696 F. Supp. 3d 1033 (D. Wyo. 2023)

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W. Watersheds Project v. Vilsack

United States District Court, D. Wyoming

Sep 29, 2023

696 F. Supp. 3d 1033 (D. Wyo. 2023)

Opinion

Case No. 22-CV-214-SWS

2023-09-29

WESTERN WATERSHEDS PROJECT, Rocky Mountain Wild, and WildEarth Guardians, Petitioners, v. Thomas VILSACK, Secretary of the U.S. Department of Agriculture; and United States Forest Service, Federal Respondents, and State of Wyoming, Intervenor-Respondent.

John Sterling Persell, III, Portland, OR, Matthew Sandler, Pro Hac Vice, Matt Sandler Law, Louisville, CO, Megan Backsen, Pro Hac Vice, Reno, NV, for Plaintiffs Western Watersheds Project, Rocky Mountain Wild. Jennifer R. Schwartz, Pro Hac Vice, John Sterling Persell, III, Portland, OR, Matthew Sandler, Pro Hac Vice, Louisville, CO, Megan Backsen, Pro Hac Vice, Reno, NV, for Plaintiff WildEarth Guardians. Erika Norman, Pro Hac Vice, Robert Norway, Pro Hac Vice, United States Department of Justice, Natural Resources Section, Environmental & Natural Resources Division, Washington, DC, Taylor Mayhall, Pro Hac Vice, DOJ-Enrd, Wildlife and Marine Resources Section, Washington, DC, Jasmine M. Peters, DOJ-USAO, Cheyenne, WY, for Federal Defendants. Travis Steven Jordan, Shannon Leininger, Wyoming Attorney General's Office Water & Natural Resources Division, Cheyenne, WY, for Intervenor-Respondent.

Scott W. Skavdahl, United States District Judge

ORDER UPHOLDING AGENCY ACTION ON JUDICIAL REVIEW

Scott W. Skavdahl, United States District Judge

This case comes before the Court under the Administrative Procedure Act (APA) on judicial review of the U.S. Forest Service's 2020 land management plan amendment for the Thunder Basin National Grassland in Wyoming. The administrative record has been submitted (ECF 47) and the parties have fully briefed the issues (ECF 66, 67, 68, 69). Having considered the parties' filings, reviewed the record, and being otherwise fully advised, the Court determines the land management plan amendment should be affirmed.

The Court concludes oral argument would not materially assist in the consideration of this review. See Local Civil Rule 83.6(c). The Court has carefully considered the parties' extensive briefing and reviewed the more than 2,000 documents comprising the administrative record. Consequently, the Court has all the information necessary to render its decision.

INTRODUCTION

The Thunder Basin National Grassland covers more than 500,000 acres of federal land, intermingled with more than one million acres of private and State lands, in northeastern Wyoming. (Administrate Record 26625, 26690.) The Grassland is part of the national forest system and is managed by the U.S. Forest Service, an agency within the U.S. Department of Agriculture. (Id.) In 2020, the Forest Service amended its land management plan for the Grassland. (AR 27719-27811.) In his Memorandum Opinion and Order transferring this lawsuit from the District of Columbia to this Court, United States District Judge Christopher Cooper neatly summarized the primary dispute concerning the Forest Service's 2020 amendment:

Citations to the Administrative Record will take the form of "AR [bates-stamp number]." The Forest Service will please ensure future administrative records do not contain documents that are double stamped, which makes the bates-number very difficult to accurately ascertain. (See, e.g., AR 56414, 56762.)

The amendment focused on management of the black-tailed prairie dog. Cousin to the squirrel, ecologists consider this diminutive rodent to be a sensitive "keystone" species because many other prairie animals rely on it for food and protection in its underground burrows.

One such dependent is the black-footed ferret, which preys mainly on prairie dogs. Once thought to be extinct, a small number of these ferrets have been bred in captivity and reintroduced into supportive habitats in parts of the western United States. Due to its historically abundant population of prairie dogs, the Forest Service has considered the Grassland for potential reintroduction of the black-footed ferret in the future.

While many extol the ecological benefits of black-tailed prairie dogs, others are not so enamored. The State of Wyoming, for one, deems them an "agricultural pest." And owners of private land adjacent to the Grassland sometimes shoot or poison them to protect livestock grazing areas from encroachment. The plaintiff environmental organizations, on the other hand, work to conserve prairie dog populations and "promote non-lethal prairie dog management." These divergent perspectives have caused "public opinions related to prairie dog management [to] be deeply divided."

The Forest Service professes to have collaborated with a range of local stake-holders to carefully balance these competing interests in crafting the 2020 amendment. Most relevant here, the amendment limits the maximum acreage within the management area where the Forest Service will control the prairie dog population to 10,000 acres[ ]—around two-thirds the size of Manhattan. The amendment also renames the management area to remove reference to the reintroduction of black-footed ferrets . . . and requires that "any [future] effort to reintroduce [the] ferrets[s] shall occur in coordination with the Wyoming Game and Fish Department[.]" The Forest Service expresses confidence that these and other measures contained in the amendment "will provide the ecological conditions necessary to maintain a viable population of each potential species of conservation concern within the plan area and would contribute to recovery of the black-footed ferret if reintroduction were proposed in the future."

The plaintiffs aren't buying it. In their view, the amendment effectively eliminates the Grassland as a potential reintroduction site for the black-footed ferret, thereby inhibiting the species' overall recovery. They thus filed suit . . . challenging the amendment under the Administrative Procedure Act, National Environmental Policy Act, Endangered Species Act, and National Forest Management Act.

(ECF 28 pp. 1-3 (internal citations omitted).)

STANDARD OF REVIEW OF AGENCY ACTION

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (internal quotation marks omitted). The Administrative Procedure Act includes a limited waiver of sovereign immunity that allows for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The APA sets forth the full extent of a court's authority to review a federal agency's action and, relevant to this case, provides the reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706.

Reviewing agency action for its compliance with law is mostly a straightforward application of the law to the facts. Meanwhile, determining whether agency action is arbitrary and capricious is generally the same as determining whether it was an abuse of discretion. See Dep't of Com. v. New York, 588 U.S. 752, 139 S. Ct. 2551, 2569, 204 L.Ed.2d 978 (2019) (reviewing the claim that the Secretary of Commerce abused his discretion "under the deferential 'arbitrary and capricious' standard"). The scope of review for arbitrary-and-capricious/abuse-of-discretion is "narrow." Id. The Court determines "only whether the [agency] examined 'the relevant data' and articulated 'a satisfactory explanation' for [its] decision, 'including a rational connection between the facts found and the choice made.' " Id. (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)); see also Am. Petroleum Inst. v. United States Dep't of Interior, 81 F.4th 1048, 1057-58 (10th Cir. 2023). The Court does not substitute its own judgment for the agency's but instead only determines whether the agency "remained 'within the bounds of reasoned decisionmaking.' " Id. (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). "In performing arbitrary and capricious review, we accord agency action a presumption of validity; the burden is on the petitioner to demonstrate the action is arbitrary and capricious." Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793 (10th Cir. 2010).

BACKGROUND

1. The Black-tailed Prairie Dog , the Black-footed Ferret and Sylvatic Plague

The Thunder Basin National Grassland is home to a large number of black-tailed prairie dogs, which are native to the grasslands throughout western North America. (AR 26627.) "Black-tailed prairie dogs are considered a keystone species because they modify and create unique habitat for a variety of other species and because their effects on the ecosystem are disproportionally large relative to their abundance (Hoogland 2006)." (Id.) "When analyzing the ecological sustainability, diversity of plant and animal communities, and ecosystem services within the plan area specific to the proposed plan amendment, prairie dogs and the habitat they provide, as well as their impacts on the landscape, are critical considerations." (AR 26628.) In addition to their significance to the ecosystem, prairie dogs also create an assortment of problems.

Prairie dog burrowing and clipping habits, and the variable nature of their colony extent can have negative effects on forage availability for domestic livestock; infrastructure such as dams, cemeteries, corrals, and buildings; and the monetary value of pasture, residential, and other lands. Prairie dog burrows can also create a tripping hazard to horses, cattle, or humans, and prairie dogs can pose a risk for transmission of plague-causing bacteria to humans and domestic animals.

(Id.) Further, over the last several years, prairie dog numbers have been anything but stable on the Grassland. (See AR 26629 (showing total acres covered by black-tailed prairie dog colonies in the Grassland to have varied from 36,463 in 2016 to 76,155 in 2017 to 1,154 in 2018 following a large-scale sylvatic plague epizootic event and then to 3,578 in 2019); AR 27349 ("The Forest Service understands 2017 and 2018 to represent the maximum and minimum area of prairie dog colony extent on the [Grassland] since the Forest Service has managed it.").) Reducing this boom-and-bust population cycle along with minimizing prairie dog encroachment onto private and State lands were primary goals of the Forest Service's 2020 plan amendment. (AR 26637, 26638; see also AR 27666 ("In recent years, dramatic changes in prairie dog populations and increasing conflicts have indicated the need to change the grassland plan to allow Federal land managers to be more responsive to a variety of environmental and social conditions.").) Despite multiple petitions, the black-tailed prairie dog has never been listed as endangered or threatened under the Endangered Species Act (ESA), having been found not warranted for listing most recently by the U.S. Fish and Wildlife Service in 2009 "because of their observed resilience to population stressors, including sylvatic plague and poisoning." (AR 26627 (footnote omitted).)

The black-footed ferret was originally designated as an endangered species under legislation preceding the ESA, and that endangered listing was continued when the ESA was passed in 1973. (AR 5279.) It is the only ferret species native to North America. (AR 27667.) Black-footed ferrets are "intrinsically linked to the prairie dog (USFWS 2013a, 2019a)." (Id.) Prairie dogs make up to 90% of a black-footed ferret's diet, and black-footed ferrets live in prairie dog colonies year-round. (Id.) Historically, black-footed ferrets occupied prairie dog colonies from southern Canada to northern Mexico. (AR 67742.) However, with the settlement of the west, prairie dog habitats and numbers dramatically declined. (AR 5320, 67742-43.) And with the decline of the prairie dog throughout the western United States came the decline of the black-footed ferret. (AR 5320; AR 5289 ("the primary requirement for all black-footed ferret life stages is prairie dogs").)

Black-footed ferret populations declined for three principal reasons. First, a major conversion of native range to cropland, particularly in the eastern portion of the species' range, began in the late 1800s. Second, poisoning of prairie dogs to reduce competition with domestic livestock for forage began in the early 1900s. Third, the exotic disease sylvatic plague first impacted prairie dogs and ferrets in the 1930s (Eskey and Hass 1940).

(AR 56784.) Black-footed ferrets were thought to be extinct as of 1979 until a single small population was found near Meeteetse, Wyoming in 1981. (AR 5320.) The last surviving wild black-footed ferrets were captured from that population in the mid-1980s, which were used to initiate a still-ongoing captive breeding program. (AR 5321.)

The black-footed ferret recovery program includes attempts to release ferrets into certain prairie dog colonies to encourage their self-sustaining survival in the wild. The first such reintroduction occurred in 1991 at Shirley Basin, Wyoming, and in the intervening years, 28 other reintroduction sites have been attempted ranging from Canada to Mexico. (AR 5321.) As of the Fall of 2018, 14 of those sites, including two in Wyoming (Shirley Basin and Meeteetse), contained active ferret populations. (AR 5321, 5323.) Unfortunately, the ferret populations at the other 15 sites did not survive sylvatic plague outbreaks. (AR 5321.) Based on demographic studies of the last naturally occurring wild ferret population in Wyoming in the early 1980s, the U.S. Fish and Wildlife Service "considers 30 breeding adults a minimum for a population of ferrets to be self-sustaining (USFWS 2013a, p. 70)." Endangered and Threatened Wildlife and Plants; Revision of a Nonessential Experimental Population of Black-footed Ferrets (Mustela nigripes) in the Southwest, 86 Fed. Reg. 33613, 33615 (June 25, 2021); see also AR 56831 (describing a minimum of 30 breeding adults as "large enough to sustain a population").

Sylvatic plague is a non-native infectious bacterium spread by fleas that primarily affects rodents, including both prairie dogs and black-footed ferrets. (AR 5294.) During a sylvatic plague epizootic event (swift, large-scale infections and deaths), "the likelihood of entire populations of black-footed ferrets being extirpated . . . is high." (AR 5295.) This is due to the plague directly causing the death of ferrets as well as the death of the ferrets' primary food source. (AR 5294.) Some success has been seen in combating sylvatic plague with vaccinations given to ferrets and when insecticide is dusted around individual prairie dog burrows to control fleas. (AR 5294-95; AR 72149-50.) Both tactics have limitations, though. For example, vaccine supplies have been limited at times, and vaccinating ferrets born in the wild can be difficult because it involves successfully trapping them twice, two to four weeks apart. (AR 5296, 72148-50.) Meanwhile, fleas in some areas have shown an evolved resistance to repeated insecticidal dustings, and dusting incurs high labor and materials costs. (AR 5296, 72148-50.) To make matters worse, "[r]ecent experience at [the Conata Basin-Badlands reintroduction site] indicates that dusting alone is insufficient to maintain ferret populations during a plague epizootic and that vaccination increases the survival of ferrets on dusted colonies; without both dusting and vaccination the population at Conata Basin-Badlands would likely have perished." (AR 5296.)

2. The Forest Service's 2020 Land Management Plan Amendment

Based in part on its ability to host large prairie dog populations, the Thunder Basin National Grassland was identified over 20 years ago "as one of the highest-priority [black-footed] ferret recovery sites in the national recovery program." (AR 72150.)

For the purpose of prairie dog and prairie ecosystem conservation including restoration of the black-footed ferret, a Land and Resource Management Plan amendment in 2002 designated 58,000 acres within Cellars-Rosecrans Geographic Area as a unique Management Area (MA 3.63, black-footed ferret reintroduction habitat). This acreage was reduced to 44,420 with the 2009 Plan Amendment. Management Area 3.63 on the Thunder Basin National Grassland is managed for prairie ecosystem values with the intent of providing a potential recovery site for the black-footed ferret as well as suitable habitat for species associated with prairie dog colonies including the mountain plover, burrowing owl, and swift fox.

(Id.) The 2009 plan amendment "also introduced the Black-Tailed Prairie Dog Conservation Assessment and Management Strategy, which designated prairie dog colony acreage objectives and established decision-making processes for prairie dog control." (AR 27725-26.) That strategy included the objective to manage prairie dog colonies toward covering 33,000 acres of land. (AR 26611.) No attempts have been made to reintroduce black-footed ferrets on the Grassland, though.

Barriers to reintroduction on the Thunder Basin National Grassland in the past have included cycles of sylvatic plague, which decrease the population and extent

of prairie dog colonies; lack of prairie dog control including boundary control during colony expansions; and lack of acceptance of prairie dogs or reintroduction of black-footed ferrets by adjacent landowners and local communities. No reintroduction efforts have occurred on the Thunder Basin National Grassland, and none are being planned at this time.

(AR 26633.) This was how things stood prior to the Forest Service's 2020 plan amendment.

The acreage covered by the management area in question (formerly MA 3.63, now MA 3.67) has varied over time, but appears to have been approximately 51,000 acres immediately prior to the 2020 plan amendment. (See AR 26648.)

The Forest Service's focus and intentions for this management area within the Grassland changed dramatically with the 2020 plan amendment. The overall acreage of the management area was reduced slightly to about 42,000 acres. (AR 27232, 27727, 27730.) Most significantly, the overarching focus of the area was changed from the reintroduction of black-footed ferrets toward prairie dog management. (See AR 27727 ("boundaries will be redrawn to be more conducive to prairie dog management")). This is immediately shown in the fact that the area was reclassified from a Management Area 3.63, "Black-Footed Ferret Reintroduction Habitat," to a Management Area 3.67, "Short-Stature Vegetation Emphasis." (AR 27727.) Additionally, a primary goal of the 2020 plan amendment was to manage the prairie dog population in Management Area 3.67 (formerly 3.63) toward covering 10,000 acres (7,500 during drought conditions), down from 33,000, which obviously represents a significant decrease in acreage devoted to prairie dog colonies. (AR 27727.) Under the 2020 plan amendment, this reduced target for prairie dog colony acreage may be achieved through several means, including increased prairie dog poisoning, increased recreational shooting opportunities, and altered sylvatic plague mitigation. (AR 27727-28.)

With less prairie dog colony acreage comes less opportunity for the successful reintroduction of black-footed ferrets. (See AR 26627 (noting the black-footed ferret "depends exclusively on prairie dog colonies for survival").) Petitioners' primary (but not only) dispute with the 2020 plan amendment is this reduced opportunity for black-footed ferret reintroduction, which they say violates the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the National Forest Management Act (NFMA).

DISCUSSION

Federal Respondents contend Petitioners do not have legal standing to assert this lawsuit. The Court turns first to that issue.

1. Petitioners' Standing

Article III, Section 2 of the U.S. Constitution limits federal courts' jurisdiction to "Cases" and "Controversies." "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016). For a plaintiff to possess Article III standing, the law requires:

(1) that the plaintiff have suffered an "injury in fact"—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); see also W. Watersheds Project v. Interior Bd. of Land Appeals, 62 F.4th 1293, 1296-97 (10th Cir. 2023). As the party attempting to invoke federal jurisdiction, the plaintiff bears the burden of establishing standing. Spokeo, 578 U.S. at 338, 136 S.Ct. 1540. So long as at least one plaintiff possesses standing to sue, "the suit may proceed." Biden v. Nebraska, — U.S. —, 143 S. Ct. 2355, 2365, 216 L.Ed.2d 1063 (2023) (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52, n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006)).

Here, the three petitioners are all environmentally focused organizations. "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).

The Court has little difficulty finding Petitioners have demonstrated sufficient standing to pursue this action. A member of each Petitioner organization submitted a signed declaration setting forth their interest in the Forest Service's 2020 plan amendment. (See ECF 66-2, 66-3, 70-1.) Each member described their personal interest in conserving and viewing black-tailed prairie dogs (among other wildlife) and encouraging reintroduction efforts of black-footed ferrets on the Grassland. For example, Erik Molvar, from Petitioner Western Watersheds Project, has visited the Grassland multiple times to hike, camp, and view wildlife, including photographing black-tailed prairie dogs; he has assisted in the reintroduction of black-footed ferrets by participating in the release of captive-bred ferrets into the Shirley Basin, Wyoming reintroduction site; and he has advocated for creating conditions on the Grassland favorable to the prairie dog and future ferret reintroduction. (Molvar Decl. ¶¶ 14-15, 18-20, 22.) "[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Mr. Molvar recently visited the Grassland in 2020 and 2022, and he had plans to camp and hike there again in July 2023 (his declaration was signed and submitted in May 2022). (Molvar Decl. ¶¶ 19-21.)

The invasion of Mr. Molvar's interest in viewing prairie dogs and black-footed ferrets (and other wildlife) on the Grassland is fairly traceable to the 2020 plan amendment and not the independent action of some third party. By drastically decreasing the target prairie dog colony acreage, though, the 2020 plan amendment significantly decreases the likelihood of observing prairie dogs or reintroduced black-footed ferrets. (See AR 26614 (noting that prior to the change, the target prairie dog colony acreage in Management Area 3.63 of the Grassland would support the reintroduction of "at least 100 breeding adult ferrets," but after enacting the 2020 plan amendment, now-Management Area 3.67 will only support the reintroduction of "at least 30 adult ferrets").) Federal Respondents contend the 2020 plan amendment is only a "continuation of the status quo (i.e., no ferrets on the Grassland)." (ECF 67 p. 33.) This is not accurate as it ignores the reduced opportunity for ferret reintroduction, but, more significantly, it is not the only effect of the 2020 plan amendment at issue here. The reduced prairie dog colony acreage cannot reasonably be said to be a "continuation of the status quo." The changes implemented in the 2020 plan amendment constitute a "present or threatened injury" to Mr. Molvar's ability to observe prairie dogs and his desire to observe future black-footed ferrets on the Grassland at the time Petitioners sought judicial review of the amended plan. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Finally, a favorable decision in this judicial review action is reasonably likely to redress Mr. Molvar's alleged injury. Petitioners contend the proper remedy for the alleged violations of the ESA, NEPA, and NFMA is to vacate the 2020 plan amendment and require the Forest Service to comply with its duties under those statutes. (ECF 66 pp. 49-50; ECF 69 p. 26.) While several considerations go into whether vacatur is the appropriate remedy for a successful APA claim, see Dine Citizens Against Ruining Our Env't v. Haaland, 59 F.4th 1016, 1049 (10th Cir. 2023), the requested vacatur would set aside the 2020 plan amendment and revert the land management plan for former Management Area 3.63 back to having a much larger target for prairie dog colony acreage as part of its prairie dog conservation and ferret reintroduction goals. Thus, vacatur would effectively redress Mr. Molvar's claims by undoing the significant decrease in viewing opportunity for prairie dogs and reintroduction opportunity for black-footed ferrets.

At least one member of Petitioner Western Watersheds Project (Erik Molvar) would otherwise have standing to sue in their own right. Additionally, the interests Western Watersheds Project seeks to protect in this action are germane to the organization's purpose, which includes "the mission of protecting and restoring western watersheds and wildlife through education, public policy initiatives, and litigation." (Molvar Decl. ¶ 24.) More specifically, "Western Watersheds Project has long been active in efforts to protect and restore endangered, threatened, and sensitive wildlife populations in the state of Wyoming, including the black-footed ferret." (Id. ¶ 26.) And neither the claims asserted nor the relief requested in this action demand the participation of individual members. Consequently, the Court concludes Petitioners have sufficiently established Article III standing for this judicial review action to proceed.

2. Endangered Species Act (ESA)

Petitioners first argue the 2020 plan amendment violates the Forest Service's duties under the Endangered Species Act (ESA) to conserve the black-footed ferret. (ECF 66 pp. 33-37; ECF 69 pp. 9-14.) The ESA was enacted in 1973 "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). Once a species like the black-footed ferret is listed as endangered or threatened under the ESA by the U.S. Department of Interior, "it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect the species." Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000).

"As a Federal agency, the Forest Service has responsibility to contribute to the recovery of threatened and endangered species according to section 7 of the Endangered Species Act." (AR 26631.) Petitioners primarily rely on Section 7(a)(1) of the ESA, codified at 16 U.S.C. § 1536(a)(1), which instructs that federal agencies "shall, in consultation with and with the assistance of the Secretary [of the Department of Interior or of Commerce, as relevant], utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species . . . ." 16 U.S.C. § 1536(a)(1). Petitioners contend the Forest Service's 2020 plan amendment violates the ESA's affirmative conservation obligation because the amendment deemphasized ferret reintroduction by (1) removing "the ferret reintroduction habitat designation," (2) reducing "the size of the prior black-footed ferret reintroduction area," (3) prioritizing "livestock grazing interests over ferret recovery needs," (4) decreasing habitat for prairie dogs, and (5) increasing prairie dog poisoning, thus generally degrading "habitat previously managed to facilitate black-footed ferret reintroduction." (ECF 66 p. 35.) They argue that "under the 2020 Amendment, ferret reintroduction on the Thunder Basin is incredibly unlikely if not impossible because MA 3.67 [formerly MA 3.63] is now inhospitable to black-footed ferrets." (Id. p. 36.) Consequently, assert Petitioners, the Forest Service "fails to fulfill its affirmative duty under the ESA to further the black-footed ferret's recovery." (Id. p. 37.)

Petitioners have not demonstrated the 2020 plan amendment violates the Forest Service's statutory duties under the ESA. ESA Section 7(a)(1) [16 U.S.C. § 1536(a)(1)] does not carry the load Petitioners ask of it. "Section 7(a)(1) has a limited purpose under the Act: to authorize Federal agencies to factor endangered species conservation into their planning processes, regardless of other statutory directives." Interagency Cooperation—Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19926, 19934 (June 3, 1986). "[T]he Act does not mandate particular actions to be taken by Federal agencies to implement 7(a)(1)." Id.; see also N. New Mexico Stockman's Ass'n v. United States Fish & Wildlife Serv., 494 F. Supp. 3d 850, 944 (D.N.M. 2020) ("the federal judiciary accords considerable deference to an agency's interpretation of a statute that Congress has tasked it with enforcing"), aff'd, 30 F.4th 1210 (10th Cir. 2022). ESA Section 7(a)(1) requires federal agencies to carry out programs for conservation; it does not demand that every action or program be one with the primary goal of conservation. It would be unreasonable to read ESA Section 7(a)(1) as restricting federal agencies to conservation-only activities; even after enactment of the ESA, each agency remains statutorily tasked with its primary obligations and duties.

Agencies necessarily possess a good deal of discretion concerning how they carry out their ESA duties. In Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990), the Ninth Circuit interpreted ESA Section 7(a)(1) restrictively because interpreting it expansively would "divest an agency of virtually all discretion in deciding how to fulfill its duty to conserve." Id. at 1418. Multiple other courts, including this one, agree. See Nat'l Wildlife Fed'n v. Nat'l Park Serv., 669 F. Supp. 384, 387-88 (D. Wyo. 1987) (concluding the definition of "conservation" at 16 U.S.C. § 1532(3) demonstrates the discretion of agencies to determine how to implement conservation measures). "[A]n agency has broad discretion to carry out its obligation under section 7(a)(1) so long as its actions satisfy the ESA's general prohibition against jeopardizing listed species." San Francisco Baykeeper v. U.S. Army Corps of Engineers, 219 F. Supp. 2d 1001, 1026 (N.D. Cal. 2002) (citing Pyramid Lake, 898 F.2d at 1418); see also Florida Key Deer v. Paulison, 522 F.3d 1133, 1146 (11th Cir. 2008) ("A number of courts addressing section 7(a)(1) have stated that it imposes only a general requirement, the specifics of which are subject to the discretionary authority of each federal agency.") (collecting cases).

The Final Environmental Impact Statement (AR 26605-27514) and Record of Decision (AR 27719-27811) considered the likely effects of the 2020 plan amendment on black-footed ferrets and determined it would not harm them and would not preclude their introduction onto the Grassland in the future, thus complying with the requirements of ESA Section 7(a)(1). The best available information says the black-footed ferret does not currently inhabit the Grassland and has not done so for decades. (AR 26631 ("the most recent possible black-footed ferret sighting on the Thunder Basin was in 1980, and the last confirmed black-footed ferret sighting was documented before 1977").) Accordingly, the reduced prairie dog colony acreage under the 2020 plan amendment does not jeopardize a known population of black-footed ferrets. Cf. Tennessee Valley Authority v. Hill, 437 U.S. 153, 171-72, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (concluding the Tellico Dam project violated the ESA where it was undisputed that "operation of the Tellico Dam will either eradicate the known population of snail darters or destroy their critical habitat").

The U.S. Fish and Wildlife Service, "while listing species in accordance with regulations promulgated not inconsistent with 16 U.S.C. § 1533(b), shall prudently and concurrently 'designate any habitat of [the threatened or endangered species] which is then considered to be critical habitat.' " N. New Mexico Stockman's Ass'n v. United States Fish & Wildlife Serv., 494 F. Supp. 3d 850, 950 (D.N.M. 2020) (alteration in original) (quoting 16 U.S.C. § 1533(a)(3)(A)(i)), aff'd, 30 F.4th 1210 (10th Cir. 2022). When the black-footed ferret was "grandfathered" as endangered into the ESA (because it had been listed as endangered under prior legislation), it did not include any designation of critical habitat. (AR 56415.) Thus, the Grassland has never been designated a critical habitat for the black-footed ferret.

Further, the 2020 plan amendment continues to allow for future ferret reintroduction on the Grassland. A primary contention of Petitioners is that a self-sustaining population of black-footed ferrets requires at least 10,621 acres of black-tailed prairie dog habitat. (See ECF 66 pp. 24, 46, 47; ECF 69 p. 24.) This would render the 2020 plan amendment's goal of managing toward 10,000 acres of prairie dog colonies incapable of supporting the reintroduction of black-footed ferrets in the future. Petitioners have misrepresented the significance of this 10,621 figure, though. They rely on a 2011 study by Jachowski et al. for this number, and that study is part of the administrative record. The Jachowski study does not opine as Petitioners suggest. Instead, it noted that of the four "successful" sites of black-footed ferret reintroduction reviewed in the study, each one "had prairie dog populations that occupied an area of at least 4300 ha [approximately 10,621 acres]." (AR 42112.) This was an observation, not a commandment. The Jachowski study did proffer, though, that "[a]reas occupied by black-tailed prairie dogs . . . likely need to be large in spatial extent (>4000 ha) to meet minimum biological requirements for successful ferret populations." (AR 42116.) More than 4,000 hectares is more than 9,880 acres. And the 2020 plan amendment's goal of managing toward 10,000 acres of prairie dog colonies is more than 9,880, which is in line with the Jachowski study's suggestions.

One hectare (ha) is approximately 2.47 acres (ac).

Moreover, the administrative record also includes more recent documents stating the prairie dog colony acreage necessary for a viable black-footed ferret population is significantly less than that discussed in the 2011 Jachowski study. For example, according to the December 2019 Species Status Assessment Report for the Black-footed Ferret (Mustela nigripes), which was prepared by the U.S. Fish and Wildlife Service Black-footed Ferret Recovery Program along with members of the Black-footed Ferret Recovery Implementation Team (available at AR 5271-5412), "black-footed ferret populations need at least 30 breeding adults [for a self-sustaining population], which requires at least 1,800 ha [4,446 acres] of black-tailed prairie dog habitat." (AR 5271, 5289 (citing U.S. Fish and Wildlife Service, Recovery Plan for the Black-footed Ferret (Mustela nigripes) (Nov. 2013) (available at AR 56762-56918)).) Using these figures, which the U.S. Fish and Wildlife Service have described as "conservative" in favor of black-footed ferret reintroduction (AR 56834), the 2020 plan amendment's management target of 10,000 acres of prairie dog habitat in the Grassland is well more than necessary to support a self-sustaining reintroduced population of black-footed ferrets in the Grassland. This prairie dog colony acreage is unquestionably less than that desired by Petitioners, but the Court cannot say it was an unreasonable exercise of the Forest Service's discretion toward meeting its ESA conservation requirements concerning the black-footed ferret. And specifically, the Forest Service relied on this acreage estimate in its Record of Decision (ROD). (AR 27732 (noting "approximately 4,500 acres of black-tailed prairie dog colonies are expected to be necessary to support at least 30 breeding adult ferrets").) This reliance, too, was not unreasonable or arbitrary and capricious. The administrative record establishes the 2020 plan amendment continues to allow the Grassland to be a potential future home to the endangered ferret. (AR 27732 ("The acreage objectives for prairie dog colonies provided for in this decision would support reintroduction of 30 or more ferrets.").)

See AR 56834 (conservatively suggesting 90 hectares of black-tailed prairie dog habitat per female ferret with male ferrets having overlapping ranges with female ferrets, and noting that the target sex ratio is 1 male per 2 females). Ninety hectares × 20 female ferrets (20 females and 10 overlapping males per self-sustaining population minimum) equals 1,800 hectares (4,446 acres) per 30 breeding adult ferrets.

The 2015 10(j) Rule establishing reintroduced black-footed ferret populations in Wyoming as nonessential experimental populations (AR 56414-56431) asserted a viable population of ferrets requires only a minimum of 1,500 acres of black-tailed prairie dog colony, but it did so without explanation or citation (see AR 56417). The Court does not find the ROD's reliance (see AR 27732) on the more conservative figure of 1,800 hectares (about 4,446 acres) to be unreasonable or arbitrary and capricious because it is more recent and was based on observations of the reintroduced black-footed ferret population at Conata Basin, South Dakota (see AR 56834).

Citing U.S. Fish and Wildlife Service, Recovery Plan for Black-Footed Ferret (Mustela nigripes) (Nov. 2013) (available at AR 56762-56918), and Wyoming Game and Fish Department, Wyoming Black-footed Ferret Management Plan (Nov. 2018) (available at AR 62457-62482).

Finally, the reduction of black-tailed prairie dog colony acreage targeted by the 2020 plan amendment does not violate ESA Section 7(a)(1) because they have not been listed as an endangered or threatened species under the ESA due to "their observed resilience to population stressors, including sylvatic plague and poisoning." (AR 26627.) They are identified as a "sensitive" species by the Forest Service, Rocky Mountain Region (id.), but ESA Section 7(a)(1) does not apply to such classifications. See 16 U.S.C. § 1536(a)(1) (addressing conservation requirements for "endangered species and threatened species listed pursuant to section 1533 of this title"). And importantly, the Final Environmental Impact Statement (FEIS) for the 2020 plan amendment considered the likely effects on the black-tailed prairie dog in the area and concluded it was "not likely to result in a loss of viability in the planning area, nor cause a trend toward Federal listing." (AR 26613, 27170.) Indeed, part of the 2020 plan amendment's intention to manage the prairie dog colonies in Management Area 3.67 toward an objective of 7,500 acres during drought and 10,000 acres under normal conditions is to help stabilize the prairie dog population in the area. (See AR 27177-78 (noting one of the needs for changing the management plan is the "dramatic changes in prairie dog populations" and describing how Forest Service personnel had limited success under the former management plan of "minimizing rapid landscape-scale declines during plague epizootics" and how the 2020 plan amendment was designed to improve Forest Service personnel's responsiveness to the changing situations).) And it's also significant that while the Grassland is unquestionably an important habitat for the black-tailed prairie dog, it is not the only one; the black-tailed prairie dog range covers significant portions of ten states as well as southern Canada and northern Mexico. (AR 5284, 56780.)

The Court does not find the 2020 plan amendment violates ESA Section 7(a)(1) [16 U.S.C. § 1536(a)(1)], and the 2020 plan amendment will not be set aside on this basis. See Pyramid Lake, 898 F.2d at 1418 (dismissing an ESA Section 7(a)(1) claim where interagency consultation resulted in a "no jeopardy" finding); San Francisco Baykeeper, 219 F. Supp. 2d at 1026 (agency was granted summary judgment against ESA § 7(a)(1) claim because it was entitled to rely on "no jeopardy finding when carrying out its § 7(a)(1) duty to conserve listed species").

3. National Environmental Policy Act (NEPA)

Petitioners next contend the 2020 plan amendment violates NEPA in three different ways. (ECF 66 pp. 37-45; ECF 69 pp. 14-18.) "The purpose of NEPA is to require agencies to consider environmentally significant aspects of a proposed action, and, in so doing, let the public know that the agency's decisionmaking process includes environmental concerns." Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1162 (10th Cir. 2002), as modified on reh'g, 319 F.3d 1207 (10th Cir. 2003). NEPA concerns the procedure followed by an agency when adopting a course of action and "regulates an agency's collection and consideration of information." W. Watersheds Project v. United States Bureau of Land Mgmt., 76 F.4th 1286, 1290, 1295 (10th Cir. 2023). To ensure compliance with NEPA, all federal agencies are required to provide a detailed environmental impact statement on any major federal action which significantly may affect the quality of the environment. 42 U.S.C. § 4332(C). "The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration, including the reasonably foreseeable environmental trends and planned actions in the area(s)." 40 C.F.R. § 1502.15.

3.1 Narrow and Unreasonable Purpose

Petitioners first assert the 2020 plan amendment violates NEPA because its statement of purpose and need is impermissibly narrow and unreasonable. (ECF 66 pp. 37-40.) "Under NEPA regulations, planning begins with an identification of the purpose and need for a project." Davis v. Slater, 148 F. Supp. 2d 1195, 1205-06 (D. Utah 2001), rev'd sub nom. on other grounds by Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002). The Code of Federal Regulations requires each environmental impact statement to "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13.

The agency "has considerable discretion to define" the objective of the proposed action. Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1244 (10th Cir. 2011). However, the agency may not "define the objectives [of a proposed action] so narrowly as to preclude a reasonable consideration of alternatives." Id. (alterations in original) (quoting Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1030 (10th Cir. 2002)). The Court reviews "an agency's purpose-and-need statement for reasonableness." Nat'l Wildlife Fed'n v. United States Army Corps of Engineers, 75 F.4th 743, 753-54 (7th Cir. 2023) (citing Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013)); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) ("we review an agency's compliance with NEPA's requirements deferentially" and "uphold an agency's definition of objectives so long as the objectives that the agency chooses are reasonable").

Here, the Forest Service's Final Environmental Impact Statement (FEIS) for the 2020 plan amendment set forth the following purposes and needs:

The purpose of this proposed plan amendment is to:

• provide a wider array of management options to respond to changing conditions;

• minimize prairie dog encroachment onto non-Federal lands;

• reduce resource conflicts related to prairie dog occupancy and livestock grazing;

• ensure continued conservation of at-risk species; and

• support ecological conditions that do not preclude reintroduction of the black-footed ferret.

Specifically, an amendment is needed to:

• revise management direction in Management Area 3.63 - Black-Footed Ferret Reintroduction Habitat,

• adjust the boundaries of management area 3.63 to be more conducive to prairie dog management; and

• increase the availability of lethal prairie dog control tools to improve responsiveness to a variety of management situations, including those that arise due to encroachment of prairie dogs on neighboring lands, natural and human-caused disturbances, and disease.

(AR 26610.) Petitioners contend these purposes and needs contravene the Forest Service's duty under the ESA to aid in the recovery of the black-footed ferret. (ECF 66 pp. 38-40.) Of course, the Court's finding that the 2020 plan amendment conforms to the ESA's requirements removes a lot of the bite from this argument. More than that, though, the Court finds this purpose-and-need statement to reasonably fall within the Forest Service's discretion. The Court already mentioned earlier how the prairie dog population and acreage on the Grassland has varied drastically in recent years. (See AR 26629 (showing total acres covered by black-tailed prairie dog colonies in the Grassland to have varied from 36,463 in 2016 to 76,155 in 2017 to 1,154 in 2018 following a large-scale sylvatic plague epizootic event and then to 3,578 in 2019).) Increasing the Forest Service's ability to respond to changing conditions such as this boom-and-bust cycle reasonably aids the Forest Service in its quest to balance the wild, undeveloped parts of the Grassland with the interests of the adjacent private and State lands. Moreover, reducing the boom-and-bust cycle of the prairie dogs on the Grassland through improved responsiveness is important to any potential reintroduction of the black-footed ferret. After all, if there's a plague event to which the Forest Service cannot reasonably respond after ferret reintroduction, it would likely spell the demise of the intrinsically-linked ferret population, which nobody desires.

As discussed earlier, the reduced acreage for prairie dogs in the 2020 plan amendment does reduce the extent to which the Grassland can support a black-footed ferret population. (See AR 27732 (noting that "more than 15,000 acres are likely needed to support at least 100 ferrets" and that the 2020 plan amendment "would not provide sufficient habitat to support at least 100 breeding adults and therefore would not contribute to all recovery objectives").) And reclassifying the area from a Management Area 3.63 ("Black-Footed Ferret Reintroduction Habitat") to a Management Area 3.67 ("Short-Stature Vegetation Emphasis") (AR 27727) is a significant change. Nonetheless, the 2020 plan amendment aims to not preclude reintroduction of a black-footed ferret population, and as the Court already noted, the new intended prairie dog colony acreage is more than what is necessary to support a self-sustaining ferret population. (AR 5271, 5289, 56834.) While clearly not the ideal, neither the ESA nor NEPA require the Forest Service to manage the Grassland toward the ideal scenario for black-footed ferret reintroduction. Instead, the purposes and needs of the 2020 plan amendment must be reasonable. With the "considerable discretion," Wyoming, 661 F.3d at 1244, held by the Forest Service when defining the objectives of a proposed action, the Court cannot say the purposes and needs identified in the FEIS for the 2020 plan amendment are unreasonable in violation of NEPA. The 2020 plan amendment's purpose-and-need statement is not impermissibly narrow or unreasonable.

3.2 Reasonable Range of Alternatives

Next, Petitioners allege the 2020 plan amendment violates NEPA because it failed to consider a reasonable range of alternatives. (ECF 66 pp. 40-42; ECF 69 pp. 15-17.) NEPA requires an Environmental Impact Statement to include an analysis of alternatives to the proposed action. 42 U.S.C. § 4332(2)(C)(iii). "The agency must '[r]igorously explore and objectively evaluate all reasonable alternatives' for the proposed action in response to a 'specif[ied] underlying purpose and need.' " Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1051 (10th Cir. 2014) (alterations in original) (quoting 40 C.F.R. §§ 1502.13, 1502.14(a)). "The APA's reasonableness standard applies both to which alternatives the agency discusses and the extent to which it discusses them." Utahns for Better Transp., 305 F.3d at 1166. "[R]easonableness is judged with reference to an agency's objectives for a particular project." New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 709 (10th Cir. 2009).

The FEIS in this case properly reviewed and eliminated several alternatives that would not have achieved the purposes and needs of the plan amendment. (See AR 26671-78.) The FEIS adequately and reasonably explained why each of these alternatives would fail to meet one or more of the core objectives. (Id.) The FEIS also presented five alternatives that received detailed examination. (See AR 26611-26618, 26648-26671.) Very briefly, the five studied alternatives were:

• Alternative 1: No action. No change to the then-existing management plan. Continue to manage prairie dog colony acreage inside MA 3.63 toward an objective of 33,000 acres.

• Alternative 2: The original proposed action. Change MA 3.63 to "3.67 - Rangelands with Short-Stature Vegetation Emphasis," and change its area from approximately 51,000 acres to approximately 35,000 acres. Manage prairie dog colony acreage inside MA 3.67 toward an objective of 10,000 acres. No use of fumigant or anticoagulant rodenticide. No prairie dog recreational shooting in MA 3.67 or in satellite colonies from February 1 to August 15. Plague mitigation tools, including insecticide, may be used across the Grassland.

• Alternative 3: Grassland-wide alternative where all prairie dog acres on the Grassland count toward the single acreage objective. Change MA 3.63 to "3.67 - Rangelands with Short-Stature Vegetation Emphasis," and change its area from approximately 51,000 acres to approximately 29,000 acres. Manage prairie dog colony acreage across the entire Grassland toward an objective of 10,000 to 15,000 acres. Fumigant and anticoagulant rodenticides could be used in boundary management zones near private and State property, but only after three uses of zinc phosphide. No restrictions on prairie dog recreational shooting across the Grassland. Plague mitigation tools, including insecticide, may be used across the Grassland.

• Alternative 4: Prairie dog emphasis. Change MA 3.63 to "3.67 - Prairie Dog Emphasis" while retaining its current location and size. Manage prairie dog colony acreage toward an objective of 27,000 acres total, divided among certain areas. No use of fumigant or anticoagulant rodenticide. Limited prairie dog recreational shooting allowed in only certain areas. Plague mitigation tools, including insecticide, may be used across the grassland.

• Alternative 5: Preferred alternative. Change MA 3.63 to "3.67 - Short-Stature Vegetation Emphasis," and change its area from approximately 51,000 acres to approximately 42,000 acres. Manage prairie dog colony acreage inside MA 3.67 toward an objective of 10,000 acres. No use of anticoagulant rodenticide, but fumigants may be used in the boundary management zones bordering non-federal lands after at least two uses of zinc phosphide. No prairie dog recreational shooting in MA 3.67 from February 1 to August 15, but no restrictions on prairie dog recreational shooting outside MA 3.67. A plague management plan using an "integrated approach to plague management" for use within MA 3.67 to be developed within 3 years.

(See AR 26648-26671.)

As just this brief summary of the five action alternatives demonstrates, they presented a wide range of options and considerations. They ran the gamut from no action (Alternative 1) to strong prairie dog conservation (Alternative 4) to strong prairie dog population control (Alternative 3). The FEIS extensively discussed each alternative in comparison and contrast to each other (AR 26648-26688) and broadly considered each alternative's anticipated effect on the environment (AR 26690-26790). In the end, the responsible official adopted Alternative 5 after finding it "best achieves a balance between conservation and control of prairie dogs that can be implemented within the management and budgetary constraints of the agency" and would allow the Forest Service "to be more responsive to a variety of environmental and social situations on the grassland related to prairie dog management." (AR 27729.)

Having reviewed the FEIS and the ROD, the Court concludes the alternatives discussed by the Forest Service and the extent of that discussion were both reasonable. Contrary to Petitioners' assertions, the alternatives did not "directly contradict[ ] . . . the agency's statutory ESA recovery mandate." (ECF 66 p. 40.) As addressed above, the Court finds no ESA transgression here. Each action alternative continued to allow for the potential reintroduction of black-footed ferrets on the Grassland in the future if those in charge of such a decision determine the circumstances are appropriate. (See AR 26632 ("In 2018, U.S. Fish and Wildlife Service personnel also formally passed leadership of ferret reintroduction to the Wyoming Game and Fish Department, which has played a lead role in reintroduction in the state since ferrets were rediscovered in Meeteetse in 1981. The Wyoming Game and Fish Department finalized a black-footed ferret management plan in 2018 based on the U.S. Fish and Wildlife Service black-footed ferret recovery plan . . . ."); AR 27669.)

Petitioners further contend the alternatives "also fail NFMA's [the National Forest Management Act's] 'diversity' requirement because they neither 'contribute to the recovery' of the black-footed ferret nor 'maintain a viable population' of potential species of conservation concern." (ECF 66 p. 41.) Not so. All alternatives contribute to the recovery of black-footed ferrets, which have not lived on the Grassland for decades, by providing enough black-tailed prairie dog colony acreage for potential ferret reintroduction in the future if those in charge of such a decision determine the circumstances are appropriate. See supra notes 5-8 and accompanying text (determining the ROD's reliance on "approximately 4,500 acres" of prairie dog habitat as the minimum necessary for a viable black-footed ferret population was not unreasonable or arbitrary and capricious). Each alternative included managing for well more than 4,500 acres of prairie dog habitat on the Grassland.

Petitioners also argue three of the action alternatives are unreasonable because the reduced prairie dog colony acreage would not maintain a viable population of mountain plovers (ECF 66 p. 42), an at-risk bird that depends on prairie dog colonies to varying degrees on the Grassland, most particularly by breeding in shortgrass prairie (AR 26627, 27303-27304). Petitioners contend the mountain plover "may need closer to 20,583 active acres of prairie dogs to meet viability needs." (ECF 66 p. 25 (quoting AR 67748).) In so arguing, Petitioners rely on a 2013 viability impact analysis prepared by the Forest Service (available at AR 67731-67757). There, the Forest Service relied on a 2013 study by Augustine and Baker (available at AR 29540-29555). (AR 67748.) However, the Forest Service's 2013 viability impact analysis failed to accurately represent the Augustine and Baker study. For example, the Forest Service's 2013 viability impact analysis reported that Augustine and Baker "estimated that for Mountain Plover, 2.4 birds/k㎡ (0.0097 birds/acre) on colony sites in Wyoming and Montana were needed for viable populations." (AR 67748.) This was inaccurate as Augustine and Baker's 2013 study did not offer any determination concerning what density of plovers was necessary for viability. Instead, Augustine and Baker estimated that mountain plovers occurred at a density of 2.4 birds/k㎡ on prairie dog colony sites in the Montana and Wyoming; it did not opine concerning what density of plovers makes up a viable population. (AR 29547.) The Forest Service's 2013 viability impact analysis did accurately reflect that Augustine and Baker's 2013 study suggested a prairie dog complex "may need 5,145-20,582 acres [2,083-8,333 hectares] to support 100 Mountain Plovers (Augustine and Baker 2013)." (AR 67748; accord AR 29547.) However, neither the Augustine and Baker study nor the Forest Service 2013 analysis suggested 100 mountain plovers was the minimum number necessary for a viable population, and neither suggested a minimum number of plovers for a persistent population.

The FEIS and ROD for the 2020 plan amendment did not rely on these figures when examining the potential impact on mountain plovers, and the Court does not find it was unreasonable or erroneous for the Forest Service to not rely upon those figures. The FEIS did, however, consider the potential impact on mountain plovers in detail (AR 27303-27319), and summarized its findings in this fashion:

Insufficient information about the biology of prairie dog-associated species is available to determine the exact size and distribution of prairie dog colonies needed to ensure viability for those species. However, the wildlife analysis shows mountain plover is the species most susceptible to changes in total colony area, and providing sufficient habitat for mountain plover would concurrently provide sufficient habitat for all other prairie-dog-associated species. The best available scientific information, much of which was collected on the grassland, shows 10,000 acres of colonies approximates the lower limit likely to adequately provide for the persistence of the mountain plover in the plan area. This number of acres is also conducive to future black-footed ferret reintroduction. An additional allowance for temporary management down to 7,500 acres in special circumstances, as described in the proposed action and preferred alternative, is unlikely to compromise species viability because of the expectation that prairie dog colony management will be directed toward the 10,000-acre prairie dog colony acreage objective within a reasonable time after prairie dog control occurs.

A slightly conservative approach to habitat retention is justified because available information is insufficient to calculate an exact minimum required prairie dog colony acreage that would provide for the viability of mountain plover. Lower prairie dog colony acreage objectives, if proposed, could compromise the viability of mountain plover because of the very low densities at which the bird nests, as shown by local research. The overall finding that a minimum of 7,500 to 10,000 acres of prairie dog colonies would be adequate to provide for viability of mountain plover is based on the following quantitative and qualitative evidence.

Quantitative Evidence

Based on the mountain plover survey data available for the national grassland, an estimated average density of 0.8 to 2.5 birds per 100 acres could be expected on prairie dog colonies, with few birds occurring outside prairie dog colonies (Duchardt et al. 2018). At 10,000 acres of colonies, this expected bird density yields approximately 80 to 250 birds; at 7,500 acres of colonies, this yields approximately 60 to 190 birds. While these figures are consistent with generic figures presented by Lehmkuhl (1984) as thresholds for genetic drift resulting from inbreeding, population genetics are not likely a limiting factor for mountain plover. Oyler-McCance et al. (2008) showed that gene flow resulting

from pair bonds created when mountain plovers form mixed flocks on wintering grounds prevents declines in genetic diversity at specific breeding locales. As a result, qualitative evidence regarding mountain plover viability was critical in evaluating the effects of a 10,000-acre colony objective and shows that an ecosystem-based approach to species conservation is appropriate for the plan area. Concepts from conservation biology suggest these estimates may be sufficient to sustain a viable population of plover (Lehmkuhl 1984). In addition, because mountain plover is a migratory bird with limited fidelity to specific breeding grounds, individual birds that mix at wintering grounds are likely to contribute to the genetic health of the Thunder Basin Grassland population (Oyler-McCance et al. 2008).

Qualitative Evidence

• The mountain plover population on the national grassland has persisted through two prior landscape-scale sylvatic plague epizootics and regular rodenticide use since 2001. Observed plover abundance has contracted and expanded with fluctuations in total prairie dog colony area, yet breeding plover have remained present on the landscape.

• The proposed amendment includes provisions for the use of insecticides and vaccinations to prevent sylvatic plague epizootics among prairie dog colonies and minimize the potential for rapid and substantial declines in available habitat.

• The proposed amendment aims to stabilize prairie dog colony extent around the prairie dog colony acreage objective to the extent possible. This may help to mitigate effects of the boom-and-bust cycle that can reduce the quality of mountain plover habitat at both extreme lows and extreme highs in prairie dog colony area.

• 10,000 acres of prairie dog colonies is higher than both the mean (8,397 acres) and median (3,538 acres) colony extent recorded in management area 3.63 since 2001. Colonies will continue to exist in other management areas across the grassland despite not counting toward the 10,000-acre objective. Under the preferred alternative, impacts to breeding and nesting habitat must be considered before using rodenticides in colonies outside of management area 3.67.

• Adjacent private, State, and other Federal lands across the landscape, including lands enrolled in Candidate Conservation Agreements and Candidate Conservation Agreements with Assurances, contain significant area of prairie dog colonies and bare ground and short-stature vegetation habitat that contribute to the resilience of both prairie dog and mountain plover populations on the grassland. These colonies do not count toward the 10,000-acre objective and are not relied upon in the analysis for persistence, but will contribute to resilience.

(AR 26693-95.) The FEIS' biological evaluation determined the action alternatives " 'may adversely impact individuals, but [was] not likely to result in a loss of viability in the planning area, nor cause a trend toward Federal listing,' since the effects are expected to be localized." (AR 27318.) It based this conclusion primarily on several studies and surveys of the mountain plover on the Grassland. (AR 27306-27311.) The Forest Service's consideration of the mountain plover's continued viability reasonably examined relevant quantitative and qualitative evidence and reached a reasonable conclusion based on that evidence.

In sum, the discussion of alternatives in the FEIS was "sufficient to permit a reasoned choice among the options." Wyoming, 661 F.3d at 1243 (quoting Ass'ns Working for Aurora's Residential Env't (AWARE) v. Colo. Dep't of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998)). The Forest Service's FEIS explored reasonable action alternatives and considered each to a reasonable extent, as required by NEPA. Based upon a review of the record, the Forest Service made an informed and reasoned decision, which is what the law requires. W. Watersheds Project v. United States Bureau of Land Mgmt., 76 F.4th at 1290.

3.3 "Hard Look"

As their final argument under NEPA, Petitioners contend the Forest Service failed to take a "hard look" at the combined effects of plague, poisoning, and recreational shooting on the black-tailed prairie dog and its dependent species. (ECF 66 pp. 42-45; ECF 69 at 17-18.) NEPA requires an agency to take a "hard look" at the likely environmental consequences of its action alternatives. W. Watersheds Project v. United States Bureau of Land Mgmt., 76 F.4th at 1290. The record of decision will be arbitrary and capricious if the agency failed to take a "hard look" at the relevant information when making the decision. New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d at 704.

The FEIS considered and discussed the combined potential effects on the black-tailed prairie dog of plague, poisoning, and recreational shooting under the action alternatives. (AR 27338-27347.) The FEIS concluded:

With all activities combined, along with resource protection measures and plan components, all alternatives have an effects determination of "may adversely impact individuals, but not likely to result in a loss of viability in the planning area, nor cause a trend toward Federal listing," since the effects are expected to be localized. Despite the impacts of the proposed actions, it is expected that sufficient distribution of the [black-tailed prairie dog] will be maintained on the [Grassland] and throughout its range . . . .

Overall, potential direct and indirect effects under any of the alternatives, when combined with the cumulative effects generated by other activities listed above would not result in a loss in viability for this species.

(AR 27346.) The several pages of associated discussion and reasoning adequately demonstrate that the FEIS took the requisite "hard look" at the combined effects of its alternatives on the prairie dog as required by NEPA.

The FEIS also considered the cumulative effects of its alternatives on those species dependent upon the prairie dog, including the mountain plover, the burrowing owl, and the potential reintroduction of the black-footed ferret. The FEIS reasonably determined that because the action alternatives encouraged a stabilized and reasonably large population of prairie dogs, it benefitted those species dependent on the prairie dog. (See, e.g., AR 27231-27243 (burrowing owl), AR 27311-27319 (mountain plover).) It concluded the cumulative effects associated with each alternative would have no effect on the black-footed ferret because there are no ferrets on the Grassland currently, and as discussed above, each alternative did not preclude the potential reintroduction in the future. (AR 27206-27208.) In conformity with NEPA, the FEIS took the required "hard look" at the combined effects of each action alternative on those species dependent on the prairie dog.

In sum, in its FEIS and ROD, the Forest Service complied with NEPA by adequately setting forth and considering the likely and potential consequences of its actions, and its conclusion was supported by its reasoned analysis and was not arbitrary and capricious. See Utah Shared Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1208 (10th Cir. 2002) ("The role of the courts in reviewing compliance with NEPA 'is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.' ") (citation omitted).

4. National Forest Management Act (NFMA)

The National Forest Management Act of 1976 (NFMA) requires the Forest Service to develop and implement Land and Resource Management Plans (a/k/a "forest plan") for each national forest unit. 16 U.S.C. § 1604. "Once a forest plan has been adopted for a particular forest unit, any specific project or activity authorized by the Forest Service within that unit must comply with the applicable forest plan." Wyoming, 661 F.3d at 1269 (citing 16 U.S.C. § 1604(i)). Thus, the NFMA, "which is primarily concerned with planning," Utah Envt'l Cong. v. Richmond, 483 F.3d 1127, 1131 (10th Cir. 2007), requires the Forest Service "to develop broad directives for management of a given forest and to consider individual projects within the context of this forest-wide management plan." Utah Env't Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008).

Petitioners contend the 2020 plan amendment violates the NFMA by failing to employ the best available science, failing to provide for appropriate diversity of plant and animal communities, and failing to maintain or restore the ecological integrity of the plan area. (ECF 66 pp. 45-49; ECF 66 pp. 19-26.)

4.1 Best Available Science

When developing or amending a management plan, the Forest Service "shall use the best available scientific information to inform the planning process." 36 C.F.R. § 219.3. Failure by the agency to consider the "best available science" standard is arbitrary and capricious. Ecology Center, Inc. v. U.S. Forest Service, 451 F.3d 1183, 1195 (10th Cir. 2006).

Petitioners first contend the Forest Service failed to consider the best available science because the 2020 plan amendment adopted some management changes that were previously found to create viability issues for mountain plovers and burrowing owls as well as preclude reintroduction of the black-footed ferret on the Grassland. (ECF 66 p. 46; ECF 69 pp. 19-22.) As support for this argument, Petitioners cite to portions of Petitioner Western Watersheds Project's objection submitted in opposition to the 2020 plan amendment. (ECF 66 p. 46 (citing AR 67748, 67750-51).)

The Court already reviewed Petitioners' claim that the new target for prairie dog acreage would damage the mountain plover's viability and found it wanting. See supra Section 3.2. More specifically, the Forest Service's FEIS and ROD relied on more recent data concerning the mountain plover than do Petitioners, including survey data specifically for the Grassland. (Compare AR 26694 with AR 67748.) Thus, the Court finds the Forest Service considered the best available science on the question of whether the 2020 plan amendment creates viability issues for mountain plovers. (See also AR 27101-27102.)

The Court likewise already reviewed Petitioners' claim that the 2020 plan amendment would preclude reintroduction of the black-footed ferret, determining the Forest Service's determination that it would not preclude reintroduction was reasonable. See supra Section 2. Of note, the portion of Petitioner Western Watersheds Project's objection relied upon by Petitioners here mistakenly asserted the 2011 Jachowski study estimated 10,621 acres of prairie dogs would be necessary to support a viable population of black-footed ferrets, but the Court discussed above how this was not an opinion or suggestion proffered by the Jachowski study but was rather an observation of the studied sites. See supra note 7 and accompanying text. In short, the Court finds the Forest Service indeed considered the best available science on the question of whether the 2020 plan amendment would preclude the potential reintroduction of black-footed ferrets on the Grassland in the future.

The western burrowing owl is a partially migratory bird that relies on burrows created by other animals for nesting. (AR 27226.) The FEIS included an extensive evaluation of the burrowing owl and the likely effects on it from the 2020 plan amendment. (AR 27226-27243.) That evaluation considered relevant surveys and studies of the burrowing owl in general along with its abundance and habitat on the Grassland in particular. (AR 27228-27229.) The FEIS determined that "any reduction in available [prairie dog] habitat may impact individuals or clusters of burrowing owls; however, the acreage objectives in all alternatives are expected to allow for the species to maintain sufficient distribution across the grassland." (AR 27232.) Moreover, in part because the data studied suggested that burrowing owls tend to nest in clusters on prairie dog colonies larger than approximately 86 acres (AR 27242), the ROD shows the 2020 plan amendment includes the objective to manage for prairie dog colonies larger than 80 acres where appropriate "[t]o optimize habitat for burrowing owls" (AR 27768). Further, the ROD also noted the "species closely associated with prairie dogs including mountain plover and burrowing owl have persisted through plague events and remain on the landscape," (AR 27731), which is supported by the fact that the prairie dog colony acreages in 2018 and 2019 were well below the target under the 2020 plan amendment due to an epizootic plague event in 2018 (AR 26629). Altogether, the Court finds the Forest Service considered the best available science on the question of whether the 2020 plan amendment was likely to result in a loss of viability for burrowing owl populations.

Petitioners also assert the Forest Service failed to employ the best available science when it ignored that a self-sustaining black-footed ferret population needed at least 10,621 acres of prairie dog colony and a self-sustaining mountain plover population needed 20,538 acres of prairie dog colony. (ECF 66 p. 46.) Without beating a dead horse, the Court has already considered and rejected these arguments in this Order. See supra Sections 2, 3.2. The Court finds no failure to consider the best available science concerning these issues.

4.2 Diversity of Plant and Animal Communities

The NFMA also requires the Forest Service 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 each forest unit. 16 U.S.C. § 1604(g)(3)(B). Each plan is supposed to provide the ecological conditions necessary to "contribute to the recovery of federally listed threatened and endangered species . . . and maintain a viable population of each species of conservation concern within the plan area." 36 C.F.R. § 219.9(b)(1).

The Court will assume without deciding that the 2020 plan amendment triggered the Forest Service's requirements under § 219.9(b). (See ECF 68 pp. 54-57 (explaining that the requirements of § 219.9(b) are only triggered if the requirements of § 219.9(a) are not satisfied and arguing that subparagraph (a) was satisfied).) Petitioners here repeat their contentions that the 2020 plan amendment fails to contribute to the recovery of the black-footed ferret and fails to maintain a viable population of mountain plovers and burrowing owls. (ECF 66 pp. 47-48.) The Court has already reviewed the 2020 plan amendment for these concerns and found the opposite; the 2020 plan amendment sufficiently contributes to the potential recovery of the black-footed ferret and provides for a viable population of mountain plovers and burrowing owls. The 2020 plan amendment satisfies the NFMA's obligations concerning these issues.

4.3 Ecological Integrity of the Area

Finally, the NFMA requires each forest plan to "include plan components, including standards or guidelines, to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area." 36 C.F.R. §§ 219.8(a)(1), 219.9(a)(1). "Ecological integrity" means "[t]he quality or condition of an ecosystem when its dominant ecological characteristics (for example, composition, structure, function, connectivity, and species composition and diversity) occur within the natural range of variation and can withstand and recover from most perturbations imposed by natural environmental dynamics or human influence." 36 C.F.R. § 219.19.

Petitioners assert that "the Forest Service concedes that the ecological site descriptions and modeling relied upon by the agency for the 2020 Amendment do not include prairie dog colony occupancy as a key characteristic, despite recognition that prairie dog disturbance is within the natural range of variation on the Thunder Basin." (ECF 66 p. 48.) As discussed in the FEIS and ROD, each action alternative included plan components intended to maintain or restore the ecological integrity of the area and the diversity of ecosystems. Examples of ecosystem plan components include managing for target acreages for prairie dog colonies, restrictions on lethal control of prairie dogs, and restrictions on recreational shooting; and an example of a species-specific plan component is the objective to manage for prairie dog colonies larger than 80 acres where appropriate "[t]o optimize habitat for burrowing owls" (AR 27768). (See, e.g., AR 26634-26636.) The proposed plan components are identified and considered in both table format (AR 26813-26900) and text format (AR 26901-27005). Further, in direct contradiction to Petitioners' contention, the FEIS considered prairie dog colony occupancy as a key disturbance factor on each plant community. (See AR 26703 ("with increased prairie dog herbivory due to increased prairie dog occupancy, it can be assumed that transitions [of some sites into different states] will occur"); AR 26714-26719 (discussing potential effects of prairie dogs on rangeland vegetation, and noting that "[a]lthough prairie dog activity can have a substantial effect on plant community composition and function (Field et al. 2016), a huge variety of site-specific scenarios exist, making it difficult to associate consistent cause-and-effect relationships across ecological sites").)

Petitioners also contend the 2020 plan amendment violates 36 C.F.R. § 219.19 because it "fails to ensure that prairie dogs and prairie dog-dependent species will be able to 'withstand and recover from most perturbations imposed by natural environmental dynamics or human influence,' such as sylvatic plague, poisoning, recreational shooting, drought, or the combined effects of these stressors." (ECF 66 p. 49 (quoting 36 C.F.R. § 219.19).) Petitioners repeat their assertion that the prairie dog colony target of 10,000 acres, down to 7,500 acres during certain times of exception such as drought, "could very well lead to the extirpation of prairie dogs from the Thunder Basin." (Id.) This hyperbole is only a repackaging of Petitioners' primary disagreement with the 2020 plan amendment, and the Court has already found the Forest Service reasonably considered the information the law requires it to consider and reached a reasonable decision based on the totality of that data and information. The totality of the information considered by the Forest Service does not indicate prairie dog extirpation is a reasonable danger from the 2020 plan amendment, particularly considering prairie dog colony acreage on the Grassland has often fallen well below the target acreages for the 2020 plan amendment in years past with no extirpation.

The Forest Service did not ignore an important aspect of the problem, and the 2020 plan amendment satisfied the Forest Service's procedural requirements under the NFMA.

CONCLUSION AND ORDER

The Court finds the Forest Service's 2020 plan amendment did not violate the Endangered Species Act, the National Environmental Policy Act, or the National Forest Management Act. The Forest Service followed the procedures required of it, reasonably considered the relevant data and information, and reached a reasonable decision based on that information. Therefore, the Forest Service's decision was neither arbitrary nor capricious.

IT IS THEREFORE ORDERED that the Forest Service's 2020 plan amendment is UPHELD.

W. Watersheds Project v. Vilsack

Opinion

ORDER UPHOLDING AGENCY ACTION ON JUDICIAL REVIEW

INTRODUCTION

STANDARD OF REVIEW OF AGENCY ACTION

BACKGROUND

2. The Forest Service's 2020 Land Management Plan Amendment

DISCUSSION

1. Petitioners' Standing

2. Endangered Species Act (ESA)

3. National Environmental Policy Act (NEPA)

4. National Forest Management Act (NFMA)

CONCLUSION AND ORDER

W. Watersheds Project v. Vilsack

W. Watersheds Project v. Vilsack

Case Details

CitationsCopy Citation

Citations