W. Watersheds Project v. USDA Aphis Wildlife Servs.

320 F.Supp.3d 1137

WESTERN WATERSHEDS PROJECT, WildEarth Guardians, Center for Biological Diversity, and Predator Defense, Plaintiffs,

v.USDA APHIS WILDLIFE SERVICES, Defendant.

Case No. 1:17–CV–206–BLW

United States District Court, D. Idaho.

Signed June 22, 2018

Kristin F. Ruether, Western Watersheds Project, Laurence J. Lucas, Talasi B. Brooks, Advocates for the West, Boise, ID, for Plaintiffs.

Christine Gealy England, United States Attorney's Office, Boise, ID, for Defendant.

MEMORANDUM DECISION AND ORDER

B. Lynn Winmill, Chief U.S. District Court Judge

INTRODUCTION

The Court has before it cross-motions for summary judgment, and a motion filed by plaintiffs to consider extra-record material. The Court heard oral argument on May 11, 2018, and took the motions under advisement. For the reasons expressed below, the Court will grant the plaintiffs' motion for summary judgment, deny the defendant's motion for summary judgment, and deem moot the plaintiffs' motion to consider extra-record material as the Court did not review that material in ruling for plaintiffs.

SUMMARY

For years, Wildlife Services has responded to requests from Idaho livestock producers to kill or remove predators like coyotes that threaten their herds. When the agency decided to expand its operations to kill or remove predators to game animals and protected species, it prepared a draft Environmental Assessment (EA) and circulated it to various agencies and the public. That draft prompted numerous critical comments, especially from other agencies with long experience and expertise in managing game animals and protected species: The Bureau of Land Management, Forest Service, and the Idaho Department of Fish and Game, among others.

Instead of studying these concerns in greater depth in an Environmental Impact Statement (EIS), Wildlife Services largely rejected these criticisms, finding that they were invalid for various reasons. Under the National Environmental Policy Act, an agency may use a convincing and objective analysis to reject criticisms and refuse to prepare a full EIS. But that was not done here. While Wildlife Services responded in detail to the criticisms, their reasons for rejecting them were not convincing and objective; the agency failed to take the required "hard look" at the concerns raised by the other agencies. Consequently, the Court finds that Wildlife Services acted in an arbitrary and capricious manner in deciding not to prepare an EIS. The Court will therefore grant the plaintiffs' motion for summary judgment and deny the motion filed by Wildlife Services.

FACTUAL BACKGROUND

Wildlife Services is a federal agency charged with killing or removing predators like mountain lions and coyotes that prey on wild game animals, damage agricultural interests, and pose a danger to humans. See 7 U.S.C. §§ 8351 – 8352. The agency does not conduct operations unilaterally, but instead responds to requests for assistance from individuals or other agencies such as the Bureau of Land Management (BLM), the Forest Service, and the Idaho Department of Fish and Game (IDFG). Wildlife Services has a Memorandum of Understanding with each of these agencies that governs its operations when those agencies request assistance. AR–037168. The agency has similar agreements with the various Tribes in Idaho.

Upon request, Wildlife Services can provide three types of wildlife damage management assistance: technical assistance, direct control assistance, and research assistance. AR–038561. Direct control assistance, which is at issue here, consists of field activities conducted or supervised by Wildlife Services personnel. AR–037260

Most direct control assistance requests in Idaho concern conflicts with coyotes. AR 037303. Coyotes kill more cattle and sheep in Idaho than any other predator, causing a substantial economic loss to ranchers. AR–37171, 37174–75. In response to requests from those ranchers, and various agencies, Wildlife Services killed over 3,860 coyotes in Idaho in 2016. See Answer (Dkt. No.5) at ¶ 55.

There were two past occasions when Wildlife Services responded to agencies' requests to kill or remove predators of protected species and game animals. In the first, conducted from 1997 to 2002, Wildlife Services assisted IDFG with a coyote and mountain lion population reduction effort that was conducted in select game management units in southeastern Idaho to enhance the mule deer population. AR–37184. And during the past 10 years, Wildlife Services and the Forest Service have entered into agreements to manage badger, red fox and coyote predation to protect the northern Idaho ground squirrel, a threatened species under the Endangered Species Act. AR–37185. More recently, IDFG asked Wildlife Services to evaluate a program to remove ravens to protect the sage-grouse. Id. In the future, Wildlife Services anticipates receiving requests to provide predator management to protect sage-grouse eggs and chicks. AR–37186

Wildlife Services has been operating under a programmatic EIS issued first in 1994, and then reissued in 1997 with some corrections. It analyzed Wildlife Services' activities across the country. WS has never prepared an EIS for its Idaho activities, but has instead been operating here under two Environmental Assessments (EAs), one completed in 1996 for the northern and central regions of Idaho, and the other completed in 2002 for the southern region. Because both are outdated, Wildlife Services decided to conduct a new evaluation, this time in a single EA. In the words of Wildlife Services, "[t]he new analysis reviews the impacts of the existing program (environmental baseline), develops new and updated alternatives for PDM, and updates the review of potential environmental impacts of the proposed alternatives." AR–37169.

Wildlife Services began the process of drafting the EA by soliciting public comments on the effects of its predator damage management activities in Idaho. After receiving those comments, Wildlife Services issued a Draft EA on June 19, 2015, and again solicited public comments.

The June 2015 Draft EA discussed five alternatives: (1) continuing Wildlife Services' existing activities in Idaho; (2) ceasing its activities; (3) providing non-lethal assistance only; (4) providing non-lethal assistance before any lethal control; and (5) the "preferred" alternative, expanding its existing activities to encompass killing predators to protect game animals and protected species. AR–32195.

More specifically, the preferred alternative included expanding Wildlife Services' existing predator control actions to including killing native wildlife at the request of IDFG to benefit other desired wildlife species, including a new proposal to kill ravens and other predators for the benefit of greater sage-grouse, and to kill native predators to benefit Columbian sharp-tailed grouse, mule and white-tailed deer, bighorn sheep, and pronghorn antelope, among other animals. AR 32099–100 (listing target predators and wildlife to be "protected"). The Draft EA also claimed Wildlife Services might conduct other, unidentified predator control activities so long as it determined their cumulative impacts would be within the range considered in the EA. AR–32203.

Wildlife Services received hundreds of comments from the public and other agencies, including the BLM, the Forest Service, the Fish and Wildlife Service, and the Idaho Department of Fish and Game (IDFG). Many of the comments were critical of various aspects of the Draft EA.

Comments on Draft EA—Objectivity

For example, three agencies—the BLM, the Forest Service, and the IDFG—all commented that the Draft EA was not an objective analysis of the environmental impacts. The BLM commented that "[t]he document thus far does not read like a real analysis of the potential [Predator Damage Management] outside of lethal methods. Instead, it sounds like a pre-decisional defense of lethal methods, and fails to consider the real benefits of alternative approaches." AR–31350. The IDFG's large carnivore coordinator, Steve Nadeau, echoed that comment:

This is a very complete look at the potential impacts of control actions from one perspective and builds a nice case for conducting PM [Predator Management] in Idaho. It does not however provide an adequate perspective of enormous availability of literature and research that shows the ineffectiveness or neutral benefit of the actions, thus bringing into question the objectiveness of the EA.

AR–32058. The Forest Service commented "[t]here is a weakness in this document in that by portraying only one side of the issue, and cherry-picking papers, it is assuming that there is no controversy." AR–31086.

Comments on the Draft EA—Ineffectiveness of PDM

The BLM commented that "there is no guarantee that predator control will have the intended impact on prey populations. For example, the literature is full of examples of how mammalian predators respond to losses of individual members of populations by adjusting space use or increasing litter sizes." AR–31292. The Forest Service agreed, commenting that "[t]he effectiveness and efficiency of predator control for actually limiting damage is quite controversial." AR–31083. Regarding Wildlife Services' proposal to kill ravens to protect sage grouse, the BLM commented that "[c]ontrolling raven populations without changing the factors that increase their populations is likely to be futile over the long-term." AR–31295.

The Forest Service was also concerned that the Draft EA failed to consider the best science on PDM:

There is a more current and extensive literature base that provides alternative evidence on the effectiveness and efficiency of predator control that was not considered included in the discussions. For example: [listing 9 scientific papers discussing the effectiveness of predator control]. This is not an exhaustive list and a more thorough literature review ought to be done.

AR–31002.

Comments on Draft EA—Environmental Impacts

The agencies also...