W. Watersheds Project v. Bernhardt, Case No. 20-cv-00860 (APM)

• Decision Date: 19 June 2020
• Docket Number: Case No. 20-cv-00860 (APM)
• Parties: WESTERN WATERSHEDS PROJECT, et al., Plaintiffs, v. David L. BERNHARDT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

468 F.Supp.3d 29

WESTERN WATERSHEDS PROJECT, et al., Plaintiffs,

v.David L. BERNHARDT, et al., Defendants.

Case No. 20-cv-00860 (APM)

United States District Court, District of Columbia.

Signed June 19, 2020

John S. Persell, Pro Hac Vice, Western Watershed Project, Hailey, ID, Kristine M. Akland, Akland Law Firm PLLC, Missoula, MT, David Alan Bahr, Bahr Law Offices, P.C., Eugene, OR, for Plaintiffs.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource Wildlife and Marine Resources Section, Washignton, DC, Robert Mark Norway, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

Plaintiffs are a group of non-profit conservation organizations that brought this action to challenge a 2019 Biological Opinion and Incidental Take Statement issued by the U.S. Fish and Wildlife Service, which allows for the lethal removal of 72 grizzly bears from the Upper Green River Area Rangeland Project—the UGRA Project—over the next ten years. Plaintiffs also contest a portion of the 2019 Biological Opinion that allows ranchers to move their cattle through the Kendall Warm Springs enclosure within the UGRA Project—the sole habitat area of the Kendall Warm Springs dace, an endangered fish species.

Before the court is Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs ask the court to enjoin all lethal removal of grizzly bears from the UGRA Project allotments and all herding of cattle through the Kendall Warm Springs enclosure during the pendency of this case. The court denied Plaintiffs’ Motion by Order dated June 12, 2020. This Memorandum Opinion provides the reasons for the court's ruling.

II. LEGAL BACKGROUND

A. The Endangered Species Act

Congress enacted the Endangered Species Act ("ESA") in 1973, "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 endangered species and threatened species." 16 U.S.C. § 1531(b). Under Section 4 of the ESA, the Secretary of the Interior or the Secretary of Commerce—depending on the species at issue—is instructed to "determine whether any species is an endangered or a threatened species" based on five factors¹ and must make that determination "solely on the basis of the best scientific and commercial data available." Id. § 1533(a)(1), (b)(1). The Secretary should also take into account any efforts being made by a state "to protect such species." Id. § 1533(b)(1). An "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). "[T]hreatened species" means "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

Section 9 of the ESA prohibits the "taking" of any endangered species. Id. § 1538(a)(1)(B). To "take" means to "harass, harm, pursue, hunt, shoot, wound

, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). "Harm" is further defined as "an act which actually kills or injures wildlife," including actions that result in "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3. The prohibition on taking of endangered species applies to individuals, corporations, state and federal agencies, government employees, and state and local governments. 16 U.S.C. § 1532(13).

Once a species is listed as endangered or threatened, Section 7 requires that federal agencies consult with the relevant Secretary to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species." Id. § 1536(a)(2). As part of the consultation process, the acting agency must make a biological assessment to determine the impact of the proposed action on any listed species. Id. § 1536(c)(1). If the biological assessment determines that a proposed action is likely to adversely affect a listed species, the agency must participate in a formal consultation with the United States Fish and Wildlife Service ("FWS"). 50 C.F.R. § 402.14(a), (b)(1). During the consultation process, FWS must take a number of factors into consideration, including: (1) "[r]eview[ing] all relevant information provided by the Federal agency or otherwise available," including "an on-site inspection of the action area"; (2) "[e]valuat[ing] the current status ... of the listed species"; (3) "[e]valuat[ing] the effects of the action and cumulative effects on the listed species"; and (4) "us[ing] the best scientific and commercial data available." Id. § 402.14(g). The agency has an obligation to provide FWS with the "best scientific and commercial data available" to it, including any "studies or surveys" conducted by the agency. Id. § 402.14(d). At the conclusion of the consultation, FWS must issue a biological opinion detailing "how the agency action affects the species or its critical habitat" and whether it will "jeopardize the continued existence of the any endangered or threatened species." 16 U.S.C. § 1536(a)(2), (b)(3)(A) ; 50 C.F.R. § 402.14(g). If FWS makes a "no jeopardy" finding, it may allow for incidental take of the species. 16 U.S.C. § 1536(b)(4). Section 7 also requires an "incidental take statement," which "specifies the impact of such incidental taking on the species." Id. § 1536(b)(4)(C)(i) ; see also 50 C.F.R. § 402.14(g)(7). In some situations, an agency must re-initiate Section 7 consultation. See 50 C.F.R. § 402.16.

B. The National Forest Management Act

The National Forest Management Act of 1976 ("NFMA") establishes a framework for the United States Forest Service ("USFS"), an agency of the Department of Agriculture, to "develop, maintain, and ... revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). USFS "develops land and resource management plans pursuant to NFMA, and uses the[ ] forest plans to ‘guide all natural resource management activities,’ including use of the land for ‘outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.’ " Ohio Forestry Ass'n, Inc. v. Sierra Club , 523 U.S. 726, 729, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (quoting 36 C.F.R. § 219.1(b) (1997) ); 16 U.S.C. § 1604(e)(1) ); see also Hammond v. Norton , 370 F. Supp. 2d 226, 236 (D.D.C. 2005). In developing a forest plan, USFS "must take both environmental and commercial goals into account." Ohio Forestry , 523 U.S. at 729, 118 S.Ct. 1665. Then, USFS "analyzes and authorizes site-specific projects consistent with the governing plan." Montanans for Multiple Use v. Barbouletos , 568 F.3d 225, 227 (D.C. Cir. 2009) ; see also Ohio Forestry , 523 U.S. at 730, 118 S.Ct. 1665 ; 16 U.S.C. § 1604(i) ("Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.").

III. FACTUAL BACKGROUND

A. The Upper Green River Area Rangeland Project

In October 2019, USFS authorized the Upper Green River Area Rangeland Project, which allows livestock grazing on six allotments in western Wyoming. Pls.’ Mot. for Preliminary Injunction, ECF No. 15, Mem. of P. & A. in Supp. of Pls.’ Mot. for Preliminary Injunction, ECF No. 15-1 [hereinafter Pls.’ Mot.], Ex. 1, UGRA Project Record of Decision, ECF No. 15-6 [hereinafter UGRA Record of Decision]; see also Pls.’ Mot., Ex. 3, Upper Green River Area Rangeland Project Final Environmental Impact Statement, ECF No. 16-1 [hereinafter UGRA FEIS]; Fed. Defs.’ Opp'n to Pls.’ Mot. for Preliminary Injunction, ECF No. 26 [hereinafter Fed. Defs.’ Opp'n], Decl. of Chad Hayward, ECF No. 26-1 [hereinafter Hayward Decl.], ¶ 4.² The project area spans 170,643 acres and is located within the Greater Yellowstone Ecosystem ("GYE"). UGRA Record of Decision at 2; Hayward Decl. ¶ 4. The GYE is a 9,209-square mile region that spreads across northwest Wyoming and parts of Idaho and Montana. Compl., ECF No. 1 [hereinafter Compl.], ¶ 44; see also Pls.’ Mot., Ex. 2, 2019 Biological Opinion and Incidental Take Statement, ECF No. 15-7 [hereinafter 2019 BiOp], at 15. The ecosystem is made up of national forests, wildlife refuges, public, private, and tribal lands, and the Yellowstone and Grand Teton national parks. Compl. ¶ 44 (citing Greater Yellowstone Ecosystem , NAT'L PARK SERV ., https://www.nps.gov/yell/learn/nature/greater-yellowstone-ecosystem.htm (last updated Dec. 12, 2019)); see also 2019 BiOp at 15–16. There are 19 Term Grazing Permits for the project area, and a total of 7,765 cattle are permitted on the allotments from June 16 through October 15. Hayward Decl. ¶ 5–6. To date, for the 2020 grazing season permittees have been authorized to graze a total of 6,598 cattle. Id. ¶ 6.

B. The Grizzly Bear in the Upper Green River Area Rangeland Project

In the 1970s, the grizzly bear population in the United States had dwindled to a fraction of its original size due to hunting, government-sponsored eradication efforts, and habitat loss. Compl. ¶ 41 (citing Ex. 5, Grizzly Bear Recovery Plan (1993), ECF No. 15-9,³ p. ii). Fewer than 1,000 bears remained. Id. ; see also 2019 BiOp at 13. In response, the Department of the Interior formed the Interagency Grizzly Bear Study Team ("IGBST") in 1973, for monitoring and research of the species. Id. ¶ 45. (citing Interagency Grizzly Bear Study Team , UNITED STATES GEOLOGICAL SURVEY , https://www.usgs.gov/science/interagency-grizzly-bear-study-team?qt-science_center_objects=0#qt-science_center_objects (last visited June 18, 2020) [hereinafter...