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Biodiversity Conservation Alliance v. Jiron

United States District Court, D. Wyoming

July 31, 2017

BIODIVERSITY CONSERVATION ALLIANCE, Petitioner,
v.
DAN JIRON in his official capacity as Deputy Under Secretary for Natural Resources and Environment, UNITED STATES DEPARTMENT OF AGRICULTURE; and THOMAS TIDWELL in his official capacity as Chief of the UNITED STATES FOREST SERVICE, an agency of the United States, Respondents. and STATE OF WYOMING; WYOMING Wild SHEEP FOUNDATION WYOMING WOOL GROWERS ASSOCIATION; LADDER LIVESTOCK COMPANY. LLC; BANJO SHEEP COMPANY. LLC and WYOMING SPORTSMEN FOR PISH AND WILDLIFE, Intervenors.

          OPINION AND ORDER

          ALAN B. JOHNSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Biodiversity Conservation Alliance ("Petitioner's) Amended Petition for Judicial Review (ECF No. 17). The Court will describe the relevant statutes and regulations involved in this case, summarize the factual and procedural background of the case, address the issue of standing, present the standard of review, and then turn to the analysis. After reviewing the parties" submissions, the applicable law, the administrative record, and being fully advised of the matter, the Court finds as follows.

         RELEVANT STATUTES AND REGULATIONS

         a. Nation Forest Management Act

         The Forest Service, an agency within United States Department o\' Agriculture[1], manages the national forest system. The National Forest Management Act requires the Forest Service to manage forests using a two-step process. See 16 U.S.C. §§ 1600-1614. First, the Forest Service must develop a Land and Resource Management Plan ("forest plan") for each national forest unit. Second, it must implement the forest plan through site-specific projects. 16 U.S.C. § 1604(a).

         Forest plans must "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area...." 16 U.S.C. § 1604(g)(3)(B). Implementing regulations provide standards and guidelines to create a forest plan and approve any accompanying site-specific projects. See 16 U.S.C. § 1604(g).

         National Forest Management Aet regulations have been amended numerous times. Two such amendments are the 1982 amendment (the "1982 Rule") and the 2005 amendment. See 47 Fed.Reg. 43, 026 (Sept. 30, 1982) (codified at 36 C.F.R. §§ 219.1-219.29 (1982)); 70 Fed.Reg. 1023 (Jan. 5, 2005) (codified at 36 C.F.R. §§ 219.1-219.16 (2005)).

         b. The 1982 Rule

         The 1982 Rule required the Forest Service to promote the diversity of species by maintaining "viable populations of existing native and desired" plants and animals. 36 C.F.R. § 219.19 (1982). This "viability mandate'' required that each species' population and habitat be abundant and well-distributed enough to safeguard its continued existence. See id, How to interpret §219.19"s viability mandate is at issue here. See Biodiversity Conservation All. v. Jiron, 762 F.3d 1036. 1049 (10th Cir. 2014). To accomplish the regulation's viability provision, the Forest Service has set an objective to "[m]aintain viable populations of all native and desired nonnative wildlife, fish, and plant species in habitats distributed throughout their geographic range on National Forest System lands." Forest Serv. Manual, Ch. 2670.22(2).

         The 1982 forest planning regulations were superseded in 2000, when new regulations were promulgated. However, "[t]he 2000 planning rules were not immediately promulgated. Instead, the new regulations contained transition provisions which provided that, beginning on November 9, 2000, until the promulgation of the new, final rule, the Forest Service should consider 'the best available science in implementing a forest plan." " Utah Envt't Cong. v. Bosworth, 443 F.3d 732. 737 (10th Cir.2006) (footnote and citation omitted). The Tenth Circuit has "since held that "site-specific project decisions made from November 9, 2000 to January 5, 2005, that implemented pre-November 9. 2000 forest plans, were to be made only under the 'best available science" standard/ " Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821-22 (10th Cir. 2008) (quoting Utah Envt'l Cong. v. Richmond, 483 F.3d .1127, 1132 (10th Cir.2007)).

         FACTUAL BACKGROUND

         The Medicine Bow National Forest is located in southeast Wyoming. It contains three mountain ranges: the Laramie Range, the Snowy Range, and the Sierra Madre Range. AR-2923. Bighorn sheep occupied all three mountain ranges until extirpation sometime before the 1900s. Id. at 1163. 4932, 4943. In the 1960s, 1970s, and 1980s, bighorn sheep were reintroduced into the three mountain ranges. Id. at 4839-41, 4932. 4943. Between 1980 and 2000. the total bighorn sheep population in Medicine Bow National Forest was between 400 and 450 individuals; below the objective of 1, 050. Id. at 3516. The population distribution among these mountain ranges has varied over the years.

         The Laramie Peak herd, occupying the Laramie Range, contained 207 bighorn sheep in the mid-1980s and 300 in 2005. Id. at 3516, 4841. The Laramie Peak herd has a population objective of 500. Id. at 3516. The Douglas Creek herd, in the Snowy Range, contained 143 bighorn sheep in the mid-1980s and 100 in 2005. Id. at 3516. 4839. The population objective for the Douglas Creek herd is 350. Id. at 3516. 4839. The Encampment River herd, occupying the Sierra Madre Range, contained 50 bighorn sheep from 1980 to 2005. Id. at 3516. 4028. The National Forest Service gave no population objective for the Encampment River herd in its Final Environmental Impact Statement. Id. at 3516.

         One of the primary threats to bighorn sheep is domestic sheep. Id. at 3516. 4026. 4869-72. Domestic sheep carry a pneumonia-like disease called Pasteurella-haemolytica that bighorn sheep contract by coming into contact with domestic sheep. Id. The infected bighorn sheep can then return to the herd and spread the disease. Id. at 3516. 4026, 4027. After the herd contracts the disease, it experiences mortality of 75% to 100%. with any remaining survivors not reproducing for several years. Id. at 4027. The National Forest Service recognizes this issue and attempts to prevent bighorn sheep death on public land by limiting domestic sheep grazing allotments to specific areas away from bighorn sheep populations. Id. at 3516. 4027. 4867. This was the approach taken in the Medicine Bow National Forest 2003 Revised Land and Resource Management Plan, for two of the three bighorn sheep herds. Id. at 1572, 1577, 2439, 2904, 4024. 4306, 5257-58.

         The National Forest Service manages the Medicine Bow National Forest pursuant to its forest plan, as required under the National Forest Management Act. 16 U.S.C. § 1604. The National Forest Service developed the Medicine Bow National Forest Plan pursuant to the 1982 implementing regulations for the National Forest Management Act, currently located as amended at 36 C.F.R. 219. AR-33. The original Medicine Bow-National Forest Land and Resource Management Plan was approved on November 20, 1985. Id. at 38. Since that lime, the plan has been amended eighteen times. Id.

         In December of 1992. the current legal process began. Id. That year, the National Forest Service began revising its 1985 forest plan. Id. In 1995. the Medicine Bow National Forest was administratively combined with the Routt National Forest, which is located in north central Colorado."[2] Id. The National Forest Service elected to first revise the forest plan for the Routt National Forest before addressing the forest plan for Medicine Bow National Forest. Id.

         The National Forest Service approved its revision of the forest plan for the Routt National Forest in 1998 and subsequently published its Notice of Intent to Revise the Medicine Bow Forest plan in the Federal Register in 1999. Id. After doing so, the National Forest Service spent time considering and developing alternatives and analyzing the probable environmental consequences stemming from those alternatives. Id. Its considerations were documented in the Draft Environmental Impact Statement, which was published to the public in December of 2002. Id. A paragraph in the Draft Environmental Impact Statement sums up the National Forest Service's view on the Encampment River herd after cooperation with the State of Wyoming.

In general, management efforts for bighorns consist of attempting to prevent contact between the two, largely by creating distances (buffer zones) between bighorn sheep ranges and domestic sheep grazing allotments. . . .
Wyoming Game and Fish is currently finalizing a state-wide comprehensive management plan for all bighorn herds in the state. . . .
['T]he plan assigns a priority for management for each of the herds in the state, with Priority I being most important and Priority 3 being least imporlant[.] Management actions for Priority 1 herds include resolving conflicts with domestic sheep, allocating funds for habitat manipulation. and transplanting additional numbers. These management plans won't be utilized for Priority 3 herds: in addition, herds may not be considered viable.
The Encampment River herd is considered a Priority 3 herd. It is basically considered expendable by the state. No habitat work or funding will be expended, and no transplant numbers will be added. The herd remained about steady at 50 animals for about 25 years, despite the fact that both the summer and winter bighorn range is surrounded by and overlapped with all or parts of 7 sheep allotments. In addition, domestic sheep operations occur on surrounding private lands as well.

Id. at 2198. The National Forest Service received public comments on the Draft Environmental Impact Statement.

         Based on public comments, the National forest Service modified its Draft Environmental Impact Statement and published its Revised Land and Resource Management Plan, Final Environmental Impact Statement, and Record of Decision in 2003. Id. at 2439-4365. Biodiversity Conservation Alliance contributed public comments to the Draft Environmental Impact Statement and appealed the Revised Land and Resource Management Plan. Final Environmental Impact Statement, and Record of Decision. Id. at 1163-64, 1536-39. Biodiversity commented and appealed for various reasons, but the one before this Court is whether emphasizing domestic sheep over the Encampment River bighorn sheep herd was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

         The Revised Land and Resource Management Plan discusses various aspects of the Forest Service's plan, including specifically, the Encampment River Geographic Area. Id. at 2642-46. In a section of the Revised Land and Resource Management Plan. addressing management in the Snowy Range Mountains, the Forest Service lists a standard to be followed: "[m]anage domestic sheep to provide adequate and effective separation from bighorn sheep, avoiding direct contact between the two." Id. at 2663.

         The Final Environmental Impact Statement restates some of the same material on bighorns, but with a few adjustments. Id., at 3516-17. As to the two Priority 3 herds, it states as follows.

The Encampment River herd is considered a Priority 3 herd. No habitat work or funding will be expended, and no transplant numbers will be added. The herd, reintroduced almost a quarter century ago. has remained steady at 50 animals for about 25 years, despite the fact that both the summer and winter bighorn range is surrounded by and overlapped with all or parts of 7 sheep allotments. In addition, domestic sheep operations occur on surrounding private lands as well.
The Douglas Creek herd on the west side of the Snowy Range, with an established objective of 350 animals, has shown a slow, mostly-steady decrease from 143 animals in the mid-1980s to about 100 today. The animals were also reintroduced into the area about 25 years ago. The Douglas Creek herd is also considered a Priority 3 herd. All 8 domestic sheep allotments on the Snowy Range are currently vacant (the last ones were used in 1997). There is some domestic sheep use of the Forest and adjacent to crucial range along the North Platte corridor. There are occasional sighting reports of individual bighorn rams on the Medicine Bow Peak area of the Snowies, but there are generally poor opportunities for animals to move to higher elevations because of dense timber stands. Wyoming Game and Fish Department reports mention that habitat improvement would entail the cutting or burning corridor routes if the bighorn sheep are able to move outside the current limited range; they also state additional burning is needed on winter range in the Douglas Creek and Bennett Peak areas.

Id. The Encampment herd received little to no discussion on managing the herd for success. Id.

         Appendix D to the Revised Land and Resource Management Plan Final Environmental Impact Statement contains a more extensive discussion of the bighorn. Id. at 4017-29. In the appendix, the bighorn is one of two mammals that are species of local concern. Id. at 4017. Bighorn sheep receive a rating of G4, S3/S4, meaning that they arc "apparently secure globally, though [they] might be quite rare in parts of its range, especially at the periphery" and "rare in state." Id. at 4017. 4019-20. The appendix mentions that bighorn sheep, or ovis canadensis, occur in the mountains in southern Canada, the western United States, and northern Mexico. Id. at 4022. It discusses the three herds in the Medicine Bow National Forest.

         There are three herds on the | Medicine Bow National Forest].

The Laramie Peak herd occupies "adequate habitat" in the southern portions of the Laramie Peak Unit, but the habitat in the northern portions of the herd unit is marginal (WGFD. letter 10/28/2002 attachment). All Forest Service grazing allotments are now occupied by cattle except one occupied by domestic sheep at the northwestern end of the unit. This allotment is about 5 miles from a mapped bighorn home range (off-forest. based on WYGF data): though the area used by the domestic sheep is primarily out on the plains where bighorns arc unlikely to occur, there is a chance that a young ram would move that far. There is no restriction on grazing by sheep on the allotments now occupied by cattle, though the effects on bighorns would be assessed if a change to sheep use were proposed. The Forest Service ownership is fragmented and interspersed with private land. There is nothing to prevent use by sheep on that land, though currently only a few small "hobby" herds are present. These small herds tend to be confined, but could be visited by bighorn rams wandering during breeding season.
The Douglas Creek herd (in the SE Medicine Bow Mountains) occupies the rocky area and canyons that lie in and north of the N. Platte Wilderness. In summer, bighorns may be seen at the top of the Medicine Bow range, along I highway 130. Both rams and ewes have been seen in this area, which is probably part of the historic summer range for the species. The recent lack of large burns has left dense forest that reduces connectivity between this high elevation summer range and the lower wintering grounds. There are eight grazing allotments in the Medicine Row range, running from the tundra (where bighorns have been seen) to the northeast. The high-elevation allotments are currently vacant (though recent queries have been made about use for sheep.) The other allotments on the Medicine Bow Range are either vacant or used by cattle, but there is no restriction on use by domestic sheep. Use of these allotments as a grass bank for sheep has been discussed.
The Encampment River herd has not nourished, though the reason for this is not clear. Though the herd's summer range overlaps several active grazing allotments occupied by sheep and Chlamydia has been found in the herd (Loose 2002). (Cook/Irwin Larry I. et al. 1998). Pasteurdla haemolytica has not been documented. However, the overall condition in the herd is poor; there is evidence that poor quality forage may be a contributing factor (Loose 2002). (Cook. Irwin Larry I et al. 1998). The Wyoming Interagency Bighorn Working Group ranks this herd as lowest priority (of 3 classes) for investment in habitat improvement.

Id. at 4023. The first two paragraphs discuss cattle grazing, while the third docs not. The first two paragraphs do not discuss the herd priority number, while the third paragraph does. In addition, the second paragraph does not discuss the perils of the Douglas Creek Priority 3 herd, but it does discuss grass banking as another alternative to sheep grazing. And paragraph three does not discuss why forage quality is poor and whether domestic sheep grazing contributed to the poor quality.

         Appendix D slates that "| maintenance of all three herds across the current range on the Forest is unlikely under current direction." Id. al 4026. The National Forest Service noted that its "responsibility to maintain viable populations does not mean that populations must be maintained at 100% of potential; rather there is a balance between this requirement and other multiple use objectives." Id. at 4027. It discussed its multiple-use objective of promoting domestic sheep grazing. Id. The National Forest Service stated that it was taking a one-or-the-other approach: choosing domestic sheep grazing in some areas and choosing bighorn sheep habitat in others. Id. The National Forest Service's explanation for choosing domestic sheep over bighorn sheep in the Sierra Madre Range reads as follows.

         The Sierra Madre was chosen as the range in which domestic sheep grazing is emphasized in Alternatives B through E because:

■ The bighorn herd there (the Encampment River herd) is classified as lowest priority (Level 3) at the state level (the Bighorn Working Group). State Game and Fish biologists have ranked the herd third of the three herds ...

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