Wildearth Guardians v. U.S. Forest Serv.
| Decision Date | 10 September 2021 |
| Docket Number | 2:20-CV-223-RMP |
| Court | U.S. District Court — District of Washington |
| Parties | WILDEARTH GUARDIANS; WESTERN WATERSHEDS PROJECT; and KETTLE RANGE CONSERVATION GROUP, Plaintiffs, v. US FOREST SERVICE; GLENN CASAMASSA, Pacific Northwest Regional Forester; and RODNEY SMOLDON, Forest Supervisor, Defendants and DIAMOND M RANCH, a Washington General Partnership, Defendant-Intervenor. |
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Plaintiffs' Motion for Summary Judgment, ECF Plaintiffs' Motion for Summary Judgment, ECF No. 34; Defendants' Cross-Motion for Summary Judgment, ECF No 37; and Plaintiffs' Motion to Strike Federal Defendants' and Defendant-Intervenor's Extra-Record Declarations and Exhibits, ECF No. 46.
Plaintiffs Wildearth Guardians, Western Watersheds Project, and Kettle Range Conservation Group (collectively “Plaintiffs”) allege that Defendants United States Forest Service (the “Forest Service”) Glen Casamassa, and Rodney Smoldon (collectively “Federal Defendants”) failed to adequately assess the impacts to gray wolves of federally permitted livestock grazing in the Colville National Forest in violation of the National Environmental Policy Act (“NEPA”) and National Forest Management Act (“NFMA”). See ECF No. 1. Plaintiffs further allege that Federal Defendants failed to consult with the United States Fish and Wildlife Service (“USFWS”) over the potential impacts of livestock grazing to endangered species under the Endangered Species Act (“ESA”). See id.
The Court heard oral argument via video conference. Jennifer Schwartz argued on behalf of Plaintiffs. The Federal Defendants were represented by Emma Hamilton, Shawn Pettigrew, and Michelle Spatz. Chris Montgomery appeared on behalf of Defendant-Intervenor Diamond M. Ranch. The Court has reviewed the motions, the record, heard oral argument and is fully informed.
For the reasons discussed infra, the Court finds that Plaintiffs have not shown the requisite standing for their claims under the National Environmental Policy Act and National Forest Management Act because the asserted injury is not redressable by the Court as the Washington Department of Fish and Wildlife is the lead agency primarily responsible for wolf management operations including the lethal removal of gray wolves.
Plaintiffs also cannot show any injury from the revised 2019 Forest Plan absent a site-specific injury causally related to an alleged defect in the 2019 Forest Plan. The Court further finds that Plaintiffs' NFMA challenges to the 2019 Forest Plan are not ripe for adjudication because the Forest Plan neither authorizes livestock grazing nor wolf depredations.
Finally, the Court finds that the Forest Service did not violate Section 7 of the Endangered Species Act by not consulting with the U.S. Fish and Wildlife Service (USFWS) over the effects of cattle grazing to the whitepark pine, Canada lynx, or grizzly bear where the Forest Service satisfied its consultation obligations or consultation was not required by reason of the species either being only a “candidate” for federal listing or not present in the allotments.
Accordingly, the Court enters summary judgment in favor of the Federal Defendants.
Gray wolves were classified as an endangered species in Washington State under the provisions of the ESA in 1973. DM03376. In 2011, wolves in the eastern third of Washington were removed from federal protections under the ESA. Id. As of January 4, 2021, the gray wolf was removed from the Federal list of Endangered and Threatened Wildlife. 85 Fed. Reg 69778 (Nov. 3, 2020) (Final Rule). The gray wolf remains a state-listed endangered species in Washington and is designated as a “sensitive species” in the Pacific Northwest region. FP108617.
The Washington Department of Fish and Wildlife (“WDFW”) is the primary agency responsible for managing wolves in the Eastern Washington recovery area guided by the Wolf Conservation and Management Plan. FP015348-015647.
“One goal of the Wolf Conservation and Management Plan for Washington (Plan) is to manage wolf-livestock conflicts in a way that minimizes livestock losses while at the same time not impacting the recovery and long-term perpetuation of a sustainable wolf population.” DM03391. “The WDFW and livestock producers can implement non-lethal and preventative control measures any time they deem necessary throughout Washington.” Id. “The WDFW has full management authority of wolves in the Eastern Washington recovery area . . . and under state law RCW 77.12.240, can implement lethal measures to control depredating wolves when it is deemed necessary to detour chronic livestock depredations.” Id.; FP015435 (“Wherever wolves are federally listed in Washington, the U.S. Fish and Wildlife Service and USDA Wildlife Services are the lead agencies to respond to reports of wolf depredations.”).
Pursuant to the Wolf Conservation and Management Plan, “[l]ethal removal may be used to stop repeated depredation if it is documented that livestock have clearly been killed by wolves, non-lethal methods have been tried but failed to resolve the conflict, depredations are likely to continue, and there is no evidence of intentional feeding or unnatural attraction of wolves by the livestock owner.” FP015438.
Since 2012, WDFW has lethally removed 34 wolves from 10 packs in response to wolf-livestock conflicts. ECF No. 29 at 17; see AR01824 (“WDFW documented 21 wolf mortalities in 2019; nine were removed by the department in response to wolf-caused livestock deaths and injuries . . . [and] two wolves [were] killed by landowners protecting livestock (caught in the act)”). As of December 31, 2019, WDFW counted 108 wolves 21 packs, in addition to 37 wolves in five packs counted by the Confederated Tribes of the Colville Reservation. AR01823-01824. In 2019, the Id.
The Colville National Forest encompasses about 1.1 million acres in Washington State. FP014458. “The Multiple Use Sustained Yield-Act of 1960 mandates that national forests are administered for a variety of uses including livestock grazing.” FP014485.
“Livestock grazing on the Colville National Forest is an important use to the local ranching industry and local communities.” FP108812. The majority of permitted grazing is for cattle with only one sheep allotment (currently vacant) remaining. Id. Grazing allotments on the Forest cover about 745, 000 acres of administered forest lands. FP108811. There are 58 grazing allotments where 42 currently have permitted use and 16 are in a vacant status. FP108813.
The Forest Service manages livestock grazing on the national forests by using three separate decisionmaking processes: (1) federally issued grazing permits; (2) allotment management plans (“AMPs”); and (3) annual operating instructions (“AOIs”). ECF No. 1 at 15 (citing Or. Natural Desert Ass'n v. U.S. Forest Serv. 465 F.3d 977, 979 (9th Cir. 2006))(“ONDA”).
A grazing permit is a “document authorizing livestock to use National Forest System or other lands under Forest Service control for the purpose of livestock production.” ONDA, 465 F.3d at 979-80 (citing 36 C.F.R. § 222.1(b)(5); 43 U.S.C. § 1702(p)). “A permit grants a license to graze and establishes: (1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use.” Id. at 980 (citing 36 C.F.R. §§ 222.1-222.4; 43 U.S.C. § 1752). The Forest Service generally issues ten-year term permits. Id. (citing 36 C.F.R. § 222.3(c)(1)).
“While a forest plan is an overarching land management directive for an entire forest-wide unit within the National Forest System, the AMP is a land management directive for a specific allotment within a national forest that the Forest Service has designated for livestock grazing.” ONDA, 465 F.3d at 980 (citing Wilderness Soc'y v. Thomas, 188 F.3d 1130, 1133 (9th Cir. 1999).) In other words, AMPs are “sitespecific” prescribing the manner in, and extent to which, grazing operations on a particular allotment will be conducted in order to meet multiple-use objectives. Or. Nat. Desert Ass'n v. U.S. Forest Serv., 312 F.Supp.2d 1337, 1340 (D. Or. 2004). The AMP must be consistent with the applicable forest plan. ONDA, 465 F.3d at 980 (citing 16 U.S.C. § 1604(i); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1062 (9th Cir. 2002)); see also FP014485 (“Allotment management plans provide site-specific details for management of the resource and identify mitigation measures needed to reduce identified impacts in order to meet or move toward management objectives.”).
The Forest Service also typically issues yearly instructions to grazing permittees through annual operating instructions. Generally, the AOI annually conveys long-term directives into instructions to the permittees for annual operations. Id. “Because an AOI is issued annually, it is responsive to conditions that the Forest Service could not or may not have anticipated and planned for in the AMP or grazing permit, such as . . . [the] degree of risk to threatened or endangered species affected by grazing.” Id. at 980-81 (9th Cir. 2006).
Here however, the Forest Service maintains that it does not issue AOIs in implementing its grazing program. ECF No. 37 at 54. Rather, for the 2020 grazing season, the Forest Service “prepared notes for the permittee identifying the number of livestock to be grazed on the allotments covered by the 2013 Permit that season and outlining...
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