Western Watersheds Project et al v. USDA APHIS Wildlife Services

Filing 51

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that the motion for remedies (docket no. 39 ) is GRANTED IN PART AND DENIED IN PART. Any challenge filed by WWP to the 1996 and 2002 EAs will be made in a new case filing rather than an amendment to this action, and the Clerk is directed to assign this Court to any such new action due to the Court's familiarity with the issue. Signed by Judge B. Lynn Winmill. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT,
WILDEARTH GUARDIANS, CENTER FOR
BIOLOGICAL DIVERSITY, and PREDATOR
DEFENSE
Plaintiffs,

Case No. 1:17-CV-206-BLW
MEMORANDUM DECISION AND
ORDER

v.
USDA APHIS WILDLIFE SERVICES
Defendant.

INTRODUCTION
The Court has before it plaintiffs’ motion for remedies. The Court heard oral
argument on November 28, 2018, and took the motion under advisement. For the reasons
explained below, the Court will grant the motion in part and deny it in part. The Court
will vacate the 2016 EA and Finding of No Significant Impact (FONSI) and remand the
action to Wildlife Services for further review. If on remand Wildlife Services decides to
continue pursuing the Preferred Alternative set forth in the 2016 EA and FONSI, Wildlife
Services must prepare an EIS and ROD prior to any implementation. The Court will
deny WWP’s motion to the extent it seeks interim conditions or deadlines for action
during the remand.
LITIGATION BACKGROUND
For years, Wildlife Services has responded to requests from Idaho livestock
producers to kill or remove predators like coyotes that threaten their herds. When the
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agency decided to expand its operations to kill or remove predators to game animals and
protected species, it prepared a draft Environmental Assessment (EA) and circulated it to
various agencies and the public. That draft prompted numerous critical comments,
especially from other agencies with long experience and expertise in managing game
animals and protected species: The Bureau of Land Management, Forest Service, and the
Idaho Department of Fish and Game, among others.
Instead of studying these concerns in greater depth in an Environmental Impact
Statement (EIS), Wildlife Services largely rejected these criticisms, finding that they
were invalid for various reasons. Based on that analysis, Wildlife Services issued a
Finding of No Significant Impact (FONSI) and decided to implement the Preferred
Alternative contained in the EA. The Preferred Alternative would have authorized
Wildlife Services to
provide additional assistance in efforts to reduce predation on wildlife
species identified as needing protection by the IDFG, USFWS and other
natural resource management agencies. Wildlife species which could
potentially be protected under this alternative if a need is identified by the
applicable regulatory agency include the greater sage-grouse (
Centrocercus urophasianus) (hereafter referred to as sage-grouse), mule
deer and white-tailed deer (Odocoileus hemionus and 0. virginianus,
respectively), bighorn sheep (Ovis canadensis), pronghorn antelope
(Antilocapra americana), northern and southern Idaho ground squirrels
(Spermophilus brunneus burnneus, and S. b. endemicus, respectively) and
waterfowl (various species).
AR-37624. To block implementation of the Preferred Alternative, plaintiffs – referred to
collectively as WWP in this decision – filed this lawsuit, asking the Court to find, among
other things, that Wildlife Services violated NEPA by failing to prepare an EIS. The
parties filed cross-motions for summary judgment, and in a decision issued June 23,
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2018, the Court granted WWP’s motion and denied the motion filed by the Wildlife
Service. See Memorandum Decision (Dkt. No. 33).
In that decision, the Court explained that under NEPA, an agency may use a
convincing and objective analysis to reject criticisms and refuse to prepare a full EIS.
But that was not done here. While Wildlife Services responded in detail to the criticisms,
their reasons for rejecting them were not convincing and objective; the agency failed to
take the required “hard look” at the concerns raised by the other agencies. Moreover, the
agency predicted that they would be expanding operations into wilderness areas, another
factor that persuaded the Court to require an EIS. Consequently, the Court held that
Wildlife Services acted in an arbitrary and capricious manner in deciding not to prepare
an EIS.
The parties asked the Court for some time to negotiate an agreement on the
specific remedies to be imposed. When those negotiations failed, WWP filed the motion
for remedies now before the Court.
ANALYSIS
WWP asks the Court to (1) vacate and remand the 2016 EA and Decision/FONSI;
(2) require Wildlife Services to issue a draft Environmental Impact Statement (EIS) for
public comment within 18 months, and prepare a final EIS and Record of Decision
(ROD) within 3 years; and (3) impose interim injunctive relief while Wildlife Services is
preparing its EIS. The parties all agree that the Court should vacate and remand the 2016
EA and FONSI, and the Court will so order.

Memorandum Decision & Order – page 3

The effect of vacating the 2016 EIS and FONSI is that the Preferred Alternative
cannot be pursued by Wildlife Services. Left in place are two earlier EAs, one completed
in 1996 for the northern and central regions of Idaho, and the other completed in 2002 for
the southern region. WWP did not ask the Court to review those two EAs in this lawsuit.
Upon remand, Wildlife Services is free to pursue courses of action other than the
Preferred Alternative – the agency has stated in its briefing that it may pare down its
activities or choose a different geographical scope. See Brief (Dkt. No. 44) at p. 5. The
Court has no authority to compel the agency to pursue the Preferred Alternative (and
prepare the EIS and ROD that must accompany such a course of action). But if the
agency does decide on remand to pursue the Preferred Alternative, it must prepare an EIS
and ROD.
WWP asks the Court to prohibit certain actions by Wildlife Services during the
interim while the agency is considering how to proceed on remand. Specifically, WWP
seeks to enjoin the agency from: (1) lethal preventive (proactive) coyote control in
Idaho; (2) lethal corrective control of an individual predator beyond two miles of a
confirmed predation; (3) using M-44 capsules, neck snares, and body-gripping traps; (4)
killing predators in unique geographic areas; and (5) killing predators to protect specified
non-domesticated prey. But the Court’s decision in this case focused narrowly on the
issue whether the decision to implement the Preferred Alternative as examined in the
2016 EA and the FONSI violated NEPA. Now that the 2016 EA and FONSI are vacated,
the governing NEPA documents are the two old EAs. While obviously outdated, WWP
did not ask the Court in this lawsuit to review either of those EAs. WWP did directly
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challenge both EAs in a separate case: WWP et al. v. Grimm et al., No. 1:15-cv-40-EJL.
But WWP dismissed that case when Wildlife Services promised to conduct a new
statewide NEPA analysis, which culminated in the 2016 EA. Thus, the two older EAs
have never been evaluated by the Court. Moreover, the specifics of WWP’s proposed
interim conditions have never been fully reviewed and litigated.
For these reasons, and given the limited nature of the Court’s decision focusing on
the NEPA violations of the 2016 EA, the Court will decline to issue interim conditions
and deadlines for actions on remand. Even so, the agency must recognize that the age of
these two EAs makes them weak support for any action. Apparently, the agency agrees
because it settled Grimm by promising to update those EAs. Moreover, in this case, the
agency’s attorney represented at oral argument that “Wildlife Services is absolutely going
to start a new NEPA document immediately upon the completion of this case.” WWP
will, in all likelihood, hold the agency accountable by refiling a challenge to directly
challenge the two EAs. See Reply Brief (Dkt. No. 49) at p. 3, n. 1 (stating that “[i]f the
Court were to deny interim relief and Wildlife Services proceeds to re-institute the 1996
and 2002 EAs for future Idaho predator control actions, Plaintiffs reserve the right to
amend their Complaint in this case and challenge the validity of those EAs under NEPA,
the APA, and/or the Endangered Species Act”). The Court will require WWP to file a
new action, rather than amend this complaint, and will further require that the new action
be assigned to this Court given its familiarity with the issues.
Finally, the Court will clarify an apparent misunderstanding by Wildlife Services
concerning the scope of the Court’s decision. Jason Suckow, the Western Regional
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Director for Wildlife Services, filed his Declaration appearing to state his opinion that the
Court held only that Wildlife Services cannot engage in predator management activities
for the benefit of sage grouse. See Declaration (Dkt. No. 44-1) at ¶ 24. If that is an
accurate interpretation of Suckow’s statement, his opinion is incorrect because it unduly
limits the extent of the Court’s holding. It is the entirety of the Preferred Alternative that
is blocked pending completion of an EIS and ROD; the decision is not just limited to sage
grouse protection.
Conclusion
In conclusion, the Court will grant in part and deny in part WWP’s motion for
remedies. The Court will vacate the 2016 EA and associated Decision/FONSI and
remand the action to Wildlife Services for further review. If on remand Wildlife Services
decides to continue pursuing the Preferred Alternative set forth in the 2016 EA and
FONSI, Wildlife Services must prepare an EIS and ROD prior to any implementation.
The Court will deny WWP’s motion to the extent it seeks interim conditions or deadlines
for action during the remand. To the extent that WWP has indicated it intends to
challenge the 1996 and 2002 EAs, the Court will require that the challenge be made in a
new case filing rather than an amendment to this action, and this Court shall be assigned
the new case due to its familiarity with the issues.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for remedies
(docket no. 39) is GRANTED IN PART AND DENIED IN PART. The motion is
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granted to the extent it seeks to vacate the 2016 EA and Decision/FONSI and remand the
matter to Wildlife Services. If on remand Wildlife Services decides to continue pursuing
the Preferred Alternative set forth in the 2016 EA and FONSI, Wildlife Services must
prepare an EIS and ROD prior to any implementation. WWP’s motion is denied to the
extent it seeks interim conditions or deadlines for action during the remand.
IT IS FURTHER ORDERED, that any challenge filed by WWP to the 1996 and
2002 EAs be made in a new case filing rather than an amendment to this action, and that
the Clerk is directed to assign this Court to any such new action due to the Court’s
familiarity with the issues.

DATED: November 29, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Memorandum Decision & Order – page 7