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Center for Biological Diversity v. Branton

United States District Court, D. Arizona

June 26, 2015

NICOLE BRANTON, et al., Federal Defendants, and WARD ARIZONA RANCH PROPERTIES, LLC, Defendant-Intervenor

         Decided June 25, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          For Center for Biological Diversity, Plaintiff: Todd Christopher Tucci, Advocates for the West Incorporated, Boise, ID.

         For 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.

         For 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.

         For 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, Cheyenne, WY.

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         A. Wallace Tashima, United States Circuit Judge.

         This 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" )[1] 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.

         This 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 judgment.

         I. The Statutory and Regulatory Framework

         A. The NFMA

         The 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" ).

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          " 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.

         The 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.

         B. The ESA

         The ESA 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

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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. § 424.12(b).

         Section 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).

         If, 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)).[2] 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).

         II. The Proposed Action and Procedural History

         The 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

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caused significant environmental degradation throughout the allotment. AR 25255-25256.

         In late 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 " )[3] 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.

         The 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.

         On 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.

         On June 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.

         In 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

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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.

         The 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" ); [4] 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.

         On 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." ).

         III. Standard of Review of Administrative Action

         Summary 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).

         This 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)).

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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 omitted).

         A court 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.

         IV. ESA Claims

         The 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.

         A. Background on the Chiricahua Leopard Frog

         On June 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.

         1. CLF Habitats

         In 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.

         Breeding 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,

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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.

         Dispersal 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." [5] 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" ). Id.

         The 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]." Id.

         2. The Recovery Plan

         In 2007, FWS released a Final Recovery Plan for the CLF. See AR L4638-L5066.[6] 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.

         The 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 ...

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