United States District Court, D. Arizona
June 25, 2015
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Center for Biological Diversity, Plaintiff: Todd Christopher
Tucci, Advocates for the West Incorporated, Boise, ID.
United States Forest Service, an agency of the United States,
United States Fish and Wildlife Service, an agency of the
United States, Defendants: Andrew Allen Smith, U.S. Dept of
Justice, Environment & Natural Resources Division,
Environment & Natural Resource Division, c/o U.S.
Attorney's Office, Albuquerque, NM.
Nicole Branton, District Ranger, Defendant: Andrew Allen
Smith, LEAD ATTORNEY, U.S. Dept of Justice, Environment &
Natural Resources Division, Environment & Natural Resource
Division, c/o U.S. Attorney's Office, Albuquerque, NM.
Ward Arizona Ranch Properties LLC, Intervenor Defendant:
Karen Budd-Falen, LEAD ATTORNEY, Budd-Falen Law Offices LLC,
Cheyenne, WY; Andrea R Buzzard, Budd-Falen Law Offices,
RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT 
Wallace Tashima, United States Circuit Judge.
case arises out of the reauthorization of a grazing permit
(" the Proposed Action" ) on the Fossil Creek Range
Allotment (" FCRA" ), located in the Coconino
National Forest in central Arizona. In 2013, pursuant to the
National Environmental Policy Act of 1969 (" NEPA"
), 42 U.S.C. § § 4321 et seq., the United
States Forest Service (" Forest Service" ) issued a
Decision Notice and Finding of No Significant Impact ("
FONSI" ) (the " 2013 Decision Notice and
FONSI" ) approving the Proposed Action; in the same
year, the United States Fish and Wildlife Service ("
FWS" ) issued a Biological Opinion (the " 2013
BiOp" ), which assessed the impacts that the Proposed
Action might have on the threatened Chiricahua Leopard Frog
(" CLF" ). Plaintiff Center for Biological
Diversity (the " Center" ) challenges each agency
action, asking this Court to grant summary judgment on its
claims that the 2013 Decision Notice and FONSI violate the
National Forest Management Act (" NFMA" ), 16
U.S.C. § § 1600 et seq., and that the 2013
BiOp violates the Endangered Species Act of 1973 ("
ESA" ), 16 U.S.C. § § 1531 et seq.
See Ctr.'s Mo. for Partial Summ. Jdgt., Dkt. 95.
FWS and the Forest Service (together, the " Federal
Defendants" ), as well as intervenor Ward Arizona Ranch
Properties, LLC (the " permittee" ) filed
cross-motions for summary judgment, asking this Court to deny
the Center's motion and grant theirs as to each of the
Center's claims. See Permittee's Cross-Mot.
for Summ. Jdgt., Dkt. 104; Fed.Defs.' Mo. for Summ.
Jdgt., Dkt. 107.
Court has jurisdiction over the Center's claims pursuant
to the Administrative Procedure Act (" APA" ), 5
U.S.C. § 704. For the reasons set forth below, the Court
GRANTS in part and DENIES the Center's motion for summary
judgment; and GRANTS in part and DENIES in part the Federal
Defendants' and the permittee's motions for summary
The Statutory and Regulatory Framework
Forest Service is charged with administering the lands of the
National Forest Service, which include the Coconino National
Forest. See 36 C.F.R. § 200.1. The Forest
Service is " required by statute and regulation to
safeguard the continued viability of wildlife in the
Forest." Idaho Sporting Cong., Inc. v.
Rittenhouse, 305 F.3d 957, 961 (9th Cir. 2002). Among
other things, the Forest Service must comply with the mandate
of the NFMA that the " Forest Service . . . develop a
land and resource management plan ('forest plan') for
each forest that it manages." Id. (citing 16
U.S.C. § 1604). Each forest plan must comply with a
series of substantive requirements set forth in the NFMA.
See 16 U.S.C. § 1604(g)(3) (providing that
forest plans must be " developed to achieve"
various goals, including " consideration of the economic
and environmental aspects of various systems of renewable
resource management . . . to provide for outdoor
recreation" and to " provide for diversity of plant
and animal communities based on the suitability and
capability of the specific land area in order to meet overall
multiple-use objectives" ).
In order to ensure compliance with the forest plan and the
[NFMA], the Forest Service must conduct an analysis of each
'site specific' action . . . to ensure that the
action is consistent with the forest plan." Idaho
Sporting Cong., 305 F.3d at 962; see also 16
U.S.C. § 1604(i) (" Resource plans and permits,
contracts, and other instruments for the use and occupancy of
National Forest System lands shall be consistent with the
land management plans." ). Pursuant to the Federal Land
Policy and Management Act of 1976, livestock grazing is one
of the site specific actions that the Forest Service may
authorize within the National Forest System. See
Buckingham v. Sec'y of U.S. Dep't of Agric.,
603 F.3d 1073, 1076 (9th Cir. 2010). Livestock grazing is
authorized on " allotments" --areas that have been
designated within a national forest for this purpose--which
are divided up into smaller areas, called " units"
or " pastures." Id. at 1076-77.
Forest Service authorizes livestock grazing on allotments via
" three different types of site-specific actions, all of
which must be consistent with the applicable Forest
Plan." Id. at 1077 (citations omitted). First,
the Forest Service issues grazing permits, which typically
specify the number, kind, and class of livestock; the
allotment to be grazed; and the period of use (usually ten
years). Id. Second, the Forest Service develops an
" allotment management plan" (" AMP" ), a
" document that specifies the program of action
designated to reach a given set of objectives as to a
specific allotment, including 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."
Id. (citations and internal quotation marks
omitted). AMPs are generally incorporated into the applicable
grazing permit. Id. Third, the Forest Service
develops and issues annual operating plans (" AOPs"
) or instructions (" AOIs" ). Id. AOIs or
AOPs translate the long-term directives of the applicable
Forest Plan into instructions to the permittee for annual
operations. Id. Because AOIs or AOPs are issued on
an annual basis, they are " responsive to conditions
that the Forest Service could not or may not have anticipated
and planned for in the AMP or grazing permit."
Id. (citation and internal quotation marks omitted).
Typically, the Forest Service incorporates an AOI or AOP into
the grazing permit, which governs the permittee's grazing
operations for the ensuing year. Id.
has been described by the Supreme Court as " the most
comprehensive legislation for the preservation of endangered
species ever enacted by any nation," reflecting a "
conscious decision by Congress to give endangered species
priority over the 'primary missions' of federal
agencies." TVA. v. Hill, 437 U.S. 153, 180,
185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA is
designed to " provide a means whereby the ecosystems
upon which endangered species and threatened species depend
may be conserved" and " to provide a program for
the conservation of such endangered species and threatened
species." 16 U.S.C. § 1531(b). Under the ESA,
either the Secretary of Commerce or the Secretary of the
Interior is required to determine whether " any species
is an endangered species or a threatened species" based
on certain, specified factors. 16 U.S.C. § 1533(a)(1). A
species is endangered if it " is in danger of extinction
throughout all or a significant portion of its range,"
and is threatened if it is " likely to become an
endangered species within the foreseeable future throughout
all or a significant portion of its range." 16 U.S.C.
§ § 1532(6), (20). If a species is found to be
either endangered or threatened, the
Secretary of the Interior or the Secretary of Commerce must
concurrently " designate any habitat of such species
which is then considered to be critical habitat." 16
U.S.C. § 1533(a)(3)(A)(i). A species' critical
habitat includes those areas occupied by the species at the
time it is listed " on which are found those physical or
biological features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection." 16 U.S.C. §
1532(5)(A)(i). FWS refers to these " physical or
biological features" as " primary constituent
elements" (" PCEs" ). See 50 C.F.R.
7(a)(2) of the ESA (" § 7" ) 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 endangered species
or threatened species or result in the destruction or adverse
modification" of the designated critical habitat of the
listed species. 16 U.S.C. § 1536(a)(2). To assist
agencies in complying with this provision, " § 7
and its implementing regulations set out a detailed
consultation process for determining the impacts of the
proposed agency action." Ctr. for Biological
Diversity v. Salazar, 804 F.Supp.2d 987, 990 (D. Ariz.
2011) (citing 16 U.S.C. § 1536(a)(2) and 50 C.F.R.
§ 402). An agency seeking to authorize a particular
action begins this process by preparing a " biological
assessment" (" BA" ), which evaluates (1) the
potential effects of the action on the listed species and
designated critical habitat; and, (2) whether any such
species or habitat is likely to be adversely affected by the
action. 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12(a).
If, after preparing the BA, the agency determines " that
the proposed action is not likely to adversely affect any
listed species or critical habitat," then it need not
take any further action. 50 C.F.R. § 402.14(b)(1).
however, the " agency determines that its proposed
action 'may affect' listed species or critical
habitat, it must formally consult with the 'consulting
agency.'" Ctr. for Biological Diversity,
804 F.Supp.2d at 990 (quoting 50 C.F.R. §
402.14(a)). Once a request is submitted, the
consulting agency must review all relevant information,
evaluate the current status of the endangered or threatened
species and its critical habitat, evaluate the effects of the
action and cumulative effects on the listed species or its
critical habitat, and, finally, formulate a BiOp that
concludes whether or not the action " is likely to
jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical
habitat." 50 C.F.R. § § 402.14(g), (h). The
BiOp must include " a summary of the information on
which the opinion is based" and " a detailed
discussion of the effects of the action on listed species or
critical habitat." 50 C.F.R. § 402.14(h)(1), (2).
The Proposed Action and Procedural History
FCRA is a 42,200-acre block of land that lies entirely within
the Red Rock Ranger District of the Coconino National Forest.
AR 17826, 17845. The FCRA is located approximately five miles
southeast of Camp Verde, Arizona, and is bounded by Highway
260 on the north and Fossil Creek on the east. AR 25254.
Livestock grazing has occurred on the FCRA since the late
1870s, and the Forest Service began permitting livestock
grazing around 1908. AR 25255. Livestock grazing has
caused significant environmental degradation throughout the
allotment. AR 25255-25256.
2006, pursuant to the Burns Amendment of 1995, the Forest
Service initiated a process under NEPA of its planned
reauthorization of grazing on the FCRA. See Ctr.
for Biological Diversity v Provencio, 2012 WL 966031, at
*2 (D. Ariz., Jan. 23, 2012) (" CBD I "
) NEPA, " our basic national
charter for the protection of the environment," 40
C.F.R. § 1500.1(a), requires agencies to prepare an
Environmental Impact Statement (" EIS" ) before
undertaking " major Federal actions significantly
affecting the quality of the human environment," 42
U.S.C. § 4332(2)(C). Under NEPA's implementing
regulations, a federal agency must prepare an environmental
assessment (" EA" ); based on the EA, the agency
must either prepare an EIS or issue a FONSI. See
City of Las Vegas, Nev. v. FAA, 570 F.3d 1109, 1115
(9th Cir. 2009). If an agency issues a FONSI, it is excused
from its obligation of preparing an EIS. Id.
Forest Service began the NEPA review process for the grazing
permit in effect on the FCRA by issuing a " scoping
notice" in March of 2007. AR 1131. The notice recognized
that the terms of the grazing permit in effect at the time
were preventing the Forest Service from " meeting or
moving toward desired conditions in an acceptable
timeframe." AR 1131. Accordingly, the Forest Service
proposed a new grazing regime for the FCRA, meant to ensure
that livestock grazing was conducted " in a manner that
maintains and/or moves the area toward Forest Plan objectives
and desired conditions." AR 1131.
April 2, 2009, the Forest Service released its final EA,
analyzing the environmental impacts of reauthorizing the
ten-year grazing permit according to the terms set forth in
the March 2007 scoping notice (" the 2009 EA" ). AR
12197-12384. In addition to preparing the 2009 EA, the Forest
Service prepared a BA, see AR 7231-7314; based on
this BA, the Forest Service submitted a request for formal
consultation to FWS, see AR 7146. On February 9,
2009, FWS issued a BiOp (" the 2009 BiOp" ). AR
12100-12150. Based on the 2009 EA and the 2009 BiOp, on April
28, 2009, the Red Rock District Ranger, Heather Provencio,
signed a Decision Notice and FONSI (" the 2009 Decision
Notice and FONSI" ), approving reauthorization of the
grazing permit. AR 12515-12534.
4, 2010, the Center filed this action, asserting that the
2009 EA, the 2009 BiOp, and the 2009 Decision Notice and
FONSI violated various provisions of the ESA, NFMA, and NEPA.
See Complaint, Dkt. 1. The parties filed
cross-motions for summary judgment. On January 23, 2012, this
Court granted the Center's motion for summary judgment on
all of its ESA claims and one of its NEPA claims, and granted
the Federal Defendants' motion for summary judgment as to
the Center's remaining claims. See CBD
I, 2012 WL 966031, at *20.
response, the Forest Service prepared a new EA, which was
issued on May 15, 2013 (" the 2013 EA" ). AR
25245-25466. The Forest Service also prepared a new BA,
see AR 17622-17702; based on this new BA, the Forest
Service submitted a new request for formal consultation to
FWS, see AR M3734-M3735. On May 7, 2013, FWS issued
the 2013 BiOp. AR 17823-17868. Based on the 2013 EA and the
2013 BiOp, District Ranger Provencio issued the 2013 Decision
Notice and FONSI on May 17, 2013, again approving
reauthorization of the grazing permit. AR 34117-34136.
2013 EA, the 2013 BiOp, and the 2013 Decision and FONSI are
all based on the Proposed Action, which sets forth a grazing
scheme similar to the one initially described in the March
2007 scoping notice. Among other things, the Proposed Action
implements a grazing regime that: (1) permits livestock
grazing under a " deferred rotation grazing scheme;
" (2) limits livestock grazing to 3,600 Animal Unit
Months (" AUMs" );  and (3) permits grazing
on a year-round basis. AR 34119-34121. The Proposed Action
also implements several measures designed to mitigate the
adverse effects of livestock grazing on the natural
environment. AR 34122. Additionally, the Proposed Action
includes detailed instructions as to how the grazing scheme
is to be managed and monitored in order to " facilitate
soil and vegetative improvement." AR 34120-34124.
January 16, 2014, the Center filed its First Supplemental
Complaint, alleging that the 2013 EA, the 2013 BiOp, and the
2013 Decision Notice and FONSI violated the ESA, the NFMA,
and NEPA. See First Supplemental Complaint, Dkt. 81.
The parties filed cross-motions for summary judgment. In its
motion, the Center pressed only its ESA and NFMA claims,
thereby abandoning its NEPA claim. See Order Setting
Summary Judgment Briefing Schedule, Dkt. 85 at 2 (" Any
claims not addressed in Plaintiff's summary judgment
brief will be considered waived." ).
Standard of Review of Administrative Action
judgment is an appropriate vehicle for resolving challenges
to agency actions where the court's review is based
primarily on an administrative record. Ecology Ctr., Inc.
v. Austin, 430 F.3d 1057, 1062 (9th Cir. 2005),
overruled on other grounds by Lands Council v.
McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). A
court's role is not to resolve facts -- that is the job
of the agency as factfinder -- but rather to " determine
whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the
decision it did." Occidental Eng'g Co. v.
INS, 753 F.2d 766, 769 (9th Cir. 1985).
Court's review of agency decisions under the ESA and NFMA
is governed by the APA. See Native Ecosystems
Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002).
Accordingly, the actions may be overturned only if they are
" arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." Id.
(quoting 5 U.S.C. § 706(2)(A)). Judicial review under
the arbitrary and capricious standard is deferential: a court
" will not vacate an agency's decision unless it
'has relied on factors which Congress had 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.'"
Nat'l Ass'n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d
467 (2007) (quoting Motor Vehicle Mfrs. Ass'n of the
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).
While review under the APA is " searching and
careful," the standard is narrow: a court may not
substitute its own judgment for that of the agency. Ocean
Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d
846, 858-59 (9th Cir. 2005) (quoting Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971)). Instead, it evaluates "
whether the [agency's] decision was based on a
consideration of the relevant factors," " whether
there has been a clear error of judgment," and "
whether the [agency] articulated a rational connection
between the facts found and the choice made."
Id. at 859 (citation and internal quotation marks
may not,, however, attempt to make up for any deficiencies in
the agency's decision by " supply[ing] a reasoned
basis for the agency's action that the agency itself has
not given." State Farm, 463 U.S. at 43
(internal quotation marks omitted). The agency's action
must be upheld, if at all, on the rationale employed by the
agency. Id. at 50.
Center's ESA claims are based on the alleged threats that
the Proposed Action poses to the CLF and its critical
habitat. In order to assess the specific arguments raised by
the Center, the Court begins by conducting an examination of
the history and current status of the CLF, as well as by
providing a broad overview of the 2013 BiOp.
Background on the Chiricahua Leopard Frog
13, 2002, FWS issued a Final Rule listing the CLF as a
threatened species (the " 2002 Final Rule" ).
See Endangered and Threatened Wildlife and Plants;
Listing of the Chiricahua Leopard Frog, 67 Fed.Reg. 40790
(June 13, 2002). Historically, CLFs lived in " cienegas
(mid-elevation wetland communities often surrounded by arid
environments), pools, livestock tanks (i.e., small earthen
ponds), lakes, reservoirs, streams, and rivers"
throughout parts of Mexico, Arizona, and New Mexico.
Id. at 40790-91. During the latter half of the 20th
century, these habitats were damaged by a wide array of
maladies, including nonnative predators, drought, disease,
and various human activities (such as livestock grazing,
mining, and development). AR L4643. The resulting damage led
to a decline in CLF population, which, in turn, led FWS to
list the CLF as a threatened species. See generally
67 Fed.Reg. at 40800-806.
2012, FWS promulgated a separate Final Rule designating the
critical habitat of the CLF (the " 2012 Final Rule"
). See Endangered and Threatened Wildlife and
Plants; Listing and Designation of Critical Habitat for the
Chiricahua Leopard Frog, 77 Fed Reg. 16324, 16343 (Mar. 20,
2012). In its Final Rule, FWS identified two PCEs for the
CLF: (1) " aquatic breeding habitat[s] and immediately
adjacent uplands" (" PCE 1" ); and, (2) "
dispersal and nonbreeding habitat[s]" (" PCE
2" ). Id. at 16343.
and dispersal habitats serve different functions in the
conservation and perpetuation of the CLF. Breeding habitats
are needed to provide " space, food, and cover necessary
to sustain all life stages of [CLFs]." Id. at
16342. CLFs spend the great majority of their lives in
breeding habitats. Id. In order for an area to serve
as a breeding habitat, it must have certain features,
including standing bodies of fresh water on a nearly
perennial basis (FWS has labeled this requirement " PCE
1a" ); emergent and/or submerged vegetation, root
masses, undercut banks,
and/or fractured rock substrates (" PCE 1b" ); they
must be free of nonnative predators and chytridiomycosis, a
fungal skin disease (" PCE 1c" and " PCE
1d" , respectively); and, finally, they must have "
[u]pland habitats that provide opportunities for foraging and
basking" (" PCE 1e" ). Id. at 16343.
habitats play a different role in the preservation of the
CLF. CLFs move from one breeding habitat to another; such
movements are " crucial for conserving
metapopulations."  Id. at 16335. CLFs cannot
disperse between breeding habitats unless the corridors
between them contain certain features. Specifically, these
corridors cannot measure more than one mile over dry land,
three miles over land with ephemeral or intermittent
drainages, or five miles over land that contains perennial
water courses (FWS has labeled these spacing limitations
" PCE 2a" ). Id. at 16343. For dry land
corridors, there must be some vegetation cover or other
structural features (such as rocks, downed trees, or organic
debris) to provide CLFs with shelter and protection from
predators; for ephemeral and perennial corridors, some water
must be present (" PCE 2b" ). Id. Finally,
these corridors must be free of barriers that could block CLF
movement, such as urban or agricultural developments, large
reservoirs of water, or dams (" PCE 2c" ).
2012 Final Rule also identified thirty nine " critical
habitat units" (" CHUs" ) throughout the known
range of the CLF. Id. at 16345. These units "
constitute[d] FWS's current best assessment of areas that
meet the definition of critical habitat for the [CLF]."
The Recovery Plan
2007, FWS released a Final Recovery Plan for the CLF.
See AR L4638-L5066. The Recovery Plan
identified four specific " Recovery Criteria"
--milestones that, when met, would allow the CLF to be "
considered for delisting," AR L4706--as well as twelve
" Recovery Actions" aimed at helping FWS reach the
Recovery Criteria. AR L4645.
Recovery Plan divided the " entire known range" of
the CLF into eight recovery units (" RUs" ). AR
L4707. To meet the goal of delisting, the Recovery Plan
provides that " conservation of the [CLF] must occur in
each RU." AR L4702. Specifically, before the CLF can be
considered for delisting, each RU must have (among other
things) " [a]t least two metapopulations located in
different drainages" as well as " at least one
isolated and robust population," each of which must
" exhibit long-term persistence and stability." AR
L4706. A metapopulation is defined as a " system of
local populations connected by dispersing individuals moving
among local populations; " a local population, in turn,
is defined as " a set of individuals that interact with
each other with a high degree of probability." AR L5043.
Local populations within a ...