Stout v. U.S. Forest Serv.

• Decision Date: 24 April 2012
• Docket Number: Case No. 2:09–cv–00152–HA.
• Citation: 869 F.Supp.2d 1271
• Parties: Loren STOUT and Piper Stout, Plaintiffs, v. U.S. FOREST SERVICE, and U.S. Fish and Wildlife Service, Defendants.
• Court: U.S. District Court — District of Oregon

869 F.Supp.2d 1271

Loren STOUT and Piper Stout, Plaintiffs,

v.U.S. FOREST SERVICE, and U.S. Fish and Wildlife Service, Defendants.

Case No. 2:09–cv–00152–HA.

United States District Court,

D. Oregon,

Pendleton Division.

April 24, 2012.

Caroline Lobdell, Elizabeth E. Howard, Dunn Carney Allen Higgins & Tongue LLP, Portland, OR, for Plaintiffs.

Stephen J. Odell, United States Attorney's Office, Portland, OR, for Defendants.

OPINION AND ORDER

HAGGERTY, District Judge:

Plaintiffs filed this action for declaratory and injunctive relief against the United States Forest Service (Forest Service) and the United States Fish and Wildlife Service (FWS). Plaintiffs assert claims pursuant to the Wild Free–Roaming Horses and Burros Act (Wild Horses Act), the National Forest Management Act (NFMA), and the Endangered Species Act (ESA). This court previously granted summary judgment to plaintiffs on Claim I of their Second Amended Complaint and Claim II was dismissed pursuant to stipulationof the parties. The parties now cross move for summary judgment on Claims III, IV, and V. Oral argument was held on April 5, 2012. For the following reasons, plaintiffs' Motion for Summary Judgment [69] is denied and defendants' Cross–Motion for Summary Judgment [75] is granted in part and denied in part.

OVERVIEW

Plaintiffs own a ranching operation near Dayville, Oregon. They hold permits to graze cattle on the Murderer's Creek Allotment, which is located within the Murderer's Creek Wild Horse Territory (MCWHT) in the Malheur National Forest (MNF). Plaintiffs seek summary judgment on the three remaining claims of the Second Amended Complaint. Plaintiffs assert that the appropriate management level (AML) of 100 horses selected by the Forest Service in the 2007 Wild Horse Plan was arbitrary and capricious (Claim V); that the Forest Service's failure to achieve the AML violates the MNF's Forest Plan (Claim IV); and that the Forest Service is responsible for the unlawful take of Middle Columbia River (MCR) steelhead in violation of the ESA.

STANDARDS

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a).

Each of the three claims at issue in the subject motions is governed by a different substantive statute, and a different standard and scope of review. Accordingly, the court provides a brief overview of the statutory and regulatory framework applicable to each claim, an overview of the claim itself, and the standard and scope of review for that claim. The claims are addressed in the order presented by the parties in their briefing.

A. The Wild Horses Act and Claim V

Congress enacted the Wild Horses Act in 1971 to protect wild free-roaming horses and burros as an integral part of the natural area where they were found. 16 U.S.C. § 1331. The Secretary is directed to manage wild free-roaming horses and burros as components of federal lands in a manner that is “designed to achieve and maintain a thriving natural ecological balance on the public lands,” and must consult with the state wildlife agency to ensure that the natural balance of all wildlife species is considered. Id. § 1333(a). In 1978, the Wild Horses Act was amended to “facilitate the humane adoption or disposal of excess wild free-roaming horses and burros which because they exceed the carrying capacity of the range, pose a threat to their own habitat, fish, wildlife, recreation, water, and soil conservation, domestic livestock grazing, and other rangeland values.” 43 U.S.C. § 1901(a)(6). “Excess animals” are defined as “wild free-roaming horses or burros (1) which have been removed from an area by the Secretary pursuant to applicable law or, (2) which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” 16 U.S.C. § 1332(f).

To comply with his management duties:

The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine [AMLs] of wild free-roaming horses and burros on these areas of the public lands; and determine whether [AMLs] should be achieved by the removal or destruction of excess animals.... In making such determinations the Secretary shall consult with the [FWS], wildlife agencies of the State or States wherein wild free-roaming horses and burros are located, such individuals independent of Federal and State government as have been recommended by the National Academy of Sciences, and such other individuals whom he determines have scientific expertise and special knowledge of wild horse and burro protection, wildlife management and animal husbandry as related to rangeland management.

16 U.S.C. § 1333(b)(1). Pursuant to regulation, the Forest Service must establish wild horse territories, develop management plans for each territory, and determine AMLs for each territory. 36 C.F.R. § 222.21.

Claim V asserts that the Forest Service violated the Wild Horses Act by failing to reevaluate the MCWHT's AML when it issued the 2007 Wild Horse Plan. The court's review of this claim is governed by the Administrative Procedure Act's (APA) “arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A) (2006); Am. Horse Prot. Ass'n v. Frizzell, 403 F.Supp. 1206, 1217 (D.C.Nev.1975). Under this standard of review, the court may set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

To determine whether an agency decision is arbitrary and capricious, the court should “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). After considering the relevant factors, the agency must articulate a satisfactory explanation for its action, including a rational connection between the facts found and the agency's conclusions. Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir.2008). Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency. Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir.2010). For this claim, the scope of review is limited to the administrative record before the Forest Service at the time the challenged decision was made. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

B. The NFMA and Claim IV

The NFMA was enacted in 1976 as an amendment to the Forest and Rangeland Renewable Resources Planning Act of 1974. 16 U.S.C. §§ 1600 et seq. In concert with the Multiple–Use Sustained Yield Act of 1960, 16 U.S.C. §§ 528–31, the NMFA provides the statutory framework by which the Forest Service is to manage National Forest System lands. The Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir.2008) (overturned on other grounds). The NFMA requires the Forest Service to manage Forest System Lands in order to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” 16 U.S.C. § 1604(g)(3)(B). The NFMA directs the Forest Service to develop an integrated land and resource management plan (Forest Plan) for each unit of the National Forest System. Id. § 1604(a), (f). In formulating a Forest Plan, the Forest Service must “use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences.” Id. § 1604(b). After a Forest Plan is developed, all subsequent Forest Service actions must be consistent with that plan, which in turn, must be consistent with the NFMA. Id. § 1604(i); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir.2002).

Claim IV asserts that the Forest Service has violated, and continues to violate, the NFMA by failing to maintain a wild horse herd averaging 100 head, a goal that is set forth in Standard 83 of the MNF Plan. This claim is also analyzed pursuant to the APA, but not under § 706(2)'s “arbitrary and capricious” standard. Rather, this claim arises under § 706(1), which allows a court to “compel agency action unlawfully withheld or unreasonably delayed.” Under this standard, a court can require an administrative agency to act, only so long as the action sought is a legally required and discrete action. Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The court's review of this claim is also limited to the administrative record, however, because plaintiffs allege a failure to act, there is no final decision and no end date for the administrative record.

C. The ESA and Claim III

The purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation” of such species. 16 U.S.C. § 1531(b) (2006). The Secretary of the Interior must list species that are endangered or threatened, and designate critical habitat for that species. Id. § 1533(a).

Section 9 of the ESA prohibits the “take” of any listed species. 16 U.S.C. § 1538(a)(1). The ESA defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The ESA's implementing regulations further define “harm” as an “act which actually kills or injures wildlife” and “may include...