of land management; and

(iii) Contain[ ] such other provisions relating to livestock grazing and other objectives as may be prescribed by the Chief, Forest Service, consistent with applicable law.

36 C.F.R. § 222.1(b)(2). As their name implies, AOIs are agreements issued annually by the Forest Service to permittees. Sabo , 854 F.Supp.2d at 902. The Forest Service uses AOIs to respond to changing grazing conditions such as drought, water quality, habitat restoration, or risks to threatened plants or animals. Id.

In 1988, the Lost River sucker and shortnose sucker, fishes endemic to the Klamath Basin of south-central Oregon and north-central California, were classified as endangered species under the ESA by the U.S. Fish and Wildlife Service ("FWS"). 53 Fed. Reg. 27130–01 (Jul. 18, 1988). In issuing its final rule, FWS noted both species' numbers and range had been reduced by more than 95 percent due to "[d]ams, draining of marshes, diversion of rivers and dredging of lakes...." Id. at 27130. Moreover, "hybridization with more common closely related species, competition and predation by exotic species, and insularization of remaining habitats" eminently threatened both species through continued loss of habitat. Id. "Further problems," the agency noted, "may have been caused by decreases in water quality that result from timber harvest, ... removal of riparian vegetation and livestock grazing." Id. at 27132. Accordingly, FWS labeled livestock grazing on Forest Service land located in the Upper Klamath Lake and Clear Lake Reservoir watersheds as "[f]ederal actions that may affect the shortnose sucker and Lost River sucker...." Id. at 27133.

Both sucker species spend the majority of their time in "lake environments." FWS 6762. In late winter and early spring of each year, however, both species migrate to tributaries to spawn. After hatching, the larvae "drift" downstream from the tributaries to the lakes; larvae typically "spend little time in rivers" before drifting back into their open-water habitats. FWS 6773. But because the larvae drift downstream after hatching, adequate water flow within tributaries is critical to survival, and insufficient flow can, among other things, prevent access to breeding habitat, cause the species' eggs to dry out, and strand adults suckers who have already spawned. Consistent, and sufficient, water flow is largely an uncertainty in the Upper Klamath Basin due to the area's environment, which experiences warm, dry summers and cold, wet winters; tributaries often dry out or retain little water come summer.

To make matters more uncertain for suckers, the Upper Klamath Basin has experienced significant drought conditions over the last few years; the water levels of Gerber and Clear Lake Reservoirs, two bodies of water with high concentrations of both sucker species, were significantly below average prior to summer 2014. The water levels were lower still prior to summer 2015. In addition, summer 2014 streamflow in the Basin was estimated to be merely 6 to 47 percent average flow. The federal government declared a severe drought in the Basin. The species are, however, "adapted to weather periodic droughts," FWS 6794, though the potential for increased droughts in the Upper Klamath Basin resulting from climate change appears to be a significant variable going forward, having the potential to place a larger strain on both sucker species, with decreased water "flows during late spring, summer, and early fall...." P 7210.

Plaintiffs have challenged the Forest Service's decision to continue to approve livestock grazing on eight allotments they contend "contain designated critical habitat for shortnose suckers and/or are upstream of habitat for both species." Compl. ¶ 2 [ECF No. 1.]. The eight allotments are the Arkansas, Yocum Valley, Fort Springs, Horesfly, Pitchlog, Privy Springs, Yainax Butte, and Wildhorse allotments. Plaintiffs argue the combination of grazing with man-made water diversions and impoundments found throughout the Fremont-Winema National Forests, as well as on private land, "has a significant effect on suckers, degrading their instream habitat and reducing water levels in the reservoirs." Compl. ¶ 2.

A. Endangered Species Act Consultation

Because of their ESA protection, the Forest Service must insure their actions, including the granting of permits for grazing, are "not likely to jeopardize the continued existence of" suckers "or result in the destruction or adverse modification of [suckers'] habitat." 16 U.S.C. § 1536(a)(2). The Forest Service fulfills this obligation by consulting with a designated wildlife agency prior to undertaking any action that may affect suckers or their critical habitat. The ESA and its implementing regulations provide a framework for this interagency consultation. First, the Forest Service, as the acting agency, prepares a biological assessment ("BA"), which evaluates potential effects of the proposed action on suckers or their critical habitat. If the Forest Service determines that the effects of the proposed action are unlikely to adversely affect suckers or their critical habitat, and the consulting agency agrees, the consultation process concludes without any additional action required. This is termed an informal consultation. By contrast, a "formal consultation" is required where a proposed action is "likely to adversely affect" suckers or their critical habitat. 50 C.F.R. § 402.14(a)-(c). Formal consultation requires a formal biological opinion ("BiOp") from the consulting agency to determine "whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of [suckers] in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).

On multiple occasions, the Forest Service consulted FWS regarding the effects of authorized grazing on suckers and their critical habitat. In 2007, the Forest Service determined that grazing was likely to adversely affect suckers on five allotments at issue here: Yocum Valley, Pitchlog, Wildhorse, Arkansas, and Yainax Butte. Accordingly, FWS prepared a BiOp assessing the matter. In its BiOp, FWS concluded that grazing on the five allotments was "likely to have some direct and indirect adverse effects" to shortnose suckers. FWS 2305. Potential adverse...