United States District Court, D. Idaho
WESTERN WATERSHEDS PROJECT, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, and PREDATOR DEFENSE, Plaintiffs,
USDA APHIS WILDLIFE SERVICES, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge.
Court has before it plaintiffs' motion for remedies. The
Court heard oral argument on November 28, 2018, and took the
motion under advisement. For the reasons explained below, the
Court will grant the motion in part and deny it in part. The
Court will vacate the 2016 EA and Finding of No. Significant
Impact (FONSI) and remand the action to Wildlife Services for
further review. If on remand Wildlife Services decides to
continue pursuing the Preferred Alternative set forth in the
2016 EA and FONSI, Wildlife Services must prepare an EIS and
ROD prior to any implementation. The Court will deny
WWP's motion to the extent it seeks interim conditions or
deadlines for action during the remand.
years, Wildlife Services has responded to requests from Idaho
livestock producers to kill or remove predators like coyotes
that threaten their herds. When the agency decided to expand
its operations to kill or remove predators to game animals
and protected species, it prepared a draft Environmental
Assessment (EA) and circulated it to various agencies and the
public. That draft prompted numerous critical comments,
especially from other agencies with long experience and
expertise in managing game animals and protected species: The
Bureau of Land Management, Forest Service, and the Idaho
Department of Fish and Game, among others.
of studying these concerns in greater depth in an
Environmental Impact Statement (EIS), Wildlife Services
largely rejected these criticisms, finding that they were
invalid for various reasons. Based on that analysis, Wildlife
Services issued a Finding of No. Significant Impact (FONSI)
and decided to implement the Preferred Alternative contained
in the EA. The Preferred Alternative would have authorized
Wildlife Services to
provide additional assistance in efforts to reduce predation
on wildlife species identified as needing protection by the
IDFG, USFWS and other natural resource management agencies.
Wildlife species which could potentially be protected under
this alternative if a need is identified by the applicable
regulatory agency include the greater sage-grouse
(Centrocercus urophasianus) (hereafter referred to as
sage-grouse), mule deer and white-tailed deer (Odocoileus
hemionus and 0. virginianus, respectively), bighorn sheep
(Ovis canadensis), pronghorn antelope (Antilocapra
americana), northern and southern Idaho ground squirrels
(Spermophilus brunneus burnneus, and S. b. endemicus,
respectively) and waterfowl (various species).
AR-37624. To block implementation of the Preferred
Alternative, plaintiffs - referred to collectively as WWP in
this decision - filed this lawsuit, asking the Court to find,
among other things, that Wildlife Services violated NEPA by
failing to prepare an EIS. The parties filed cross-motions
for summary judgment, and in a decision issued June 23, 2018,
the Court granted WWP's motion and denied the motion
filed by the Wildlife Service. See Memorandum Decision
(Dkt. No. 33).
decision, the Court explained that under NEPA, an agency may
use a convincing and objective analysis to reject criticisms
and refuse to prepare a full EIS. But that was not done here.
While Wildlife Services responded in detail to the
criticisms, their reasons for rejecting them were not
convincing and objective; the agency failed to take the
required “hard look” at the concerns raised by
the other agencies. Moreover, the agency predicted that they
would be expanding operations into wilderness areas, another
factor that persuaded the Court to require an EIS.
Consequently, the Court held that Wildlife Services acted in
an arbitrary and capricious manner in deciding not to prepare
parties asked the Court for some time to negotiate an
agreement on the specific remedies to be imposed. When those
negotiations failed, WWP filed the motion for remedies now
before the Court.
asks the Court to (1) vacate and remand the 2016 EA and
Decision/FONSI; (2) require Wildlife Services to issue a
draft Environmental Impact Statement (EIS) for public comment
within 18 months, and prepare a final EIS and Record of
Decision (ROD) within 3 years; and (3) impose interim
injunctive relief while Wildlife Services is preparing its
EIS. The parties all agree that the Court should vacate and
remand the 2016 EA and FONSI, and the Court will so order.
effect of vacating the 2016 EIS and FONSI is that the
Preferred Alternative cannot be pursued by Wildlife Services.
Left in place are two earlier EAs, one completed in 1996 for
the northern and central regions of Idaho, and the other
completed in 2002 for the southern region. WWP did not ask
the Court to review those two EAs in this lawsuit.
remand, Wildlife Services is free to pursue courses of action
other than the Preferred Alternative - the agency has stated
in its briefing that it may pare down its activities or
choose a different geographical scope. See Brief (Dkt.
No. 44) at p. 5. The Court has no authority to compel
the agency to pursue the Preferred Alternative (and prepare
the EIS and ROD that must accompany such a course of ...