Southern Utah Wilderness Alliance v. Thompson

• Decision Date: 15 January 1993
• Docket Number: Civ. No. 92-C-0052A.
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, the Wilderness Society, Sharon and David Hatfield, Tina Marie Ekker, and the Humane Society of the United States, Plaintiffs, v. Hugh THOMPSON, Forest Supervisor for the Dixie National Forest, Tobias Martinez, Forest Supervisor for the Fishlake National Forest, Gray Reynolds, Regional Forester for the Intermountain Region, Marvin Turner, District Ranger for the Teasdale Ranger District of the Dixie National Forest, Ronald Wilson, District Ranger for the Cedar City Ranger District of the Dixie National Forest, and the United States Forest Service, Defendants.
• Court: U.S. District Court — District of Utah

811 F. Supp. 635

SOUTHERN UTAH WILDERNESS ALLIANCE, the Wilderness Society, Sharon and David Hatfield, Tina Marie Ekker, and the Humane Society of the United States, Plaintiffs, v. Hugh THOMPSON, Forest Supervisor for the Dixie National Forest, Tobias Martinez, Forest Supervisor for the Fishlake National Forest, Gray Reynolds, Regional Forester for the Intermountain Region, Marvin Turner, District Ranger for the Teasdale Ranger District of the Dixie National Forest, Ronald Wilson, District Ranger for the Cedar City Ranger District of the Dixie National Forest, and the United States Forest Service, Defendants.

Civ. No. 92-C-0052A.

United States District Court, D.Utah, C.D.

January 15, 1993.

COPYRIGHT MATERIAL OMITTED

Stephen Koteff, Southern Utah Wilderness Alliance, Salt Lake City, UT, for plaintiffs.

Stephen Roth, Asst. U.S. Atty., Salt Lake City, UT, for defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

ALDON J. ANDERSON, Senior District Judge.

This matter came before the court on Plaintiffs' Motion for a Preliminary Injunction. The court heard oral argument on November 5, 1992, and took the matter under advisement. Stephen Koteff of the Southern Utah Wilderness Association, Salt Lake City, Utah, argued on behalf of Plaintiffs. Stephen Roth, Assistant United States Attorney, represented Defendants. The court, having reviewed the voluminous record and the applicable law, hereby denies Plaintiffs' Motion for a Preliminary Injunction.

I. BACKGROUND

The Dixie and Fishlake National Forests support numerous types of wildlife and serve as grazing areas for livestock. Historically, Animal Damage Management ("ADM") decisions in these forests have led to conflicts between the supporters of the wildlife and of the domestic populations, especially because the ADMs authorize Animal Damage Control ("ADC"), which involves the control and reduction of predator species population, such as cougars and coyotes, through non-lethal and lethal control methods. Despite these conflicts, ADC programs have been conducted successfully since 1973, excluding 1991 and 1992.

Various statutes, regulations, and plans guide the implementation of ADC programs. Federal authority for ADM programs emanates from the Animal Damage Control Act of 1931, 7 U.S.C. §§ 426 to 426b (the "ADCA"), which directs the Secretary of Agriculture to "conduct campaigns for the destruction" of animals injurious to agriculture and livestock on the national forest and the public domain. Authority to conduct ADC programs currently resides with the Animal and Plant Health Inspection Service — Animal Damage Control ("APHIS — ADC").

The National Forest Management Act, 16 U.S.C. § 1604(i) (1988) ("NFMA"), authorizes the Forest Service to manage land designated as National Forests and assess the environmental impact of ADC programs. The Forest Service Manual ("FSM") prepared under authority of the NFMA provides further guidance for implementation of ADM programs. In the FSM, the forest service recognizes the authority of the APHIS — ADC to conduct animal damage management services. The FSM requires both the forest service and the APHIS — ADC to reduce the damage done to wildlife by predation and to conduct ADM activities when predation causes or threatens to cause damage to livestock. FSM §§ 2650.3(9), 2650.1(4).

This shared responsibility and coordinated effort is memorialized in a Memorandum of Understanding ("MOU") prepared at the national level between the forest service and the APHIS — ADC. The MOU details the respective authority of each division. Generally, the APHIS — ADC is responsible for documenting predation loss and conducting the actual predation control pursuant to the ADCA, and the Forest Service is responsible for managing the land under its jurisdiction and for insuring compliance with environmental statutes.

Notwithstanding federal jurisdiction in this area, the states retain a significant amount of authority. State law authorizes ranchers with livestock on national forest allotments to protect their herds from predation. State law plays an important role in predator control in other ways. For example, federal statutes provide that state civil and criminal jurisdiction extends to forest reserves. 16 U.S.C. § 480 (1988). This jurisdiction includes the application of state wildlife and game laws to hunting, trapping, and fishing activities on the national forests. See also 16 U.S.C. § 528 (1988); 43 U.S.C. §§ 1701, 1732(b) (1988) (Federal Land Policy and Management Act of 1976).

Under its authority, the State of Utah has protected two predators: (1) cougars and (2) black bears. The state, however, has not protected coyotes, but rather regulates coyotes as a predatory animal. Utah Code Ann. § 4-23-3 (1988). Coyote regulation extends to federal lands, including national forest land. Utah Code Ann. § 4-23-10 (1988). Because coyotes are a non-protected predatory animal, ranchers suffering predation loss may practice predator control methods against them. Consequently, because of this overlapping authority and of the possible conflict in state and federal predator control programs, both the Dixie and the Fishlake National Forest Plans call for cooperation between the state and federal agencies responsible for predator control.

In establishing an ADC program, the forest service is subject to other statutory constraints. First, as provided in the MOU, the forest service must comply with the National Environmental Policy Act, 42 U.S.C. § 4321-4347 (1988) ("NEPA"), by analyzing the environmental effects of a proposed ADC program. If the program involves serious environmental impact, the agency must prepare an Environmental Impact Statement ("EIS"). If, however, the agency determines that the proposed program will involve minimal environmental impact, referred to as a Decision Notice and Finding of No Significant Injury ("FONSI"), the agency fulfills its NEPA mandate by preparing a less comprehensive environmental assessment ("EA").

In addition to its environmental obligations, the Forest Service must comply with its forest management obligations under the NFMA and the Administrative Procedures Act, 5 U.S.C. § 706(2)(A) (1988) ("APA"). The NFMA requires the forest service to limit management decisions to those consistent with its forest plan. The APA requires that the forest service base its decision on the administrative record that it has compiled. Any agency decision coming under the APA must not be arbitrary or capricious or in violation of other applicable law, in this case NEPA or the NFMA.

On April 25, 1991, Thompson, the supervisor of the Dixie National Forest, issued a FONSI and EA, which authorized a full range of non-lethal and lethal control methods, including aerial gunning, a type of lethal predator control in which predators are tracked and shot from a helicopter. The decision requires ranchers to use a combination of the following non-lethal control measures: using of guard dogs; changing bed grounds daily; having the herder camp with the herd; disposing of dead sheep at least one-half mile away from the grazing band; using more than one herder with the band; avoiding areas where historically predation has been high; using experienced herders; and using more and better quality dogs. Under the EA, the rancher must diligently apply non-lethal control measures before the forest service will authorize lethal control. When non-lethal measures prove ineffective, the forest supervisor then has available a full range of lethal control measures, including leghold traps and snares, hunting by calling and shooting, denning,¹ the use of hunting dogs, M-44s,² and the most objectionable measure, aerial gunning.³

Six separate appeals of Thompson's decision were filed with Regional Forester pursuant to 36 C.F.R. § 217 (1992). These appeals were consolidated, and on September 16, 1991, Gray F. Reynolds, Regional Forester, denied the appeals, affirming the forest supervisor on all points. Reynolds's decision, having the force of a final decision of the Department of Agriculture, prompted Plaintiffs to appeal to this court.

On January 15, 1992, three public interest groups, the Southern Utah Wilderness Alliance, The Wilderness Society, and the Humane Society of America; and three private individuals, Sharon and David Hatfield and Tina Marie Ekker hereinafter collectively referred to as Plaintiffs, brought suit against the forest service, alleging that the proposed Dixie ADC program violates the APA, NEPA, and the NFMA. Plaintiffs seek injunctive and declaratory relief.

On January 17, 1992, the parties agreed by stipulation that the forest service would refrain from implementing the Dixie ADC plan until the court ruled on the merits of Plaintiffs' claims. Under the terms of the stipulation, the forest service agreed to refrain "from implementing, or causing or allowing to be implemented, any lethal predator control measures to reduce predation on permittee livestock in the Dixie National Forest, except with written leave of the Court." Stipulation at 4.

Similar events occurred with respect to ADC on the Fishlake National Forest. On October 1, 1991, James A. Winnat, state director of the APHIS — ADC, wrote to Tobias A. Martinez, supervisor of the Fishlake National Forest. Winnat's letter detailed predation losses to livestock over the previous two years in the Fishlake National Forest and requested that Fishlake allow APHIS — ADC to conduct predator control on the forest. Fishlake Administrative Record at 100058 hereinafter Fishlake AR. In response to this request, Martinez requested public input regarding the proposed program. Over the next two months, Fishlake officials gathered information and prepared the environmental reports necessary to comply with NEPA.

On January 9, 1992, Martinez issued a FONSI and EA. The Fishlake EA provides for the same range of non-lethal and lethal control measures specified in the Dixie...