Oregon Wild et al v. U.S. Forest Service et al
Filing
77
ORDER: Denying Motion for Summary Judgment 45 ; Granting Motion for Summary Judgment 58 ; Granting Motion for Summary Judgment 59 ; Granting Motion for Summary Judgment 60 . Please access entire text by document number hyperlink. Ordered and Signed on 06/17/2016 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
OREGON WILD, an Oregon non-profit
corporation; FRIENDS OF LIVING
OREGON WATERS, an Oregon non-profit
corporation; and WESTERN WATERSHEDS
PROJECT, an Idaho non-profit corporation;
Plaintiffs;
v.
U.S. FOREST SERVICE, a federal agency;
and U.S. FISH & WILDLIFE SERVICE,
a federal agency;
Defendants;
and
JRS PROPERTIES III, LP., an Oregon
registered foreign limited partnership;
Defendant- Intervenor,
and
WITHERS RANCH, INC.; BAR-2 LIVESTOCK,
LLC; BRENDA MORGAN and JAMES R.
BALDWIN, d.b.a. MORGAN RANCH; J-SPEAR
RANCH CO.; OBENCHAIN CATTLE CO.; and
O'LEARY RANCH, INC.,
Defendant-Intervenors.
I I I
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Case No. 1: l 5-cv-00895-CL
ORDER
CLARKE, Magistrate Judge.
Plaintiffs are non-profit environmental organizations. They assert Defendants' continued
authorization of livestock grazing on allotments on and near the Sycan River is arbitrary;
capricious; and contrary to the Endangered Species Act (ESA), the Clean Water Act (CWA), the
National Forest Management Act (NFMA), and the Wild and Scenic Rivers Act (WSRA).
Defendant-Intervenors are ranchers permitted to graze cattle on the at-issue land.
Pending before the Court are four motions. Plaintiffs, Defendants, and the Withers Ranch
Intervenors move (#45, #58, #59) for summary judgment in their favor on all of Plaintiffs'
claims. Intervenor JSR Properties' motion (#60) for summary judgment is limited in scope to
Plaintiffs' ESA claim. For the following reasons, Defendants' and Defendant-Intervenors'
motions (#58, #59, #60) are GRANTED and Plaintiffs' motion (#45) is DENIED.
BACKGROUND
The Sycan and Sprague Rivers originate on the eastern edge of the Klamath Basin in
south central Oregon. FWS AR 14-17. They flow through the Fremont-Winema National Forest
before entering private lands in the valley. FWS AR 15-17. In 1988, Congress designated a
segment of the Sycan River as "scenic" under the Wild and Scenic Rivers Act (WSRA). 16
U.S.C. § 1274(a)(103). The U.S. Forest Service adopted the Sycan Wild and Scenic River
Management Plan to outline its strategy "to protect and enhance" the river's values. 16 U.S.C. §
1281(a); SUPP POL 1-7. It incorporated the River Plan, along with state water quality standards
and an Inland Native Fish Strategy ("INFISH"), into its Forest Plans. POL 1926, 2669-83.
Livestock have grazed in the area since the 1860s. SUPP POL 23. Congress requires the
Forest Service "to consider the use of National Forest lands for grazing of livestock." Forest
Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (citing 16 U.S.C. §
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1604(e)(l)). "The Forest Service manages livestock grazing on an allotment by issuing a grazing
permit; an allotment management plan (AMP); and an annual operating ... instruction (AOI)."
Oregon Natural Desert Ass'n v. Sabo, 854 F.Supp.2d 889, 902 (D. Or. 2012). Grazing permits
authorize livestock use on federal lands and set limits on the allowable timing and amount of that
use. Id. The Forest Service generally issues permits for ten-year periods. Id. AMPs are allotmentspecific planning documents that:
(i) Prescribe[] the manner in and extent to which livestock operations will
be conducted in order to meet the multiple-use, sustained yield, economic,
and other needs and objectives as determined for the lands, involved; and
(ii) Describe[] the type, location, ownership, and general specifications for
the range improvements in place or to be installed and maintained on the
lands to meet the livestock grazing and other objectives of land
management; and
(iii) Contain[] such other provisions relating to livestock grazing and other
objectives as may be prescribed by the Chief, Forest Service, consistent
with applicable law.
36 C.F.R. § 222.l(b)(2). As their name implies, AOis are agreements issued annually by the
Forest Service to permittees. Sabo, 854 F.Supp.2d at 902. The Forest Service uses AOis to
respond to changing grazing conditions such as drought, water quality, habitat restoration, or
risks to threatened plants or animals. Id.
A distinct population segment of bull trout, called Klamath River bull trout, were once
widely distributed in the region's waterways. 63 Fed.Reg. 31647-01 (June 10, 1998). However,
over the years, their distribution and numbers declined due, in part, to water diversion, habitat
fragmentation, poor water quality, and the introduction of non-native species. Id. In 1998,
Klamath River bull trout were listed as a "threatened species" under the Endangered Species Act
(ESA), meaning the population is "likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range." FWS 2341; 16 U.S.C. §
1532(20).
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Because of their "threatened" status, Klamath River bull trout receive certain protections
under the ESA. Federal agencies must insure their actions, including the granting of permits, are
"not likely to jeopardize the continued existence of' listed threatened species "or result in the
destruction or adverse modification of [the species' critical] habitat[.]" 16 U.S.C. § 1536(a)(2).
Agencies fulfill this obligation by consulting with a designated wildlife agency before engaging
in any action that may affect a listed species or its critical habitat. The ESA and its implementing
regulations set forth a framework for this interagency consultation. First, the acting agency must
prepare a "biological assessment" (BA) to "evaluate the potential effects of the action on listed
... species and designated ... critical habitat and determine whether any such species or habitat
are likely to be adversely affected by the action .... " 50 C.F.R. § 402.12(a). If it determines
adverse effects are unlikely, and the consulting agency agrees, then "the consultation process is
terminated, and no further action is necessary." 50 C.F.R. § 402.13(a). If it determine adverse
effects are likely, "formal consultation" with a consulting agency is required. 50 C.F.R. §
402.14(a)-(c). During the formal consultation process, the consulting agency writes a biological
opinion to determine "whether the action, taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or result in the destruction or adverse
modification of critical habitat." 50 C.F.R. § 402.14(g)(4).
The Forest Service has conducted several ESA consultations with the U.S. Fish and
Wildlife Service (FWS) regarding the impacts of authorized grazing on Klamath River bull trout.
First, in 1998, the Forest Service and FWS evaluated the effects of timber salvage, grazing, and
hydropower activities on bull trout. FWS 2300-01, 2317. At that time, all streams occupied by
Klamath River bull trout were closed to grazing except for the North Fork of the Sprague River.
FWS 2315. FWS issued a biological opinion concluding that grazing activities were likely to
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adversely affect bull trout, especially in the North Fork of the Sprague River watershed, but were
not likely to jeopardize the continued existence of the population because of restoration and
monitoring effects. FWS 2300-16. FWS anticipated that grazing would "take" 1 bull trout by
causing "degraded habitat conditions, habitat fragmentation, and additional environmental
disturbance such as reduction of water quantity or quality, aquatic and streamside vegetation,
cover, and stream roughness." FWS 2317.
In 2000, FWS issued a biological opinion on grazing activities within the Silver Creek
Pasture of the Fremont National Forest. FWS 2337. It concurred with the Forest Service's
assessment that grazing was likely to adversely affect bull trout within the Coyote Creek
drainage "by impacting riparian areas and slowing their rate of recovery as compared to no
grazing." FWS 2337. However, FWS ultimately concluded that the proposed grazing was not
likely to jeopardize the continued existence of Klamath River bull trout. FWS 2351. Among
other mitigating factors, the FWS noted that occupied bull trout streams would be excluded from
grazing, and the Forest Service would continue restoration and recovery efforts. FWS 2351. To
reduce foreseen impacts, FWS imposed multiple restrictions on grazing including monitoring
and limits on grazing periods. FWS 2353-55. Because bull trout had no designated critical
habitat at the time, FWS concluded none would be affected. FWS 2351.
In 2005, FWS designated critical habitat for the Klamath River bull trout. FWS 226. In
2007, the Forest Service completed BAs on proposals to authorize grazing in the Sprague and
Lost River watersheds. FWS 1041. It concluded that grazing would have only "negligible and
insignificant" effects on bull trout and its critical habitat due, in part, to its use of "adaptive
management based on monitoring[.]" FWS 761-66. FWS concurred. FWS 1041-47.
1
In the ESA context, the term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
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In 2010, FWS expanded the critical habitat deemed essential to bull trout recovery. FWS
1165-66, 1171, 2420-26, 2430. In pertinent part, it stated:
[I]n the Klamath Basin Recovery Unit where threats to bull trout are
greatest, we are designating all habitat known to be occupied at the time of
listing that contains the physical or biological features essential to the
conservation of the species and that may require special management
considerations or protection, and we are also designating a substantial
proportion of unoccupied habitat outside of the geographical area occupied
by the species at the time of listing that has been determined to be essential
for bull trout conservation. Our primary consideration for designating
critical habitat for occupied areas was to protect species strongholds for
spawning and rearing and [foraging, migration, and overwintering (FMO)]
habitats. Our primary consideration for designating most of [the]
unoccupied areas we are including in this designation was to restore
connectivity among populations by protecting FMO habitats.
FWS 1165-66. FWS acknowledged that "livestock grazing contributed to the decline in bull trout
abundance and distribution."
FWS 1144. However, it noted that grazing and fish habitat
conservation are not "mutually exclusive in all cases, provided appropriate special management
needs for particular areas are implemented." FWS 1144.
In 2011, the Forest Service reinitiated ESA consultation to assess the effect of grazing on
the newly designated critical habitat. FWS 1423. In a supplement to the 2007 BAs, the Forest
Service recognized:
Livestock grazing has the potential to degrade aquatic habitat by removing
riparian vegetation, destabilizing stream banks, widening steam channels,
promoting incised channels and lowering water tables, reducing pool
frequency, increasing soil erosion, and altering water quality. These effects
increase summer water temperatures, reduce cover, promote formation of
anchor ice in winter, and increase sediment in spawning and rearing
habitats.
FWS 1431. However, after reviewing the physical and biological features of each allotment, the
Forest Service concluded grazing would have no effect on five critical habitat allotments, and
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was not likely to adversely affect another ten allotments containing critical habitat. FWS 142748. It explained:
All effects identified in the allotments are insignificant. Several of the
allotments are separated from critical habitat streams by geology; although
cattle may access the stream, access is difficult and limited. Several
allotments have mainly intermittent hydrology, opportunities for sediment
inputs and water temperature influences are restricted to run off conditions
when high flows in the receiving streams are likely to dilute any effects to
that system. The six steps outlined in the 2007 BA for monitoring and
implementation are structured to maintain flexibility within the Forest's
grazing program to readily facilitate annual changes, when warranted,
throughout the life of the action. Maintaining this flexibility will result in
improved on-the-ground management.
FWS 1448. FWS issued a two-page Letter of Conferral (LOC) stating, pertinent part: "Based on
the Service's review of the biological assessment, we concur with the Forest's determination that
the continued cattle grazing in the three Action Areas is not likely to adversely modify bull trout
critical habitat. Therefore, further consultation, pursuant to section 7(a)(2) of the Act, is not
required." FWS 1462-63.
STANDARD
The parties have filed cross motions for summary judgment under Federal Rule of Civil
Procedure 56. In this context, "summary judgment" is "simply a convenient label to trigger"
judicial review. Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1233 (D.
Or. 2013), aff d sub nom. Klamath-Siskiyou Wildlands Ctr. v. Gerritsma, No. 13-35811, 2016
WL 775297 (9th Cir. Feb. 29, 2016). The Administrative Procedure Act (APA) governs. It
allows a court to set aside a final agency action only if it is "arbitrary, capricious, an abuse of
discretion, or not otherwise in accordance with the law." 5 U.S.C. § 706(2)(A). "A decision is
arbitrary and capricious if the agency 'has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem, offered an explanation
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for its decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise."' O'Keeffe's,
Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency
action is also arbitrary and capricious if the agency fails to "articulate a satisfactory explanation
for its action including a 'rational connection between the facts found and the choice made."'
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States,
371 U.S. 156, 168 (1962)).
Review under the AP A is "searching and careful." Ocean Advocates v. United States
Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2004). The court must ensure that the agency
took a "hard look" at the environmental consequences of its proposed action. Oregon Natural
Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). However, the court may not
substitute its own judgment for that of the agency. Ocean Advocates, 402 F.3d at 858. It must
presume the agency acted properly and affirm the agency when "a reasonable basis exists for its
decision." Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).
DISCUSSION
I.
Endangered Species Act
Plaintiffs challenge the 2011 consultation's conclusion that grazmg is not likely to
adversely affect (NLAA) bull trout critical habitat. They contend that the Forest Service's BA
and FWS' LOC are arbitrary, capricious, an abuse of discretion, not in accordance with the ESA,
and, therefore, violate the AP A.
I I I
I I I
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A. Justiciability
Defendants and Defendant-Intervenors mount two challenges to the justiciability of
Plaintiffs' ESA claim. First, they contend that the Forest Services' 2011 BA is not a reviewable
"final agency action" under the AP A. Generally, "two conditions must be satisfied for agency
action to be 'final' (and thus subject to judicial review]: First, the action must mark the
consummation of the agency's decisionmaking process ... [a]nd second, the action must be one
by which rights or obligations have been determined, or from which legal consequences will
flow." Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotations and citations omitted).
BAs do not generally constitute final agency actions within the meaning of the AP A.
Nevertheless, a Court may review a BA where a final agency action, like a LOC, expressly relies
on it to conclude further action is not necessary. See League of Wilderness Defs./Blue Mountains
Biodiversity Project v. Connaughton, No. 3:12-CV-02271-HZ, 2013 WL 3776305, at *6 (D. Or.
July 17, 2013) ("In short, the BA is subject to review because the LOC expressly relied on the
BA when determining that bull trout did not exist in the Eagle Creek watershed and that no
formal consultation was needed."), aff din part, rev'd in part and remanded, 752 F.3d 755 (9th
Cir. 2014). For example, in Oregon Nat. Desert Ass'n v. Tidwell, District Judge Haggerty
declined review of two BAs that triggered formal consultation. 716 F.Supp.2d 982, 995 (D. Or.
2010). The consulting agency prepared a biological opinion and incidental take statement after
reviewing the at-issue BAs. These reviewable documents stood alone. Their conclusions did not
hinge on support found in the BAs. In contrast, in Connaughton, District Judge Hernandez held a
BA was subject to review because it was the sole basis of the consulting agency's decision to
refrain from further action. 2013 WL 3776305, at* 6. No formal consultation ensued because of
information provided in the BA. Similarly, here, FWS's brief LOC, which carries legal
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consequence, expressly adopted and relied on the challenged BA when it determined that formal
consultation was not needed. The Court cannot meaningfully review the LOC, which the parties
do not dispute qualifies as a final agency action, without referencing the BA on which it is
explicitly and exclusively based.
Second, Defendant-Intervenor JSR Properties argues Plaintiffs' ESA claim is moot
because the Forest Service has begun re-initiation of consultation. This Court lacks jurisdiction
over moot claims. A claim is moot "if it has lost its character as a present, live controversy." Am.
Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). The party asserting
mootness bears the burden of establishing that the Court cannot provide an effective remedy.
Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006). The question is not whether the
precise remedy requested is available, but whether the Court can shape any effective relief. Nw.
Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988). JSR has not carried this
"heavy" burden. Id. at 1244. The challenged consultation is currently operative and will remain
so through the upcoming grazing season. Fed. Defs.' Mot., at 6; compare Grand Canyon Trust v.
U.S. Bureau of Reclamation, 691 F.3d 1008, 1017 (9th Cir. 2012), as amended (Sept. 17, 2012)
(a challenge to an existing consultation becomes moot when a new consultation is completed that
supersedes it). Relief remains available from its alleged defects notwithstanding the Forest
Service's preliminary efforts to reinitiate. Johanns, 450 F.3d at 463 ("Because such relief
remains available to Forest Guardians notwithstanding the Forest Service's re-initiation of
consultation on Water Canyon, the agency has failed to carry its burden to establish mootness.");
Tidwell, 716 F.Supp.2d at 994-95 (finding challenged grazing authorizations were not mooted by
subsequent agency actions). Moreover, JSR has not demonstrated why this Court is unequipped
to remedy damages sustained from the consultations' past grazing seasons. See Tidwell, 716
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F.Supp.2d at 994 ("The grazing that takes place on each allotment during a season can have
carryover effects that might last one or more seasons into the future. The fact that new annual
grazing authorizations have been issued does not mean that damage from previous seasons
cannot be remedied."). For these reasons, the Court finds Plaintiffs' ESA claim is still a live
controversy fit for judicial review.
B. General Factors
Plaintiffs assert the agencies failed to consider important factors during their 2011
consultation including (1) inconsistences with prior consultations, (2) the recovery purpose of
critical habitat, and (3) the full impact of public land grazing when paired with cumulative
effects and climate change. The Court will address each alleged error in tum.
i. Inconsistencies with Earlier Consultations
To ensure prior standards are not ignored or inadvertently altered, an agency must supply
a reasonable explanation for a change in course or "swerve from prior precedents[.]" BushQuayle '92 Primary Comm., Inc. v. Fed. Election Comm'n, 104 F.3d 448, 453 (D.C. Cir. 1997);
see also Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1048-51 (9th Cir. 2010). Plaintiffs
suggest the agencies violated this requirement by shifting their position on grazing's effects on
bull trout habitat without sufficient explanation or support. They question why the agencies
concluded grazing was likely to adversely affect bull trout by degrading and fragmenting their
habitat in 1998 and 2000, but found grazing was not likely to adversely modify critical habitat in
2011. The answer is not readily apparent from the record. The agencies did not discuss their
1998 and 2000 conclusions in the 2011 consultation. The Court would be more concerned by this
apparent omission if the agencies hadn't consulted between 2000 and 2011. But they did. In
2007, FWS concluded that grazing was not likely to adversely affect Klamath River bull trout or
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its critical habitat. FWS 1046. Considering the 2011 opinion in conjunction with all prior
consultations, not just the earliest two, it becomes apparent that the opinion was not a sharp shift
from the agencies' prior decisions, but rather a continuation of them. Because the agencies did
not change their position in 2011, they had nothing to explain. See FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515-516 (2009) (an agency must provide "a reasoned explanation"
when its new course "rests upon factual findings that contradict those which underlay" its prior
course).
ii. Recovery
The ESA requires federal agencies to insure, through consultation, that their proposed
actions are "not likely to ... result in the destruction or adverse modification of' bull trout critical
habitat. 16 U.S.C. § 1536(a)(2). Neither the ESA, nor its regulations, delineate the precise issues
an agency should consider to determine whether an action will adversely modify habitat.
However, the statute's definitions clarify the scope of the inquiry. Critical habitat is defined, in
pertinent part, as "the specific areas within the geographical area occupied by the species ... on
which are found those physical or biological features . . . essential to the conservation of the
species[.]" 16 U.S.C. § 1532(5)(A) (emphasis added). In tum, conservation is defined as those
methods necessary to recover a species, or to bring a species to a point where it no longer needs
the ESA's protection. 16 U.S.C. § 1532(3). The Court reads these definitions, together with the
ESA's consultation requirement, to mean that critical habitat consultation necessitates
consideration of the species' recovery. Ctr. For Native Ecosystems v. Cables, 509 F.3d 1310,
1322 (10th Cir. 2007) ("Section 1536(a)(2) requires federal agencies, when considering the
effect of their actions on a species' critical habitat, to consider the effect of those actions on the
species' recovery."). This is in line with the ESA's dual goals of not merely promoting listed
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species' survival, but allowing them "to recover to the point where [they] may be delisted."
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir.),
amended sub nom., 387 F.3d 968 (9th Cir. 2004).
Plaintiffs assert the agencies failed to address bull trout recovery in their 2011
consultation. The Court disagrees. The 2011 consultation was initiated in direct response to
FWS' designation of new critical habitat, which was explicitly chosen "to achieve recovery."
FWS 1165. As such, "it is hard to see how the Forest Service's [BA], and the FWS's ultimate
concurrence with the conclusions of that review, could have been directed at anything but
recovery." Cables, 509 F.3d at 1322. Moreover, the BA includes a detailed discussion of the
biological and physical features deemed "essential to bull trout conservation" for each affected
allotment. FWS 1427, 1432-46. As discussed above, in the ESA context, conservation
encompasses recovery. See 16 U.S.C. § 1532(3). Therefore, the agencies satisfied their
obligation to consider recovery by analyzing the effects of the proposed actions on the
conservation of bull trout. See Cables, 509 F .3d at 1322 ("the review undeniably considered
recovery by considering conservation.").
iii. Cumulative Effects
Federal agencies have no duty to consider cumulative effects during informal
consultation. Conservation Congress v. U.S. Forest Serv., 720 F.3d 1048, 1055 (9th Cir. 2013).
Nevertheless, the Forest Service elected to briefly address cumulative effects in the challenged
BA. The BA identified multiple non-federal activities that will likely continue in riparian areas
adjacent to critical habitat in the foreseeable future, including timber harvesting, road
construction, culvert replacement, watershed restoration projects, invasive plant treatments,
prescribed fires, recreation, and harvesting related to the bark beetle infestation. FWS 144 7. It
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acknowledged that these activities could adversely affect water quality - by increasing sediment
and turbidity, removing streamside vegetation, and disturbing channels -
but concluded such
effects would be "localized and short term." FWS 1447.
Plaintiffs challenge the sufficiency of this analysis. They contend the Forest Service
failed to fully analyze the impact of listed activities combined with public land grazing and
overlooked important contributing factors, like climate change. When formulating a biological
opinion, FWS must ask "whether the action, taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or result in the destruction or adverse
modification of critical habitat." 50 C.F.R. § 402.14(g)(4). This requirement is not applicable in
the informal context. "The contents of a biological assessment are at the discretion of the federal
agency" and "may [include] ... consideration of cumulative effects[.]" 50 C.F.R. § 402.12(f)
(emphasis added). Thus, the Forest Service had no obligation to consider cumulative effects at
all, let alone in conjunction with the proposed action and climate change as Plaintiffs suggest.
The Forest Service did not expose itself to scrutiny under heightened formal consultation
standards merely by exercising its discretion to discuss cumulative effects in its BA. It was
neither arbitrary nor capricious for the Forest Service to refrain from engaging in a more robust
discussion of a topic "that it was not required to consider in the first place." Conservation
Congress, 720 F.3d at 1056.
C. Mitigation
Plaintiffs assert that Defendants erroneously relied on insufficient and speculative
mitigation measures to support the 2011 BA' s NLAA determination. The ESA prohibits
biological opinions from relying on the mitigating effects of actions that are "not reasonably
certain to occur." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F.Supp.2d 1117,
Page 14-0RDER
1125 (D. Or. 2011). Mitigation measures must be "reasonably specific, certain to occur, and
capable of implementation[.]" Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d 1139,
1152 (D. Ariz. 2002). The 2011 BA does not violate or implicate this requirement. The
challenged consultation was informal. It resulted in a BA and LOC, not a biological opinion. As
such, the heightened standards of formal consultation do not apply. The Forest Service was
merely obligated to articulate a satisfactory explanation for its NLAA finding, and rationally
connect its conclusion to the BA's discretionary contents. 50 C.F.R. § 402.12(f); Ctr. for
Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir.
2008). Plaintiffs suggest the agencies violated this standard by relying on mitigation measures set
forth in the 2007 BA to support the NLAA conclusion without considering their effectiveness or
enforceability. This is not an entirely accurate statement. The 2011 BA incorporated the 2007
BA's adaptive management approach and monitoring methods. FWS 1431, 1447-48. It did not,
however, rely on those measures to support its NLAA finding. It did not present the 2007
measures as a cure for, or means of avoiding, a LAA conclusion. Indeed, the Forest Service did
not identify any adverse effects warranting mitigation. It concluded that proposed grazing would
have little to no effect on the newly designated critical habitat. FWS 1410. Irrespective of that
decision, the Forest Service committed to flexibly manage the allotments and monitor for any
changes in circumstances. FWS 1410. Because the 2011 BA's NLAA determination was not
contingent on the implementation of the 2007 BA's monitoring or management measures, the
Forest Service did not err by omitting analysis on them. The NLAA finding stands independent
of the Forest Service's mitigation efforts.
I I I
I I I
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D. Alleged Inaccuracies
Finally, Plaintiffs allege a number of flaws in the 2011 consultation's analysis. First, they
claim the BA overlooks or downplays impediments to bull trout recovery, including warming
water temperatures and growing populations of rival species. This argument is easily dispelled.
The BA explicitly acknowledges that "water temperatures above l 5°C limit the occurrence of
bull trout" and that "brown trout" are a competing species that must be "temporally and spatially
isolated from bull trout." FWS 1428, 1434. While Plaintiffs disagree with the Forest Service's
conclusion that grazing can continue despite these concerns, they have not demonstrated that the
agency disregarded or irrationally analyzed them.
Second, Plaintiffs argue the BA omits data relevant to the condition of specific
allotments. For example, Plaintiffs assert there is insufficient support for the BA's conclusion
that grazing will not exacerbate sediment and water temperature issues for creeks within the Bear
Lakes allotment. Pls.' Mot., at 21. The Court disagrees. The BA adequately explains that the
streams are small and have a negligible influence on critical habitat. FWS 1436. It references
stream surveys and photographs. FWS 1436. Though the Forest Service could have discussed
monitoring data as Plaintiffs suggest, it was not required to do so. See 50 C.F.R. § 402.12(±)
("The contents of a biological assessment are at the discretion of the Federal agency[.]"). It is not
the Court's role to choose which data or studies the Forest Service must consider, or to instruct
the agency on "how to validate its hypotheses regarding wildlife viability[.]". The Lands Council
v. McNair, 537 F.3d 981, 988 (9th Cir. 2008). Because the record indicates the Forest Service
properly supported its findings for each allotment, the Court defers to the federal agency's
"informed discretion" on these highly technical issues. Kleppe v. Sierra Club, 427 U.S. 390, 412
Page 16-0RDER
(1976); see also Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 377 (1989) (reviewing courts
must be at their most deferential when examining scientific documents of this type).
Third, Plaintiffs assert the LOC contains inaccurate and insufficient information. The
LOC notes that certain allotments' rugged topography minimizes cattle access. FWS 1462.
Plaintiffs point out that portions of these allotments remain accessible. These two statements are
not at odds. They are different ways of saying the same thing: topography limits grazing's effects
in some, but not all, of the designated critical habitat. Similarly, the LOC's statement that
pastures within the Paradise Creek allotment have intermittent hydrology does not contradict
Plaintiffs' statement that others do not. FWS 1462. Plaintiffs complain that the LOC fails to
consider monitoring data. As discussed in detail above, the Court does not find this omission to
be arbitrary or capricious.
E. Conclusion
Plaintiffs raise legitimate concerns about the future of Klamath River bull trout. The
record shows their numbers and distribution are in steady decline. By designating miles of
unoccupied habitat as critical, the FWS sent a clear message that more is needed to protect and
recover the unique species. Klamath River bull trout are unlikely to survive, let alone thrive, if
the status quo continues. However, the challenged interim consultation is not rendered invalid by
these concerns. The 2011 BA and LOC focused on the narrow question of whether grazing
would adversely affect bull trout's expanded critical habitat. Because the agencies reasonably
answered this question in the negative, they had no obligation to delve into the deeper issues that
Plaintiffs raise now.
I I I
I I I
Page 17 - ORDER
II.
Water Quality
Plaintiffs assert that the Forest Service violated the CWA and NFMA by authorizing
grazing without ensuring compliance with water quality standards. They bring these claims
pursuant to the judicial review provisions of the APA, 5 U.S.C. § 706.
A. Clean Water Act
The CWA was enacted in 1972 "to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act imposes extensive
requirements on "point sources" which it defines as "any discernible, confined, and discrete
conveyance ... from which pollutants are or may be discharged" like a pipe, ditch, or machine.
33 U.S.C. § 1362(14). It leaves regulation of all other sources of water pollution, called "nonpoint sources," largely to the states. Oregon Nat. Desert Ass'n CONDA) v. U.S. Forest Serv., 550
F.3d 778, 780 (9th Cir. 2008). In the present case, the parties do not dispute case law affirms -
and Ninth Circuit
that "something as inherently mobile as a cow" constitutes a nonpoint
source. Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1099 (9th Cir. 1998).
The CWA deals with non-point source pollution, in part, by requiring states to develop
water quality standards for waterbodies within their jurisdiction, designating their specific uses
and establishing criteria to protect those uses. 33 U.S.C. § 1313(c). In accordance with that
requirement, the Oregon Department of Environmental Quality (DEQ) designed water
temperature standards for streams supporting protected fish. OAR 340-041-0028.
The Fremont Forest Plan sets forth Best Management Practices (BMP) to ensure
compliance with state water quality standards. POL 1883. In addition, the Forest Service
operates under a Water Quality Restoration Plan (WQRP) which aims to maintain riparian areas
in the Upper Klamath Basin so that every stream "is at its lowest potential temperature consistent
Page 18 - ORDER
with ecological status and system potential." POL 3356. The Plan recognizes that it might take
"several decades" to achieve that goal. POL 3367. DEQ and the Forest Service have committed
to "work together to achieve compliance with all water quality standards." POL 5593. The
agencies entered into Memorandums of Understanding (MOU) in 2003 and again in 2014 to
document their joint strategy for managing water pollution. POL 5590, 6687. The MOUs track
the Forest Plan's BMPs and the WQRP.
Plaintiffs contend the Forest Service's authorization of grazing in 2014 and 2015 on the
Paradise Creek, Currier Camp, Withers Special Use, Bear Lakes, and Pothole allotments was
arbitrary and capricious under the AP A and violated Section 313 of the CWA, which provides:
Each department, agency, or instrumentality of the executive, legislative,
and judicial branches of the Federal Government ... engaged in any activity
resulting, or which may result, in the discharge or runoff of pollutants ...
shall be subject to, and comply with, all Federal, State, interstate, and local
requirements, administrative authority, and process and sanctions respecting
the control and abatement of water pollution in the same manner, and to the
same extent as any nongovernmental entity ...
33 U.S.C. § 1323(a). Specifically, Plaintiffs argue the Forest Service ignored its Section 313
duties by permitting grazing that contributes to elevated water temperatures. It is not in dispute
that multiple streams within the at-issue allotments exceed Oregon's temperature standards or
that livestock aggravate the problem by trampling and widening channels, and eating vegetation
that would otherwise provide shade. Regardless, the Forest Service contends that it is not subject
to liability under the CWA because, among other things, ( 1) Congress has not waived sovereign
immunity for suits like this one; (2) the Forest Service reasonably issued the AOis in line with its
BMP, WQRP, and MOUs; (3) the facts do not establish a causal relationship between
temperature violations and authorized grazing; and (4) the state has sole authority to determine
violations with its standards and has found none. Because the Court concludes that Plaintiffs'
Page 19 - ORDER
CWA claim fails on the merits, it need not address the parties' arguments on the scope of
sovereign immunity or Oregon's authority.
This Court confronted a claim very similar to Plaintiffs' in Ctr. For Biological Diversity
v. Wagner, No. CIV. 08-302-CL, 2009 WL 2176049 (D. Or. June 29, 2009), report and
recommendation adopted, No. CIV. 08-302-CL, 2009 WL 2208023 (D. Or. July 22, 2009).
There, environmental groups alleged grazing authorized by the Forest Service resulted in
exceedances of Oregon's E.coli standards and thereby violated the CWA. Id. at *14-16. At the
time, state regulations provided that any designated management agency that implemented BMPs
would be deemed compliant with water quality standards. Id. at * 17 (citing OAR 340-0410061(13)). Because the Forest Service was a designated management agency that had
implemented BMPs, this Court found no violation of state or federal water quality law despite
evidence of elevated bacteria levels. Id. at * 18.
Sometime between Wagner and the present action, Oregon DEQ removed the regulatory
provision equating agencies' implementation of BMPs to compliance. Due to this revision,
Plaintiffs argue the Forest Service can no longer rely on its BMPs and, instead, must "strictly
comply" with state water quality standards. The Court disagrees. By deleting the provision, DEQ
merely eliminated agencies' ability to automatically qualify as compliant by implementing
BMPs. It did not prohibit agencies from utilizing BMPs to comply with water quality standards
on a case-by-case basis. 2 Here, DEQ has certified that the Forest Service's WQRP "contains the
elements necessary to address" its responsibilities and, therefore, that the federal agency "is in
2
Plaintiffs mistakenly assert that the holding in Nw. Envtl. Advocates v. U.S. E.P.A. prohibits any reliance on
BMPs. 855 F.Supp.2d 1199, 1209 (D. Or. 2012). There, Judge Acosta held the EPA was required to review
Oregon's now-removed BMP regulation because it was "so bound up with Oregon's water quality standards" that it
could undermine their application. Id. at 1212. The opinion focused on EPA's duty to review state water quality
regulations. It did not foreclose DEQ or the Forest Service from using non-numeric proxies, like BMPs, to assess
compliance with water quality standards as Plaintiffs suggest. Nor did it require EPA to review all state decisions
involving BMPs.
Page 20 - ORDER
compliance with the [state's] requirements" so long as it implements the plan's approved
restoration goals and protective measures. SECOND SUPP POL 42. In doing so, DEQ
recognized violations may occur while the Forest Service works to achieve long-term goals. It
noted "some time will be required for the actions identified in the WQRP to realize full water
quality benefits," but found these actions will eventually "result in improved water quality and
better overall environmental conditions." SECOND SUPP POL 42. Though Plaintiffs speculate
that the Forest Service has not fully implemented its BMPs, there is no evidence that the agency
has failed to undertake any specific commitment or otherwise acted in bad faith.
On this record, the Court cannot say that the Forest Service has ignored its Section 313
duties. It designed and implemented multiple measures to ensure achievement of temperature
standards. DEQ has approved of those efforts and certified their compliance with state
regulations. Exceedances are expected and do not render the Forest Service's efforts invalid. The
Forest Service rationally issued the challenged AOis on this basis. See Cables, 509 F.3d at 1333
("[S]o long as BMPs have been implemented, the state agency has no authority to take
enforcement action, and the Forest Service cannot be said to have failed to comply with state
requirements 'in the same manner, and to the same extent as any nongovernmental entity."').
B. National Forest Management Act
The National Forest Management Act (NFMA) requires the Forest Service to develop
and maintain a comprehensive Land and Resource Management Plan (Forest Plan) for each
national forest. 16 U.S.C. § 1604(a). A forest plan is "a broad, long-term planning document ...
[that] establishes goals and objectives for management of forest resources." Earth Island Inst. v.
U.S. Forest Serv., 697 F.3d 1010, 1014 (9th Cir. 2012). Once a forest plan is adopted, all
subsequent agency actions must comply with it. 16 U.S.C. § 1604(i). The Forest Service's
Page 21 - ORDER
"interpretation and implementation of its own forest plan is entitled to substantial deference."
Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012).
The Fremont Forest Plan requires compliance with state water quality standards. POL
1926. In addition, it includes an Inland Native Fish Strategy (INFISH) aimed at achieving
desired conditions for bull trout habitat. POL 2669-83. In pertinent part, INFISH sets forth
Riparian Management Objectives (RMO) for the improvement of important habitat features
including bank stability and water temperature.
Plaintiffs assert the 2014 and 2015 AO Is violate NFMA by contributing to violations of
INFISH's water temperature RMO and state standards. As discussed in detail above, Plaintiffs
have not demonstrated that the AOis violate Oregon's water quality regulations. Plaintiffs cite to
evidence of warming water in multiple streams to establish a violation of the INFISH
temperature RMO. This is insufficient for two reasons. First, Plaintiffs fail to demonstrate that
permitted grazing is responsible for noted exceedances. Second, Plaintiffs' narrow and rigid
application of the RMOs departs from the strategy's text. INFISH contemplates that its
objectives are "targets" that will not be met instantaneously. POL 2670-71. It instructs the Forest
Service to take a holistic approach to RMOs. If one objective is met or exceeded, "there may be
some latitude in assessing the importance of the objectives for other features that contribute to
good habitat conditions." POL 2671. The attainment of RMOs is to be assessed on a watershed
level. POL 2671. In light of INFISH's flexible approach and in the absence of evidence that the
complained-of temperatures constitute "landscape-scale" problems that are not mitigated by
other long-term efforts, the Court cannot conclude that the challenged AOis violate INFISH's
temperature RMO or, by extension, NFMA. The Forest Service reasonably gathered and
Page 22 - ORDER
evaluated data relevant to INFISH, and issued the 2014 and 2015 AOis on that basis. POL 670416; SUPP POL 1481. Its decision to authorize grazing was neither arbitrary nor capricious.
III.
River Values
Finally, Plaintiffs contend that the Forest Service's issuance of AOis violated the WSRA
and NFMA. As a threshold issue, Defendants question the propriety of Plaintiffs' focus on AO Is.
The Forest Service uses AOis to implement its previously authorized grazing decisions. Because
Plaintiffs did not timely challenge those underlying agency decisions, Defendants argue their
current claim is precluded. Otherwise, Defendants suggest Plaintiffs could use AOis as "a neverending hook to belatedly challenge their environmental concerns with long-standing land
management decisions." Defs.' Mot., at 52. The Court understands Defendants' pragmatic
concerns but, nevertheless, finds the challenged AOis to be final agency actions subject to
judicial review under the APA. Oregon Nat. Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977,
990 (9th Cir. 2006). The AOis represent "the Forest Service's last word" on annual grazing
allowances and impose binding obligations on permit holders. Id. The fact that they draw from
other agency actions does not lessen their legal force or reviewability.
A. Wild and Scenic Rivers Act
Congress enacted the Wild and Scenic Rivers Act (WSRA) in 1968 to identify, preserve,
and protect certain rivers that "possess outstandingly remarkable scenic, recreational, geologic,
fish and wildlife, historic, cultural, or other similar values[.]" 16 U.S.C. § 1271. To achieve this
end, the WSRA requires agencies to manage a designated river "in such a manner as to protect
and enhance the values which caused it to be [designated] without, insofar as is consistent
therewith, limiting other uses that do not substantially interfere with public use and enjoyment of
Page 23 - ORDER
these values." 16 U.S.C. § 1281(a). "[P]rimary emphasis" is to be given to protecting designated
rivers' "esthetic, scenic, historic, archeologic, and scientific features." Id.
In 1988, Congress designated a segment of the Sycan River as "scenic" under the WSRA.
16 U.S.C. § 1274(a)(l03). In compliance with the WSRA, the Forest Service adopted the Sycan
Wild and Scenic River Management Plan, which it incorporated into the Fremont and Winema
National Forest Plans. SUPP POL 1-7. The plan sets forth goals and standards for the protection
and enhancement of the river's outstandingly remarkable values (ORV) which include geology,
scenery, fisheries, and wildlife. SUPP POL 5.
Plaintiffs assert grazing is incompatible with the WSRA's mandate to "protect and
enhance" the Upper Sycan's ORV. 16 U.S.C. § 1281(a) (emphasis added). They contend the
Forest Service violated the WSRA by authorizing grazing in allotments within the river corridor
in 2014 and 2015. It is undisputed that grazing adversely affects riparian conditions, and by
extension, disturbs fisheries. SUPP POL 23, 1428. Plaintiffs' members have submitted reports to
the Forest Service complaining that their scenic enjoyment of the corridor is reduced by cattle,
cow pies, trampled stream banks, and stripped vegetation.
SUPP POL 14960-62. More,
however, is needed to establish a WSRA violation. The WSRA's "protect and enhance"
requirement does not stand alone. The provision goes on to instruct agencies to manage
designated rivers "without, insofar as is consistent [with the values motivating designation of the
river], limiting other uses that do not substantially interfere with public use and enjoyment of
these values." 16 U.S.C. § 1281(a) (emphasis added). Thus, the Act contemplates the
continuation of uses that interfere with the public use and enjoyment of a river's ORV. It
recognizes that an agency can protect and enhance river values while simultaneously permitting
uses that do not serve those goals. For example, in Hells Canyon Alliance v. U.S. Forest Service,
Page 24 - ORDER
environmental plaintiffs challenged the Forest Service's decision to allow motorized boats on the
wild and scenic Snake River. 227 F.3d 1170, 1178 (9th Cir. 2000), as amended (Nov. 29, 2000).
Although boats indisputably reduced the river's scenic value, the Ninth Circuit concluded that
they did not substantially interfere with its ORV. Id. ("the mere existence of some decline in
scenic value does not establish that motorized use substantially interferes with this value").
Similarly, here, evidence of disturbed fisheries and scenic values does not "lead inexorably to the
conclusion" that the Forest Service has violated the WSRA by permitting livestock on the river
corridor. Id. at 11 77.
In this case, the Forest Service rationally considered grazing's potentially adverse effects
on the river corridor. The challenged AOis were issued on a record showing grazing is a historic
use that does not substantially interfere with the scenic Upper Sycan's river values. In 1992, the
Forest Service engaged in a public process to determine whether it should eliminate grazing
within the corridor. SUPP POL 5. It recognized that grazing negatively affects fish and their
habitat but, nevertheless, concluded that it could continue "when consistent with other resource
values." SUPP POL 7, 23. In 2004, the Forest Service conducted a detailed environmental
assessment focused on grazing. SUPP POL 4820-5051. Again, it acknowledged grazing's
potential to degrade vegetation, bank stability, and channel quality. SUPP POL 4839. However,
it concluded that grazing within certain parameters was compatible with its WSRA obligations.
SUPP POL 4980. While Plaintiffs plainly disagree with the Forest Service's conclusions, they
have not carried the burden of showing that they are arbitrary or capricious. The Court defers to
the Forest Services' reasoned judgment on the proper balance of competing uses for the river
corridor. Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (the Forest Service is
charged with the "enormously complicated task of striking a balance among the many competing
Page 25 - ORDER
uses to which land can be put[.]"); Hells Canyon, 227 F.3d at 1178 (the agency's "decisions with
respect to what uses are inconsistent with protection and enhancement and 'substantially
interfere' with the river corridor's values must be accorded substantial deference[.]").
B. National Forest Management Act
Relatedly, Plaintiffs argue the 2014 and 2015 AOis deviate from the Forest Plan's River
Plan and, therefore, violate NFMA's mandate that all agency actions comply with the governing
Forest Plan. Plaintiffs allege four inconsistencies between the plan and AOis. First, they contend
the Forest Service failed to review the AOis and their underlying AMPs for compliance with the
plan's directives. The River Plan requires the Forest Service to "review allotment operating plans
or allotment management plans for compliance with" its standards, guidelines, and goals. POL
2361. It does not mention AOis and, therefore, the Forest Service reasonably refrained from
analyzing plan compliance in the challenged annual documents. In arguing that relevant AMPs
violate the review requirement inadequate analysis -
either because no AMP is in existence or because it contains
Plaintiffs overlook an important caveat. The River Plan explicitly notes
that agency budgeting and funding will control when the Forest Service can implement proposed
management actions. POL 2360. It does not demand that the Forest Service accomplish the
review requirement immediately. Second, Plaintiffs list purported violations of the plan's
fisheries standards and guidelines. These guidelines are "designed to meet the long-term [defined
as more than 20 years] desired condition for fisheries. POL 2357. They use the word "should"
rather than "shall," suggesting that they are not mandatory in all cases. POL 2358. Plaintiffs
present evidence that stream temperatures, width/depth ratios, and habitat deviate from the
guidelines. However, they have not connected those violations to the challenged AOis or any
other agency action. As such, the Court cannot conclude that authorized grazing is to blame.
Page 26 - ORDER
Third, Plaintiffs assert grazing is destabilizing streambanks in violation of the plan's requirement
that "no increase over natural levels of streambank degradation (existing at the time of Wild and
Scenic designation) shall be caused by, or perpetrated by, livestock." POL 2352. There is
insufficient evidence to support this conclusion. Specifically, Plaintiffs have not demonstrated
that streambanks in the allotments are degraded beyond their level at the time of designation, or
that grazing is the cause. Fourth, Plaintiffs contend authorized grazing violates the plan's
commitment to maintain the diversity of vegetation. While it is not in dispute that grazing
adversely affects vegetation, more is needed to show a violation. The plan merely requires the
Forest Service to minimize, not terminate, management actions that reduce the diversity of plant
life. POL 2353. In sum, the 2014 and 2015 AOis were neither legally erroneous nor contrary to
the River Plan. Therefore, the Court defers to the Forest Service and grants summary judgment
in its favor.
ORDER
For the reasons stated above, Defendants' and Defendant-Intervenors' motions (#58, #59,
#60) are GRANTED and Plaintiffs' motion (#45) is DENIED.
It is so ORDERED and DATED this
r·.:.;
day of June 2016.
?"MARK D. CLARKE
United States Magistrate Judge
Page 27 - ORDER
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