Western Watersheds Project v. U.S. Fish and Wildlife Service et al

Filing 128

MEMORANDUM DECISION the Court will grant the motions for summary judgment filed by the defendants and intervenors, and the Court will deny the motion filed by WWP. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
Plaintiff,

Case No. 4:13-CV-176-BLW

v.

MEMORANDUM DECISION

U.S. FISH AND WILDLIFE SERVICE and
U.S. FOREST SERVICE,
Defendants.
ROCKY & CAROL ROSS, DONALD &
BILLIE PHILLIPS,
Defendant-Intervenors.

INTRODUCTION
The Court has before it cross motions for summary judgment filed by all parties
and the intervenors. The Court heard oral argument and took the motions under
advisement. For the reasons set forth below, the Court will grant the motions filed by
defendants and intervenors, and deny the motion filed by plaintiff WWP.
LITIGATION BACKGROUND
The Forest Service manages grazing on the Mill Creek and Pass Creek allotments
while the BLM manages grazing on the Hawley Mountain allotment. All three
allotments contain bull trout, a threatened species under the Endangered Species Act
(ESA). The bull trout that exists in this region – the Little Lost River watershed – is a
genetically unique species.
Memorandum Decision – page 1

In drafting grazing plans, the agencies examined the impact of the proposed
grazing on bull trout. The Forest Service concluded that on the Mill Creek allotment and
the Pass Creek allotment, the grazing plans may affect the bull trout, and so the agency
prepared a Biological Assessment (BA) and consulted with the Fish and Wildlife Service
concerning those impacts. The BLM concluded that its grazing plan was not likely to
adversely affect bull trout. It prepared a BA for the FWS’s review supporting that
conclusion.
The FWS reviewed the BAs, and prepared Biological Opinions (BOs) for the Mill
Creek and Pass Creek allotments, and a Letter of Concurrence (LOC) for the Hawley
Mountain allotment. In the BOs, the FWS approved the grazing plans and found that
they would not jeopardize the bull trout or adversely affect its habitat. In the LOC, the
FWS concurred in the BLM’s conclusion that the grazing plan would not adversely affect
the bull trout or its habitat.
In this lawsuit, WWP challenges the approvals by the FWS, and the grazing
management of the Forest Service; WWP has not sued the BLM. WWP argues that the
FWS’s approval of the grazing plans violates the ESA, that the Forest Service failed to
develop grazing plans that avoid jeopardizing the bull trout, and that the Forest Service’s
grazing management results in the “take” or death of bull trout.
More specifically, WWP challenges three approvals: (1) FWS’s 2010 Biological
Opinion approving proposed grazing on the Forest Service’s Pass Creek allotment; (2)
FWS’s 2013 Biological Opinion approving proposed grazing on the Forest Service’s Mill
Creek allotment; and (3) FWS’s 2013 Letter of Concurrence (LOC) approving proposed
Memorandum Decision – page 2

grazing on the Forest Service’s Hawley Mountain allotment. The permit holders on the
Mill Creek allotment – Rocky and Carol Ross and Donald and Billie Phillips – have
intervened in this case.
WWP also alleges that the Forest Service violated § 7 and § 9 of the Endangered
Species Act (ESA) by, respectively, (1) jeopardizing the existence of bull trout, and (2)
causing the take of bull trout by issuing permits for grazing on the allotments under its
stewardship.
WWP’s complaint contains five causes of action: (1) The FWS BO for the Mill
Creek allotment violates the ESA; (2) The Forest Service grazing decisions violated the
ESA on the Mill Creek allotment; (3) The FWS BO for the Pass Creek allotment violates
the ESA; (4) The Forest Service grazing decisions violated the ESA on the Pass Creek
allotment; and (5) The FWS LOC for the Hawley Mountain allotment violates the ESA.
The parties have filed cross motions for summary judgment on all these claims.
Before reviewing the facts concerning each of the three allotments challenged by
WWP, the Court finds first that the challenge to one of those allotments is moot. About a
year after this lawsuit was filed, the FWS issued a new BO for the Pass Creek allotment.
The current cross motions for summary judgment all address the 2010 FWS BO for the
Pass Creek allotment, but that document is completely superseded and replaced by the
2014 FWS BO. It is well-established that “the issuance of a superseding [Biological
Opinion] moots issues . . . relating to the preceding [Biological Opinion].” Grand
Canyon Trust v. U.S. FWS, 691 F.3d 1008, 1017 (9th Cir. 2012) (holding that challenges
under the ESA to the FWS’s 2009 Biological Opinion was mooted by the issuance of a
Memorandum Decision – page 3

2011 Biological Opinion). The Court will therefore dismiss the challenges to the 2010
Pass Creek BO, which will involve dismissing Counts Three and Four of the complaint.
The only two allotments at issue now are the Mill Creek allotment and the Hawley
Mountain allotment.
FACTS
Mill Creek Allotment
The Mill Creek allotment contains over 50,000 acres, located primarily in the
Sawmill Canyon watershed. The allotment contains more bull trout than any other area
in the Little Lost River Core Area. The Forest Service BA and the FWS BO note that
“bull trout are widely and relatively abundant across the allotment . . . .” See FWS BO at
28. They estimate that “95 percent of the bull trout in the Little Lost River basin occur in
this area. Id. Spawning occurs in 29.5 miles of streams, including Squaw Creek, Mill
Creek, Smithie Fork, and Timber Creek. Seven of the ten local populations within the
Little Lost River Core Area are found in this allotment. Id. at 29.
The largest threats to bull trout on this allotment are brook trout and grazing. Id.
at 35. Grazing is managed by the Forest Service, and it rotates cattle among six pastures.
Up to 554 cow/calf pairs are authorized to graze the allotment from July 1 to September
30. Movements of cattle from one pasture to another would be triggered by designated
indicators such as stubble height, stream bank alteration, browse use, etc.
Trends in bull trout abundance across the allotment are mixed. Id. at 29. In 2011
and 2012, bull trout densities increased at 5 sites, decreased at 2 sites and remained static
at one site. Id. Although the FWS found that the proposed grazing would not likely lead
Memorandum Decision – page 4

to any additional increases in water temperature, the agency found that “past livestock
grazing has likely increased stream temperatures on this allotment, contributing to the
ability of brook trout to out-compete bull trout.” Id. While brook trout are a serious
threat, the FWS found that the Forest Service is “working to contain the spread of brook
trout through barrier, physical removal, and “changes in livestock management leading to
improving stream conditions.” Id. at 30. In addition, the Forest Service is working with
Trout Unlimited to tag and monitor brook trout to evaluate the effectiveness of barriers.
Turning to grazing impacts, the FWS BO concludes that “recent livestock management
on the allotment has resulted in many bull trout habitat conditions trending upward or
meeting objectives.” Id.
The FWS BO labels the grazing levels on this allotment as “light to medium”
given the 4 to 6 inch stubble height requirement imposed by the Forest Service. This
level of grazing, the FWS concluded, should improve habitat by narrowing and
deepening streams, increase stream bank stability, and generate more vegetation growth
along the streams. Id. at 43. The BO concludes that the grazing level “is consistent with
maintaining habitat in a suitable condition to maintain stable fish numbers or to
potentially improve numbers in areas that have been negatively impacted by past heavy
grazing.” Id.
The BO reaches that conclusion based on its evaluation of various different
impacts caused by grazing. For example, after a detailed discussion of grazing’s impact
on spawning, the BO concludes that the grazing plan would not negatively affect
spawning behavior or population numbers. Id. at 48-50. The width-to-depth ratios of
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most streams – an important factor in ease of migration – currently “meet requirements
for the bull trout,” and the RHCA conditions are also at or near late seral condition, an
important factor in developing shade (to help lower water temperature) and increase
pools, undercut banks, and woody debris (to increase food sources and hiding places). Id.
at 59. At the same time, sediment levels and water temperatures in most streams “do not
fully meet the requirements for the bull trout.” Id.
Again – like the conditions in the Pass Creek allotment – the conditions here are a
mixed bag. The BO notes that past grazing impacts continue to damage habitat but that
conditions “are improving due to modification of grazing practices on the allotment.” Id.
at 62. The improvement will be slow, but will support “persistent bull trout populations
on the allotment, notwithstanding the significant threat caused by the presence of the
brook trout on streams on the allotment.” Id. at 64. To ensure the improvement of
habitat, the BO imposes additional conditions on the Forest Service requiring monitoring
of certain spawning sites, and continuation of efforts to remove brook trout, including an
annual requirement that the Forest Service report its efforts to the FWS.
Hawley Mountain Allotment
The Hawley Mountain allotment encompasses 58,490 acres, the vast majority of
which is managed by the BLM. The BLM has instituted a rotational grazing system
authorizing grazing for about 770 cattle and 10 horses on 18 pastures.
Bull trout occur in 6 streams. Portions of Sawmill Creek and Warm Creek are
deemed critical habitat for the bull trout. Sawmill Creek is important as bull trout

Memorandum Decision – page 6

feeding, migrating, and overwintering habitat. Warm Creek is important as bull trout
spawning habitat.
Habitat conditions in Sawmill Creek “have improved dramatically over the past 11
years, under the same grazing regime as proposed.” Id. at 4. Channel complexity, pool
development, bank stability and cover, and riparian zone development have all been
improving on Sawmill Creek. Id. at 11. The only criteria not functioning properly is
water temperature, id. at 8, but grazing is not the cause: “[C]urrent grazing practices on
the allotment do not appear to be adversely affecting water temperature in streams
occupied by bull trout in the action area.” Id. at 3. The region is simply hot, and water
temperature is being affected by natural conditions. Id.
The other critical habitat lies on Warm Creek. It “contains suitable habitat for bull
trout spawning.” Id. at 8. Dense vegetation along the stream bank limits livestock access
and minimizes sedimentation. Id. Less than 5% of Warm Creek is accessible by livestock
due to dense vegetation. Id. Moreover, the BLM’s grazing plan allows cattle to graze
areas near bull trout streams only in the spring, or in a few cases, the winter. Id. at 7.
The cooler temperatures during these seasons results in less use by cattle of the riparian
areas and minimizes sedimentation and bank trampling. Id.
The FWS concluded that with regard to the critical habitat on Sawmill Creek and
Warm Creek, the proposed BLM grazing plan would have only “insignificant or
discountable” effects on the habitat. Id. at 11.
The FWS also evaluated the other streams on the allotment. For example, the
FWS found that only 10% of Badger Creek was accessible to livestock due to dense
Memorandum Decision – page 7

vegetation along the stream banks. While the FWS does not believe spawning is taking
place on Badger Creek, its water temperature is suitable for spawning. Id. at 8. The
FWS concluded that adverse effects from livestock grazing are not likely to occur. Id.
That is the same result reached for all of the streams evaluated. Id. at 9-10.
Based on these evaluations, the FWS concurred with the BLM that the proposed
grazing was not likely to adversely affect bull trout or its designated critical habitat. Id.
at 12.
STANDARD OF REVIEW
WWP’s ESA Claims

The ESA does not supply a separate standard of review, so the Court reviews ESA
claims under the standards of the APA. San Luis & Delta-Mendota Water Authority v.
Jewell, 747 F.3d 581 (9th Cir. 2014). Section 706(2) of the APA provides that an agency
action must be upheld on review unless it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This Court must
“consider whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” San Luis, 747 F.3d at 601. Although
the Court’s inquiry must be thorough, the standard of review is highly deferential; the
agency’s decision is “entitled to a presumption of regularity,” and the Court may not
substitute its judgment for that of the agency. Id. Where the agency has relied on
“relevant evidence [such that] a reasonable mind might accept as adequate to support a
conclusion,” its decision is supported by “substantial evidence.” Id. Even “[i]f the

Memorandum Decision – page 8

evidence is susceptible of more than one rational interpretation, [the court] must uphold
[the agency’s] findings.” Id.
Under the ESA, the agency must base its actions on evidence supported by “the
best scientific and commercial data available.” 50 C.F.R. § 402.14(g)(8); 16 U.S.C. §
1536(a)(2). The determination of what constitutes the “best scientific data available”
belongs to the agency’s “special expertise . . . . When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing court must generally be
at its most deferential.” San Luis, 747 F.3d at 602. “Absent superior data[,] occasional
imperfections do not violate” the ESA best available standard. Id.
Section 7 of the ESA requires each federal agency to ensure that any action
authorized, funded, or carried out by that agency “is not likely to jeopardize the continued
existence of any endangered species ...” 16 U.S.C. § 1536(a)(2). In order to achieve this
objective, the agency proposing the action must formally consult with the FWS whenever
its action “may affect” a threatened or endangered species. 50 C.F.R. § 402.14(a).
Formal consultation is completed by the issuance of a BO by the consulting agency
assessing whether the proposed action is “likely to jeopardize the continued existence of
a listed species or result in the destruction or adverse modification of critical habitat.”
See 50 C.F.R. § 402.14(h)(3), ( l )(1). The BO must include “a summary of the
information on which the opinion is based” and “a detailed discussion of the effects of
the action on listed species or critical habitat.” See 50 C.F.R. § 402.14(h)(1), (2). Both
the action agency and the consulting agency must use the “best scientific and commercial

Memorandum Decision – page 9

data available” during the consultation process and in drafting the BO. See 16 U.S.C. §
1536(a)(2); 50 C.F.R. § 402.14(d), (g)(8).
ANALYSIS1
Scope of Agency Analysis
WWP argues that the FWS “considered baseline effects only on the allotments
themselves, or on very short lengths downstream, and that this improperly ignored the
context of the action.” See Reply Brief (Dkt. No. 107) at p. 5. WWP argues further that
the FWS failed to address “downstream effects.” Id. at p. 6. The Court disagrees for
each of the three FWS decisions at issue here.
In the Hawley Mountain LOC, the FWS considered whether grazing upstream in
the Mill Creek allotment was affecting riparian conditions downstream in the Hawley
Mountain allotment. See Hawley Mountain LOC, supra, at p. 3. Monitoring showed that
all reaches of Sawmill and Warm Creeks are rated as in proper functioning condition,
meaning that riparian vegetation, channel characteristics, and stream hydrology are all in
good order. Id. The FWS concluded that “[t]here is no other evidence that livestock
grazing in Mill Creek allotment is affecting baseline conditions in [the Hawley Mountain
allotment].” Id. Thus, the FWS did examine how grazing in one allotment might affect
another.

1

The Government argues that WWP lacks standing. The Court disagrees; WWP’s affidavits
establish its standing.

Memorandum Decision – page 10

In addition, the FWS also focused on conditions outside the allotments at issue.
The LOC states that the BLM’s BA is “incorporated by reference.” Id. at p. 1. That
BLM BA was an addendum to the 1998 Little Lost River Watershed Biological
Assessment, which provides an evaluation of bull trout throughout the Little Lost River
watershed. Moreover, in the Mill Creek BO, the FWS stated that it reviewed Opinions
discussing bull trout recovery in 8 bull trout recovery core areas, including the Little Lost
River Core Area. See Mill Creek BO, supra, at 26. In drafting the Mill Creek BO, the
FWS reviewed 61 Opinions. Id. The BO contains an extensive discussion of the bull
trout in the Little Lost River Core Area. It is clear, therefore, that the FWS was not too
narrow in its focus.
Adequacy of Mitigation Measures
WWP argues next that the mitigation measures proposed by the Forest Service and
BLM – and relied upon by the FWS – have been shown to be inadequate in the past and
cannot be found to mitigate the impacts of grazing. Mitigation measures “must be
reasonably specific, certain to occur, and capable of implementation; they must be subject
to deadlines or otherwise enforceable obligations; and most important, they must address
the threats to the species in a way that satisfies the jeopardy and adverse modification
standards.” Ctr. for Biol. Diversity v. Rumsfeld, 198 F.Supp.2d 1139, 1152 (D. Ariz.
2002).
In this case, the mitigation measures pass that test. The grazing plans have 4 to 6
inch stubble height requirements, stream bank stability criteria, and browse standards, all
of which are supported by the scientific literature as critical methods to reduce grazing’s
Memorandum Decision – page 11

impacts. See e.g. Mill Creek BO at 51 (citing scientific literature to support stream bank
stability criteria). Spawning grounds are protected either by fencing or rotations that
remove cattle during spawning periods. Riparian areas are also protected by rotations
that put cattle near water during the cooler season when they will be less likely to seek
water.
The record shows the Forest Service and BLM are monitoring these standards and
taking action to deal with non-compliance. For example, the monitoring for the Mill
Creek allotment shows that for more than a decade the Forest Service has been
monitoring critical criteria such as stubble height, bank stability, woody plants per acre
data, and sediment loading. See 3rd Supp. PAR at 1333. For over a decade, the Forest
Service has been taking photos of certain sites for comparison purposes to monitor
improvements in conditions. Id. The Forest Service is not only monitoring but also
taking action to deal with non-compliance. See USFS PAR 9668, 9670, 9674, 9678,
9682, 9688, 9694, 9698, 9729, 9734, 9739; see also, USFS 3rd Supp. PAR 3951, 3956,
3961, 3987, 3992, 4032, 4058, 4060, 4062, 4080. The Forest Service monitoring on the
Hawley Mountain allotment is similarly extensive. See Hawley Mountain Supp. PAR at
SUP0013 to SUP0002; see also, Hawley Mountain BA at Tables 7, 8 & 9.
These monitoring and enforcement efforts of the Forest Service and the BLM have
not been unsuccessful as WWP argues. For example, on the Hawley Mountain allotment,
the BLM’s grazing restrictions have improved conditions “dramatically” over the last 11
years, as discussed above. As another example, the Smithie Fork Unit on the Mill Creek
allotment was denuded by a large fire in 1988, but recovery measures have promoted
Memorandum Decision – page 12

vegetation growth, and the bull trout densities are now among the highest in the entire
range. See 3rd Supp. Partial Administrative Record at 1333, p. 10.
Certainly there are mitigation measures that have failed. But the record shows that
the Forest Service and BLM are engaged in a serious and consistent effort to reduce
grazing’s impacts and recover the bull trout. The Court cannot find that the FWS was
arbitrary or capricious in relying on the mitigation measures of the Forest Service and
BLM.
Water Withdrawals
WWP argues that the FWS failed to consider the water withdrawn from streams
and other sources on the allotments for grazing purposes in determining whether the
proposed grazing plans jeopardized bull trout. WWP supports its argument by listing
dozens of stockwater water rights that are only issued if the water diverted is for watering
livestock. See Marvel Declaration (Dkt. No. 8). For example, WWP was able to find 88
water rights on the Mill Creek allotment.
The right of ranchers to withdraw water from the streams in these allotments is a
relevant factor in determining whether the grazing plans will result in jeopardy to bull
trout or adversely modify their critical habitat. Center for Biological Diversity v. U.S.
BLM, 698 F.3d 1101, 1124 (9th Cir. 2012). The FWS discussed withdrawals in its Mill
Creek BO – and reviewed the Forest Service’s discussion of withdrawals in the BA – and
concluded that it was not significant. See Mill Creek BO at 33, 39 & 58. In the Hawley
Mountain LOC, the FWS discussed water quantity in the context of critical bull trout
habitat. To determine the condition of critical habitat, the Forest Service takes the
Memorandum Decision – page 13

measure of six Primary Constituent Elements (PCE) as a proxy for habitat health. The
first of these PCEs measures, among other things, water quantity. The FWS found that
for the critical bull trout habitat on the Hawley Mountain allotment, the water quantity
PEC was rated as functionally supporting bull trout recovery. See Hawley Mountain
LOC at 4. In addition, the Hawley Mountain BA states that “[w]ater quantity is reduced
slightly due to irrigation withdrawals, but still provides a base flow suitable to maintain
all life stages of bull trout. This will not change with the grazing proposed.” See Hawley
Mountain BA at 28. The FWS could rely on this conclusion by the Forest Service.
These discussions show that the FWS did not neglect water withdrawals, and that
the managing agencies – the BLM and Forest Service – also took them into account.
WWP argues, however, that its calculations demonstrated that the water rights would
authorize a substantial withdrawal, and that the agencies ignored the size of the
withdrawal. However, WWP did concede errors in its calculations, see WWP Reply Brief
(Dkt. No. 107) at 8, and never responded to the Forest Service’s calculation showing that
the amount of the withdrawals was insignificant. See Casterson Declaration (Dkt. No.
93). The Court cannot find any shortcoming in the agency decisions regarding water
withdrawals.
Adverse Modification Issue
In addition to requiring the FWS to determine whether the grazing plans will
jeopardize the existence of bull trout, the ESA also requires the FWS to determine
whether the grazing plans will result in the “adverse modification” of designated critical
habitat of the bull trout. See 16 U.S.C. § 1536. WWP argues that the conclusion in the
Memorandum Decision – page 14

FWS BO for the Mill Creek allotment that the grazing plan will not adversely modify
critical habitat is arbitrary and capricious and without rational connection to the facts.
WWP points out that an adverse modification that would appreciably diminish the
value of critical habitat for either survival or recovery of the bull trout is sufficient to
violate the ESA. See Gifford Pinchot Task Force v. U.S. FWS, 378 F.3d 1059, 1069 (9th
Cir. 2004). WWP points out that the reports show that much of the critical habitat lacks
functionality and that grazing will cause further degradation.
The record, however, does not support WWP’s claim of widespread degradation
on the Mill Creek allotment. It is home to an abundant population of bull trout, and the
Smithie Fork Unit has some of the highest densities in the entire range, as discussed
above. While water temperature and sediment levels are not at proper levels, other
criteria are functioning well: The width-to-depth ratios of most streams – an important
factor in ease of migration – currently “meet requirements for the bull trout,” and the
RHCA conditions are at or near late seral condition, an important factor in developing
shade (to help lower water temperature) and increase pools, undercut banks, and woody
debris (to increase food sources and hiding places). Moreover, the record shows that with
regard to degraded areas, the Forest Service is making serious efforts to improve
conditions.
Certainly there are mixed signals on recovery of bull trout in the Mill Creek
allotment. The grazing plan essentially continues past grazing levels with some
additional protections. The FWS was therefore faced with a difficult and complex
decision requiring application of its expertise. It concluded that strong areas would
Memorandum Decision – page 15

continue to improve and degraded areas would not degrade further – in other words, there
would be no diminishment of critical habitat. When the FWS uses its expertise in
situations like this – where many factors point in different directions – the case law cited
above requires this Court to give deference to the agency. Under these circumstances, the
Court cannot find that this decision is irrational or arbitrary and capricious.2
Incidental Take Statement
Section 9 of the ESA prohibits the take of threatened species without a special
exemption. An “incidental take” is defined as a take that is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity. If a BO concludes that the
proposed action is not likely to jeopardize the species, but is likely to result in some take,
the FWS must provide an “Incidental Take Statement” (ITS) that (1) specifies the amount
or extent of the impact on the species, (2) specifies reasonable and prudent measures to
minimize such impact, and (3) sets forth required terms and conditions. 16 U.S.C. §
1536(b)(4); 50 C.F.R. § 402.14(i).
An ITS must “set forth a ‘trigger’ that, when reached, results in an unacceptable
level of incidental take, invalidating the safe harbor provision, and requiring the parties to
re-initiate consultation.” Arizona Cattle Growers Ass’n v. FWS, 273 F.3d 1229, 1249
(9th Cir. 2001). The trigger cannot be so vague that it does not contain measurable
guidelines and fails to provide a clear standard for determining when the authorized level

2

WWP raises similar arguments with regard to the Hawley Mountain allotment and the Court
finds them without merit for the same reasons.

Memorandum Decision – page 16

of take has been exceeded, or so broad that it could not adequately trigger reinitiation.
Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 (9th Cir. 2010). WWP argues that
there is no trigger in the FWS’s ITS for Mill Creek.
The Mill Creek ITS authorized take in the form of a number of trampled bull trout
redds, or egg nests. The duty to re-initiate consultation is triggered if more than 16 redds
are destroyed. The problem faced by the Forest Service in monitoring red destruction is
that the allotment is huge and many areas are difficult to access. Accordingly, the FWS
allowed the Forest Service to use a sampling approach to estimate redd destruction.
Under that approach, the Forest Service is required to survey a representative large
stream reach (i.e., a stream with a width greater than 15 feet) and a small stream reach
(i.e., width less than 15 feet) in each pasture of the allotment that is grazed for longer than
a week after August 15 to document any impacted bull trout redds. If the Forest Service
finds trampled redds, it determines, using Table 7 in the BO, the percentage of potentially
exposed redds that were trampled. FWS would consequently assume the same trampling
rate for all streams of that type in the unit.
This standard recognizes the unique problems of monitoring redd destruction in a
remote and large allotment, and uses the expertise of the agencies to craft a solution that
works around those obstacles. It contains a clear trigger, and thus satisfies the criteria set
forth in Arizona Cattle Growers and Wild Fish, cited above. The Court will dismiss
WWP’s challenges to the ITS in the Mill Creek BO.
Actual Take of Bull Trout

Memorandum Decision – page 17

WWP alleges in its amended complaint that the Forest Service is taking bull trout
through its inadequate management of grazing. There is, however, no evidence of an
actual take. For this reason, WWP’s taking claim under § 9 of the ESA must be
dismissed.
Conclusion
For the reasons set forth above, the Court will grant the motions for summary
judgment filed by the defendants and intervenors, and the Court will deny the motion
filed by WWP. Pursuant to Rule 58(a), the Court will enter a separate Judgment.

DATED: September 29, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision – page 18