Or. Wild v. U.S. Forest Serv.

• Decision Date: 17 June 2016
• Docket Number: Case No. 1:15-cv-00895-CL
• Citation: 193 F.Supp.3d 1156
• Parties: OREGON WILD, an Oregon non-profit corporation; Friends of Living Oregon Waters, an Oregon non-profit corporation; and Western Watersheds Project, an Idaho non-profit corporation; Plaintiffs; v. U.S. FOREST SERVICE, a federal agency; and U.S. Fish & Wildlife Service, a federal agency; Defendants; and JRS Properties III, LP., an Oregon registered foreign limited partnership; Defendant- Intervenor, and Withers Ranch, Inc. ; Bar-2 Livestock, LLC; Brenda Morgan and James R. Baldwin, d.b.a. Morgan Ranch; J-Spear Ranch Co.; Obenchain Cattle Co.; and O'Leary Ranch, Inc., Defendant-Intervenors.
• Court: U.S. District Court — District of Oregon

193 F.Supp.3d 1156

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

v. U.S. FOREST SERVICE, a federal agency; and U.S. Fish & Wildlife Service, a federal agency; Defendants;andJRS Properties III, LP., an Oregon registered foreign limited partnership; Defendant- Intervenor,andWithers Ranch, Inc. ; Bar-2 Livestock, LLC; Brenda Morgan and James R. Baldwin, d.b.a. Morgan Ranch; J-Spear Ranch Co.; Obenchain Cattle Co.; and O'Leary Ranch, Inc., Defendant-Intervenors.

Case No. 1:15-cv-00895-CL

United States District Court, D. Oregon, Medford Division.

Signed June 17, 2016

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

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

Scott W. Horngren, Caroline Lobdell, Portland, OR, for Defendant-Intervenors.

ORDER

MARK D. CLARKE, United States Magistrate Judge

Plaintiffs are non-profit environmental organizations. They assert Defendants' continued authorization of livestock grazing on allotments on and near the Sycan River is arbitrary; capricious; and contrary to the Endangered Species Act (ESA), the Clean Water Act (CWA), the National Forest Management Act (NFMA), and the Wild and Scenic Rivers Act (WSRA). Defendant-Intervenors are ranchers permitted to graze cattle on the at-issue land.

Pending before the Court are four motions. Plaintiffs, Defendants, and the Withers Ranch Intervenors move (#45, #58, #59) for summary judgment in their favor on all of Plaintiffs' claims. Intervenor JSR Properties' motion (#60) for summary judgment is limited in scope to Plaintiffs' ESA claim. For the following reasons, Defendants' and Defendant-Intervenors' motions (#58, #59, #60) are GRANTED and Plaintiffs' motion (#45) is DENIED.

BACKGROUND

The Sycan and Sprague Rivers originate on the eastern edge of the Klamath Basin in south central Oregon. FWS AR 14-17. They flow through the Fremont-Winema National Forest before entering private lands in the valley. FWS AR 15-17. In 1988, Congress designated a segment of the Sycan River as "scenic" under the Wild and Scenic Rivers Act (WSRA). 16 U.S.C. § 1274(a)(103). The U.S. Forest Service adopted the Sycan Wild and Scenic River Management Plan to outline its strategy "to protect and enhance" the river's values. 16 U.S.C. § 1281(a) ; SUPP POL 1-7. It incorporated the River Plan, along with state water quality standards and an Inland Native Fish Strategy ("INFISH"), into its Forest Plans. POL 1926, 2669-83.

Livestock have grazed in the area since the 1860s. SUPP POL 23. 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. § 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)." Oregon Natural 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.

A distinct population segment of bull trout, called Klamath River bull trout, were once widely distributed in the region's waterways. 63 Fed.Reg. 31647-01 (June 10, 1998). However, over the years, their distribution and numbers declined due, in part, to water diversion, habitat fragmentation, poor water quality, and the introduction of non-native species. Id. In 1998, Klamath River bull trout were listed as a "threatened species" under the Endangered Species Act (ESA), meaning the population is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." FWS 2341; 16 U.S.C. § 1532(20).

Because of their "threatened" status, Klamath River bull trout receive certain protections under the ESA. Federal agencies must insure their actions, including the granting of permits, are "not likely to jeopardize the continued existence of' listed threatened species "or result in the destruction or adverse modification of [the species' critical] habitat[.]" 16 U.S.C. § 1536(a)(2). Agencies fulfill this obligation by consulting with a designated wildlife agency before engaging in any action that may affect a listed species or its critical habitat. The ESA and its implementing regulations set forth a framework for this interagency consultation. First, the acting agency must prepare a "biological assessment" (BA) to "evaluate the potential effects of the action on listed ... species and designated ... critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action...." 50 C.F.R. § 402.12(a). If it determines adverse effects are unlikely, and the consulting agency agrees, then "the consultation process is terminated, and no further action is necessary." 50 C.F.R. § 402.13(a). If it determine adverse effects are likely, "formal consultation" with a consulting agency is required. 50 C.F.R. § 402.14(a)-(c). During the formal consultation process, the consulting agency writes a biological opinion to determine "whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).

The Forest Service has conducted several ESA consultations with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of authorized grazing on Klamath River bull trout. First, in 1998, the Forest Service and FWS evaluated the effects of timber salvage, grazing, and hydropower activities on bull trout. FWS 2300-01, 2317. At that time, all streams occupied by Klamath River bull trout were closed to grazing except for the North Fork of the Sprague River. FWS 2315. FWS issued a biological opinion concluding that grazing activities were likely to adversely affect bull trout, especially in the North Fork of the Sprague River watershed, but were not likely to jeopardize the continued existence of the population because of restoration and monitoring effects. FWS 2300-16.

FWS anticipated that grazing would "take"¹ bull trout by causing "degraded habitat conditions, habitat fragmentation, and additional environmental disturbance such as reduction of water quantity or quality, aquatic and streamside vegetation, cover, and stream roughness." FWS 2317.

In 2000, FWS issued a biological opinion on grazing activities within the Silver Creek Pasture of the Fremont National Forest. FWS 2337. It concurred with the Forest Service's assessment that grazing was likely to adversely affect bull trout within the Coyote Creek drainage "by impacting riparian areas and slowing their rate of recovery as compared to no grazing." FWS 2337. However, FWS ultimately concluded that the proposed grazing was not likely to jeopardize the continued existence of Klamath River bull trout. FWS 2351. Among other mitigating factors, the FWS noted that occupied bull trout streams would be excluded from grazing, and the Forest Service would continue restoration and recovery efforts. FWS 2351. To reduce foreseen impacts, FWS imposed multiple restrictions on grazing including monitoring and limits on grazing periods. FWS 2353-55. Because bull trout had no designated critical habitat at the time, FWS concluded none would be affected. FWS 2351.

In 2005, FWS designated critical habitat for the Klamath River bull trout. FWS 226. In 2007, the Forest Service completed BAs on proposals to authorize grazing in the Sprague and Lost River watersheds. FWS 1041. It concluded that grazing would have only "negligible and insignificant" effects on bull trout and its critical habitat due, in part, to its use of "adaptive management based on monitoring[.]" FWS 761-66. FWS concurred. FWS 1041-47.

In 2010, FWS expanded the critical habitat deemed essential to bull trout recovery. FWS 1165-66, 1171, 2420-26, 2430. In pertinent part, it stated:

[I]n the Klamath Basin Recovery Unit where threats to bull trout are greatest, we are designating all habitat known to be occupied at the time of listing that contains the physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and we are also designating a substantial proportion of unoccupied habitat outside of the geographical area occupied by the species at the time of listing that has been determined to be essential for bull trout conservation. Our primary consideration for designating critical habitat for occupied areas was to protect species strongholds for spawning and rearing and [foraging, migration, and

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