Center for Biological Diversity et al v. Walsh et al

Filing 43

OPINON AND ORDER VACATING AGENCY ACTION: The Court VACATES that FONSI and decision and REMANDS the matter to the FWS for further consideration consistent with the findings in this Opinion. The Clerk of the Court shall enter judgment in favor of the Plaintiffs and close this case. Entered by Judge Marcia S. Krieger on 3/30/2021. (rkeec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 18-cv-00558-MSK
CENTER FOR BIOLOGICAL DIVERSITY,
THE HUMANE SOCIETY OF THE UNITED STATES, and
WILDEARTH GUARDIANS,
Petitioners,
v.
NOREEN WALSH, in her official capacity as Regional Director of the Mountain-Prairie
Region of the U.S. Fish and Wildlife Service,
DEB HAALAND, Secretary of the U.S. Department of the Interior,
AURELIA SKIPWIRTH, in her official capacity as Acting Director of the U.S. Fish and
Wildlife Service,
U.S. FISH AND WILDLIFE SERVICE, and
U.S. DEPARTMENT OF THE INTERIOR,
Respondents.1
______________________________________________________________________________
OPINION AND ORDER VACATING AGENCY ACTION
______________________________________________________________________________
THIS MATTER comes before the Court for resolution on the merits, in consideration of
the Administrative Record (# 19, as supplemented # 23), the Petitioners’ Opening Brief (# 28),
the Respondents’ Response Brief (# 31), and the Petitioners’ Reply Brief (# 32).
FACTS
For decades, officials from Colorado Parks and Wildlife (“CPW”) have worked with a
federal agency, the Wildlife Services division of the U.S. Department of Agriculture’s Animal
and Plant Health Inspection Service (collectively, “APHIS”) to address issues of “wildlife

1

The Court has sua sponte modified the caption to reflect current officeholders of the
positions at issue here.
1

damage management” . These are situations in which wild predators (such as coyotes, mountain
lions, bears, and others) have caused damage to livestock, domestic animals, people, and
agricultural resources. Among the services that the agencies coordinate is “predator damage
management,” namely activities that involve killing nuisance predators throughout the state.
In or about October 2016, APHIS, in cooperation with CPW and other agencies, issued a
draft Environmental Assessment (“EA”), addressing whether the existing practice of predator
damage management should be continued and whether continuation of the practice would have
significant environmental impacts warranting the preparation of an Environmental Impact
Statement (“EIS”) under federal law. AR 1735, 1783. 2 After giving notice and soliciting public
comment on the draft EA, in January 2017, APHIS issued a final EA and a Finding of No
Significant Impact (“FONSI”), in which it decided to continue its involvement in the predator
damage management activities.
Separately, the Pittman-Robertson Wildlife Restoration Act (“Wildlife Act”), 16 U.S.C.
§669c(e), authorizes the Secretary of the Interior to allocate certain federal funds to states to
support state-run wildlife conservation and restoration programs. To apply for such funding the
state must submit a comprehensive plan addressing various components, including providing “an
opportunity for public participation in the development” of the contemplated program. 16
U.S.C. § 669c(e)(2). If the Secretary approves the program, the Department of the Interior can
allocate up to 75% of the cost of developing and implementing that program. 16 U.S.C. §
669c(e)(3).

2

Citations to AR__ refer to the referenced page of the supplemented Administrative
Record, Docket # 23.
2

For decades, CPW has been tracking populations of mule deer, a popular game species.
CPW observed that since 2008, such populations have been in decline. In 2016, CPW officials
hypothesized that predation is a possible explanation for some of the decline, and proposed a
research program to study the effects of predation on mule deer populations. AR 94. The
research project involved “predator control efforts” – essentially, the killing of some bears and
cougars in the study area over a 3-year period to compare mule deer survival rates to those where
no predator control occurred. AR 96. In January 2016, CPW officials reached out to the U.S.
Fish and Wildlife Service (“FWS”), a division of the U.S. Department of the Interior, to request
funding for the contemplated predator control research project under the Wildlife Act. AR 94.
The research project was to take place in a portion of the Piceance Basin in northwestern
Colorado and would require APHIS to kill a then-unspecified number of black bears and
cougars3 during May and June of 2016, 2017 and 2018. AR 97-98.
FWS representatives responded favorably to the initial request. On March 16, 2016, they
wrote to CPS officials stating “when you speak with APHIS, would you please ask them if
they’ve done an EA [ ] for the work they are conducting. I’m hoping we might be able to adopt
their NEPA document since they are another federal agency.” AR 129. Because APHIS’ 2016
draft EA did not yet exist, an APHIS official sent a copy of a 2005 EA that APHIS had prepared
in conjunction with its ongoing predator damage management activities. AR 131, 136. CPW
continued to refine the Piceance Basin proposal, eventually estimating that 5-10 cougars and 10-

3

“Cougar” and “mountain lion” are alternative names for the same species (Felis concolor,
sometimes Puma concolor). See e.g. AR 97, 772, 1743. Documents in the record use both terms
interchangeably (sometimes within the same document). See e.g. AR 2016 (“To suppress
cougars we would increase lion harvest which will have a significant impact on the density of
cougars. . . .”). In an effort to maintain clarity, this Court will generally refer to the animals as
“cougars,” except when quoting from sources in the record that use “lion” or “mountain lion.”
3

15 bears would be killed each year, with the possibility of those numbers increasing to a
maximum of 15 cougars and 25 bears per year.4 AR 321-22.
At some point in time, CPW decided to also pursue a second, somewhat similar research
project in the Arkansas River valley are south of Canon City. AR 731. That project proposed to
“suppress [mountain] lion populations” in two management units over a 9-year period.5 In unit
D-16, cougar populations would be reduced by “approximately 50% of the potential population”
over a 3-year period, and the reduced population sustained for three years, after which it would
be allowed to return to normal numbers. In unit D-34, the cougar population would be
unaffected for a 6-year period (serving as a control group during the D-16 experiment and
recovery), after which the cougar population in D-34 would be reduced “similarly to years 1-3 in
D-16” before being allowed to return to normal. AR 736.
On May 10, 2016, representatives of CPW, FWS, and APHIS met to discuss the need for
an EA for the CPW research projects, as required by the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321 et seq. AR 387. Anticipating that “the probability of public
controversy is high,” the parties concluded that more streamlined procedures would not be
possible and that an EA would likely be required. The various agencies all anticipated that, to
reduce duplication of effort, APHIS would complete their in-progress work on their forthcoming
2016 EA governing its predator damage management activities statewide and would include
details about CPW’s intended research projects in that EA, and that FWS would then evaluate

4

The proposal specified that if “a lactating black bear or cougar is killed, accompanying
cubs/kittens will be humanely euthanized” as well. AR 322.

5

It is not clear to the Court whether the cougars in the Arkansas River project would be
killed primarily by recreation hunters via increased issuance of cougar-hunting permits, whether
APHIS would be contracted to specifically hunt cougars, or some combination of both.
4

and adopt that EA as part of its own NEPA obligations for assessing the request for Wildlife Act
funding. The agencies anticipated that CPW would hold public meetings and solicit comments
about the projects, and that such notice and comment proceedings would suffice for FWS’
purposes as well. AR 387.
State agencies were eager to complete the environmental assessment process and obtain
FWS approval by a December 4, 2016, in order to implement the programs during the 2017 mule
deer birthing season. FWS stated in contemporary correspondence that it would need 60 days
from the release of the APHIS EA in order for FWS to adopt it. AR 389. Colorado state
officials asked whether there was “anyway to reduce that to something closer to 30 days?,”
observing that, with a target date of November 2016 for FWS approval, APHIS would be
required to publish its EA by early September, and CPW “would have to conduct all its public
outreach prior to early September.” AR 392, 394. Believing that FWS would have to allow a
separate 30-day notice and comment period before adopting the APHIS EA, FWS
representatives considered the possibility of being a “cooperating agency” on APHIS’ EA. AR
439. In June 2019, an APHIS employee conferred with the agency’s NEPA coordinator and was
advised of the following:
The difference between “adopting” versus “cooperating agency” is
for one agency to adopt another agency’s NEPA without being a
cooperating agency listed on the title page requires the adopting
agency to put their name on the NEPA document and then put the
same document out for public comment a second time. The
adopting agency then can issue a decision document.
The cooperating agency process has all the cooperating state and
federal agencies listed on the title page and the federal agencies’
proposed actions listed in the alternatives. There is one public
comment period and the cooperating federal agencies can issue a
separate or joint decision document. After the public comment
process, the second agency can now adopt the primary agency’s
NEPA and issue a decision document without a separate public
5

comment period. . . . This process saves at least 30 days by
avoiding the second comment period.
AR 479.
In October 2016, APHIS released its draft EA for public comment. AR 1735. Notably,
FWS was not listed on the title page as a cooperating agency, although the APHIS EA included
some discussion and analysis of both proposed CPW research projects. APHIS issued its final
EA and FONSI on January 19, 2017. AR 2542, 2543 (FONSI), 2553 (Final EA).
On February 27. 2017, FWS “adopted in part” the APHIS EA, namely, adopting without
modification that portion of the APHIS EA that discussed the two predator control projects. AR
3712. At the same time, FWS also issued its own FONSI, approving CPW’s application for
Wildlife Act funding of the project. AR 3327. FWS did not solicit any additional public notice
on the APHIS EA before adopting it.
The Plaintiffs commenced this action, seeking review of FWS’ decision to adopt the
APHIS EA under the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq. They
contend that the FWS’ decision to approve funding for the project without separately conducting
an EA or allowing public notice and comment before adopting the APHIS EA violated the
National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. More specifically, the
they argue that: (i) pursuant to 40 C.F.R. § 1506.3(b) and (c), FWS was not permitted to simply
adopt the APHIS EA because FWS was not a cooperating agency on that EA and because the
projects contemplated by FWS were not “substantially the same” as the broad predator
management activities contemplated by the APHIS EA, and thus, FWS was required to circulate
the APHIS final EA as a draft FWS EA and allow notice and comment before approving it; (ii)
the APHIS EA is incomplete, in that it fails to provide baseline population estimates of black
bears and cougars in the project areas, making it impossible to adequately assess the
6

environmental effects of killing portions of those populations, that it does not adequately discuss
the environmental effects that will result from the removal of portions of the predator population
in the project areas, and that it did not consider scientific research that discounts the effects that
predation has on deer populations; (iii) that FWS failed to consider a range of alternatives, such
as funding the projects at less than the requested 75% level; and (iv) that under NEPA, FWS
should have been required to prepare a full Environmental Impact Statement (“EIS”) instead of
an EA because the research projects are controversial, involve uncertain and unknown risks, and
because the projects could have substantial cumulative impacts.
ANALYSIS
A. Statutory background
1. APA
The APA provides the mechanism by which courts review final agency actions. Under
the APA, the Court may set aside an agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A decision is
arbitrary or capricious if the agency “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 where the action “is so
implausible that it could not be ascribed to a different in view or the product of agency
expertise.” High Country Conservation Advocates v. U.S. Forest Serv., 951 F.3d 1217, 1222
(10th Cir. 2020). The Court affords the agency’s decisionmaking a presumption of validity and
considerable deference, and the burden is on the party challenging it to demonstrate that the
decision is arbitrary and capricious. Id.; Defenders of Wildlife v. Everson, 984 F.3d 918, 934-35
(10th Cir. 2020).

7

2. NEPA
NEPA requires federal agencies to analyze environmental consequences before initiating
actions that potentially affect the environment. The agency must first conduct an EA to
determine whether the action is likely to “significantly affect the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). If the agency determines that the project will likely
have significant environmental impacts, it must proceed to prepare a comprehensive EIS. 40
C.F.R. § 1501.3(a)(3), 1502.1 et seq. If the agency determines that the project is not likely to
have significant environmental effects, it may issue an EA and FONSI. 40 C.F.R. § 1501.6. The
agency must give the public notice of the EA and FONSI (and underlying documentation) and
solicit information and comment from the public on the documents and proposed action before
proceeding to finalize its decision. Id.; 40 C.F.R. § 1506.6.
NEPA describes only procedural requirements; so long as those requirements are
followed, the Court does not concern itself with the wisdom of the agency’s decisionmaking.
New Mexico ex. rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th Cir.
2009). As the Supreme Court has stated, NEPA “prohibits uninformed – rather than unwise –
agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). The
touchstone of the Court’s inquiry is whether the agency “took a hard look at information relevant
to the decision,” that is, whether the agency “did a careful job at fact gathering and otherwise
supporting its position.” Richardson,, 565 F.3d at 704.
B. Plaintiffs’ contentions
1. Adoption of another agency’s EA
Before the Court embarks on this portion of the analysis, it must first determine what
regulatory scheme controls. NEPA’s regulatory scheme is drafted by the Council on

8

Environmental Quality (“CEQ”). In 2020, the CEQ updated the existing NEPA regulatory
scheme in several ways pertinent to this analysis. See 85 Fed. Reg. 43304-1 (Jul. 16, 2020). For
example, 40 C.F.R. § 1506.3 specifically addresses situations in which an agency may adopt
analytical documents from other federal agencies. Prior to the 2020 Amendments, when the
FWS was making its decision, subsection (a) of that regulation read:
(a) An agency may adopt a Federal draft or final environmental
impact statement or portion thereof provided that the statement or
portion thereof meets the standards for an adequate statement
under these regulations.
The 2020 amendments broadened the subsection to clarify that agencies could adopt EAs as well
as EISs from other agencies:
(a) An agency may adopt a Federal draft or final environmental
impact statement, environmental assessment, or portion thereof,
or categorical exclusion determination provided that the
statement, assessment, portion thereof, or determination meets
the standards for an adequate statement, assessment, or
determination under the regulations . . . . (Emphasis added).
Likewise, in the pre-2020 version of the regulations, subsection (b) addressed the adoption of
another agency’s EIS:
(b) If the actions covered by the original environmental impact
statement and the proposed action are substantially the same, the
agency adopting another agency's statement is not required to
recirculate it except as a final statement. Otherwise the adopting
agency shall treat the statement as a draft and recirculate it
In 2020, subsection (b) remained largely the same as it related to EISs, but a new subsection (c)
was added to address adoption of another agency’s EA:
(c) If the actions covered by the original environmental assessment
and the proposed action are substantially the same, the adopting
agency may adopt the environmental assessment in its finding of
no significant impact and provide notice consistent with § 1501.6
of this chapter.
9

FWS argues that because it was adopting the APHIS EA, not an EIS, the pre-2020
version of 40 C.F.R. § 1506.3, which required adopting agencies to “recirculate” the
environmental document in certain circumstances, did not apply.6 Instead, FWS argues that (pre2020), no specific regulatory provisions address the adoption of another agency’s EA. In the
absence of a regulatory provision, the FWS contends that it was required only to comply with the
CEQ that “merely encourages agencies to put in place a mechanism for adopting environmental
assessments prepared by other agencies”. In such context, the FWS abided by the Department of
the Interior’s own internal guidance for approving such adoptions.
The Court rejects FWS’ arguments for several reasons. First, although APA cases focus
on the decision-making process at a fixed point in the past, courts have recognized that they
“[are] not limited to determining whether an agency’s action was ‘reasonable’ in light of the law
as it existed at the time of its decision; instead, the APA requires a court to determine whether a
decision is ‘in accordance with law’ as it exists at the time of review.” New York v. U.S. Dept. of
Health and Human Servs., 414 F.Supp.3d 475, 535 (S.D.N.Y. 2019), quoting Georgetown Univ.
Hosp. v. Bowen, 698 F.Supp. 290, 297 (D.D.C. 1987). By that standard, the Court assesses
FWS’ decision based on the regulations as they currently exist. Those regulations

6

FWS’ argument appears to implicitly concede that its decision to fund the research
projects under the Wildlife Act is not “substantially the same” as the decision by APHIS to
continue statewide predator damage management activities. If FWS believed the actions were
substantially similar, it could concede the point that an EA and EIS are functionally similar and
rely on the fact that the regulation allows it to issue the EA/EIS as a “final document” in such
circumstances. Regardless, for the reasons discussed below, the Court finds that the two
agencies’ actions are not similar in any event.
10

unambiguously allowed FWS to adopt the APHIS EA as a final decision of FWS only if the
agency actions at issue were “substantially the same.” As discussed below, they were not.
Second, even if the Court were to apply the pre-2020 version of the regulations, the Court
agrees with the Plaintiffs that the old version of 40 C.F.R. § 1506.3(a) and (b)’s references to
adoption of an “environmental impact statement” are elastic enough to address the circumstances
under which an EA could be adopted as well. 7 See Anacostia Watershed Soc. v. Babbitt, 871
F.Supp. 475, 485 (D.D.C. 1994) (“Section 1506.3 of the NEPA regulations specifically addresses
the circumstances in which one agency may adopt an environmental impact statement issued by
another agency. The provision also has been interpreted to allow an agency to adopt an
environmental assessment that another federal agency has prepared, so long as the agency
adopting the assessment reviews it and accepts responsibility for its scope and content”), citing
North Carolina v. FAA, 957 F.2d 1125, 1130 (4th Cir. 1992). Although FWS is correct in noting
that EAs and EISs are distinct types of documents, they both serve the same basic purpose,
differing largely in their comprehensiveness. If the regulations contemplated a situation in which
one agency could conclusively adopt the other’s comprehensive EIS based simply on findings
that it is “adequate” and that the actions at issue are “substantially the same,” there is no apparent
reason why an agency should not be able to adopt an EA based on the same findings.8 In that

7

As noted above, an APHIS employee consulted with that agency’s national NEPA
coordinator and received the same advice: that an agency “adopting” an EA would be required to
re-issue the document for additional notice and comment before making that adoption final. AR
479.
8

FWS argues that, in the absence of pre-2020 regulatory guidance governing the adoption
of other agencies’ EAs, that practice is governed by internal Department of the Interior
regulations. FWS argues that those internal regulations allow adoption if the adopting agency
independently reviews the assessment and finds that it “complies with . . . relevant provisions of
the CEQ regulations and with other program requirements.” Citing 43 C.F.R. § 46.320(a).
Assuming that this standard is the equivalent of 40 C.F.R. § 1506.3(a)’s requirement that an
11

sense, the 2020 amendments to the regulation merely confirm what is a common-sense reading
of the pre-2020 version of the regulations.
Third, as discussed below, even if FWS is correct and it was permissible for it to finally
adopt the APHIS EA based solely on a finding that it otherwise complied with NEPA, the Court
finds that conclusion to be erroneous, thus warranting reversal and remand of the decision.
Under either the 2020 or pre-2020 versions of 40 C.F.R. § 1506.3, adoption of another
agency’s EA turns, in part, on whether the agencies’ proposed actions are “substantially the
same.” There can be little argument that the action analyzed in the APHIS EA is far broader than
the research projects proposed by CPW.
As framed by APHIS, the query being investigated in its EA is “should [predator damage
management], as currently implemented, be continued in Colorado?” AR 1783. The predator
damage management program under consideration is primarily focused on the protection of
livestock and agricultural resources against predation: APHIS reports that “an annual average of
4,930 incidents of damage caused by mammalian predators” had been reported over the last 5
years, and that 76% of those incidents concerned the need to protect agricultural resources and an
additional 18% involved requests to protect human health and safety. AR 1750-51. Thus, 94%
of APHIS’ activities are unrelated to the type of wildlife predation addressed by CPW’s research.
APHIS does occasionally respond to requests to address predator damage to “natural resources,
including [threatened & endangered], sensitive, and game species,” such as mule deer, with an
annual average of 167 incidents falling into this category (about 3.3% of its nearly 5,000 annual

adopted EA/EIS be “adequate,” the only difference between pre-2020 adoption requirements and
the current requirements is that the actions be “substantially the same.” The Court does not
understand FWS to argue that internal Department of the Interior regulations would allow it to
adopt another agency’s EA/EIS that analyzed a substantially different proposed action.
12

incidents). However, 93% of those incidents “were to protect Gunnison sage-grouse from
coyotes and other predators,” leaving perhaps a dozen instances a year involving other species.
AR 1759. The EA notes that APHIS has also “responded to requests to protect piping plovers
from predation by coyotes, mule deer from predation by coyotes and mountain lions, and bighorn
sheep from predation by mountain lions,” but does not enumerate or otherwise describe the
frequency of these types of activities.9 Id. A fair interpretation of the APHIS EA is that APHIS’
predator damage management activities rarely involve addressing issues relating to predation of
mule deer by cougars and bears.
The parties have not briefed the standards that govern a determination of whether a
contemplated project is “substantially similar” to another one for purposes of 40 C.F.R. §
1506.3(c).10 But under the circumstances present here, nuanced examination of the contours of
that standard seems unnecessary. There can be little argument that the project examined by the
APHIS EA is far broader than, and only tangentially related to, the research projects proposed by
CPW. Both projects involve mammalian predation, but the similarities largely end there.
APHIS’s analysis was focused on the continuation of a longstanding statewide predator
management program that was primarily reactive to reports of damage to agricultural resources
and human health, only sporadically involved in predation of wildlife resources, and rarely called

9

Table 2 in the EA lists one reported instance of predation of mule deer, and in that case,
the predator in question was a coyote, not a cougar or bear. AR 1752.

10

See 85 Fed.Reg. at 43336 (Jul. 16, 2020) (discussing amendments to the regulations
giving examples of “substantially similar” actions as “when two agencies are engaging in similar
activities in similar areas like small-scale prescribed burns, ecological restoration, and smallscale land management practices. Another example is when one agency's action may be a
funding decision for a proposed project, and another agency's action is to consider a permit for
the same project”).
13

upon to address predation of mule deer.11 By contrast, the CPW research project that FWS was
considering was proactive, temporary, and focused on specific predators (apparently ignoring the
predator identified in the one mule deer incident reported to APHIS) in small, specific locations
in the state. APHIS was not being called upon to manage or consult with CPW on the design or
implementation of the research projects as a whole. See e.g. AR 2592 (“[APHIS] mostly
responds to requests concerning agricultural related damage for [cougar and bear] and some
human health and safety threats. [APHIS] relies on CPW to determine what the management
objectives are in each [data analysis unit] and ensure that management objectives are met.”).
Rather, by all appearances, APHIS’ involvement with the research projects would be limited to
contracting with CPW to provide resources to locate and kill the number and kind of predators
specified by CPW. See e.g. AR 2801 (regarding the Piceance Basin project, “[b]ecause this area
consists primarily of private lands limiting hunter access and spring hunting seasons are
currently unavailable, [APHIS] will be contracted to address spring predator reduction efforts”).
Under these circumstances, the Court finds that the Plaintiffs have shown that the one-off
research projects contemplated by CPW were not “substantially the same” as the continuation of
APHIS’ broad predator damage management activities as analyzed in the APHIS EA. Thus, the
Court agrees with the Plaintiffs that under 40 C.F.R. § 1506.3(c), FWS was not permitted to
simply adopt the APHIS EA and issue its own FONSI. Rather, consistent with 40 C.F.R. §

11

Many of APHIS’ predator management activities are entirely non-lethal, involving
consulting with farmers and ranchers on issues of animal husbandry and guard animals, assisting
in the planning and construction of fencing and netting, and engaging in non-lethal predator
management activities such as frightening devices, chemical repellents, capture and relocation,
among others. AR 1836-37. These activities have no connection whatsoever to the activities
contemplated by the CPW research projects, which call only for lethal removal of the selected
predators.
14

1506.3(b) (pre-2020) or (c) (post-2020), the Court finds that FWS was required to promulgate
the APHIS EA as the FWS’ own draft EA and solicit additional public comment on the proposal
to fund the research projects. FWS’ failure to do was not in compliance with law, requiring that
the FONSI and approval of the funding under the Wildlife Act be vacated and remanded for
further consideration.12
B. Adequacy of the APHIS EA
The Plaintiffs argue that, even if properly adopted by FWS, the APHIS EA was
inadequate to discharge FWS’ duties under NEPA. They argue that the APHIS EA contains the
following defects: (i) the EA does not provide a population estimate for cougars or black bears in
the Piceance Basin area, making it impossible to assess the environmental effects of killing a
predetermined number of those predators; (ii) the EA anticipates that the predator killing under
the research projects would be at “similar levels” to hunting take, such that “the potential effects
on biodiversity would be low,” when, in fact, the projects at issue anticipate significantly higher
levels of take than historic hunting levels; (iii) the EA approximates cougar populations in the

12

FWS argues that, even if it erred in issuing the EA and FONSI without soliciting further
public comment, the error was harmless because APHIS had already discussed the parameters of
the research projects in its own EA and solicited and received public comment on that subject.
APA violations are subject to “harmless error” analysis. 5 U.S.C. § 706; Shinseki v. Sanders,
556 U.S. 396, 406 (2009). For many of the same reasons discussed below with regard to defects
in the APHIS EA, the Court agrees with the Plaintiffs that a lack of opportunity to address the
merits of the CPW research projects as a standalone decision, rather than a component of a much
broader and mostly-unrelated EA, substantially affected the Plaintiffs’ rights to comment upon
the decision by FWS to approve Wildlife Act funding.
The parties have not supplemented their briefing to address, and thus, the Court makes no
findings as to, whether the age of this case makes a remand for further consideration meaningful
at this point. It is not clear from the record whether CPW commenced the research projects
notwithstanding this litigation and, if they did, whether the projects are proceeding apace. For at
least some portion of those projects, notably the Arkansas River project in unit D-16, the
majority of the cougar-killing, scheduled for the first three years of the project, would effectively
be complete if the projects commenced promptly upon the schedule set forth in the APHIS EA.
See e.g. AR 2813 (anticipating cougar suppression “[b]eginning in 2017”).
15

Arkansas River area based solely on land area approximations, rather than accounting for
population variations due to habitat, human activity, and prey availability; (iv) the EA fails to
adequately discuss the effects that will result from removing 50% (or more) of cougar
populations in the Arkansas River project’s study areas and erroneously states that cougar
populations would only be reduced by “up to 36% of the local population,” contrary to the study
proposal; (v) the EA fails to consider the cumulative effects of the project on cougar cubs
orphaned by the killing of their mother, and the potential effects of other forms of cougar
mortality that might increase during the projects, such as vehicle collisions or disease; and (vi)
the APHIS EA failed to consider scientific studies that determined that lethal predator control
may not reduce predation and failed to adequately respond to public comments raising this issue.
The APHIS EA’s discussion of the CPW research projects is mostly found in the
“Chapter 1 – Purpose and Need for Action” section. AR 2574 -2580 discuss mule deer
populations generally and research on the effect of predation on those populations. The CPW
research projects are introduced beginning at AR 2580, with the statement “[APHIS] would work
with CPW, [ ] FWS, and other agencies when requested to participate in monitoring and research
actions to determine appropriate management actions to meet population objectives. Some
potential research projects summarized below are to evaluate management prescriptions to
increase mule deer populations in central and western Colorado,” citing to Appendices A and B,
the CPW researchers’ proposals for the projects. The Piceance Basin study is recited at AR
2580-82, and the Arkansas River project is discussed at AR 2582-2585.13 As best the Court can
determine, the EA does not directly or specifically discuss the environmental consequences of

13

These discussions are essentially verbatim quotes from the introductory sections of the
study documents themselves in the Appendices and contribute no additional information or data.
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the proposed research projects thereafter. Rather, the impact of the research project on, say,
cougar populations is discussed generally, assessing the statewide impact of APHIS’ overall
activities; impacts from the research projects themselves are often addressed as vague asides to
the effect that “some additional impacts may occur.” See AR 2676 (“[APHIS] took an average
of 12 mountain lions per year . . . Under [the Proposed Alternative – continued predator
management activities], mountain lion take by [APHIS] may increase over the FY 10-14 levels
due to additional resources and projects to protect mule deer from mountain lion predation. We
anticipate that [APHIS] would take no more than 40 mountain lions in any year, which is 0.8 of
the statewide population. This level of take is expected to result in a low impact on mountain
lions locally, and no impact on the statewide mountain lion population”) (emphasis added). For
example, at AR 2683, the EA offers a “Summary of Direct, Indirect, and Cumulative Impacts to
targe wildlife populations under Alternative 1,” the proposed continuation of APHIS’ activities.
That section explains that [APHIS’] take is less than 0.3% of the estimated statewide population
of mountain lions . . . We anticipate similar levels of take under [the continued action
alternative]. Therefore, impacts to these predatory mammal populations from [APHIS activities]
is negligible at the statewide and regional levels. However, there may be short-term impacts to
localized coyote, black bear, and mountain lion populations.” (Emphasis added.) One would
expect a detailed examination of those “short-term impacts” resulting from the removal of up to
50% of cougar populations in the Arkansas River project area. But the APHIS EA goes on to
recite only that “Indirect impacts may include increased localized immigration and fecundity for
. . . black bear and mountain lions where [APHIS] may substantially decrease local populations.”
Id. A range of potential environmental effects resulting from cougar suppression is easily
conceivable, ranging from the expected results of the study – increased mule deer populations in

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the study area and the immigration of new cougars into the study area, and the attendant
environmental effects resulting therefrom – to effects on other populations subject to or
depending upon cougar predation (such as increased opportunities for other predator species like
coyotes to flourish), to potential increased vulnerability of the remaining cougar populations to
unpredictable events like disease or wildfire.
It appears to the Court that the skeletal discussion of effects resulting from the proposed
CPW research projects in the APHIS EA is the result of an attempt to shoehorn the CPW
projects into an EA process that was only fleetingly related to the study objectives. It is clear
from the record that CPW and FWS wished to expedite the application for Wildlife Act funding
and instead of embarking upon an EA process devoted to specifically examining those projects,
the agencies instead decided to hitch a ride on the APHIS EA that was already in progress, even
though that APHIS project(s) being analyzed had only tenuous links to the CPW studies. As a
result, the APHIS EA extensively analyzes APHIS’ own activities statewide, but often gives
cursory consideration to the effects of the CPW studies, indicative of APHIS’ role as a peripheral
player in those studies.
Turning to the particular issues raised by the Plaintiffs, the Court agrees that the APHIS
EA provides no discussion of the baseline estimates of cougar populations in the Piceance Basin
study area. The discussion of that aspect of the research project at AR 2580-82 is highly
generalized, reciting neither estimates of cougar populations in that area nor the study parameters
identifying how those populations are to be reduced. The Piceance Basin study is not referred to
again in the body of the EA, leaving only Appendix A, CPW’s study proposal, to address those
issues. The predator control portion of that appendix is found at AR 2800-01, proposing that
removal of “5-10 cougars and 10-20 black bears annually will provide the desired predation rate

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reduction of ≥ 20%,” but it is unclear what portion of cougar and bear populations in the study
area that those numbers represent. FWS argues that cougar and bear populations are set forth in
the EA, at AR 2612 and 2610 respectively. But those passages refer only to general statewide
averages, not population estimates for the Piceance Basin study area. For example, AR 2612
explains that “Published mountain lion densities, based on a variety of population estimating
techniques, range from a low of about 1/100 mi2 to a high of 24/100 mi2. . . In Colorado,
mountain lions were estimated to have a density of 4-10/100 mi2. . . .” It may be that cougar
populations in the Piceance Basin are consistent with statewide averages or it may be that, for
various reasons, they might be higher or lower than the averages. But the EA makes no findings
on that point.14 Without any stated baseline estimate of cougar and bear populations in the study

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FWS argues that one sentence in the proposal for the Piceance Basin project provides
estimates for bear and cougar baseline populations: “While the objective is to reduce cougar and
black bear densities in this focal area, overall densities at the much larger Data Analysis Unit
(DAU) scale (representing population level biological units) should be minimally influenced; the
predator treatment summer range area represents 6% mountain lion DAU L-7 and 16% of black
bear DAU B-1.” AR 2801. It is entirely unclear to the Court – and thus, the public – what the
reference to “6% mountain lion DAU L-7 and 16% of black bear DAU B-1” is describing.
Presumably, a DAU is a geographic unit of area, and DAU L-7 and DAU B-1 are referring to
specific geographic areas. (i.e. units L[ion]-7 and B[ear]-1). Thus, the percentages would
appear to be the percentage area of those units that are contained within study area where the
Piceance Basin project will take place. As units of area, these percentage figures give no insight
as to baseline population data. To the extent that a DAU is something else – a specified
population size of a pack of animals, say – the record still fails to provide the necessary data to
convert the listed percentages to an understanding of baseline populations.
FWS also argues that CPW provided population baseline data to the Plaintiffs in
December 2016, in response to public comments by the Plaintiffs, by posting certain information
on CPW’s website. FWS provides a link to that response and suggests that the Court take
judicial notice of the response and its contents. The Court declines to do so for several reasons.
First, and perhaps most simply, the link provided in FWS’ brief is no longer accessible, making
it impossible for the Court – much less the public – to now confirm what information was
presented at the time. Second, relatedly, that information lives outside the administrative record
in this case, making it particularly unsuitable to demonstrate that FWS adequately discharged its
obligations under NEPA. Third, the fact that certain information critical to the NEPA analysis
was published outside the EA defeats the purpose of the EA as a comprehensive public
document explaining the reasons behind an agency’s actions. Persons who wish to review the
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area, it is impossible for FWS to assess the degree to which the proposed study seeks to reduce
those populations, and thus, it is impossible to ascertain how such a reduction would result in
environmental effects.
The Court also agrees with the Plaintiffs that the EA inaccurately recites the study
parameters it proposes to assess. It is clear that the Arkansas River project contemplates a
“harvest rate of approximately 50% of the potential population” in each of the two study areas
during the height of the study period. AR 2583. Yet in discussing the cumulative impact of the
proposed alternative, APHIS’ EA anticipates “localized take up to 36% of the local [cougar]
population,” apparently referring to the CPW research projects. AR 2676 (emphasis added).
FWS’ response seems to concede that the reference to a 36% cougar population take is error, but
suggests it is no more than a typographical one: “in one place in the EA, [APHIS] referred to
local mountain lion harvest of 36% while the CPW Arkansas River plan referred to a harvest up
to 50%. But as discussion of these other recovery studies in the EA shows, FWS . . . considered
mountain lion population recovery after harvest rates of 50%.” But the reference appears to be
more than just a typographical error: on that same page, the APHIS EA twice relies on a 36%
figure as reflecting documented permissible thresholds for cougar population reductions. AR
2676 (“A localized population can recover to pre-harvest levels in 9 months when 36% of the
local population is harvested. . .”; “Increased localized mountain lion harvest may be conducted
to protect mule deer in Colorado at rates of up to 30% of the local mountain lion population.”)
FWS is correct that, at other points in the EA, APHIS cites research suggesting that cougar
populations can recover from reductions of at or near 50%. AR 2675 (citing studies finding

historical basis for the FWS’ decision by turning to the EA will find only part of that rationale
disclosed therein. As such, the Court declines FWS’ invitation to take judicial notice of the
extra-record evidence.
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populations “rapidly replace annual losses” under “30%-50% removal”); 2676 (recovery to preharvest levels in 31 months where 47% of the population is removed). Thus, it is not necessarily
clear to the Court that the EA’s reference to analyzing cougar reductions of up to 36%, not 50%,
is necessarily a mere typographical error and not a defect in the analysis. And even if it is, that
error merely highlights the problem with FWS’ hasty adoption of APHIS’ EA. Had FWS
circulated the EA for further public comment, it is possible that a commentor would have drawn
FWS’ attention to the alleged typographical error, allowing FWS to correct it and ensure that a
correct analysis was performed.
Finally, the Court agrees with the Plaintiffs that the APHIS EA, adopted by FWS, failed
to adequately consider certain items of predator management research in the context of the CPW
studies. For example, during the comment period, a commentor asked APHIS to consider
research by Bradley Bergstrom, standing for the general proposition that “Lethal predator control
is not effective at reducing depredation in the long term.” “License to Kill: Reforming Federal
Wildlife Control to Restore Biodiversity and Ecosystem Function,” Conservation Letters, Vol. 7,
Issue 2 (2013), https://conbio.onlinelibrary.wiley.com/doi/abs/10.1111/conl.12045, cited at AR
2772. In the EA, APHIS rejects the applicability of the Bergstrom findings to the proposed
action, explaining that “the goal of [APHIS’] actions is to reduce damage, not to cause long-term
reductions in native predator populations. . . Because Bergstrom addresses the long-term
reductions in predator populations, while the purpose and need of this EA and the proposed
alternatives specifically contemplate short term reductions with impacts lasting less than one
year, the Bergstrom article is inapposite.” AR 2755-56. This conclusion might be accurate for
the types of predator control activities APHIS generally engages in – isolated and reactive
responses to particular predator incidents. But that response fundamentally misconstrues the

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operation of the CPW studies, both of which hardly called for “short term reductions” of predator
populations “with impacts lasting less than one year.” The Arkansas River study, for example,
contemplated maintaining suppression of cougar populations in each study area for a period of
six years. This is indicative of the APHIS EA’s focus on APHIS’ normal activities and its
unsuitability as a vehicle for analyzing the peculiar characteristics of the proposed CPW studies.
An EA that sought to address the soundness of CPW’s request to conduct long-term predator
reduction studies is one that would give greater consideration to the Bergstrom research.
Accordingly, the Court finds that the APHIS EA, which FWS adopted without
modification, failed to adequately analyze the effects of the proposed CPW studies. As such,
FWS’ FONSI and decision to approve Wildlife Act funding for the CPW studies was arbitrary
and capricious, warranting reversal and remand.
C. Remaining issues
The Plaintiffs offer two further arguments: that FWS should have considered a range of
alternatives, such as funding the CPW studies at less than the 75% rate that was requested, and
that FWS should have prepared an EIS instead of an EA because the proposed studies were
controversial and involved highly uncertain environmental risks. Because the Court remands the
action to FWS to conduct a more complete and focused EA addressing the proposed CPW
studies, any ruling on these issues would be simply advisory.
CONCLUSION
For the foregoing reasons, having considered the Administrative Record (# 19, 23) and
the parties’ briefing, the Court finds that FWS’ FONSI and decision dated February 27, 2017
was arbitrary and capricious under the APA. The Court VACATES that FONSI and decision
and REMANDS the matter to the FWS for further consideration consistent with the findings in

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this Opinion. The Clerk of the Court shall enter judgment in favor of the Plaintiffs and close this
case.
Dated this 30th day of March, 2021.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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