WildEarth Guardians v. U.S. Forest Serv.
| Decision Date | 07 May 2020 |
| Docket Number | Case No. 1:19-cv-00203-CWD |
| Parties | WILDEARTH GUARDIANS, et. al., Plaintiffs, v. U.S. FOREST SERVICE, et. al., Defendants. |
| Court | U.S. District Court — District of Idaho |
The Court has before it Defendants' Partial Motion to Dismiss. (Dkt. 28.) The matter has been fully briefed and is ripe for the Court's consideration. All parties have consented to the jurisdiction of a magistrate judge to conduct all proceedings in this matter. (Dkt. 13.) Having reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, the motion will be decided on the record without oral argument. Dist. Idaho L. Rule 7.1(d).
This matter concerns the effect on grizzly bears of the use of bait to hunt black bears in national forests in Idaho and Wyoming. "Baiting" entails placing food, salt, or manufactured scents in a fixed location to attract the wildlife to the hunter, rather than to have the hunter travel through the environment searching for the wildlife. 60 Fed. Reg. 14,720 (Mar. 20, 1995). Prior to 1995, some forest service units issued "special use permits . . . to regulate baiting" in certain National Forests, even though the United States Forest Service ("USFS") determined that "the issuance of special use permits [was] not appropriate" to regulate baiting. Id.; see also Am. Compl. ¶ 17 (ECF No. 12); 36 C.F.R. § 251.50(c) ().
In 1994, the USFS proposed a national policy to allow states to decide whether bait can be used in national forests. See 59 Fed. Reg. 11,765 (Mar. 14, 1994); 59 Fed. Reg. 17,758 (Apr. 14, 1994). The USFS acknowledged the proposal would likely affect grizzly bears, which were and remain listed as threatened with extinction under the Endangered Species Act ("ESA"). To evaluate the effect of the proposal, the USFS prepared an Environmental Assessment ("EA") pursuant to the National Environmental Policy Act ("NEPA"), and informally consulted with the United States Fish and Wildlife Service ("FWS") under Section 7 of the ESA to determine whether the proposal would jeopardize listed species, including grizzly bears.
FWS issued a Biological Opinion ("BiOp") in which it found there is a "remote" possibility that a grizzly bear will be taken due to black bear baiting in national forests, and FWS issued an incidental take statement that requires two things: the USFS "has a continuing duty to regulate" black bear baiting in national forests, and "no incidental take" of grizzly bears due to black bear baiting is allowed. If "any" single take occurs, the USFS must reinitiate formal consultation with the FWS.
On March 15, 1995, the USFS issued a "Decision Notice and Finding of No Significant Impact" ("FONSI"), in which it adopted the proposed policy and determined that no EIS was needed because the proposed policy was "not a major Federal action" and it would "not significantly affect the quality of the human environment." See Fund for Animals, 127 F.3d at 82. The final national policy was published on March 20, 1995. See 60 Fed. Reg. at 14,720. The national policy states, "[w]here State law and regulation permit baiting[,] the practice is permitted on National Forest System lands unless the authorized officer determines on a site specific basis that the practice conflicts with Federal laws or regulations, or forest plan direction, or would adversely affect other forest uses or users." Id. at 14,722.
After publication of the final national policy, on June 21, 1995, several environmental groups challenged the policy, claiming that the USFS: (1) violated the ESA by failing to formally consult with FWS regarding the policy; and (2) violated NEPA by failing to first prepare an EIS. See Fund for Animals v. Thomas, 932 F. Supp. 368, 370 (D.D.C. 1996), aff'd 127 F.3d 80. On August 8, 1996, the district court granted summary judgment to the USFS, rejecting both claims. Id. at 371. The plaintiffs appealed the decision. On October 17, 1997, the United States Court of Appeals for the D.C. Circuit affirmed the district court's judgment. The court held that, "[t]o the extent that there was an ESA consultation obligation, the Forest Service and FWS fulfilled it by engaging in 'informal consultation.'" Fund for Animals, 127 F.3d at 84. The court also found that the national policy was "not a major federal action" for NEPA purposes, such that the Forest Service had "no EIS obligation." Id. at 83.
In this action, WildEarth Guardians, Western Watersheds Project, and Wilderness Watch (collectively, "WEG") filed a complaint on June 5, 2019, against USFS and FWS. WEG alleges that numerous grizzly bears have been taken due to hunting black bear using bait in national forests in Idaho and Wyoming, exceeding the level of permissible incidental take and triggering the duty to reinitiate consultation. WEG alleges also that the EA is outdated, and significant new information exists requiring its supplementation. The complaint therefore seeks to compel supplemental processes under the ESA and NEPA regarding the 1995 USFS policy. In its two-count complaint, WEG contends: (1) both the USFS and FWS have failed to reinitiate consultation under the ESA; and (2) the USFS has failed to supplement its prior NEPA analysis.
Defendants contend Count I fails to state a prima facie claim for relief against FWS, because FWS does not have the authority to reinitiate consultation under the ESA.1 The USFS asserts Count II must be dismissed pursuant to Fund for Animals v. Thomas, 127 F.3d 80, 83-84 (D.C. Cir. 1997), which adjudicated the USFS policy when it was enacted and determined it was not a major federal action triggering a duty under NEPA. Thus, the USFS contends there is no major federal action remaining to occur, and it has no duty to supplement the EA under NEPA.
Defendants move to dismiss Count I against FWS pursuant to Fed. R. Civ. P. 12(b)(1), which authorizes the Court to dismiss claims over which it lacks subject matter jurisdiction. The plaintiffs bear the burden of persuasion. Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citations omitted). A Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). Id. Here, the jurisdictional attack is facial because FWS asserts that the allegations contained in the complaint are insufficient to invoke federal jurisdiction.
In a facial attack, the Court accepts as true all factual allegations in the complaint. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005). To survive a Rule 12(b)(1) motion, a plaintiff must allege a plausible set of facts that establish subject-matter jurisdiction. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) ().
The USFS moves to dismiss Count II pursuant to Rule 12(b)(6) for failure to state a claim. "A Rule 12(b)(6) dismissal may be based on either a 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (citation omitted). A complaint "does not need detailed factual allegations," but it must set forth"more than labels and conclusions, and a formulaic recitation of the elements." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must also contain sufficient factual matter to "state a claim to relief that is plausible on its face." Id. at 570. Finally, in considering a Rule 12(b)(6) motion, the Court must view the "complaint in the light most favorable to" the claimant and "accept[ ] all well-pleaded factual allegations as true, as well as any reasonable inference drawn from them." Johnson, 534 F.3d at 1122.
The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, evidences a congressional intent to afford endangered species the highest of priorities. TVA v. Hill, 437 U.S. 153, 194 (1978). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184. To accomplish this goal, the ESA sets forth a comprehensive program to limit harm to endangered species within the United States. Section 9 of the ESA establishes a blanket prohibition on the taking2 of any member of a listed endangered species. 16 U.S.C. § 1538(a)(1)(B). Section 7 affirmatively commands each federal agency to "insure that any action authorized, funded, or carried out" by the agency "is not likely to jeopardize thecontinued existence of any endangered species...or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). However, Section 7 carves out limited exceptions for federal agencies and certain statutorily defined "applicants," allowing those contemplating action that may harm endangered species to obtain a limited exemption from penalties under certain circumstances. 16 U.S.C. § 1536(a)-(c), (o); 50 C.F.R. § 402.02.
Under Section 7, if any listed (or proposed listed) species may be present in the area of the proposed action, the federal agency (the "action agency") must conduct a biological assessment to determine the likely effect of its proposed action on the species. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.02. If the action agency concludes that its proposed action may affect listed species or critical habitat, it must initiate formal...
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