Sierra Club v. U.S. Fish and Wildlife Service
| Citation | 235 F.Supp.2d 1109 |
| Decision Date | 29 October 2002 |
| Docket Number | No. CIV-02-174-HU.,CIV-02-174-HU. |
| Parties | SIERRA CLUB; Siskiyou Regional Education Project; Klamath-Siskiyou Wildlands Center; Umpqua Watersheds, Inc; Cascadia Wildlands Project; Humane Society of the United States; Mountain Lion Foundation; the Fund for Animals; Animal Protection Institute; Al Thieme, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, Defendant, and Oregon Department of Fish and Wildlife, Defendant-Intervenor |
| Court | U.S. District Court — District of Oregon |
Michael W. Mosman, United States Attorney, District of Oregon, Jeffrey K. Handy, Assistant United States Attorney, Portland, OR, for Defendant Federal Fish and Wildlife Service.
Hardy Myers, Attorney General, Liani J. Reeves, Assistant Attorney General, Department of Justice, Salem, OR, for Defendant-Intervenor Oregon Department of Fish and Wildlife.
Plaintiffs Sierra Club and several other environmental and wildlife organizations, and individual plaintiff Al Thieme, bring this action against defendant United States Fish and Wildlife Service (FWS). As a result of an earlier ruling, the Oregon Department of Fish and Wildlife (ODFW) is an intervenor defendant. Plaintiffs challenge a study to be conducted by the ODFW, funded in part by the FWS, and described in more detail below. Plaintiffs bring three claims. The first two are brought under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370f. Plaintiffs contend that the FWS violated NEPA by failing to prepare an Environmental Impact Statement (EIS). Alternatively, plaintiffs contend that the FWS violated NEPA by preparing an inadequate Environmental Assessment (EA) upon which the FWS based its Finding of No Significant Impact (FONSI). Plaintiffs' third claim is brought under the Wildlife Restoration Act (WRA), also known as the Pittman-Robertson Act, 16 U.S.C. §§ 669-669k. There, plaintiffs contend that the study is not substantial in character and design as required by the WRA's implementing regulations. Plaintiffs seek declaratory and injunctive relief on these claims. All parties executed written consents for entry of final judgment by a magistrate judge. 28 U.S.C. § 636(c).
Plaintiffs, defendant, and defendant-intervenor separately move for summary judgment. I grant each motion in part and deny each motion in part.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir.1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987).
Changes in the elk population in Oregon have occurred in the past forty years. Admin. Rec. (AR) at 1004. In some Wildlife Management Units (WMUs), recruitment of juvenile elk into the yearling age class and populations has declined while in other parts of the state, elk populations have expanded with high recruitment into the yearling age class. Id. The decline of recruitment has been particularly noticeable in certain WMUs in northeast Oregon. Id. In those areas, recruitment has remained low and populations have not increased despite management strategies to prevent hunting of antlerless elk. Id. Problems created by the decrease in elk recruitment include decreased hunting and recreational opportunities, and reduced revenues to local communities dependent on hunting. Id.
In 1999, the Oregon Legislature approved the ODFW's biennial budget. Id. The legislature attached a "budget note" to the funding bill. Id. Although a budget note does not have the force of law, the ODFW considers budget notes to be "benchmarks" for legislators to assess the ODFW's response to issues important to the public. Id.
The budget note required the ODFW to conduct a study of the effects of bear and cougar populations on deer and elk herds in three areas. Id. The budget note instructed the ODFW to "establish harvest quotas" for the specified WMUs using the best management practices and latest scientific methods for bear and cougar. Id. The study is to include an annual report to the legislature describing the effects, over time, of increased bear and cougar mortality on deer and elk populations, and it must terminate on December 31, 2005, or sooner if the ODFW determines that its continuance would have a detrimental effect on cougar or bear populations. Id. As the EA explains, "[t]he presumption of this [budget] note was that carnivores were limiting recruitment of elk and mule deer in these units and that [harvest] quotas be set at high enough levels to reduce cougar and black bear populations." Id.
In response to the budget note, the ODFW proposed the study at issue in this case. The study is intended to assess three factors that may affect elk recruitment: elk nutritional condition as regulated by quality of habitat, winter severity, and cougar densities. Id. The objective is to "test models of elk recruitment that are functions of nutritional status and population density of elk, population density of cougar, and winter severity." Id. at 1005.
The ODFW's proposal called for a "manipulative study" involving several sites. Id. at 692-721. The EA identifies four study sites, two in southwest Oregon and two in northeast Oregon. Id. at 1015. The study areas in northeast Oregon are in the Sled Springs and Wenaha WMUs, and in southwest Oregon they are in the Dixon and Indigo WMUs. Id. One of the study sites in each geographical area is a control. Id.
The study begins with the capture of twenty adult cow elk in each study area in December 2001. Id. at 1016. The elk are captured with the aid of drugs administered remotely from a helicopter or by netgunning animals from a helicopter. Id. The ODFW biologists attach a radio collar to each animal and monitor their distributions. Id. The nutritional condition of the elk are to be measured in early winter and late spring. Id. The radio-collared elk are to be recaptured in March to assess their end-of-winter condition. Id.
In early winter 2002, the ODFW is to recapture each radio-collared cow elk to determine its lactation status, pregnancy status, and body condition. Id. A radio-marked sample of twenty cows per area are to be maintained throughout the study. Id. This pattern of monitoring condition and reproductive success of cows is to be repeated over five years and across all study areas. Id.
In winter 2001-2002, the ODFW is to capture and radio-collar cougars on winter ranges of elk by using dogs to track and tree the cougars. Id. All sub-adult females and adults captured are to be radio-collared. Id. Spotted kittens and sub-adult males are to be ear tagged. Id. Study areas are to be defined by the cumulative home ranges of the radio-collared elk in summer and winter. Id. The ODFW is to focus the capture of cougars on winter ranges and monitor distributions of cougars throughout the year. Id. A minimum estimate of cougar population size will be based on counts of radio-collared cougars within the study areas defined by the elk at the end of the second winter. Id. Serum samples are to be obtained from each cougar captured to assess past exposure to disease. Id. at 1016-17.
At the end of the second winter, e.g. in May and June 2003, the ODFW will remove half of the radio-collared female cougars, half of the radio-collared male cougars, and all unmarked sub-adult and adult cougars encountered by the ODFW, to reduce the cougar population by fifty percent. Id. at 1017. Authorized personnel will use hounds to tree the cougars, and then the personnel will kill them. Id.
In the fourth and fifth years of the study, the ODFW will monitor the cougar population in the study areas and remove cougars that may immigrate into the study areas to maintain a...
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