Wildearth Guardians v. U.S. Forest Service

• Citation: 668 F.Supp.2d 1314
• Decision Date: 30 September 2009
• Docket Number: No. CIV 07-1043 JB/ACT.,CIV 07-1043 JB/ACT.
• Parties: WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant, New Mexico Cattle Growers' Association, Coalition of Arizona/ New Mexico Counties for Stable Economic Growth, and New Mexico Federal Land Council, Defendant-Intervenors.
• Court: U.S. District Court — District of New Mexico

Page 1314

668 F.Supp.2d 1314

WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant New Mexico Cattle Growers' Association, Coalition of Arizona/ New Mexico Counties for Stable Economic Growth, and New Mexico Federal Land Council, Defendant-Intervenors.

No. CIV 07-1043 JB/ACT.

United States District Court, D. New Mexico.

September 30, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Melissa Hailey, WildEarth Guardians, Santa Fe, NM, James Tutchton, Wild-Earth Guardians, Denver, CO, for the Plaintiff.

Jan Elizabeth Mitchell, Assistant United States Attorney, Albuquerque, NM, Andrew A. Smith, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division United States Department

of Justice, Albuquerque, NM, for the Defendant.

Karen Budd-Falen, Kathryn Brack Morrow, Brandon L. Jensen, Budd-Falen Law Offices, LLC, Cheyenne, WY, for the Defendant-Intervenors.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs Opening Brief: Petition for Review of Agency Action, filed January 12, 2009 (Doc. 55)("Pl. Op. Brief"). The Court held a hearing on July 9, 2009. The primary issues are: (i) whether Defendant United States Forrest Service ("USFS") reasonably approved continued livestock grazing on twenty-six allotments on the Gila National Forest pursuant to Section 339 of the Consolidated Appropriations Act of 2005, P.L. No. 108-447 § 339, which requires that such grazing approvals meeting certain criteria to be categorically excluded from documentation in an environmental assessment or environmental impact statement under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370; and (ii) whether the Court should hold that the USFS violated NEPA if the Court finds that the Administrative Record does not support the agency's continued livestock grazing on one or more of the twenty-six allotments. The Court's role is to review the record of the USFS' decision-making process to determine whether the decisions were based on legally relevant factors, and whether the USFS acted arbitrarily and capriciously in making its decisions. Having reviewed the Administrative Record and considered the parties' arguments in the petition, briefs, and hearing, the Court finds that the USFS acted appropriately and in accordance with the law, and the Court therefore denies Plaintiff WildEarth Guardians' petition.

FACTUAL BACKGROUND

This case involves the authorization of livestock grazing in the Gila National Forest. The Gila National Forest, located in southwest New Mexico, was designated a national forest in 1907 and is divided into eight United States Forest Service ranger districts, with overall administration of 3.34 million acres of National Forest lands within Catron, Grant, Sierra, and Hidalgo Counties. See Response Brief of the Defendant Intervenors at 10, filed March 30, 2009 (Doc. 60)("Intervenors Response"). The District Ranger for each ranger district is responsible for issuing decision memoranda each time a grazing permit is granted.

A. Important Resources of the Gila National Forest.

The Gila National Forest is home to several federally protected species, contains world renowned wilderness areas, and lies entirely within the sole recovery area for the Mexican gray wolf. See Pl. Op. Brief at 1. The Gila National Forest is also used for the grazing of domestic cattle, as permitted by the USFS in ten-year increments, per the Federal Land Policy and Management Act, 43 U.S.C. § 1752(a). See Pl. Op. Brief at 1. Because domestic livestock grazing has the potential to impact the environment, each time the USFS issues a new or renewed livestock grazing permit, NEPA requires the USFS to undertake a thorough environmental analysis as part of its decision-making process. See id.

1. Threatened and Endangered Species and Critical Habitat.

The Gila National Forest is home to, and provides habitat for, at least five species the United States Fish and Wildlife Service ("FWS") list as either threatened or endangered pursuant to the Endangered Species Act, 16 U.S.C. § § 1531-1544. See Second Amended Complaint for Declaratory and Injunctive Relief ¶ 1, at 1, filed February 4, 2008 (Doc. 16) ("Complaint"); Federal Defendant's Answer to Plaintiffs' Complaint ¶ 1, at 2, filed February 29, 2009 (Doc. 23)("USFS Answer"). Specifically, the Mexican spotted owl, Chiricahua leopard frog, loach minnow, spikedace, and Mexican gray wolf are federally protected threatened and endangered species inhabiting the Gila National Forest. See id. FWS fosters the recovery of threatened and endangered species through recovery plans and protection of critical habitats. See 16 U.S.C. § 1533(f). There are recovery plans in place for these endangered species, which affect management of the Gila National Forest. See, e.g., FWS Recovery Plan for the Mexican Spotted Owl at 26 (1995)("Owl Recovery Plan")("Most current observations of Mexican spotted owls are from the Upper Gila Mountains . . . considered a critical nucleus for the subspecies because of its central location within the owl's range and its seemingly high number of owls."). Additionally, the Mexican spotted owl, loach minnow, and spikedace have designated critical habitat on the Gila National Forest. See 69 Fed.Reg. 53182 (2004)(final rule designating critical habitat for Mexican spotted owl); 72 Fed.Reg. 13356 (2007)(final rule designating critical habitat for loach minnow and spikedace).

a. The Mexican Spotted Owl.

The Mexican spotted owl (Strix occidentalis lucida) was listed as a threatened species in 1993. See 69 Fed.Reg. 53183. Mexican spotted owl populations in the Gila National Forest fall within the Upper Gila Mountains recovery unit, which contains the largest known number of Mexican spotted owls and constitutes approximately fifty-five percent of the known spotted-owl territories. See Owl Recovery Plan at 100. While the Owl Recovery Plan lists the primary threats to the owls in this area to be timber harvest and catastrophic fire, other threats include indiscriminate fuelwood cutting and overgrazing by livestock. See id. "Overgrazing is suspected to be detrimental in some areas and can affect both habitat structure and the prey base." Id. at 101.

b. The Chiricahua Leopard Frog.

The Chiricahua leopard frog (Rana chiricahuensis) was listed as a threatened species in 2002, see 67 Fed.Reg. 40790, and a recovery plan was issued in 2007, see 72 Fed.Reg. 30820. Survey research of the Chiricahua leopard frog suggests "the wilderness areas of the Gila National Forest have the greatest potential for supporting additional extant populations and for securing an intact metapopulation that would have a good chance of long-term persistence." 67 Fed.Reg. 40792. Adverse effects to the Chiricahua leopard frog and its habitat as a result of livestock grazing may occur under certain circumstances. See AR-01781. The effects of livestock grazing on the leopard frog population, however, is not well-studied, see AR-02989, and though it is suggested that trampling of Chiricahua leopard frogs by cattle may be occurring, it has not been documented, see AR-02991.

c. The Loach Minnow and the Spikedace.

The loach minnow and spikedace are small fish found in fast-flowing streams. See AR-02507 & AR-2557. Both species can be found in the Gila River. See id. The loach minnow and spikedace were listed as threatened species in 1986. See 51 Fed.Reg. 39468 & 51 Fed.Reg. 23769. Their habitats have been impacted to varying degrees by domestic livestock grazing, mining, agriculture, timber harvest, and other development. See AR-02562.

d. The Mexican Gray Wolf.

The Mexican gray wolf (Canis lupus baileyi), or "lobo," is the smallest, rarest and most genetically distinct subspecies of gray wolf (Canis lupus.) See Complaint ¶ 61, at 25. Although once numbering in the thousands across much of New Mexico, Arizona, Texas, and northern Mexico, federal eradication efforts undertaken to benefit the livestock indirectly drove the subspecies to near extinction. See id. See also 63 Fed.Reg. 1752 (1998), AR-02424.

In 1998, the FWS introduced an "experimental non-essential" ("ENE") population of the Mexican gray wolf in the Blue Range Wolf Recovery Area ("BRWRA") in Arizona and New Mexico. See Administrative Record at AR-2424.¹ The BRWRA includes the entirety of the Gila National Forest. See id. There are no known wild populations of the Mexican gray wolf that exist in the BRWRA, thus all of the wolves present in the Gila National Forest region are part of the ENE population. See id. According to the Administrative Record, FWS "does not intend to change the `nonessential experimental' designation to `essential experimental,' `threatened,' or `endangered' and foresees no likely situation which would result in such changes." Administrative Report at AR-02443. Further, unlike the critical habitats established for threatened or endangered species, like the Mexican spotted owl or the loach minnow, "critical habitat cannot be designated under the nonessential experimental classification" of the Mexican gray wolves. Id.

As part of the recovery program, the FWS and the USFS are permitted to temporarily restrict human access and "disturbance-causing land use activities" within a one-mile radius around release pens where wolves are, and around active dens and active rendezvous sites for certain time periods. See id. Specifically excluded from these restrictions are "[l]egally permitted livestock grazing and use of water sources by livestock." See id.

In 2005, FWS adopted Standard Operating Procedures for the ENE population in the BRWRA. See Administrative Record at AR-2466-2486. These procedures include a policy that permits permanent removal, including live capture methods or lethal take, if a wolf commits three depredation incidents with permitted cattle within one year. See Administrative Record at AR-02466. On...