United States District Court, D. Oregon, Medford Division
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,
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.
D. CLARKE United States Magistrate Judge
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.
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.
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.
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.
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.
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.
Endangered Species Act Consultation
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).
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.
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
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.
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
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).
2009 Environmental Assessment
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. 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
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)).
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)).
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
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:
" its members would have standing to sue in their own
right,  the interests at stake are germane to the
organization's purpose, and  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
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.
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.
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.
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).
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."
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." 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
Endangered Species Act
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).
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).
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.
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." ...