Wilderness Watch Inc. v. U.S. Fish

• Citation: 629 F.3d 1024
• Decision Date: 21 December 2010
• Docket Number: No. 08-17406,08-17406
• Parties: WILDERNESS WATCH, INC.; Arizona Wilderness Coalition; Sierra Club; Western Watersheds Project; and Grand Canyon Wildlands Council, non-profit corporations, Plaintiffs-Appellants, v. U.S. FISH AND WILDLIFE SERVICE; H. Dale Hall, in his official capacity as Director of the U.S. Fish and Wildlife Service; Paul Cornes, in his official capacity as the Kofa Wildlife Refuge Manager; and Chris Pease, in his official capacity as Regional Refuge Manager, Defendants-Appellees, and U.S. Sportsmen's Alliance Foundation; Arizona Desert Big Horn Sheep Society; Arizona Deer Association; Arizona Antelope Association; Foundation for North American Wild Sheep; Yuma Valley Rod & Gun Club, Inc.; Safari Club International; Safari Club International Foundation; National Rifle Association; and State of Arizona, Defendant-Intervenors-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

629 F.3d 1024

WILDERNESS WATCH, INC.; Arizona Wilderness Coalition; Sierra Club; Western Watersheds Project; and Grand Canyon Wildlands Council, non-profit corporations, Plaintiffs-Appellants,

v. U.S. FISH AND WILDLIFE SERVICE; H. Dale Hall, in his official capacity as Director of the U.S. Fish and Wildlife Service; Paul Cornes, in his official capacity as the Kofa Wildlife Refuge Manager; and Chris Pease, in his official capacity as Regional Refuge Manager, Defendants-Appellees,andU.S. Sportsmen's Alliance Foundation; Arizona Desert Big Horn Sheep Society; Arizona Deer Association; Arizona Antelope Association; Foundation for North American Wild Sheep; Yuma Valley Rod & Gun Club, Inc.; Safari Club International; Safari Club International Foundation; National Rifle Association; and State of Arizona, Defendant-Intervenors-Appellees.

No. 08-17406.

United States Court of Appeals, Ninth Circuit.

Dec. 21, 2010.

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, for the plaintiffs-appellants.

Justin R. Pidot, Environment & Natural Resources Division, United States Department

of Justice, Washington, D.C., for the defendants-appellees.

James F. Odenkirk, Assistant Attorney General, Phoenix, AZ, and William P. Horn, Birch, Horton, Bittner and Cherot, Washington, D.C., for the defendant-intervenors-appellees.

Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. 2:07-cv-01185-MHM.

Before: A. WALLACE TASHIMA, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge Bybee.

OPINION

GRABER, Circuit Judge:

The Kofa National Wildlife Refuge and Wilderness in southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service ("Service") built two water structures (the Yaqui and McPherson tanks) within the wilderness area. Plaintiffs Wilderness Watch, Inc., Arizona Wilderness Coalition, Grand Canyon Wildlands Council, Western Watersheds Project, and Grand Canyon Chapter of the Sierra Club brought suit against the Service. Plaintiffs allege that the Service's actions violated the express prohibition on the development of structures in the Wilderness Act, 16 U.S.C. §§ 1131-1133. The district court granted summary judgment to the Service, and Plaintiffs timely appeal. Reviewing de novo, High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 638 (9th Cir.2004), we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Situated between two mountain ranges, the Kofa Refuge and Wilderness consists of more than 600,000 acres of land in the Sonoran Desert in southwest Arizona. The area contains steep slopes, sparse vegetation, poor soil, and an extremely dry ecosystem. Summer temperatures can reach 120 degrees. The average rainfall measured at one weather station in the Kofa Mountains is about seven inches a year. Most of the rainfall occurs during one month, followed by many hot summer months with no measurable precipitation. The vegetation is dominated by saguaro, creosote, ironwood, paloverde, and mesquite. Kofa is home to 45 mammal species, including the desert bighorn sheep and muledeer, and 47 species of reptiles.

President Franklin D. Roosevelt established the Kofa Game Range by executive order in 1939. The President's order expressly designated the area for the "conservation and development of natural wildlife resources," Exec. Order No. 8039, 4 Fed.Reg. 438 (Jan. 25, 1939), and it was understood that preservation of bighorn sheep was one of the principal reasons for establishing the refuge. See David Brown, Early History, in The Desert Bighorn Sheep in Arizona 5-7 (Raymond M. Lee, ed., Ariz. Game & Fish Dep't 1993). Following the executive order, the Fish and Wildlife Service and the Bureau of Land Management managed the land until 1976, when the Service assumed sole jurisdiction and the reserve was renamed the Kofa National Wildlife Refuge. See An Act to amend the National Wildlife Refuge System Administration Act of 1966, Pub.L. No. 94-223, 90 Stat. 199.

As a wildlife refuge, the area is subject to the provisions of the Refuge Act. Among other things, the Refuge Act requires the Secretary of the Interior to"provide for the conservation of ... wildlife," "ensure that the biological integrity, diversity, and environmental health of the System are maintained," and "assist in the maintenance of adequate water quantity and water quality to fulfill the mission of the System and the purposes of each refuge." 16 U.S.C. § 668dd(a)(4)(A), (B), (F). In 1990, Congress designated about 82% of the Kofa National Wildlife Refuge as wilderness, and it became the Kofa National Wildlife Refuge and Wilderness.¹ Arizona Desert Wilderness Act of 1990, Pub.L. No. 101-628, § 301(a)(3), 104 Stat. 4469. In doing so, Congress subjected the area to the provisions of the Wilderness Act.

Under the Wilderness Act, the Service is "responsible for preserving the wilderness character of the area," but it also must "administer such area for such other purposes for which it may have been established as also to preserve its wilderness character." 16 U.S.C. § 1133(b). Congress specifically provided that "wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use." Id. "[E]xcept as necessary to meet minimum requirements for the administration of the area," the Wilderness Act prohibits any "temporary road, ... use of motor vehicles, motorized equipment or motorboats, ... landing of aircraft, ... mechanical transport, and ... structure or installation" within a wilderness area. Id. § 1133(c). The Act declares that the purposes of the Wilderness Act are "within and supplemental to the purposes for which ... [the] national wildlife refuge systems are established and administered." Id. § 1133(a). Thus, in managing the Kofa Wilderness, the Service must comply with both the Wilderness Act and the Refuge Act.

Since the 1950s, the State of Arizona, non-profit organizations, and the federal government developed water sources such as catchments, wells, and tanks to augment the availability of water for the bighorn sheep that inhabit the area. There are now more than 100 water sources in the area. During the summer months, the distribution of bighorn sheep is restricted by water availability, and most sheep can be found within a two-mile radius of water sources. With the cooperation of the Arizona Game and Fish Department and the Arizona Desert Bighorn Sheep Society, refuge personnel build, maintain, and monitor the water sources. During times of "extensive drought," refuge personnel transport water to the structures. Wildlife managers believe that these water sources have been instrumental in helping to restore the population of bighorn sheep.

A. The Management Plan for the Refuge

After Congress designated most of the Kofa Refuge as a wilderness area in 1990, and in an attempt to coordinate the dual purposes of the Kofa Wilderness and Refuge, the Service and the Bureau of Land Management ("BLM") issued a management plan. Kofa National Wildlife Refuge and Wilderness Interagency Management Plan (1997) ("Management Plan").² The plan, which received public review andcomment, was intended to ensure that future management decisions and techniques concerning the Kofa Wilderness were compatible with the Wilderness and Refuge Acts. The plan recognized the purpose of the Kofa Wilderness in preserving bighorn sheep:

Historically, Kofa ... ha[s] played a central wildlife and wildlands conservation role in western Arizona. To counter dwindling populations of desert bighorn sheep in the earlier part of the century, a management theme relating to the recovery of the species had become necessary beyond the establishment of legal protection for the species under the Arizona State Game code. Thus, a clear and dominant strategy for the management of these historically "rocky, waterless sierras ..." was designed specifically for the recovery of bighorn sheep populations.

Management Plan at 2 (second ellipsis in original) (footnote omitted). The plan stated that the Service and the BLM would "continue important efforts on behalf of the bighorn sheep." Id. at 3. The plan acknowledged that, although the wilderness designation of the land would "not chang[e] the purposes of these areas or the importance of current activities," the designation would "call for the consideration of these activities within the larger ecological contexts and within national wilderness goals inherent in the Wilderness Act of 1964." Id. The plan stated that "[t]he needs of the species and the requirements of the Act are not necessarily in conflict. In fact, the habitat management work done to benefit bighorn sheep, including water development, could have a positive influence on the natural cycles of predation and succession for a diversity of life in the desert without detraction of wilderness attributes and values." Id. at 39-40.

After espousing a broad goal to reconcile the Wilderness and Refuge Acts in the Kofa Wilderness, the plan discussed comprehensive planning objectives for the area. The plan addressed many issues, including "protection of wilderness values," "wildlife and habitat management," "law enforcement and emergency services," and "Native American religious access." Id. at 5-7 (some capitalization omitted). With respect to wildlife protection, the plan explained that "the Service is responsible to carry out a dual, but nonetheless interrelated, role of managing for bighorn sheep within the context of wilderness." Id. at 37. According to the plan, the Service would use "minimum tools" in order to "maintain[ ] an optimal desert bighorn sheep population." Id. at 53.

B. Decline in Population of Bighorn Sheep, and the Service's Response

As the Management Plan described, the Kofa...