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Western Watersheds Project v. USDA Aphis Wildlife Services

United States District Court, D. Idaho

November 29, 2018

WESTERN WATERSHEDS PROJECT, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, and PREDATOR DEFENSE, Plaintiffs,
v.
USDA APHIS WILDLIFE SERVICES, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, Chief U.S. District Court Judge.

         INTRODUCTION

         The 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.

         LITIGATION BACKGROUND

         For 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.

         Instead 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).

         In that 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 an EIS.

         The 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.

         ANALYSIS

         WWP 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.

         The 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.

         Upon 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 ...


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