Western Watersheds Project v. Grimm, 18-35075

• Decision Date: 23 April 2019
• Docket Number: No. 18-35075,18-35075
• Parties: WESTERN WATERSHEDS PROJECT ; Center for Biological Diversity; Friends of the Clearwater ; WildEarth Guardians; Predator Defense, Plaintiffs-Appellants, v. Todd GRIMM, Idaho Director, Wildlife Services; USDA Wildlife Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

921 F.3d 1141

WESTERN WATERSHEDS PROJECT ; Center for Biological Diversity; Friends of the Clearwater ; WildEarth Guardians; Predator Defense, Plaintiffs-Appellants,

v.Todd GRIMM, Idaho Director, Wildlife Services; USDA Wildlife Services, Defendants-Appellees.

No. 18-35075

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2019 Portland, Oregon

Filed April 23, 2019

Talasi Brooks (argued) and Lauren M. Rule, Advocates for the West, Boise, Idaho; Kristin F. Ruether, Western Watersheds Project, Boise, Idaho; for Plaintiffs-Appellants.

Kevin W. McArdle (argued), Andrew C. Mergen, Joan Pepin, Shaun M. Pettigrew, and John P. Tustin, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Lisa Jabaily and Leah C. Battaglioli, Trial Attorneys, Marketing, Regulatory, and Food Safety Programs Division, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; for Defendants-Appellees.

Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim,^* Chief District Judge.

TUNHEIM, Chief District Judge

Conservationist Plaintiffs brought this action to enjoin the federal government's participation in the killing of gray wolves in Idaho pending additional analysis under the National Environmental Policy Act of 1969 ("NEPA"). Plaintiffs allege that Defendants Grimm and Wildlife Services (together, "Wildlife Services"), a component of the U.S. Department of Agriculture's Animal and Plant Health Inspection Service ("APHIS"), violated NEPA by failing to prepare an Environmental Impact Statement ("EIS") on their wolf management activities in Idaho. The district court dismissed Plaintiffs' action for lack of Article III standing, holding that Plaintiffs had not shown that their injuries were redressable because Idaho could engage in the same lethal wolf management operations without the help of the federal government. Plaintiffs appeal. For the reasons below, we reverse and remand.

I. BACKGROUND

A. National Environmental Policy Act

NEPA "is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 C.F.R. § 1500.1(c). Accordingly, NEPA requires federal agencies to assess and publicly disclose the environmental impacts of proposed federal actions. See 42 U.S.C. §§ 4321 – 4370m-12. Where a "major federal action" will "significantly affect[ ] the quality of the human environment," 42 U.S.C. § 4332(C), or "there are substantial questions about whether a project may cause significant degradation of the human environment," Native Ecosystems Council v. U.S. Forest Serv. , 428 F.3d 1233, 1239 (9th Cir. 2005) (emphasis in original), an agency is required to prepare an EIS. Where the environmental consequences of a proposed federal action are unclear, an agency must prepare an environmental assessment ("EA") to determine whether an EIS is necessary. 40 C.F.R. § 1501.4(b). If an agency completes an EA and determines that an EIS is unnecessary, it must issue a "finding of no significant impact" ("FONSI") explaining its decision. Id. § 1501.4(e).

An agency must supplement a draft or final EIS if: "(i) [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Id. § 1502.9(c)(1).

When reviewing an agency's decision not to prepare an EIS, we consider whether the decision was arbitrary and capricious. Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1211 (9th Cir. 1998).

B. Gray Wolf Management in Idaho

Historically, the Northern Rocky Mountain ("NRM") gray wolf inhabited mountainous portions of Idaho, Montana, and Wyoming. Its population decreased drastically with increased human activity and, in 1974, the U.S. Fish and Wildlife Service ("FWS") listed the NRM gray wolf as endangered under the Endangered Species Act of 1973 ("ESA").

FWS was responsible for managing the NRM gray wolf population while it was listed under the ESA. In 1994, FWS reintroduced NRM gray wolves into central Idaho. Its goal was to help the NRM gray wolf reach a population of thirty breeding pairs across the listed NRM range. Anticipating potential wolf-human conflicts brought on by the reintroduction, FWS authorized the killing or removal of wolves identified as having preyed on livestock or other domestic animals. Where authorized by FWS, Wildlife Services assisted livestock owners with those efforts.

The NRM gray wolf population grew steadily under FWS management. By 2000, FWS estimated that the population had reached the stated goal of thirty breeding pairs. In 2002, the Idaho Department of Fish and Game ("IDFG") prepared a plan describing Idaho's goals and strategies for wolf management. IDFG prepared the plan anticipating that NRM gray wolves would eventually be delisted under the ESA, which would shift wolf management responsibilities to state governments.

After a series of failed delisting attempts, the NRM gray wolf was successfully delisted in 2011 following a directive from Congress. See All. for the Wild Rockies v. Salazar , 672 F.3d 1170, 1171–72 (9th Cir. 2012). Since the 2011 delisting, IDFG has maintained responsibility for managing gray wolves in Idaho. IDFG manages wolves in accordance with the 2002 plan and an Elk Management Plan developed in 2014. Together, these plans address wolf predation on livestock, domestic animals, and ungulates.

IDFG relies primarily on sport hunting to meet its wolf management objectives, with harvest numbers ranging from 200 to 356 wolves annually since 2011. Where sport hunting is insufficient, IDFG requests assistance from Wildlife Services. Once Wildlife Services receives a request, it enjoys considerable discretion in determining whether a problem complained of was caused by wolves and, if so, how to address it. Wildlife Services may use lethal or non-lethal methods to target and address depredating wolf packs or individuals. IDFG pays Wildlife Services with funds allocated from its Wolf Depredation Control Board, which was established in 2014.

From 2011 to 2015, between forty-two and eighty wolves were killed annually by Wildlife Services or livestock producers to address livestock depredation. During that time, Wildlife Services also killed between zero and twenty-three wolves per year to protect ungulates in Idaho's Lolo elk zone, an area identified by IDFG as a critical habitat for its elk population. Wildlife Services killed wolves in the Lolo elk zone during aerial shooting operations, sometimes removing entire packs in one strike. Aerial shooting is considered a highly effective wolf management technique but requires special expertise and equipment to be conducted effectively. IDFG independently killed fourteen wolves in 2013 to benefit prey species but did not independently kill wolves in other years. It is not clear whether IDFG has ever carried out an aerial shooting operation.

IDFG has stated that, in the absence of assistance from Wildlife Services, it would conduct its own wolf removal operations for the purpose of protecting ungulates. IDFG has not provided details regarding to what extent, if any, it would conduct wolf management operations for the purpose of protecting livestock or domestic animals, whether it would attempt to kill the same number of wolves, or what management methods it would employ should Wildlife Services withdraw its assistance. Instead, IDFG has made general statements about its "independent capabilities to perform wildlife control activities" and cited agreements with independent contractors that it "has used and may use to perform lethal wolf control."

C. Wildlife Services' EA and FONSI

Following public comment, in 2011, Wildlife Services issued an EA and FONSI discussing its future involvement with gray wolf management in Idaho. Among other alternatives, Wildlife Services considered limiting its activities to nonlethal control efforts or declining to provide any assistance whatsoever. In its commentary, Wildlife Services remarked that the effectiveness of alternatives wherein it did not offer lethal control would "depend largely on whether the USFWS or IDFG, as appropriate, were able to establish an equally prompt and effective wolf damage management program in the absence of [Wildlife Services]" and that, "in the mean-time, implementation of both lethal and nonlethal methods by other entities would likely not be as effective as when carried out with the assistance of [Wildlife Services]."

Ultimately, Wildlife Services chose "Alternative 2," under which it would continue to assist FWS—or, once NRM wolves were delisted, IDFG—with wolf management for the purpose of livestock protection and would provide additional assistance for the purpose of ungulate protection. Because Wildlife Services determined that Alternative 2 would not have a significant environmental impact, it did not prepare an EIS. However, it stated that it would continue to monitor its wolf management efforts in Idaho based on several factors, including effects on wolf population, risks to non-target species, impacts on public health and safety, humaneness, and sociological issues.

Shortly after Wildlife Services issued the EA and FONSI, the NRM gray wolf was delisted, allowing IDFG to assume management over gray wolves in Idaho. Despite the changes that accompanied and followed that shift—including the legalization of sport hunting, changes to IDFG's wolf management plans, and the release of new research—Wildlife Services determined each year from 2011 to 2015 that supplementation of its 2011 NEPA analysis was unnecessary.

D. Procedural History

Plaintiffs are five...