IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ) FOREST GUARDIANS and SINAPU, ) Plaintiffs, ) v. ) No. ) UNITED STATES FOREST SERVICE, an ) COMPLAINT FOR administrative agency of the United States ) DECLARATORY AND Department of Agriculture, ) INJUNCTIVE RELIEF ) Defendant. ) ) PRELIMINARY STATEMENT 1. The Gila National Forest is one of the largest, most remote, and least developed areas in the American Southwest. Its varied, natural landscape is marked by world-renowned wildernesses and spectacular wildlife. Rising in elevations from 4,200 to 10,900 feet, its diverse 3.3 million acres cover four of the six life zones, and support an impressive variety of terrestrial and aquatic species. Federally protected threatened and endangered species like the Mexican gray wolf, Mexican spotted owl, and Chiricahua leopard frog depend on the Gila National Forest for their very survival and potential recovery. 2. Juxtaposed with the Gila s remaining wildness, however, is the ubiquity of domestic cattle. Through the issuance of 10-year term livestock grazing permits, Defendant, the United States Forest Service ( USFS ), authorizes cattle grazing on the Forest year round, often in sensitive endangered species habitats. These habitats, and the species they support, are vulnerable to disturbances, such as vegetation depletion, soil erosion, and water quality deterioration, all of which are caused by grazing. The spotted owl and leopard frog are harmed

2 by cattle grazing, which degrades and destroys their habitat. Wolves suffer even more directly. They are routinely shot or removed from the wild for conflicting with domestic cattle. 3. The National Environmental Policy Act of 1969 ( NEPA ), 42 U.S.C et seq., requires USFS to examine and open to public scrutiny how its actions impact threatened and endangered species. When issuing or renewing a 10-year term grazing permit, USFS typically complies with NEPA by completing and publicly disseminating for comment and appeal either an environmental assessment ( EA ) or environmental impact statement ( EIS ). Importantly, NEPA acts as both an environmental checkpoint and avenue for public involvement in USFS s grazing management decisions. 4. At the request of USFS and others, Congress recently allowed a deviation from standard NEPA compliance for grazing management decisions. Section 339 of the 2005 Consolidated Appropriations Act (PL ) ( Appropriations Rider ) allows USFS to categorically exclude from NEPA review the authorization or reauthorization of livestock grazing when it can show that such decision satisfies several discrete factors. Normally restricted to small activities like painting a fence or installing a picnic area, categorical exclusions ( CEs ) are unusual for grazing permit decisions, as each decade-long management decision may impact tens of thousands of acres. Accordingly, Congress sharply limited USFS s authority to issue CEs under the Appropriations Rider in both scope and duration. Nationwide, USFS may not issue more than 900 CEs by the close of fiscal year Additionally, the Appropriations Rider specifically provides that CEs may not be used to authorize grazing on USFS allotments where federally protected species and/or their critical habitat will be significantly impacted. 2

3 5. In a blatant misuse of authority under the Appropriations Rider s restrictions, USFS has repeatedly issued improper grazing CEs in lieu of formal NEPA documentation when authorizing or reauthorizing livestock grazing on the Gila National Forest. Since the Appropriations Rider took effect, USFS has engaged in a carte blanch approach to permit renewals by trading in much-needed NEPA analyses for non-appealable CE decision memos ( DMs ). By undertaking the aforementioned actions, USFS has misapplied its limited authority under the Appropriations Rider, unreasonably delayed compliance with NEPA, and unjustifiably barred public participation in the decision-making process in violation of the Administrative Procedures Act ( APA ), 5 U.S.C For these violations of the APA, Forest Guardians and Sinapu seek an order reversing and remanding all 13 grazing CEs issued by USFS on the Gila National Forest under the Appropriations Rider since Forest Guardians and Sinapu also seek an order enjoining USFS from permitting any livestock grazing activities on these 13 allotments unless and until it completes the NEPA process with respect to each. Forest Guardians and Sinapu further seek a declaration that categorically excluding the issuance or renewal of 10-year term grazing permits on the Gila National Forest is arbitrary and capricious as a matter of law, and thus additionally seek an order enjoining USFS from issuing any such grazing CEs on the Gila National Forest in the future. Finally, Forest Guardians and Sinapu seek an order enjoining USFS from denying administrative appeals of its grazing CE DMs by citing to regulations that have been struck down in federal court. 3

4 JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to 28 U.S.C (federal question), 2201 (declaratory relief), and 2202 (injunctive relief); and 5 U.S.C (administrative review). 8. An actual controversy exists between the parties within the meaning of 28 U.S.C Venue lies in the district of New Mexico pursuant to 28 U.S.C. 1391(e). Forest Guardians is incorporated in New Mexico. Forest Guardians principle place of business is located in New Mexico. A substantial portion of Forest Guardians and Sinapu s members reside in New Mexico. The decisions now contested by Forest Guardians and Sinapu involve National Forest lands located in New Mexico. All of the events giving rise to the claims set forth herein occurred in New Mexico. PARTIES 10. Forest Guardians is a non-profit conservation organization whose mission is to preserve and restore native wildlands and wildlife in the American Southwest through fundamental reform of public policies and practices. Forest Guardians is dedicated to the preservation of biodiversity and natural systems, including forest, wilderness, and riparian systems. 11. Forest Guardians has approximately 3,500 members in New Mexico and Arizona. Members and staff of Forest Guardians engage in outdoor recreation, wildlife viewing, and other activities throughout the Southwest in general, and in the Gila National Forest in particular. The health of the Gila National Forest and the survival and recovery of threatened and endangered 4

5 species therein are an important part of these individuals aesthetic and recreational enjoyment of these areas. Forest Guardians members and staff have scientific, aesthetic, recreational, and conservation interests in preservation of the Mexican gray wolf, Mexican spotted owl, Chiricahua leopard frog, and other threatened or endangered species and their habitat on the Gila National Forest. 12. Forest Guardians consistently participates in USFS s grazing administration on the Gila National Forest. Forest Guardians has voiced concern over USFS s CE policy by submitting comments on site-specific actions, by appealing site-specific actions despite USFS s denial of such appeals, and by writing letters of general suggestion regarding when USFS may properly issue grazing CEs and how those CEs should be supported in DMs. Forest Guardians led a panel presentation at the 2006 Public Interest Environmental Law Conference in Eugene, Oregon, which focused on USFS s misuse of grazing CEs on the Gila and elsewhere. Forest Guardians also met with the Council on Environmental Quality in November of 2006 to discuss how USFS s CE practices on the Gila are violating NEPA. 13. Forest Guardians files this lawsuit on behalf of itself and its adversely affected members. The members and staff of Forest Guardians are injured by the actions of USFS that flow from its misuse of grazing CEs and which result in continuing degradation of the Gila bioregion and harm to its wildlife and protected species. Unless and until Forest Guardians requested relief is granted, the members and staff of Forest Guardians will continued to be harmed by USFS s actions with respect to grazing CEs on the Gila National Forest. 14. Sinapu, named after the Ute word for wolves, is a non-profit organization based in Boulder, Colorado. Sinapu is dedicated to the restoration and protection of native wildlife, such 5

6 as wolves, lynx, pumas, black bears, and coyotes in the Southern Rockies and connected high plains and deserts. 15. Most of Sinapu s 1,000 members live in and around the Southern Rockies and American Southwest. Sinapu s members and employees have visited, and will continue to visit, the Gila National Forest for reasons of observation, research, aesthetic enjoyment, and other recreational, scientific, and educational activities. Sinapu s members and employees hike, backpack, and camp in the Gila National Forest, especially now that the federal government has restored wolves to the region. Sinapu s members and employees derive scientific, recreational, conservation, and aesthetic benefits from the existence of Mexican gray wolves in the wild. 16. Sinapu files this lawsuit on behalf of itself and its adversely affected members. The members and staff of Sinapu are injured by the actions of USFS that flow from its misuse of grazing CEs and which result in continuing degradation of the Gila bioregion and harm to its wildlife and protected species. Unless and until Sinapu s requested relief is granted, the members and staff of Sinapu will continued to be harmed by USFS s actions with respect to grazing CEs on the Gila National Forest. 17. Defendant USFS is the agency of the Department of Agriculture that is directly responsible for management of the Gila National Forest. USFS is required to take steps to protect and conserve threatened and endangered species within the boundaries of the Gila National Forest. LEGAL BACKGROUND A. The National Environmental Policy Act 6

7 18. NEPA requires all federal agencies to conduct an environmental review of any of its major actions that may significantly affect the quality of the environment. See 42 U.S.C. 4332(C). The issuance or re-issuance of a term livestock grazing permit is a major federal action, which triggers NEPA. See e.g., Natural Resources Defense Council v. Morton, 388 F.Supp. 829 (D.D.C. 1974), aff d without opinion, 527 F.2d 1386 (D.C. Cir.1976). The purpose of NEPA, which is primarily procedural in nature, is not to dictate results, but rather to ensure an informed and transparent agency decision-making process wherein the public can actively participate. See e.g., Save the Yaak Committee v. Block, 348 F.2d 714, 178 (9 th Cir.1988). Agency action taken without observance of the procedure required by [NEPA] will be set aside. Id. 19. NEPA s action-forcing procedures require USFS to take a hard look at the environmental consequences of its proposed actions before proceeding with implementation, and to encourage public involvement in the agency decision-making process. See e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). While developing an EIS is appropriate for any major federal action, an agency may document its NEPA analysis for a fairly routine action in a mini EIS, known as an EA. See 42 U.S.C. 4332(2) and 40 C.F.R et seq. Although more concise than an EIS, each EA must still contain the requisite elements of a full-blown analysis. See 40 C.F.R Therefore, EAs must analyze both the discrete and cumulative environmental impacts of the proposed action, set forth alternatives to that proposed action, and similarly disclose impacts associated with those alternatives. See id. See also e.g., Kern v. BLM, 284 F.3d 1062 (9 th Cir.2002). 7

8 20. The question asked in all NEPA documents is whether the proposed action might cause a significant impact to environmental resources within the action area (here, the allotment(s) where grazing authorization or renewal is proposed). In the context of grazing management decisions, those environmental resources considered during the course of NEPA analyses must include wildlife and threatened and endangered species. If, after completing an EA with public input, USFS determines that its proposed action will not significantly impact protected species and other environmental resources, it will issue a Finding of No Significant Impact ( FONSI ), along with a Decision Notice ( DN ) and copy of the Final EA. At this point, the agency action is final and subject to administrative appeal under USFS regulation 36 C.F.R If, on the other hand, the EA shows that the proposed action may significantly impact the environment, the agency must go on to complete an EIS. B. Endangered Species Act 21. Issuing or renewing a term grazing permit not only triggers USFS s procedural duties under NEPA, but also triggers USFS s consultation duties under Section 7(a)(2) of the Endangered Species Act ( ESA ) 16 U.S.C. 1536(a)(2). See e.g., Forest Guardians v. Johanns, 450 F.3d 455 (9 th Cir.2006). ESA 7(a)(2) mandates that USFS consult with the United States Fish and Wildlife Service ( FWS ) to insure that livestock grazing is not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of designated critical habitat. Unlike the NEPA process, in which USFS considers public input on environmental issues, the ESA consultation process is an interagency one, in which USFS incorporates no feedback from the public. 8

9 22. For all threatened and endangered species, ESA consultation is carried out in a step-wise fashion. First, the agency proposing to undertake the given action determines whether the action area may contain any listed species or critical habitat. See 50 C.F.R If so, that action agency conducts a biological assessment ( BA ) of the species and/or habitat potentially present in a process known as informal consultation. See 50 C.F.R and For USFS grazing management decisions, informal consultation is conducted pursuant to the Framework for Streamlining Informal Consultation for Livestock Grazing Activities, USDA Forest Service (March 15, 2005) ( Guidance Criteria ). The Guidance Criteria was developed by USFS in conjunction with FWS, and is essentially an effects roadmap, detailing which grazing actions lead to what kind of harm for each species known to inhabit each Forest. As its name suggests, the purpose of the Guidance Criteria is to limit FWS participation in the informal consultation process, leaving USFS to essentially consult with itself on how its proposed actions might impact threatened and endangered species and/or critical habitat. 23. After examining possible impacts to listed species and/or critical habitat, USFS can make one of three findings in a BA: no effect ( NE ), may affect, not likely to adversely affect ( MANLAA ), or likely to adversely affect ( LAA ). After making one or more of these findings for any given species and/or area of critical habitat, USFS forwards its BA to FWS and seeks concurrence with its findings. If FWS concurs with USFS regarding either a NE or MANLAA finding for one or more species and/or their critical habitat in a BA, the Section 7(a)(2) consultation process is over with respect to those species and/or critical habitat. If, however, USFS finds, and FWS concurs, that its proposed action is likely to adversely affect one or more listed species and/or their critical habitat, it must formally consult with FWS. See 50 9

10 C.F.R During the course of formal consultation, FWS takes over the analysis and develops a biological opinion ( BO ), wherein it determines whether USFS s proposed action may be modified in such a way as to avoid substantive jeopardy or adverse modification. See 50 C.F.R For lesser-protected populations of endangered species managed pursuant to ESA 10(j), 16 U.S.C. 1539(j), the consultation process is purely procedural. Under Section 10(j), FWS can reintroduce a population of endangered species to an unoccupied portion of that species historic range. Although such reintroductions are ultimately undertaken in order to further the conservation of the species, Section 10(j) populations are managed with more flexibility than is otherwise afforded the species at large. See 16 U.S.C. 1539(j). The degree of management flexibility afforded each Section 10(j) population is first defined by FWS s determination whether the success of that reintroduced population is essential to the continued existence of the species as a whole. See id. If it is not, FWS may label that population experimental, nonessential ( ENE ) under ESA 10(j). For ENE populations, USFS must only confer with FWS pursuant to ESA 7(a)(2). As per the Guidance Criteria, the only possible outcome of a Section 7(a)(2) conference regarding a Section 10(j) ENE population is reaching a not likely to jeopardize ( NLJ ) finding. This finding is not based on any sort of analysis, but is instead a direct consequence of the ENE designation. Neither USFS nor FWS may discard a NLJ finding for a Section 10(j) ENE population even if harm to individuals within the population, or harm to the population as a whole, may potentially flow from the proposed action. By definition, no federal action could possibly cause substantive jeopardy, i.e., present a risk of total extinction, to a population that has been defined as non-essential to the continued 10

11 existence of that species. Therefore, ESA 7(a)(2) consultation offers no protective value for ENE populations of endangered species. 25. Importantly, whether a listed species is fully protected or ENE, an agency s compliance with its ESA consultation duties does not substitute for full compliance with the independent duties created by NEPA. Rather, when both duties are triggered, as they are for USFS grazing decisions, the action agency must examine the potential for substantive jeopardy and adverse modification as well as the potential for less harmful, yet significant, impacts to species and their habitat. See e.g., Portland Audubon Society, 795 F. Supp. 1489, 1509 (D. Or. 1992) (rejecting agency s argument that its consultation with FWS under the ESA constitutes a substitute for compliance with NEPA). This is because NEPA and the ESA ask very different questions. Namely, whether the proposed action may significantly impact one or more individuals belonging to a threatened or endangered species versus whether the proposed action may wipe out the species all together. Clearly, there can be a significant impact on a species even if its existence is not jeopardized. Makua v. Rumsfeld, 163 F. Supp. 2d 1202, 1218 (D. Ha. 2001). C. The Appropriations Rider 26. The only way in which USFS can avoid developing an EA or EIS each time it issues or renews a 10-year term grazing permit is to issue a CE under the Appropriations Rider, PL PL sets forth a three-pronged test for when USFS may CE its grazing management decisions from NEPA review. A grazing management decision may be categorically excluded only if: 1) the decision continues current grazing management; 2) monitoring indicates that current grazing management is meeting, or satisfactorily moving 11

12 toward, objectives in the applicable Forest Plan; and 3) the decision is consistent with agency policy concerning extraordinary circumstances. 27. For the purposes of the Appropriations Rider, current grazing management is the current management actions being implemented on the allotments at issue over the last three to five years. It incorporates the timing, intensity, frequency, and duration of grazing that has been implemented through existing allotment management plans ( AMPs ) and/or annual operating instructions ( AOIs ). See Forest Service Handbook ( FSH ) , See also Regional Guidance for Range Allotment Categorical Exclusion, USFS (March 11, 2005). 28. The Gila National Forest Land and Resource Management Plan ( GNFP ) is the governing Forest Plan on the Gila. The GNFP contains objectives for the protection of various resources within the Gila National Forest. Among them, the GNFP states that USFS will maintain and/or improve habitat for threatened and endangered species and work toward the eventual recovery and delisting of species on the Forest. GNFP, p The FSH details those resource conditions that should be considered in determining whether extraordinary circumstances exist for any given proposed action. These resource conditions are: a) federally listed threatened or endangered species or designated critical habitat, species proposed for federal listing or proposed critical habitat, or USFS sensitive species; b) flood plains, wetlands, or municipal watersheds; c) congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas; d) inventoried roadless areas; e) research natural areas; f) American Indians and Alaska Native religious or cultural sites; and g) archaeological sites, or historic properties or areas. FSH The FSH further states that, The mere presence of one or more of these resource conditions does not 12

13 preclude use of a categorical exclusion. It is the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist. Id. 30. Although the FSH offers no elaboration on this extraordinary circumstances policy, the degree of potential effect that, when reached, will disqualify an action for a CE must be that point where potential effects to one or more resource conditions seem significant. This is because neither the FSH nor the Appropriations Rider eviscerates NEPA, which expressly requires USFS to develop an EA or an EIS whenever continued grazing may significantly effect the environment. Within the context of NEPA, environment encompasses each of the seven resource conditions enumerated in the FSH. Therefore, in order for USFS s extraordinary circumstances policy to be compliant with NEPA, it must be read to mean that USFS refrains from issuing a grazing CE any time its proposed action may potentially affect one or more of the seven enumerated resource conditions in any significant way. This means that USFS may appropriately issue a grazing CE only if USFS reasonably concludes that potential effects from its proposed action to one or more of the seven enumerated resource conditions, including threatened and endangered species and/or their habitat, are not likely to be significant. 31. Because compliance with ESA consultation procedures does not alleviate USFS s duty to examine potentially significant impacts to threatened and endangered species in an EA, consultation compliance similarly cannot substitute for USFS s duty to examine potentially significant impacts to threatened and endangered species before issuing a grazing CE pursuant to the Appropriations Rider. Again, this is true because the substantive jeopardy threshold upon which the BA analysis rests is not a proper threshold for determining significance. 13

14 D. The Forest Service Decision Making and Appeals Reform Act 32. The Forest Service Decision Making and Appeals Reform Act ( ARA ), PL , Title III 332 (1992) (codified at 16 U.S.C note), compels USFS to establish an appeals process for all USFS projects and activities that implement land and resource management plans developed pursuant to the National Forest Management Act ( NFMA ), 16 U.S.C et seq. Because the issuance or renewal of USFS term grazing permits implement, and are issued in accordance with, the relevant National Forest Land and Resource Management Plan, USFS has established a process by which the public can appeal such actions after development of an EA or EIS. See 36 C.F.R USFS has not, however, established a process by which the public can appeal the issuance or renewal of a term grazing permit sanctioned by a CE. In each of the DMs corresponding to the 13 challenged CEs on the Gila National Forest, USFS has relied on 36 C.F.R. 215 as justification for barring public appeal. However, the only provisions pertaining to the public s right to appeal CEs in 36 C.F.R. 215 are found at 36 C.F.R and Importantly, the Ninth Circuit Court of Appeals has struck down both of these regulations as contrary to the ARA. See Earth Island Institute v. Pengilly, 376 F.Supp.2d 994 (E.D. Cal. 2005), aff d by Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9 th Cir.2006). The Ninth Circuit injunction that prevents USFS from relying on 36 C.F.R. 215 to deny public appeal of CEs applies nationwide. See id. E. The Administrative Procedures Act 34. APA 706(1) empowers citizens to petition the Court to compel agency action unlawfully withheld or unreasonably delayed. APA 706(2)(A) and (C) (E) empower 14

15 citizens to petition the Court to set aside an agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; and/or unsupported by substantial evidence. 35. As demonstrated below, USFS has violated APA 706(1), 706(2)(A), and 706(2)(C) (E) by inappropriately issuing CEs for 13 grazing management decisions on the Gila National Forest where substantial evidence shows that one or more of the Appropriations Rider s three prongs have not been met, by unjustifiably denying the public an opportunity to appeal these CEs, and by authorizing livestock grazing on these allotments through the issuance or renewal of 10-year term permits with no NEPA analysis. STATEMENT OF FACTS A. The Mexican Spotted Owl 36. FWS listed the Mexican spotted owl (Strix occidentalis lucida) 1 as a threatened species pursuant to the ESA on April 15, The owl was once found in Utah, Arizona, Colorado, and New Mexico. The Mexican spotted owl has the largest historical range of the three spotted owl subspecies. In New Mexico alone, spotted owls inhabited the Sangre de Cristo, Jemez, Manzano, Sacramento, Mogollon, Tularosa, San Francisco, San Mateo, and Black Range mountain ranges prior to Since that time, human use of these areas has diminished the owls habitat. This reduction in owl habitat has lead to a substantial decline in owl numbers. At 1 All species photos courtesy of FWS, 15

16 the time of listing, just 129 pairs and 85 single owls remained in New Mexico. Overall, approximately 20 percent of suitable owl habitat had been destroyed by the time the owl was listed. At that point, the species was losing habitat at a rate of one percent each year. 37. In December of 1995, FWS developed a Final Recovery Plan ( Owl Recovery Plan ) for the Mexican spotted owl. The Owl Recovery Plan divides the owls range into Recovery Units ( RUs ). The Owl Recovery Plan also provides for three levels of habitat management: protected areas, restricted areas, and other forest and woodland types. Protected areas include special designation of 600-acre owl roosting and nesting sites, called Protected Activity Centers ( PACs ). One goal of the Owl Recovery Plan is to protect conditions and structures used by spotted owls where they exist. The Owl Recovery Plan also seeks to set unoccupied but suitable areas on a trajectory to provide conditions for foraging and dispersal. 38. Owl populations in the Gila National Forest fall within the Upper Gila Mountains RU. The Upper Gila Mountains RU contains approximately 55 percent of known spotted owl territories. This RU also contains the largest known number of Mexican spotted owls. The Upper Gila Mountains RU is a core RU for recovery planning. Moreover, this RU is the critical nucleus for the subspecies due to its central location within the owls range. USFS controls 44 percent of the total land base of the Upper Gila Mountains RU. Livestock grazing is ubiquitous throughout the Upper Gila Mountains RU. 39. Livestock grazing influences the Mexican spotted owl in four ways: by altering prey availability; by altering the Forest s susceptibility to fire; by degenerating riparian plant communities; and by impairing the ability of plant communities to develop into spotted owl habitat. Livestock grazing poses a significant threat to the Mexican spotted owl within the Upper 16

17 Gila Mountains RU. This threat is primarily caused by habitat alteration and the reduction of food availability and diversity. Grazing alters riparian habitats by retarding the development of overstory tree structures. The owl needs these structures for nesting, roosting, and other life requirements. Grazing also alters meadow habitats and reduces the dense grass cover required by small mammals. The owl relies on small mammals, such as the Mexican vole, as a source of food. 40. FWS issued a final rule designated critical habitat for the Mexican spotted owl on August 31, Critical habitat contains those physical or biological features, which are essential to the conservation of the species. 16 U.S.C. 1532(5)(a)(i). For the Mexican spotted owl, critical habitat includes those portions of protected or restricted habitat types that contain one or more of the owl s primary constituent elements. This means that all Mexican spotted owl critical habitat contains one or more of the physical or biological features that supports owl nesting, roosting, and/or foraging. Over one million acres of the owl s critical habitat is located in Gila National Forest. USFS must manage Mexican spotted owl critical habitat in order to ensure the overall conservation of the species. B. The Chiricahua Leopard Frog 41. FWS listed the Chiricahua leopard frog (Rana chiricahuensis) as threatened pursuant to the ESA on June 13, FWS later issued a Final Recovery Plan for the frog ( Frog Recovery Plan ) in April of FWS has yet to designate critical habitat for this species as required by ESA 4(a)(3)(A)(i), 16 U.S.C. 1533(a)(3)(A)(i). The Chiricahua leopard frog is 17

18 now threatened across its entire range. The frog s range includes Arizona, New Mexico, and Mexico. 42. The Chiricahua leopard frog is a habitat generalist. Historically, the frog was found in a variety of aquatic habitat types. These include montane and river valley cienegas, springs, pools, tanks, lakes reservoirs, streams, and rivers. Chiricahua leopard frogs do, however, require permanent or semi-permanent pools for breeding. The frogs also require water characterized by low levels of contaminants and moderate ph. Chiricahua leopard frog habitat is, therefore, vulnerable to disturbance. The Chiricahua leopard frog is now absent from more than 75 percent of its historical sites, as well as numerous mountain ranges, valleys, and drainages within its former range. In areas where it the frog is still present, populations are often small and widely scattered. Today, most populations of Chiricahua leopard frogs occupy marginal, dynamic habitats characterized by human disturbance. 43. One such human disturbance is livestock grazing. Livestock grazing is ubiquitous in Chiricahua leopard frog habitat. Grazing adversely impacts Chiricahua leopard frogs by degrading their habitat. Such degradation from grazing includes the erosion and increased siltation of stream courses. It also includes the elimination of undercut banks, which would otherwise provide cover for the frogs. Habitat degradation from grazing also includes the destruction of wetland and riparian vegetation and backwater pools. It further encompasses the deterioration of watershed conditions. Poor watershed conditions increase the spread of disease to leopard frogs. Poor watershed conditions also increase the number of non-native leopard frog predators. Grazing harms Chiricahua leopard frogs directly as well. Cattle trample leopard frog eggs, tadpoles, and the frogs themselves. 18

19 44. Because much of their habitat has vanished, many Chiricahua leopard frogs currently live in stock tanks. Stock tanks provide marginal habitat, which is less beneficial for the frogs than a natural environment. Stock tanks pose a danger to frogs from periodic flooding, drying, and permeation of disease. Frogs have suffered complete die off events in isolated stock tanks due to high levels of toxins caused, in part, by excessive cattle feces. The unpredictable nature of stock tank habitats, coupled with the small size of frog populations that inhabit them, makes many of these populations vulnerable. If trends in Chiricahua leopard frog population declines are not quickly reversed, scientists expect the species will likely be extirpated from 90 to 100 percent of its former range in New Mexico within the next decade. C. The Mexican Gray Wolf 45. The Mexican gray wolf (Canis lupus baileyi) is the smallest, rarest, and most genetically distinct subspecies of the gray wolf species (Canis lupus). The Mexican wolf, or el lobo once numbered in the thousands, and ranged across portions of New Mexico, Arizona, Texas, and the Republic of Mexico. The subspecies drastically declined, however, as a result of concerted federal eradication efforts undertaken on behalf of American livestock interests. FWS and its predecessor agency, the U.S. Bureau of Biological Survey, relentlessly pursued el lobo in the wild until it was eventually extirpated from the southwestern United States. FWS listed the Mexican gray wolf under the ESA in At that time, el lobo was the most endangered mammal in North America. 19

20 46. Between 1977 and 1980, FWS trapped the last known remaining lobos (four males and one pregnant female) in Mexico. FWS used these individuals to launch an emergency captive breeding program. FWS issued a recovery plan for the Mexican gray wolf ( Wolf Recovery Plan ) in The primary objective of the Wolf Recovery Plan is to conserve and ensure the survival of the subspecies. FWS sought to accomplish this objective by maintaining a captive breeding program and re-establishing a viable, self-sustaining wild population of at least 100 Mexican wolves within their historic range. Following approval of a Final EIS in 1996, the Secretary of the Interior approved the reintroduction and recovery of Mexican wolves in FWS designated 4.4 million acres of contiguous National Forest land, known as the Blue Range Wolf Recovery Area ( BRWRA ), as the site of Mexican wolf reintroduction and recovery efforts. The Gila National Forest lies entirely within the BRWRA. The Forest constitutes 75 percent of the total wolf recovery area. The Forest also contains some of the best wolf habitat available. FWS released 11 captive-reared lobos into the BRWRA on March 29, The BRWRA can, in theory, support an estimated 468 wolves. 48. By the late 1990 s, many lobos existed in captivity. FWS labeled all reintroduced Mexican wolves, as well as their offspring, as ENE under ESA 10(j). Not only does the ENE designation alter the ESA consultation procedures, it also allows for greater management flexibility of wolves in the wild. The parameters for Mexican wolf management are set forth at 50 C.F.R (k), the Mexican gray wolf Section 10(j) rule. Importantly, 50 C.F.R (k) authorizes FWS to kill, remove, and/or translocate wolves that prey on USFSauthorized livestock within the BRWRA. 20

21 49. This management flexibility was further defined in 2005, when FWS adopted Standard Operating Procedure ( SOP ) 13 pursuant to the Mexican wolf Section 10(j) rule. SOP 13 sets forth a three-strikes policy, by which lobos will be permanently removed, i.e., either shot and killed or trapped and forever retired to captivity, for attacking three USFS-authorized cows or sheep within the course of one-year s time. Under SOP 13, wolf removal after three strikes is both punitive and mandatory. FWS affords no weight to the familial ties or genetic value of individual wolves slated for removal pursuant to SOP 13. Furthermore, when removing depredating wolves, FWS gives no consideration to whether the targeted wolf has experienced prey shifting due to opportunistic scavenging. This means that FWS gives no consideration as to whether the targeted wolf has learned to prey on cattle from eating dead cow carcasses left to rot on the Forest by USFS s permittees. 50. Irrespective of whether wolf removals are carried out by lethal or non-lethal control, each time FWS removes a wolf from the wild, the overall number of individuals decreases. This decrease in wild population numbers leaves the wild population incrementally less viable. Lower viability equates, in turn, to stifled wolf recovery. 51. USFS was authorizing approximately 82,600 cattle and 7,000 sheep to graze roughly 69 percent of the BRWRA in 1998 when wolf reintroduction began. Since that time, wolves have killed 37 head of cattle. Wolves have injured at least an additional five head of cattle since Still, USFS has failed to institute any sort of policy or program to help better avoid wolf-livestock conflicts on the Gila. The absence of federally led proactive measures leaves federally sanctioned wolf removal as the only solution to the conflicts problem. 21

22 52. FWS has removed more wolves from the BRWRA for conflicts with livestock than for any other reason. Since the program s inception in 1998, FWS has permanently removed 56 lobos from the wild. Thirty-one of those removals were undertaken within the last two years alone pursuant to the authority of SOP 13. This high rate of removal has precluded the attainment of wolf recovery goals. Scientists expected that, by the close of 2006, 102 individual wolves and 16 breeding pairs would occupy the BRWRA. The highest number of individual wolves thus far documented in the BRWRA at any given time was 59 individuals in December of The latest population count from September of 2007 revealed just 25 collared wolves in the wild. Some of these wolves currently have one or two strikes against them. Current estimates of breeding pairs range from four to six. 53. USFS is a partner in wolf management. USFS is aware of the magnitude of wolflivestock conflicts on the BRWRA. USFS is also aware of how these conflicts lead to an unsustainable rate of wolf removals. D. The 13 Gila Challenged Categorical Exclusions 54. Despite its knowledge of how grazing impacts owls, frogs, and wolves, for 13 allotments on the Gila National Forest, USFS has categorically excluded these 13 decisions from NEPA review. In so doing, USFS has concluded, with no NEPA analysis, that for each of these 13 allotments: 1) the final decision continues current management; 2) monitoring indicates that such current grazing management is maintaining or improving habitat for threatened and endangered species, and is actually contributing to the eventual recovery and delisting of species found within the action area; and 3) that reauthorizing grazing for another 10 years presents no potential for significant impacts to any threatened or endangered species or critical habitat. 22

23 55. USFS issued its first grazing categorical exclusion ( CE ) on the Gila National Forest for the 20,391-acre San Antone Allotment. This allotment is located southeast of the village of Quemado, New Mexico in the Quemado Ranger District. The San Antone Allotment 23

24 contains 3,800 acres of Mexican spotted owl critical habitat. It also contains two owl PACs. The San Antone Allotment falls entirely within the BRWRA. On August 24, 2006, USFS issued a DM categorically excluding from NEPA review its decision to permit 129 cow/calf pairs to graze the San Antone Allotment until This is equivalent to authorizing 1,244 Animal Unit Months ( AUMs ). An AUM is that amount of forage necessary to sustain one cow/calf pair for one month s time. USFS offered no monitoring data regarding Mexican gray wolves in the San Antone CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the San Antone CE DM solely on the analysis in its June 13, 2006 BA. In that BA, USFS issued MANLAA findings for both the Mexican spotted owl and its critical habitat. USFS issued a NLJ finding for the Mexican gray wolf. 56. USFS issued its second grazing CE on the Gila National Forest for the 15,030- acre Bear Creek Allotment. This allotment is located north of Silver City, New Mexico in the Silver City Ranger District. The Bear Creek Allotment contains habitat supporting prey species for the Mexican gray wolf. The allotment falls entirely within the BRWRA. On November 20, 2006, USFS issued a DM categorically excluding from NEPA review its decision to permit 70 cow/calf pairs (840 AUMs) to graze the Bear Creek Allotment year round until USFS offered no monitoring data regarding Mexican gray wolves in the San Antone CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the San Antone CE DM solely on the analysis in its July 12, 2006 BA. In that BA, USFS issued a NLJ finding for the Mexican gray wolf. 57. USFS issued its third, fourth, and fifth grazing CEs on the Gila National Forest under one DM. That CE DM covers the Mimbres, Powderhorn, and Sapillo Allotments. These 24

25 allotments collectively encompass approximately 132,507 acres. These allotments are located about five miles north of Mimbres, New Mexico in the Wilderness Ranger District. Although USFS excluded 84,871 acres of wilderness area from livestock grazing, the remaining 47,636 acres collectively making up these three allotments remain open to grazing under this one CE DM. Together, the Mimbres, Powderhorn, and Sapillo Allotments contain two Mexican spotted owl PACs. These allotments also contain historical habitat for the Chiricahua leopard frog. All three allotments fall entirely within the BRWRA. On November 30, 2006, USFS issued a DM categorically excluding from NEPA review its decision to permit 230 cow/calf pairs (3,312 AUMs) to graze the Mimbres, Powderhorn, and Sapillo Allotments year round until USFS offered no monitoring data regarding Mexican gray wolves in the Mimbres, Powderhorn, and Sapillo Allotments CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the Mimbres, Powderhorn, and Sapillo Allotments CE DM solely on the analysis in its July 17, 2006 BA. In that BA, USFS issued MANLAA findings for the Mexican spotted owl and the Chiricahua leopard frog. USFS issued a NLJ finding for the Mexican gray wolf. 58. USFS issued its sixth grazing CE on the Gila National Forest for the 4,727-acre SU Allotment. This allotment is located west of the village of Reserve, New Mexico in the Reserve Ranger District. The SU Allotment contains 291 acres of Mexican spotted owl restricted habitat. It also includes areas where the Chiricahua leopard frog is reasonably certain to occur. The SU Allotment falls entirely within the BRWRA. On May 12, 2007, USFS issued a DM categorically excluding from NEPA review its decision to permit 55 cow/calf pairs (871 AUMs) to graze the SU Allotment year round until USFS offered no monitoring data 25

26 regarding Mexican gray wolves in the SU Allotment CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the SU Allotment CE DM solely on the analysis in its June 28, 2006 BA. In that BA, USFS issued MANLAA findings for the Mexican spotted owl and Chiricahua leopard frog. USFS issued a NLJ finding for the Mexican gray wolf. 59. USFS issued its seventh grazing CE on the Gila National Forest for the 57,028- acre O Bar O Allotment. This allotment is located 20 miles east of the village of Reserve, New Mexico in the Reserve Ranger District. O Bar O contains six Mexican spotted owl PACs. It also contains an additional 1,000 acres of protected owl habitat outside of those PACs. O Bar O contains 12,150 acres of restricted owl habitat. O Bar O further contains 17,750 acres of owl critical habitat. The O Bar O Allotment contains areas where Chiricahua leopard frogs are reasonably likely to occur. The allotment falls entirely within the BRWRA. Mexican gray wolves have been reported on the O Bar O Allotment. The federal government has recently confirmed incidents of wolves killing livestock on this allotment. Animal damage control programs are in effect or proposed on the O Bar O for the Mexican gray wolf. Animal damage control means permanent removal of predators on behalf of livestock operators. On June 8, 2007, USFS signed a DM categorically excluding from NEPA review its decision to permit 460 cow/calf pairs (7,286 AUMs) to graze the O Bar O Allotment year round until USFS offered no monitoring data regarding Mexican gray wolves in the O Bar O Allotment CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the O Bar O Allotment CE DM solely on the analysis in its April 9, 2007 BA. In that 26

27 BA, USFS issued MANLAA findings for the Mexican spotted owl, its critical habitat, and the Chiricahua leopard frog. USFS issued a NLJ finding for the Mexican gray wolf. 60. USFS issued its eighth grazing CE on the Gila National Forest for the 16,797-acre Deadman Allotment. This allotment is located 15 miles east of the village of Reserve, New Mexico in the Reserve Ranger District. Deadman contains two Mexican spotted owl PACs. It also contains an additional 346 acres of protected owl habitat outside of those PACs. The Deadman Allotment contains 4,840 acres of restricted owl habitat. It features 5,970 acres of owl critical habitat. The Deadman Allotment encompasses areas where Chiricahua leopard frogs are reasonably likely to occur. This allotment falls entirely within the BRWRA. The Deadman contains suitable habitat that supports wolf prey. Mexican gray wolves have been reported on this allotment. As on O Bar O, the federal government has confirmed incidents of wolves killing livestock on the Deadman Allotment. Animal damage control programs are in effect or proposed on the Deadman for the Mexican gray wolf. On June 14, 2007, USFS signed a DM categorically excluding from NEPA review its decision to permit 112 cow/calf pairs (1,803 AUMs) to graze the Deadman Allotment year round until USFS offered no monitoring data regarding Mexican gray wolves in the Deadman Allotment CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the Deadman Allotment CE DM solely on the analysis in its April 15, 2007 BA. In that BA, USFS issued MANLAA findings for the Mexican spotted owl, its critical habitat, and the Chiricahua leopard frog. USFS issued a NLJ finding for the Mexican gray wolf. 61. USFS issued its ninth grazing CE on the Gila National Forest for the 18,856-acre Cox Canyon Allotment. This allotment is located 15 miles east of the village of Reserve, New 27

28 Mexico in the Reserve Ranger District. Cox Canyon contains seven Mexican spotted owl PACs. It also contains 8,965 acres of owl critical habitat. This is nearly half the allotment s total size. Cox Canyon contains suitable habitat that supports wolf prey. The Cox Canyon Allotment falls entirely within the BRWRA. Mexican gray wolves have been reported on this allotment. Animal damage control programs are in effect or proposed on Cox Canyon for the Mexican gray wolf. On June 21, 2007, USFS signed a DM categorically excluding from NEPA review its decision to permit 1,663 AUMs on the Cox Canyon Allotment until USFS offered no monitoring data regarding Mexican gray wolves in the Cox Canyon Allotment CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the Cox Canyon Allotment CE DM solely on the analysis in its April 15, 2007 BA. In that BA, USFS issued MANLAA findings for the Mexican spotted owl and its critical habitat. USFS issued a NLJ finding for the Mexican gray wolf. 62. The Cox Canyon decision does not continue current management. Over the past six years ( ), USFS has authorized up to 1,663 AUMs on the Cox Canyon Allotment. This is the same number of AUMs authorized by the DM. However, the AUMs for the past six years were calculated based on seasonal grazing, not yearlong use. USFS policy requires the agency to look at more than just the total number of AUMs when determining what constitutes a continuation of current management. Rather, USFS must consider, inter alia, the duration of grazing implemented over the past three to five years. In 2004 and 2005, USFS permitted cow/calf pairs on the allotment from April 15 to October 31. In 2006, USFS permitted 105 cow/calf pairs from May 15 to November 15. Switching from seasonal to yearlong use, USFS 28

29 authorizes the permittee to now graze the Cox Canyon Allotment on a year round basis in its CE DM. 63. USFS issued its tenth grazing CE on the Gila National Forest for the 12,248-acre Dark Canyon Allotment. This allotment is located approximately 20 miles northeast of the village of Reserve, New Mexico in the Reserve Ranger District. Dark Canyon contains one Mexican spotted owl PAC. Dark Canyon also contains an additional 1,301 acres of protected owl habitat outside of that PAC. The allotment contains 1,329 acres of restricted owl habitat. Dark Canyon contains 2,560 acres of owl critical habitat. Dark Canyon also encompasses habitat supporting wolf prey. The allotment falls entirely within the BRWRA. Mexican gray wolves have been reported on the Dark Canyon Allotment. Animal damage control programs are in effect or proposed on this allotment for the Mexican gray wolf. On June 21, 2007, USFS signed a DM categorically excluding from NEPA review its decision to authorize 70 cow/calf pairs (465 AUMs) to graze the Dark Canyon Allotment until USFS offered no monitoring data regarding Mexican gray wolves in the Dark Canyon Allotment CE DM. USFS based its no extraordinary circumstances conclusion for threatened and endangered species in the Dark Canyon Allotment CE DM solely on the analysis in its May 8, 2007 BA. In that BA, USFS issued MANLAA findings for the Mexican spotted owl and its critical habitat. USFS issued a NLJ finding for the Mexican gray wolf. 64. The Dark Canyon decision does not continue current management. Under the Dark Canyon CE, USFS has authorized the permittees to graze up to 70 cow/calf pairs seasonally (465 AUMs) until While USFS is not changing the stocking rate for this allotment, it is clear that USFS is switching management of this allotment from a two pasture grazing system to 29