WildEarth Guardians v. Wehner

526 F.Supp.3d 898

WILDEARTH GUARDIANS, a non-profit organization, and Center for Biological Diversity, a non-profit organization, Petitioners,

v.Keith WEHNER, in his official capacity as the Director of the U.S. Department of Agriculture's Animal and Plant Health Inspection – Wildlife Services’ Western Region, Animal and Plant Health Inspection Service-Wildlife Services, a federal program, and United States Department of Agriculture, a federal department, Respondents.

Civil Action No. 17-cv-00891-RM

United States District Court, D. Colorado.

Signed March 10, 2021

John R. Mellgren, Western Environmental Law Center, Eugene, OR, Kelly Elizabeth Nokes, Western Environmental Law Center, Buena Vista, CO, Matthew Kellogg Bishop, Western Environmental Law Center, Helena, MT, for Petitioners.

Jasand Patric Mock, Sarah Hunter Weiss, U.S. Attorney's Office, Denver, CO, for Respondents.

ORDER

RAYMOND P. MOORE, United States District Judge

Petitioners WildEarth Guardians and the Center for Biological Diversity (collectively, "WildEarth") bring this action under the Administrative Procedure Act ("APA") seeking a declaration that Keith Wehner¹ , in his official capacity as the Director of the U.S. Department of Agriculture's Animal and Plant Health Inspection – Wildlife Services’ Western Region, Animal and Plant Health Inspection Service, Wildlife Services (collectively, "Wildlife Services"), and the U. S. Department of Agriculture have violated the National Environmental Policy Act ("NEPA"). This matter is fully briefed; the Court finds that oral argument would not materially assist in the disposition of this matter. Thus, it is ripe for decision. Upon consideration of the petition and the administrative record ("AR"), applicable law, and being otherwise fully advised, the Court finds and orders as follows.

I. LEGAL STANDARDS

A. NEPA

NEPA represents a " ‘broad national commitment to protecting and promoting environmental quality.’ " Cure Land, LLC v. U.S.D.A. , 833 F.3d 1223, 1229 (10th Cir. 2016) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ). Thus, NEPA " ‘imposes procedural requirements [on agencies] intended to improve environmental impact information available to agencies and the public.’ " Cure Land, LLC , 833 F.3d at 1229 (underscore in original) (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgmt. , 565 F.3d 683, 704 (10th Cir. 2009) ). NEPA does not, however, " ‘require agencies to reach particular substantive environmental results.’ " Cure Land, LLC , 833 F.3d at 1229 (quoting Los Alamos Study Grp. v. U.S. Dep't of Energy , 692 F.3d 1057, 1060 (10th Cir. 2012) ).

To comply with NEPA, agencies are required to take "a hard look at the environmental consequences before taking a major action." Cure Land, LLC , 833 F.3d at 1229 (quotation marks and citation omitted). Thus, first, NEPA "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action." WildEarth Guardians v. U.S. Fish & Wildlife Serv. , 784 F.3d 677, 690 (10th Cir. 2015) (quotation marks and citation omitted). Then, second, NEPA "ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." WildEarth Guardians , 784 F.3d at 690 (quotation marks and citation omitted).

Under NEPA, where it is unclear whether a proposed action's environmental effects will significantly affect the quality of the human environment, an agency may prepare an environmental assessment ("EA"). Cure Land, LLC , 833 F.3d at 1230 ; 40 C.F.R. § 1501.4(b). "If the EA leads the agency to conclude that the proposed action will not significantly affect the environment, the agency may issue a finding of no significant impact [FONSI] and proceed with the federal action without further ado." Cure Land, LLC , 833 F.3d at 1230 (quotation marks and citation omitted); 40 C.F.R. § 1501.5(c) & (e). A FONSI is "a document by a Federal agency briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an environmental impact statement [EIS] therefore will not be prepared." 40 C.F.R. § 1508.1(l).

B. Agency Review

The Court reviews an agency's compliance with NEPA under the APA, 5 U.S.C. §§ 551 et seq. Cure Land, LLC , 833 F.3d at 1230. The review is " ‘highly deferential’ to the agency." Id. (quoting Citizens’ Comm. to Save Our Canyons v. Krueger , 513 F.3d 1169, 1176 (10th Cir. 2008) ). An agency decision will not be set aside unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; Cure Land, LLC , 833 F.3d at 1230. An agency's action is arbitrary and capricious if it has relied on factors which Congress has not intended it to consider, failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before it.

Wyoming v. U.S. Dept. of Agriculture , 661 F.3d 1209, 1227 (10th Cir. 2011). Agency action also is arbitrary and capricious if it "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. (quotation marks and citation omitted). A presumption of validity is afforded to agency action and the burden is on the plaintiff who challenges such action. Id.

II. BACKGROUND

Wildlife Services is a federal program within the U.S. Department of Agriculture's Animal and Plant Health Inspection Service that specializes in resolving wildlife conflicts.² (AR at 9.) Wildlife Services’ Colorado branch ("WS-Colorado") provides predator damage management ("PDM") to help reduce conflicts with predators that impact livestock, agricultural and natural resources, property, and human and health safety. (AR at 34.) WS-Colorado has been conducting PDM in Colorado for more than a century. (AR at 30.) WS-Colorado does not act unilaterally; rather, it responds to requests from private and public entities, tribes, and other federal, state, and local governmental agencies for assistance with wildlife management. (AR at 17.)

In April 2018, Wildlife Services, in cooperation with the Colorado Department of Agriculture, Colorado Parks and Wildlife, the Bureau of Land Management, and the U.S. Forest Service, issued an EA for WS-Colorado's ongoing PDM program to consider the environmental consequences of four proposed courses of action. Historically, WS-Colorado has prepared four EAs for its PDM program which served as the baseline for the 2018 EA at issue here.³ (AR at 26.) The purpose of WS-Colorado's activities examined in the EA is to reduce environmental harms caused by predators that prey on or harass livestock and wildlife, damage other agricultural resources and property, impact wildlife species, or threaten human health and safety in Colorado. The predator species of management concern most often include coyotes, black bears, mountain lions, striped skunks, red fox, and racoons. (AR at 11.)

The EA examined four plans of action, or alternatives, in deciding to how best address PDM requests. These are to: (1) continue the current federal integrated PDM program (no action); (2) utilize lethal PDM methods only for corrective control; (3) provide technical assistance only; and (4) provide no PDM. (AR at 100.) Based on the economic, environmental, and societal impact of each approach, WS-Colorado determined that Alternative 1 was the preferred alternative to accomplish its PDM goals and objectives. Under Alternative 1, WS-Colorado would continue to provide technical and operational assistance in response to predator management requests using a variety of lethal and non-lethal methods.⁴ (AR at 104.) The EA concluded that continuing WS-Colorado's predator management program would not have significant environmental impacts. (AR at 260.) Thus, WS-Colorado issued a FONSI and did not prepare an EIS.

III. DISCUSSION

WildEarth asks the Court to vacate the EA and FONSI alleging that WS-Colorado did not take a "hard look" at the environmental impacts of the PDM program. (ECF No. 47 at 8.) WildEarth also asks the Court to compel WS-Colorado to prepare an EIS because the proposed program significantly impacts the environment.⁵ (Id. ) WS-Colorado contests these requests, arguing that it complied with NEPA and applicable regulations in finding no significant environmental impact from its predator management program and, therefore, did not need to order an EIS. (ECF No. 48 at 15.)

A. The Environmental Assessment

WildEarth raises three issues with the adequacy of the EA, that it: (1) fails to sufficiently analyze the efficacy of lethal PDM techniques; (2) fails to consider the impact of oil and gas and residential development in mule deer habitats; and (3) relies on inaccurate data in finding no significant impact on black bear and coyote populations. These arguments are subspecies of the ultimate issue of whether WS-Colorado took the requisite "hard look" under NEPA at the environmental impacts of its proposed action in the EA.

As noted previously, NEPA imposes procedural requirements on agency action. "Importantly, the statute does not impose substantive limits on agency conduct. Rather, once environmental concerns are ‘adequately identified and evaluated’ by the agency, NEPA places no further constraint on agency actions." Friends of the Bow v. Thompson , 124 F.3d 1210, 1213 (10th Cir. 1997) (citation omitted).

1. Efficacy of Lethal PDM

WildEarth urges WS-Colorado to cease using lethal means to address predator damage in Colorado. As WildEarth alleges, this is because lethal techniques employed by WS-Colorado are not a reliable and effective means of depredation. In support of its position, WildEarth references three scientific articles contained in the record which call into question the efficacy of these lethal PDM techniques. (ECF No. 47 at 18-21.) Concerned citizens echoed this belief during...