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Oregon Wild v. Constance Cummins

United States District Court, D. Oregon, Medford Division

March 8, 2017

OREGON WILD, an Oregon non-profit corporation; FRIENDS OF LIVING OREGON WATERS, an Oregon non-profit corporation; and WESTERN WATERSHEDS PROJECT, an Oregon non-profit corporation, Plaintiffs,
v.
CONSTANCE CUMMINS, Forest Supervisor, Fremont-Winema National Forests; U.S. FOREST SERVICE, a federal agency; LAURIE R. SAD A, Field Supervisor, Klamath Falls Office, U.S. Fish & Wildlife Service; and U.S. FISH & WILDLIFE SERVICE, a federal agency, Defendants, ED GARRETT RANCH, INC., an Oregon Corporation; PHILIP GROHS, dba Grohs Ranch; MATT OWENS, an individual; ADAM OWENS, an individual; KNESS CATTLE, INC., an Oregon Corporation; STEVE SIMMONS, an individual; HOLIDAY RANCHES, INC., a California Corporation; and C&A VOGT COMMUNITY PROPERTY TRUST, a California Trust, Intervenor-Defendants.

          ORDER

          MARK D. CLARKE United States Magistrate Judge

         Plaintiffs Oregon Wild, Friends of Living Oregon Waters, and Western Watersheds Project (collectively, "Plaintiffs") bring this suit against Defendants Constance Cummins, the United States Forest Service, Laurie R. Sada, and the United States Fish and Wildlife Service (collectively, "Defendants"). Ed Garrett Ranch, Inc.; Philip Grohs; Matt Owens; Adam Owens; Kness Cattle, Inc.; Steve Simmons; Holiday Ranches, Inc.; and C&A Vogt Community Property Trust (collectively, "Intervenor-Defendants") timely intervened. Plaintiffs allege Defendants violated and are violating the Endangered Species Act ("ESA"), the National Forest Management Act ("NFMA"), and the National Environmental Policy Act ("NEPA"). This case comes before the Court on Plaintiffs' motion for summary judgment (#23), Defendants' cross-motion for summary judgment (#32), and Intervenor-Defendants' cross-motion for summary judgment (#35). For the reasons below, Defendants' and Intervenor-Defendants' motions are GRANTED and Plaintiffs' motion is DENIED.[1]

         FACTUAL BACKGROUND

         Livestock have grazed on the Lost River and Sprague Watersheds, part of the Upper Klamath Basin, since the late 1800s. Much of the area is now incorporated into the Fremont-Winema National Forests. Congress requires the Forest Service "to consider the use of National Forest lands for grazing of livestock." Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (citing 16 U.S.C. § 531 & 16 U.S.C. § 1604(e)(1)). "The Forest Service manages livestock grazing on an allotment by issuing a grazing permit; an allotment management plan (AMP); and an annual operating ... instruction (AOI)." Or. Nat. Desert Ass'n v. Sabo, 854 F.Supp.2d 889, 902 (D. Or. 2012). Grazing permits authorize livestock use on federal lands and set limits on the allowable timing and amount of that use. Id. The Forest Service generally issues permits for ten-year periods. Id. AMPs are allotment-specific planning documents that:

(i) Prescribe [] the manner in and extent to which livestock operations will be conducted in order to meet the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands, involved; and (ii) Describe [] the type, location, ownership, and general specifications for the range improvements in place or to be installed and maintained on the lands to meet the livestock grazing and other objectives of land management; and
(iii) Contain[] such other provisions relating to livestock grazing and other objectives as may be prescribed by the Chief, Forest Service, consistent with applicable law.

36 C.F.R. § 222.1(b)(2). As their name implies, AOIs are agreements issued annually by the Forest Service to permittees. Sabo, 854 F.Supp.2d at 902. The Forest Service uses AOIs to respond to changing grazing conditions such as drought, water quality, habitat restoration, or risks to threatened plants or animals. Id.

         In 1988, the Lost River sucker and shortnose sucker, fishes endemic to the Klamath Basin of south-central Oregon and north-central California, were classified as endangered species under the ESA by the U.S. Fish and Wildlife Service ("FWS"). 53 Fed. Reg. 27130-01 (Jul. 18, 1988). In issuing its final rule, FWS noted both species' numbers and range had been reduced by more than 95 percent due to "[d]ams, draining of marshes, diversion of rivers and dredging of lakes. . . ." Id. at 27130. Moreover, "hybridization with more common closely related species, competition and predation by exotic species, and insularization of remaining habitats" eminently threatened both species through continued loss of habitat. Id. "Further problems, " the agency noted, "may have been caused by decreases in water quality that result from timber harvest, . . . removal of riparian vegetation and livestock grazing." Id. at 27132. Accordingly, FWS labeled livestock grazing on Forest Service land located in the Upper Klamath Lake and Clear Lake Reservoir watersheds as "[f]ederal actions that may affect the shortnose sucker and Lost River sucker. ..Id. at 27133.

         Both sucker species spend the majority of their time in "lake environments." FWS 6762. In late winter and early spring of each year, however, both species migrate to tributaries to spawn. After hatching, the larvae "drift" downstream from the tributaries to the lakes; larvae typically "spend little time in rivers" before drifting back into their open-water habitats. FWS 6773. But because the larvae drift downstream after hatching, adequate water flow within tributaries is critical to survival, and insufficient flow can, among other things, prevent access to breeding habitat, cause the species' eggs to dry out, and strand adults suckers who have already spawned. Consistent, and sufficient, water flow is largely an uncertainty in the Upper Klamath Basin due to the area's environment, which experiences warm, dry summers and cold, wet winters; tributaries often dry out or retain little water come summer.

         To make matters more uncertain for suckers, the Upper Klamath Basin has experienced significant drought conditions over the last few years; the water levels of Gerber and Clear Lake Reservoirs, two bodies of water with high concentrations of both sucker species, were significantly below average prior to summer 2014. The water levels were lower still prior to summer 2015. In addition, summer 2014 streamflow in the Basin was estimated to be merely 6 to 47 percent average flow. The federal government declared a severe drought in the Basin. The species are, however, "adapted to weather periodic droughts, " FWS 6794, though the potential for increased droughts in the Upper Klamath Basin resulting from climate change appears to be a significant variable going forward, having the potential to place a larger strain on both sucker species, with decreased water "flows during late spring, summer, and early fall...." P 7210.

         Plaintiffs have challenged the Forest Service's decision to continue to approve livestock grazing on eight allotments they contend "contain designated critical habitat for shortnose suckers and/or are upstream of habitat for both species." Compl. ¶ 2 [ECF No. 1.]. The eight allotments are the Arkansas, Yocum Valley, Fort Springs, Horesfly, Pitchlog, Privy Springs, Yainax Butte, and Wildhorse allotments. Plaintiffs argue the combination of grazing with man-made water diversions and impoundments found throughout the Fremont-Winema National Forests, as well as on private land, "has a significant effect on suckers, degrading their instream habitat and reducing water levels in the reservoirs." Compl. ¶ 2.

         A. Endangered Species Act Consultation

         Because of their ES A protection, the Forest Service must insure their actions, including the granting of permits for grazing, are "not likely to jeopardize the continued existence of suckers "or result in the destruction or adverse modification of [suckers'] habitat." 16 U.S.C. § 1536(a)(2). The Forest Service fulfills this obligation by consulting with a designated wildlife agency prior to undertaking any action that may affect suckers or their critical habitat. The ESA and its implementing regulations provide a framework for this interagency consultation. First, the Forest Service, as the acting agency, prepares a biological assessment ("BA"), which evaluates potential effects of the proposed action on suckers or their critical habitat. If the Forest Service determines that the effects of the proposed action are unlikely to adversely affect suckers or their critical habitat, and the consulting agency agrees, the consultation process concludes without any additional action required. This is termed an informal consultation. By contrast, a "formal consultation" is required where a proposed action is "likely to adversely affect" suckers or their critical habitat. 50 C.F.R. § 402.14(a)-(c). Formal consultation requires a formal biological opinion ("BiOp") from the consulting agency to determine "whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of [suckers] in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).

         On multiple occasions, the Forest Service consulted FWS regarding the effects of authorized grazing on suckers and their critical habitat. In 2007, the Forest Service determined that grazing was likely to adversely affect suckers on five allotments at issue here: Yocum Valley, Pitchlog, Wildhorse, Arkansas, and Yainax Butte. Accordingly, FWS prepared a BiOp assessing the matter. In its BiOp, FWS concluded that grazing on the five allotments was "likely to have some direct and indirect adverse effects" to shortnose suckers. FWS 2305. Potential adverse effects included: (1) water-quality reductions, "such as lower dissolved oxygen concentrations, higher water temperatures, and higher levels of suspended sediment"; (2) hydrogeomorphic changes, "such as reductions in summer base flows, increase in flood-lows, and alterations of stream morphology, including reduction/loss of critical fish habitats such as spawning and rearing areas"; and (3) ecological changes, "such as reductions in invertebrate prey, increases in exotic predators and competitors, and increases in pathogens and parasites." FWS 2288.

         As to the remaining allotments assessed in the 2007 consultation, the Forest Service concluded that grazing was not likely to adversely affect suckers or adversely modify or destroy their critical habitat. FWS concurred in part, agreeing that grazing would not adversely affect suckers; however, it found grazing would likely adversely modify or destroy their critical habitat "because it [would] likely incrementally reduce [] the amount of water of sufficient quantity and suitable quality; degrade[] physical habitat for spawning, feeding, rearing, and travel corridors; and adversely impact the biological environment. . . ." FWS 2310-11. This finding, however, was non-binding and merely advisory because FWS had not finalized the contours of the suckers' critical habitat at the time the finding was made.

         By December 2012, FWS's critical-habitat designation was finalized. The designated habitat differed from that originally proposed by FWS. Thus, in 2014, the Forest Service re-consulted FWS in an effort to assess grazing's effects on the newly designated critical habitat. The 2014 BA analyzed grazing's effects on nine pastures found on six allotments at issue in this case: the Arkansas, Horesfly, Pitchlog, Wildhorse, Yanaix Butte, and Yocum Valley allotments. In the BA, the Forest Service acknowledged grazing's adverse impacts on water quality and quantity and that past grazing affected critical habitat on the allotments; as it stated:

Past grazing has led to biomass removal and trampling, alterations in species composition, compaction of soils, changes in fuel loading and the fire regime, down cutting of riparian areas with subsequent drying of adjacent meadows, and noxious weed invasion. Within riparian areas and wet meadows, livestock grazing has led to churning of the soil and hummocks. . . . Livestock grazing indirectly leads to an increase in stream temperatures through lower summer flows, widening of the stream channel (thus exposing more water surface to solar radiation) increased solar exposure due to reduced shade from lack of streamside vegetation and to loss of undercut streambanks.

P 7204, 7208. Nonetheless, the Forest Service determined grazing was not likely to adversely affect critical habitat on any of the pastures within the six allotments. First, the Forest Service concluded that natural conditions, not grazing, dictated water quality and quantity in critical-habitat areas; the Forest Service stated, "grazing . . . does not create the intermittent, seasonal nature" of the various tributaries relied upon by suckers; instead, the intermittent nature of the tributaries is caused by natural conditions that constrain suckers, and, therefore, "continued grazing . . . would have minimal effect . . . relative to the effect caused by the natural conditions." P 7211. Finally, the Forest Service determined that adverse effects to critical habitat caused by grazing the pastures was being sufficiently minimized by fencing off critical habitat; by beavers, whose dam construction "increas[es] riparian vegetation and vigor";, and/or through altered grazing practices, such as shortened or early-season grazing. P 7210-7222.

         FWS concurred with the Forest Service's analysis. In a letter of concurrence ("LOC"), FWS stated most grazing occurs in "late spring, summer, and fall" when there is inadequate water flow to support suckers and when most suckers have returned to their primary, open-water habitats. FWS 2772. Additionally, FWS agreed with the Forest Service's conclusion that any adverse effects in the remaining pastures would be and already were minimized due to changes in grazing practices, such as fenced-off enclosures to protect critical habitat and "beaver dams that have altered the habitat to the benefit of suckers." FWS 2772.

         The Forest Service's 2014 BA, which was a re-consultation of its 2007 ESA consultation, requested ESA coverage for the 2014 through the 2016 grazing season. The Forest Service's "request for re-consultation rather than re-initiation [was] due to the dramatic difference in the number of acres of proposed critical habitat from that that was actually designated critical habitat . . . ." P 7196. In merely re-consulting rather than re-initiating consultation, the Forest Service continued to follow the "ten-year cycle for re-initiation of consultation. . . ." P 7196. Accordingly, the Forest Service must complete a new ESA consultation prior to any livestock grazing in 2017. See 16 U.S.C. § 1536(a)(2) (stating every federal agency has a duty to engage in consultation to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence" of any species listed as endangered or threatened; 50 C.F.R. § 402.16 (stating the duty of consultation is an ongoing duty of consultation).

         B. 2009 Environmental Assessment

         In 2009, the Forest Service completed an environmental assessment ("EA") under NEPA. The EA analyzed "the direct, indirect, and cumulative environmental impacts" of grazing on six allotments, five of which are at issue: the Arkansas, Pitchlog, Horsefly, Wildhorse, and Yocum Valley allotments. P 5527. The allotments are located in the Sprague and Lost River watersheds. To determine cumulative effects, "past, present, and reasonably foreseeable future activities were considered, along with proposed activities of the Lost River and Sprague Watersheds Grazing Allotment Project, to determine cumulative effects." P 5561.[2] Cumulative environmental impacts that were assessed included the effects of climate change; the increased intensity of summer droughts due to climate change's effects; as well as the effects of man-made impoundments such as roads, dams, and reservoirs. The EA's purpose was to use this information to assess grazing and non-grazing alternatives on each of the allotments. The EA concluded grazing would have no significant impact on the area assessed, a finding that cleared the way for continued grazing on the allotments. See P 5666-5691. Plaintiffs submitted comments during the EA's public comments period, raising concerns about the environmental impacts grazing posed on the area. They did not, however, appeal the Forest Service's finding that grazing would have no significant impact on the challenged allotments.

         LEGAL STANDARD

         The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. In this context, '"[s]ummary judgment'" is "simply a convenient label to trigger" judicial review. Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1233 (D. Or. 2013), aff'd sub nom. Klamath-Siskiyou Wildlands Ctr. v. Gerritsma, No. 13-35811, 2016 WL 775297 (9th Cir. Feb. 29, 2016). The Administrative Procedure Act (APA) governs. It allows a court to set aside a final agency action only if it is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law[.]" 5 U.S.C. § 706(2)(A). "A decision is arbitrary and capricious if the agency 'has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" O'Keeffe's, Inc. v. U.S. Consumer Prod. Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency action is also arbitrary and capricious if the agency fails to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

         Review under the APA is "searching and careful." Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2004) (internal citations and quotations omitted). The court must ensure that the agency took a "hard look" at the environmental consequences of its proposed action. Or. Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (internal quotations and citations omitted). However, the court may not substitute its own judgment for that of the agency. Ocean Advocates, 402 F.3d at 858. It must presume the agency acted properly and affirm the agency when '"a reasonable basis exists for its decision.'" Indep. Acceptance Co. v. Cal, 204 F.3d 1247, 1251 (9th Cir. 2000) (quoting Cal. Hosp. Ass'n v. Schweiker, 559 F.Supp. 110, 116 (CD. Cal. 1982)).

         DISCUSSION

         I. Standing

         At the outset, Defendants and Intervenor-Defendants contest Plaintiffs' "standing to challenge management of the Forest Service allotments at issue" in this case. Defs.' Cross-Mot. for Summ. J, at 18 [ECF No. 32.]. Specifically, they contend Plaintiffs have failed to establish standing, as no plaintiff has shown use of any of "the vast public lands within the challenged allotments-or any lands adjacent to the allotments." Defs.' Reply in Supp. of Its Cross-Mot. for Summ. J., at 2 [ECF No. 41.]. Thus, they argue, the Court should grant their motions for summary judgment against all of Plaintiffs' claims.

         To establish standing, a plaintiff must demonstrate, "at an irreducible minimum, " (1) that he personally suffered some actual or threatened injury (injury in fact); (2) that the injury can be traced to the challenged conduct of the defendant (causation); and (3) that the injury is likely to be redressed by a favorable judicial decision (redressability). Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). An association has standing to bring suit on its members' behalf if: "[1] its members would have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 169 (2000). Critically, in a case brought under the ESA or another environmental-protection statute, the injury is not to the environment but to the plaintiff. Id.

         In Laidlaw, the Supreme Court determined standing existed based on affidavits from association members stating "use [of] the affected area" and that the affiants were "persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). In that case, multiple environmental organizations brought suit under the citizen suit provision of the Clean Water Act for injunctive relief and civil penalties. Id. at 176-77. The plaintiffs alleged the defendant was violating its NPDES permit at a hazardous waste incinerator located on the banks of a river. Id. Several members of the plaintiff organizations filed declarations, which detailed the injury they had or that they would suffer because of the suspected pollution of the river. Id. at 181-83. Some members lived within two miles of the incinerator, one member lived 20 miles away, and others made no indication of where they lived but opined on their recreational use of the river. Id. In fact, one affiant claimed simply that he canoed 40-some miles downstream of the incinerator. Id. at 183. The Supreme Court held that these members had shown standing by demonstrating injuries to their aesthetic and recreational interests; indeed, they were people who "use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Id. at 183 (quoting Sierra Club, 405 U.S. at 735).

         Here, Plaintiffs, who are also associations, adequately establish standing through affidavits submitted by Plaintiffs' members asserting livestock grazing, approved by the Forest Service on the challenged allotments, adversely affects endangered suckers, thereby directly affecting the affiants' "aesthetic or recreational interest in a particular . . . animal." Ecological Rights Found. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). As in Laidlaw, several members of the plaintiff organizations have filed affidavits detailing the injury they have suffered as a result of the allegedly unlawful grazing activity at issue in this case. For instance, Joe Serres, a co-founder of Plaintiff Friends of Living Oregon Waters ("FLOW"), states he and FLOW's 223 southern Oregon members routinely visit grazing allotments and monitor "the environmental impact grazing has on public lands throughout Oregon, including the Fremont- Winema National Forest." Serres Decl. ¶ 3 [ECF No. 26.]. They have been monitoring the lands and waters since 2002. Mr. Serres states that FLOW'S interests in the particular area at issue in this case "serve [its] members' interest of protecting waterways from pollution, " and that he, in his individual capacity, visits the affected areas for aesthetic, spiritual, and recreational reasons. Serres Decl. ¶ 5.

         Likewise, George Wuerthner, a board member of Plaintiff Western Watersheds Project ("WWP"), states he "camp[s], fish[es], hunt[s], observe[s] wildlife, and hike[s] . . . land on the Fremont-Winema National Forest, " Am. Wuerthner Decl. ¶ 4 [ECF No 27.], specifically the Lost River watershed, where the allotments at issue in this case are located. He states he has visited the Fremont-Winema National Forests more than a dozen times-and will continue to do so- witnessing firsthand the impacts grazing has had on "riparian and upland areas." Am. Wuerthner Decl. ¶ 4.

         Defendants and Intervenor-Defendants argue, however, that the affiants make broad declarations about visiting '"parts of the Lost River watershed'" that are '"impacted by the grazing allotments at issue, '" but have never visited specific allotments in question here. Defs.' Cross-Mot. for Summ. J., at 19 (citing Serres Decl. ¶ 11). Defendants point out that Plaintiffs cannot satisfy standing requirements through "averments which state only that one of [the organizations'] members uses unspecified portions of an immense tract of territory . . . ." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990).

         In Summers v. Earth Island Inst., 555 U.S. 488, 494-95 (2009), The Supreme Court determined that conservation organizations lacked standing where the only viable affidavit submitted cited a past injury, unattached to any particular site in the national forests, and entirely unrelated to the regulations being challenged. By contrast, in Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707-08 (9th Cir. 2009), the Ninth Circuit found standing where conservation organizations' members alleged they had viewed polar bears and walruses in the "Beaufort Sea region, enjoy[ed] doing so, and h[ad] plans to return."

         Plaintiffs' members' allegations, if true, are geographically specific enough to establish standing. First, unlike the conservation organizations in Summers, who provided a single affidavit unattached to any particular site in any national forest, Plaintiffs have provided multiple affidavits from individual members stating they have, on multiple occasions, traveled to the Fremont-Winema National Forests and specifically to the Lost River watershed, where the challenged allotments at issue are found. Moreover, much like the affiants in Kempthorne, who alleged they had viewed polar bears and walruses in the "Beaufort Sea region, " the affiants in this case specifically allege they have viewed suckers in the Lost River watershed region, that they "enjoy doing so, and have plans to return."[3] Kempthorne, 588 F.3d at 708. If the affiants' declarations are true, their statements are not broad allegations; instead, they show their members are people who "use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Laidlaw, 528 U.S. at 183 (quoting Sierra Club, 405 U.S. at 735). Accordingly, Plaintiffs have established standing.

         II. Endangered Species Act

         In their first claim, Plaintiffs challenge the 2014 re-consultation's conclusion that grazing is not likely to adversely affect suckers' critical habitat. They argue FWS's LOC is arbitrary, capricious, an abuse of discretion, and not in accordance with the ESA, thus violating the APA. Specifically, in moving for summary judgment, Plaintiffs argue "[t]he 2014 LOC, which explicitly and exclusively relied on the 2014 BA, is arbitrary and capricious" because the "[re-]consultation ignored significant data and other key factors when assessing the environmental baseline and the direct and indirect effects of grazing on critical habitat. . . ." Pis.' Mot. for Summ. J., at 13 [ECF No. 23.]. In short, Plaintiffs contend the agencies expressly ignored "the combined effects of grazing and water impoundments"; instead, the agencies "compared the effects of grazing to the degraded baseline caused by low water flows." Pis.' Mot. for Summ. J., at 13, 15 (emphasis in original).

         Plaintiffs point to the Forest Service's reliance on continued grazing's "minimal effect. . . relative to the effect caused by the natural conditions, " P 7211 (emphasis added), to find no significant threat to the species. As Plaintiffs point out, 50 C.F.R. § 402.02 requires the Forest Service to consider "direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action...." (emphasis added).

         Moreover, along with an argument that the BA and LOC ignore conflicting monitoring data, Plaintiffs also take issue with the fact the Forest Service repeatedly justified their decision that grazing is not likely to adversely affect suckers or their critical habitat by citing to the presence of suckers in areas grazed by cattle. See, e.g., P 7218 ("The fact that suckers are present when the [Primary Constituent Elements] are present is evidence that livestock grazing is not substantially impacting [shortnose sucker] critical habitat in these pastures"). Plaintiffs direct the Court to the Ninth Circuit's decision in Wild Fish Conservancy v. Salazar, 628 F.3d 513, 527 (9th Cir. 2010), where the court stated that the mere fact that a local population of threatened or endangered species has survived over time does not, alone, "provide any information about how much longer it can hold on." Thus, Plaintiffs argue, the LOC, which adopted these findings in the EA, is arbitrary and capricious.

         In their cross-motions for summary judgment, Defendants and Intervenor-Defendants make two arguments in response. First, they contend Plaintiffs' ESA claim is moot because the 2014 LOC covered only the 2014, 2015, and 2016 grazing seasons, and the Forest Service must complete a new ESA consultation prior to any livestock grazing in 2017. As such, "[n]o grazing actions that may affect suckers or their critical habitat will occur in 2017 until a new ESA consultation is complete." ...


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