District court says Forest Service exceeded incidental take of salmonids, also finds that grazing permittees must be heard during consultation process

Oregon Natural Desert Ass’n v. Tidwell, Civil No. 07-1871-HA. Nos. 08-151-HA, 03-381-HA. 2010 WL 2246419 (D.Or., June 4, 2010.)(Haggerty, District Judge)

NATURE OF DISPUTE: Plaintiffs are non-profit environmental organizations. Plaintiffs contend that the NMFS and Forest Service have violated the ESA and National Forest Management Act (NFMA) in managing grazing on the Malheur National Forest (MNF) in ways that are alleged to harm steelhead listed as threatened under the ESA. Intervenors are ranchers permitted to graze cattle on the MNF. Intervenors allege that the NMFS and Forest Service have violated the ESA by arbitrarily limiting grazing on the MNF. Federal defendants contend that the agency actions taken in relation to grazing on the MNF were not arbitrary and capricious and have not harmed protected steelhead.

FACTUAL AND LEGAL BACKGROUND: The Malheur National Forest (MNF) (pictured above) is located in the Blue Mountains of Eastern Oregon and includes portions of the Upper John Day, Middle Fork John Day, and North Fork John Day River watersheds. It contains designated critical habitat for Middle Columbia River (MCR) steelhead, a salmonid listed as “threatened” under the ESA… The MCR steelhead rely upon rivers and streams in the MNF for spawning, rearing, and migratory habitat. Steelhead depend upon cold clear streams and streambeds low in fine sediment, high in large woody debris, and characterized by stable overhanging banks and large pools. When not managed properly, livestock grazing can degrade salmonid habitat. The Forest Service authorizes and manages livestock grazing on allotments within the MNF through the issuance of grazing permits, allotment management plans (AMPs), grazing permit modifications (GMPs), and annual grazing authorization letters to permittee ranchers such as intervenors. The National Forest Management Act, 16 U.S.C. § 1604(g)(3)(B), directs the Forest Service to develop an integrated forest plan, or land resource management plan (LRMP) for each unit of the National Forest System. Id. § 1604(a),(f). Grazing permits, must be consistent with the controlling LRMP, which in turn must be consistent with the NFMA. Id. § 1604(i); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir.2002).

EXCERPT RE: PERMITEES. Section 7(a)(3) of the ESA provides for applicant involvement during the early consultation process. The statute states that federal agencies shall “consult with the NMFS on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that alisted speciesmay be present in the area affected by the applicant's project and that implementation of such action will likely affect such species.” 16 U.S.C. § 1536(a)(3). Section 7(a)(2), on the other hand, does not expressly provide for such applicant involvement during formal consultation. However, the implementing regulations envision some involvement, because the responsibility to provide the best scientific data available includes a requirement to “provide any applicant with the opportunity to submit information for consideration during the consultation.” 50 C.F.R. § 402.14(d). The ESA Consultation Handbook and Forest Service policies further specify that permit holders are entitled to participate as applicants during the consultation process. See NMFS AR 8351-52 (stating that “users who are party to a discrete action” qualify as applicants and discussing the applicant's role in the consultation process). Because Federal Defendants failed to, at a minimum, provide permittees with “the opportunity to submit information for consideration during the consultation,” the BiOp must be construed as arbitrary and capricious. 50 C.F.R. § 402.14(d).

EXCERPT RE: INCIDENTAL TAKE: It is likely that violations of the ITS were underreported in 2007 and 2008 due to inadequate monitoring by the Forest Service... The inordinate exceedances of the ITS conditions documented in 2007 on the Murderers Creek and Hamilton/King Allotments and in 2008 on the Fox Creek Allotment are particularly deplorable in light of the Forest Service's appraisal of those allotments as containing moderate to high potential spawning habitat and as having a high risk potential for direct take of steelhead. RP 31202-03. This court has carefully reviewed the administrative record and the extra-record materials submitted by the parties, and concludes that it is possible that take occurred on numerous allotments in both 2007 and 2008, and that it is likely take occurred in 2007 on the Murderers Creek and Hamilton/King Allotments, and on the Fox Creek Allotment in 2008, due to significant habitat degradation.

KEITHINKING: This case also involved a procedural ruling that allowed an expansive administrative record, continuing a trend in ESA litigation. See also Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir.2007) (holding that the APA's record review provisions do not apply to claims brought pursuant to “the substantive provisions of the ESA”); Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085, 1094 (E.D.Wash.2006). Ultimately, although the District Court did uphold numerous portions of the biological opinion, the administrative record still showed errors in the ESA and NFMA analysis, and the bottom line will be a remand to the agencies for more analysis. The parties were ordered to confer regarding appropriate remedies and a joint status report is due July 1, 2010.