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

United States District Court, D. Idaho

September 29, 2014

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
U.S. FISH AND WILDLIFE SERVICE and U.S. FOREST SERVICE, Defendants. ROCKY & CAROL ROSS, DONALD & BILLIE PHILLIPS, Defendant-Intervenors.

MEMORANDUM DECISION

B. LYNN WINMILL, District Judge.

INTRODUCTION

The Court has before it cross motions for summary judgment filed by all parties and the intervenors. The Court heard oral argument and took the motions under advisement. For the reasons set forth below, the Court will grant the motions filed by defendants and intervenors, and deny the motion filed by plaintiff WWP.

LITIGATION BACKGROUND

The Forest Service manages grazing on the Mill Creek and Pass Creek allotments while the BLM manages grazing on the Hawley Mountain allotment. All three allotments contain bull trout, a threatened species under the Endangered Species Act (ESA). The bull trout that exists in this region - the Little Lost River watershed - is a genetically unique species.

In drafting grazing plans, the agencies examined the impact of the proposed grazing on bull trout. The Forest Service concluded that on the Mill Creek allotment and the Pass Creek allotment, the grazing plans may affect the bull trout, and so the agency prepared a Biological Assessment (BA) and consulted with the Fish and Wildlife Service concerning those impacts. The BLM concluded that its grazing plan was not likely to adversely affect bull trout. It prepared a BA for the FWS's review supporting that conclusion.

The FWS reviewed the BAs, and prepared Biological Opinions (BOs) for the Mill Creek and Pass Creek allotments, and a Letter of Concurrence (LOC) for the Hawley Mountain allotment. In the BOs, the FWS approved the grazing plans and found that they would not jeopardize the bull trout or adversely affect its habitat. In the LOC, the FWS concurred in the BLM's conclusion that the grazing plan would not adversely affect the bull trout or its habitat.

In this lawsuit, WWP challenges the approvals by the FWS, and the grazing management of the Forest Service; WWP has not sued the BLM. WWP argues that the FWS's approval of the grazing plans violates the ESA, that the Forest Service failed to develop grazing plans that avoid jeopardizing the bull trout, and that the Forest Service's grazing management results in the "take" or death of bull trout.

More specifically, WWP challenges three approvals: (1) FWS's 2010 Biological Opinion approving proposed grazing on the Forest Service's Pass Creek allotment; (2) FWS's 2013 Biological Opinion approving proposed grazing on the Forest Service's Mill Creek allotment; and (3) FWS's 2013 Letter of Concurrence (LOC) approving proposed grazing on the Forest Service's Hawley Mountain allotment. The permit holders on the Mill Creek allotment - Rocky and Carol Ross and Donald and Billie Phillips - have intervened in this case.

WWP also alleges that the Forest Service violated § 7 and § 9 of the Endangered Species Act (ESA) by, respectively, (1) jeopardizing the existence of bull trout, and (2) causing the take of bull trout by issuing permits for grazing on the allotments under its stewardship.

WWP's complaint contains five causes of action: (1) The FWS BO for the Mill Creek allotment violates the ESA; (2) The Forest Service grazing decisions violated the ESA on the Mill Creek allotment; (3) The FWS BO for the Pass Creek allotment violates the ESA; (4) The Forest Service grazing decisions violated the ESA on the Pass Creek allotment; and (5) The FWS LOC for the Hawley Mountain allotment violates the ESA. The parties have filed cross motions for summary judgment on all these claims.

Before reviewing the facts concerning each of the three allotments challenged by WWP, the Court finds first that the challenge to one of those allotments is moot. About a year after this lawsuit was filed, the FWS issued a new BO for the Pass Creek allotment. The current cross motions for summary judgment all address the 2010 FWS BO for the Pass Creek allotment, but that document is completely superseded and replaced by the 2014 FWS BO. It is well-established that "the issuance of a superseding [Biological Opinion] moots issues... relating to the preceding [Biological Opinion]." Grand Canyon Trust v. U.S. FWS, 691 F.3d 1008, 1017 (9th Cir. 2012) (holding that challenges under the ESA to the FWS's 2009 Biological Opinion was mooted by the issuance of a 2011 Biological Opinion). The Court will therefore dismiss the challenges to the 2010 Pass Creek BO, which will involve dismissing Counts Three and Four of the complaint. The only two allotments at issue now are the Mill Creek allotment and the Hawley Mountain allotment.

FACTS

Mill Creek Allotment

The Mill Creek allotment contains over 50, 000 acres, located primarily in the Sawmill Canyon watershed. The allotment contains more bull trout than any other area in the Little Lost River Core Area. The Forest Service BA and the FWS BO note that "bull trout are widely and relatively abundant across the allotment...." See FWS BO at 28. They estimate that "95 percent of the bull trout in the Little Lost River basin occur in this area. Id. Spawning occurs in 29.5 miles of streams, including Squaw Creek, Mill Creek, Smithie Fork, and Timber Creek. Seven of the ten local populations within the Little Lost River Core Area are found in this allotment. Id. at 29.

The largest threats to bull trout on this allotment are brook trout and grazing. Id. at 35. Grazing is managed by the Forest Service, and it rotates cattle among six pastures. Up to 554 cow/calf pairs are authorized to graze the allotment from July 1 to September 30. Movements of cattle from one pasture to another would be triggered by designated indicators such as stubble height, stream bank alteration, browse use, etc.

Trends in bull trout abundance across the allotment are mixed. Id. at 29. In 2011 and 2012, bull trout densities increased at 5 sites, decreased at 2 sites and remained static at one site. Id. Although the FWS found that the proposed grazing would not likely lead to any additional increases in water temperature, the agency found that "past livestock grazing has likely increased stream temperatures on this allotment, contributing to the ability of brook trout to out-compete bull trout." Id. While brook trout are a serious threat, the FWS found that the Forest Service is "working to contain the spread of brook trout through barrier, physical removal, and "changes in livestock management leading to improving stream conditions." Id. at 30. In addition, the Forest Service is working with Trout Unlimited to tag and monitor brook trout to evaluate the effectiveness of barriers. Turning to grazing impacts, the FWS BO concludes that "recent livestock management on the allotment has resulted in many bull trout habitat conditions trending upward or meeting objectives." Id.

The FWS BO labels the grazing levels on this allotment as "light to medium" given the 4 to 6 inch stubble height requirement imposed by the Forest Service. This level of grazing, the FWS concluded, should improve habitat by narrowing and deepening streams, increase stream bank stability, and generate more vegetation growth along the streams. Id. at 43. The BO concludes that the grazing level "is consistent with maintaining habitat in a suitable condition to maintain ...


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