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Watch v. Vilsack

United States District Court, D. Idaho

January 18, 2017

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.


          B. Lynn Winmill Chief Judge


         The 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.


         The 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 were collared.

         The 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 wolves.

         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.


         In 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. § 1133(c).

         In 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.

         Just 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.

         The 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.

         The 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.

         Meanwhile, 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.

         To 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.” FS000227.

         Focusing 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.

         As an 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.

         The 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.

         The 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.

         The 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.

         This 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.

         After 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 § 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. ...

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