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Western Watersheds Project v. United States Forest Service

United States District Court, D. Idaho

October 31, 2017

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
UNITED STATES FOREST SERVICE, Defendant, CHALLIS CREEK CATTLE CO., LLC, et ah, Defendant-Intervenors.

          MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKTS. 34, 44 AND 46)

          HONORABLE RONALD E. BUSH U.S. MAGISTRATE JUDGE.

         This case involves a challenge to grazing activity on four allotments within the Salmon-Challis National Forest in central Idaho. Currently pending are three cross-motions for summary judgment (Dkts. 34, 44, and 46). One is filed by the Plaintiff, Western Watersheds Project ("WWP"), another by the Defendant, United States Forest Service ("the Forest Service"), and the third by the Intervenors, a group of grazing Permit holders who graze cattle on lands within the Salmon-Challis National Forest.[1] The issue before the Court is whether the Forest Service violated the National Forest Management Act when it re-authorized grazing on the allotments in 2015, by failing to consider whether continued grazing was impairing the recovery of riparian habitat adjacent to streams on the four allotments. WWP argues that the Forest Service failed to consider a set of riparian recovery standards adopted by the Forest Service in 1995 and incorporated into all Forest Plans. The Defendants and Intervenors raise a number of arguments as to why those standards do not apply to the particular watersheds at issue in this case. The Defendants and Intervenors also argue that the Forest Service's substantive decisions deserve deference under the Administrative Procedure Act. All parties have consented to the exercise of jurisdiction by a United States Magistrate Judge. The Court conducted a hearing, after which it ordered additional briefing. Being fully advised, the Court enters the following order.

         I. SUMMARY OF DECISION

         Plaintiff WWP filed suit to challenge the Forest Service's policies regarding grazing practices and permits in the Antelope, Boone Creek, Copper Basin, and Wildhorse grazing allotments in the Salmon-Challis National Forest, seeking to stop grazing in the listed areas because of its negative impact to native fish habitat. To do this, it argues the Forest Service violated federal law by failing to comply with required stream habitat conservation strategies.

         Various ranchers holding grazing permits on the allotments at issue intervened in the case. WWP, the Forest Service, and the Intervenors each moved for summary judgment. This decision resolves all three of those motions, denying WWP's motion and granting the motions of the Forest Service and the Intervenors. Because deciding these motions resolves all the issues in the case, the case will be dismissed.

         The precise legal claim in this lawsuit is whether the Forest Service violated the National Forest Management Act when it authorized livestock grazing without, as WWP contends, properly considering the impact to native fish habitat. WWP asserts that the grazing permits and their accompanying "Annual Operating Instructions" are inconsistent with the official Salmon-Challis National Forest Plan, including the INFISH aquatic conservation strategy incorporated into that Plan. The Forest Service and the Intervenors deny that the Forest Service has violated the law and disputes that there are any inconsistencies in the Forest Service's actions.

         Because this lawsuit challenges the official actions of a federal agency carrying out its duties under the National Forest Management Act, the applicable legal standards are supplied by the federal Administrative Procedure Act. Therefore, WWP's burden is to prove that the Forest Service's actions violated the law or were otherwise improper. WWP failed to meet this burden.

         However, the Court also decides that, contrary to the arguments of the Forest Service and the Intervenors, the INFISH strategy does apply to the grazing permits at issue, because by its terms INFISH applies to all National Forest lands within the Columbia River Basin - including the allotments at issue here. No exceptions or limitations apply to take these allotments out of the INFISH domain. But the Court agrees with the Forest Service and the ranchers that the grazing permits and associated Annual Operating Instructions were lawful and proper. Despite WWP's evidence and argument that the nearby streams fail to meet target quality goals for riparian habitat, the Court must defer to the Forest Service's scientific judgments regarding stream quality. Regardless, the applicable laws do not require the Forest Service to cease or curtail grazing based just on poor stream quality; rather, there must be a demonstrated relationship between grazing and poor stream quality before the Forest Service becomes obligated to act. The evidence is not persuasive here that such a relationship exists.

         WWP's remaining arguments likewise fail to prove that the Forest Service violated any law by issuing the grazing permits and the Annual Operating Instructions. Accordingly, summary judgment is granted in favor of the Forest Service and the Intervenors, and the case will be dismissed.

         II. BACKGROUND

         The four grazing allotments within the Salmon-Challis National Forest are the Antelope Allotment, the Boone Creek Allotment, the Copper Basin Allotment, and the Wildhorse Allotment. The area in which these allotments are located is locally known as the Copper Basin. Numerous streams of various sizes run through these allotments. These streams are home to several species of fish, including whitefish, short-nosed sculpin, and paiute sculpin. (Defendant's Statement of Facts ("SOF") ¶ 4, Dkt. 46-2.) Though none of these species is federally listed under the Endangered Species Act, the fish populations in these streams are much lower than their historic levels, and their numbers are also much lower than they were in the 1980s. (Plaintiffs SOF ¶¶ 4-5, Dkt. 34-3.)

         Grazing in the general Copper Basin area has existed since the late 19th century, and it is conducted according to grazing permits granted by the Forest Service. These permits generally last for ten years, after which they may be reissued. (See Defendant's SOF at ¶ 6; see also Oregon Natural Desert Ass 'n. v. U.S. Forest Service, 465 F.3d 977, 981 (9th Cir. 2006).) Though the permits last for up to ten years, the Forest Service sometimes makes year-to-year changes to the specific terms under which grazing will be allowed in a particular season. For example, the Forest Service might increase or decrease the number of cattle allowed on an allotment in response to drought conditions or overuse by cattle, or it might shorten or lengthen the allowable time for grazing, again depending on conditions. Each spring, prior to the beginning of the grazing season, the Forest Service issues a set of instructions called "Annual Operating Instructions" ("AOIs") detailing specific requirements that ranchers must follow for that particular season. (Defendant's SOF at ¶ 6.) The AOIs document the Forest Service's decisions on season-to-season changes in grazing in order to adjust to changing conditions on the allotments. Id; see also ONDA, 465 F.3d at 981.[2] The AOIs prescribe the number of cattle that will be allowed in particular parcels of an allotment, the days on which cattle will be allowed on those pastures and the dates they need to be moved, the number of riders that will be required to keep cattle from straying out of designated areas of use, as well as improvements (such as the fencing off of sensitive areas) that the Forest Service might require of ranchers to minimize the environmental impacts of grazing. (Defendant's SOF at ¶ 6.) Throughout the grazing season, the Forest Service monitors the allotments for such things as forage use, fence maintenance, and whether the permit holders are following the required schedule of cattle rotation. Id. ¶ 7.

         Then, at the end of the grazing season, the Forest Service takes certain measurements, using stubble height and woody browse criteria, to determine whether the cattle have exceeded limitations (which are set in the permits) on how much vegetation can be consumed (or remain). Specifically, the Copper Basin allotments require that grazing be managed so that grass stubble height at the end of season be at least four inches. The "woody browse" criterion requires that cattle consume no more than fifty percent of the leaves on woody plant species on the allotments. Measurements of the stubble height and woody browse criteria as well as assessments of whether the permittees have met these goals, are contained in "End of Season Reports, " which are issued every fall, at the end of the grazing season. (Id.; see also AR 237-49, 1320-38, 2292-96, 5823-25 (examples of End of Season Reports).) Another focus of Forest Service monitoring efforts detailed in End of Season Reports is the "Greenline Ecological Status" of certain riparian areas on the allotments.[3] (See, e.g., AR 178, 10038, 11602, 11695, and 11261; see also Defendant's SOF at ¶ 36.) Because the Forest Service measures these things in order to assess the impact of grazing on an allotment, these indicators are discussed in detail throughout this decision.

         A. The National Forest Management Act and the Multiple Use-Sustained Yield Act

         In addition to the Administrative Procedure Act, which provides an overall framework for the Court's review of this case, the legal issues in this case also involve consideration of a number of other federal statutes and various rules and standards that have been promulgated in accordance with those statutes. Although a discussion of these various rules inevitably takes on a dry and technical quality, discussing them in some detail is crucial to understanding the legal issues before the Court.

         The Court begins with the National Forest Management Act, most commonly known by the acronym "NFMA." 16 U.S.C. §§ 1600-1614. Enacted in 1976, NFMA provides the principal direction to the Forest Service in its management of all national forest lands. Distilled to its essence, NFMA requires the Forest Service to make forest management decisions by developing a document referred to as the "Forest Plan." The Forest Service has developed a Forest Plan for each National Forest, including the Salmon-Challis National Forest. NFMA also requires the Forest Service to consider the "economic and environmental aspects of various systems of renewable resource management." 16U.S.C§ 1604(g)(3)(A). Another federal act, the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), 16 U.S.C. §§ 528-53, requires that the Forest Service manage forest lands so as to provide for a wide variety of possible uses of those lands, including outdoor recreation, rangeland grazing, timber harvesting, watershed protection, as well as fish and wildlife conservation and wilderness preservation. 16 U.S.C. § 1604(e)(1). Once a Forest Plan is in place for a particular National Forest, each proposed action the Forest Service either takes or allows on that particular forest must be consistent with the Forest Plan. 16 U.S.C. § 1604(1); see also Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1092-93 (9th Cir. 2003).

         Finally, when reviewing an agency decision, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). This well-established principle of administrative law, known as "Chevron deference, " has been interpreted to apply to statutes and regulations, as well as "authoritative agency positions set forth in a variety of other formats." Christensen v. Harris County, 529 U.S. 576, 590 (2000) (Scalia, J., concurring in part and concurring in the judgment). The Christensen majority declined to apply Chevron deference to an agency's interpretation in an opinion letter, suggesting instead that such deference is warranted to interpretations "arrived at after, for example, a formal adjudication or notice-and-comment rulemaking." Id. at 587 (majority opinion).

         B. The Inland Native Fish Strategy - "INFISH"

         In addition to the National Forest Management Act, the Court must consider a set of rules and standards found in a conservation approach known as the Inland Native Fish Strategy. This strategy - known as "INFISH" - came on the heels of another conservation strategy known as PACFISH. (AR 11946.) INFISH was adopted in 1995 after notice-and-comment rule-making. Forest Service, Inland Fish Native Strategy, 60 Fed. Reg. 39, 927 (March 14, 1995). Both INFISH and PACFISH are comprehensive documents containing numerous rules and standards; generally speaking, however, they contain possible methods to maximize quality fish habitat on Forest Service lands, and to minimize the impact on fish habitat of all manner of human activities that carry the potential to degrade fish habitat. PACFISH is focused on anadromous fish and INFISH is focused on freshwater species, but both strategies purport to deal with the degradation of riparian habitats and the decline in native fish populations resulting from decades of human activities, including grazing. For both, the overarching goal was to manage activities on forest lands so as to encourage restoration offish habitat, or at least prevent further degradation.

         Protecting bull trout habitat was a particular concern to the Forest Service when it adopted the INFISH conservation strategy; however, as discussed below, INFISH was designed to protect all inland native fish species and the streams that contained them, not just those streams that did or could support bull trout.[4] Finally, because INFISH was adopted as an amendment to all existing Forest Plans, it is thus part of all Forest Plans, including the plan that governs the Salmon-Challis National Forest. (Defendant's SOF at ¶ 10; AR 11949.) Actions taken by the Forest Service on the Salmon-Challis National Forest must therefore be consistent with INFISH, just as they must be consistent with the overall Forest Plan.

         For this case, the most important part of INFISH is the general framework it created for analyzing whether riparian habitat is improving. To measure improvement (or decline), INFISH established a set of "riparian management objectives" or "RMOs." RMOs are criteria which, in 1995, were believed to provide reliable, objective measures of quality riparian habitat, and which are considered "measurable habitat parameters that define good fish habitat and serve as indicators against which attainment or progress toward attainment of the goals can be measured." (AR 12033.)

         The RMOs established goals for six habitat features, described below:

         1. Pool frequency: fish like to linger in pools and generally prefer a pool over swiftly moving water.

         2. Low bank angle: the angle of the bank is significant because the angle of a stream bank affects erosion resistance and because an undercut bank provides cover for fish and the insects fish like to eat.

         3. Bank stability: the stability of a bank also is a measure of erosion resistance. Further, for streams in grazing areas, the bank stability RMO provides a measure of whether the banks have been trampled (by cattle, by people, by machinery, or otherwise) or whether they remain intact.

         4. Large, woody debris: woody debris such as fallen logs or branches in a stream provide refuge for fish and insects (as do pools and undercut banks).

         5. Width-to-depth ratio: narrow deep channels generally provide better fish habitat than do shallow wide streams.

         6. Water temperature: a water temperature of 8.9 degrees Celsius is optimal for bull trout spawning.[5]

         In addition to setting goals for quality riparian habitat (the RMOs), INFISH also contains an extensive set of standards and guidelines for the Forest Service's management of the various activities that take place on forest land, such as logging, mining, road-building, recreation, in addition to grazing. INFISH provides standards for managing each of these activities, including four standards applicable specifically to the management of grazing. For this case, the Court is concerned only with the first standard, named GM-1.[6] GM-1 requires the Forest Services to "[m]odify grazing practices (e.g., accessability of riparian areas to livestock, length of grazing season, stocking levels, timing of grazing, etc.) that retard or prevent attainment of [RMOs] or are likely to adversely affect inland native fish." (AR 11974.) GM-1 requires the Forest Service to "[s]uspend grazing if adjusting practices is not effective in meeting Riparian Management Objectives." INFISH further defines the phrase "retard attainment of an RMO" as "to slow the rate of recovery below the near natural rate of recovery if no additional human caused disturbance was placed on the system." (AR 11968.) The Forest Service's methodology for assessing whether grazing was "retarding" attainment of the RMOs (which it began to develop immediately after the adoption of INFISH) focuses on measuring and tracking three factors: 1) the greenline successional status of riparian habitat; 2) woody species regeneration near streams; and 3) the bank stability RMO. (AR 11924-11930; AR 12186-12225; AR 12281-12443.) This methodology will be discussed in detail later in this opinion.

         Even though the standards of GM-1 and the RMOs are seemingly clear in isolation, several factors muddy the waters, so to speak, when the RMOs are assessed in application to the facts at hand. There is, to begin with, a vast diversity of ecosystems in the West and not all streams are identically created. Some streams are small and some are large. Some are deep and well-shaded, with pools and sharply undercut banks where fat trout like to hide. Some are shallow channels that flow through high sagebrush country characterized by climactic extremes. Because of this diversity, INFISH recognized that not every stream could meet each and every RMO, even if all human activities in or near the stream were completely curtailed. This unrealized (or unrealizable) ambition is explicitly recognized in INFISH, which describes that some RMOs "may not occur in a specific segment of stream within a watershed, but all generally should occur at the watershed scale for stream systems of moderate to large size." (AR 12100.) Further, INFISH recognizes that "the components of good habitat can vary across specific geographic areas." Id.

         Because the measures of habitat naturally vary from stream to stream, INFISH did not prescribe that the RMOs were absolute standards (either floors or ceilings) that all streams had to meet. Rather, they were intended as benchmarks against which progress could be measured until more site-specific targets were identified:

Interim RMOs for stream channel conditions provide the criteria against which attainment or progress toward attainment of the riparian goals is measured. Interim RMOs provide the target toward which managers aim as they conduct resource management activities across the landscape. It is not expected that the objectives would be met instantaneously, but rather would be achieved over time. However, the intent of interim RMOs is not to establish a ceiling for what constitutes good habitat conditions. Actions that reduce habitat quality, whether existing conditions are better or worse than objective values, would be inconsistent with the purpose of this interim direction. Without the benchmark provided by measurable RMOs, habitat suffers a continual erosion.

Id.

         The INFISH RMOs also were not intended to become a permanent template. Rather, INFISH was designed as an interim strategy to last only for eighteen months. During that time period, the Forest Service intended to develop more finely-tailored objectives for specific watersheds in the Columbia River Basin. (Defendant's SOF p. 11.) Indeed, INFISH anticipated that at some point the RMOs would be "refined to better reflect the conditions that are attainable in a specific watershed or stream reach based on local geology, topography, climate and potential vegetation." (AR 12100.)

         Hence, the interim guidelines of INFISH (i.e., the RMOs) were adopted to prevent the further degradation offish habitat while the Forest Service was pursuing the refinement of such objectives to reflect the conditions of specific watersheds and specific streams. However, for whatever reasons, that refinement project was never completed. Instead, INFISH was administratively extended in the late 1990s, and its standards, including the RMOs, thus continue to apply - even though originally not intended to apply on a long term basis across every stream reach within all forest lands subject to INFISH strategy and even though it was recognized at the time that a one-size-fits-all strategy was not appropriate. See Friends of the Wild Swan, Inc. v. U.S. Forest Serv., 966 F.Supp. 1002, 1010 (D. Or. 1997) (recognizing administrative extension of INFISH); see also AR 43014, 43218.

         Finally, the Forest Service participates in a monitoring program, known as the "Pacfish/Infish Biological Opinion Effectiveness Monitoring Program" (the "PIBO Program"), that tracks both end of season use indicators (i.e., the stubble height and woody browse criteria) and RMO data throughout the upper Columbia River Basin, including in the Salmon-Challis National Forest. (Plaintiffs SOF at ¶ 17; Defendant's SOF at ¶¶ 29-33; AR 14237.) One purpose is to evaluate whether stream and riparian conditions are being maintained and improved. Another purpose is analyze the cause and effect of management strategies, which includes looking for "direct links with grazing." (AR 14240.) The PIBO team monitors sites on a rotating basis such that sites are monitored approximately once every five years. (Plaintiffs SOF at ¶ 17.)

         III. ...


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