Opinion
CV-22-00412-TUC-JAS (AMM)
02-16-2024
Center for Biological Diversity, et al., Plaintiffs, v. Randy Moore, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiffs Center for Biological Diversity (“CBD”), the Maricopa Audubon Society, and the Mount Graham Coalition (collectively, “Plaintiffs”), brought this action against Defendants Randy Moore, Chief of the United States Forest Service (“USFS”), Martha Williams, Director of the United States Fish and Wildlife Service (“FWS”), Tom Vilsack, Secretary of the United States Department of Agriculture, and Deb Haaland, Secretary of the United States Department of the Interior, pursuant to the Endangered Species Act (“ESA”) and Administrative Procedure Act (“APA”). (Doc. 1.) Plaintiffs filed a Motion for Summary Judgment (docs. 129, 130), to which Defendants responded and filed a CrossMotion for Summary Judgment (docs. 133, 134). Plaintiffs filed a Response to Defendants' Cross-Motion and a Reply. (Docs. 136, 137.) Defendants filed a Reply to their CrossMotion. (Doc. 140.) The matter was referred to Magistrate Judge Angela M. Martinez for pretrial proceedings. (Doc. 128.)
The Defendants are sued in their official capacities as the individuals responsible for overseeing the federal agency actions challenged in this lawsuit. (Doc. 1 ¶¶ 14-17.)
I. Introduction
This action challenges two Biological Opinions (“BiOps”) and Incidental Take Statements (“ITSs”) prepared by FWS pursuant to Section 7 of the ESA. (See Doc. 134 at 3.) The BiOps and ITSs evaluate the effects on the endangered Mount Graham red squirrel (“MGRS” or “the squirrel”) of the proposed actions of re-issuing Special Use Permits (“SUPs”) for two recreational sites on Mount Graham: (1) 14 summer homes, known as the “Cabins” and (2) an organizational summer camp, known as the “Camp.” (Doc. 134 at 1; doc. 130 at 9.) In Count One, Plaintiffs allege that FWS violated the ESA and the APA by determining that re-issuance of the Cabins and Camp SUPs would not jeopardize the squirrel's survival or recovery prospects. (Doc. 1 at ¶ 85.) Specifically, Plaintiffs claim the Cabins and Camp BiOps and ITSs should be set aside and remanded for (1) failing to identify the squirrel's survival and recovery needs, i.e., its “tipping point;” (2) incorrectly evaluating the squirrel's population and environmental baselines; (3) failing to rely on the best available scientific evidence; and (4) failing to provide a clear trigger for re-initiating consultation. (Doc. 1 at ¶¶ 85-94.) In Count Two, Plaintiffs allege that USFS violated the ESA by relying on the Cabins BiOp to authorize the SUP for the Cabins. (Doc. 1 at ¶ 96.)
As discussed below, the Court finds that (1) the Cabins BiOp complies with the ESA and APA; (2) the Camp BiOp lacks a rational basis for its no-jeopardy finding and thus violates the ESA and APA; and (3) the ITSs for both the Cabins and Camp lack a clear standard for when take has been exceeded, and therefore violate the ESA and APA. Accordingly, the Court recommends that Plaintiffs' Motion for Summary Judgment be granted in part and denied in part, and Defendants' Cross-Motion for Summary Judgment be granted in part and denied in part.
II. Procedural Background
In 2008, USFS and FWS completed a consultation and BiOp pursuant to Section 7 of the ESA for the proposed re-issuance of the SUP for the Cabins for the period from January 1, 2009, through December 1, 2028. (Doc. 134 at 14.) The 2008 BiOp concluded that continued use of the Cabins was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14.) In June 2020, Plaintiffs filed a lawsuit seeking re-initiation of the 2008 BiOp consultation for the Cabins. See Ctr. for Biological Diversity v. Christiansen, No. 4:20-cv-00251-BGM (D. Ariz. 2020) (docs. 19, 20). That lawsuit settled in December 2020 and USFS agreed to complete a re-initiated consultation by August 2021. (Doc. 134 at 14.) On March 31, 2021, FWS completed a renewed BiOp for the Cabins, which concluded that the Cabins' continued operation and existence through 2028 was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14; doc. 122 at ¶ 01743.) On August 9, 2021, FWS completed a BiOp for the Camp, which concluded that the Camp's continued operation and existence was not likely to jeopardize the squirrel's survival. (Doc. 134 at 14-15; doc. 123 at ¶ 01787.) These “no-jeopardy” BiOps were amended on May 6, 2022, to incorporate additional information and further explain certain issues. (Doc. 134 at 15; doc. 32 at FWS01221-22; FWS01161-62.) On September 13, 2022, Plaintiffs filed the instant lawsuit challenging (1) FWS's findings in the amended BiOps and (2) USFS's reliance on the Cabins BiOp. (Doc. 1.)
The amended versions BiOps are the subject of this lawsuit.
III. Factual Background
The Mount Graham red squirrel exists solely in the Pinaleno Mountains of the Coronado National Forest, in the Safford Ranger District, and was listed as an endangered species in 1987. (Doc. 130 at 12; doc. 32 at FWS01171; doc. 99 at ¶ 01056.) In 1990, FWS designated critical habitat for the squirrel at three locations in the Pinaleno Mountains above 9,200 feet. (Doc. 32 at FWS01171; doc. 99 at ¶ 01056.) MGRS habitat is comprised of “mature spruce-fir and mesic mixed-conifer forest at elevations above 2,400 meters [7,874 feet].” (Doc. 130 at 12; doc. 66 at FWS04365.) However, only approximately 34.6 acres of spruce-fir forest remain in the Pinaleno Mountains, such that “much of MGRS critical habitat . . . no longer contains . . . dense stands of mature spruce-fir forest.” (Doc. 32 at FWS01171.) Therefore most, if not all, MGRS are found in lower-elevation areas outside their designated critical habitat. (Doc. 130 at 13; doc. 99 at ¶ 01056-57; doc. 84 at FWS06379 (“Insect mortality, along with the effects of drought over the last several years, have rendered most, if not all, of the area within the boundaries of the MGRS critical habitat useless to MGRS.”).)
In 2021, FWS stated that it would “assess potential revisions to the [squirrel's] critical habitat after a species status assessment [] and a revision of the [squirrel's] recovery plan are complete.” (Doc. 130 at 13.) Revisions to the recovery plan, and thus to the critical habitat designation, have not yet been completed. (Id.) Thus, the 1990 designations remain in effect.
Human and environmental stressors have impacted the MGRS population over the last several decades. (Doc. 130 at 13-16.) In 1996, the Clark Peak Fire destroyed approximately 6,500 acres of squirrel habitat and 50 percent of middens within the burned area. (Id. at 14.) The squirrel population reached approximately 550 in 2004, but that year, the Nutall-Gibson Complex Fires burned nearly 30,000 acres of the Coronado National Forest, including approximately half of the squirrel's critical habitat. (Doc. 130 at 14-15; doc. 84 at FWS06383.) Between 2004 and 2017 the population remained relatively stable, consisting of between 200 and 350 squirrels. (Doc. 130 at 15; doc. 66 at FWS04370.) Then, in 2017, the Frye Fire burned 48,443 acres of the National Forest, including approximately 78 percent of the squirrel's habitat. (Doc. 130 at 15; doc. 32 at FWS01169.) The Frye Fire permanently destroyed significant habitat and reduced the population to approximately 35 squirrels. (Doc. 130 at 15; doc. 66 at FWS04370, doc. 85 at FWS07360.) As of 2020, approximately 109 squirrels remain, making it the most endangered terrestrial mammal in the United States. (Doc. 130 at 12; doc. 122 at ¶ 001752-53.)
Middens, also referred to as “squirrel refrigerators,” are structures where squirrels cache conifer cones and fungi gathered within their territory. (Doc. 130 at 12.) As discussed below, middens are used as a proxy for estimating squirrel population.
Ongoing drought, insect outbreaks, wildfire suppression activities, competition with the non-native Abert's squirrel, and climate change pose additional, known threats to the squirrel's survival. (Doc. 130 at 15; doc. 84 at FWS06379; doc. 125 at ¶ 01952-53.)
IV. Legal Standard
A. Summary Judgment
A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). In its analysis, the court must accept the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).
Pure questions of law, where there is no disputed issue of fact, are appropriate for summary judgment. Schrader v. Idaho Dep't of Health & Welfare, 768 F.2d 1107, 1110 (9th Cir. 1985). “Summary judgment is a particularly appropriate tool for resolving claims challenging agency action.” Ctr. for Biological Diversity v. Haaland, 562 F.Supp.3d 68, 76 (D. Ariz. 2021) (citation omitted). In such cases the court's role is 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.” Id. (citation omitted).
B. The Administrative Procedure Act
The BiOps and accompanying ITSs are final agency actions subject to judicial review. Oregon Nat. Res. Council v. Allen, 476 F.3d 1031, 1035-36 (9th Cir. 2007) (citation omitted). Thus, the BiOps and ITSs are reviewable under the APA's arbitrary and capricious standard. Id. (citing 5 U.S.C. §§ 704, 706). Under this standard, the court must determine “whether there is a rational connection between the facts found and the choices made by the [federal agency] and whether it has committed a clear error of judgment.” Id.
Under the APA, an agency's decision may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citing 5 U.S.C. 706(2)(A)). The standard is deferential, and the court “may not substitute its judgment for that of the agency.” Id. (citation omitted). “Under the arbitrary and capricious standard, a reviewing court must determine whether an agency's decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Doe ex rel. Gortarez v. Dep't of Homeland Sec., No. CV 09-1329-PHX-DGC, 2010 WL 3564831, at *1 (D. Ariz. Sept. 7, 2010) (citation omitted). “This standard is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Id. (citation omitted). Only “a rational connection between facts found and conclusions made by defendant agencies” is required. Friends of Santa Clara River v. United States Army Corps of Engineers, 887 F.3d 906, 920 (9th Cir. 2018) (citation and quotation omitted). Therefore, courts will “not vacate an agency's decision unless [it] 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.” Id. (citation and quotation omitted).
C. The Endangered Species Act
Section 7(a)(2) of the ESA requires federal agencies to ensure that their actions are not “likely to jeopardize the continued existence of” any listed endangered species or “result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(2). Agencies are required to use “the best scientific and commercial data available” in making these determinations. Id. If the agency proposing the action determines that the action may affect listed species, the agency must pursue either formal or informal consultation with the consulting agency. 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the proposed action is not likely to adversely affect listed species. 50 C.F.R. § 402.14(a). In formal consultation, the consulting agency provides the action agency with a biological assessment that evaluates the effects of the proposed action on the listed species and its habitat, and its current conditions. 50 C.F.R. §§ 402.12, 402.14. Thereafter, the consulting agency prepares a BiOp for the action agency stating its expert opinion on whether the action is likely to jeopardize any listed species. 50 C.F.R. § 402.14; 16 U.S.C. § 1536(a)(2).
Here, the action agency is USFS, and the consulting agency is FWS. (See Doc. 134 at 3.)
Jeopardization of a species means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir. 2008) (citing 50 C.F.R. § 402.02). To “jeopardize” means to “expose to loss or injury” or to “imperil,” and thus entails a “new risk of harm.” Id. at 930. Accordingly, agency action “can only ‘jeopardize' a species' existence if that agency action causes some deterioration in the species' pre-action condition.” Id. “[W]here baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” Id.; see also Appalachian Voices v. United States Dep't of Interior, 25 F.4th 259, 279 (4th Cir. 2022) (“[I]f a species is already speeding toward the extinction cliff, an agency may not press on the gas.”)
Survival and recovery are “intertwined concepts” in an agency's jeopardy analysis. Native Vill. of Chickaloon v. Nat'l Marine Fisheries Serv., 947 F.Supp.2d 1031, 1063 (D. Alaska 2013) (citing Nat'l Wildlife Fed'n, 524 F.3d at 932). Where a proposed action would have “significant negative impacts” on a species, an analysis of the species' point of recovery is warranted. Id. at 1063, n. 244. However, where a proposed action would not have significant negative impacts, this “tipping point” analysis is not required. Id. (no tipping point analysis required where proposed action did not have significant negative impact on listed species).
“The proper baseline analysis is not the proportional share of responsibility the federal agency [action] bears for the decline in the species, but what jeopardy might result from the agency's proposed actions in the present and future human and natural contexts.” Pac. Coast Fed'n of Fishermen's Associations v. Gutierrez, 606 F.Supp.2d 1195, 1212 (E.D. Cal. 2008) (citation omitted). This standard does not prohibit an agency from taking an action that would contribute to a de minimis deterioration of the condition of the species, even if the species is already in jeopardy. Id. Rather, “the relevant inquiry is whether the action effects, when added to the underlying baseline conditions . . . are cumulatively such that they would cause jeopardy as that term is defined by law and agency regulation.” Id. Thus, “baseline conditions must be factored into the jeopardy analysis, cumulatively with the [] agency actions.” Id.
A court's role is not to determine whether a BiOp's findings mandate a jeopardy conclusion, but rather whether the agency “articulated a rational connection between the facts found and the conclusions made.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 527 (9th Cir. 2010). An agency must articulate a rational link between its findings and its ultimate no-jeopardy conclusion. Id. at 528.
If, after consultation under Section 7(a)(2), the agency determines that the proposed action is not likely to jeopardize the listed species, it authorizes “take” of the species incidental to the proposed project. Sovereign Inupiat for a Living Arctic v. Bureau of Land Mgmt., 555 F.Supp.3d 739, 795 (D. Alaska 2021) (citing 16 U.S.C. § 1536(b)(4)). “Take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [a listed species], or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The ESA “does not contain an outright prohibition on take[.]” Sovereign Inupiat for a Living Arctic, 555 F.Supp.3d at 795. Rather, if the consulting agency reaches a no-jeopardy determination, “it then authorizes the taking of a species incidental to the proposed project.” Id.
When the agency authorizes the incidental taking of a species, it must issue an ITS with the BiOp. Id.; see also 16 U.S.C. § 1536(b)(4)(i)-(iv); 50 C.F.R. § 402.14(i)(1). An ITS “estimates the amount of the project's incidental take of the listed species.” Sovereign Inupiat for a Living Arctic, 555 F.Supp.3d at 795. Specifically, an ITS must include the impact of the anticipated incidental taking, measures to minimize that impact, and the terms and conditions under which those measures are implemented. 16 U.S.C. § 1536(b)(4)(i)-(iv); 50 C.F.R. § 402.14(i)(1). “The purpose of the incidental take statement is [] to specify the amount of take that may occur, and include triggers that indicate non-compliance with the [ITS] and require re-consultation under Section 7 of the ESA[].” Sovereign Inupiatfor a Living Arctic, 555 F.Supp.3d at 795-96.
Ideally, the amount of take is expressed in terms of a specific number of individuals of the listed species. Arizona Cattle Growers'Ass'n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1249 (9th Cir. 2001). However, where it is not practical to express the amount of anticipated take or take-related impacts in terms of the number of individuals of the listed species, a surrogate may be used to express take. 50 C.F.R. § 402.14(i)(1)(i). Here, according to FWS, it is not practical to measure or monitor take and take-related impacts in terms of individual squirrels because they are difficult to observe, as they are arboreal, range widely, and are under snow for much of the year. (Id.) As such, the ITSs use MGRS midden activity as a surrogate for anticipated take of MGRS. (Doc. 125 at ¶ 01968-69.) Middens are the focal point of a squirrel's territory and provide the main food source for the winter; thus, MGRS are closely tied to their middens. (Id.) For this reason, middens have been used as a surrogate for the annual fall census of MGRS since 1987. (Id.)
If a surrogate for take is used, the BiOp or ITS must (1) describe the causal link between the surrogate and take of the species; (2) explain why it is not practical to express anticipated take or monitor impact in terms of individual members of the species; and (3) set a clear standard for determining when the level of anticipated take has been exceeded. 50 C.F.R. § 402.14(i)(1)(i). If the amount or extent of take set forth in the ITS is exceeded, consultation must be re-initiated, and the agencies will re-analyze whether the action is likely to jeopardize the species. 50 C.F.R. § 402.16(a); see also Arizona Cattle Growers' Ass'n, 273 F.3d at 1249 (9th Cir. 2001).
V. Discussion
A. The Cabins Biological Opinion complies with the ESA and the APA.
The Cabins area has contained recreational residences for approximately 130 years; the existing buildings date back to the early- to mid-1900s and have been modified over time. (Doc. 125 at ¶ 01944, 01961.) It includes 14 recreational residences and associated utilities and outbuildings located on 25 acres. (Doc. 125 at ¶ 01944.) MGRS have existed in the Cabins area since at least 1996. (Doc. 125 at ¶ 01961.) As of 2008, five middens have been identified within the Cabins area. (Doc. 125 at ¶ 01955-56, FS01962.)
The Cabins BiOp authorizes the ongoing use of the Cabins at the 2008 baseline level of disturbance through expiration of the current SUP in 2028. (Doc. 125 at ¶ 01944.) Baseline disturbances include the use and maintenance of the Cabins area between April 15th and November 15th and associated noise from vehicles, equipment, pets, music, and voices. (Doc. 125 at ¶ 01944.) No new structures or activities are authorized. (Doc. 125 at ¶ 01944.)
The BiOp identifies three discrete consequences that could impact MGRS as a result of re-issuing the Cabins SUP. (Doc. 125 at ¶ 01957-64.) The first is injury or death of squirrels as a result of vehicle strikes, interactions with pets, or impacts to nesting habitat. (Doc. 99 at ¶ 01057.) The BiOp finds that it is unlikely that MGRS will be killed by vehicle strikes within the Cabins area because the road is a narrow, winding two-track on which vehicles are not able to exceed approximately 10 miles per hour. (Doc. 125 at ¶ 01957.) Furthermore, MGRS are more active during their mating season between November 15th and April 15th, when access to the Cabins is restricted and thus vehicular traffic significantly curtailed. (Doc. 125 at ¶ 01958.)
The second identified consequence is disturbance due to noise and human presence. (Doc. 125 at ¶ 01958.) The BiOp finds that human presence has not been found to interfere with squirrel survival, though squirrels may occupy middens for less time in areas with human disturbance. (Doc. 125 at ¶ 01958, FS01962.) Despite the reduced midden occupancy time, MGRS continues to create and occupy middens in the Cabins area at the current level of human activity. (Doc. 125 at ¶ 01962.) Conservation measures to reduce disturbance include maintaining a 92-foot buffer zone around middens for noisy activities or vegetation removal. (Doc. 125 at ¶ 01960.)
The BiOp notes that USFS has previously used two different-sized buffer zones around middens: a 92-foot buffer zone and a 200-foot buffer zone. (Doc. 125 at ¶ 01960-61.) The BiOp finds that the 92-foot buffer zone is appropriate for the Cabins because, unlike the previous project where a 200-foot buffer was used, here there is no authorization for any vegetation removal other than for fire prevention and hazard removal. (Doc. 125 at FS01961, FS01964 (200-foot buffer zone appropriate for more aggressive removal of live and dead trees)).
The third consequence identified in the BiOp is the alteration or removal of habitat. (Doc. 125 at ¶ 01962.) The maintenance and improvement of cabins and fire protection thereof occurs only within the approximately seven acres containing the cabin footprints and roads. (Doc. 125 at ¶ 01962.) The remaining acres are forested and provide MGRS habitat. (Doc. 125 at ¶ 01962.) The BiOp finds that any potential habitat alterations are unlikely to affect MGRS because they will occur primarily within the seven acres that do not provide MGRS habitat. (Doc. 125 at ¶ 01963.) Further, any vegetation removal outside that area will require permission from USFS and will not be allowed within 92 feet of active middens. (Doc. 125 at ¶ 01963.) Bi-annual monitoring of midden activity will allow USFS to enforce the 92-foot buffer around any new middens. (Doc. 125 at ¶ 01964.)
These acres are considered a buffer zone. (Doc. 125 at ¶ 01964.)
The BiOp finds that, although the seven acres of Cabin footprints could provide habitat for one squirrel, its use does not push MGRS over the tipping point or place the species' recovery at risk. (Doc. 125 at ¶ 01966.) This no-jeopardy conclusion is based on evidence that the MGRS population increased from 35 in 2017 to 109 in 2021 despite the loss of significant habitat. (Doc. 125 at ¶ 01966.) Furthermore, the BiOp reasons that the presence of five middens in the Cabins area, three of which are currently occupied, shows that MGRS continues to persist there. (Doc. 125 at ¶ 01966-67.)
Upon review, the Court finds no error in the agencies' findings in and reliance on the Cabins BiOp. Here, where the Cabins SUP allows only current levels of use and occupancy in an area where MGRS and humans have successfully co-existed for many years, there is no basis on which to find FWS's no-jeopardy determination arbitrary, capricious, or otherwise illegal. Jeopardization of a species requires a “new risk of harm,” and no such risk has been identified in connection with re-issuance of the Cabins SUP. See Nat'l Wildlife Fed'n., 524 F.3d at 930. The SUP does not authorize any new activity beyond what is already occurring in the Cabins area, and any de minimis effect of continued use of the Cabins is permissible. See Pac. Coast Fed'n of Fishermen's Associations, 606 F.Supp.2d at 1212. Furthermore, the Court finds that the conservation measures set forth in the BiOp effectively minimize possible impacts.
Plaintiffs' remaining arguments challenging the BiOp's findings regarding the population and environmental baselines and the use of the best available scientific evidence lack factual and legal support. Because “the evidence in the administrative record permitted the agency to make the decision it did” as a matter of law, the Court recommends that summary judgment be denied to Plaintiffs and granted to Defendants as to the Cabins BiOp and that the Court affirm the agencies' findings in, and reliance on, the Cabins BiOp. Haaland, 562 F.Supp.3d at 76.
B. The Camp Biological Opinion violates the ESA and the APA because it lacks a rational basis for its no-jeopardy finding.
The Camp has existed since 1966 but has not been operational since 2017, and the most recent SUP expired December 31, 2008. (Doc. 130 at 18; doc. 33 at FWS01388, doc. 36 at ¶ 01783.) The Camp area includes approximately 5.9 acres of structures and utilities as well as a surrounding buffer. (Doc. 32 at FWS01163, FWS01166.) The proposed SUP allows the existing facilities to be maintained and operated for a maximum of 120 individuals, with activity limited to between April 15th and November 15th of each year. (Doc. 32 at FWS01163-64.) Anticipated activities include spring maintenance and preparation, weekly events, shutdown procedures, and annual facility maintenance. (Doc. 32 at FWS01180.) Fire protection by way of removing dead and flammable debris and vegetation within 30 feet of buildings will also occur. (Doc. 32 at FWS01180.) The BiOp finds that any habitat changes within the Camp area are unlikely to affect MGRS because they will occur in or near the Camp structures, which do not provide MGRS habitat. (Doc. 32 at FWS01188-89.) The BiOp further finds that enforcement of a 92-foot buffer around middens, within which no habitat disturbance will occur, will minimize impacts to MGRS. (Doc. 32 at FWS01188.)
The BiOp identifies three discrete consequences that could impact MGRS as a result of reissuance of the Camp SUP. (Doc. 32 at FWS01182-88.) The first is injury or death as a result of vehicle strikes, interactions with service animals, or removal of vegetation. (Doc. 32 at FWS01182.) However, vehicle strikes are unlikely because the rough surface of the dirt road, in combination with the possible presence of children, minimizes the possibility that a vehicle would travel faster than 10 miles per hour. (Doc. 32 at FWS01182.) Furthermore, USFS intends to brief staff and campers annually on the importance of protecting MGRS in the area, which will increase awareness among Camp users and reduce the risk of harm to MGRS. (Doc. 32 at FWS01182.)
The second identified consequence is disturbance from human noise and presence. (Doc. 32 at FWS01183.) Conservation measures including restrictions on use between November and April, noise and lighting restrictions, educational outreach, and enforcement of a 92-foot buffer zone around active middens are designed to minimize any disturbance. (Doc. 32 at FWS01184-85.)
The third consequence identified in the BiOp is the alteration or removal of habitat. (Doc. 32 at FWS01187.) The maintenance and improvement of Camp structures and infrastructure and fire protection thereof occurs only within the approximately 5.9 acres containing the Camp buildings and infrastructure. (Doc. 32 at FWS01187-88.) The remaining acres are forested and provide MGRS habitat or have been burned and do not provide habitat. (Doc. 32 at FWS01187.) The BiOp finds that any potential habitat alterations are unlikely to affect MGRS because they will occur primarily within the area that does not provide MGRS habitat. (Doc. 32 at FWS01187-88.) Further, any vegetation removal outside that area will require permission from USFS and will not be allowed within 92 feet of active middens. (Doc. 32 at FWS01187-88.) Annual fall monitoring of midden activity will allow USFS to enforce the 92-foot buffer around any new middens. (Doc. 32 at FWS01187-88.)
The BiOp states that three middens are currently active in the Camp area. (Doc. 32 at FWS01180, 01186.) Midden activity in the Camp area has been dynamic over time, apparently as a result of habitat loss from fire, though one midden has remained active for at least ten years. (Doc. 32 at FWS01186-87.) Two middens became inactive after the Frye Fire in 2017, and the BiOp finds it unlikely that MGRS will reinhabit the burned areas, due to habitat loss. (Doc. 32 at FWS01186.) The BiOp finds that fire damage has affected MGRS habitat and occupancy more than the Camp's use, and therefore human disturbance is unlikely to lead to long-term abandonment of the Camp area by MGRS that “may be habituated to human noise and presence.” (Doc. 32 at FWS01186-87.) The BiOp concludes that re-issuance of the Camp SUP will not jeopardize the continued existence of MGRS. (Doc. 32 at FWS01189, FWS01192-94.)
Upon review, the Court finds that the Camp BiOp's conclusion that the level of human presence authorized in the SUP will not cause MGRS to abandon the Camp area because MGRS is habituated to that level of human presence lacks a rational basis. (See doc. 32 at FWS01196.) Further, the Camp BiOp fails to consider an important aspect of the proposed re-issuance of the Camp SUP, namely, that there is currently no human presence in the Camp area. See Friends of Santa Clara River, 887 F.3d at 920 (court will vacate agency's decision if it has “failed to consider an important aspect of the problem”).
The Camp permit expired in 2008, and it has not been operational since 2017. (Doc. 122 at ¶ 01783; doc. 111 at ¶ 01388; doc. 32 at FWS01163-64 (authorizing 120 individuals to use and occupy Camp).) Despite this, the BiOp concludes that MGRS is habituated to the levels of human presence and development authorized by the proposed action. (See doc. 32 at FWS01189 (three active middens “created by MGRS under the existing level of development and activity being permitted by the proposed action”); FWS01193 (MGRS habituated to human presence and disturbance); FWS01196 (“[A]ny MGRS occupying middens in the Camp action area may be harassed through human presence and noise at a level and duration that currently occurs in the action area.”).)
The SUP would authorize up to 120 individuals to occupy the Camp area and perform activities associated with its operation. Thus, the change in the level of human presence and activity that would occur with re-issuance of the Camp SUP is significant. The BiOp does not consider or address the substantial change in the level of human presence that will occur with re-issuance of the Camp SUP, or its possible effects on MGRS. It is not reasonable to assume, without any explanation or analysis, that MGRS in the Camp area would not be affected by such a significant change in the level of human presence, and the BiOp does not consider this important aspect of the problem. The Court acknowledges that the BiOp finds that MGRS survival is not negatively impacted by human presence. However, the Camp BiOp must rationally link its conclusion that reissuance of the Camp SUP will not jeopardize MGRS with the facts in the record regarding human presence in the Camp area. See Wild Fish Conservancy, 628 F.3d at 527-28.
The Court further notes that the Camp is located just three-quarters of a mile from the Cabins. (See doc. 134 at 10.) However, the proximity of the Camp to the Cabins does not absolve FWS of its obligation to rationally link its conclusions with its factual findings as to the Camp SUP, specifically.
Contrasting the Camp BiOp with the Cabins BiOp illustrates the discrepancy. The Cabins BiOp finds that MGRS in the Cabins area are habituated to human presence, and therefore will not be significantly negatively impacted by the proposed action, because MGRS have continuously coexisted with Cabins occupants. (See doc. 125 at ¶ 01966, FS01968.) The Cabins have, in fact, been continuously occupied, and therefore the conclusion that MGRS in the Cabins area are habituated to human presence is reasonable. The Camp, in contrast, has not been operational for at least five years. Therefore, logic would dictate the opposite conclusion-MGRS in the Camp area are likely not habituated to human presence and therefore may be more affected by human presence than MGRS in areas where humans have been continuously present. Accordingly, the Camp BiOp lacks sufficient support for its findings that (1) re-issuance of the Camp SUP will result in the same level of human presence, activity, and development as current use of the Camp, and (2) MGRS in the Camp area are habituated to, and will therefore not be significantly disturbed by, human presence at the Camp. (Doc. 32 at FWS01192-93.) Because the Camp BiOp relies on these unsupported findings for its no-jeopardy determination, the nojeopardy determination also lacks sufficient factual and legal support. (Doc. 32 at FWS01192-93; see Wild Fish Conservancy, 628 F.3d at 527 (ESA requires agency to articulate rational connection between facts and conclusions); Friends of Santa Clara River, 887 F.3d at 920 (9th Cir. 2018) (same under APA).
Accordingly, the Court recommends granting Plaintiffs summary judgment as to the Camp BiOp's no-jeopardy determination and remanding the Camp BiOp for further consideration of whether and how the renewed human presence in the Camp, authorized by the Camp SUP, will impact MGRS.
C. The Cabins and Camp Incidental Take Statements violate the ESA because they lack a clear standard for when take has been exceeded.
The ITSs for the Cabins and Camp find that all squirrels will be taken in the form of harassment due to the re-issuance of the SUPs. (Doc. 125 at ¶ 01968; doc. 32 at FWS01195-96.) The ITSs do not anticipate injury or death of any squirrels, however, they anticipate that squirrels will be taken via harassment due to human presence and noise. (Doc. 125 at ¶ 01968; doc. 32 at FWS01196.) “Harassment,” as defined in the ESA, is “intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.” (Doc. 125 at ¶ 01967 (citing 50 C.F.R. § 17.3).) The ITSs find that harassment may occur through human presence and vehicular and human noise, which may cause MGRS to temporarily alter their feeding or sheltering behavior but will not likely cause them to abandon the area. (Doc. 125 at ¶ 01968; doc. 32 at FWS01196.))
The ITSs set forth two ways in which take may be considered exceeded. (Doc. 125 at ¶ 01969; doc. 32 at FWS01197.) The first is if any MGRS is found injured or killed and the harm can be attributed to the re-issuance of the SUPs. (Doc. 125 at ¶ 01969; doc. 32 at FWS01197.) The second is if no active middens are present over the course of two consecutive USFS fall monitoring surveys. (Doc. 125 at ¶ 01969; doc. 32 at FWS01197.) This second standard is based on an analysis of historical data showing that, while one fall season without midden activity may be due to “natural fluctuations” in squirrel population and midden use, more than one fall season without active middens may indicate that anticipated impacts have been exceeded. (Doc. 125 at ¶ 01969; doc. 32 at FWS01197.) The ITSs provide that, should no active middens be identified for two consecutive fall seasons, USFS and FWS will work together to determine whether the absence of middens, and therefore of MGRS, is due to extraneous factors or to the re-issuance of the Camp and/or Cabins SUPs. (Doc. 125 at ¶ 01969-70; doc. 32 at FWS01197-98.)
As discussed above, midden activity is used as a surrogate for the amount of anticipated take of MGRS. (Doc. 125 at ¶ 01968-69.)
The ESA's implementing regulations require that an ITS set a clear standard for determining when the level of anticipated take has been exceeded. Arizona Cattle Growers' Ass'n, 273 F.3d at 1251 (agency's failure to provide a clear standard for determining when level of take has been exceeded is arbitrary and capricious); see also 50 C.F.R. § 402.14 (i)(1)(i). The determination of whether anticipated take has been exceeded cannot be “within the unfettered discretion” of the consulting agency. Id. at 1251. There must be a method by which a third party or the action agency can objectively determine whether take has been exceeded and can thereby “gauge [the] performance” of the consulting agency. Id. at 1251.
Here, the ITSs state that take will be considered exceeded if the agencies determine that the lack of midden activity for two consecutive fall seasons is attributable to the proposed actions. Specifically, “USFS and FWS will work together to determine whether the absence of middens (and therefore of MGRS) is due to extraneous factors or to the reissuance of the [] SUPs.” (Doc. 125 at ¶ 01969-70; doc. 32 at FWS01197-98.) However, the ITSs contain no further information about how the agencies will decide whether excessive take is due to the proposed actions. Absent a clear standard for how that determination will be reached, the ITSs lack the objectivity necessary to avoid arbitrariness. Simply allowing the agencies to determine the cause of a lack of midden activity, without clear parameters for how that determination will be reached, allows agency discretion to an impermissible extent. As a result, the ITSs' failure to set forth a clear and objectively verifiable standard for determining whether anticipated take has been exceeded due to the proposed actions is arbitrary and capricious in violation of the APA and ESA. See Arizona Cattle Growers' Ass'n, 273 F.3d at 1251 (agency's failure to provide clear standard for when authorized level of take was exceeded was arbitrary and capricious). Accordingly, the Court recommends granting summary judgment to Plaintiff on the issue of whether the ITSs set a clear standard for when take has been exceeded, and remanding the Cabins and Camp ITSs for FWS to provide a clear standard for when anticipated take has been exceeded due to the proposed actions. Haaland, 562 F.Supp.3d at, 76 (summary judgment appropriate for resolution of purely legal questions in review of agency actions).
D. The Defendants' remaining arguments lack merit.
The Court has considered Defendants' Cross-Motion for Summary Judgment and finds that it does not resolve the issues identified for remand. Specifically, although the Cross-Motion for Summary Judgment contends that the no-jeopardy findings of both the Camp and Cabins Bi-Ops are reasonable, it does not address the critical discrepancy in the Camp Bi-Op discussed above. (See doc. 134 at 16-20.) Regarding the standard for determining whether take has been exceeded, Defendants attempt to add parameters to the determination process that are not actually included in the ITS, and further contend that Plaintiffs may bring a lawsuit in the future if the agencies fail to appropriately re-initiate consultation. (See doc. 134 at 36-37.) These arguments do not remedy the lack of specificity and clarity in the ITS; furthermore, any harm to MGRS that may result from a lack of re-initiation of consultation under the necessary circumstances can be avoided by setting forth an objective and specific standard at this juncture.
VI. Recommendation
For the reasons stated above, the Magistrate Judge recommends that the District Judge enter an Order granting in part and denying in part Plaintiffs' Motion for Summary Judgment (docs. 129, 130) and granting in part and denying in part
Defendants' Cross-Motion for Summary Judgment (docs. 133, 134), as follows:
(1) As to Count One, Plaintiffs' Motion for Summary Judgment be granted with
respect to the Camp BiOp and the Camp and Cabins ITSs, and otherwise denied.
(2) As to Counts One and Two, Defendants' Motion for Summary Judgment be granted with respect to the Cabins BiOp, and otherwise denied.
(3) As to Count One, The Camp BiOp be remanded for further consideration and articulation of whether and how the renewed human presence in the Camp area authorized by the SUP will affect MGRS.
(4) As to Count One, the Camp and Cabins ITSs be remanded for determination of a clear standard for when anticipated take has been exceeded as a result of the proposed actions.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within ten (10) days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within ten (10) days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-412-TUC-JAS.