Wilderness Watch, Inc et al v. U.S. Fish and Wildlife Service et al

Filing 121

ORDER denying Pla's 78 Motion for Summary Judgment; granting 81 Motion for Summary Judgment; granting 85 Motion for Summary Judgment; granting 93 Motion for Summary Judgment; granting in part and denying in part 92 Motion to Strike ; granting 108 Motion to File Amicus Curiae. Signed by Judge Mary H Murguia on 09/05/08.(DNH)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Wilderness Watch, et al., Plaintiffs, v. U.S. Fish and Wildlife Service, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-07-1185-PHX-MHM ORDER Wilderness Watch, the Arizona Wilderness Coalition, the Sierra Club, the Western Watersheds Project and the Grand Canyon Wildlands Council (collectively "the Plaintiffs") filed the instant suit on June 15, 2007 against the United States Fish and Wildlife Service ("the FWS" or "the Defendant"). (Dkt. #1). This Court granted motions to intervene by the U.S. Sportsmen's Alliance Foundation (as well as various other groups, collectively referred to here as "the Sportsmen") and the State of Arizona. (Dkt. #102). According to the Plaintiffs' Amended Complaint, the Defendant violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321-4370, and the Wilderness Act, 16 U.S.C. 1131-1136. (Dkt. #50). These allegations arise from the decision of the FWS to authorize the construction of two water tanks within the Kofa National Wildlife Refuge near Yuma, Arizona, in order to provide supplemental water for wildlife. The Plaintiffs allege that the construction of permanent structures and the use of motorized vehicles within a designated wilderness area violated the Wilderness Act. The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs also assert that the FWS inappropriately invoked a "categorical exclusion" to NEPA's public notice and comment requirements. The Plaintiffs moved for summary judgment on December 14, 2007. (Dkt. #78). Cross-motions for summary judgment were filed by the Defendant, the State of Arizona, and the Sportsmen. (Dkt. #85, 81 and 93). Having considered the motion and cross-motions for summary judgment, oral argument, the administrative record in the case, the extra-record evidence submitted by the Plaintiffs, as well as an amicus brief submitted by Public Employees for Environmental Responsibility, the Court issues the following Order. I. Background The following facts are taken from the parties' respective statements of facts and are undisputed. A. The History of Kofa and Bighorn Sheep The Kofa Game Range was established in 1939. In November of 1990, certain lands within the Kofa National Wildlife Refuge were designated as wilderness under the Wilderness Act. The Kofa Wildlife Refuge consists of approximately 665,400 acres, of which approximately 510,000 acres are designated "wilderness area." The wilderness area is comprised of rugged, desert terrain north of Yuma, Arizona. The Kofa Wilderness is home to a variety of wildlife, including desert bighorn sheep. In fact, one of the reasons that the Kofa Wildlife Refuge was established was to protect bighorn sheep. Desert bighorn sheep occupy high, rocky, arid areas like the habitat found in the Kofa Wilderness. In October 2006, the population of desert bighorn sheep on the Kofa had declined to an estimated 390, down from an estimated 813 in October of 2000. Following the recognition of the population decline, the Arizona Game and Fish Department, in conjunction with the FWS, issued press releases identifying the declining population and recognizing drought as a significant factor. The press releases also recognized other significant factors leading to the decline, including predation. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The FWS began to study the decline in the bighorn sheep population. An Investigative Report and Recommendation was prepared, which addressed some of the possible factors in the population decline. They include: 1) the population's response to drought; 2) water availability; 3) predation; 4) disease; 5) human disturbance; 6) transportation; and 7) hunting. The Investigative Report specifically discussed water availability as a significant factor affecting the population. It discussed the biology of bighorn sheep, noting that summer temperatures, reduced moisture content of forage, and mating activities necessitated additional water intake, and thus reliable water sources. One of the objectives listed in the report was to ensure year round water availability to the bighorn sheep. The report also noted that redevelopment of existing water sources could be completed using new techniques to decrease the visual impact of the site. The Investigative Report also discussed predation as a factor in the decline of the bighorn sheep population. The Report noted that research efforts should continue in order to examine the effects of mountain lions preying on bighorn sheep, as the overall impact of lion predation on the sheep population was unknown. Further, the Investigative Report discussed hunting as a factor in the population decline. B. Implementation of the Recommendations from the Investigative Report Based on the Investigative Report and Recommendation, the FWS decided to redesign water sources to capture and store rain more effectively. The FWS considered the project a redevelopment1 of two existing tanks, the "Yaqui" and "McPherson" tanks. The project was designed to provide year-round water through the use of a series of PVC pipes, 24 inches in diameter and 120 to 160 feet long, buried in the ground. The tanks hold approximately 13,000 gallons of water, with six-inch PVC pipes extending to water Although the FWS considered the tanks a redevelopment of two existing tanks, two new tanks were built, and the "old tanks" were slated to "remain and not be modified." (Plaintiffs' Supplemental Statement of Facts, Dkt. #78-2) (citing to Administrative Record ("AR") at p.136-37). -3- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 diversion structures placed in small, nearby washes. The visible part of the structures consist of the water diversions (approximately 12 inches high, constructed of concrete building blocks covered with mortar) and the in-ground troughs. As part of the process to implement the recommendations outlined in the report, the FWS prepared an Environmental Action Statement, which invoked a "categorical exclusion" from NEPA's reporting and public comment requirements.2 The use of a categorical exclusion for small water control structures is permitted by FWS policy. The water impoundments were constructed with use of backhoes, trucks and other motorized vehicles that brought materials and water to the site. The FWS consulted its policy manual regarding the use of motorized vehicles in the wilderness area; it ultimately determined that such use was permissible because it was "necessary to accomplish refuge objectives." (Federal Defendants' Separate Statement of Facts, Dkt. #90). The FWS also considered a 1997 Interagency Management Agreement and Environmental Assessment that recognized that "allowing the use of motorized or mechanized equipment and vehicles for maintenance, improvement, reconstruction, relocation, or emergency water supplementation at existing wildlife waters would temporarily impact wilderness visitors (loss of solitude) and wildlife (stress) but would provide for maintaining species diversities for the long-term." (Id) (citing AR at p. 312). The FWS detailed its decision to use mechanized equipment in the Minimum Requirements Analysis it prepared for the project. Requirements Analysis and NEPA Worksheet, AR at p. 156-59). (See Minimum The purpose of NEPA is to ensure that federal agencies take into account the environmental consequences of their actions. Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002). A central component of NEPA is the requirement that federal actions undergo public review in a notice and comment process. 40 C.F.R. 1500.2(d); 1506.6. Some projects undertaken by federal agencies, however, are so routine and unlikely to cause significant environmental impacts that they may be conducted without undergoing an environmental analysis. These projects are conducted under what is referred to as a "categorical exclusion," and they require no public review or notice and comment period. 40 C.F.R. 1508.4. -4- 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Plaintiffs' Amended Complaint alleges that the project violated NEPA because it was improperly categorically excluded from documentation in an environmental assessment or an environmental impact statement. (Dkt. #50). Further, the Plaintiffs argue that the project was impermissibly revealed to hunting organizations whose members will benefit from the project, but was not revealed to the organizations that favor wildlife and wilderness protection. (Id.) The Plaintiffs also argue that the project violates the Wilderness Act because it impermissibly impairs wilderness character. (Id.) II. Standard of Review The Administrative Procedure Act ("APA") prescribes the standard of review for challenges to agency actions under statutes that otherwise provide no private right of action. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n.23 (1989). The agency action must be upheld unless it is arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law. 5 U.S.C. 706(2)(A); Natural Resources Defense Council v. U.S. EPA, 526 F.3d 591, 602 (9th Cir. 2008). The reviewing court defers to the agency if the decision is based on a permissible construction of the statute or regulations it is entrusted to administer. Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984). In deciding an APA case, the scope of review is generally limited to the Administrative Record that was before the agency decision-maker. Florida Power & Light v. Lorion, 470 U.S. 729, 743 (1985). In such a case, motions for summary judgment are the "appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did." Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir. 1985). The function of the reviewing court is not to resolve any disputed issues of fact; rather the court is to "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. at 769. III. Discussion -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Mootness Preliminarily, the Court must address the Defendant's argument that the case is moot. The FWS asserts that the Plaintiffs' action has lost its character as a present, live controversy because the completion of the water tanks prevents the Court from granting effective relief. (Cross-motion for Summary Judgment, Dkt. #85). The FWS asserts that where the challenged action has been completed, as here, Courts have consistently found that no effective relief may be granted and the case is moot. (Id.) The Plaintiffs, however, direct the Court's attention to a Ninth Circuit case that finds that environmental cases "do not become moot merely because the project has been completed; rather, the inquiry is whether relief can be granted." (Reply and Response to Cross-motions for Summary Judgment, Dkt. # 98) (citing West v. Sec'y of the Dept. Of Trans., 206 F.3d 920, 924-26 (9th Cir. 2000)). The Plaintiffs point out that they are seeking disablement or removal of the water impoundments by non-motorized means, or an order for the FWS to prepare an environmental assessment.3 Because the Court finds that either or both of these remedies could provide effective relief, the case is not moot. B. Motion to Strike Extra Record Evidence The FWS has moved to strike some extra-record evidence submitted by the Plaintiffs as an exhibit to the Motion for Summary Judgment. (Dkt. #92). The evidence to which the FWS objects includes: 1) The declaration of Tim Lengerich to establish the Plaintiffs' standing; 2) The declaration of Tina Marie Ekker to support the Plaintiffs' argument that public comment was not solicited for the project; The Court finds persuasive the language cited by the Plaintiffs from the West decision: "if the fact that the [contested projects were] built and operating were enough to make the case nonjusticiable . . . then the [defendant] and all similar entities could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine." (Reply and Response to Cross-motions for Summary Judgment, Dkt. # 98) (internal quotations and citations omitted). -6- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3) Excerpts from a publication called Counting Sheep to explain bighorn sheep history and biology; and 4) The Arizona Hunting Guidelines. (Id.) The FWS argues that the Court's review is confined to the Administrative Record, and therefore, consideration of the extra-record evidence is inappropriate. (Id.) The Plaintiffs respond that several exceptions exist to the general rule limiting extrarecord evidence, and that these exceptions apply to each of the challenged items of evidence. (Dkt. #96). 1. Declaration of Tim Lengerich The FWS concedes in its Reply that it does not object to the use of Lengerich's deposition for the purposes of attempting to establish standing. (Dkt. #97). Therefore, the Lengerich deposition is admitted for that purpose. 2. Declaration of Tina Marie Ekker The Plaintiffs submitted the Ekker declaration for support of their claim that the FWS did not solicit public comment for the water impoundment project. The FWS objects on several grounds to the Court's consideration of this evidence, but admits to the Plaintiffs' underlying claim -- i.e., that the FWS did not seek public comment for the project. The Court treats the Plaintiffs' contention as established, and therefore consideration of the declaration is unnecessary. 3. Excerpts from Counting Sheep The Plaintiffs argue that extra-record materials, such as the excerpts from the publication Counting Sheep, are admissible to help the reviewing court determine "whether the agency considered all relevant factors and has explained its decision." (Dkt. #96) (citing Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). The Plaintiffs argue further that if the materials are needed to "explain technical terms or complex subject matter," they are admissible in the district court. (Id.) The Court does not consider the subject matter technical or complex, but will admit the materials for the purpose of considering whether the FWS failed to consider important -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factors of bighorn sheep history and biology. Although the FWS argues that it in fact considered many factors of bighorn sheep history and biology, that argument is better left reserved for the merits of the summary judgment motions, and not for support of its motion to strike. The Court can better determine whether the FWS failed to consider an important aspect of the problem by reference to the issues it allegedly overlooked. 4. Arizona Hunting Guidelines The Plaintiffs seek to admit the Arizona Hunting Guidelines to support their contention that hunting is permissible at man-made water holes, such as the water impoundments at issue in this case. (Dkt. #96). They argue that this concept is a "technical matter that would likely not be grasped by a non-hunting person." (Id.) Alternatively, the Plaintiffs urge the Court to take judicial notice of the hunting guidelines. As with the declaration of Tina Marie Ekker,4 however, the FWS admits to the Plaintiffs' underlying contentions. (Dkt. #97). The Court therefore treats the Plaintiffs' claims about hunting at water holes as established, and thus resort to the Arizona Hunting Guidelines is unnecessary. C. Motion to File Amicus Curiae Brief An entity called Public Employees for Environmental Responsibility moved to file an amicus curiae brief in support of the Plaintiffs' Motion for Summary Judgment. (Dkt. #108). The Court notes that the FWS and the Interveners object on several grounds, arguing that the brief is an extra-record submission with no legal arguments, no citation to legal authority, and makes no reference to documents in the administrative record. The Sportsmen's objection refers to it as "little more than an unsworn extra record declaration." (Dkt. #111). They also argue that it is inexcusably tardy. (Id.) Although the Court grants the motion to file the amicus brief for the reasons discussed above with respect to the excerpts from Counting Sheep, it does so with full cognizance of the brief's potential shortcomings and the Defendant's and Interveners' objections. 4 See part III, section B.2 supra. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. The Use of Motorized Equipment and Construction of Permanent Structures Within the Wilderness Area The Plaintiffs argue that both the use of motorized equipment and the construction of permanent structures within a wilderness area violate the plain language of the Wilderness Act. The Wilderness Act provides: . . .except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. 16 U.S.C. 1133(c). According to the Plaintiffs, any exceptions regarding motorized equipment or permanent structures are read narrowly, and so the impoundments should be removed or rendered inoperable. (Motion for Summary Judgment, Dkt. #78). The FWS responds that Congress could have imposed a flat prohibition on motorized vehicles and structures or installations in the wilderness. (Cross-motion for Summary Judgment, Dkt. #85). Instead, Congress "gave agencies the ability to maintain structures when necessary to meet the minimum requirements for the administration of efforts to conserve wildlife resources of the lands." (Id.) Further, the FWS argues that it has additional -- and sometimes conflicting -- duties by virtue of the fact that the lands in question are also designated as a Wildlife Refuge under the National Wildlife Refuge System Improvement Act ("NWRSIA"). The FWS asserts that those duties required the FWS to take the affirmative actions here (including the use of motorized equipment and permanent water impoundments) in order to preserve and restore the bighorn sheep population. The Court requested, and the parties provided, supplemental briefing on the issue of whether the Wilderness Act or the NWRSIA was controlling. (See Dkt. #116, 117, 118 and 119). -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Wilderness Act and the NWRSIA a. The Plaintiffs' Supplemental Brief The Plaintiffs argue that the NWRSIA is a general statute that does not act to eliminate the specific protections afforded to wilderness lands by the Wilderness Act. The Plaintiffs argue that the NWRSIA explicitly declares that it only applies "subject to existing state and federal law," and that the Wilderness Act is not similarly limited. (Dkt. #117). Wilderness, the Plaintiffs argue, is to be preserved in all cases as wilderness. The Plaintiffs state that a specific statute cannot be controlled or nullified by a general statute, regardless of the order in which the two statutes were enacted. Here, the Wilderness Act specifically designates wilderness land to be free of permanent improvements. The NWRSIA, in contrast, talks about the general need to conserve fish and wildlife without specific instructions on how to accomplish that conservation. Therefore, the Plaintiffs assert, the more specific prohibitions in the Wilderness Act control. The Plaintiffs also point out that the FWS is not permitted to violate federal law and must therefore strive to meet the requirements of both the NWRSIA and the Wilderness Act. Because nothing in the NWRSIA specifically requires the FWA to build new water developments in contravention on the Wilderness Act's prohibition, the FWS could have built the water impoundments, if they were required, on parts of the refuge that were not designated as wilderness. Finally, the Plaintiffs assert that the Ninth Circuit has not held that the NWRSIA is controlling over the Wilderness Act where faced with similar issues. For support, the Plaintiffs cite to Wilderness Society v. Alaska Ctr. For the Environment, 360 F.3d 1374 (9th Cir. 2004) (en banc), and Wilderness Watch v. Mainella, 375 F.3d 1085 (11th Cir. 2004). b. The FWS's Supplemental Brief The FWS asserts in its supplemental brief that there is no irreconcilable conflict between the two statutes, and therefore neither is controlling. The two must be read together to fulfill the mission of the refuge. The FWS points to the exception in the Wilderness Act that allows otherwise prohibited actions "where necessary to carry out the purposes of the - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Act." (Dkt. #116). This language, according to the FWS, supports the agency's interpretation that the two statutes can be harmonized. Furthermore, the FWS argues that Congress noted that the designation of the lands as wilderness was compatible with the purposes for which the refuge was established and managed. The management of bighorn sheep was one of the primary purposes of establishing the refuge, and the Wilderness Act was not intended to change that. The FWS points out that it has a policy that specifically addresses the effect of the Wilderness Act on the refuge purposes. The policy states that Wilderness Act purposes are to be "within and supplemental" to the purposes of the NWRSIA. The FWS interprets this to mean that the wilderness purposes are additional purposes of the refuge, providing additional considerations for determining the administrative and management actions needed to achieve the refuge's purposes on designated wilderness areas. Finally, the FWS argues that courts must regard each statute as effective if they are capable of coexistence. If one of the statutes is ambiguous with respect to an issue, the courts must defer to the agency so long as it involves a permissible construction of the statute. The FWS asserts that it has implemented policies that enable it to give effect to both statutes; therefore they do not conflict and neither is controlling. c. The State of Arizona's Supplemental Brief The State of Arizona argues that neither statute must give way to the other; both impose mandatory -- yet compatible -- obligations on the FWS. Because the Wilderness Act's purposes are "within and supplemental" to the purpose of restoring wildlife populations, the actions taken were equally consistent with the Wilderness Act. The exception in the statute that allows non-conforming actions when necessary for refuge purposes is therefore equally applicable to the Wilderness Act. Because the actions involved the least impact necessary to accomplish the refuge purpose, the State asserts, they were permissible under the Wilderness Act. The preference "is to harmonize statutes wherever possible." (Dkt. #119). The FWS's reasonable harmonization here is entitled to deference. Even if the Court did not - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agree that the FWS reasonably harmonized the two statutes, the State argues, the NWRSIA should control as the later-enacted statute. d. The Sportsmen's Supplemental Brief The Sportsmen assert that the NWRSIA overrides any seemingly contradictory principles of the Wilderness Act. In any event, both statutes require the FWS to preserve species, so the Sportsmen argue that there is no actual conflict. Further, the FWS complied with all of the Wilderness Act's requirements. The bighorn sheep were the primary concern in refuge establishment, the Sportsmen argue. Because the Wilderness Act is "supplemental to" the refuge designations, the Wilderness Act was plainly intended to allow the FWS to engage in refuge-related management activities. If contradictory, the Sportsmen assert, the Wilderness Act takes a backseat to the NWRSIA. Finally, the Sportsmen argue that Congress has described the Wilderness Act as "simply an overlay," prescribing terms and conditions for how land managers achieve the refuge's existing purposes. (Dkt. #118). They assert that constructing the water tanks was consistent with Congress' directives and in accordance with all statutory provisions, and that this reasonable harmonization is therefore entitled to deference. 2. Analysis The Court finds that the two statutes at issue are capable of coexistence, and that it must regard each as effective. Nigg v. U.S. Postal Service, 501 F.3d 1071, 1076 (9th Cir. 2007). Further, the Court finds that the FWS engaged in a reasonable harmonization of its obligations under each statute. Alaska v. Watt, 451 U.S. 259, 267 (1981). The purposes of the Wilderness Act are deemed to be "within and supplemental to the purposes for which . . . national wildlife refuge systems are established and administered." 16 U.S.C. 1133(a). The FWS interprets this "within and supplemental" language to mean that "wilderness purposes become additional purposes of the refuge, yet apply only to those areas of the refuge designated as wilderness." (Cross-motion for Summary Judgment, Dkt. #13). These wilderness purposes "provide additional considerations for determining the - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative and management actions" needed to achieve the refuge's purposes on wilderness lands. (Id.) This reasonable harmonization by the FWS is entitled to deference because Congress has not expressed its intent on the issue of what to do when a potential conflict may arise between the two statutes. National Ass'n of Home Builders v. Defenders of Wildlife, __ U.S. __ , 127 S. Ct. 2518, 2534 (2007) (citing Chevron U.S.A. Inc. v. N.R.D.C., Inc., 467 U.S. 837, 843 (1984)). If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 842-43. The Court finds here that it is. a. Permanent Structures The FWS argues that the permanent water impoundments were "necessary to meet minimum requirements for the administration of the area." 16 U.S.C. 1133(c). The Plaintiffs assert that not only were the water impoundments not necessary, the FWS failed to consider the detrimental effect the supplemental water might have on the natural balance of the ecosystem. (Motion for Summary Judgment, Dkt.#78). The Plaintiffs argue that construction of the water impoundments modifies the area's natural conditions "so that water is provided year-round where it otherwise would be scarce, intermittent, or not exist at all. As a consequence, animals that otherwise would not inhabit the area because of the scarcity of water in the area's natural conditions, can now do so." (Id.) For support, the Plaintiffs cite to the disputed extra-record excerpts that discuss the history and biology of bighorn sheep. (Exhibits 2 and 3 to Motion for Summary Judgment, Dkt. #80). The excerpts provide support for the Plaintiffs' assertion that bighorn sheep can live in places with little water and searing heat. (Motion for Summary Judgment, Dkt. #78, 80). The excerpts also discuss the significant threat that bighorn sheep face from predatory animals including mountain lions. (Id.) These factors lend support to the Plaintiffs' concern that the abundance of man-made waters in the Kofa Refuge might permit mountain lions to - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 survive in bighorn sheep territory that would otherwise be too arid for them to endure. (Motion for Summary Judgment, Dkt. #78). One of the excerpts, however, specifically discusses the beneficial role played by "single species advocate groups." (Exhibit 3 to Motion for Summary Judgment, Dkt. #80). It suggests that advocate groups for bighorn sheep, such as the Interveners here, have been particularly successful in their efforts, and have contributed funds and labor to sheep transplants and water improvement projects. (Id.) The article goes on to say that the results of these advocate groups are undoubtedly beneficial to sheep, and that these groups are essentially deserving of encouragement. (Id.) Further, the excerpt seems to highlight the importance of "escape terrain" as a key factor in the bighorn's ability to avoid predation. ( I d .) The FWS points out that it considered both bighorn sheep biology and predation when determining whether the water impoundments were necessary. (Reply in Support of Motion to Strike Extra Record Evidence, Dkt. #97). The Minimum Tool Analysis prepared for the project noted that the bighorn sheep populations had declined to an estimated 390 sheep, down from an estimated 813 in 2000. (AR at p. 154). A joint news release by the Arizona Game and Fish Department and the FWS discussed, among other causes, drought, predation and hunting as factors for the decline. (AR at p. 116-119). Further, the Arizona Game and Fish Department prepared an "Investigative Report and Recommendations for the Kofa Bighorn Sheep Herd," which was approved by the FWS (AR at p. 392-430). The Investigative Report provides a detailed analysis of sheep mortality factors and management strategies, including habitat considerations (population response to drought and water availability), biological considerations (predation, disease, human disturbance, translocations and hunting), and other considerations (livestock and burros, noxious and invasive plants, wildfires and mining). (Id.) Ensuring year-round water availability for bighorn sheep was one of the priority recommendations of the Investigative Report after consideration of the habitat and biological factors. (AR at p. 10). - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The FWS appears to have considered a multitude of relevant factors in sheep mortality and management. Having considered all of the critical factors, the FWS's decision to construct the water impoundments -- despite being contrary to the course of action (or inaction) that the Plaintiffs might have taken -- is entitled to deference. "Agency action passes muster under [the arbitrary, capricious, or abuse of discretion] standard of review provided that the agency examine[s] the relevant data and articulate[s] a satisfactory explanation for its action, including a rational connection between the facts found and the choice made." Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995) (internal quotations and citations omitted). Accordingly, the Court finds that the construction of the water impoundments did not violate the Wilderness Act. b. Motorized Equipment The Plaintiffs argue that the use of motorized equipment violates the plain language of the Wilderness Act. The FWS argues, however, that as with the permanent water impoundments, the use of motorized equipment was "necessary to meet minimum requirements for the administration of the area." 16 U.S.C. 1133(c). The FWS points out that it relied on its Refuge Manual in determining whether the use of motorized equipment was permissible. (See AR at p. 329). The Refuge Manual provides that motorized equipment "may be used in special circumstances if it is the minimum tool necessary to accomplish a task safely and without long term impairment of the area's wilderness character." (Id.) The Minimum Requirements Analysis thoroughly discussed the use of motorized equipment, as well as alternatives to the use of motorized equipment (including taking no action, or completing the project through non-mechanized means). (AR at p. 154-59). The FWS ultimately concluded that the use of motorized equipment constituted the minimum tool necessary to safely accomplish the project. The FWS determined that it could complete the project relatively quickly (within a few days as opposed to weeks without mechanized - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equipment), and could provide reliable water to wildlife during the summer of 2007 while minimizing disturbance during construction. (AR at p. 156). The FWS also noted a concern about human health and safety if the projects were completed using non-mechanized means. The FWS cited to heat-related problems, back, leg and ankle injuries and blisters. (AR at p. 158). Further, the FWS indicated that the extended time needed to complete the projects by hand "would likely result in poor worker retention and recruitment, placing additional work on those individuals willing to stay and complete the projects." (Id.) Accordingly, the FWS determined that the use of motorized equipment constituted the minimum tool necessary to accomplish the task safely and without long term impairment of the area's wilderness character. The Court finds that the agency's interpretation of its regulations are entitled to controlling weight. Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999). The decision to use motorized equipment was based on a permissible construction of the Wilderness Act and the NWRSIA, and is therefore entitled to deference. Chevron USA, Inc. v. NRDC, 467 U.S. 837, 843 (1984). E. The Decision to Construct Water Impoundments Without Public Review or Comment and the Use of a Categorical Exclusion The Plaintiffs argue that the FWS violated NEPA by deciding to construct the water impoundments without public review or comment and through the use of a categorical exclusion. Because no public review or comment is required if the agency appropriately relied on a categorical exclusion, the Court need only address whether the categorical exclusion was appropriately invoked.5 The parties acknowledge that some of the intervener groups volunteered time and materials to the water impoundment project. The Plaintiffs suggest that this demonstrates that the Interveners were impermissibly apprised of the action before it was completed and that, presumably, their input was considered. Accordingly, the Plaintiffs argue that the project was intentionally "conducted with notice to favored parties but in secrecy with respect to those who may oppose the project." (Motion for Summary Judgment, Dkt. #78). It was revealed in oral argument, however, that the Interveners have regular and ongoing contact with the U.S. Fish and Wildlife Service. The Court does not find that these facts - 16 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Plaintiffs point out that NEPA "requires the federal government to prepare an environmental assessment or an environmental impact statement for all federal actions that `may' have a significant impact on the environment." (Motion for Summary Judgment, Dkt. #78) (citing 42 U.S.C. 4332(2)(C)). A project may be categorically excluded from this requirement if it is one of a category of actions that the agency has consistently "found to have no significant cumulative or individual effects on the environment." (Id.) (citing 40 C.F.R. 1508.4). Further, the project must not implicate any "extraordinary circumstances." ( I d .) The extraordinary circumstances that will prevent an action from being categorically excluded from the environmental assessment or environmental impact statement requirement include actions that may 1) have adverse effects on natural resources such as wilderness areas, 2) have highly uncertain environmental effects or may set precedent for future actions with potentially significant effects, or 3) have the potential to violate federal law. (Motion for Summary Judgment, Dkt. #78) (citing the FWS's Department Manual Appendix 2, Ch. 2, at AR 249). The Plaintiffs assert that the use of motorized equipment to construct these permanent water impoundments implicated each of these extraordinary circumstances, and thus was ineligible for a categorical exclusion. 1. Adverse effects on natural resources such as wilderness areas The Plaintiffs assert that the adverse effect on the wilderness area is caused by "disturbing the natural water regime and disrupting and modifying the ecology of the wilderness to favor some animals and components of the wilderness over others." (Motion for Summary Judgment, Dkt. #78). The FWS responds that the Department of the Interior has promulgated specific categorical exclusions for the FWS that were subject to public notice and comment. The point to an unfairness in the public comment process, or that this contact amounted to an impermissible consideration of the input of only those who favored the project. Accordingly, the Court must only consider whether the use of a categorical exclusion was appropriate. - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 categorical exclusions include "the construction of new, or the addition of, small structures or improvements," including "the construction of small water control structures." (Crossmotion for Summary Judgment, Dkt. #85) (citing the FWS's Department Manual, 516 DM ch. 8, sec. 8.5 at AR 257-61). Further, there is a categorical exclusion for "the reintroduction or supplementation (i.e., stocking) of native, formerly native, or established species into suitable habitat within their historic or established range, where no or negligible environmental disturbances are anticipated." (Id.) The FWS asserts that it relied on these categorical exclusions, and that their use is entitled to deference as not arbitrary, capricious, or an abuse of discretion. The Court finds that the agency's interpretation of its regulations as allowing the water impoundment project to proceed under a categorical exclusion is entitled to controlling weight. Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999) ("An agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation."). The FWS appears to have thoroughly investigated the project and its effects, and concluded that a categorical exclusion was appropriate. It prepared an Environmental Action Statement, Minimum Requirements Analysis, and NEPA worksheets to document its c onc lusion. "Once the agency considers the proper factors and makes the factual determination on whether the impacts are significant or not, that decision implicates substantial agency expertise and is entitled to deference." Id. at 859 (citation omitted). 2. Highly uncertain environmental effects or precedent-setting for future actions with potentially significant effects The Plaintiffs argue the decision to construct the water impoundments "comes with a decision to maintain them, probably for decades, with water trucks, hoses, and earthmoving equipment" within the wilderness area. (Motion for Summary Judgment, Dkt. #78). Although the FWS does not dispute that the tanks may require some maintenance, it points out that the redesign of the water tanks was intended to "capture and store rainwater - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more efficiently, greatly reducing the need to haul supplemental water." (Cross-motion for Summary Judgment, Dkt. #85); (Reply to Cross-motion for Summary Judgment, Dkt. #106). The FWS reported in oral argument that the previous design of the water tanks required additional disturbance to the wilderness area though the hauling of supplemental water to tanks that had become dry. The increased efficiency of both capture and storage of run-off was intended to reduce the impact to the environment of water hauling. The Court finds that this determination is entitled to deference. Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999). 3) Potential to violate federal law The Plaintiffs argue that the water impoundment project has an undeniable potential to violate the Wilderness Act because the express language of that Act forbids motorized equipment and permanent structures. The Court notes that the language of the Wilderness Act prohibiting motorized equipment and permanent structures is subject to exception where "necessary to meet minimum requirements for the administration of the area." 16 U.S.C. 1133(c). Further, as discussed in part III, section D.2 supra, the Court finds that the FWS engaged in a reasonable harmonization of the two statutes controlling its actions on the land in question. Accordingly, the agency's conclusion that there were no extraordinary circumstances present that would require it to prepare an Environmental Assessment or Environmental Impact Statement is entitled to deference. Alaska Center, 189 F.3d at 859. IV. Conclusion The Court finds that the decision to construct two permanent water impoundments using motorized equipment in an area designated as wilderness did not violate the Wilderness Act. The Court also finds that the agency's actions did not require the FWS to provide public notice and comment, as they were undertaken pursuant to an appropriate categorical exclusion. Accordingly, - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS ORDERED denying the Plaintiffs' Motion for Summary Judgment. (Dkt. #78). IT IS FURTHER ORDERED granting the Defendant's and Interveners' Crossmotions for Summary Judgment. (Dkt. #85, 81, and 93). IT IS FURTHER ORDERED granting in part and denying in part the Defendant's Motion to Strike the Plaintiffs' Extra-Record Evidence. (Dkt. #92). IT IS FURTHER ORDERED granting the Motion to File Amicus Curiae Brief by Public Employees for Environmental Responsibility. (Dkt. #108). DATED this 5th day of September, 2008. - 20 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?