Center For Biological Diversity et al v. Tidwell et al

MOTION for Summary Judgment

D.D.C.May 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY and EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the United States Forest Service; the UNITED STATES FOREST SERVICE; the UNITED STATES DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior; and the UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-01049-TSC PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 1 of 57 1 Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Plaintiffs Center for Biological Diversity and Earthworks (collectively, “Plaintiffs”) hereby move for summary judgment on their claims challenging the failure of Defendants Thomas L. Tidwell, U.S. Forest Service, and U.S. Department of Agriculture (collectively, “the Forest Service”), and Defendants Ryan Zinke and U.S. Fish and Wildlife Service (collectively, “FWS”) to comply with the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and provide adequate protections for the threatened Canada lynx and gray wolves that reside on the Superior National Forest in northeastern Minnesota. Specifically, Plaintiffs challenge (1) FWS’s September 16, 2011 Biological Opinion (“2011 Biological Opinion”) concerning the effects of the revised Land and Resource Management Plan (“Forest Plan”) for the Superior National Forest on threatened lynx and wolves, and their designated critical habitat; (2) the Forest Service’s reliance on the unlawful 2011 Biological Opinion in authorizing and allowing projects and activities on the Superior National Forest that are adversely impacting lynx and wolves and their critical habitat; and (3) the failure of both FWS and the Forest Service to reinitiate consultation on the implementation of the Forest Plan to take into account new information, as required under the ESA. Because Plaintiffs’ claims challenging Defendants’ compliance with the ESA will be determined based on the administrative record, no statement of undisputed material facts is required. Local Rule 7(h)(1). For the reasons set forth in the accompanying memorandum of points and authorities, Plaintiffs respectfully request that the Court grant their Motion for Summary Judgment and deny any cross-motion for summary judgment filed by Defendants. This motion is supported by the accompanying memorandum, the exhibits and declarations filed concurrently, the administrative record lodged by Defendants, and a proposed order. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 2 of 57 2 Respectfully submitted this 26th day of May, 2017, /s/ Marc D. Fink MARC D. FINK (MN Bar No. 0343407, pro hac vice) Center for Biological Diversity 209 East 7th Street Duluth, Minnesota 55805 Telephone: (218) 464-0539 Email: mfink@biologicaldiversity.org ANCHUN JEAN SU (DC Bar No. CA285167) Center for Biological Diversity 1212 Broadway Street, Suite 800 Oakland, CA 94612 Telephone: (510) 844-7139 Email: jsu@biologicaldiversity.org WILLIAM J. SNAPE III (DC Bar No. 455266) Center for Biological Diversity 1411 K St. NW, Suite 1300 Washington, DC 20005 Telephone: (202) 536-9351 Email: bsnape@biologicaldiversity.org Attorneys for Plaintiffs Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 3 of 57 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY; EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the United States Forest Service; the UNITED STATES FOREST SERVICE; the UNITED STATES DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior; and the UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-01049-TSC PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 4 of 57 i TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 LEGAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Endangered Species Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Administrative Procedure Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The Canada Lynx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 II. The Gray Wolf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. FWS’s 2011 Biological Opinion for the Forest Service’s 2004 Revised Forest Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. Plaintiffs Have Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. The 2011 Biological Opinion is Unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. The Incidental Take Statement Fails to Include Any Reasonable and Prudent Measures to Minimize the Take of Wolves and Lynx from Vehicle Collisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 B. FWS Failed to Include the Anticipated Taking of Lynx and Wolves From Trapping, Hunting, and Shooting in the Incidental Take Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 C. FWS’s Determination that the Forest Plan Is Not Likely to Adversely Affect Critical Habitat for Lynx or Wolves is Arbitrary, Unsupported, and Unlawful . . . . . . . . . . . . . . . . . . . . . . . . 32 1) The Forest Plan Will Result in Adverse Impacts to Wolf and Lynx Critical Habitat, As Not All Impacts Are “Positive” or “Completely Beneficial” . . . . . . . . . . . . . . . . . 34 2) The Forest Plan May Result in Take of Lynx Through Impacts to Habitat, and Therefore Not All Impacts to Critical Habitat Are “Insignificant” . . . . . . . . . . . . . . . . . . . . 35 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 5 of 57 ii 3) The Forest Plan Is Likely to Result in Adverse Impacts to Wolf and Lynx Critical Habitat, and Therefore The Effects Are Not All “Discountable” . . . . . . . . . . . . . . . . . . . . . . . . . . 36 III. The Forest Service is in Violation of its Substantive Duty under Section 7 of the ESA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 IV. FWS and the Forest Service Are In Violation of the ESA For Failing to Reinitiate Consultation on the Forest Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 A. The Forest Service Continues to Have Discretionary Involvement and Control Over the Implementation of the Forest Plan . . . . . . . . . . 38 B. New Information Reveals That Mining Projects May Affect Critical Habitat for Wolves and Lynx to a Greater Extent Than Previously Considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 V. The Court Should Grant Plaintiffs’ Requested Relief . . . . . . . . . . . . . . . . . . 41 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 6 of 57 iii TABLE OF AUTHORITIES Cases Animal Prot. Inst. v. Holsten, 541 F. Supp. 2d 1073 (D. Minn. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Am. Soc’y for Prevention of Cruelty to Animals v. Ringling Bros. Circus, 317 F.3d 334 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Cabinet Mts. Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678 (D.C. Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cape Hatteras Access Pres. Alliance v. U.S. Dept. of Interior, 344 F.Supp. 2d 108 (D.D.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Center for Biological Diversity v. Kelly, 93 F.Supp. 3d 1193 (D. Idaho 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Center for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 42 Center for Biological Diversity v. U.S. Bureau of Land Mgmt., 422 F.Supp. 2d 1115 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Center for Biological Diversity v. U.S. Forest Service, 640 Fed. Appx. 617 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39 County of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 7 of 57 iv Defenders of Wildlife v. Babbitt, 958 F.Supp. 670 (D.D.C. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Humane Society v. Hodel, 840 F.2d 45 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Humane Society v. Jewell, 76 F.Supp. 3d 69 (D.D.C. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Hunt v. United States, 278 U.S. 96 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Kleppe v. New Mexico, 426 U.S. 529 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 McDonnell Douglas Corp. v. Dept. of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Meister v. U.S. Dept. of Agriculture, 623 F.3d 363 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 30 Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 NLRB v. Brown, 380 U.S. 278 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nat’l Law Ctr. on Homelessness and Poverty v. U.S. Dept. of Veterans Affairs, 842 F.Supp. 2d 127 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Nat’l Parks Conserv. Ass’n. v. Jewell, 62 F.Supp. 3d 7 (D.D.C. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 40, 41 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 8 of 57 v Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Oceana v. Bureau of Ocean Energy Management, 37 F.Supp. 3d 147 (D.D.C. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Oceana v. Pritzker, 125 F.Supp. 3d 232 (D.D.C. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Or. Natural Res. Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Pacific Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Engrs., 538 F.Supp. 2d 242 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 20, 37 Palila v. Hawaii Dep’t of Land & Nat. Res., 639 F.2d 495 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Sierra Club v. Van Antwerp, 719 F.Supp. 2d 77 (D.D.C. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 28 U.S. v. Weiss, 642 F.2d 296 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 WildEarth Guardians v. Salazar, 741 F.Supp. 2d 89 (D.D.C. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 36 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 9 of 57 vi Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 U.S. Constitution U.S. Const., Art. IV, § 3, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 U.S. Const., Art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Statutes 5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14 5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32, 36, 37, 41 16 U.S.C. § 551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 16 U.S.C. § 1531(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 28 16 U.S.C. § 1532(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 U.S.C. § 1532(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 16 U.S.C. § 1532(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 33 16 U.S.C. § 1532(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 U.S.C. § 1532(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28 16 U.S.C. § 1532(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 U.S.C. § 1533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 U.S.C. § 1533(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 U.S.C. § 1536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 16 U.S.C. § 1536(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 33, 37, 42 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 10 of 57 vii 16 U.S.C. § 1536(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 16 U.S.C. § 1536(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 18, 23 16 U.S.C. § 1536(b)(4)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 16 U.S.C. § 1536(b)(4)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26 16 U.S.C. § 1536(b)(4)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 16 U.S.C. § 1536(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 16 U.S.C. § 1536(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 42 16 U.S.C. § 1536(o)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 16 U.S.C. § 1538(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 16 U.S.C. § 1538(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28 16 U.S.C. § 1538(a)(1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 16 U.S.C. § 1540(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 16 U.S.C. § 1540(g)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13 16 U.S.C. § 1540(g)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 16 U.S.C. § 1604(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 16 U.S.C. § 1604(g)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 16 U.S.C. § 1604(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 43 U.S.C. § 1732(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 MINN. STAT. § 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 MINN. STAT. § 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Regulations 36 C.F.R. § 219.15(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 36 C.F.R. § 261.50(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 11 of 57 viii 36 C.F.R. § 261.53(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 36 C.F.R. § 261.58(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 36 C.F.R. § 261.70(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 50 C.F.R. § 17.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 50 C.F.R. § 17.31(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 50 C.F.R. § 402.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 50 C.F.R. § 402.12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 50 C.F.R. § 402.14(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 33 50 C.F.R. § 402.14(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 50 C.F.R. § 402.14(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 50 C.F.R. § 402.14(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 50 C.F.R. § 402.14(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 50 C.F.R. § 402.14(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 18 50 C.F.R. § 402.14(i)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 50 C.F.R. § 402.14(i)(1)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 50 C.F.R. § 402.14(i)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26 50 C.F.R. §§ 402.14(i)(1)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 26 50 C.F.R. § 402.14(i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 50 C.F.R. § 402.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13, 38, 40, 42 50 C.F.R. § 402.16(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Miscellaneous 51 Fed. Reg. 19926, 19949 (June 3, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 65 Fed. Reg. 16052 (March 24, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 12 of 57 ix 74 Fed. Reg. 8616 (Feb. 25, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 82 Fed. Reg. 4282 (Jan. 13, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Forest Service Manual § 2643.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30 Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 13 of 57 1 INTRODUCTION Plaintiffs Center for Biological Diversity and Earthworks (“Plaintiffs”) challenge the failure of Defendants Thomas L. Tidwell, U.S. Forest Service, and U.S. Department of Agriculture (collectively, “the Forest Service”); and Defendants Ryan Zinke and U.S. Fish and Wildlife Service (collectively, “FWS”), to comply with the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and provide adequate protections for the threatened Canada lynx and gray wolves that reside on the Superior National Forest in northeastern Minnesota. Plaintiffs challenge (1) FWS’s September 16, 2011 Biological Opinion (“2011 Biological Opinion”) concerning the effects of the revised Land and Resource Management Plan (“Forest Plan”) for the Superior National Forest on threatened lynx and wolves, and their designated critical habitat; (2) the Forest Service’s reliance on the unlawful 2011 Biological Opinion in its continued authorization of projects and activities under the Forest Plan on the Superior National Forest that are adversely impacting the threatened lynx and wolves, and their critical habitat; and (3) the failure of both FWS and the Forest Service to reinitiate ESA consultation on the implementation of the revised Forest Plan to take into account new information, as required under the ESA. The language, history, and structure of the ESA “indicate[] beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Tennessee Valley Authority (“TVA”) v. Hill, 437 U.S. 153, 174 (1978). In the 2011 Biological Opinion, however, FWS determined that implementation of the Forest Plan would lead to takings of lynx and wolves due to vehicle collisions on the Superior National Forest, and yet failed to include the required measures to minimize the amount or extent of the anticipated takings from these collisions. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). FWS further determined that implementation of the Forest Plan would result in additional takings of lynx and wolves from trapping and hunting, but Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 14 of 57 2 erroneously determined that the Forest Service lacks any jurisdiction or authority to help protect the federally-listed species on the Superior National Forest from these incidents. FWS has designated the vast majority of the Superior National Forest as “critical habitat” for the Canada lynx and gray wolf, meaning the Forest is “essential to the conservation” of these species. 16 U.S.C. § 1532(5). In the 2011 Biological Opinion, however, FWS arbitrarily determined that none of the projects and activities authorized by the Forest Service on the Superior National Forest would have any adverse impact on this critical habitat. Moreover, even after this determination was proven to be wrong, FWS and the Forest Service refuse to reinitiate consultation to reconsider the effects of implementation of the Forest Plan on critical habitat. The 2011 Biological Opinion should be held unlawful, set aside, and remanded to FWS. The Forest Service and FWS should be ordered to promptly reinitiate consultation on the impacts of the Forest Plan, resulting in a new Biological Opinion that includes the required protections for lynx, wolves, and their critical habitat on the Superior National Forest. The Forest Service should also be ordered to insure that no projects or activities on the Forest may further violate the ESA by unlawfully taking additional lynx or wolves, or otherwise irreversibly or irretrievably committing resources, during the consultation process. LEGAL BACKGROUND I. Endangered Species Act The ESA represents “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. at 180. “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184. Section 4 of the Act requires FWS to formally list species that it Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 15 of 57 3 determines are threatened or endangered with extinction. 16 U.S.C. § 1533.1 All federal agencies are required to “conserve” the listed threatened and endangered species, and to utilize their authorities in furtherance of the purposes of the Act. 16 U.S.C. § 1531(c)(1). “Conserve” is defined by the statute to mean “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” 16 U.S.C. § 1532(3). To achieve the goal of conserving threatened and endangered species, Section 4 of the ESA also requires FWS to designate critical habitat for species that are listed as threatened or endangered. 16 U.S.C. §1533(a)(3). The ESA defines “critical habitat” as: (i) the specific areas within the geographical area occupied by the species, . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). “Critical habitat is defined and designated ‘in relation to areas necessary for the conservation of the species, not merely to ensure its survival.’” Ctr. for Biological Diversity v. Kelly, 93 F. Supp. 3d 1193, 1201 (D. Idaho 2015) (quoting Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1166 (9th Cir. 2010)). “[T]he whole point behind designating critical habitat is to identify those physical and biological features of the occupied area and/or those unoccupied areas that are essential to the conservation of a species with the aim of arriving at the point where the species is recovered, i.e., no longer in need of the measures 1 The statute defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 16 of 57 4 provided for in the ESA.” Ctr. for Biological Diversity, 93 F. Supp. 3d at 1201 (citations omitted). The “heart of the ESA” is the interagency consultation requirements of Section 7. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011); 16 U.S.C. § 1536. Section 7 requires the Forest Service, in consultation with FWS, to “insure that any action authorized, funded, or carried out by” the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of the designated critical habitat of such species. 16 U.S.C. § 1536(a)(2). FWS and the Forest Service must use the best scientific data available during the Section 7 consultation process. Id. Under Section 7, for each proposed action, the Forest Service must request from FWS whether any listed species or critical habitat may be present in the action area. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If a listed species may be present, the Forest Service must prepare a “biological assessment.” Id. If the Forest Service determines in the assessment that the proposed action “may affect” a listed species or critical habitat, it must engage in formal consultation with FWS, unless the Forest Service concludes that the action is “not likely to adversely affect” any listed species or critical habitat, and FWS concurs with that finding. 50 C.F.R. § 402.14(a), (b). To complete formal consultation, FWS must provide the Forest Service with a “biological opinion,” explaining how the proposed action will affect the listed species and critical habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14(h). If the biological opinion concludes that the action is not likely to jeopardize the continued existence of a listed species, and will not result in the destruction or adverse modification of that species’ critical habitat, but may result in Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 17 of 57 5 the incidental taking of the listed species, FWS must provide an “incidental take statement” with the opinion. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The “incidental take statement” must specify the amount or extent of such incidental taking on the listed species, the “reasonable and prudent measures” that FWS considers necessary or appropriate to minimize such impact, and the “terms and conditions” that must be complied with by the Forest Service to implement those measures. Id. The Forest Service must monitor and report to FWS the impact of its action on the listed species as specified in the incidental take statement. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 402.14(i)(1)(iv), 402.14(i)(3). If, during the course of the action, the amount or extent of incidental taking is exceeded, the Forest Service must reinitiate consultation with FWS immediately. 50 C.F.R. § 402.14(i)(4). The reinitiation of consultation is required and must be requested by the Forest Service or FWS where discretionary federal involvement or control over the action has been retained, and if (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the action is modified in a manner that causes an effect to the listed species or its critical habitat that was not considered in the biological opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. 50 C.F.R. § 402.16. After the initiation or reinitiation of consultation, the Forest Service is prohibited from making any irreversible or irretrievable commitment of resources with respect to the agency action which may foreclose the formulation or implementation of any reasonable and prudent alternative measures. 16 U.S.C. § 1536(d). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 18 of 57 6 Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of any threatened or endangered species. 16 U.S.C. § 1538(a)(1); 50 C.F.R. § 17.31(a). “Take” is defined broadly to include harming, harassing, trapping, shooting, capturing, wounding or killing a protected species either directly or by degrading its habitat. 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3 (defining “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”). Taking that is in compliance with the terms and conditions specified in the incidental take statement of a biological opinion is not considered to be a prohibited taking under the ESA. 16 U.S.C. § 1536(o)(2). The ESA authorizes citizen suits to enjoin any person, including any federal agency, who is alleged to be in violation of any provision of the statute or its implementing regulations. 16 U.S.C. § 1540(g)(1)(A). District courts have jurisdiction to enforce any such provision or regulation. Id. § 1540(g)(1). Plaintiffs may not file suit under the ESA citizen suit provision prior to sixty days after written notice of the violations has been provided to FWS and the alleged violator. Id. § 1540(g)(2)(A). II. Administrative Procedure Act Pursuant to the Administrative Procedure Act (“APA”), a person “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency action made reviewable by statute and final agency action for which there is no adequate remedy in court are subject to judicial review.” 5 U.S.C. § 704. The APA directs the reviewing court to “compel agency action unlawfully withheld or unreasonably delayed;” and to hold unlawful and Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 19 of 57 7 set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. FACTUAL BACKGROUND I. The Canada Lynx In 2000, FWS designated the Canada lynx as a threatened species under the ESA. FWS AR Doc. A2 at 0204 (citing 65 Fed. Reg. 16052 (March 24, 2000)). The lynx is a medium-sized cat with long legs and unusually large paws which make it highly adapted for hunting in deep snow. Id. at 0204-05. Lynx require large areas containing boreal forest habitat, with home ranges that encompass many square miles. Id. at 0205. Lynx prey primarily on snowshoe hares, especially in the winter when hares may comprise up to 97 percent of their diet. Id. at 0206. FWS designated critical habitat for the Canada lynx in 2009, including portions of Cook, Koochiching, Lake, and St. Louis Counties in northern Minnesota. FWS AR Doc. A2 at 0209 (citing 74 Fed. Reg. 8616 (Feb. 25, 2009)). The majority of the Superior National Forest is within designated lynx critical habitat. Id. Moreover, the majority of lynx occurrences in Minnesota are from the northeastern portion of the state, where the Superior National Forest is located. Id. at 0211. There are an estimated 190 to 250 lynx in northeastern Minnesota. Id. at 0214. As explained in the 2011 Biological Opinion, “[v]egetation, timber, and minerals management authorized under the Forest Plan has the potential to adversely affect lynx and lynx critical habitat by reducing habitat quality for denning, foraging, and dispersal; disrupting travel, resting, and foraging patters; disturbing denning females and reducing habitat quality for lynx prey species, especially snowshoe hare.” Id. at 0226. In addition, land exchanges related to proposed mining sites could result in the loss of prey habitat. Id. at 0225. “Habitat lost by large- Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 20 of 57 8 scale mining operations would be an irreversible and irretrievable impact to [lynx] prey due to the large-scale changes in landscape character at the mining sites.” Id. at 0226. Lynx may be killed on the Superior National Forest by trapping, shooting, predator control, and vehicle collisions resulting from implementation of the Forest Plan. Id. at 0217. There were 39 lynx mortalities reported in Minnesota between 2000 and 2011, including ten that died after being trapped, seven that died after collisions with cars, seven that were shot, and two that died after collisions with trains. Id. at 0208; see also id. at 0211 (stating that “at least seventeen lynx have been captured incidentally in recent years by trappers in pursuit of other species – seven of these lynx died as a result”). Lynx will likely continue to be killed by vehicle collisions on the Forest (id. at 0229), and “continue to be incidentally trapped at the current rate as a result of continued access via low standard roads and trails on the Forest.” Id. at 0231. II. The Gray Wolf The gray wolf population in Minnesota is designated as a threatened species under the ESA. FWS AR Doc. A2 at 0184. “All of the Superior National Forest is delineated as critical habitat for the gray wolf.” FWS AR Doc. A1 at 0005; see also FWS AR Doc. A2 at 0183. Gray wolves are the largest wild members of the dog family, with adults weighing up to 175 pounds. FWS AR Doc. A2 at 0185. Wolves are social animals that normally live in packs, and are predators of medium and large mammals, including white-tailed deer and moose. Id. FWS estimates that as of 2008, there were 484 wolves on the Superior National Forest. Id. at 0189. A number of land management activities on the Superior National Forest may affect wolves and wolf habitat, including timber management, prescribed fire, recreation, roads and trails, minerals exploration, and other human developments. FWS AR Doc. A2 at 0189-0190. Land exchanges concerning proposed mining sites on the Superior National Forest may also Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 21 of 57 9 result in a loss of wolf prey habitat. Id. at 0195. And road construction for mineral exploration projects increase human access to the Forest and thereby increase the potential for wolves to die from poachers, vehicle collisions and other human-caused threats. Id. at 0196-97. Wolves may be killed on the Superior National Forest by shooting, trapping, predator control, and vehicle collisions due to implementation of the Forest Plan. Id. at 0190. “Most illegal killings may be intentional and may never be reported to government authorities.” Id. at 0191. “Because they generally occur in remote locations and the evidence is easily concealed,” the agencies “lack reliable estimates of annual rates of illegal killings.” Id. There are over a thousand miles of “low standard roads” on the Superior National Forest, which “provide the highest potential for den site disturbance, shooting, trapping, and vehicle collisions with wolves.” Id. at 0197. Human access is expected to continue to increase, and any corridors open to recreational motor vehicles “provides the potential for Forest visitors to shoot, harass, incidentally trap, injure, or collide with wolves.” Id. FWS has estimated that approximately 24 wolves per year are killed in northern Minnesota due to vehicle collisions. Id. at 0202. Moreover, FWS anticipated that up to five wolves per year would continue to be taken annually on the Superior National Forest due to vehicle collisions. Id. at 0202. III. FWS’s 2011 Biological Opinion for the Forest Service’s 2004 Revised Forest Plan In 2004, the Forest Service completed a revised “Land and Resource Management Plan” (“Forest Plan”) for the Superior National Forest, pursuant to the National Forest Management Act (“NFMA”). FS AR Doc. 1A 055; FWS AR Doc. A2 at 0176; 16 U.S.C. § 1604(a). NFMA requires that all proposed projects and activities on the Superior National Forest must be consistent with the Forest Plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.15(d). In 2004, FWS issued a biological opinion concerning the impacts of implementation of the Forest Plan on the Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 22 of 57 10 gray wolf and Canada lynx. FWS AR Doc. A2 at 0173. According to FWS, the agency’s 2009 designation of critical habitat for the Canada lynx triggered the requirement under the ESA to reinitiate consultation with the Forest Service on the effects of the Forest Plan for the Superior National Forest. FWS AR Doc. A2 at 0173. In addition to considering the impacts of continued implementation of the Forest Plan on the newly designated lynx critical habitat, the Forest Service and FWS also reassessed the effects of the Forest Plan on lynx, wolves, and wolf critical habitat. Id. On May 17, 2011, the Forest Service completed a new biological assessment for the Forest Plan for the Superior National Forest (“2011 Biological Assessment”). FWS AR Doc. A1. In the 2011 Biological Assessment, the Forest Service determined that implementation of the Forest Plan “may affect, and is likely to adversely affect,” the gray wolf and Canada lynx, and “may affect, but is not likely to adversely affect” the designated critical habitat for both the gray wolf and Canada lynx. Id. at 0004-05. The Forest Service’s determination of “likely to adversely affect” for both the gray wolf and Canada lynx was “based on the potential for adverse impacts from human access and disturbances such as illegal shooting, incidental trapping, and possibly unpredictable vehicle collisions.” Id. The Forest Service recognized in the 2011 Biological Assessment that “wolves are susceptible to harm from humans where access is provided into wolf habitat.” FWS AR Doc. A1 at 0004. The Forest Service manages access on the Superior National Forest pursuant to the Forest Plan, and thus “there exists a potential for harm to wolves” through implementation of the Forest Plan. Id. Similarly, “[b]ecause the Forest Plan increases access, there exists a potential for greater human access into lynx habitat and the possibility for either intentional or unintentional harm to lynx.” Id. at 0006. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 23 of 57 11 On September 16, 2011, FWS completed a new biological opinion for the Forest Plan for the Superior National Forest (“2011 Biological Opinion”). FWS AR Doc. A2. According to the 2011 Biological Opinion, FWS assessed all Forest Plan activities that are (1) “directed or allowed” and (2) “proposed or probable.” Id. at 0177. These activities include timber harvest, wildlife habitat management, road and trail construction and maintenance, construction and maintenance of recreation facilities, hazardous fuels reduction, and habitat improvement. Id. FWS concurred that implementation of the Forest Plan is “not likely to adversely affect” critical habitat for either the gray wolf or Canada lynx. Id. at 0174. FWS also determined that the Forest Plan is “not likely to jeopardize” the gray wolf or Canada lynx. Id. at 0200, 0240. FWS determined in the 2011 Biological Opinion that continued implementation of the Forest Plan would result in “takings” of gray wolves and Canada lynx on the Superior National Forest. FWS AR Doc. A2 at 0202, 0241. The Biological Opinion therefore included an “Incidental Take Statement” for both the gray wolf and Canada lynx. Id. With respect to wolves, FWS determined that take could occur in the form of harassment during project implementation “and death related to human disturbance and vehicle collisions.” Id. at 0202. According to FWS, mortality to wolves could occur “through vehicle collisions and illegal hunting or shooting.” Id. However, the Incidental Take Statement only includes the anticipated takings caused by vehicle collisions because FWS found that any takes that result from hunting or shooting are “outside the jurisdiction and authority of the Forest Service.” Id. Further, within the Incidental Take Statement for wolves, FWS determined that no more than five wolves would be taken annually, and that no more than 50 wolves would be taken over the 10-years of remaining life of the Forest Plan, “due to vehicle collisions on all roads on all ownerships within the Superior National Forest proclamation boundary.” Id. FWS provided a Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 24 of 57 12 single “reasonable and prudent measure” to “minimize” the effects of these anticipated takes: “Document and report to the Service annually any known wolf mortality within the National Forest proclamation boundaries in Minnesota due to vehicle collisions or poaching.” Id. at 0203. FWS provided two “terms and conditions” to implement this measure. First, “mortality reports” “should” be provided to FWS by December 31 of each year. Id. Second, the Forest Service “should” coordinate with the state, county, Tribes and others “to collect information necessary for this reporting system.” Id. According to the Incidental Take Statement, “[i]nformation voluntarily provided by these agencies, researchers, and others would fulfill the requirements of the reasonable and prudent measure.” Id. With respect to the Canada lynx, FWS determined in the 2011 Biological Opinion that “[t]ake in the form of harm from lynx habitat alterations may occur, as could harassment and/or death related to human disturbance and incidental trapping.” Id. at 0241. For the takes caused by trapping, however, FWS stated—similar to what it concluded regarding wolves—that the Forest Service “does not have authority over furbearer trapping, nor do they have the discretion to allow or disallow its use on the Forest.” Id. FWS concluded in the 2011 Biological Opinion that no more than one lynx would be taken annually, and no more than 10 would be taken over the 10-year life of the Forest Plan, due to vehicle collisions on all roads within the Superior National Forest. Id. at 0241-42. As with the Incidental Take Statement for wolves, FWS provided a single “reasonable and prudent measure” to “minimize” the effects of the anticipated incidental takes on the Canada lynx: “Document and report to the Service annually any known lynx mortality within the National Forest proclamation boundaries in Minnesota due to vehicle collisions, accidental trapping, or poaching.” Id. at 0243-44. And FWS similarly provided two “terms and conditions” to Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 25 of 57 13 implement the measure. First, “mortality reports” should be provided to FWS by December 31 of each year. Id. at 0244. Second, the Forest Service is again required to coordinate with the state, county, Tribes and others “to collect information necessary for this reporting system.” Id. As with wolves, “[i]nformation voluntarily provided by these agencies, researchers, and others . . . would fulfill the requirements of the reasonable and prudent measure.” Id. The 2011 Biological Opinion included a “Reinitiation – Closing Statement,” stating that, as required by 50 C.F.R. § 402.16, the reinitiation of consultation is required if: “(1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this [biological] opinion; (3) the action is modified in a manner that causes an effect to the listed species or critical habitat that was not considered in this [biological] opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action.” Id. at 0245. STANDARD OF REVIEW Plaintiffs’ challenge to FWS’s 2011 Biological Opinion is reviewed pursuant to the APA. Bennett v. Spear, 520 U.S. 154, 179 (1997). Plaintiffs’ challenge of the Forest Service’s continued reliance on the 2011 Biological Opinion in violation of Section 7 of the ESA, and the failure of FWS and the Forest Service to reinitiate consultation under Section 7 of the ESA, are brought pursuant to the ESA citizen suit provision. 16 U.S.C. § 1540(g)(1)(A); see also Bennett, 520 U.S. at 173 (the citizen-suit provision “is a means by which private parties may enforce the substantive provisions of the ESA against” government agencies.). “[B]ecause the ‘ESA does not specify a standard of review,’ . . . ‘judicial review is governed by section 706 of the Administrative Procedure Act.’” Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 26 of 57 14 182 n.34 (D.D.C. 2014) (quoting Cabinet Mts. Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982)). 2 Pursuant to the APA, the court shall compel agency action unlawfully withheld; and 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. An agency’s decision is arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). “While the court’s scope of review is narrow,” the court “must still conduct ‘a thorough, probing, in-depth review’ of the agency’s decision.” Pacific Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Engrs., 538 F. Supp. 2d 242, 248 (D.D.C. 2008) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971)). Moreover, the court’s review is “limited to the administrative record in existence at the time of the agency’s decision.” Nat’l Law Ctr. on Homelessness and Poverty v. U.S. Dept. of Veterans Affairs, 842 F. Supp. 2d 127, 130 (D.D.C. 2012). Thus, the court “may not supply a reasoned basis for the agency's action that the agency itself has not given.” Motor Vehicle, 463 U.S. at 43. In reviewing Defendants’ actions, the court must determine whether the agencies properly applied the ESA and “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89, 98 (D.D.C. 2010) (internal 2 Plaintiffs’ third claim is addressed below in the context of Plaintiffs’ requested relief. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 27 of 57 15 quotations omitted). The court should “not defer to the agency’s conclusory or unsupported suppositions.” McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). Nor should the court “‘rubber- stamp . . . administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’” Ariz. Cattle Growers’ Ass’n v. USFWS, 273 F.3d 1229, 1236 (9th Cir. 2001) (quoting NLRB v. Brown, 380 U.S. 278, 291–92 (1965)). Last, the judicial deference owed to an agency’s decisions made based on its technical expertise is substantial but not unlimited; “the presumption of agency expertise may be rebutted if its decisions, even though based on scientific expertise, are not reasoned.” Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C. 1997); see also Humane Soc’y v. Jewell, 76 F. Supp. 3d 69, 133 (D.D.C. 2014) (“[S]uch deference may be suspended when an agency’s decision ‘fail[s] to provide a reasoned explanation, or where the record belies the agency’s conclusion.’” (quoting Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999))). ARGUMENT I. Plaintiffs Have Standing To satisfy Article III’s standing requirements, a plaintiff must show: 1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent; 2) the injury is fairly traceable to the challenged actions of the defendants; and 3) it is likely that the injury will be redressed by a favorable decision. Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 167, 180-81 (2000). “An association has standing to bring suit on behalf of its members when it’s members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 181. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 28 of 57 16 “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). The desire to “observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Sierra Club v. Jewell, 764 F.3d 1, 5 (D.C. Cir. 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)). Similarly, an “injury in fact can be found when a defendant adversely affects a plaintiff’s enjoyment of flora or fauna.” Id. (quoting Am. Soc’y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 337 (D.C. Cir. 2003)). Plaintiffs have submitted standing declarations from members of plaintiff organizations, which set forth their regular use and enjoyment of specific areas within the Superior National Forest. Andresen Dec., ¶¶ 5-6 (Ex. 1) (regularly visits family cabin that is located on in-holding in heart of the Forest, and a number of identified lakes and rivers); Palcich Dec., ¶¶ 2, 6 (Ex. 2) (resides on lake property close to the Forest, and regularly visits identified trails and lakes); Tammen Dec., ¶¶ 2, 6-7 (Ex. 3) (resides near the Forest, and regularly visits waterfront property on in-holding within Forest); Dupre Dec., ¶¶ 2, 4 (Ex. 4) (resides near Forest and visits the Forest monthly year-around to train for explorations and recreation). The members have plans to continue visiting the Superior National Forest in the future, including this summer. Andresen Dec., ¶¶ 5-6 (Ex. 1) (plans to visit cabin in the Forest a number of times this summer and fall, and is planning multiple trips to specific areas of the Forest this spring, summer, and fall); Palcich Dec., ¶ 7 (Ex. 2) (has plans for this summer and fall to hike with friends at identified areas within the Forest); Tammen Dec., ¶ 7 (Ex. 3) (intends to visit property in the Forest “every month this summer and fall”); Dupre Dec., ¶¶ 4-5 (Ex. 4) (visits Forest multiple times every Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 29 of 57 17 month, and has plans to visit a specific site for rock climbing this summer). Plaintiffs’ declarations explain how these members’ use and enjoyment of the Superior National Forest is being harmed by the lack of required protections for lynx and wolves within the 2011 Biological Opinion, and the failure of the Forest Service and FWS to reinitiate consultation on the Forest Plan. Andresen Dec., ¶¶ 10, 14-15 (Ex. 1) (stating that the allowance of trapping and hunting on the Forest harms her interests in knowing that lynx survive on the Forest, and her chance to continue to see lynx and wolves, and that she worries about her dogs being caught in traps); Palcich Dec., ¶¶ 11-12, 15 (Ex. 2) (her interests are harmed by hunting, trapping, and vehicle collisions, including fewer opportunities to see wolves, and concern that her dog will be shot or caught in trap); Tammen Dec., ¶ 13 (Ex. 3) (harmed by hunting, trapping, vehicle collisions, and development if wolves or lynx that he seeks to view are lost or suffer decline); Dupre Dec., ¶¶ 8-9, 13 (Ex. 4) (concerned that trapping, hunting, and development will decrease his chance to see lynx and wolves). The depletion of animals that Plaintiffs’ members seek to view while visiting the Superior National Forest is a “classic aesthetic interest” that has “always enjoyed protection under standing analysis.” Humane Soc’y v. Hodel, 840 F.2d 45, 52 (D.C. Cir. 1988). Plaintiffs’ members’ harm is caused by the deficiencies in the 2011 Biological Opinion, including the Incidental Take Statement, along with the agencies’ failure to reinitiate consultation; and this harm would be at least partially redressed by a favorable decision that compels FWS to prepare a new biological opinion that includes all required protections for lynx, wolves, and their critical habitat on the Superior National Forest. Andresen Dec., ¶ 17 (Ex. 1) (if protections for wolves and lynx are increased, my chances of seeing them on the Forest will also be increased, “which would greatly enhance my regular use and enjoyment of the Forest”); Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 30 of 57 18 Palcich Dec., ¶ 17 (Ex. 2) (a new biological opinion “will hopefully result in mitigation measures that reduce the impacts of hunting, trapping, vehicle collisions, and mine development on lynx and wolves and their habitat, which is key to ensuring that my interests in these species are preserved”); Tammen Dec., ¶ 14 (Ex. 3) (“These greater protections would help the wolf and lynx populations on the . . . Forest, and thereby increase my chances of encountering these species and signs of them both from our properties and while out enjoying the Forest”); Dupre Dec., ¶ 16 (Ex. 4) (“The better these imperiled species are protected, the greater are my chances of observing them and their signs during the time that I spend on the Forest”). As in Oceana v. Pritzker, the challenged 2011 Biological Opinion permits an “unlawfully excessive amount of harm” to lynx and wolves, “which threatens [Plaintiffs members’] enjoyment and study of those animals;” and “[v]acating the [Biological Opinion] and directing [FWS] to reinitiate consultation would redress that injury.” 125 F. Supp. 3d 232, 241 (D.D.C. 2015). For these reasons, Plaintiffs meet the three elements of Article III standing. II. The 2011 Biological Opinion Is Unlawful A. The Incidental Take Statement Fails to Include Any Reasonable and Prudent Measures to Minimize the Take of Wolves and Lynx from Vehicle Collisions FWS determined in the 2011 Biological Opinion that implementation of the Forest Plan will likely continue to result in takings of wolves and lynx from vehicle collisions on the Superior National Forest. The Incidental Take Statement fails to include, however, any “reasonable and prudent measures,” or implementing “terms and conditions,” that would minimize these takings, in violation of the ESA. 16 U.S.C. § 1536(b)(4); 50 CFR § 402.14(i). With respect to wolves, FWS estimated that “approximately 24 wolves per year” are killed in northern Minnesota due to vehicle collisions, with “roughly one quarter” of these Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 31 of 57 19 wolves killed within the boundaries of the Superior National Forest. FWS AR Doc. A2 at 0202. FWS determined in the Incidental Take Statement for the 2011 Biological Opinion that this rate of “taking” of wolves by vehicle collisions “is likely to continue under Forest Plan implementation.” Id. FWS anticipated that “no more than five wolves would be taken annually on the Superior National Forest and no more than 50 wolves would be taken over the 10-years of remaining life of the Forest Plan due to vehicle collision on all roads on all ownerships within the Superior National Forest proclamation boundary.” Id. Lynx have also been killed by vehicle collisions in northern Minnesota, with seven killed by cars between 2000 and 2011, including three on the Superior National Forest. Id. at 0208, 0242. FWS found it “reasonable to assume” that the agency is aware of only half of the lynx mortalities resulting from vehicle collisions. Id. at 0242. FWS concluded that this rate of lynx killed by vehicle collisions was “likely to continue under Forest Plan implementation.” Id. In the Incidental Take Statement, FWS estimated that implementation of the Forest Plan “will result in about two lynx killed from road collisions annually.” Id. FWS thereafter arbitrarily calculated that this would equate to “an estimate of 10 lynx taken during the life of the Forest Plan (approximately 10 years).” Id. Thus, FWS concluded that “no more than one lynx would be taken annually on the Superior National Forest and no more than 10 would be taken over the 10-year life of the Forest Plan due to vehicle collision on all roads on all ownership within the Superior National Forest proclamation boundary.” Id. at 0241-42. The inclusion of the anticipated incidental takings of wolves and lynx by vehicle collisions within the Incidental Take Statement required FWS to include “reasonable and prudent measures” to minimize these takes. Section 7 of the ESA requires that an incidental take statement must specify “those reasonable and prudent measures that the Secretary considers Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 32 of 57 20 necessary or appropriate to minimize such impact.” 16 U.S.C. § 1536(b)(4)(ii). Similarly, FWS’s regulations require that an incidental take statement specify “those reasonably and prudent measures that the Director considers necessary or appropriate to minimize such impact.” 50 C.F.R. § 402.14(i)(1)(ii). As recognized in Pacific Shores Subdivision California Water District v. U.S. Army Corps of Engineers, the Incidental Take Statement “must identify reasonable and prudent measures to help minimize the taking of the species.” 538 F. Supp. 2d 242, 258 (D.D.C. 2008). This requirement is “non-discretionary,” and “obligates [the agency] to minimize the impacts of the proposed action.” Id.; see also FS AR Doc. 6A 006 at 020863 (FWS Consultation Handbook) (stating that “Section 7 requires minimization of the level of take,” and that the incidental take statement must provide “nondiscretionary measures that are necessary and appropriate to minimize the impact of incidental take.”); id. at 020866 (“The impact of incidental take is to be minimized by the reasonable and prudent measures”); Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1039 n.7 (9th Cir. 2007) (finding that the deficiencies with the Incidental Take Statement were “exacerbated” by the “failure to provide any meaningful measures to attempt to minimize incidental takings associated with the project.”); Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1141 (N.D. Cal. 2006) (finding that FWS’s failure to include terms and conditions implementing reasonable and prudent measures to minimize the potential for incidental take violated the plain language of the ESA.). The Incidental Take Statement in the 2011 Biological Opinion fails to include any reasonable and prudent measures that would minimize the anticipated take of wolves and lynx caused by vehicle collisions on the Superior National Forest. As discussed below, measures such as lower speed limits, carrion removal, limitations on ATV access to certain areas, and the Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 33 of 57 21 decommissioning of old roads could all serve to meaningfully minimize the take of wolves and lynx due to vehicle collisions. However, for both wolves and lynx, the Incidental Take Statement instead includes only a monitoring and reporting requirement, which does nothing to minimize the amount or extent of anticipated take: Document and report to the Service annually any known wolf mortality within the National Forest proclamation boundaries in Minnesota due to vehicle collisions or poaching. FWS AR Doc. A2 at 0203. Document and report to the Service annually any known lynx mortality within the National Forest proclamation boundaries in Minnesota due to vehicle collisions, accidental trapping, or poaching. Id. at 0243-44. Because the Incidental Take Statement failed to include any “reasonable and prudent measures” that would minimize the anticipated takings of wolves and lynx caused by vehicle collisions resulting from implementation of the Forest Plan, the Statement also failed to include any mandatory “terms and conditions” to implement these measures, in further violation of the ESA. 16 U.S.C. § 1536(b)(4)(iv); 50 C.F.R. § 402.14(i)(1)(iv). The terms and conditions in the Incidental Take Statement again include only monitoring and reporting requirements that do nothing to minimize the impact of the anticipated vehicle collisions, as mandated by the ESA: 1. Mortality reports should be provided to the Service by December 31 of each calendar year the Revised Forest Plans are implemented. Reports should include, to the extent known, the cause of mortality, location, and sex of wolves killed. 2. Rather than establishing a discrete field monitoring effort to document wolf mortality, the Forest Service should coordinate with partners in state, tribal, county, municipal law enforcement, wildlife management agencies, wolf researchers, federal wolf trappers, and the public to collect information necessary for this reporting system. Information voluntarily provided by these agencies, researchers, and others would fulfill the requirements of the Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 34 of 57 22 reasonable and prudent measure. FWS AR Doc. A2 at 0203; see also id. at 0244 (same two terms and conditions for lynx). Significantly, FWS was well aware of reasonable and prudent measures that it could have included in the Incidental Take Statement to help minimize the anticipated take of wolves and lynx from vehicle collisions, as required by the ESA. Just two weeks prior to issuing the 2011 Biological Opinion, FWS issued the September 2, 2011 Biological Opinion for the Northshore Mine expansion (“Northshore Mine Biological Opinion”), which is located near the Superior National Forest in northeastern Minnesota. FWS AR Doc. D2. Both biological opinions were prepared by the same FWS office, and signed by the same FWS official. Id.; FWS AR Doc. A2. Both biological opinions determined that the proposed actions would result in the incidental take of wolves and lynx by vehicle collisions, and therefore included an incidental take statement. FWS AR Doc. A2 at 0202-03, 0241-44; FWS AR Doc. D2 at 6283-88. While the 2011 Biological Opinion for the revised Forest Plan failed to include any reasonable and prudent measure to minimize the take caused by vehicle collisions, the Northshore Mine Biological Opinion included the required measures. Id. As stated by FWS in the Northshore Mine Biological Opinion, the “[r]easonable and prudent measures are intended to minimize the impacts of the anticipated incidental take.” FWS AR Doc. D2 at 6286. For the Northshore Mine expansion, the following measures were found by FWS to be “necessary and appropriate to minimize anticipated incidental take to Canada lynx and gray wolves.” Id. 1. The St. Louis County Highway Department will implement a speed limit reduction through the realigned CSAH 70 corridor to reduce vehicle collisions with both Canada lynx and gray wolf. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 35 of 57 23 2. The St. Louis County Highway Department will implement the removal of road-killed deer or moose along CSAH 70 to limit the likelihood of Canada lynx or gray wolves feeding on carrion on or near the highway. 3. The St. Louis County Highway Department will reduce the disturbance by all-terrain-vehicle (ATV) and snowmobile riders using the relocated ATV trail along realigned CSAH 70. 4. [Northshore Mine] will develop and implement a management plan to benefit Canada lynx and gray wolves using the action area. Id. FWS also included mandatory terms and conditions to implement these reasonable and prudent measures, including the posting of speed limit signs, the prompt removal of any deer or moose killed by vehicles, and information signs posted for ATV users. Id. at 6287-88. FWS provides no explanation in the administrative record for why these same or similar reasonable and prudent measures, and implementing terms and conditions, were not included in the Incidental Take Statement within the 2011 Biological Opinion for the revised Forest Plan. FWS’s failure to include any reasonable and prudent measures, and implementing terms and conditions, to minimize the anticipated take of wolves and lynx from vehicle collisions resulting from implementation of the Forest Plan violates the ESA. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1). The 2011 Biological Opinion, and its Incidental Take Statement, should be found to be arbitrary, capricious, in violation of the ESA, and set aside. 5 U.S.C. § 706(2)(A). B. FWS Failed to Include the Anticipated Taking of Lynx and Wolves From Trapping, Hunting, and Shooting in the Incidental Take Statement The Incidental Take Statement for the 2011 Biological Opinion failed to include the anticipated, incidental taking of wolves and lynx from hunting and trapping on the Superior National Forest because FWS and the Forest Service claim that the Forest Service lacks the jurisdiction and authority to protect the threatened wolves and lynx on the Forest from these activities. The agencies are wrong, as the Forest Service does have the jurisdiction and authority Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 36 of 57 24 to provide protections for federally-listed threatened and endangered species from these activities on the Superior National Forest. FWS determined in the 2011 Biological Opinion that implementation of the Forest Plan will likely continue to result in the incidental taking of lynx and wolves on the Superior National Forest by hunting, shooting, and trapping activities, as permitted under state hunting and trapping laws. For wolves, FWS stated that “wolf mortality may come from shooting [and] trapping.” FWS AR Doc. A2 at 0190. As explained by FWS, the killing of wolves on the Superior National Forest occurs for a number of reasons, including accidental takings where wolves are mistaken for coyotes and shot by hunters, or caught in traps that are set for other animals. Id. at 0191. The risk is particularly high on “low standard roads,” which “provide the highest potential” for shooting and trapping. Id. at 0197. FWS concluded that the mortality and incidental taking of wolves may continue to occur on the Superior National Forest through “illegal hunting or shooting.” Id. at 0202. For lynx, FWS set forth in the 2011 Biological Opinion that between 2000 and 2011, “there have been at least seventeen documented incidents of trapped lynx in Minnesota, and of these at least seven are known to have died.” FWS AR Doc. A2 at 0220; see also id. at 0208, 0211. “Additionally, six lynx have been documented as shot and killed in Minnesota; two of these mortalities were within the Superior National Forest proclamation.” Id. FWS found that there was a continued risk of “direct lynx mortality” from trapping and shooting. Id. at 0217; see also id. at 0220 (stating that lynx continue to be “vulnerable to legal trapping for other mammals”). The effects to lynx from trapping and shooting were expected to be “long term on trails and low standard open roads.” Id. at 0229. Thus, “[l]ynx are likely to continue to be incidentally trapped at the current rate as a result of continued access via low standard roads and Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 37 of 57 25 trails on the Forest.” Id. at 0231. FWS concluded that the “adverse effects from incidental trapping remain likely under the Forest Plan,” resulting “indirectly from the implementation of the Forest Plan.” Id.; see also id. at 0241 (stating that the incidental taking of lynx may continue to occur from harassment or death caused by human disturbance and trapping). However, FWS and the Forest Service both claim that the Forest Service has no jurisdiction or authority to protect threatened wolves and lynx from hunting, shooting, or trapping on the Superior National Forest. As stated by FWS in the 2011 Biological Opinion, “the Forest Service has no jurisdiction or authority over illegal hunting of wolves,” and “[a]ny take that occurs due to illegal hunting or shooting is outside the jurisdiction and authority of the Forest Service.” FWS AR Doc. A2 at 0198, 0202. Similarly, FWS stated that “the Forest Service has no jurisdiction or authority over trappers on the Forest,” the Forest Service has no discretion to allow or disallow trapping on the Superior National Forest, and that any take that occurs due to trapping “is outside the jurisdiction and authority of the Forest Service.” Id. at 0231, 0241. Agreeing with FWS, the Forest Service asserted that “the Superior National Forest does not have authority over furbearing trapping and hunting, nor do we have the discretion to allow or disallow its use on the Forest.” FS AR Doc. 4A 002 at 019549. Due to FWS’s and the Forest Service’s position, the anticipated takings of wolves and lynx from hunting, shooting, and trapping on the Superior National Forest were not included in the Incidental Take Statement for the 2011 Biological Opinion. FWS AR Doc. A2 at 0202-03, 0241-44. As a result, the Incidental Take Statement did not include any limit on the amount or extent of the anticipated taking of wolves and lynx caused by these activities that, if exceeded, would trigger the need to reinitiate consultation, as required by the ESA. Id.; 16 U.S.C. § 1536(b)(4)(i); 50 C.F.R. § 402.14(i)(1)(i). Additionally, as a result of the agencies’ position, the Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 38 of 57 26 Incidental Take Statement did not include any “reasonable and prudent measures” or “terms and conditions” to minimize the takings of wolves and lynx caused by these activities, as further required by the ESA. Id.; 16 U.S.C. § 1536(b)(4)(ii),(iv); 50 C.F.R. § 402.14(i)(1)(ii),(iv). FWS and the Forest Service are wrong that the Forest Service lacks the jurisdiction and authority to protect federally-listed species on the Superior National Forest from hunting and trapping permitted under state law. The Property Clause of the U.S. Constitution provides that “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” U.S. Const., Art. IV, § 3, cl. 2. Under the Property Clause, Congress has “complete power” over public lands, including “the power to regulate and protect the wildlife living there.” Kleppe v. New Mexico, 426 U.S. 529, 540-41 (1976). As held by the Supreme Court in Kleppe v. New Mexico, “the Property Clause . . . gives Congress the power to protect wildlife on the public lands, state law notwithstanding.” Id. at 546; see also Hunt v. U.S., 278 U.S. 96, 100 (1928) (stating that the power of the United States to protect its lands and property “does not admit of doubt, the game laws or any other statute of the state to the contrary notwithstanding.” (citations omitted)). Congress has enacted a number of statutes that provide the Forest Service with the jurisdiction and authority over public lands and resources in the National Forest System. See, e.g., 16 U.S.C. § 551 (the Organic Act of 1897, directing the Secretary of Agriculture to regulate the use and occupancy of national forests in order to protect the forests from destruction);3 16 U.S.C. § 1604(g)(3)(B) (the National Forest Management Act in 1976, directing the Secretary of Agriculture to promulgate regulations for national forests that “provide for the diversity of plant 3 Pursuant to the Organic Act, “the Secretary may make rules and regulations for the protection and preservation of the national forests, and persons entering upon national land must comply with those rules and regulations.” U.S. v. Weiss, 642 F.2d 296, 298 (9th Cir. 1981). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 39 of 57 27 and animal communities.”). Significantly, in the Federal Land Policy and Management Act of 1976 (“FLPMA”), Congress provided as follows: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned “may designate areas of public lands and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. 43 U.S.C. § 1732(b) (emphasis added). This provision of FLPMA authorizes the Forest Service to prohibit hunting on designated areas of national forest lands for the stated purposes. In Meister v. U.S. Department of Agriculture, the plaintiff challenged the Forest Service’s development of a Forest Plan, in part because the agency failed to consider an alternative that would have closed certain portions of the national forest to gun hunting. 623 F.3d 363, 377 (6th Cir. 2010) (“Meister”). The Forest Service asserted that closing portions of the forest to hunting was “beyond its authority,” arguing that the Multiple-Use Sustained-Yield Act of 1960 and FLPMA did not affect the jurisdiction of the states with respect to fish and wildlife on the national forests. Id. at 378. As recognized by the Sixth Circuit, however, “there are clear exceptions to that rule.” Id. FLPMA “expressly provides” that the Forest Service may designate areas of national forests, and establish periods when, “no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with applicable law.” Id. (quoting 43 U.S.C. § 1732(b) (emphasis in original)). The court in Meister further found that the Forest Service’s own guidelines “echo the point,” as the Forest Service Manual provides that hunting, fishing, and trapping are subject to state law unless the state laws conflict with federal law or conflict with the land and resource Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 40 of 57 28 responsibilities of the Forest Service. Id. at 378-79 (quoting Forest Service Manual § 2643.1). The court concluded that the Forest Service is charged by Congress with balancing competing interests on national forests, and “if that balance requires closure of certain areas to certain activities, Congress has granted the Service that authority.” Id. at 379. “There is no lawful policy that ties the Service’s hands in this regard.” Id; see also Ctr. for Biological Diversity v. U.S. Forest Serv., 640 Fed. Appx. 617, 619 (9th Cir. 2016) (stating that “the Forest Service has the authority to control certain conduct of the third-party hunters.”). Congress has also enacted the ESA, which represents “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. at 180. The ESA directs all federal agencies to conserve threatened and endangered species (16 U.S.C. §§ 1531(c)(1), 1536(a)(1)), and prohibits the “taking” of such species (id. § 1538(a)(1)), which is defined to include hunting, shooting, and trapping. Id. § 1532(19). The ESA demonstrates “beyond doubt that Congress intended endangered species to be afforded the highest of priorities,” and that Congress gave “endangered species priority over the ‘primary missions’ of federal agencies.” TVA v. Hill, 437 U.S. at 174, 185. The ESA charges the Forest Service with the authority and jurisdiction to provide protections for federally-listed species, which trumps state laws and regulations that conflict with the ESA. The U.S. Constitution’s Supremacy Clause provides that valid acts of Congress “shall be the Supreme Law of the Land; . . . anything in the . . . laws of any State to the contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. The Supremacy Clause “invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)). Courts have consistently upheld that, to the extent a state law conflicts with the Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 41 of 57 29 ESA, the state law is preempted and invalidated. See, e.g., Strahan v. Coxe, 127 F.3d 155, 168, 170 (1st Cir. 1997) (finding that “Congress implicitly intended to preempt any action of a state inconsistent with and in violation of the ESA,” and holding that the ESA preempted state fishing regulations that allowed the setting of lobster traps in ways that caused takings of ESA-listed whales); Animal Prot. Inst. v. Holsten, 541 F. Supp. 2d 1073 (D. Minn. 2008) (holding that Minnesota’s state trapping licensure program violated the ESA because it resulted in the unlawful taking of lynx); Palila v. Hawaii Dep’t of Land & Nat. Res., 639 F.2d 495, 497-98 (9th Cir. 1981) (holding that state’s game management laws permitting the maintenance of feral sheep and goats for sport-hunting on land that is critical habitat for the federally-listed, endangered bird Palila violated the ESA). On the Superior National Forest, the state’s hunting and trapping laws are in conflict with the ESA, because federally-listed wolves and lynx are repeatedly being taken by hunters and trappers on the Forest, in violation of Section 9 of the ESA. 16 U.S.C. § 1538(a). In light of the purposes and intent of the ESA, and the Supremacy Clause and conflict preemption law, Congress clearly intended for federal agencies to have the ability and jurisdiction to protect federally-designated threatened and endangered species on federal lands, instead of being wholly subservient to state hunting and trapping laws. In sum, the Forest Service possesses jurisdiction and authority under the ESA to protect federally-listed wolves and lynx from hunting and trapping activities that directly conflict with the ESA. Moreover, the Forest Service’s own regulations authorize the Forest Service Chief, Regional Foresters, and Forest Supervisors to issue orders “which close or restrict the use of described areas within the area over which he has jurisdiction.” 36 C.F.R. § 261.50(a). This authority specifically includes the issuance of orders prohibiting hunting or fishing on a national Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 42 of 57 30 forest. 36 C.F.R. § 261.58(v) (stating that “[w]hen provided by an order, the following are prohibited . . . (v) Hunting or fishing”). The Chief and Regional Foresters are also authorized to issue regulations that prohibit acts within an area for which they have jurisdiction for the purpose of protecting threatened and endangered species. 36 C.F.R. § 261.70(a)(4); see also 36 C.F.R. § 261.53(a) (the Forest Service may also issue “special closures,” including to protect threatened and endangered species). Further, as recognized by the Sixth Circuit in Meister, 623 F.3d at 379, the Forest Service’s own Manual recognizes that hunting and trapping on National Forests are not subject to state fish and wildlife laws if these state laws conflict with federal law or with the Forest Service’s land management responsibilities. The Forest Service Manual states: Hunting, fishing, and trapping of fish and wildlife and associated practices on National Forest System lands are subject to State fish and wildlife laws and regulations, unless one or both of the following apply: a) State fish and wildlife laws and regulations conflict with Federal laws; or b) State laws and regulations would permit activities that conflict with land and resource management responsibilities of the Forest Service or that are inconsistent with direction in forest plans. FS AR Doc. 4D 003 at 019591 (Forest Service Manual § 2643.1) (emphasis added). As explained above, on the Superior National Forest, the state’s hunting and trapping laws are in conflict with the ESA, because federally-listed wolves and lynx are repeatedly being illegally taken by hunters and trappers on the Forest, in violation of Section 9 of the ESA. 16 U.S.C. § 1538(a)(1)(B). Notably, the Forest Service has recognized in the past that it affirmatively does have jurisdiction and authority over hunting and trapping activities on the Superior National Forest in order to protect wolves. In 1970, the Supervisor of the Superior National Forest issued an order Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 43 of 57 31 which prohibited the hunting and trapping of wolves on the Forest. FS AR Doc. 5A 001. The Order stated that pursuant to Forest Service regulations, “the hunting, trapping, taking, maiming, or molesting of timber wolves . . . is prohibited on National Forest lands in the Superior National Forest.” Id. at 020263. The purpose of the Order was to “protect and perpetuate the timber wolf in a remnant of suitable habitat pursuant to the 1966 Rare and Endangered Species Act (16 U.S.C. 668 aa et seq.).” Id. The Order also regulated all trapping on the Superior National Forest to further protect wolves, stating that trapping “shall be for other than timber wolves,” and limited to “steel traps no larger than number 2 in size.” Id. Any wolves inadvertently trapped in conjunction with trapping for other furbearers were required to be released. Id. Finally, FWS provided no explanation in the 2011 Biological Opinion as to why the Forest Service has jurisdiction and authority over motor vehicles throughout the Superior National Forest (regardless whether the vehicles are traveling on state, county, or Forest Service roads), but not over hunters and trappers. A biological opinion must consider the “effects of the action” on listed species (50 C.F.R. § 402.14(h)(2)), including “indirect effects,” which are “those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.” 50 C.F.R. § 402.02. FWS recognized that third-party vehicle collisions with wolves and lynx, and third-party hunting and trapping incidents involving wolves and lynx, are both effects that are likely to result from the vast network of roads on the Superior National Forest. FWS AR Doc. A2 at 0197 (recognizing that “low standard roads” on the Forest provide the highest potential for “shooting, trapping, and vehicle collisions with wolves.”); id. at 0230 (same for lynx); see also FS Doc. AR IG 0012 at 005794 (recognizing that individual wolves and lynx may be adversely affected by implementation of the Forest Plan “by vehicle collisions, trapping or shooting on forest lands.”). The operation of motor vehicles and the management of hunting Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 44 of 57 32 and trapping are both subject to state laws and oversight.4 However, FWS included the anticipated takes caused by vehicle collisions in the Incidental Take Statement, while arbitrarily excluding the anticipated takes caused by hunting and trapping. In sum, the Property and Supremacy Clauses of the U.S. Constitution, federal statutes including FLPMA and the ESA, and the Forest Service’s own regulations and manual demonstrate that the Forest Service does have the jurisdiction and authority to regulate hunting and trapping on the Superior National Forest, especially to provide protection for imperiled species such as wolves and lynx that have been listed by FWS as threatened or endangered under the ESA and are at risk of incidental hunting and trapping due to state game laws. And in fact, the Forest Service has prohibited and further regulated hunting and trapping activities on the Superior National Forest in the past in order to protect against the incidental killing of wolves. FWS’s rationale in the 2011 Biological Opinion for not including the anticipated takings of wolves and lynx caused by hunting, shooting, and trapping incidental to activities permitted under state game law is therefore arbitrary, unsupported, and contrary to law. Thus, the 2011 Biological Opinion, including its Incidental Take Statement, should be held to be arbitrary, capricious, contrary to law, and set aside. 5 U.S.C. § 706(2)(A). C. FWS’s Determination that the Forest Plan Is Not Likely to Adversely Affect Critical Habitat for Lynx or Wolves is Arbitrary, Unsupported, and Unlawful FWS determined in the 2011 Biological Opinion that the continued implementation of the Forest Plan is “not likely to adversely affect” critical habitat for lynx or wolves. FWS AR Doc. A2 at 0174. As a result, the 2011 Biological Opinion does not fully analyze the impacts to these species’ critical habitat, or include any conservation recommendations that would reduce these 4 See e.g., MINN. STAT. § 168 (Vehicle Registration) and § 169 (Traffic Regulations). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 45 of 57 33 impacts. FWS’s determination is arbitrary, unsupported, and unlawful under the ESA. FWS has formally designated the vast majority of the Superior National Forest as “critical habitat” for the gray wolf and Canada lynx. See FWS AR Doc. A1 at 0002 (stating that the majority of the Superior National Forest is “within the designated lynx critical habitat area”); id. at 0005 (stating that “[a]ll of the Superior National Forest is delineated as critical habitat for the gray wolf”); FWS AR Doc. A2 at 0193 (map of wolf critical habitat in Minnesota); id. at 0209 (map of lynx critical habitat in Minnesota). FWS has thereby determined that the Superior National Forest is “essential to the conservation” of wolves and lynx. 16 U.S.C. § 1532(5)(A). “A critical habitat designation provides protection for threatened and endangered species by triggering . . . Section 7 consultation,” in which FWS must insure that the proposed action is not likely to result in the destruction or adverse modification of the designated critical habitat. Cape Hatteras Access Pres. Alliance v. U.S. Dept. of Interior, 344 F. Supp. 2d 108, 115 (D.D.C. 2004) (citing 16 U.S.C. § 1536(a)(2)). The ESA establishes very low thresholds for when consultation, including formal consultation, is required. Agencies are required to review their proposed actions to determine whether the action “may affect” any listed species or critical habitat, and if such a determination is made, formal consultation is generally required. 50 C.F.R. § 402.14(a). “The ‘may affect’ threshold for triggering the consultation duty under section 7(a)(2) is low.” Nat’l Parks Conserv. Ass’n. v. Jewell, 62 F. Supp. 3d 7, 12 (D.D.C. 2014). “Any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement.” Id. at 13 (quoting 51 Fed. Reg. 19926, 19949-50 (June 3, 1986)). Formal consultation can be avoided if the action agency determines, with the written concurrence of FWS, that the proposed action is “not likely to adversely affect” any listed Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 46 of 57 34 species or critical habitat. 50 C.F.R. § 402.14(b)(1). However, the “likely to adversely affect” threshold is similarly low. According to FWS, the “not likely to adversely affect” finding can be made “only if ALL of the reasonably expected effects of the proposed action will be beneficial, insignificant, or discountable.” FS AR Doc. 6A 006 at 020811 (FWS Consultation Handbook). “Beneficial effects” are defined as “contemporaneous positive effects without any adverse effects to the species.” Id. at 020802. “Insignificant effects” relate to the size of the impact, and “should never reach the scale where take occurs.” Id. And “discountable effects” are those that are “extremely unlikely to occur.” Id; see also FWS AR Doc. A1 at 0004. Moreover, “[i]f the nature of the effects cannot be determined, benefit of the doubt is given to the species,” and formal consultation is required. Id. FWS makes clear in the 2011 Biological Opinion that the impacts to wolf and lynx critical habitat from the continued implementation of the Forest Plan were not all expected to be beneficial, insignificant, or discountable. FWS’s “not likely to adversely affect” determination for wolf and lynx critical habitat was therefore unlawful and improper. 1) The Forest Plan Will Result in Adverse Impacts to Wolf and Lynx Critical Habitat, As Not All Impacts Are “Positive” or “Completely Beneficial” First, FWS acknowledges in the 2011 Biological Opinion that not all impacts to lynx and wolf critical habitat would be “completely beneficial.” In fact, FWS determined that “all potential adverse effects of projects under the Forest Plan could not be eliminated.” FWS AR Doc. A2 at 0195. For wolves, FWS found that “vegetation management activities” carried out under the Forest Plan were expected to have “both positive and negative effects” to the habitat of the wolf’s prey. Id. FWS further found that vegetation clearing for minerals management projects “may have temporary impacts to prey habitat at drill pad sites,” and “have the potential Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 47 of 57 35 to affect gray wolves through disturbance and disruption of den sites.” Id. at 0195, 0198. In addition, “[l]and exchanges in proposed mining sites could result in a loss of wolf prey habitat and connectivity.” Id. at 1098. And the large number of new roads for minerals exploration projects may also have “significant contributions to temporary road densities.” Id. at 0197. Similarly, for lynx critical habitat, FWS determined in the 2011 Biological Opinion: Vegetation, timber, and minerals management authorized under the Forest Plan has the potential to adversely affect lynx and lynx critical habitat by reducing habitat quality for denning, foraging, and dispersal; disrupting travel, resting, and foraging patterns; disturbing denning females and reducing habitat quality for lynx prey species, especially snowshoe hare. FWS AR Doc. A2 at 0226 (emphasis added). FWS further recognized that the habitat lost by large-scale mining operations would be an “irreversible or irretrievable impact” to lynx prey due to the “large-scale changes in landscape character at the mining sites.” Id. at 0226. And mineral exploration activities “have the potential to add a significant number of road miles,” which may increase den site disturbance and other impacts. Id. at 0230. 2) `The Forest Plan May Result in Take of Lynx Through Impacts to Habitat, and Therefore Not All Impacts to Critical Habitat Are “Insignificant” Second, as stated above, in order to be characterized as “insignificant effects,” and not trigger the need for formal consultation, the impacts to critical habitat “should never reach the scale where take occurs.” FS AR Doc. 6A 006 at 020802. In the 2011 Biological Opinion, however, FWS specifically determined that “[t]ake in the form of harm from lynx habitat alterations may occur.” Id. at 0241 (emphasis added). Under FWS’s Handbook and definition, the agency was therefore not allowed to reach a “not likely to adversely affect” determination for lynx critical habitat. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 48 of 57 36 3) The Forest Plan Is Likely to Result in Adverse Impacts to Wolf and Lynx Critical Habitat, and Therefore The Effects Are Not All “Discountable” Third, the anticipated adverse effects to wolf and lynx critical habitat are not “discountable,” under FWS’s Handbook and definition, as FWS did not determine in the 2011 Biological Opinion that these effects were “extremely unlikely to occur.” FS AR Doc. 6A 006 at 020802. Instead, FWS repeatedly found that a number of adverse impacts to wolf and lynx critical habitat may occur, or were likely to occur, as result of the continued implementation of the Forest Plan. See FWS AR Doc. A2 at 0195 (vegetation management activities were “likely” to have both positive and negative effects to wolf prey); id. (minerals exploration “may” impact prey habitat, and land exchanges “could result in a loss of wolf prey habitat”); id. at 0225 (land exchanges in proposed mining sites “could have mixed impacts such as a loss of wolf prey habitat”); id. at 0241 (take in the form of harm from habitat alterations “may occur”). In sum, FWS’s “not likely to adversely affect” determination for both wolf critical habitat and lynx critical habitat is unsupported by FWS’s own findings in the 2011 Biological Opinion. WildEarth Guardians, 741 F. Supp. 2d at 98 (the agency must provide “a rational connection” between the facts found and the agency’s conclusion). The 2011 Biological Opinion is clear that continued implementation of the Forest Plan will not only result in “beneficial” effects to the wolf and lynx critical habitat on the Superior National Forest, and the anticipated effects to these species’ habitat were not all found to be “insignificant” or “discountable” under FWS’s own definitions. FWS’s “not likely to adversely affect” determination should therefore be found to be arbitrary, capricious, and contrary to the ESA, and the 2011 Biological Opinion should be held unlawful and set aside. 5 U.S.C. § 706(2)(A). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 49 of 57 37 III. The Forest Service Is in Violation of its Substantive Duty Under Section 7 of the ESA For the above stated reasons, the 2011 Biological Opinion, including its Incidental Take Statement, is unlawful under the ESA. As a result, the Forest Service is in ongoing violation of its mandatory duties and obligations under Section 7 of the ESA. 16 U.S.C. § 1536(a)(2). Section 7 imposes a substantive duty on the Forest Service to ensure that its actions are not likely to jeopardize the continued existence of threatened or endangered species, or result in the destruction or adverse modification of their critical habitat. 16 U.S.C. § 1536(a)(2). “Arbitrarily and capriciously relying on a faulty Biological Opinion violates this duty.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010). “In particular, an agency cannot meet its section 7 obligations by relying on a Biological Opinion that is legally flawed.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1127-28 (9th Cir. 2012). Similarly, the Forest Service’s “reliance on the FWS’s legally inadequate incidental take statement was arbitrary and capricious.” Pacific Shores, 538 F.Supp. 2d at 259 (citing 5 U.S.C. § 706(2)(A)). Accordingly, the Forest Service is in ongoing violation of its substantive duty under section 7 of the ESA to ensure that its continued implementation of the Forest Plan will not jeopardize the population of wolves or lynx on the Superior National Forest, or destroy or adversely modify their critical habitat. Ctr. for Biological Diversity, 698 F.3d at 1128; 16 U.S.C. 1536(a)(2). IV. FWS and the Forest Service Are in Violation of the ESA for Failing to Reinitiate Consultation on the Revised Forest Plan The ESA requires the reinitiation of formal consultation “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” and “new information reveals effects of the action that may affect listed species or critical habitat in a Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 50 of 57 38 manner or to an extent not previously considered.” 50 C.F.R. § 402.16(b). The Forest Service continues to be involved and has control over implementation of the Forest Plan for the Superior National Forest, and new information reveals that mining projects may affect critical habitat for wolves and lynx to an extent not considered in the 2011 Biological Opinion. The failure of the Forest Service and FWS to reinitiate consultation on the Forest Plan therefore violates the ESA. A. The Forest Service Continues to Have Discretionary Involvement and Control Over the Implementation of the Revised Forest Plan The reinitiation of consultation is required if the Forest Service retains discretionary involvement or control over implementation of the Forest Plan for the Superior National Forest. 50 C.F.R. § 402.16. In response to Plaintiffs’ notice letter, the Forest Service proclaimed that “existing Forest Plans are generally not subject to required re-initiation of consultation.” FS AR Doc. 4A 002. However, “the Forest Service retains exclusive ‘control,’ 50 C.F.R. § 402.16, over its own Forest Plans throughout their implementation.” Cottonwood Environmental Law Ctr. v. U.S. Forest Service (“Cottonwood”), 789 F.3d 1075, 1087 (9th Cir. 2015). Forest Plans “fall squarely” within the “discretionary” parameters of 50 C.F.R. § 402.16 “because, through the Forest Plans, the Forest Service retains a ‘continuing ability . . . to control site-specific management activities.’” Id. (quoting Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995)). In Norton v. Southern Utah Wilderness Alliance (“SUWA”), the Supreme Court found that the land use plan at issue was not an ongoing “major Federal action” that may require supplementation under the National Environmental Policy Act (“NEPA”). 542 U.S. 55, 73 (2004). As explained by the Ninth Circuit in Cottonwood, however, there is “a key difference” between when supplementation is required under NEPA and when the reinitiation of consultation Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 51 of 57 39 is required under the ESA. 789 F.3d at 1085. Unlike the supplementation of environmental review at issue in SUWA, an agency’s responsibility to reinitiate consultation does not terminate when the underlying action is complete. Stated another way, there is nothing in the ESA or its implementing regulations that limits reinitiation to situations where there is ‘ongoing agency action.’ . . . The determinative question, therefore, is whether ‘discretionary Federal involvement or control over the [Forest Plan] has been retained or is authorized by law.’ Id. at 1086. The Forest Service remains “involved” in the Forest Plan for the Superior National Forest because the agency continues to make additional decisions that implement the Forest Plan at the site-specific level. Id. at 1087. Therefore, as in Cottonwood, the reinitiation of Section 7 consultation on the Forest Plan “could yield important actionable information.” Id. B. New Information Reveals That Mining Projects May Affect Critical Habitat for Wolves and Lynx to a Greater Extent Than Previously Considered In the 2011 Biological Opinion, FWS determined that implementation of the Forest Plan would not have any adverse affects to the designated critical habitat for wolves and lynx. As explained above, this means that FWS found that any impacts to these species’ critical habitat, throughout the entire Superior National Forest, would be purely beneficial, insignificant, and “extremely unlikely to occur.” Since completion of the 2011 Biological Opinion, however, FWS and the Forest Service have recognized that mining projects on the Superior National Forest are likely to cause significant impacts to wolf and lynx critical habitat. In the 2016 Biological Opinion for the NorthMet mine and land exchange, FWS determined that this mine project, by itself, “is likely to adversely affect” the critical habitat for both the Canada lynx and gray wolf on the Superior National Forest. FS AR 4D 007 at 019734, 019795. The proposed mine site is within the designated critical habitat for the lynx and wolf. FS AR 4D 008 at 019825-26. FWS determined that the mine would “directly disturb” about Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 52 of 57 40 1,719 acres at the mine site (FS AR 4D 007 at 019739), including 1,333 acres of lynx denning and wolf cover habitat (id. at 019783), and that most of this habitat loss would be permanent. Id. at 019784. The Forest Service similarly determined in its Biological Assessment that the mine “is likely to adversely affect Canada lynx critical habitat,” as it “directly affect[s] about 1,719 acres of lynx critical habitat within the Mine Site.” FS AR 4D 008 at 019826. And the Forest Service agreed that “the Project is likely to adversely affect gray wolf critical habitat,” as it would “directly affect approximately affect 1,719 acres of gray wolf critical habitat.” Id. Moreover, there would be an additional 2,189 acres of habitat disturbed at the plant site, for a total of 3,918 acres of habitat disturbance from this mining project. FS AR 4D 007 at 019777; see also id. at 019795 (estimating that mine will destroy 3,918 acres of lynx and wolf habitat over the 20-year life of the project). Overall, “species habitat effectiveness” would be reduced by the mine “due to vegetation removal and subsequent habitat fragmentation, increasing human presence, noise, increasing traffic, and other factors as mining activities progress.” Id. And “wildlife travel corridors” may also be reduced by the mine, which “may create an additional impediment to lynx, wolf, and prey movements.” Id.5 This new information concerning the significant impacts of mine projects and activities on wolf and lynx critical habitat requires the Forest Service and FWS to reinitiate consultation on the impacts of continued implementation of the Forest Plan for the Superior National Forest. 50 C.F.R. § 402.16(b); see also Nat’l Parks Conservation Ass’n v. Jewell, 62 F. Supp. 3d 7, 19 5 The proposed NorthMet mine is not the only mining project that is now of significant concern on the Superior National Forest, as the Forest Service recently proposed withdrawing over 230,000 acres of the Forest from mineral leasing and development due to the significant threats and impacts to natural resources that the agency now recognizes are posed by mining activities. See 82 Fed. Reg. 4282 (Jan. 13, 2017). Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 53 of 57 41 (D.D.C. 2014) (biological opinion did not consider new information on the adverse impacts of coal mining). The agencies refusal to do so violates the ESA. 50 C.F.R. § 402.16(b). V. The Court Should Grant Plaintiffs’ Requested Relief The Court should vacate the 2011 Biological Opinion, order the Forest Service and FWS to promptly reinitiate and complete consultation on implementation of the Forest Plan, compel FWS to prepare a legally adequate biological opinion, and order the Forest Service to insure that no projects or activities on the Superior National Forest may further violate the ESA by unlawfully taking additional lynx or wolves or harming their critical habitats, or otherwise irreversibly or irretrievably committing resources, during the reinitiated consultation process. FWS violated the ESA in developing and approving the 2011 Biological Opinion, and the Court should therefore hold unlawful and set aside the Biological Opinion. 5 U.S.C. § 706(2)(A) (stating that the reviewing court “shall hold unlawful and set aside” agency action that is found to be arbitrary, capricious, and abuse of discretion, or not in accordance with law). Under the APA, vacating the unlawful agency action is the presumptive remedy. Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78 (D.D.C. 2010) (“both the Supreme Court and the D.C. Circuit Court have held that remand, along with vacatur, is the presumptively appropriate remedy for a violation of the APA”). The Court’s determination whether to vacate should consider the seriousness of the agency decision’s deficiencies and the disruptive consequences of vacatur. Sierra Club, 719 F. Supp. 2d at 78. Here, there are no circumstances that would warrant allowing the 2011 Biological Opinion to remain in place despite the clear violations of the ESA, and FWS’s issuance of the opinion should be vacated. Further, because the 2011 Biological Opinion is unlawful, the Forest Service is in ongoing violation of its substantive duty under Section 7 of the ESA to insure that the continued Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 54 of 57 42 implementation of the Forest Plan for the Superior National Forest is not likely to jeopardize any listed species or result in the destruction or adverse modification of their critical habitat. 16 U.S.C. § 1536(a)(2); Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d at 1127-28. Moreover, as explained above, both FWS and the Forest Service are in ongoing violation of the ESA by failing to reinitiate consultation on the impacts of the Forest Plan on listed species and critical habitat. 50 C.F.R. § 402.16. The Court should order the Forest Service and FWS to promptly reinitiate and complete consultation on the Forest Plan. 5 U.S.C. § 706(1) (stating that the reviewing court “shall compel agency action unlawfully withheld”). Finally, once consultation on the Forest Plan has been reinitiated, the Forest Service must not make any “irreversible or irretrievable commitment of resources” during the consultation process “which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.” 16 U.S.C. § 1536(d). The Forest Service should also be ordered to insure that no projects or activities on the Superior National Forest may further violate the ESA by unlawfully taking additional lynx or wolves pending the completion of the consultation process and approval of a new biological opinion that complies with the ESA. CONCLUSION For the foregoing reasons, the Court should grant Plaintiffs’ Motion for Summary Judgment. The Court should vacate FWS’s 2011 Biological Opinion, order the Forest Service and FWS to promptly reinitiate consultation on the Forest Plan, and order the Forest Service to insure that no projects or activities on the Superior National Forest may further violate the ESA by unlawfully taking lynx or wolves, or otherwise irreversibly or irretrievably committing resources, during the consultation process. Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 55 of 57 43 Respectfully submitted on this 26th day of May, 2017. /s/ Marc D. Fink MARC D. FINK (MN Bar No. 0343407, pro hac vice) Center for Biological Diversity 209 East 7th Street Duluth, Minnesota 55805 Telephone: (218) 464-0539 Email: mfink@biologicaldiversity.org ANCHUN JEAN SU (DC Bar No. CA285167) Center for Biological Diversity 1212 Broadway Street, Suite 800 Oakland, CA 94612 Telephone: (510) 844-7139 Email: jsu@biologicaldiversity.org WILLIAM J. SNAPE III (DC Bar No. 455266) Center for Biological Diversity 1411 K St. NW, Suite 1300 Washington, DC 20005 Telephone: (202) 536-9351 Email: bsnape@biologicaldiversity.org Attorneys for Plaintiffs Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 56 of 57 44 PLAINTIFFS’ LIST OF EXHIBITS 1. Declaration of Andresen (Ex. 1) 2. Declaration of Palcich (Ex. 2) 3. Declaration of Tammen (Ex. 3) 4. Declaration of Dupre (Ex. 4) Case 1:16-cv-01049-TSC Document 33 Filed 05/26/17 Page 57 of 57 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY and EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the United States Forest Service; the UNITED STATES FOREST SERVICE; the UNITED STATES DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior; and the UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-01049-TSC PROPOSED ORDER Case 1:16-cv-01049-TSC Document 33-1 Filed 05/26/17 Page 1 of 2 2 Upon due consideration of Plaintiffs’ Motion for Summary Judgment, the memorandum and declarations in support, the cross-motions and oppositions thereto, reply briefs, and the administrative record, the Court hereby: DECLARES that the September 16, 2011 Biological Opinion issued by the United States Fish and Wildlife Service (“FWS”) is unlawful, VACATES the 2011 Biological Opinion, and ORDERS FWS to undergo consultation with the Forest Service and prepare a legally adequate biological opinion in compliance with Section 7 of the Endangered Species Act (“ESA”); DECLARES that FWS’s and the Forest Service’s failure to reinitiate consultation on the Forest Plan for the Superior National Forest is unlawful and ORDERS Defendants to promptly reinitiate and complete consultation on the implementation of the Forest Plan; DECLARES that the Forest Service’s continued reliance upon the 2011 Biological Opinion is unlawful; and ORDERS Defendants to insure that no projects or activities on the Superior National Forest may further violate the ESA by irreversibly or irretrievably committing resources, or unlawfully allowing additional takings of lynx or wolves, pending the completion of the Section 7 consultation process and approval of an ESA-compliant biological opinion. Dated: _________________________ _____________________________ HON. TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE Case 1:16-cv-01049-TSC Document 33-1 Filed 05/26/17 Page 2 of 2 EXHIBIT 1 Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 1 of 7 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY; EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the U.S. Forest Service; the U.S. FOREST SERVICE; the U.S. DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the Interior; and the U.S. FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-01049-TSC DECLARATION OF LORI ANDRESEN Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 2 of 7 2 I, Lori Andresen, hereby declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge. If called as a witness, I could and would testify competently to these facts. As to those matters which reflect an opinion, they reflect my personal opinion and judgment on the matter. 2. I reside in Duluth, Minnesota. I am and have been a member of the Center for Biological Diversity (the “Center”) since at least 2009. The Center has worked for over twenty- five years to protect threatened and endangered species under the Endangered Species Act. The Center works to secure a future for all species, great and small, hovering on the brink of extinction. I joined the Center because I share its goal of preserving, protecting, and restoring native species and the ecosystems upon which they depend. As a member of the Center, I receive its newsletters and electronic news updates, and participate in its electronic action alerts concerning topics of concern to me. I rely upon the Center, in part, to represent my interests in protecting endangered and threatened species and their habitats. 3. I am and have been a member of Earthworks since at least 2012. I support Earthwork’s mission of protecting communities and the environment from the adverse impacts of mineral and energy development, while promoting sustainable solutions. 4. I have a liberal arts and design background (B.S., A.A.), and continue to express creativity and conservation ethics through photography, volunteering and nonprofit work. 5. My family has a cabin that is located on an in-holding in the heart of the Superior National Forest, near the Boundary Waters Canoe Area Wilderness. Since I was a child, I have regularly visited our cabin, especially during the summer. I normally travel to our cabin a couple of times a month, often spending extended periods of time there. I plan on going to our cabin within the next month, and a number of times this summer and fall. Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 3 of 7 3 6. I enjoy a number of recreational activities in the Superior National Forest, including hiking, walking and hiking with my dogs, canoeing, boating, swimming, fishing, snowshoeing, cross country skiing, dog sledding, berry picking, gathering plants, photographing scenery and wildlife, and generally observing wildlife and the beautiful landscape that is the Superior National Forest. My favorite areas within the Superior National Forest where I like to recreate and spend time include the White Pine Picnic Area, Greenwood Lake, McDougal Lake, Divide Lake, Eighteen Lake, the Kawishiwi River, Birch Lake, Silver Island Lake, Island River, and the Little Isabella River and Isabella River areas. I am planning multiple trips to the Superior National Forest this spring, summer and fall, including trips to McDougal Lake, Eighteen Lake, Partridge River, and the Kawishiwi River/ Birch Lake area. 7. Over the course of my life coming to our family’s cabin and traveling across the Superior National Forest, I have seen lynx a number of times. I have a deep interest and hope to continue to see these elusive, magical creatures in the Forest. 8. I am deeply concerned by the Forest Service’s continued authorization and allowance of trapping within lynx habitat on the Superior National Forest. In allowing bobcat and other furbearer traps in the Forest, the Forest Service is permitting trapping that is indiscriminate and can easily trap the threatened lynx, which continues to occur. 9. I believe that trappers often do not report the trapping and killing of lynx. For a variety of reasons, people are discouraged from reporting incidents of human caused lynx mortality. The Minnesota Department of Natural Resources historically maintained that the Canada lynx were only passing through Minnesota. The state and federal agencies are only recently acknowledging that the Superior National Forest provides important lynx habitat and is home to a resident population. Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 4 of 7 4 10. The Forest Service’s authorization and allowance of trapping on the Superior National Forest harms my aesthetic, recreational, and spiritual interests in knowing that the lynx survives in the Forest, that it is keeping the ecosystem in check, and that I have the chance to continue to see it in the Forest. When I walk and hike with my dogs on the Forest, I also worry some about them being caught in traps and potentially injured or killed. 11. I have seen wolves in the Superior National Forest many times. They are very shy, and sighting them is like feast or famine: you can see several of them one summer and nothing for the next. I often just catch quick glimpses of them crossing the roads. Even when I do not see them, I still observe their tracks or see their scat in the Forest. The Superior National Forest is one of the last vast expanses of public land where they live in this region. The wolf population here is one of the last strongholds of the species in the nation. I derive great pleasure and joy from seeing them but also from knowing they exist and keep the Forest’s amazing ecosystem in check. 12. I am concerned about the Forest Service’s continued authorization and allowance of hunting and trapping in areas of wolf habitat, which is the entire Superior National Forest. Popular culture here has led many people to believe that wolves are an enemy and threat to society as a whole, and that killing wolves is okay. This type of public attitude is not only factually wrong, but breeds a hunting and shooting culture of wolves here. I believe many wolves are killed intentionally due to this mindset, even though it is technically illegal to do so. The Forest Service’s authorization of general hunting in these areas increases the ability of people to get away with intentional killing of wolves. 13. I am deeply concerned with industrial developments that are being proposed on the Superior National Forest. One of those is the proposed NorthMet mine, which is the subject Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 5 of 7 5 of a land exchange. I have flown over that site a number of times with a pilot friend of mine. I have also visited and hiked at the NorthMet site and surrounding area. It is an incredibly massive 6,000 acres of beautiful boreal forest. I understand that it is part of the essential habitat and wildlife corridor for both the lynx and wolf. 14. The inadequate Incidental Take Statement in the 2011 Biological Opinion, along with the failure of the Forest Service and U.S. Fish and Wildlife Service to reinitiate ESA consultation of the revised Forest Plan, means that these agencies are not properly analyzing and mitigating the consequences of various activities and development on the Superior National Forest on the precarious wolf and lynx populations and their habitat. Together, these Forest Service actions, coupled with the impacts of climate change, threaten the wolf and lynx populations and directly harm my interests in the preservation of these species and my chances of seeing them in the future. 15. I feel pain and distress knowing that the wolves and lynx on the Superior National Forest remain in danger and are being killed due to illegal shooting, trapping, vehicle collisions, and the fragmentation and loss of their habitat. My interests in observing lynx and wolves on the Superior National Forest, including various signs of their presence, are being harmed by the killing of lynx and wolves on the Forest, as well as the continued fragmentation and destruction of their critical habitat by projects and activities authorized by the Forest Service. 16. I am unaware of any federal government monitoring of the wolf population, or take reporting by hunters or people who killed the species otherwise. 17. If the Forest Service is forced through this lawsuit to reinitiate consultation on the revised Forest Plan for the Superior National Forest, with the Fish and Wildlife Service preparing a new Biological Opinion, I am hopeful that the Fish and Wildlife Service would Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 6 of 7 6 include additional protections for wolves and lynx from vehicle collisions, trapping, hunting, shooting, and other development and activities. If protections for wolves and lynx are increased, I believe that my chances of seeing and observing these species on the Forest will also be increased, which would greatly enhance my regular use and enjoyment of the Forest. 18. Hopefully the increased protections for lynx on the Superior National Forest, resulting from reinitiated consultation and new Biological Opinion, will include additional restrictions on trapping within lynx habitat. This would also provide me with more comfort that my dogs will not be as likely to be potentially caught in or injured by a trap when we are recreating together on the Forest. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 22nd day of May, 2017 Lori Andresen Duluth, MN Case 1:16-cv-01049-TSC Document 33-2 Filed 05/26/17 Page 7 of 7 EXHIBIT 2 Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 1 of 7 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY; EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the U.S. Forest Service; the U.S. FOREST SERVICE; the U.S. DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the Interior; and the U.S. FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-01049-TSC DECLARATION OF ELANNE PALCICH Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 2 of 7 2 I, Elanne Palcich, hereby declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge. If called as a witness, I could and would testify competently to these facts. As to those matters which reflect an opinion, they reflect my personal opinion and judgment on the matter. 2. I currently reside between Chisholm and Side Lake, Minnesota. I grew up here and have spent my life in the area. My family lake property is very close to the border of the Superior National Forest. 3. I have been a member of the Center for Biological Diversity for several years. The Center is a non-profit organization committed to the preservation, protection, and restoration of native species and the ecosystems upon which they depend. I rely upon the Center to represent my interests in protecting endangered species and their habitat. 4. I have accessed the Superior National Forest over the years to do a number of activities, including camping, canoeing, hiking, cross country skiing, berry picking, gathering wild rice, and observing and identifying wildlife and plants. I also have attended numerous workshops in the Forest, with topics ranging from medicinal use of wild plants to photography to creative writing. I particularly spend a lot of time trying to identify bird calls and amphibian calls because it helps me to keep track of what species are in the Forest, and their migratory and seasonal patterns and population stability. 5. I am a retired school teacher, and during my career, I regularly brought my students to the Superior National Forest and created classroom curriculum about the history of this Forest—the great boreal forest full of pine, bogs, spruce, birch, and maple all beautifully mixed together. I taught my students how this incredible vast land is our heritage, and we have Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 3 of 7 3 the duty to protect it and all the species that are a part of it, not only for ourselves, but for future generations. 6. I have accessed the Superior National Forest on a regular basis for as long as I can remember. In my younger days, I came to the Forest three to four times a month during the summer, and every month during the winter. Now that I am older, I visit at least every month during the summer and a couple of times over the winter. Some of my favorite places to visit and recreate within the Forest include the Sturgeon River Trail, Dark Lake, Lake Leander, Shannon and Shoepack Lakes, and Lookout Mountain. I also enjoy taking side trips into the Forest when I travel by car to the town of Ely or to the North Shore of Lake Superior. 7. I intend to keep regularly visiting the Superior National Forest into the future, as it is the great backyard I have grown up with for my entire life. For this coming summer and fall, I currently have made plans to go hiking with friends in the areas of Feiffer Lake, Lookout Mountain, and Cadotte and Bassett Lakes, which are all on the Superior National Forest. 8. I have not yet seen a Canada lynx in the Superior National Forest. I recently saw a March, 2017 photo that showed a beautiful lynx in the Side Lake area, near my property. Although lynx are incredibly evasive, I am hopeful to see the species during my regular activities in the Forest. I derive great pleasure from knowing that the lynx is present in the Forest and is part of a functional ecosystem. 9. I have heard wolves in the Superior National Forest a number of times on camping trips. I have also seen wolf tracks and wolf kills when skiing in the Forest. I am hopeful to see wolves and at least continue to witness signs of wolves during my regular activities in the Forest. It is so special to me that wolves exist in the Forest, even though they have been subject to decades of hunting and illegal shooting. Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 4 of 7 4 10. I have sensed a great deal of stresses on the wolf and lynx populations in the Superior National Forest. The increase in motorized vehicles, either due to new road developments or the pervasiveness of ATVs and snowmobiles, has cut off many corridors and habitat for these predators. The increase of vehicles has also led to higher death rates of these predators due to vehicle collisions. I have seen at least one wolf carcass alongside the highway in recent years. 11. My aesthetic, spiritual, educational, and recreational interests in the preservation of lynx and wolves on the Superior National Forest is greatly harmed by the Forest Service’s continued authorization of hunting and trapping in the Forest. I believe that the failure of the Forest Service and U.S. Fish and Wildlife Service to comply with the Endangered Species Act makes these imperiled species more likely to suffer further population declines. If one or both of these species declines or becomes extinct within the Forest, this loss would deprive me of the benefits I currently enjoy when recreating in these rare animals’ habitats, and also the enjoyment I receive from the very existence of these rare animals and knowing that the ecosystem is functioning and in check. 12. I believe that the Forest Service’s authorization and allowance of hunting, particularly for deer and moose, have led to increased incidents of intentional wolf shooting. I personally have concerns about taking my 3 year old dog into the Superior National Forest for fear he might be shot or caught in an unmarked trap. The ill-conceived 2012-13 wolf hunting and trapping seasons on the Forest seemed to rouse a backlash against wolves and other predators. I have also heard of sightings of wolves appearing ill, or with mange, walking along roadways in full view. I understand that these wolves are infected by invasive species and diseases that result from human development. Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 5 of 7 5 13. Both wolves and lynx need vast landscapes of untouched forest to sustain themselves and survive, but face increased forest fragmentation and increased risk of vehicle collisions, hunting, trapping, and mining related proposals and other activities on the Forest. The continued hunting and trapping as well as human development in the Forest will continue to adversely impact lynx and wolves, and I am extremely concerned about the species’ fate. 14. Without proper and updated consultation under the Endangered Species Act, based upon work and research which has actually been done on the ground, I do not think that the Forest Service or the U.S. Fish and Wildlife Service can understand the full environmental impacts or receive the necessary expert recommendations needed for protecting lynx and wolves and their habitat from harmful activities and developments. I do not believe that the Forest Service and U.S. Fish and Wildlife Service have taken all available steps to ensure that hunting and trapping as well as mine development and other activities do not harm or kill these species. 15. I would be greatly harmed if the wolves I seek to view and hear on the Superior National Forest are lost or suffer population decline from continued hunting and trapping activities, as well as vehicle collisions and the proposed mining development within the Forest. As wolves continue to be harmed, I have even fewer opportunities to be able to see wolves that are already so rare in the Forest. Fewer of this species within the Forest, and my ability to enjoy them, would substantially decrease the enjoyment I receive from recreating in the Forest. My concern for the survival of wolves detracts from my enjoyment of these experiences. 16. It saddens me that the Forest Service’s allowance of hunting and trapping and failure to properly analyze the impacts of mine development and other projects on these species leads to the result of allowing profit in exchange for sacrificing these species. I am saddened that future generations, including my own grandchildren, may not be able to witness and experience Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 6 of 7 the rich biodiversity and wildlife of the Superior National Forest that I grew up with, as a result of the government's actions like the ones at issue here. We as humans lack the perspective, the compassion, the knowledge, and the values that are critical to keeping this Forest intact, pristine, and alive. We have no right to wipe out any species because of our ignorance or for the sake of industry profit. The Superior National Forest and every animal and plant species within it are connected, and we as humans do not understand all the interconnectivity. We have altered nature to the point of imbalance, and we have the duty to re-adjust. Preserving and perpetuating the lynx and wolf populations on the Superior National Eerest is critical to my aesthetic, recreational, and spirifual interests, which interests are harmed by the government's failure to reinitiate ESA consultation and its continued allowance of hunting and trapping in this Forest. I7. I am hopeful that if the Forest Service and U.S. Fish and Wildlife Service are required to re-initiate consultation on the revised Forest Plan, that the Fish and Wildlife Service will demand greater protections for lynx and wolves and their habitat in a new Biological Opinion, including from hunting, trapping, vehicle collisions, and mining development related activities. The re-initiation and completion of consultation, resulting in a new Biological Opinion, will hopefully result in mitigation measures that reduce the impacts of hunting, trapping, vehicle collisions, and mine development on lynx and wolves and their habitat, which is key to ensuring that my interests in these species are preserved and remain free from injwy. Pursuant to 28 U.S.C . S 1746,I declare under penalty of perjury that the foregoing is true and correct. Executed this 4lday ot ,2017 fuirurzuW'' \ Elanne Palcich Chisholm, MN 6 Case 1:16-cv-01049-TSC Document 33-3 Filed 05/26/17 Page 7 of 7 EXHIBIT 3 Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 1 of 7 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY; EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the U.S. Forest Service; the U.S. FOREST SERVICE; the U.S. DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the Interior; and the U.S. FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-01049-TSC DECLARATION OF ROBERT TAMMEN Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 2 of 7 2 I, Robert Tammen, hereby declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge. If called as a witness, I could and would testify competently to these facts. As to those matters which reflect an opinion, they reflect my personal opinion and judgment on the matter. 2. I reside in the town of Soudan in St. Louis County, Minnesota, which is close to the border of the Superior National Forest. I also own property on an in-holding within the Superior National Forest. I have lived in this area for over forty years. 3. I have been a member of the Center for Biological Diversity for nearly ten years. The Center is a non-profit organization committed to the preservation, protection, and restoration of native species and the ecosystems upon which they depend. I rely upon the Center to represent my interests in protecting threatened and endangered species and their habitat. 4. In my retirement, I devote a great deal of my time to protecting the environment through volunteering for non-profits and being politically active, including testifying in front of Minnesota’s state legislature on multiple environmental issues, like the damaging effects of mineral leasing and development on the environment. 5. I am a retired master electrician, and my wife, Pat, is a retired teacher. I spent much of my career working for mining companies and electrical contractors in Minnesota. I am very familiar with what mining does to the landscape, plants, animals, water quality local ecosystems, and affected economies and communities. I frequently worked at mines near the Superior National Forest and understand the devastation and impacts that mining and development have on the Forest. Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 3 of 7 3 6. Our main residence is in the town of Soudan, and we have lived here for over forty years. My home sits just outside the boundaries of the Superior National Forest. We are so close to the Forest that we can paddle my canoe directly from my home into the Forest in a very short period of time. We access the Superior National Forest on a regular basis from our home. We also consistently access the Superior National Forest through the public roads that run through it in order to commute from one town to the other. 7. My wife Pat and I also own waterfront property within the Superior National Forest on the South Kawishiwi River. This 20-acre in-holding is less than twenty miles from the 6,650 acres of the Superior National Forest that the Forest Service seeks to exchange with a mining company in order to facilitate construction of the NorthMet open-pit copper-nickel mine. My wife and I take our motor home up to our Superior National Forest waterfront property at least every month when forest roads are passable. We intend to visit our property every month this summer and fall. 8. I regularly enjoy the Superior National Forest through the many recreational activities my wife and I do there, which include canoeing, fishing, and hiking. We are also avid wildlife and bird watchers and appreciate the Forest for the incredible range of species that we can observe and coexist with. Over the years, we have seen wolves, bats, fisher, martin, bald eagles, otter, and mink among other birds and wildlife. 9. In particular, at our property on the Superior National Forest, we have been lucky enough to observe the local pack of wolves a number of times. These wolves are magnificent, and there are about seven or eight wolves typically in the pack. During the summer, we see them less because they are fast and stealthy. In the winter, we have watched the pack cross the ice which has let us observe them for longer moments. I also see their deer kills and tracks often, Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 4 of 7 4 which lets me know they are around. I derive great pleasure in watching the wolves and knowing that they are in the Superior National Forest, and feel peace in knowing that their continued existence as the Forest’s apex predators keeps this magnificent Forest ecosystem in balance. We plan to continue living on our property for years to come, where I hope to continue to view and witness this pack and new packs. 10. At our property and when I visit the Forest, I sometimes see lynx tracks. Though I have never spotted a lynx in the Forest, I derive great joy and aesthetic, scientific, and educational value from knowing they live in the Forest and observing the ecological interaction between lynx and snow shoe hares. Without the lynx, the snow shoe hare population would likely be rampant, and our ecosystem would be thrown off-balance. We plan to continue visiting the Forest for years to come, where I hope to have the chance to see the lynx and know that they exist there. 11. I am deeply concerned about the actions of the Forest Service to continue to allow hunting and trapping in the habitats of the threatened wolf and lynx. I understand that wolves generally have a bad reputation here, and hunters see wolves as a threat to their ability to hunt for moose and deer. I disagree with these views and believe that these species should be fully protected from these activities on federal lands. I also understand that trappers incidentally capture lynx out here. Enforcement of laws protecting these species is low here. I am concerned about the fate of the wolves and lynx in the Forest. 12. I am very concerned about the Forest Service and Fish and Wildlife Service’s (“FWS”) refusal to reinitiate ESA consultation on the revised Forest Plan to increase protections for lynx and wolves, and to address the impacts of new developments that threaten these species. Because I worked in the mining industry for my entire career, I have witnessed firsthand how Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 5 of 7 5 mining sites and road development fragment wolf and lynx territory and degrade their and other wildlife’s critical habitats. Once land is opened up to mining, that land never supports life again. 13. I would be greatly harmed if the wolves and lynx that I view or seek to view are lost or suffer population decline from the Forest Service’s continued allowance for their hunting and trapping, by continued vehicle collisions, and by mining related development in these species’ critical habitat and wildlife corridors. The loss of these species, and my ability to enjoy them while on my property or elsewhere on the Superior National Forest, would substantially decrease the recreational, aesthetic, scientific, educational and spiritual value I receive from knowing that the Forest’s ecosystem is functional and in balance. Harm to our apex predators throws the entire ecosystem off balance, which injures my aesthetic scientific, educational, and recreational enjoyment of the wolves and lynx and the Superior National Forest as a whole. 14. If the Forest Service and FWS are required to reinitiate consultation on the revised Forest Plan, and FWS is required to prepare a new Biological Opinion as result of this lawsuit, I am hopeful that FWS would include the required and necessary protections for wolves and lynx from hunting, trapping, vehicle traffic, and other development and activities on the Forest. These greater protections would help the wolf and lynx populations on the Superior National Forest, and thereby increase my chances of encountering these species and signs of them both from our properties and while out enjoying the Forest. 15. Working in the mining industry for my entire professional career, I traveled a lot and witnessed numerable mines and mining communities. My opinion about mining and its effects changed over the course of these travels. I very seldom see healthy mining communities. The argument that mining brings about prosperity and economic development is plain wrong. Mining does not create thriving economies but rather perpetuates poverty in these communities. Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 6 of 7 We should not-and cannot-sacrifice our natural resources and precious species for the false promises of prosperity touted by the mining industry. We need to protect what we have. Pursuant to 28 U.S.C. S 1746,I declare under penalty of perjury that the foregoing is true and correct. Executed this day of ff ) ,2017 ,/ bert Tammen Case 1:16-cv-01049-TSC Document 33-4 Filed 05/26/17 Page 7 of 7 EXHIBIT 4 Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CENTER FOR BIOLOGICAL DIVERSITY; EARTHWORKS, Plaintiffs, v. THOMAS L. TIDWELL, in his official capacity as Chief of the U.S. Forest Service; the U.S. FOREST SERVICE; the U.S. DEPARTMENT OF AGRICULTURE; RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the Interior; and the U.S. FISH AND WILDLIFE SERVICE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-01049-TSC DECLARATION OF LONNIE DUPRE Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 2 of 7 2 I, Lonnie Dupre, hereby declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge. If called as a witness, I could and would testify competently to these facts. As to those matters which reflect an opinion, they reflect my personal opinion and judgment on the matter. 2. I have been a member of the Center for Biological Diversity for over ten years. I reside in Grand Marais, Minnesota, which lies on the edge of the Superior National Forest and is within the geographic range of the Canada lynx and gray wolf. I have lived here for over twenty-five years. 3. I am a world explorer. I completed the first ever west to east 3,000-mile winter crossing of Canada’s Northwest Passage by dog team and the first circumnavigation of Greenland through a 6,500-mile, all non-motorized journey by kayak and dog team. My other expeditions include pulling sleds on skis from Canada to the North Pole twice and achieving the first solo winter ascent of Alaska’s Mount Denali and Alpine Ascent of Kyajo Ri in Nepal, both over 30,000 feet. 4. I access the Superior National Forest regularly, at least three times a month throughout the entire year. I use the Forest year round to train for my explorations and for recreational purposes. My use and enjoyment of the Forest include canoeing, snow shoeing, hiking and biking, training for polar expeditions, dog sledding, and rock climbing. 5. I plan to continue to use, enjoy, and train in the Superior National Forest on a regular basis, including this summer and fall. In particular, I have plans to take trips to Carlton Peak this summer to go rock climbing. Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 3 of 7 3 6. I have rarely seen Canada lynx in the Superior National Forest, though sadly I do recall one sighting where the lynx had been hit dead on the road. On a number of occasions in the Forest, I have seen lynx tracks and other signs of lynx kills, including snowshoe hares during the winter. I am very interested and hopeful that I will see more lynx in the Superior National Forest in the future. 7. I greatly appreciate knowing that lynx live in the Forest. Their presence gives me peace of mind because it indicates the health of the Forest ecosystem. I also derive great spiritual and aesthetic value from knowing that lynx are present in the Forest because they reverberate with such a mystical quality and are the cornerstone of what the meaning of wilderness is to me. 8. The Forest Service’s continued allowance of furbearer trapping activities in lynx critical habitat, which is the majority of the Superior National Forest, has resulted in lynx being injured and killed by trappers. In my vast trekking of the Forest, I have come across traps, as many trap lines follow Forest Service roads. While these traps are primarily set for smaller furbearers, I have no doubt that lynx are incidentally trapped in these instruments. The federal government’s continued authorization and allowance of trapping on the Superior National Forest, and their refusal to reinitiate consultation with respect to trapping’s impacts on lynx, decrease my chances of seeing lynx and signs of lynx in the Forest, and drives down the likelihood that this imperiled, majestic animal will continue to remain a viable species in the Forest. 9. In addition, the Forest Service and U.S. Fish and Wildlife Service’s continued failure to reinitiate consultation with respect to the impacts of the Forest Plan puts lynx Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 4 of 7 4 habitat at risk. The Forest Service has pursued a land exchange that would allow the development of the NorthMet mine, which would wipe out vast tracks of the Forest that functions as critical habitat and wildlife corridors for the lynx. I fear that much harm will come to lynx from continuing to wipe out their habitat and corridors, thus decreasing my chances of seeing lynx and signs of lynx in the Superior National Forest, and lessening the likelihood that this imperiled animal will continue to remain a viable species in the Forest. 10. I commonly see gray wolves in the Superior National Forest. I derive great aesthetic, educational, scientific and spiritual value from sighting and knowing that wolves are in the Forest because they are critical in maintaining the Forest’s biodiversity, prey species populations like deer and moose, and the greater balance of the entire ecosystem. 11. The Forest Service’s continued allowance of hunting and trapping within the wolves’ critical habitat on the Superior National Forest has resulted in wolves being injured and illegally killed. Even though hunting of wolves is illegal under the Endangered Species Act, I know that wolves continue to be shot either intentionally or unintentionally on the Superior National Forest. 12. Wolves undeservedly have a bad reputation in northern Minnesota based on a false myth that they are avid killers of livestock, but there has never been a documented case of that up here. Moreover, hunters do not want competition when they are hunting deer, and they may shoot a wolf on site if it threatens that hunter’s ability to kill a deer for him or herself. I am unaware of anyone accurately monitoring and reporting wolf killings in the Superior National Forest. The Forest Service needs to maintain and protect the wolf population from hunting activities that can adversely impact the population of this threatened species. Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 5 of 7 5 13. The Forest Service’s authorization and allowance of hunting activities on the Superior National Forest decreases my chances of seeing wolves in the Forest, and also decreases the likelihood that this imperiled species will continue to remain a viable species in the Forest. 14. In addition, the Forest Service and FWS’s continued failure to reinitiate consultation with respect to the impacts of the Forest Plan continues to put essential wolf and lynx critical habitat at risk. 15. Overall, I am deeply concerned about the Forest Service’s continued authorization and allowance of hunting and trapping in the Superior National Forest, where imperiled species like wolves and lynx are exposed to such fatal dangers. 16. If the U.S. Fish and Wildlife Service is required through this lawsuit to prepare a new Biological Opinion for the Superior Forest Plan, I am hopeful that it will include mitigation measures that provide better protections for wolves and lynx from vehicle collisions, trapping, shooting, and other development and activities on the Superior National Forest. The better these imperiled species are protected, the greater are my chances of observing them and their signs during the time that I spend on the Forest. I believe that many of my concerns over the ongoing impacts and harm to wolves and lynx on the Superior National Forest could be addressed by increased, mandatory protections in a new Biological Opinion for the Forest. Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 6 of 7 17. The Superior National Forest is special to all of us who are fortunate to live in this region. These vast tracks of public forest are not like other agricultural plots of land, but rather a haven of biodiversity and wildlife. There is something lyrical about seeing a wolf kill, as it gives me a sense of being and a human’s place in nature. That nature is not for us to conquer or rule over. The Forest Service’s continued authorization of harmful activities and the agencies’ failure to reinitiate consultation on the revised Forest Plan directly injures my aesthetic, spiritual, and recreational interests I have in the preservation of the wolf and lynx, as well as the entire ecosystem of the Superior National Forest. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 1st day of May , 2017 Lonnie Dupre Grand Marais, MN !6 Case 1:16-cv-01049-TSC Document 33-5 Filed 05/26/17 Page 7 of 7