United States District Court, D. Idaho
WILDERNESS WATCH, FRIENDS OF THE CLEARWATER, and WESTERN WATERSHEDS PROJECT Plaintiffs,
TOM VILSACK, U.S. Secretary of Agriculture; TOM TIDWELL, Chief, U.S. Forest Service; NORA RASURE, Regional Forester of Region Four of the U.S. Forest Service; CHARLES MARK, Salmon-Challis National Forest Supervisor; and VIRGIL MOORE, Director, Idaho Department of Fish and Game, Defendants.
Lynn Winmill Chief Judge
Court has before it cross motions for summary judgment filed
by all parties here. The Court heard oral argument on the
motions and took them under advisement. For the reasons set
forth below, the Court will grant the motion filed by the
plaintiffs and deny the motions filed by the defendants.
Idaho Department of Fish and Game (IDFG) received approval
from the Forest Service to use helicopters in the Frank
Church Wilderness to tranquilize and collar elk with monitors
to trace their movements. Both agencies were concerned about
reductions in the elk population in the Wilderness Area, and
the project was designed to obtain data that might explain
the mortality problem. Ignoring a prior directive of the
Court, the Forest Service allowed the project to begin
immediately, preventing plaintiff environmental groups from
being able to timely seek injunctive relief. Within three
days the IDFG project was completed, and 57 elk and 4 wolves
environmental groups filed this lawsuit to prevent the IDFG
from using the data and to require that it be destroyed. They
complained that the IDFG obtained approval by proposing a
small plan that hid the much larger impacts of their
long-term plan. In this decision, the Court agrees, and holds
that the Forest Service's approval of the project
violated the National Environmental Protection Act (NEPA) and
the Wilderness Act of 1964. The Court also finds that the
IDFG violated the terms of the approval when it collared the
Court will enjoin the Forest Service from considering the
data collected, and will enjoin the IDFG from using the data
in any way when it seeks future Forest Service approvals.
Although the harm of having helicopter landings in the
Wilderness Area has passed, there is ongoing harm because the
IDFG continues to hold - and plans to use - data that was
obtained in violation of federal law. The Court will
therefore order the IDFG to destroy that data.
1964, Congress passed the Wilderness Act to protect areas
“untrammeled by man, where man himself is a visitor who
does not remain.” See 16 U.S.C. § 1131(c). The
landing of aircraft, among other activities, is banned
“except as necessary to meet minimum requirements for
the administration of the area.” See 16 U.S.C. §
1980, Congress created the Frank Church Wilderness, spanning
2.4 million acres, the largest forested wilderness in the
lower 48 states. The enabling legislation - the Central Idaho
Wilderness Act - stated that this area would be governed by
the Wilderness Act.
two years earlier, in 1978, the gray wolf was declared to be
an endangered species under the Endangered Species Act (ESA).
To reintroduce the wolf to the Rocky Mountain area, the Fish
and Wildlife Service released 35 gray wolves into the Frank
Church Wilderness in 1995 and 1996.
wolf recovery was extremely successful, their numbers
increased dramatically, and they were delisted in 2009. The
wolf packs were monitored by the Idaho Department of Fish and
Game (IDFG), and in 2010, the agency petitioned the Forest
Service to conduct helicopter monitoring in the Wilderness
Area. The IDFG's plan was to shoot several wolves with
tranquilizer darts from a helicopter and then affix telemetry
collars that would allow the IDFG to monitor their movements.
The plan contemplated 20 helicopter landings in the
Wilderness Area over a two-week period.
Forest Service approved the IDFG's plan, prompting
environmental groups to file a lawsuit in this Court to block
the plan because helicopter landings were inconsistent with
the wilderness values of the Wilderness Area. The case
presented a “conundrum”: The intrusive helicopter
flights were inconsistent with wilderness values, but their
purpose - to better understand the wolf - furthered
wilderness values. Wolf Recovery Foundation vs.
U.S., 692 F.Supp.2d 1264, 1269-70 (2010). Ultimately,
the Court was persuaded that the unique value of that
particular study, coupled with the relatively small number of
landings and short duration of the project, outweighed
concerns over the disruption to wilderness values. But the
Court made clear that its decision was not a free pass for
further helicopter visits:
[T]he next helicopter proposal in the Frank Church Wilderness
will face a daunting review because it will add to the
disruption and intrusion of this collaring project. The
Forest Service must proceed very cautiously here because the
law is not on their side if they intend to proceed with
further helicopter projects in the Frank Church Wilderness.
The Court is free to examine the cumulative impacts of the
projects, and the context of the use. Given that this project
is allowed to proceed, the next project will be
extraordinarily difficult to justify.
Id. at 1270. The Court also put the Forest Service
on notice that the agency “would be expected to render
a final decision [on any helicopter project in the Wilderness
Area] enough in advance of the project so that any lawsuit
seeking to enjoin the project could be fully
litigated.” See Wolf Recovery Foundation v.
U.S., 2010 WL 2898933 at *1 (D. Id. July 21,
2010). The agency would ignore that directive in the present
case, as discussed further below.
the IDFG was estimating elk populations in the Wilderness
Area through aerial surveys that did not involve collaring
but relied entirely on visual sightings from the air.
According to those surveys - conducted every 5 to 10 years -
the elk population in the Wilderness Area was declining
rapidly. FS000094. The IDFG believed the decline of
the elk in the Wilderness Area was due to wolf predation.
They drafted a Predation Management Plan that called for,
among other things, deploying professional trappers to kill
60% of the resident wolves. FS011015-011016.
confirm their suspicions, the IDFG again asked the Forest
Service to allow them to conduct helicopter landings in the
Wilderness Area. Their initial plan, proposed in 2014, sought
to collar both wolves and elk over a 10-year period.
FS000444 (attachment entitled “Minimum Requirements
Decision Guide” at pg. 26). The IDFG proposed
making 160 helicopter landings in each of the first two
years, and then 90 landings per year in the remaining years,
for a total of 1, 040 landings. Id. But the wolf
collaring portion of that plan was later dropped, as noted by
the Forest Service: “Wolves are off the table until
[the IDFG can] gain understanding of elk.”
only on elk collaring, the IDFG submitted a new proposal
seeking approval for 10 years of annual helicopter landings.
The IDFG wanted to study elk survival rates and population
numbers by attaching radio collars to the elk and monitoring
their movements. The plan included 120 landings in each of
the first two years and 70 landings per year thereafter for a
total of 800 landings over a decade. FS000021.
alternative, the IDFG proposed a shorter but more intensive
5-year program that would include 570 helicopter landings.
FS000028. But the IDFG conceded that this shortened
proposal did not allow enough time to obtain valid elk
mortality data, and that “an extension beyond 5 years
would be necessary.” Id.
IDFG prepared a draft Minimum Requirements Analysis (MRA)
that recognized both the need for elk monitoring and the
disruption of wilderness values that would occur under either
the 10-year or 5-year alternatives. That MRA was dated August
7, 2015. FS000003-44.
next day - August 8, 2015 - the IDFG submitted an even
shorter proposal to conduct the elk collaring in a single
year with just 120 helicopter landings. FS000061.
The agency's goal was to capture and collar 60 elk over a
5-day period between December, 2015, and March, 2016. The
Forest Service noted the IDFG's reason for shortening the
proposal: “While IDFG acknowledges longer term plans[,
] they have taken [those plans] off the table for now and
just are need of getting elk off the ground.”
FS000227. It is this proposal that was ultimately
approved by the Forest Service and is now before the Court
for review. The proposal was formally presented for public
comment on August 24, 2015. FS 000091-107.
Forest Service was fully aware that the IDFG was still
pursuing a long-term elk collaring project, and concluded
that continued elk collaring beyond the 1-year period was
“[r]easonably foreseeable.” FS000107.
The Forest Service noted in another document that the
“[f]oreseeable future is a 10-year elk collaring by
IDFG . . . .” FS 000228.
conclusion was inescapable given the IDFG's own
concession that even a 5-year collaring program was not
sufficient to obtain valid data. There was never any question
that the IDFG's ultimate goal was to obtain 10 years of
data through roughly 800 helicopter landings.
receiving public comment, the Forest Service prepared an
Environmental Assessment (EA) evaluating the IDFG's
one-year elk collaring proposal. The EA process required the
Forest Service to evaluate the cumulative impacts of this
proposal along with other foreseeable impacts, and the Forest
Service conducted that analysis in § 126.96.36.199 of the EA:
Continued long-term elk collaring activities in the
[Wilderness Area] have been identified as a reasonably
foreseeable future action. If continued elk collaring
activities were to occur, cumulative effects would be high
(noticeable and affecting more than two qualities of
wilderness character), extended (throughout the project area
and indirectly affecting adjacent wilderness lands),
long-term to permanent (if operations were to occur longer
than 5 years), and unique (affecting lands protected by
legislation to preserve wilderness character). Such a project
has the potential to change the untrammeled, undeveloped,
natural, and outstanding opportunities qualities of
wilderness character in the [Wilderness Area] for years to
come, even though the bulk of the operations would occur over
just a few days each winter. Effects would be especially
pronounced during the winter months when helicopter landings
would take place, but indirect effects to wilderness
character would persist year-round for many years (such as
collars on elk). Adverse cumulative impacts would also occur
to non-use wilderness values, especially to bequest value.