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Wildlands v. Williams

United States District Court, D. Oregon

April 27, 2017

CASCADIA WILDLANDS; CENTER FOR BIOLOGICAL DIVERSITY; WILDEARTH GUARDIANS; PREDATOR DEFENSE; and PROJECT COYOTE-a project of Earth Island Institute, Plaintiffs,
v.
DAVID WILLIAMS, in his official capacity Oregon State Director for USDA-APHIS Wildlife Services; ANIMAL AND PLANT HEALTH INSPECTION SERVICES-WILDLIFE SERVICES, an agency of the United States Department of Agriculture; and UNITED STATES DEPARTMENT OF AGRICULTURE, a federal department. Defendants.

          OPINION AND ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.

         Before this Court is Plaintiffs' Motion for Summary Judgment (ECF No. 20) and Defendants' Cross-motions for Summary Judgment (ECF NO. 27). Plaintiffs, collectively referred to here as Cascadia Wildlands, comprise of a group of five wildlife enthusiasts and advocacy organizations: Cascadia Wildlands, Center for Biological Diversity, WildEarth Guardians, Predator Defense, and Project Coyote. The three defendants are David Williams, USDA-APHIS Wildlife Services[1], and United States Department of Agriculture.

         Upon preparation and review of an Environmental Assessment (EA), defendant USDA-APHIS Wildlife Services agency (Wildlife Services) concluded that their involvement in the implementation of Oregon's wolf management program Phase I and Phase II would not cause a significant environmental impact. Plaintiffs challenge that finding, arguing that the agency violated the National Environmental Policy Act (NEPA) by failing to appropriately analyze the impact of its actions in the EA and by failing to prepare an Environmental Impact Statement (EIS). Plaintiffs seek a declaration from the court that Defendant violated NEPA, and they ask the court to vacate the findings of the EA and enjoin Wildlife Services from engaging in wolf management in Oregon until it complies with NEPA.

         Defendants David Williams, USDA-APHIS Wildlife Services, and United States Department of Agriculture respond with cross-motions for summary judgment on four points: (1) Cascadia Wildlands lacks standing; (2) Cascadia Wildlands has an adequate remedy in state court; (3) NEPA does not apply because Wildlife Services has not engaged in a major federal action; and (4) Wildlife Services analyzed the impact of its actions in the EA and reasonably concluded that their actions would not significantly impact the environment.

         After review of the parties' briefing, underlying record, and oral arguments, the Court finds that (1) Wildlife Services' activities in Oregon do not constitute major federal action, (2) the agency's finding of no significant impact was based on a hard look at the consequences of the proposed action, and (3) no EIS was required.

         During the course of this litigation Oregon's wolf management plan moved out of Phase II and into Phase III. Because the Court does not find that moving out of Phase II has rendered the issues in this case moot, the Court reaches its ruling on the merits. Plaintiffs' motion for summary judgment (ECF No. 20) is DENIED. Defendants' cross motion for summary judgment (ECF No. 27) is GRANTED in part.

         FACTUAL BACKGROUND

         Since the re-introduction of gray wolves to Yellowstone National Park in 1995, wolf populations have been growing and migrating throughout the northern Rocky Mountains and into neighboring states. After a nearly sixty year absence, wolves returned to Oregon in 1999. As a result of this renewed and increasing presence, the state of Oregon developed and issued the Oregon Wolf Conservation and Management Plan (Oregon Wolf Plan) in 2005, updating the plan in 2010. The intent of the Oregon Wolf Plan is to balance wolf conservation interests with local social and economic interests and to minimize conflict between wolves and livestock. AR 14. The Oregon Wolf Plan manages wolves in the geographical eastern third of Oregon.[2]Because wolves in this area were delisted as endangered under the federal Endangered Species Act in 2001, 74 Fed. Reg. 25590, at 15125, the state of Oregon retains exclusive jurisdiction to manage wolves in this area.

         Oregon's wolf management plan is comprised of three phases, each one based on the population of wolves and number of breeding pairs in the state. As the wolf population grows and breeding pairs increase, the proposed management practices and federal involvement change under the plan. Phase I of the plan remained in place until there were at least four breeding pairs in eastern Oregon for three consecutive years. The plan moves from Phase II to Phase III when there are at least seven breeding pairs in Oregon for three consecutive years. The Environmental Assessment at issue in this case analyzed defendants' actions under Phase I and II. Defendants would need to begin a new EA/ESI process before deciding to participate or not in Phase III. This lawsuit was filed at a time when the wolf plan was operating under Phase II. On March 7, 2017, after oral arguments on the summary judgment motions and cross-motions, Defendants filed a “Notice of administrative development” (ECF No. 39) announcing that the State of Oregon has moved into Phase III of the wolf management plan at which point parties submitted addition legal briefing on the issue of mootness.

         Prior litigation

         In September 2009, at the request of the Oregon Department of Fish and Wildlife (ODFW), Wildlife Services lethally removed two gray wolves in Oregon. AR 64; Compl. ¶ 39, ECF No. 1; Answer ¶ 39, ECF No. 13. Wildlife Services acts as a contractor with other federal agencies, non-federal government agencies, and private landowners to manage wildlife that may be damaging agricultural and ranching interests. In May 2010, ODFW authorized Wildlife Services to kill two additional wolves in Oregon. Compl. ¶ 40, ECF No. 1; Answer ¶ 40, ECF No. 13. Before those wolves were lethally removed several conservation groups, including some of the Plaintiffs in this case, filed suit against Wildlife Services alleging that Wildlife Services' participation in wolf removal, absent an analysis of the environmental effects, was a violation of NEPA.[3] Wildlife Services agreed to stay their wolf removal activities until they had conducted a NEPA analysis of their participation in Oregon's wolf removal plan under Phase I and II. Wildlife Services issued its pre-decision Environmental Assessment in July 2012 and solicited public comment on the proposal and environmental analysis. AR 547. In July 2014 Wildlife Services issued a Decision Notice and Finding of No Significant Impact (DN/FONSI).

         In addition to the federal suit discussed above, Plaintiffs brought an action in 2011 against the Oregon Fish and Wildlife Commission and the Oregon Department of Fish and Wildlife in state court arguing the Oregon Wolf Plan violated the Oregon Endangered Species Act.[4] Def.'s Cross-Mot. Ex. A, ECF No. 27-1. As the result of a settlement agreement, Oregon worked with the conservation groups to amend its administrative rules related to the plan. AR 19. For example, the amended plan under the settlement agreement increased from two to four the number of confirmed depredation events before lethal take is allowed. ODFW must first identify depredating wolves before authorizing any action to remove those wolves in accordance with the Oregon Wolf Plan. OAR 635-110-0010, -0020.

         STANDARD OF REVIEW

         The court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is “genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed.R.Civ.P. 56(e)).

         DISCUSSION

         I. Standing

         As an initial matter, Defendants argue that Plaintiffs lack Article III standing to bring their claims because Plaintiffs cannot meet their burden in demonstrating: (1) that Plaintiffs suffered an injury-in-fact that is concrete and particularized, and actual or imminent, (2) that there is a casual connection between the injury and the conduct complained of, and (3) that a favorable decision would likely redress that injury. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560-561 (1992); WildEarth Guardians v. U.S. Dep't of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015). When the injury-in-fact is a result from a procedural failure, the standards for causation and redressability are “relaxed” to the extent that a plaintiff need not demonstrate that requiring the procedure would certainly result in alleviating a concrete and particular injury-in-fact. WildEarth Guardians, supra, 795 F.3d at 1154; W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011). The Court finds Cascadia Wildlands has met all three requirements to establish Article III standing.

         A. Injury-in-fact

         Plaintiffs adequately alleged injury-in-fact through the submission of declarations from six of its individual members. ECF No. 21-26. The declarations establish for purposes of standing that the individuals have viewed or heard or attempted to view or hear wolves in the affected area. The declarations establish that wolf removal decreases the likelihood of being able to see or hear wolves, negatively affecting the aesthetic and recreational value of the area. See, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.”)).

         One of the six declarants, Walter Sykes, a Cascadia Wildlands member, has lived in Wallowa County for 21 years where he regularly enjoys the wildlife, including looking for signs of wolves in the area. Sykes Decl. 1-3; ECF No. 24. Mr. Sykes has seen and heard wolves on numerous occasions: in the fall of 2010 he observed eight wolves of the Imnaha Pack in the Big Sheep drainage of the Eagle Cap Wilderness; in 2013 he observed wolf OR4 of the Imnaha Pack in the Wallowa-Whitman National Forest; in 2015 he observed and filmed OR4's son (wolf OR33) in the same forest. Id. at 3.

         A second declarant, Greg Dyson of WildEarth Guardians, declares to have “aesthetic, recreational, and inspirational interests in wolves in Northeast Oregon.” Dyson Decl. 4, ECF No. 22. Mr. Dyson regularly backpacks and camps in Northeast Oregon, including the Wallowa's and Hells Canyon, hoping to see or hear wolves, as well as other wildlife. Id. at 2. Mr. Dyson also ran the wolf protection program for a conservation organization based in LaGrande, Oregon, and worked with the Oregon Department of Fish and Wildlife on wolf issues. Id. at 3. The other four declarants ...


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