Oregon Wild et al v. Cummins et al

Filing 55

ORDER: Denying Motion for Summary Judgment 23 ; Granting Motion for Summary Judgment 32 ; Granting Motion for Summary Judgment 35 . Signed on 03/08/2017 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 Oregon non-profit corporation,
Case No. 1:15-cv-01360-CL
Plaintiffs,
v.
ORDER
CONSTANCE CUMMINS,
Forest Supervisor, Fremont-Winema
National Forests; U.S. FOREST SERVICE,
a federal agency; LAURIE R. SADA,
Field Supervisor, Klamath Falls Office, U.S.
Fish & Wildlife Service; and U.S. FISH &
WILDLIFE SERVICE, a federal agency,
Defendants,
ED GARRETT RANCH, INC., an Oregon
Corporation; PHILIP GROHS, dba Grohs
Ranch; MATT OWENS, an individual;
ADAM OWENS, an individual; KNESS
CATTLE, INC., an Oregon Corporation;
STEVE SIMMONS, an individual;

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HOLIDAY RANCHES, INC., a
California Corporation; and C&A
VOGT COMMUNITY PROPERTY
TRUST, a California Trust,
Intervenor-Defendants.

CLARKE, Magistrate Judge
Plaintiffs Oregon Wild, Friends of Living Oregon Waters, and Western Watersheds
Project (collectively, "Plaintiffs") bring this suit against Defendants Constance Cummins, the
United States Forest Service, Laurie R. Sada, and the United States Fish and Wildlife Service
(collectively, "Defendants"). Ed Garrett Ranch, Inc.; Philip Grohs; Matt Owens; Adam Owens;
Kness Cattle, Inc.; Steve Simmons; Holiday Ranches, Inc.; and C & A Vogt Community
Property Trust (collectively, "Intervenor-Defendants") timely intervened. Plaintiffs allege
Defendants violated and are violating the Endangered Species Act ("ESA"), the National Forest
Management Act ("NFMA"), and the National Environmental Policy Act ("NEPA"). This case
comes before the Court on Plaintiffs' motion for summary judgment (#23), Defendants' crossmotion for summary judgment (#32), and Intervenor-Defendants' cross-motion for summary
judgment (#35). For the reasons below, Defendants' and Intervenor-Defendants' motions are
GRANTED and Plaintiffs' motion is DENIED. 1

FACTUAL BACKGROUND
Livestock have grazed on the Lost River and Sprague Watersheds, part of the Upper
Klamath Basin, since the late 1800s. Much of the area is now incorporated into the FremontWinema National Forests. Congress requires the Forest Service "to consider the use of National
Forest lands for grazing of livestock." Forest Guardians v. US. Forest Serv., 329 F.3d 1089,

1

The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636(c)(l).

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1097 (9th Cir. 2003) (citing 16 U.S.C. § 531 & 16 U.S.C. § 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)." Or. Nat. 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 allotment-specific 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.
In 1988, the Lost River sucker and shortnose sucker, fishes endemic to the Klamath Basin
of south-central Oregon and north-central California, were classified as endangered species
under the ESA by the U.S. Fish and Wildlife Service ("FWS"). 53 Fed. Reg. 27130-01 (Jul. 18,
1988). In issuing its final rule, FWS noted both species' numbers and range had been reduced by
more than 95 percent due to "[d]ams, draining of marshes, diversion of rivers and dredging of
lakes ...." Id. at 27130. Moreover, "hybridization with more common closely related species,
competition and predation by exotic species, and insularization of remaining habitats" eminently

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threatened both species through continued loss of habitat. Id. "Further problems," the agency
noted, "may have been caused by decreases in water quality that result from timber harvest, ...
removal of riparian vegetation and livestock grazing." Id. at 27132. Accordingly, FWS labeled
livestock grazing on Forest Service land located in the Upper Klamath Lake and Clear Lake
Reservoir watersheds as "[fJederal actions that may affect the shortnose sucker and Lost River
sucker. .. ."Id. at 27133.
Both sucker species spend the majority of their time in "lake environments." FWS 6762.
In late winter and early spring of each year, however, both species migrate to tributaries to
spawn. After hatching, the larvae "drift" downstream from the tributaries to the lakes; larvae
typically "spend little time in rivers" before drifting back into their open-water habitats. FWS
6773. But because the larvae drift downstream after hatching, adequate water flow within
tributaries is critical to survival, and insufficient flow can, among other things, prevent access to
breeding habitat, cause the species' eggs to dry out, and strand adults suckers who have already
spawned. Consistent, and sufficient, water flow is largely an uncertainty in the Upper Klamath
Basin due to the area's environment, which experiences warm, dry summers and cold, wet
winters; tributaries often dry out or retain little water come summer.
To make matters more uncertain for suckers, the Upper Klamath Basin has experienced
significant drought conditions over the last few years; the water levels of Gerber and Clear Lake
Reservoirs, two bodies of water with high concentrations of both sucker species, were
significantly below average prior to summer 2014. The water levels were lower still prior to
summer 2015. In addition, summer 2014 streamflow in the Basin was estimated to be merely 6 to
47 percent average flow. The federal government declared a severe drought in the Basin. The
species are, however, "adapted to weather periodic droughts," FWS 6794, though the potential

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for increased droughts in the Upper Klamath Basin resulting from climate change appears to be a
significant variable going forward, having the potential to place a larger strain on both sucker
species, with decreased water "flows during late spring, summer, and early fall .... " P 7210.
Plaintiffs have challenged the Forest Service's decision to continue to approve livestock
grazing on eight allotments they contend "contain designated critical habitat for shortnose
suckers and/or are upstream of habitat for both species." Compl.

if 2 [ECF No. l.]. The eight

allotments are the Arkansas, Yocum Valley, Fort Springs, Horesfly, Pitchlog, Privy Springs,
Yainax Butte, and Wildhorse allotments. Plaintiffs argue the combination of grazing with manmade water diversions and impoundments found throughout the Fremont-Winema National
Forests, as well as on private land, "has a significant effect on suckers, degrading their instream
habitat and reducing water levels in the reservoirs." Compl. if 2.
A. Endangered Species Act Consultation

Because of their ESA protection, the Forest Service must insure their actions, including
the granting of permits for grazing, are "not likely to jeopardize the continued existence of'
suckers "or result in the destruction or adverse modification of [suckers'] habitat." 16 U.S.C. §
1536(a)(2). The Forest Service fulfills this obligation by consulting with a designated wildlife
agency prior to undertaking any action that may affect suckers or their critical habitat. The ESA
and its implementing regulations provide a framework for this interagency consultation. First, the
Forest Service, as the acting agency, prepares a biological assessment ("BA"), which evaluates
potential effects of the proposed action on suckers or their critical habitat. If the Forest Service
determines that the effects of the proposed action are unlikely to adversely affect suckers or their
critical habitat, and the consulting agency agrees, the consultation process concludes without any
additional action required. This is termed an informal consultation. By contrast, a "formal

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consultation" is required where a proposed action is "likely to adversely affect" suckers or their
critical habitat. 50 C.F .R. § 402.14( a)-( c). Formal consultation requires a formal biological
opinion ("BiOp") from the consulting agency to determine "whether the action, taken together
with cumulative effects, is likely to jeopardize the continued existence of [suckers] in the
destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).
On multiple occasions, the Forest Service consulted FWS regarding the effects of
authorized grazing on suckers and their critical habitat. In 2007, the Forest Service determined
that grazing was likely to adversely affect suckers on five allotments at issue here: Yocum
Valley, Pitchlog, Wildhorse, Arkansas, and Yainax Butte. Accordingly, FWS prepared a BiOp
assessing the matter. In its BiOp, FWS concluded that grazing on the five allotments was "likely
to have some direct and indirect adverse effects" to shortnose suckers. FWS 2305. Potential
adverse effects included: (1) water-quality reductions, "such as lower dissolved oxygen
concentrations, higher water temperatures, and higher levels of suspended sediment"; (2)
hydrogeomorphic changes, "such as reductions in summer base flows, increase in flood-lows,
and alterations of stream morphology, including reduction/loss of critical fish habitats such as
spawning and rearing areas"; and (3) ecological changes, "such as reductions in invertebrate
prey, increases in exotic predators and competitors, and increases in pathogens and parasites."
FWS 2288.
As to the remaining allotments assessed in the 2007 consultation, the Forest Service
concluded that grazing was not likely to adversely affect suckers or adversely modify or destroy
their critical habitat. FWS concurred in part, agreeing that grazing would not adversely affect
suckers; however, it found grazing would likely adversely modify or destroy their critical habitat
"because it [would] likely incrementally reduce[] the amount of water of sufficient quantity and

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suitable quality; degrade[] physical habitat for spawning, feeding, rearing, and travel corridors;
and adversely impact the biological environment. . . ." FWS 2310-11. This finding, however,
was non-binding and merely advisory because FWS had not finalized the contours of the
suckers' critical habitat at the time the finding was made.
By December 2012, FWS's critical-habitat designation was finalized. The designated
habitat differed from that originally proposed by FWS. Thus, in 2014, the Forest Service reconsulted FWS in an effort to assess grazing's effects on the newly designated critical habitat.
The 2014 BA analyzed grazing's effects on nine pastures found on six allotments at issue in this
case: the Arkansas, Horesfly, Pitchlog, Wildhorse, Yanaix Butte, and Yocum Valley allotments.
In the BA, the Forest Service acknowledged grazing's adverse impacts on water quality and
quantity and that past grazing affected critical habitat on the allotments; as it stated:
Past grazing has led to biomass removal and trampling, alterations in
species composition, compaction of soils, changes in fuel loading and the
fire regime, down cutting of riparian areas with subsequent drying of
adjacent meadows, and noxious weed invasion. Within riparian areas and
wet meadows, livestock grazing has led to churning of the soil and
hummocks .... Livestock grazing indirectly leads to an increase in stream
temperatures through lower summer flows, widening of the stream channel
(thus exposing more water surface to solar radiation) increased solar
exposure due to reduced shade from lack of streamside vegetation and to
loss of undercut streambanks.
P 7204, 7208. Nonetheless, the Forest Service determined grazing was not likely to adversely
affect critical habitat on any of the pastures within the six allotments. First, the Forest Service
concluded that natural conditions, not grazing, dictated water quality and quantity in criticalhabitat areas; the Forest Service stated, "grazing ... does not create the intermittent, seasonal
nature" of the various tributaries relied upon by suckers; instead, the intermittent nature of the
tributaries is caused by natural conditions that constrain suckers, and, therefore, "continued
grazing . . . would have minimal effect . . . relative to the effect caused by the natural

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conditions." P 7211. Finally, the Forest Service determined that adverse effects to critical habitat
caused by grazing the pastures was being sufficiently minimized by fencing off critical habitat;
by beavers, whose dam construction "increas[es] riparian vegetation and vigor"; and/or through
altered grazing practices, such as shortened or early-season grazing. P 7210-7222.
FWS concurred with the Forest Service's analysis. In a letter of concurrence ("LOC"),
FWS stated most grazing occurs in "late spring, summer, and fall" when there is inadequate
water flow to support suckers and when most suckers have returned to their primary, open-water
habitats. FWS 2772. Additionally, FWS agreed with the Forest Service's conclusion that any
adverse effects in the remaining pastures would be and already were minimized due to changes
in grazing practices, such as fenced-off enclosures to protect critical habitat and "beaver dams
that have altered the habitat to the benefit of suckers." FWS 2772.
The Forest Service's 2014 BA, which was a re-consultation of its 2007 ESA consultation,
requested ESA coverage for the 2014 through the 2016 grazing season. The Forest Service's
"request for re-consultation rather than re-initiation [was] due to the dramatic difference in the
number of acres of proposed critical habitat from that that was actually designated critical habitat
...." P 7196. In merely re-consulting rather than re-initiating consultation, the Forest Service
continued to follow the "ten-year cycle for re-initiation of consultation. . . ." P 7196.
Accordingly, the Forest Service must complete a new ESA consultation prior to any livestock
grazing in 2017. See 16 U.S.C. § 1536(a)(2) (stating every federal agency has a duty to engage in
consultation to "insure that any action authorized, funded, or carried out by such agency ... is
not likely to jeopardize the continued existence" of any species listed as endangered or
threatened; 50 C.F.R. § 402.16 (stating the duty of consultation is an ongoing duty of
consultation).

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B. 2009 Environmental Assessment

In 2009, the Forest Service completed an environmental assessment ("EA") under NEPA.
The EA analyzed "the direct, indirect, and cumulative environmental impacts" of grazing on six
allotments, five of which are at issue: the Arkansas, Pitchlog, Horsefly, Wildhorse, and Yocum
Valley allotments. P 5527. The allotments are located in the Sprague and Lost River watersheds.
To determine cumulative effects, "past, present, and reasonably foreseeable future activities were
considered, along with proposed activities of the Lost River and Sprague Watersheds Grazing
Allotment Project, to determine cumulative effects." P 5561. 2 Cumulative environmental impacts
that were assessed included the effects of climate change; the increased intensity of summer
droughts due to climate change' s effects; as well as the effects of man-made impoundments such
as roads, dams, and reservoirs. The EA's purpose was to use this information to assess grazing
and non-grazing alternatives on each of the allotments. The EA concluded grazing would have
no significant impact on the area assessed, a finding that cleared the way for continued grazing
on the allotments. See P 5666-5691. Plaintiffs submitted comments during the EA's public
comments period, raising concerns about the environmental impacts grazing posed on the area.
They did not, however, appeal the Forest Service's finding that grazing would have no
significant impact on the challenged allotments.

LEGAL STANDARD
The parties have filed cross-motions for summary judgment under Federal Rule of Civil
Procedure 56. In this context, '"[s]ummary judgment'" is "simply a convenient label to trigger"
judicial review. Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1233 (D.
2

Plaintiffs point out that the Forest Service "tiers" the 2007 FWS BiOp to the EA. The EA does make
multiple references to the BiOP, a document which has not itself been subject to NEPA review. "[T]iering to a
document that has not itself been subject to NEPA review is not permitted, for it circumvents the purpose ofNEPA."
Kern v. US. Bureau ofLand Mgmt., 284 F.3d 1062, 1073 (9th Cir. 2002). Accordingly, any assessment of the
adequacy of the EA must be done without considering segments which are incorporated by reference from the BiOp.

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Or. 2013), ajf'd sub nom. Klamath-Siskiyou Wild/ands 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
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."' 0 'Keeffe 's,
Inc. v. US. Consumer Prod 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. US Army Corps
of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2004) (internal citations and quotations omitted). The
court must ensure that the agency took a "hard look" at the environmental consequences of its
proposed action. Or. Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (internal
quotations and citations omitted). 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."' Indep. Acceptance Co.
v. Cal., 204 F.3d 1247, 1251 (9th Cir. 2000) (quoting Cal. Hosp. Ass'n v. Schweiker, 559 F.
Supp. 110, 116 (C.D. Cal. 1982)).

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DISCUSSION

I.

Standing

At the outset, Defendants and Intervenor-Defendants contest Plaintiffs' "standing to
challenge management of the Forest Service allotments at issue" in this case. Defs.' Cross-Mot.
for Summ. J, at 18 [ECF No. 32.]. Specifically, they contend Plaintiffs have failed to establish
standing, as no plaintiff has shown use of any of "the vast public lands within the challenged
allotments--or any lands adjacent to the allotments." Defs.' Reply in Supp. of Its Cross-Mot. for
Summ. J., at 2 [ECF No. 41.]. Thus, they argue, the Court should grant their motions for
summary judgment against all of Plaintiffs' claims.
To establish standing, a plaintiff must demonstrate, "at an irreducible minimum," (1) that
he personally suffered some actual or threatened injury (injury in fact); (2) that the injury can be
traced to the challenged conduct of the defendant (causation); and (3) that the injury is likely to
be redressed by a favorable judicial decision (redressability). Valley Forge Christian Coll. v.

Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). An
association has standing to bring suit on its members' behalf if: "[1] its members would have
standing to sue in their own right, [2] the interests at stake are germane to the organization's
purpose, and [3] neither the claim asserted nor the relief requested requires individual members'
participation in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Services (J'OC), Inc.,
528 U.S. 167, 169 (2000). Critically, in a case brought under the ESA or another environmentalprotection statute, the injury is not to the environment but to the plaintiff. Id.
In Laidlaw, the Supreme Court determined standing existed based on affidavits from
association members stating "use [of] the affected area" and that the affiants were "persons 'for
whom the aesthetic and recreational values of the area will be lessened' by the challenged

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activity." Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). In that ca.se,
multiple environmental organizations brought suit under the citizen suit provision of the Clean
Water Act for injunctive relief and civil penalties. Id. at 176-77. The plaintiffs alleged the
defendant was violating its NPDES permit at a hazardous waste incinerator located on the banks
of a river. Id. Several members of the plaintiff organizations filed declarations, which detailed
the injury they had or that they would suffer because of the suspected pollution of the river. Id. at
181-83. Some members lived within two miles of the incinerator, one member lived 20 miles
away, and others made no indication of where they lived but opined on their recreational use of
the river. Id. In fact, one affiant claimed simply that he canoed 40-some miles downstream of the
incinerator. Id. at 183. The Supreme Court held that these members had shown standing by
demonstrating injuries to their aesthetic and recreational interests; indeed, they were people who
"use the affected area and are persons 'for whom the aesthetic and recreational values of the area
will be lessened' by the challenged activity." Id. at 183 (quoting Sierra Club, 405 U.S. at 735).
Here, Plaintiffs, who are also associations, adequately establish standing through
affidavits submitted by Plaintiffs' members asserting livestock grazing, approved by the Forest
Service on the challenged allotments, adversely affects endangered suckers, thereby directly
affecting the affiants' "aesthetic or recreational interest in a particular ... animal." Ecological
Rights Found. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). As in Laidlaw, several

members of the plaintiff organizations have filed affidavits detailing the injury they have
suffered as a result of the allegedly unlawful grazing activity at issue in this case. For instance,
Joe Serres, a co-founder of Plaintiff Friends of Living Oregon Waters ("FLOW"), states he and
FLOW's 223 southern Oregon members routinely visit grazing allotments and monitor "the
environmental impact grazing has on public lands throughout Oregon, including the Fremont-

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Winema National Forest." Serres Deel.

ii 3 [ECF No.

26.]. They have been monitoring the lands

and waters since 2002. Mr. Serres states that FLOW's interests in the particular area at issue in
this case "serve [its] members' interest of protecting waterways from pollution," and that he, in
his individual capacity, visits the affected areas for aesthetic, spiritual, and recreational reasons.
Serres Deel. ii 5.
Likewise, George Wuerthner, a board member of Plaintiff Western Watersheds Project
("WWP"), states he "camp[s], fish[es], hunt[s], observe[s] wildlife, and hike[s] ... land on the
Fremont-Winema National Forest," Am. Wuerthner Deel. ii 4 [ECF No 27.], specifically the Lost
River watershed, where the allotments at issue in this case are located. He states he has visited
the Fremont-Winema National Forests more than a dozen times-and will continue to do so-witnessing firsthand the impacts grazing has had on "riparian and upland areas." Am. Wuerthner
Deel. ii 4.
Defendants and Intervenor-Defendants argue, however, that the affiants make broad
declarations about visiting "'parts of the Lost River watershed"' that are '"impacted by the
grazing allotments at issue,"' but have never visited specific allotments in question here. Defs.'
Cross-Mot. for Summ. J., at 19 (citing Serres Deel.

ii

11). Defendants point out that Plaintiffs

cannot satisfy standing requirements through "averments which state only that one of [the
organizations'] members uses unspecified portions of an immense tract of territory ... ."Lujan

v. Nat'! Wildlife Fed'n, 497 U.S. 871, 889 (1990).
In Summers v. Earth Island Inst., 555 U.S. 488, 494-95 (2009), The Supreme Court
determined that conservation organizations lacked standing where the only viable affidavit
submitted cited a past injury, unattached to any particular site in the national forests, and entirely
unrelated to the regulations being challenged. By contrast, in Ctr. for Biological Diversity v.

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Kempthorne, 588 F.3d 701, 707-08 (9th Cir. 2009), the Ninth Circuit found standing where

conservation organizations' members alleged they had viewed polar bears and walruses in the
"Beaufort Sea region, enjoy[ed] doing so, and h[ad] plans to return."
Plaintiffs' members' allegations, if true, are geographically specific enough to establish
standing. First, unlike the conservation organizations in Summers, who provided a single
affidavit unattached to any particular site in any national forest, Plaintiffs have provided multiple
affidavits from individual members stating they have, on multiple occasions, traveled to the
Fremont-Winema National Forests and specifically to the Lost River watershed, where the
challenged allotments at issue are found. Moreover, much like the affiants in Kempthorne, who
alleged they had viewed polar bears and walruses in the "Beaufort Sea region," the affiants in
this case specifically allege they have viewed suckers in the Lost River watershed region, that
they "enjoy doing so, and have plans to retum." 3 Kempthorne, 588 F.3d at 708. If the affiants'
declarations are true, their statements are not broad allegations; instead, they show their members
are people who "use the affected area and are persons 'for whom the aesthetic and recreational
values of the area will be lessened' by the challenged activity." Laidlaw, 528 U.S. at 183
(quoting Sierra Club, 405 U.S. at 735). Accordingly, Plaintiffs have established standing.
II.

Endangered Species Act

In their first claim, Plaintiffs challenge the 2014 re-consultation's conclusion that grazing
is not likely to adversely affect suckers' critical habitat. They argue FWS's LOC is arbitrary,

3

Defendants and Intervenor-Defendants argue that at least some affiants state no intent to return to the Lost
River watershed. In direct contravention of this argument, however, declarant Paul Ruprecht expressly states he will
return to the region "to observe conditions and look for suckers ... [in April 2017], and again in late summer or fall
of2017 .... "Sec. Ruprecht Deel.~ 28 [ECF No. 39.]. And, while declarant George Wuerthner states "the
allotments in the Lost River watershed [have caused him to visit] less frequently than [he] otherwise [would] like to
visit, he also states, "I would certainly want to visit the Lost River watershed and the allotments at issue here more
frequently if the Forest Service did not authorize livestock grazing in these areas." Am. Wuerthner Deel.~ 12.
Hence, based on these and other statements alluding to frequent visits to the Lost River watershed, the Court
believes the declarants' statements are sufficient to establish an intent to return.

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capricious, an abuse of discretion, and not in accordance with the ESA, thus violating the AP A.
Specifically, in moving for summary judgment, Plaintiffs argue "[t]he 2014 LOC, which
explicitly and exclusively relied on the 2014 BA, is arbitrary and capricious" because the "[re]consultation ignored significant data and other key factors when assessing the environmental
baseline and the direct and indirect effects of grazing on critical habitat ...." Pls.' Mot. for
Summ. J., at 13 [ECF No. 23.]. In short, Plaintiffs contend the agencies expressly ignored "the
combined effects of grazing and water impoundments"; instead, the agencies "compared the
effects of grazing to the degraded baseline caused by low water flows." Pls.' Mot. for Summ. J.,
at 13, 15 (emphasis in original).
Plaintiffs point to the Forest Service's reliance on continued grazing's "minimal effect . .

. relative to the effect caused by the natural conditions," P 7211 (emphasis added), to find no
significant threat to the species. As Plaintiffs point out, 50 C.F.R. § 402.02 requires the Forest
Service to consider "direct and indirect effects of an action on the species or critical habitat,

together with the effects of other activities that are interrelated or interdependent with that
action.... " (emphasis added).
Moreover, along with an argument that the BA and LOC ignore conflicting monitoring
data, Plaintiffs also take issue with the fact the Forest Service repeatedly justified their decision
that grazing is not likely to adversely affect suckers or their critical habitat by citing to the
presence of suckers in areas grazed by cattle. See, e.g., P 7218 ("The fact that suckers are present
when the [Primary Constituent Elements] are present is evidence that livestock grazing is not
substantially impacting [shortnose sucker] critical habitat in these pastures"). Plaintiffs direct the
Court to the Ninth Circuit's decision in Wild Fish Conservancy v. Salazar, 628 F.3d 513, 527
(9th Cir. 2010), where the court stated that the mere fact that a local population of threatened or

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endangered species has survived over time does not, alone, "provide any information about how
much longer it can hold on." Thus, Plaintiffs argue, the LOC, which adopted these findings in the
EA, is arbitrary and capricious.
In their cross-motions for summary judgment, Defendants and Intervenor-Defendants
make two arguments in response. First, they contend Plaintiffs' ESA claim is moot because the
2014 LOC covered only the 2014, 2015, and 2016 grazing seasons, and the Forest Service must
complete a new ESA consultation prior to any livestock grazing in 2017. As such, "[n]o grazing
actions that may affect suckers or their critical habitat will occur in 2017 until a new ESA
consultation is complete." Defs.' Cross-Mot. for Summ. J., at 20-21. Second, they argue FWS's
LOC was rational and supported by the administrative record.

A. Mootness
A federal court lacks jurisdiction to decide a moot claim. Church of Scientology v. United
States, 506 U.S. 9, 12 (1992). "A claim is moot if it has lost its character as a present, live
controversy." Am. Rivers v. Nat'! Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)
(internal citation omitted). "A case or controversy must exist at all stages ofreview.... " Wolfson
v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010). However, "the mere cessation of illegal
activity in response to pending litigation does not moot a case, unless the party alleging mootness
can show that the 'allegedly wrongful behavior could not be reasonably expected to recur."'
Rosemere Neighborhood Ass 'n v. US Envtl. Prot. Agency, 581 F .3d 1169, 1173 (9th Cir. 2009)
(quoting Laidlaw, 528 U.S. at 189). Rather, "a case[] become[s] moot after it is filed, 'when ...
the parties lack a legally cognizable interest in the outcome"' or the issue is no longer "live."
Wolfson, 616 F.3d at 1053 (quoting Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003)). An issue
is no longer live if "there is no longer a possibility that a[] [plaintiff] can obtain relief for his

Page 16 - ORDER

claim... ."Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999). The party
asserting mootness bears a heavy burden to show "that there is no effective relief that the court
can provide." Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (citing S. Or. Barter Fair
v. Jackson Co., 372 F.3d 1128, 1134 (9th Cir. 2004)).

Plaintiffs' ESA claim is moot because the 2014 LOC covered only the 2014, 2015, and
2016 grazing seasons; thus, the Forest Service must complete a new ESA consultation prior to
any livestock grazing in 2017. In fact, by law, the Forest Service must complete a new ESA
consultation prior to issuing grazing permits. Section 7(a)(2) of the ESA requires every federal
agency to "insure that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence" of any species listed as endangered or threatened.
16 U.S.C. § 1536(a)(2). In addition, every agency must insure its actions do not result in the
destruction of any species' critical habitat. Id. The term "action" includes "all activities or
programs of any kind authorized, funded, or carried out, in whole or in part, by Federal
agencies," which includes the granting of grazing permits. 50 C.F.R. § 402.02.
As discussed, grazing permits authorize livestock use on federal lands and set limits on
the allowable timing and amount of that use. Sabo, 854 F. Supp. 2d at 902. The Forest Service
generally issues permits for ten-year periods, id., and, indeed, here, the Forest Service expressly
states that it follows a "ten-year cycle for re-initiation of consultation.... " P 7196. Accordingly,
the Forest Service must re-initiate ESA consultation every ten years, upon the issuing of new
grazing permits. See 50 C.F.R. § 402.16 (stating that there is an ongoing duty of consultation and
setting forth the circumstances under which consultation must be re-initiated).
In 2007, the Forest Service initiated an ESA consultation with the Fish and Wildlife
Service ("FWS") to assess the impacts of authorized grazing on suckers and their critical habitat,

Page 17 - ORDER

and FWS found grazing would likely adversely modify or destroy suckers' critical habitat in
certain areas "because it [would] likely incrementally reduce[] the amount of water of sufficient
quantity and suitable quality; degrade[] physical habitat for spawning, feeding, rearing, and
travel corridors; and adversely impact the biological environment. ... " FWS 2310-11. FWS's
finding was nonbinding, however, due to the fact that FWS had not yet finalized its designation
of sucker critical habitat; thus, the assessment was merely advisory. In December 2012, FWS
finalized the boundaries of the suckers' critical habitat; the finalized habitat differed substantially
from the habitat originally proposed by FWS. Consequently, in 2014, the Forest Service reconsulted FWS, and pursuant to the ESA's requirements, it prepared a BA, which evaluated
grazing's potential effects on the newly designated critical habitat. FWS concurred with the
Forest Service's analysis in a LOC.
The Forest Service's 2014 BA and ensuing LOC were part of a re-consultation of the
2007 ESA consultation and only provided ESA coverage for the 2014 through the 2016 grazing
season. The Forest Service requested "re-consultation rather than re-initiation [] due to the
dramatic difference in the number of acres of proposed critical habitat from that that was actually
designated critical habitat . . . . " P 7196. In merely re-consulting rather than re-initiating
consultation, however, the Forest Service continued to follow the "ten-year cycle for re-initiation
of consultation...." P 7196. The ten-year period has come and passed. Thus, as the Forest
Service stated, the LOC has expired and it "w[ill] re-initiate consultation with the [FWS] for both
[Lost River suckers] and [shortnose suckers] and their critical habitat" before allowing for
grazing in 2017, as is required by Section 7(a)(2) of the ESA. P 7196; see also Brillenz Deel
(stating grazing will not occur on the challenged allotments "until there is a new ESA
determination with regard to the two ESA-listed sucker species"). Hence, the FWS's LOC has

Page 18 - ORDER

expired and cannot, by law, control future grazing. 4 Because it will not control future grazing, no
impacts to the suckers will occur based on the challenged LOC, and as such, no live controversy
remains.
Indeed, in Or. Nat. Desert Ass 'n et al. v. US. Forest Serv. et al., Civ. No. 04-3096-PA,
2007 WL 1072112, at *1 (D. Or. April 3, 2007), this Court had occasion to address this very
issue. There, the plaintiffs claimed the defendants' authorization of grazing in the FremontWinema National Forests violated the ESA. Id. at *3. The plaintiffs argued, among other things,
that FWS's BiOps failed to properly incorporate Inland Native Fish Strategy standards, rendering
the Bi Ops arbitrary and capricious and in violation of the AP A. Id. The two Bi Ops had already
expired, however, and "no livestock grazing actions that may affect the listed suckers or bull
trout w[ould] occur ... until [a new] consultation [was] complete[ d]." Id. at * 1 (internal citations
and quotations omitted). As such, the defendants argued, the plaintiffs' ESA claims were moot.
Id. at *4. In holding the claims moot, this Court noted that the Forest Service could not allow for

additional grazing until the new ESA consultation had been completed. Id. at *4-*5. Because a
new consultation had to take place before grazing occurred, the challenged BiOps had expired
and could not possibly affect future grazing, rendering the plaintiffs' ESA claims, which were
based on the expired BiOps, moot. Id. at *4-*5.
Here, much like Natural Desert, Plaintiffs challenge FWS's 2014 LOC's conclusion that
grazing is not likely to adversely affect suckers' critical habitat. As in Natural Desert, however,
where the challenged BiOps had already expired, the challenged LOC has already expired, and
the Forest Service and FWS must complete a new ESA consultation prior to any livestock
4

Plaintiffs state Defendants have not provided adequate assurance "they will actually complete a new
consultation before the next grazing season .... " Pls.' Reply in Supp. oflts Mot. for Summ. J., at 13 [ECF No. 38.].
If the Forest Service authorizes grazing without first completing a new ESA consultation, it will be in direct
violation of the ESA, 16 U.S.C. § 1536(a)(2), and Plaintiffs would be entitled to come to court and seek declaratory
and injunctive relief ensuring compliance.

Page 19-0RDER

grazing in 201 7. Because a new consultation has to take place before grazing can occur, the
challenged LOC cannot possibly affect future grazing, rendering Plaintiffs' ESA claim, which is
based on the expired LOC, moot.
Plaintiffs argue, however, that the Court can issue declaratory relief stating that the 2014
LOC violated the law. This, Plaintiffs contend, would ensure the Forest Service and FWS do not
continue to fail to meet their obligations under the ESA. In support of this argument, Plaintiffs
cite to Johanns, 450 F.3d 455. In that case, the plaintiff argued the Forest Service failed to reinitiate consultation on the impact of grazing on national forest land. Id. at 457. The plaintiff
contended the Forest Service was obligated to re-consult due to its failure to comply with certain
criteria it had agreed upon "governing the monitoring of grazing's impact on endangered and
threatened species living in" the affected area. Id. Indeed, the Forest Service and FWS and
previously entered into an agreement establishing criteria that would govern grazing in the
affected area. Id. at 459. The agencies' agreement stated that, "for the life of each ten-year
grazing permit, 'yearly conformation throughout the lifetime of the permit must take place to
ensure the criteria ... continue to be met."' Id.
The plaintiff commenced suit, alleging the Forest Service violated the ESA by failing to
re-consult with FWS after failing to meet the required criteria for several years. Id. Specifically,
the plaintiff argued the Forest Service failed to adequately monitor utilization levels on various
allotments every year, as required by the agreed-upon criteria. Id. After the district court ruled in
favor of the Forest Service and the plaintiff appealed the decision with respect to one allotment,
the Forest Service re-initiated consultation on the challenged allotment. Id. at 460-61.
Accordingly, the Forest Service contended the appeal was moot "because the agency re-initiated

Page 20 - ORDER

consultation ... [and] as a result of this recent re-consultation, there is no effective relief that the
district court can grant." Id.
The Ninth Circuit made two critical observations in finding the case was not moot. Id. at
462. First, it noted that the case involved a "continuing practice." Id. More precisely, the grazing
permit was for a period of ten years and continued to obligate the Forest Service to "obtain from
FWS annual concurrence that the guidance criteria governing the 'not likely to adversely affect'
finding ha[d] been met." Id. Second, the court found, "the Forest Service's practice of not
complying with the monitoring requirements [was] likely to persist despite the recent reconsultation" because the Forest Service had argued throughout litigation that it was not required
to meet the monitoring requirements in the agreed-upon criteria and had asserted the
requirements were '"unreasonable.'" Id. Hence, the court felt a declaratory judgment stating the
Forest Service's actions violated the ESA would help ensure against similar violations because it
would govern "the Forest Service's actions for the remainder of the allotment's permit term .... "

Id. Thus, the Ninth Circuit held that the Forest Service failed to show the case was moot. Id. at
463.
Here, Plaintiffs argue the 2014 LOC is "arbitrary, capricious, an abuse of discretion, and
not in accordance with the ESA. ..." Compl.

~

141. Plaintiffs thus ask the Court to declare the

2014 LOC failed to adequately comply with the ESA, vacate the 2014 LOC, and order the Forest
Service to re-initiate consultation with FWS. The 2014 LOC has expired, however, and the 2014
LOC is no longer operative. Because of this, the Forest Service must re-initiate consultation with
FWS before future grazing can take place on any of the challenged allotments, precisely the
relief Plaintiffs seek.

Page 21 - ORDER

As in Johanns, Plaintiffs do also seek a declaration that the 2014 LOC violated the
ESA-but, here, such a declaration would be superfluous. In Johanns, the Forest Service had a
continuing obligation to adhere to annual monitoring requirements and to obtain annual
concurrence of compliance from FWS; thus, a declaratory judgment stating the Forest Service's
failure to take such actions violated the ESA made sense. That is, because of the continuing
obligation, a declaratory judgment stating the Forest Service had an obligation to adhere to
annual monitoring requirements and to obtain annual concurrence of compliance from FWS
would ensure "the Forest Service's actions for the remainder of the allotment's permit term"
would be in compliance with its permit and, by extension, the law. Johanns, 450 F.3d at 462-63.
By contrast, here, as discussed, the Forest Service is precluded from continuing to adhere
to the 2014 LOC; the Forest Service and FWS must engage in an entirely new consultation
process to determine if grazing would adversely affect suckers or their critical habitat. Thus, any
statement as to the now-expired and unenforceable LOC's legality would be meaningless. And
while it is certainly possible that the new consultation will fail to "'remedy the alleged failures"'
in the prior consultation, Pls.' Reply in Supp. of Their Mot. for Summ. J., at 12 (quoting
Conservation Congress v. Finley, 774 F.3d 611, 618-19 (9th Cir. 2014)), there is, as of now, no
new consultation, and therefore no way of knowing whether the alleged failures will be
remedied. The fact that the agencies might fail to remedy alleged failures in a future consultation
"does not establish a basis for continuing jurisdiction." Nw. Envtl. Def Ctr. v. Allen, Civ. Nos.
05-1279-AA, 06-1190-AA, 06-1584-AA, 2007 WL 1746333, at *2 (D. Or. Jun. 13, 2007). Once
a new consultation is complete, the Plaintiffs are free to "file a new complaint if the need arises,"
id. at *3, but until such time, the Court lacks jurisdiction to hear Plaintiffs' ESA claim. Such was

the ruling in Natural Desert, where the plaintiffs also argued for declaratory relief in order "to

Page 22-0RDER

'ensure that the new BiOp complie[d] with the law and d[id] so in a timely manner"' and to
"'clarify and settle' defendants' legal obligations." Or. Nat. Desert Ass 'n, 2007 WL 1072112, at
*5. The Court reaffirms its holding there that "such justifications are so vague as to make Article
Ill's 'case or controversy' requirement meaningless." 5 Id.

Plaintiffs' ESA claim is therefore

moot, and Summary judgment must be granted in Defendants' favor. 6

III.

National Forest Management Act

Plaintiffs contend the Forest Service violated NFMA when it issued its 2013, 2014, and
2015 AOis. They contend the Forest Service ignored its duty under NFMA to comply with the
Inland Native Fish Strategy ("INFISH") "by ignoring widespread evidence of riparian problems .
. . ." Pls.' Mot. for Summ. J., at 25. Plaintiffs point out that INFISH requires the Forest Service to
"'modify grazing practices ... that retard or prevent the attainment of [Riparian Management
Objectives ("RMOs")] or are likely to adversely affect inland fish' and to 'suspend grazing if
adjusting practices is not effective in meeting RMOs."' Pls.' Mot. for Summ. J., at 26 (quoting P
2850). They argue the Forest Service ignored data indicating riparian conditions on numerous
streams throughout the challenged allotments were and are below RMO attainment, "with
stagnant or worsening trends due to grazing." Pls.' Mot. for Summ. J., at 26. Thus, by failing to
adjust grazing in order to attain RMOs, the Forest Service failed to comply with INFISH and, by
extension, NFMA.
Defendants and Intervenor-Defendants assert Plaintiffs' argument is based on supposed
INFISH violations at individual streams within the challenged allotments, but "INFISH

5

In addition, it should be noted that this case is distinguishable from Oregon Wild v. US. Forest Serv., 193
F. Supp. 3d 1156 (D. Or. 2016). In that case, this Court found the plaintiffs' ESA claim was not moot because,
unlike here, the "challenged consultation [was] currently operative and [would] remain so through the upcoming
grazing season." Id. at 1165. Accordingly, Natural Desert is more similar, and the Court reaffrrms its holding in that
case.
6
Because the Court finds the claim is moot, it declines to address the substance of the claim-i. e., that
FWS's LOC is arbitrary, capricious, an abuse of discretion, and not in accordance with the ESA.

Page 23 - ORDER

consistency is not required allotment-by-allotment or stream-by-stream"; rather, "conclusions
related to consistency with INFISH are made at a watershed level," and Plaintiffs provide
nothing to suggest the Forest Service violated INFISH at a watershed level. Defs.' Reply in
Supp. of Their Cross-Mot. for Summ. J., at 36. In the alternative, Defendants and IntervenorDefendants argue "there is ample evidence in the administrative record that shows RMOs are
being attained.... " Intervenor-Defs.' Cross-Mot. for Summ. J., at 14 [ECF No. 35.].
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. US. Forest Serv., 697 F.3d 1010, 1014
(9th Cir. 2012) (citing 16 U.S. C. § 1604(g)(l)-(3)). Once a forest plan is adopted, all subsequent
agency actions must comply with it. 16 U.S.C. § 1604(i). The Forest Service's "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) (internal citations omitted).
It is undisputed that the forest plans for the Fremont-Winema Forests include an INFISH

aimed at achieving desired conditions for suckers, as well as all other inland native fish species.
P 5553. In Oregon Wild v. US. Forest Serv. ("Oregon Wild !"), a similar case, the plaintiffs
argued AOis violated NFMA by "contributing to violations of INFISH's water temperature
RMO .... " 193 F. Supp. 3d. at 1171. In finding that the Forest Service reasonably evaluated
INFISH-relevant data, this Court noted that the plaintiffs' claim failed for two overarching
reasons. Id. First, the plaintiffs failed "to demonstrate that permitted grazing [was] responsible
for noted exceedances"; and second, the plaintiffs' "narrow and rigid application of the RMOs
depart[ed] from the strategy's text." Id. As this Court stated, "INFISH contemplates that its

Page 24 - ORDER

objectives are 'targets' that will not be met instantaneously" and "[t]he attainment of RMOs is to
be assessed on a watershed level." Id Thus, due to "INFISH's flexible approach," and absent
any evidence tending to show the water temperatures the plaintiffs complained of constituted
'"landscape-scale' problems," not mitigated by other long-term effects, this Court determined
that the AOis did not violate INFISH's temperature RMO and, by extension, NFMA. Id
Here, Plaintiffs' NFMA claim fails for the same two reasons. First, Plaintiffs fail to
demonstrate that grazing on the challenged allotments is the culprit for any failure to attain
INFISH RMOs. Plaintiffs state "streams within these geographically widespread allotments have
not attained multiple RM Os and are not recovering at a near-natural rate," Pls.' Mot. for Summ.
J., at 26, but even if this were to be considered true, they fail to provide evidence countering the
Forest Service's 2002 assessment not only that "from the 1960s to present, conditions on some of
these riparian areas have been dramatically improved even with the continued grazing," but also
that "[i]t is important to note that trends in the sites with little or no grazing are not significantly
different th[ an] those in grazed sites." FWS 7035. This would tend to indicate grazing is not the
reason for any failure to attain RMOs in streams found on the challenged allotments.
Plaintiffs do point to evidence that certain creeks, or portions of creeks or allotments,
have experienced degraded conditions due to grazing, see Pls.' Mot. for Summ. J., at 27-28
(quoting P 5398), but there is nothing to indicate that grazing is contributing to any failure to
attain INFISH RMOs at a watershed level and thus nothing to challenge the Forest Service's
assessment that overall trends on grazing and non-grazing sites are largely the same; indeed, the
Forest Service's 2002 assessment was later reaffirmed by the Forest Service 2009 EA, which
found that "grazing effectiveness monitoring shows that stream channel conditions are trending
upward under the current grazing program []." P 5597. Given Plaintiffs lack of watershed-level

Page 25 - ORDER

evidence challenging this assessment, and because "substantial deference" is given to the Forest
Service in interpreting the requirements of its own forest plan, the Court does not believe its
assessment and decision to issue the challenged AO Is was arbitrary and capricious.
Furthermore, Plaintiffs fail to provide evidence tending to show any failure to attain
RMOs is a "landscape-scale" problem. Plaintiffs argue that failure to attain 80 percent bank
stability in multiple creeks, including Barnes Valley Creek, North Fork Willow Creek, Horse
Canyon Creek, and Wildhorse Creek, demonstrates a landscape-scale problem. 7 Plaintiffs also
point to water-temperature exceedances at multiple creeks as demonstrative of a landscape-scale
problem.
Plaintiffs correctly point out the Forest Service's failure to attain the specific, numerical
goals set out in the RMOs, but like the plaintiffs in Oregon Wild I, this "narrow and rigid
application of the RMOs" departs from INFISH's text. As stated in Oregon Wild I, INFISH's
approach is a flexible one; its objectives are targets that will not be met instantaneously but over
time. When viewed through this lens, then, it is clear that the Forest Service did not ignore its
duty under NFMA to comply with INFISH. First, multiple creeks, including Barnes Valley
Creek, North Fork Willow Creek, Horse Canyon Creek, and Wildhorse Creek, have indeed failed
to attain 80 percent bank stability, but looking only at the 80 percent figure fails to ignore the
Forest Service's 2009 assessment that:
Stream channels in all of the allotments have proven to be stable and
capable of withstanding high streamflow events. Large storm events [] and
the resulting flood flows did not cause channel degradation or noticeable
changes in channel morphology within the allotments. Stream channels
within the allotments are in good condition and are trending upward. These
conditions were achieved under the current management strategy, which in
most cases has been in place for over 10 years. The trend toward all streams
in the allotments maintaining and/or reaching desired future condition is

7

INFISH's goal is to achieve bank stability of greater than 80 percent. P 2845.

Page 26 - ORDER

expected to continue for the next 10 years with the proposed management
strategy, as it is relatively unchanged from the recent past.
P 5597. In addition, the Forest Service stated that while various factors influence a stream
water's temperature, "stream channels and their associated riparian areas on the Forest are on an
improving trend .... All of the sites are either stable or are improving"; therefore, "the current
grazing strategies appear to be maintaining or improving channel morphology which result in
stream temperatures that are appropriate for Lost River and shortnose suckers." P 5654. Hence, it
appears the Forest Service is on a trajectory to reach INFISH's targets, and while Plaintiffs make
much of the fact that this assessment was conducted in 2009, prior to the 2013-15 AOis that are
being challenged, the 2009 assessment was intended to "provide guidance for the [] grazing
allotments in the project area over the next 20 years." P 5536. Plaintiffs need more than creekspecific observations indicating this assessment has changed to successfully rebut the substantial
deference given to the Forest Service's assessment of its own data. Finally, many of the creek
assessments Plaintiffs point to as evidence of a failure to attain RMOs actually show improving
or stable trends. For instance, Plaintiffs state that failure to attain 80 percent bank stability in
Wildhorse Creek, Horse Canyon Creek, North Fork Willow Creek, and Barnes Valley Creek has
been a chronic problem, but data show Wildhorse Creek's bank stability improved from 35
percent to 73 percent between 2002 and 2008. See P 6891. Meanwhile, Horse Canyon Creek's
bank stability was stable at 79 percent between 2002 and 2008, an improvement from 67 percent
bank stability in 1997. See P 6899. North Fork Willow Creek's bank stability did decrease from a
high of 78 percent in 1997 to 67 percent in 1998, though bank stability appears to have
stabilized, remaining at 52 percent in both 2002 and 2008; as the Forest Service stated, "the
stream was functioning at risk in an upward trend." P 6893. And while Barnes Valley Creek's
bank stability decreased from 46 percent in 1997 to 25 percent in 2002, it improved to 39 percent

Page 27 - ORDER

in 2008. See P 6897. In fact, all four of these creeks' overall geomorphology and vegetation
trends were stable or functioning at risk but at an upward trend. See P 6891, 6893, 6897, 6899. 8
Accordingly, Plaintiffs' evidence is insufficient to demonstrate the AOis violated INFISH and,
by extension, NFMA.
Plaintiffs next argue the 2009 EA, which stated the trend was toward all streams
maintaining or reaching desired future conditions, is inapplicable because it fails to take into
account subsequent problems with unauthorized grazing on challenged allotments and
noncompliance with allotment standards, thus preventing anticipated RMO achievement. The
evidence indicates, however, that such exceedances are not widespread and that the Forest
Service has addressed isolated incidents of overgrazing. Indeed, the Forest Service's end-of-year
monitoring of the challenged allotments following the 2012, 2013, and 2014 grazing seasons
show either general compliance or a detailed description as to why permit holders were out of
compliance and a concerted effort by the Forest Service to work with permit holders to achieve
compliance. See, e.g., HF 301-02, 326-27, 334-35; PL 463-66, 1118-19, 1142-43; WH 634-36,
672-73, 696-99; YV 1002-1003, 1037-38. On allotments where over-utilization was a persistent
problem, the Forest Service either suspended grazing the following season or seasons, terminated
the permit and granted a permit to a separate permittee, or developed monitoring schedules to
achieve compliance. See, e.g., YB 279-280, 220-221, 222-237; PL 1164.
Consequently, it seems INFISH's targets, while not being met instantaneously, will be
achieved over time, as anticipated by the 2009 assessment. This is what is contemplated by
INFISH's flexible approach; thus, the Court cannot say that the challenged AOis violated
INFISH's RMOs and, by extension, NFMA. Instead, it appears the Forest Service reasonably
8

Plaintiffs also fail to acknowledge data indicating other streams in the area have achieved, exceeded, or are
near the desired bank stability percentages. See, e.g., P 6875, 6887, 6895, 6899, 6902, 6904, 6906. Likewise, many
streams have stabilizing or improving temperatures. See, e.g., P 6875, 6877, 6879, 6881, 6887, 6893, 6895, 6897.

Page 28 - ORDER

gathered and evaluated data relevant to INFISH, and issued the challenged AOis on that basis.
Its decision to authorize grazing was therefore neither arbitrary nor capricious.

IV.

National Environmental Policy Act
Plaintiffs argue the Forest Service violated NEPA in issuing its 2009 EA, an assessment

that found grazing would have no significant impact on the area assessed, clearing the way for
continued grazing on the challenged allotments. Plaintiffs contend the Forest Service's EA did
not "assess the combined effects of grazing and water storage activities on shortnose suckers ...
, in violation of NEPA." Pls.' Mot. for Summ. J ., at. 29. Plaintiffs contend that failure to consider
the combined, or cumulative, effects of a proposed action renders an EA arbitrary and capricious.
In response, Defendants and Intervenor-Defendants point out that Plaintiffs, who
participated in the public NEPA process by providing comments on the Forest Service's analysis,
failed to administratively appeal the Fore st Service's finding of no significant impact, and failed
to raise their "cumulative effects" argument during the public NEPA process. By failing to use
these available avenues to challenge the Forest Service's assessment prior to filing suit,
Defendants and Intervenor-Defendants argue, Plaintiffs are precluded from challenging the
Fore st Service's decision under NEPA. Defendants and Intervenor-Defendants argue in the
alternative that the Forest Service did assess the combined effects of livestock grazing and water
storage and diversion equipment on shortnose suckers, and, accordingly, their 2009 EA was not
arbitrary and capricious under NEPA.

A. Failure to exhaust administrative remedies
"The NEPA process is intended to help public officials make decisions that are based on
understanding of environmental. consequences, and take actions that protect, restore, and enhance
the environment." 40 C.F.R. § 1500.l(c). Pursuant to these goals, NEPA requires federal

Page 29 - ORDER

agencies to prepare an environmental impact statement ("EIS") for all "major Federal actions
significantly affecting the quality of the human environment. ... " 42 U.S.C. § 4332(C). An
agency may first prepare an EA, however, to determine whether it must prepare an EIS or
whether it may issue a Finding of No Significant Impact ("FONSI"). 40 C.F.R. § 1508.9(a)(l). If
the agency issues a FONSI, then it may proceed with the proposed action. Klamath-Siskiyou
Wild/ands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). An agency's
decision to forego preparing "an EIS can be set aside only upon a showing that it was 'arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law."' Dep 't of Transp. v.
Public Citizen, 541 U.S. 752, 763 (2004) (quoting 5 U.S.C. § 706(2)(A)).
In order to retain the right to challenge an agency's compliance with NEPA, the APA
requires the challenging party to exhaust administrative remedies prior to bringing suit in federal
court. 5 U.S.C. § 704; Great Basin Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006) ("This
requirement [of administrative exhaustion] applies to claims under NEPA"). Challengers "have
exhausted their administrative appeals if the appeal, taken as a whole, provided sufficient notice
to the agency to afford it the opportunity to rectify the violations the plaintiffs alleged."' Great
Basin Watch, 456 F.3d at 965 (quoting Native Ecosystems Council v. Dombeck, 304 F.3d 886,
899 (9th Cir. 2002)). Requiring administrative exhaustion guards against premature claims and
helps ensure the agency is provided "'a chance to bring its expertise to bear to resolve a claim."'
Id. (quoting Dombeck, 304 F.3d at 900).
Plaintiffs do not dispute they failed to exhaust administrative remedies, but argue they
were not required to do so because "an administrative appeal of the [Forest Service's] EA would
not have stopped the challenged grazing, and therefore exhaustion is not required under [] Darby
v. Cisneros, 509 U.S. 137 (1993) .... " Pls.' Reply in Supp. of Their Mot. for Summ. J., at 27. In

Page 30 - ORDER

Darby, the Supreme Court assessed the question of when federal courts have the authority to
mandate that a plaintiff exhaust administrative remedies prior to seeking judicial review under
the APA. 509 U.S. at 138. The Court held that "an appeal to 'superior agency authority' is a
prerequisite to judicial review only when expressly required by statute or when an agency rule
requires appeal before review and the administrative action is made inoperative pending that
review." Id. at 154 (emphasis in original). In other words, under the second part of the test, if the
statute or agency rule requires appeal before judicial review, the statute or rule must also provide
that the administrative action ceases upon filing of an appeal. Gifford Pinchot Task Force v.

Perez, No. 03:13-cv-00810-HZ, 2014 WL 3019165, at *5 (D. Or. July 3, 2014).
In Conservation Congress v. US. Forest Serv., the plaintiff brought suit alleging the
Forest Service violated NEPA, NFMA, and the ESA by permitting a timber sale in northern
spotted owl critical habitat. No. 13-cv-01922-TLN-CMK, 2014 WL 6610884, at *1-*2 (E.D.
Cal. Nov. 19, 2014). The plaintiff did not appeal the project's approval. Id. at *l. Accordingly,
the defendants argued the plaintiffs claim was barred by its failure to exhaust administrative
remedies. Id. at *3. The court, however, determined that administrative exhaustion was not
required because, in approving the project, the Forest Service had used an Emergency Situation
Determination to set the project in motion, which modified the exhaustion requirement. Id. at *4.
In fact, the invocation of the Emergency Situation Determination allowed logging to take place
immediately, and any appeal would not have rendered the administrative action inoperative; thus,
the plaintiff was deprived of the opportunity to appeal under the second part of the Darby test.

Id. Consequently, the court found that the plaintiffs claims were not barred by its failure to
exhaust administrative remedies. Id. at *5.

Page 31 - ORDER

Here, by contrast, an administrative appeal would have stayed implementation of the
Forest Service's decision. Absent an emergency situation like that that existed in Conservation
Congress, the Forest Service Decisionmaking and Appeals Reform Act "provides for a right of

appeal of a Forest Service decision, and for an automatic stay of Forest Service action during
appeal." Id. at *4 (citing Pub. L. No. 102-381, Title III§ 322, 106 Stat. 1419 (1992)).
Plaintiffs challenge the Fore st Service's NEPA decision. In doing so, Plaintiffs had the
right to appeal under the Forest Service Decisionmaking and Appeals Reform Act, and no
emergency situation existed; in fact, in this case, the Forest Service's "Decision Notice"
expressly notified interested parties of their right to appeal and that an appeal would stay
implantation of the decision: "This decision is subject to appeal pursuant to 36 CFR 215 .... If
an appeal is filed, implementation will not occur prior to 15 days following the date of appeal
disposition." P 5689.
Plaintiffs argue, however, that the Forest Service's stay prov1s1on was entirely
meaningless because grazing would still have continued under the terms and conditions that
existed prior to the 2009 EA. They point to the Ninth Circuit' decision in Idaho Watersheds
Project v. Hahn 307 F.3d 815, 826 (9th Cir. 2002) for the proposition that when grazing would

continue under a stay provision, "an aggrieved party shall be allowed to proceed to federal court
without being required to endure further administrative proceedings." In Hahn, significant
changes were made to grazing regulations, including a requirement that all ranchers grazing in
the affected area obtain a grazing permit and undergo annual reauthorization. Id. at 822. In an
effort to comply with these new regulations, the United States Bureau of Land Management
("BLM") issued grazing permits covering the disputed area. Id. The BLM also sought to comply
with NEPA by stating on the permits that the permits complied with a sixteen-year-old EIS. Id.

Page 32 - ORDER

The plaintiffs, environmental groups, sued, arguing the BLM violated NEPA because it failed to
adequately prepare the required environmental documentation before issuing the grazing permits.
Id. The BLM contended that referencing back to the sixteen-year-old EIS was adequate, but the

district court disagreed, determining "new and significant environmental impacts of cattle
grazing had arisen in [the disputed area] since the [] EIS [was] prepared," thus requiring
supplementation. Id.
On appeal, the BLM argued. the court lacked jurisdiction because the plaintiffs "failed to
exhaust administrative remedies before filing suit. .. ."Id. at 824. In finding for the plaintiffs, the
Ninth Circuit noted that, while it was undisputed that the plaintiffs did not exhaust administrative
remedies, the BLM's administrative appeal regulations were ineffective to render the challenged
decision inoperative pending appeal. Id. at 825-28. First, the court noted that under the
regulations, the aggrieved party was required to file both an appeal and a petition for a stay of the
decision, and if the petition were not granted, "then the aggrieved party may seek recourse in
federal court without further pursuing available administrative remedies." Id. at 825. But even if
the petition were granted, the court found, grazing would continue either under the previous
year's grazing level, or if no grazing occurred the prior year, the challenged decision would
remain in full force and grazing would continue "even while the stay is in effect[.]" Id. at 826.
As to those cases where there was no authorized grazing the prior year, the court
determined that the BLM's stay provision was "entirely meaningless" because the "grazing
would still continue under the terms and conditions of the permit that was being appealed until
the appeal was finally decided." Id. Because it was meaningless, if no grazing occurred the prior
year, the court held that "an aggrieved party shall be allowed to proceed to federal court without
being required to endure further administrative proceedings." Id. If grazing did occur the prior

Page 33 - ORDER

year, however, the court found it to be a fact-based inquiry. Id. at 827. Because the record was
unclear as to whether grazing legally occurred the prior year, the court analyzed it under both
scenarios. Id. at 826-27.
In finding that the plaintiffs were not required to exhaust administrative remedies even if
grazing occurred the prior year, the Ninth Circuit focused on two key facts. Id. at 827. First, it
noted that "[e]ven if a stay were to be granted, grazing could continue for many years according
to the prior year's grazing practices, which harm riparian habitat because they are based on badly
out of date management techniques." Id. Indeed, the prior grazing practices were found by the
BLM to be "responsible for the continued destruction of riparian habitat." Id. Second, the court
noted that the BLM's regulations established "no time frames or deadlines for grazing permit
appeals to be concluded and administrative appeals can languish for years without decision." Id.
Accordingly, a stay would have "the effect of a multi-year renewal of grazing permits without
environmental review and without imposing any measures to protect the environment while
appeals are pending." Id. As such, the Ninth Circuit held that, under the facts of the case, the
plaintiffs did not have to exhaust administrative appeals because any appeal and subsequent stay
would not render the administrative action inoperative, as required by Darby. Id. At 827-28.
Here, the Forest Service's administrative appeal regulations were effective to render the
challenged decision inoperative pending appeal; therefore, in contrast to Hahn, Plaintiffs were
required to exhaust administrative remedies. Plaintiffs contend that even if they had appealed the
Forest Service's EA, their appeal would not have stopped the challenged grazing; rather, the
Forest Service would have been free, as the BLM was in Hahn, to authorize grazing under the
previous year's grazing levels while the appeal process played out. Defendants do not appear to

Page 34-0RDER

dispute this; instead, they point out that Plaintiffs challenge the 2009 EA and the 2009 EA would
have been stayed pending resolution of the appeal.
Defendants are correct. Plaintiffs claim is that the Forest Service's 2009 EA violated
NEPA by failing to adequately conduct a cumulative effects analysis. If Plaintiffs had
administratively appealed the Forest Service's decision, implementation of the challenged 2009
EA would have been stayed until fifteen days after disposition of the appeal. Pub. L. No. 102381, Title III § 322, 106 Stat. 1374 (1992). By contrast, in Hahn, prior grazing practices were
found to be responsible for the continued destruction of riparian habitat that concerned the
plaintiffs; thus, any stay granted during the appeals process would have contributed to the very
problem the plaintiffs sought remedied by allowing grazing to continue pursuant to "badly out of
date management techniques." Hahn, 307 F.3d at 827.
Moreover, unlike the appeals process in Hahn, which established no time frames or
deadlines for conclusion of the appeals process, the Forest Service's regulations expressly state
that the disposition of appeals must "be completed not later than 30 days after the closing date
for filing of an appeal, provided that the Forest Service may extend the closing date by an
additional 15 days." Pub. L. No. 102-381, Title III§ 322, 106 Stat. 1374 (1992). Hence, there is
no concern here, like there was in Hahn, that the granting of a stay will institute "a multi-year
renewal of grazing permits without environmental review.... " Hahn, 307 F.3d at 827.
Accordingly, the facts that prompted the Ninth Circuit to hold that the plaintiffs in Hahn
were not required to exhaust administrative remedies do not exist in this case. To the contrary,
had Plaintiffs appealed, the Forest Service's administrative appeal regulations would have
rendered the challenged EA inoperative pending disposition of the appeal. Thus, because
Plaintiffs had the right to appeal and their appeal would have stayed the Forest Service's action

Page 35 - ORDER

pending the appeal's resolution, Plaintiffs were required to exhaust all administrative appeal
procedures prior to filing this present claim. Plaintiffs' failure to do so deprives them of the right
to challenge the Forest Service's NEPA decision in federal court. See Darby, 509 U.S. at 154
(stating that the exhaustion requirement applies when a rule requires appeal and the
administrative action is made inoperative pending review). Accordingly, Defendants' and
Intervenor-Defendants' motion for summary judgment is granted, and Plaintiffs' is denied. 9
V.

Forest Service's duty to supplement 2009 Environmental Assessment

Plaintiffs contend new information has come to light requiring the Forest Service to
supplement its 2009 EA under NEPA. Defendants and Intervenor-Defendants argue Plaintiffs'
claim fails for two separate reasons. First, they argue Plaintiffs never brought their supplemental
NEPA concerns to the Forest Service, and thus their claim fails on threshold grounds, as they did
not pursue administrative remedies prior to filing suit. Second, they contend that even if
Plaintiffs' claim was procedurally correct, Plaintiffs' supplemental NEPA claim nonetheless fails
on its merits because no significant new circumstances or information existed that would have
required supplemental analysis.
A. Failure to bring supplemental NEPA concerns to the Forest Service
It is uncontested that Plaintiffs failed to notify the Forest Service of their concerns and to

request the Forest Service conduct a supplemental NEPA analysis. Plaintiffs argue, however, that
no such notice is necessary.
After an agency has prepared an EA and issued a FONSI, an agency must supplement its
analysis if there are "significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(l)(ii); Idaho
9

Because the Court finds Plaintiffs failed to exhaust administrative remedies, it declines to address the
argument that Plaintiffs failed to raise their cumulative effects argument during the public NEPA process, as well as
the argument that that the Forest Service's 2009 EA was neither arbitrary nor capricious.

Page 36 - ORDER

Sporting Congress v. Thomas, 137 F.3d 1146, 1152 (9th Cir. 1998) (holding that an EA must be

supplemented in the same manner as an EIS). "There is an obligation to supplement an EA if
there remains major federal action to occur and the new information shows that the remaining
action will affect the quality of the human environment in a significant manner or to a significant
extent not already considered." Or. Nat. Res. Council Action v. US. Forest Serv., 445 F. Supp.
2d. 1211, 1219 (D. Or. 2006) (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989)).
"Compliance with NEPA is a primary duty of every federal agency; fulfillment of this
vital responsibility should not depend on the vigilance and limited resources of environmental
plaintiffs." City of Davis v. Coleman, 521 F .2d 661, 671 (9th Cir. 197 5). The agency and not the
plaintiff "has a continuing duty to gather and evaluate new information relevant to the
environmental impact of its actions," and this is so even after it has released an EIS or EA. Warm
Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023 (9th Cir. 1980). Thus, to the extent

there are significant new circumstances or information that have developed since the Fore st
Service released its EA that require supplementation of the EA, the Forest Service, not Plaintiffs,
had a duty to gather and evaluate the relevant information.
Moreover, "[a]n action to compel an agency to prepare a [supplemental] EIS ... is not a
challenge to a final agency decision," requiring exhaustion of administration remedies, "but
rather an action arising under 5 U.S.C. § 706(1), to 'compel agency action unlawfully withheld
or unreasonably delayed."' Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.
2000) (quoting Or. Nat. Res. Council Action v. US. Forest Serv., 59 F. Supp. 2d 1085, 1095
(W.D. Wash. 1999)). Hence, in seeking to compel the Forest Service to conduct supplemental
analysis, Plaintiffs were not required to bring their concerns to the Forest Service prior to filing
suit, or to first exhaust any sort of administrative remedies that may have been available to

Page 37 - ORDER

them. 10 Because Plaintiffs had no duty to make the Forest Service aware of their concerns prior
to filing suit, their claim is procedurally valid, and the Court must reach the merits.
B. Merits of Plaintiffs' claim that the Forest Service must supplement its NEPA
analysis

Plaintiffs outline four main arguments in contending new information has come to light
requiring the Forest Service to supplement its 2009 NEPA analysis. First, that in 2012, FWS
designated critical habitat for suckers in Gerber and Clear Lake Reservoirs, as well as many of
their tributaries. Because suckers' critical habitat was not designated at the time the Forest
Service conducted its 2009 EA, supplementation is required. Second, a 2013 FWS reports
concluded suckers face a high "threat of extinction and a low recovery potential," FWS 6931 see
also FWS 6911 (discussing the threat of extinction faced by Lost River suckers), a new

determination that requires supplemental analysis. Third, the same 2013 FWS reports, as well as
a 2014 BA, noted the duel and interrelated threats of climate change and severe and prolonged
drought on suckers species; thus, supplemental analysis is necessary to consider these important
determinations, and this is especially true, Plaintiffs argue, because of the fact that the Upper
Klamath Basin experienced severe drought from 2012-15. Finally, Plaintiffs allege new
information has come to light indicating (1) riparian conditions are not improving as anticipated
in the 2009 EA, (2) trespass grazing has been a recurring problem since 2009 in many
allotments, and (3) data show many streams are not meeting RMOs.
1. Designated habitat

Defendants and Intervenor-Defendants acknowledge that suckers' critical habitat was
designated in 2012, after completion of the Forest Service's 2009 EA; however, they point out

10

To the extent any district court decision suggests otherwise, as Defendants and Intervenor-Defendants
contend, it clearly diverges with Ninth Circuit precedent

Page 38 - ORDER

that the area designated is much less than was originally proposed and considered by the Forest
Service in its 2009 EA. Plaintiffs argue, however, that while the designated critical habitat may
be smaller in area, there is now designated critical habitat on challenged allotments not
previously assessed as such by the Forest Service; they point to four streams located on three
challenged allotments that were not designated critical habitat at the time of the 2009 EA. See
Pls.' Reply in Supp. of Their Mot. for Summ. J., at 34 (citing P 5586; FWS 7201-02). Plaintiffs
contend the Forest Service must supplement its 2009 analysis to include an assessment of
whether grazing possess a risk to this newly designated critical habitat.
As stated, NEPA requires an agency to supplement its analysis if there are "significant
new circumstances or information relevant to environmental concerns and bearing on the
proposed action or its impacts." 40 C.F.R. § 1502.9(c)(l)(ii). Here, FWS followed up its criticalhabitat designation with a five-year review of shortnose suckers, a five-year review of Lost River
suckers, and a revised Lost River sucker and shortnose sucker recovery plan. See FWS 69286929, 6883-6927, 6739-6882. 11 All three assessments concluded that "significant threats to []
sucker[s] remain," FWS 6956, 6911, but grazing was not one of the identified threats. And while
the revised recovery plan provided numerous recovery actions that if taken might help the fishes
recover, none of the proposed actions included grazing revisions in the Sprague and Clear Lake
watersheds-an area that encompasses the allotments challenged in this case. See FWS 6809-23.
Hence, the allegedly significant new information provided by FWS did not bear on grazing or its
impacts, obviating any need by the Forest Service to supplement its NEPA analysis on the effects
of grazing in the Clear Lake watershed.
11

In arguing new information has come to light warranting a supplemented NEPA analysis, Plaintiffs only
mention the five-year review of the shortnose sucker and the Lost River sucker and shortnose sucker recovery plan.
In examining whether a supplemental NEPA analysis was required, the Court also examined the five-year review of
the Lost River sucker, which, like the five-year review of the shortnose sucker, was conducted in 2013. See FWS
6883-6927.

Page 39 - ORDER

2. 2013 FWS report

FWS's aforementioned shortnose sucker five-year recovery plan concludes that
"significant threats to the shortnose sucker remain," and that shortnose suckers "face[] a high
degree of threat of extinction and a low potential for recovery." FWS 6931. FWS's alarming
assessment, Plaintiffs contend, rises to the level of significant new information. While FWS
concluded that significant threats to shortnose suckers' viability remain and thus that their
chance of extinction is high, it did not identify grazing as one of those threats; in fact, it made no
mention of grazing at all. Accordingly, no "significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action [grazing] or its impacts"
were identified in the FWS's five-year plan. 40 C.F.R. § 1502.9(c)(l)(ii) (emphasis added).
Moreover, the 2013 five-year plan follows the same recommendation as FWS's previous fiveyear plan, published in 2007, which recommended no change in the suckers' listing status. Supp.
AR 43; FWS 6956-57. Thus, the species' legal status has not changed since the 2009 EA, and the
Forest Service was under no obligation to provide a supplemental analysis to its 2009 EA.
The same can be said for Lost River suckers. While FWS also concluded "significant
threats to the Clear Lake sucker remain," and that "the extinction of [Clear Lake suckers]
remains a credible possibility," grazing was not identified as one of those threats. FWS 6911.
Likewise, no change was recommended to the species' listing status. See FWS 6912. Hence, the
Forest Service had no duty to supplement its 2009 EA.
3. Threat of climate change and severe drought

In its 2013 five-year plans and its 2014 revised recovery plan, FWS stated that "climate
change and drought [are] potential threat[ s] to shortnose [and Lost River] sucker throughout their
range ...." FWS 6956; see also FWS 6907-08 (discussing climatic effects on Lost River sucker).

Page 40 - ORDER

Plaintiffs assert that FWS' s determination constitutes significant new information that requires
supplemental NEPA analysis.
This information is not new. In fact, the Forest Service acknowledged climate change and
prolonged droughts pose potential threats to suckers in its 2009 EA. See, e.g., P 5643-44.
Plaintiffs argue, though, that the Forest Service's discussion was far too general and that FWS 's
revelations necessitate a more detailed analysis of these twin impacts on suckers. The Court
agrees that the Forest Service's discussion was quite general, but the FWS's five-year plans and
its 2014 revised recovery plan, like the Forest Service's EA, states only that "[i]t is difficult to
accurately predict how such climatic changes will affect the shortnose [and Lost River] sucker,"
and that the individual impact of prolonged droughts and of "climate change[] on the status of
the species [is] poorly understood ...." FWS 6908, 6911, 6953, 6956.
Accordingly, the Court fails to see what new information these assessments provided that
required supplemental analysis; this is especially true given the Forest Service's "adaptive
management approach that provides flexibility to address inherent uncertainty associated with
local effects of climate change," an approach included in the 2009 EA. P 5644. This approach is
intended to flexibly address the impact of severe droughts and climate change. See P 5644, 5653.
Hence, it would seem the Forest Service is routinely re-assessing the impact of drought and
climate change and altering grazing practices accordingly. Finally, the fact that a severe drought
has occurred in the Klamath Basin from 2012-15 does not, as Plaintiffs suggest, constitute
significant new information. NEPA's continuing duty to supplement previous environmental

documents is not triggered "every time new information comes to light after the [EA] is
finalized." Marsh, 490 U.S. at 373. Instead, supplementation is required only if "new
information shows that the remaining action will affect the quality of the human environment in

Page 41 - ORDER

a significant manner or to a significant extent not already considered." Or. Nat. Res. Council
Action, 445 F. Supp. 2d. at 1219 (citing Marsh, 490 U.S. at 374). Here, as FWS states, "[h]istoric
accounts ... point to cyclic patterns of drought. ..." FWS 5294. Moreover, the Forest Service
acknowledged the "very likely" future where "average temperatures increase" and "snow pack
will be reduced." P 5644. It therefore acknowledged the need for "[f]lexibility to address the
inherent uncertainty about local effects of climate change" and the need to "focus on enhancing
ecosystem resistance and resilience, as well as actions taken that help ecosystems and resources
move in synchrony with the ongoing changes that result as climates and environments vary." P
5643. Thus, because cyclical droughts, even severe droughts, are a recurring phenomenon
already known to the Forest Service through historical accounts, and because the Forest Service
analyzed the need to enhance ecosystem resilience in the face of a drier, warmer climate, the fact
that a drought has occurred is not significant new information, and the Forest Service was under
no obligation to supplement its 2009 EA.
4. Potential new information on riparian conditions, livestock trespass,
andRMOs

Finally, Plaintiffs allege new information shows (1) riparian conditions are not improving
as anticipated in the 2009 EA; (2) trespass grazing has been a recurring problem since 2009 in
many allotments and data suggest cattle are responsible for streambank, stream channel, and
riparian damage, contradicting assumptions made in 2009 that grazing was minimal and riparian
areas were improving; and (3) data show many streams are not meeting RMOs.
Plaintiffs' arguments that riparian conditions are improving at worsening rates or at rates
slower than anticipated in the 2009 EA and their argument that trespass grazing has been a
recurring problem are interrelated, so the Court will address them together. In support of both

Page 42 - ORDER

arguments, Plaintiffs point to the Forest Service's end-of-year monitoring of challenged
allotments. As Plaintiffs point out, the Forest Service's monitoring indicates areas of "little
riparian vegetation, bank trampling, hoof damage, moderate to heavy use of the riparian areas, ..
. high stream temperatures, [and] poor bank stability.... " Pls.' Mot. for Summ. J, at 22 (citing to
P 6899; YB 78, 108-10, 118-19, 130-152, 165-75, 195, 244-245). All of this is true, but it does
not suggest trespass in riparian areas are worsening or improving at slower-than-anticipated
rates. The 2009 EA recognized unauthorized, or trespass, grazing would take place, but expected
unauthorized use would be minimal. P 5570, 5683. Since 2009, unauthorized use and overuse
has indeed occurred, but it does not appear to have increased, and, importantly, the Forest
Service has taken corrective action when it has occurred. See, e.g., HF 301-02, 326-27, 334-35;
PL 397-400, 411-412, 442-445, 463-66, 1084-85, 1118-19, 1142-43; WH 634-36, 672-73, 696-

99.
As for riparian conditions, it appears conditions have not changed substantially since
2009. In fact, the Forest Service's 2014 BA-a document Plaintiffs cite to indicating significant
new information has come to light requiring supplementation-points out that "[m]any of the
streams ... are degraded due to past land management actions, leading to headcuts that cause the
stream channel to incise, which lowers the water table and results in the loss of riparian
vegetation that would normally provide bank-stabilizing root mass to prevent erosion." P 7203
(emphasis added). Moreover, "[r]iparian areas in the project areas are recovering from past
activities, including but not limited to impacts from grazing." P 5565 (emphasis added). Hence, it
appears degradation in riparian conditions was attributed to past land management actions. This
is not significant new information. Furthermore, that cattle are responsible for streambank,

Page 43 - ORDER

stream channel, and riparian damage is also not new information; indeed, the Forest Service
touched on the issue in its 2009 EA:
Livestock grazing may degrade riparian habitat by removing riparian
vegetation, destabilizing stream banks, widening stream channels, and
promoting incised channels. These effects reduce overall cover and
structure of the riparian area, and can impact fish habitats. Livestock
grazing may impact upland vegetation structure (diversity and abundance)
by altering plant community composition.
P 5541. Supplementation is required when significant new information becomes available
showing remaining agency action could have a significant environmental effect not already
considered by the agency. Or. Nat. Res. Council Action, 445 F. Supp. 2d. at 1219. Here, no new
information has become available that was not already considered by the Forest Service.
Accordingly, the Forest Service was under no obligation to supplement its 2009 EA.
Finally, Plaintiffs argue data show many streams are not meeting RMOs, necessitating
supplemental NEPA analysis. This argument is, in effect, the same as Plaintiffs' argument for
why the Forest Service failed to comply with NFMA. As explained in that section, INFISH sets
forth RMOs for the improvement of important habitat features. P 2843-44. INFISH contemplates
a flexible approach; RMO targets are not intended to be met instantaneously, and RMO
attainment is to be determined on a watershed level, not on a stream-by-stream basis. Oregon
Wild I, 193 F. Supp. 3d. at 1171.

That particular streams are not meeting RMOs is not significant new information;
instead, it is a variable that the Forest Service already considered in its 2009 EA. As stated in the
NFMA section of this opinion, Plaintiffs correctly point out that many streams have failed to
attain the specific, numerical goals set out in the RMOs, but Plaintiffs' rigid application of the
RMOs departs from INFISH's text and intent. Given INFISH's flexible approach, objectives are
targets that will not be met instantaneously but over time, something the Forest Service

Page 44 - ORDER

recognized in its 2009 EA, stating, "[t]he trend toward all streams in the allotments maintaining
and/or reaching desired future condition is expected to continue for the next 10 years with the
proposed management strategy, as it is relatively unchanged from the recent past." P 5597. The
2009 EA was intended to "provide guidance for the [] grazing allotments in the project area over
the next 20 years." P 5536. Consequently, it was recognized in 2009 that the RMOs in many
streams would not be met instantaneously, but improvement was expected to occur over time.
The fact that many streams are not currently attaining RMOs, then, is not significant new
information requiring supplemental NEPA analysis. 12 Moreover, it is perfectly in line with
INFISH's flexible approach. Accordingly, the Forest Service was under no obligation to
supplement its 2009 EA.
a. Summary

For the above-mentioned reasons, the Forest Service was not required to supplement its
2009 EA. Summary judgment on this issue must therefore be granted in Defendants' and
Intervenor-Defendants' favor.
CONCLUSION

For the reasons discussed, Plaintiffs' ESA claim is moot, necessitating summary
judgment in Defendants' and Intervenor-Defendants' favor. Additionally, Plaintiffs' NFMA
claim fails because the Forest Service reasonably gathered and evaluated data relevant to
INFISH and issued the challenged AOis on that basis. Thus, summary judgment must be granted
for Defendants and Intervenor-Defendants on this claim as well. Third, Plaintiffs' NEPA claim
fails because Plaintiffs failed to exhaust administrative remedies. Hence, Defendants and
12

As discussed, Plaintiffs also fail to acknowledge data indicating other streams in the area have achieved,
exceeded, or are near the desired bank stability percentages. See, e.g., P 6875, 6887, 6895, 6899, 6902, 6904, 6906.
Likewise, many streams have stabilizing or improving temperatures. See, e.g., P 6875, 6877, 6879, 6881, 6887,
6893, 6895, 6897.

Page 45 - ORDER

Intervenor-Defendants are also entitled to summary judgment on this claim. Finally, Plaintiffs'
claim that the Forest Service must supplement its analysis under NEPA fails because no
significant new circumstances or information relevant to environmental concerns exist. Summary
judgment on this issue must therefore be granted in Defendants' and Intervenor-Defendants'
favor as well. Thus, in sum, Defendants' and Intervenor-Defendants' cross-motions for summary
judgment (#32 & #35) are granted, and Plaintiffs' motion for summary judgment (#23) is denied.
ORDER

For the foregoing reasons, Defendants' and Intervenor-Defendants' cross-motions for
summary judgment (#32 & #35) are GRANTED. Plaintiffs' motion for summary judgment (#23)
is DENIED.
It is so ORDERED and DATED this

8

da.Y-:
_.,,,,./'/
,/

//

....

A A R K D. CLARKE
United States Magistrate Judge

Page 46 - ORDER