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Western Watersheds Project, Center For Biological Diversity, and Wildearth Guardians v. U.S. Fish and Wildlife Service

July 9, 2011

WESTERN WATERSHEDS PROJECT, CENTER FOR BIOLOGICAL DIVERSITY, AND WILDEARTH GUARDIANS,
PLAINTIFFS,
v.
U.S. FISH AND WILDLIFE SERVICE, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it motions to intervene filed by Utah, Wyoming, and a group of trade organizations conducting activities within the habitat of the sage grouse. The motions are fully briefed and at issue. For the reasons expressed below, the Court will grant the motions and allow the applicants to intervene as of right under Rule 24(a)(2).

LITIGATION BACKGROUND

In 2007, the Court ruled that the decision of the U.S. Fish and Wildlife Service (USFWS) that the listing of the sage grouse was "not warranted" under the ESA was arbitrary and capricious. On remand, the USFWS spent about two years reevaluating its listing decision. In 2010, the agency concluded that the listing was "warranted, but precluded by higher priority listing actions." See 75 Fed. Reg. 13910 (March 23, 2010). The USFWS went on to state that "[w]e will develop a proposed rule to list the greater sage grouse as our priorities allow." Id.

In reaching this conclusion, the USFWS reasoned that (1) it cannot, by law, spend more than Congress appropriates, (2) it has about $11 million to spend on listing actions for all species, (3) this limited fund requires the agency to assign priority numbers to each listed species depending on the magnitude and immediacy of risks, and (4) there are a large number of species with priority numbers higher than the sage grouse, meaning that these other species must receive attention first. Id. To be entitled to make a "warranted but precluded" finding, an agency must also demonstrate that it is making "expeditious progress" in clearing the backlog that warrants the finding -- the USFWS made this finding by pointing to the actions it completed in 2010 on different listed species. Id.

WWP filed this lawsuit to challenge the "precluded" portion of the USFWS's "warranted but precluded" decision.*fn1 Specifically, WWP claims that (1) the law forbids the USFWS from refusing to proceed with a listing due to a lack of resources, (2) the USFWS failed to estimate the cost of a sage grouse listing, (3) the USFWS has already done most of the work for a listing and so the cost would not be great, (4) the agency has received an increase in funding lately, not reflected in this decision, (5) the agency has used improper criteria to ignore its own priority listings in the past, and (6) the agency is not making expeditious progress on the backlog and hence has no right under the law to make a "warranted but precluded" decision.

These factors, WWP argues, warrant a finding that the "precluded" portion of the USFWS's decision was arbitrary and capricious. WWP seeks to remand the case to the USFWS to "promptly publish a proposed listing rule for the greater sage grouse and/or the two distinct population segments on a court-ordered deadline." See Amended Complaint (Dkt. 8) at p. 29.

Seekingto intervene in this litigation are Wyoming, Utah, and a group of nonprofit trade organizations, whose members include farmers and ranchers who are directly dependent on grazing to earn a living. For ease of reference, the Court will collectively refer to these trade organizations by the name of one of their members, the Idaho Cattle Association (ICA).

Wyoming seeks intervention because sage grouse habitat covers roughly two-thirds of the State. Between one-third to one-half of the total sage grouse population is found in Wyoming. A listing would affect mineral, oil, and gas development over 42 million acres, and also affect recreational activities. Wyoming also points to the extensive conservation efforts and resources that it has dedicated to the recovery of the sage grouse. See Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001) (holding that in evaluating motion to intervene, court must "take all well-pleaded, nonconclusory allegations . . . as true absent sham, frivolity or other objections").

Utah has a smaller but still significant population of sage grouse. In 2008, the Utah Legislature appropriated $2 million for sage grouse conservation actions, and 11 separate Local Working Groups are currently engaged in sage grouse studies in 15 different locations. Utah estimates that it has spent over $16 million on sage grouse habitat improvement projects.

ICA members graze cattle and conduct other activities in sage grouse territory. For many of them, these activities constitute their livelihood. If the sage grouse is listed, ICA members may be forced to adopt expensive mitigation measures and could be barred altogether from conducting their activities in certain areas.

On the basis of these interests, the applicants seek intervention as of right and permissive intervention. WWP resists intervention for all purposes but agrees that the ...


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