W. Watersheds Project v. Vilsack

696 F.Supp.3d 1033

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,andState of Wyoming, Intervenor-Respondent.

Case No. 22-CV-214-SWS

United States District Court, D. Wyoming

Signed September 29, 2023

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.

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.¹

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, 26690.²) 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:

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...