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Western Watersheds Project v. U.S. Fish and Wildlife Service

United States District Court, Ninth Circuit

June 26, 2013

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
U.S. FISH AND WILDLIFE SERVICE and U.S. FOREST SERVICE, Defendants.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

INTRODUCTION

The Court has before it a motion for preliminary injunction filed by plaintiff WWP. The Court heard oral argument on June 19, 2013, and took the motion under advisement. For the reasons explained below, the Court will deny the motion.

LITIGATION BACKGROUND

WWP alleges that grazing in the Little Lost River watershed is harming bull trout, a species listed as threatened under the Endangered Species Act (ESA). In its original motion, WWP sought to enjoin grazing on two allotments in that watershed, contained within the Salmon-Challis National Forest: (1) Mill Creek and (2) Pass Creek.

Later, WWP withdrew its request as to Mill Creek, relying on the Forest Service's representation that no grazing will be permitted on that allotment until the Fish & Wildlife Service (FWS) issues a new Biological Opinion. Thus, the only allotment at issue is the Pass Creek allotment.

FACTS

The Pass Creek allotment is governed by the Forest Service and lies on the southwest side of the Little Lost River valley. It straddles the Lost River Range, with the southern portion draining south into the Big Lost River watershed and the northern portion draining into Wet Creek, which flows into the Little Lost River. Bull trout have occupied both Wet and Big Creeks on the allotment, although they have not been documented in Big Creek since 1998. The population in Wet Creek is small, with less than 10 individuals observed in recent years.

In 2010, the Forest Service initiated consultation with the FWS over the impacts of grazing on bull trout within the allotment. To start the process, the Forest Service prepared a Biological Assessment for the FWS's review.

At that time, the Forest Service was proposing to authorize grazing 1660 cow/calf pairs between July 15 and October 10 on the allotment. After reviewing the poor condition of much of the allotment, and the predicted impacts of maintaining the same level of grazing as in the past, the Forest Service concluded in its BA that the proposed grazing will "likely limit the ability of the habitat to support Bull Trout."

The FWS reviewed the BA in light of its recovery plan designed to increase populations of the bull trout. Bull trout need cold stream temperatures, clean water free of sediment, plant growth along the bank to shade the water, and well-connected migratory pathways. Recognizing regional variations in the bull trout recovery process, the FWS has grouped different regions into Interim Recovery Units (IRU) for management purposes. The bull trout in this case are part of the Columbia River IRU, which in turn is divided into 90 Core Areas. The bull trout in the Pass Creek allotment are contained in the Little Lost River Core Area.

Within this Core Area, there are ten "local populations" all of which are identified as essential for bull trout recovery. A local population is a group of bull trout that spawns within a particular stream or portion of a stream and is the smallest interacting reproductive unit of bull trout. To recover populations of Columbia River bull trout, the FWS's recovery plan was designed to do the following: (1) maintain or expand the current distribution of the bull trout within Core Areas; (2) maintain stable or increasing trends in bull trout abundance; (3) maintain/restore suitable habitat conditions for all bull trout life history stages and strategies; and (4) conserve genetic diversity and provide opportunities for genetic exchange.

After reviewing the Forest Service's 2010 BA, the FWS issued a Biological Opinion (BO) in September of 2010. The BO noted that the bull trout population in the Pass Creek allotment has been "trending down over the last 15 years, " and that a 2009 survey found no bull trout in Wet Creek. See 2010 Pass Creek BO at p. 13. The BO found that "[h]abitat in most of this Allotment... does not adequately support essential biological behaviors of bull trout. Most conditions are below objectives for healthy and robust populations." Id. at p. 29. The BO estimated that the Forest Service's grazing plan - especially the grazing proposed during August along the Wet Creek spawning sites in the Pine Creek pasture - could trample one redd and affect two adult bull trout. Id. at p. 21.

The FWS concluded that "these local populations are important to maintaining overall production and distribution of bull trout in the Little Lost river Core Area." Id. Nevertheless, the FWS found that the trampling of a single redd, and the potential impacts to two bull trout, were "unlikely to be incompatible with sustaining the two local populations as viable populations of bull trout." Id. at p. 29. On a broader scale, the FWS concluded that there was no threat to the "coterminous U.S. population" because (1) the Little Lost River Core Area is "not geographically connected to the rest of the Columbia River Recovery unit, ...


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