Save Our Cabinets et al v. United States Fish And Wildlife ServiceBrief/Memorandum in Support re Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment 35D. Mont.November 21, 2016MICHAEL R. EITEL Senior Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 Tel: (303) 844-1479 | Fax: (303) 844-1350 Email: Michael.Eitel@usdoj.gov [Additional counsel listed on signature page] Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION SAVE OUR CABINETS, EARTHWORKS, and DEFENDERS OF WILDLIFE, Plaintiffs v. UNITED STATES FISH AND WILDLIFE SERVICE; CHRISTOPHER S. SAVAGE, Kootenai National Forest Supervisor; and UNITED STATES FOREST SERVICE, Defendants, and MONTANORE MINERALS CORP., Defendant-Intervenor Case No. 9:15-cv-0069-DWM FEDERAL DEFENDANTS’ MEMORANDUM IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 1 of 41 i TABLE OF CONTENTS I. INTRODUCTION………………………………………………………1 II. BACKGROUND………………………………………………………..4 III. STANDARD OF REVIEW……………………………………………..5 IV. ARGUMENT……………………………………………………………6 A. FWS rationally concluded that the Project is not likely to jeopardize the continued existence of bull trout…………………. 6 B. FWS’s jeopardy analysis for bull trout does not minimize or disregard localized impacts and risks……………………………. 13 C. FWS’s critical habitat analysis complies with the law……………19 D. Plaintiffs’ concerns with FWS’s surrogate for baseflow reductions misconstrues the facts………………………………… 25 E. FWS’s findings that the Project is not likely to jeopardize grizzly bears applies the best scientific data available and is reasoned….. 26 F. The Forest Service has fully complied with the ESA…………….33 V. CONCLUSION………………………………………………………….34 Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 2 of 41 ii TABLE OF AUTHORITIES Cases Ariz. Cattle Growers’ Ass’n v. FWS, 273 F.3d 1229, 1239, 1249-51 (9th Cir. 2001)…………………………………………………………………… 25 Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010) ..…………………………………………………………….. 17 Bennett v. Spear, 520 U.S. 154, 176 (1997) ……………………….………..16 Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3dd 936, 948 (9th Cir. 2010) ………………………………………………………….…... passim Cascadia Wildlands v. Thrailkill, 49 F.Supp.3d 774, 787 (D. Or. 2014), aff’d, 806 F.3d 1234 (9th Cir. 2015)………………………………………... 6 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1127 (9th Cir. 2012) ………………………………………………………… 25 Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 901-02 (9th Cir. 2012)………………………………………………………………………… 5 City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1874-75 (2013) ………….22 Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) …………………...16 FCC v. Fox Television Stations, 556 U.S. 502, 521 (2009) …………………30 Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 2004)………. 19, 23 Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006)…….14 Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) ……12 Lujan v. Defs. of Wildlife, 504 U.S. 555, 558 (1992)………………………..4 Managed Pharmacy Care v. Sebelius, 716 F.3d 1235, 1244 (9th Cir. 2013)………………………………………………………………. 5 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)……………………………………………………………………. 4 Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917, 930 (9th Cir. 2008) …………11, 12 Nw. Envtl. Def. Ctr. v. NMFS, 647 F.Supp.2d 1221, 1234 (D. Or. 2009)….. 20 Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 3 of 41 iii Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F.Supp.2d 1290, 1304-05 (D. Or. 2011) ……………………………………………………… 26 Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 219 (D.D.C. 2005)…………….16 Oceana, Inc. v. NMFS, No.3:14-cv-00253-TMB, 2015 WL 12697739, at *7 (D. Alaska Sept. 16, 2015)……………………………………………. 12 Oceana Inc. v. Pritzker, 75 F.Supp.3d 469, 491 (D.D.C. 2014) ……………10, 11 Oregon Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1120 (9th Cir. 2006).…31 Peck v. Thomas, 697 F.3d 767, 772 (9th Cir. 2012)…………………………5 Rock Creek All. v. FWS, 663 F.3d 439, 442-43 (9th Cir. 2011) …………….passim Rock Creek All. v. USFS, 703 F. Supp. 2d 1152, 1209 (D. Mont. 2010)……16 Salmon Spawning & Recovery Alliance v. Nat’l Marine Fisheries Serv., 342 F.Appx. 336, 339 (9th Cir. 2009)………………………………………. 6 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 621 (9th Cir. 2014)…………………………………………………………………… 15, 16, 19 Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir. 1987)…………………16 S. Yuba River Citizens League v. NMFS, 723 F.Supp.2d 1247, 1267 (E.D. Cal. 2010) …………………………………………………………………… 10 Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984) ………………34 Statutes 5 U.S.C. § 706(2)(A)……………………………………………………….. 5 16 U.S.C. §§ 1531–1544…………………………………………………….4 16 U.S.C. § 1532(5)(A)…………………………………………………….. 19, 20 16 U.S.C. § 1532(19) ……………………………………………………….5 16 U.S.C. § 1536(a)(2) …………………………………………………….. passim 16 U.S.C. § 1536(b)(3)(A)…………………………………………………..4, 11, 19, 24 16 U.S.C. § 1536(b)(4)……………………………………………………... 5, 24 Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 4 of 41 iv 16 U.S.C. § 1536(b)(4)(i)-(iv)……………………………………………… 5 16 U.S.C. § 1536(o)(2)……………………………………………………... 5 16 U.S.C. § 1538(a)(1)(B)………………………………………………….. 5 Regulations 50 C.F.R. § 402.02…………………………………………………………..passim 50 C.F.R. § 402.14(g), (h)………………………………………………….. 4, 24 50 C.F.R. § 402.14(i)(1)(i)…………………………………………………. 24 50 C.F.R. § 402.16…………………………………………………………..5, 25 50 C.F.R. § 424.12(b)………………………………………………………. 20 Federal Register Notices 75 Fed. Reg. 63,898, 63,943 (Oct. 18, 2010)………………………………. 20, 24 80 Fed. Reg. 26,832 (May 11, 2015)………………………………………..24 81 Fed. Reg. 7,214 (Feb. 11, 2016)………………………………………… 19 Legislative History H.Conf.Rep. No. 96-697 at 12, 1979 U.S.C.C.A.N. 2572, 2576……………16 ADMINISTRATIVE RECORD CITATION FORMAT Citations to the U.S. Fish and Wildlife Service’s administrative record are as follows: (1) the folder or category of document; (2) the first bates number on the cited document; and (3) the internal bates number for the page(s) being cited. Thus, “ConsDoc554:555” would refer to documents located in the Consultation Documents folder (or portion of the FWS’s index), the document beginning with bates number “554,” followed by the internal bates number “555.” A similar convention is used for citations to the U.S. Forest Service’s administrative record. Forest Service record citations are preceded by “FS”, followed by citation to the volume and document number and then the internal bates number for the page(s) being cited. Thus, “FS6-10.1:10517” refers to Volume 6, Document Number 10.1, and internal bates number 10517. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 5 of 41 1 I. INTRODUCTION The Montanore Project is a proposed underground mining project located in the Cabinet Mountains near Libby, Montana. The Project seeks to extract copper and silver resources located underneath the Cabinet Mountains Wilderness Area using what is known as the traditional “room-and-pillar” mining method. The Project’s surface facilities, including access and ventilation sites (adits), mill, tailing impoundment site, roads, and transmission line, are located outside of the wilderness area on U.S. Forest Service (USFS) and private lands. Due to the Project’s impact on Forest Service lands, USFS comprehensively evaluated the Project in cooperation with other Federal, State, and local agencies and entities (FS6-9). This review culminated in a Record of Decision (FS6-10.1), where USFS determined that it would approve a plan of operations that incorporated numerous stipulations, terms and conditions, and mitigation and monitoring plans. Fed.SOUF ¶¶ 6-9. USFS imposed these measures to ensure the proposed “mining activities minimize adverse environmental effects on National Forest System lands and comply with all applicable laws.” FS6-9:7869. USFS also consulted with the U.S. Fish and Wildlife Service (FWS) under Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2); ConsDoc6518 (aquatic biological assessment); FS85-941 (terrestrial biological assessment). As relevant here, the consultation addressed the Project’s impacts on bull trout, bull trout designated critical habitat, and grizzly bears. ConsDoc857 (bull trout opinion); ConsDoc554 (grizzly bear opinion). For bull trout, FWS identified the full scope of the Project impacts on local bull trout populations and areas of critical habitat. FWS also properly evaluated Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 6 of 41 2 how those local impacts affect the core area populations, which are the fundamental unit of analysis for bull trout because they include one or more local populations that together comprise a biologically functioning population unit. ConsDoc857:899. FWS considered the overall status of and threats to the core area populations and determined that the Project’s effects, while adverse, are small in scale and scope and not likely to appreciably reduce the core area populations’ likelihood of survival and recovery. ConsDoc857:974-83. FWS also determined that these localized impacts were not likely to appreciably diminish the conservation value of the overall critical habitat available to the core area populations. Id.:983-87. Based on a holistic analysis of the status of the species, the baseline conditions, the effects of the Project, and cumulative effects, FWS concluded that the Project is not likely to jeopardize the species’ continued existence or destroy or adversely modify its critical habitat. Id.:983, 987. The record reflects the precautionary nature of FWS’s analysis. FWS focused on the mine’s adverse effects, thereby excluding from consideration the majority of the bull trout mitigation plan that must be implemented, id.:995-96, 1077-94, which is expected to offset the adverse effects of the mine, id.:884-85. This analysis ensured that FWS neither minimized nor obscured the Project’s adverse effects on the species. Likewise, USFS’s continued data collection and analysis showed that the Project’s expected sedimentation and temperature impacts are significantly less than FWS analyzed in its opinion. Fed.SOUF ¶¶ 28, 30. These examples reinforce what is apparent from the record—both agencies performed a reasoned and precautionary review of the Project’s effects on ESA- listed species. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 7 of 41 3 FWS’s consultation for grizzly bears was no less extensive and precautionary. Early in the process the agencies expressed a goal—to improve the situation for grizzly bears in the Cabinet-Yaak Ecosystem, even with the mine in place. FS78-82:66469. The agencies therefore created, revised, and ultimately required the Project to implement a comprehensive mitigation plan that not only addresses and offsets the mine’s adverse effects, but improves the species’ survival and recovery prospects. ConsDoc554:680-85; see id.:690-92; FS6-10.1:10836 (grizzly bear plan). After fully evaluating the status of and threats to grizzly bears, FWS determined that the full mitigation plan implements recovery actions that “work collectively to improve the existing status of” the affected grizzly bear population, ConsDoc554:675, such that the Project is not likely to jeopardize the bears’ continued existence in the wild, id.:681. Save Our Cabinets and the other plaintiffs disagree and offer a myriad of technical and legal critiques of FWS’s opinions. Plaintiffs, however, present a narrow and distorted view of the record. They disparage the grizzly bear opinion by focusing on the Project’s adverse effects, all the while staunchly ignoring the beneficial effects of the mitigation plan. ECF 35-1 at 32-41. They focus on the Project’s localized effects on bull trout while simultaneously dismissing the ESA’s requirement for FWS to place those localized effects in context at higher organizational units. Id. at 8-12, 15-19. They allege FWS ignored data, such as 97% streamflow reductions in the wilderness, id. at 24-25, but fail to address USFS’s rational response to those criticisms offered to plaintiffs during the administrative process, FS6-9:10313-14. And Plaintiffs labor to transform Section 7(a)(2) from a prohibition on actions that cause jeopardy or adversely modify Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 8 of 41 4 critical habitat, to a mandate to avoid taking actions whenever the species or critical habitat is not “sufficiently healthy” (as Plaintiffs would define it). ECF 35- 1 at 13, 28. None of these arguments are grounded in fact or law, and they certainly do not show that FWS “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 Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Because the agencies’ analyses and conclusions are sound, the Court should enter summary judgment in favor of Federal Defendants. II. BACKGROUND The Endangered Species Act, 16 U.S.C. §§ 1531–1544, “seeks to protect species of animals against threats to their continuing existence caused by man.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 558 (1992). Section 7(a)(2) of the ESA directs each agency to insure, in consultation with FWS, that “any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of” any listed species or destroy or adversely modify a species’ designated critical habitat. 16 U.S.C. § 1536(a)(2). At the conclusion of formal consultation, FWS issues its biological opinion, which is an expert opinion on whether the agency action meets Section 7(a)(2)’s standards. Id. § 1536(b)(3)(A). The opinion must be based on the “best scientific and commercial data available.” Id. § 1536(a)(2); 50 C.F.R. § 402.14(g), (h). If, as here, FWS issues a “no jeopardy” and “no adverse modification” Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 9 of 41 5 opinion, but determines that the action may incidentally “take” individual members of a listed species, FWS issues an incidental take statement. 16 U.S.C. § 1532(19) (“take”); id.: § 1536(b)(4). The statement specifies the impact of incidental take, reasonable and prudent measures designed to minimize the impact of take, and terms and conditions to implement those measures. Id. § 1536(b)(4)(i)-(iv). Any incidental take that complies with the take statement’s terms and conditions is not a prohibited take. Id. § 1536(o)(2); cf. id. § 1538(a)(1)(B). The action agency must reinitiate consultation if the specified level of taking is exceeded, or if new information or a modification to the action indicates previously unexamined effects. See 50 C.F.R. § 402.16. The relevant factual background for the Montanore Mine Project (Project) and FWS’s biological opinions is discussed below and in Federal Defendants’ “Statement of Undisputed Facts” (Fed.SOUF) and “Statement of Disputed Facts” (SODF), which are incorporated by reference. III. STANDARD OF REVIEW Review is governed by the Administrative Procedure Act (APA), which states that courts may set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 901-02 (9th Cir. 2012). Plaintiffs bear a “heavy burden” under the APA. Managed Pharmacy Care v. Sebelius, 716 F.3d 1235, 1244 (9th Cir. 2013). “Agency action is presumed to be valid and must be upheld if a reasonable basis exists for the agency decision.” Peck v. Thomas, 697 F.3d 767, 772 (9th Cir. 2012). “A reasonable basis exists where the agency considered the relevant factors and articulated a rational connection Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 10 of 41 6 between the facts found and the choices made.” Id. (citation omitted). Where, as here, the agency’s decision “involves a great deal of predictive judgment,” those expert “judgments are entitled to particularly deferential review.” Salmon Spawning & Recovery Alliance v. Nat’l Marine Fisheries Serv. (“NMFS”), 342 F.App’x. 336, 339 (9th Cir. 2009). IV. ARGUMENT A. FWS rationally concluded that the Project is not likely to jeopardize the continued existence of bull trout. The central inquiry in every consultation is whether the agency action is “likely to jeopardize the continued existence” of a listed species. 16 U.S.C. § 1536(a)(2). Regulations define “jeopardize the continued existence of” to mean “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. This inquiry concerns “whether a given federal action at the species level would appreciably reduce” the species’ likelihood for survival and recovery and not “whether the federal action would itself implement or bring about recovery.” Cascadia Wildlands v. Thrailkill, 49 F.Supp.3d 774, 787 (D. Or. 2014), aff’d, 806 F.3d 1234 (9th Cir. 2015). FWS’s bull trout opinion at issue in this case contains a detailed and well- reasoned analysis of whether the Project is likely to jeopardize bull trout. ConsDoc857. FWS realized the full scope of adverse effects on local bull trout populations but concluded that, overall, these effects would not jeopardize the listed species’ continued existence. The Project is expected to adversely impact local bull trout populations. Due Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 11 of 41 7 to disruption of groundwater resources (i.e., underground mining creates voids that intercept groundwater that would otherwise contribute to surface flows), the Project is predicted to permanently reduce bedrock-derived baseflows1 in Libby Creek (-13%), Ramsey Creek (-1%), Poorman Creek (-11.6%) East Fork Rock Creek (-8.9%), mainstem Rock Creek (-7.7%), and East Fork Bull River (-12.9%). See id.:946-47 (Table 5). This, in turn, is expected to reduce adult, juvenile, and spawning habitat. Id.:976 (“In general, for every 1 percent baseflow reduction, usable habitat availability is reduced 0.4 percent for adults, 0.5 percent for juveniles, and 1 percent for spawning.”). Other effects such as short-term sediment increases, warm water augmentation (Libby Creek), and increased competition with non-native fishes (brook trout) are likely to reduce the ability of the local bull trout populations to sustain their current numbers, reproduction, and distribution. Fed.SOUF ¶¶ 26-31.2 Contrary to Plaintiffs’ assertions, FWS’s inquiry does not stop at the local population level. ConsDoc857:900-01 (explaining FWS’s long-standing methodology in analyzing an action’s effects using the hierarchical structure of bull trout populations, as the jeopardy determination is made at the “species” level). For bull trout, core area populations consist of multiple local populations that together comprise a biologically functioning unit, id.:896, 899, as even Plaintiffs recognize, see ECF 36 ¶¶ 22, 29-30. FWS thus closely evaluated these 1 “Baseflow” generally refers to the contribution of groundwater to a stream’s flows and does not include direct runoff from rainfall or snowmelt into the stream channel. FS6-9:7823; Fed.SOUF ¶ 20 n.2. 2 Subsequent data and analysis, however, showed that FWS overestimated the Project’s temperature and sedimentation effects, such that actual Project effects are expected to be less than FWS analyzed in the opinion. Fed.SOUF ¶¶ 28, 30; FS10- 231:13306, 13362; FS6-10.1:10845. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 12 of 41 8 localized Project effects on the Kootenai River and Lower Clark Fork River core areas. Id.:896, 899. FWS considered, inter alia, the amount of spawning and rearing habitat available, the strength of the core area populations, and the status of different life history components (e.g., migratory fish). Id.:956-61, 978-81. FWS found that the localized Project effects are likely to “slow the rate of survival and recovery” of the core area populations. Id.:959, 961. Given the status of the core area populations, however, FWS found that the magnitude of these adverse effects are not likely to appreciably reduce the core areas’ key population parameters (numbers, reproduction, distribution). Id.:978-79, 980-81. FWS also took into account the fact that five more primary spawning and rearing populations support the core area populations. Id.:979. And FWS identified numerous other reasons why, when considering even higher organizational units (i.e., the Columbia River interim recovery unit), the localized impacts are not likely to jeopardize the trout’s continued existence. Id.:981-82. Disregarding the record, Plaintiffs argue that FWS did not “account” for the status of the species. ECF 35-1 at 12-17.3 But FWS expressly considered how the core areas are functioning for the survival and recovery of the species, 3 FWS plainly considered the status of bull trout in the local area and range-wide. ConsDoc857:885-900, 905-939. Indeed, Plaintiffs regularly cite FWS’s own analysis of the species’ status. See, e.g., ECF 35-1 at 11-12. FWS also considered the 2005 status review. Compare id. at 11 n.6, with ConsDoc857:894 (“Few bull trout core areas are considered strong in terms of relative abundance and core area stability (USDI Fish and wildlife Service 1998b, 2005a, b).”); id.:907-11, 917-23 (considering more recent data, including the 2013 conservation assessment). And Plaintiffs’ dispute with FWS citing a 1998 study to characterize three populations as strong (South Fork Flathead, Blackfoot, and Swan rivers) fails, ECF 35-1 at 11 n.6, as the 2005 status review and more recent data are in accord, LIT43217:43251; LIT37196:37217, 37223, 37226. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 13 of 41 9 ConsDoc857:907-935, and it used that analysis to determine the significance of localized effects, id.:956-61. FWS’s analysis of the Project’s impact on migratory trout in the Lower Clark Fork core area—which is the same analysis performed for the other components of the Lower Clark Fork River and the Kootenai River core area populations—illustrates this aspect of FWS’s analysis. In the East Fork Bull River, the local population currently produces an average of 14.7 redds per year. ConsDoc857:978. The Project is likely to decrease this reproduction by an estimated 13% (1.9 redds per year). Id. FWS did not predicate its conclusions on this small reduction. It took the analysis further, considering the status of the migratory component of the core area. FWS identified Avista’s ongoing fish passage program,4 which is addressing a major threat to and improving the migratory component of the core area population. Id.:979 (between 30 to 50 adult fish are transported annually, which supplements the East Fork Bull River and Rock Creek local populations); id.:977 (explaining that the program is expected to maintain or improve the contribution of migratory trout to the core area population). In view of the Avista program and other factors, FWS found that the localized project effects are small, mitigated to a degree by existing actions, and ultimately not likely to appreciably reduce the reproduction, numbers, or distribution of the migratory component of the core area population. Id.:977-79. This example refutes Plaintiffs’ claims that FWS failed to account for the status of core areas or the species itself. It also refutes their claims that FWS allowed the species to be “gradually destroyed, so long as each step on the path to destruction is sufficiently modest.” ECF 35-1 at 13 (citation omitted). Were the 4 See ConsDoc857:1037-40 (discussing the Avista passage program). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 14 of 41 10 Avista program not present, for example, the status of the core area’s migratory component would change and require a different inquiry. See, e.g., Oceana Inc. v. Pritzker, 75 F.Supp.3d 469, 491 (D.D.C. 2014) (where “baseline conditions are already dire, then even a small additional impact due to [the action] may require a jeopardy determination”). But the Avista program is present and functioning effectively, and FWS properly found that this ongoing action reduces the significance of the Project’s local impacts. ConsDoc857:973, 976-79, 981. FWS’s broader analysis for bull trout readily contradicts Plaintiffs’ assertions that local effects were “discarded as insignificant without further analysis.” ECF 35-1 at 13. Plaintiffs next attack FWS’s analytical methods by arguing that FWS erred in considering the “magnitude” of the Project’s effects on core area populations. ECF 35-1 at 7. This argument ignores that the ESA requires FWS to determine whether any adverse effects “reduce appreciably” the species likelihood of survival and recovery. 50 C.F.R. § 402.02. This regulatory inquiry undeniably requires FWS to consider the magnitude of local impacts on the species. Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3dd 936, 948 (9th Cir. 2010) (“Adverse effects on individuals … generally do not result in jeopardy … unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species range …” (quoting LIT46410:46524) (emphasis added); S. Yuba River Citizens League v. NMFS, 723 F.Supp.2d 1247, 1267 (E.D. Cal. 2010) (“the [opinion] must discuss (through some method) the magnitude of the” action’s effects on the species). Plaintiffs, by contrast, apparently would read “appreciably” out of the regulations in order to prohibit all actions that reduce a species’ survival recovery Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 15 of 41 11 prospects, regardless of degree. ECF 35-1 at 13, 19. As discussed, this is not the law. See Oceana, 75 F.Supp.3d at 486 (agency “may reasonably conclude that a given agency action, although likely to reduce the likelihood of a species’ survival and recovery to some degree, would not be likely to jeopardize the continued existence of the species”). Second, Plaintiffs argue that impacts to local bull trout populations cannot proceed unless all unaffected members of the species are “sufficiently healthy to sustain and recover the species notwithstanding the losses from the mine.” Id.; see also id. at 19 (species’ status must be “adequate to ensure the species’ survival and recovery regardless of the mine’s effects”). Plaintiffs’ arguments might make sense had Congress prohibited all actions from occurring where a species is threatened or endangered (i.e., is not “sufficiently healthy”). But Congress did not do so. It prohibited a narrower class of actions—those that cause a species’ continued existence to be placed in jeopardy. Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917, 930 (9th Cir. 2008) (“To ‘jeopardize’—the action ESA prohibits—means to ‘expose to loss or injury’ or to ‘imperil.’”). In accordance with the plain terms of Section 7(a)(2), FWS properly evaluated whether, given the aggregate status of and threats facing a species, the action is likely to appreciably reduce the bull trout’s survival and recovery prospects. 16 U.S.C. § 1536(b)(3)(A) (Section 7(a)(2) concerns “how the agency action affects the species”). Third, Plaintiffs assert that FWS must define a “tipping point” at which actions other than the Project jeopardize the species. ECF 35-1 at 3, 11. Plaintiffs misconstrue National Wildlife Federation, where the Court stated that “it is only logical to require that the agency know roughly at what point survival and recovery Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 16 of 41 12 will be placed at risk before it may conclude that no harm will result from ‘significant’ impairments to habitat that is already severely degraded.” 524 F.3d at 936. The Court faulted the agency’s explanation for why an action with significant species-wide effects did not place the species’ survival and recovery at risk. Id. It did not, as Plaintiffs argue, create out of whole cloth an “affirmative duty under the ESA to identify a clear tipping point line as to when jeopardy or adverse modification would occur.” Oceana, Inc. v. NMFS, No.3:14-cv-00253-TMB, 2015 WL 12697739, at *7 (D. Alaska Sept. 16, 2015). National Wildlife Federation also is inapposite because FWS here never reached the point at issue in that case, where significant species-wide effects are likely to place the species’ survival and recovery at risk. FWS addressed that very issue and cogently explained why the Project is not expected to result in those effects to core area populations or the species itself. ConsDoc857:899-901, 974-83. Plaintiffs’ demand that FWS perform an entirely different inquiry is not supported by the ESA and should be rejected. Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (courts should not graft into the statute their “own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good”) (citation omitted); Butte Envtl. Council, 620 F.3d at 948 (rejecting arguments that the agency must perform a specific inquiry where “[n]either the ESA nor its implementing regulations” require that inquiry). Finally, Plaintiffs argue that FWS erred in considering the overall status of the core areas because local populations have “special conservation value.” ECF 35-1 at 15-19. In support, Plaintiffs regurgitate and embellish upon FWS’s own Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 17 of 41 13 analysis. Id.5 They do not show that the local populations are so unique that FWS erred in considering, for example, the contribution of the “five [other unaffected] primary spawning and rearing streams” in the Lower Clark Fork River core area, ConsDoc857:979, or the “[f]ive other bull trout primary spawning and rearing streams and several other smaller secondary streams [that] contribute to the [Kootenai River] core area population,” id.:981; see also, e.g., ECF 36 ¶ 30 (admitting that, in the Lower Clark Fork River core area, “remaining migratory bull trout populations are geographically distributed throughout the area, which increases the potential for recovery …”). That is, Plaintiffs merely disagree with FWS’s judgment that core areas, not local populations, represent the fundamental unit of analysis for bull trout. This disagreement does not render FWS’s opinion unlawful. Cf. Rock Creek All. v. FWS, 663 F.3d 439, 442-43 (9th Cir. 2011) (FWS properly evaluated the significance of impacts on core areas). B. FWS’s jeopardy analysis for bull trout does not minimize or disregard localized impacts and risks. In addition to disputing FWS’s analytical methods, Plaintiffs assert that FWS irrationally addressed local effects by using the three-dimensional (3D) groundwater model to characterize the Project’s impact on baseflows.6 ECF 35-1 5 Plaintiffs’ argument that the Project is likely to “destroy” or cause the “loss” of local populations is baseless. ECF 35-1 at 10, 15, 17. See ConsDoc857:981 (“It is likely that the resident bull trout population in Libby Creek above the barrier falls would continue to persist, although lower in abundance and reproduction.”). Plaintiffs’ erroneous arguments seem to be attributable to FWS’s statements that there “may be a loss of persistence from portions of some drainages (Libby Creek).” Id.:962 (emphasis added). But potential loss of persistence in a portion of a drainage does not equate to the “loss” of a local population, much less undermine FWS’s conclusions made at the core area or species level. Id.:900-01, 974-83. 6 Modeled baseflow “assumes that most baseflow is from regional groundwater flow systems that would be affected by mine dewatering, and that only the groundwater component is present to support surface flow during baseflow Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 18 of 41 14 at 19-25. The 3D modeling represents the best available scientific data on this issue and was considered in a manner wholly consistent with the ESA’s requirements. Plaintiffs’ arguments, by contrast, fail because they have not identified any “scientific evidence that is in some way better than the evidence [FWS] relie[d] on.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006). The proposed mining activities create underground voids that intercept and drain groundwater resources, thereby reducing the amount of groundwater available to discharge into streams, springs, and lakes. FS 6-9:8398, 8509. The agencies relied primarily on a comprehensive 3D groundwater model to evaluate the effects on baseflows, which generally occur between mid-July and early October and periodically from November through March. ConsDoc857:944; FS6- 9:8194, 9585 (Fig. 76, monitoring sites). This model “provides a more detailed analysis [than other models], by incorporating known or suspected fault behavior with respect to hydrology; more recent underground hydraulic testing results; a more comprehensive calibration process; and better simulation of vertical hydraulic characteristics of the geologic formations to be encountered during the mining process.” FS6-9:8445; FS42-122 (final report); Fed.SOUF ¶¶ 22, 25. As with any modeling exercise, FWS recognized the uncertainty present in the model’s results. ConsDoc857:944-45. Actual changes to baseflow “could be much greater or lesser because model predictions cannot capture all the real world complexities of the hydrogeological relationships between groundwater and surface water.” Id.:975-76; see also FS6-9:8487. Based on the data present, however, FWS explained that the model’s results “are the best currently available conditions.” ConsDoc6518:6561. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 19 of 41 15 estimates of impacts and associated uncertainty that can be obtained using groundwater models.” ConsDoc857:945; ConsDoc6518:6562. FWS therefore relied on the model to evaluate the “expected response to predicted baseflow depletions,” ConsDoc857:961, id.:944-45, 946-47 (Table 5), while noting that revisions to the model and its estimates will occur during the evaluation phase and improve the certainty of the model’s predictions, Fed.SOUF ¶ 25. Plaintiffs argue that FWS should have disregarded the model’s results and relied on an unstated, hypothetical analysis. ECF 35-1 at 22. This argument fails for a simple reason—Plaintiffs identify no data or evidence that justifies their hypothetical analysis.7 As the Ninth Circuit explained, the relevant question in evaluating the agency’s use of models is not whether Plaintiffs disagree, or whether they can adduce “post-hoc theories alluding to the possibility of bias.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 621 (9th Cir. 2014). Rather, the decision to use a model is itself a “scientific determination,” and the only relevant question is whether the “model represent[s] the ‘[best scientific and commercial data [currently] available.” Id. at 618 (quotations omitted). The agencies concluded that the 3D modeling represents the best current estimates of Project effects on baseflow conditions. ConsDoc857:945; ConsDoc6518:6562; see also FS10-237:13494 (EPA explaining the model “was a significant turning point in the sophistication in the NEPA analysis”). Plaintiffs, on 7 Plaintiffs’ citations to various critiques of the model by the Project proponent and others (ECF 35-1 n.10) fail because Plaintiffs overlook an important factor—the conservative assumptions used in the current modeling. See, e.g., FS42-122:49681 (“In general, we believe these model results should be considered conservative, or nearly ‘worst’ case, with respect to predicting impacts to the upper reaches of modeled streams because of the way the model assumes interconnection between groundwater and surface water.”). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 20 of 41 16 the other hand, point to no existing evidence or alternative method that would provide a better or more accurate estimate of baseflow depletions. Nor have Plaintiffs shown that the model is irrationally related to the issue under review. Plaintiffs instead opine that some undetermined, “other” analysis should have been conducted, one that would only add additional “uncertainty … to the results.” Jewell, 747 F.3d at 621. This is precisely the type of analysis the ESA prohibits. Id.; Bennett v. Spear, 520 U.S. 154, 176 (1997) (best available science mandate prohibits FWS from proceeding “haphazardly, on the basis of speculation or surmise”).8 FWS’s reliance on the model also does not mean that it shifted the risks of uncertainty on the species. ECF 35-1 at 22-23 (citing Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir. 1987)). As Marsh recognized, the reinitiation requirement (50 C.F.R. § 402.16), not Plaintiffs’ proposal for FWS to speculate beyond the limits of the best available data, ensures the risks are borne by the Project and not the species. 816 F.2d at 1386-89; Rock Creek All. v. USFS, 703 F. Supp. 2d 1152, 1209 (D. Mont. 2010). Here, the 3D model will be revised and updated based on site-specific data in the evaluation phase and before mining activities progress. ConsDoc857:944-45, 1016. In addition, rigorous monitoring is required during all Project phases. See, e.g., FS6-10.1:10531-32, 10739 (Attachment 3). These actions will increase the certainty of the modeled 8 Contrary to Plaintiffs’ claims (ECF 35-1 at 19), implementing the ESA as written, including adherence to the ESA’s best available science mandate, “give[s] the benefit of the doubt to the listed species.” H.Conf.Rep. No. 96-697 at 12, 1979 U.S.C.C.A.N. 2572, 2576; Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) (complying with ESA satisfies Congress’s intent to give the benefit of the doubt to the species); Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 219 (D.D.C. 2005). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 21 of 41 17 predictions, see Fed.SOUF ¶ 25, and ensure that the uncertainty in the model results is borne by the Project, not the species, 50 C.F.R. § 402.16; see also ConsDoc857:944-45; FS 6-9:7822, 7999; FS 6-10.1:10622. More broadly, FWS accounted for uncertainty throughout its analysis. For example, FWS excluded from consideration the majority of the beneficial effects stemming from the mitigation plan that FWS revised and required the Project to implement. ConsDoc857:1077-94. In doing so, FWS provided a clear “margin for error” in this consultation, ECF 35-1 at 23, as the plan is extensive and “likely to offset predicted permanent impacts to bull trout populations and bull trout critical habitat,” id.:885 (plan’s measures “could potentially increase resident and migratory populations in the two potentially impacted bull trout core areas”). As demonstrated in the opinion, FWS complied with the ESA by relying on the best scientific data available, acknowledging the uncertainties present, and requiring the Project to implement mitigation and monitoring actions to address those uncertainties. Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010) (“the ESA accepts agency decisions in the face of uncertainty” and “does not require that the [agency] act only when it can justify its decision with absolute confidence”). Finally, Plaintiffs argue that FWS ignored evidence by disregarding predicted baseflow depletions of 97% at monitoring site “EFBR-300,” located on the East Fork Bull River (FS 6-9:8479). See ECF 35-1 at 24-25. Plaintiffs take this figure out of context and fail to address what that number actually means. Significantly, the monitoring location (EFBR-300) is not occupied by bull trout or designated as critical habitat. FS6-9:8237; compare FS 6-9:9555 (Figure Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 22 of 41 18 55, showing critical habitat does not extend up the reach to St. Paul Lake), with id.:9557 (Figure 56, showing “EFBR 300” below St. Paul Lake). This location also is not heavily influenced by groundwater inputs, as surface flows are driven by “surface runoff, snowmelt and/or drainage from unconsolidated, discontinuous surface deposits that store precipitation and snowmelt water.” FS10.223:13230. The experts reasonably concluded that this particular site in the uppermost reaches of East Fork Bull River should be excluded from consideration for two reasons. First, the 3D modeling “was not designed to accurately predict impacts to the uppermost reaches of these streams where baseflows are low and variable.” FS42-122:49515, 49680-81. Second, “[d]ue to the uncertainty of perennial stream flow” at this site, the modelers concluded that “it seems prudent to remove these stream reaches as transfer boundaries from the model so that there is no direct connection of surface water with regional groundwater in the model.” FS42- 130:50269. The analysis did not end there. The agencies collected more information by examining additional areas in 2012, including wilderness sites on the East Fork Bull River occupied by bull trout—“ERBR-2,” located at the confluence of Isabella Creek within the Cabinet Mountains Wilderness. See FS6-9:8195, 9585 (Fig. 76, showing location of EFBR-2); see also FS85-233 (2012 report). These results validated the conclusion “that the percentage of decrease in low flows estimated within these reaches was lower than at the reaches [i.e., EFBR-300] modeled further upstream.” FS6-9:10313-14. Given these facts, Plaintiffs cannot show that the agencies’ analysis is arbitrary and capricious or overlooked any relevant impact. See ECF 35-1 at 24 Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 23 of 41 19 (pointing to early comments on the 97% figure (ConsDoc8673), but ignoring subsequent investigations and analysis of this data point (FS10-223:13230)); see also ECF 35-1 at 24-25 (arguing FWS ignored effects to bull trout located in the wilderness, despite FWS’s explicit consideration of modeling data at EFBR-2).9 FWS relied on the updated modeling results in its opinion, ConsDoc857:946-47, and the Court should defer to this expert choice, Jewell, 747 F.3d at 610 (“Our deference to agency determinations is at its greatest when that agency is choosing between various scientific models, as the FWS did in the present instance.”). C. FWS’s critical habitat analysis complies with the law. FWS also evaluated whether the Project is likely to destroy or adversely modify bull trout critical habitat and rationally concluded that it will not. 16 U.S.C. § 1536(a)(2). The ESA regulations defined “[d]estruction or adverse modification” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” 50 C.F.R. § 402.02.10 In Gifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 2004), the Ninth Circuit concluded that one aspect of the regulatory definition—requiring an appreciable diminishment to “both the survival and recovery”—did not account for the “recovery needs” of the species. Id. at 1069-70. “Gifford Pinchot, however, did not alter the rule that an ‘adverse modification’ occurs only when there is ‘a direct or indirect alteration that appreciably diminishes the value of critical habitat.’” Butte Envtl. Council, 620 F.3d at 948 (quoting 50 C.F.R. § 402.02)). This inquiry 9 Notably, none of this is new. Plaintiffs raised their concern to the agency, FS19- 144:16405-06, and USFS responded. FS6-9:10313-14. 10 The regulation was revised in 2016 and after FWS issued the biological opinions. See Final Rule, 81 Fed. Reg. 7,214 (Feb. 11, 2016). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 24 of 41 20 is “made in the context of the critical habitat as a whole.” Nw. Envtl. Def. Ctr. v. NMFS, 647 F.Supp.2d 1221, 1234 (D. Or. 2009).11 Since 2004, FWS has consistently applied its guidance developed for performing the adverse modification inquiry. ConsDoc857:1073-75; Rock Creek Alliance, 663 F.3d at 442 (upholding FWS’s application of this guidance). FWS focuses on the functioning of the critical habitat’s “primary constituent elements,” which are “those physical and biological features that are essential to the conservation of a given species.” 50 C.F.R. § 424.12(b); 16 U.S.C. § 1532(5)(A). It evaluates the current status of these elements, both range-wide and in the local affected area. ConsDoc857:1074. FWS then “determin[es] the significance of any adverse or beneficial effects of the action … on the function and conservation role of the affected [critical habitat] unit(s).” Id. Finally, FWS addresses whether, with the effects of the action, the “critical habitat range-wide would remain functional (or would retain the current ability for the PCEs to be functionally established in areas of currently unsuitable but capable habitat) to serve its intended recovery role for the bull trout.” Id.:901, 1075. In 2010, FWS designated 18,975 miles of streams and 488,252 acres of lakes and reservoirs as critical habitat. ConsDoc857:896 (Table 1). FWS grouped the designation into 32 critical habitat units, id.:902, and identified the conservation function of critical habitat—to “support viable core area population,” id.:902; 75 Fed. Reg. 63,898, 63,943 (Oct. 18, 2010). FWS’s opinion therefore “places an emphasis on using the intended range-wide recovery function of bull trout critical 11 See also 16 U.S.C. § 1536(b)(3)(A) (directing FWS to make a determination on effects to “critical habitat”); id. § 1532(5)(A) (defining “critical habitat” as all areas included within a broader designation). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 25 of 41 21 habitat, especially in terms of maintaining and/or restoring viable core areas.” ConsDoc857:901. Here, FWS found that the Project is likely to adversely affect critical habitat within the Kootenai River and Clark Fork River critical habitat units. Id.:902, 904 (Table 3); LIT-44415:44493 (map). Through baseflow reductions, sedimentation, warm water augmentation, and actions that benefit non-native species (brook trout), FWS found that the Project is likely to reduce the function of some of the local primary constituent elements. ConsDoc857:984-85, see, e.g., id.:966-67 (discussing reduced function of critical habitat in Libby Creek); id.:970-71 (analysis for Rock Creek and East Fork Bull River critical habitat). Consistent with its 2004 guidance, FWS evaluated the significance of these localized effects on the species’ critical habitat designation. ConsDoc857:983-84. The Project is expected to affect 40.7 of the 269 miles of critical habitat available to the Kootenai River core area (15.1%). ConsDoc857:985. Similarly, the Project is expected to affect 16.3 of the 283 miles of critical habitat available to the Lower Clark Fork River core area (5.8%). Id.:986. In the affected areas, the primary constituent elements (i.e., water quantity and quality) will continue to function, albeit at a lower level. Id. The majority of critical habitat available to the core areas, however, is unaffected and will continue to contribute to the conservation of the core areas. Id.:985-86. Numerous conservation actions—Avista’s fish passage program, habitat conservation plans, and other measures—further increase the function of critical habitat and reduce the significance of the Project impacts. Id.; see also id.:972-74 (cumulative effects). When considering the totality of critical habitat available to management areas and recovery units, FWS found that the Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 26 of 41 22 significance of the localized effects is further reduced. Id.:985-86. Collectively, FWS determined that the Project’s effects on the critical habitat available to the core areas are small in scale, reduce but do not eliminate the function of the habitat’s primary constituent elements, and do not appreciably diminish the conservation function of the core areas’ (or the species’) critical habitat. ConsDoc857:984-86. FWS rationally considered “the scale of the impact, but also [] the duration and the level by which the habitat’s functionality would be diminished,” and this analysis complies with the law. Rock Creek All., 663 F.3d at 443. In challenging this analysis, Plaintiffs raise many of the same flawed arguments they use to attack FWS’s jeopardy analysis. They contend that FWS improperly considered the “magnitude” of localized impacts. ECF 35-1 at 27-28. The Ninth Circuit addressed this precise issue in Rock Creek Alliance, holding that FWS “properly compared the relative size of the impacted 2.88 stream miles of Rock Creek to the overall size of the Lower Clark Fork Core Area critical habitat.” 663 F.3d at 442. This holding aligns with FWS’s long-standing interpretation that it must determine the “significance” of local effects to the function of broader critical habitat areas. ConsDoc857:1074. Where, as here, “the agency’s answer is based on a permissible construction of the statute, that is the end of the matter.” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1874-75 (2013) (citation omitted)). Next, Plaintiffs argue that FWS failed to determine “the number of stream miles, distribution of habitat, or diversity of habitat types … that are necessary to meet the species’ survival and recovery needs.” ECF 35-1 at 28. The record again proves Plaintiffs wrong. FWS’s critical habitat designation performed that very Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 27 of 41 23 task. ConsDoc857:965 (“Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e. areas on which are found the primary constituent elements as defined at 50 CFR 424.12 (b)).”); LIT44415. FWS also assessed the status of critical habitat, both range-wide and in the affected local areas. ConsDoc857:896-900, 935-39, 1067-71. And FWS accounted for the status of the critical habitat by weighing the significance of the localized impacts to broader critical habitat areas, id.:965-72, 973-74, as well as by determining whether the Project appreciably diminishes the conservation function of the critical habitat available to the core areas and the species, id.:983-87.12 Plaintiffs also twist Gifford Pinchot beyond recognition by arguing that FWS cannot weigh localized impacts in the context of broader units of critical habitat. ECF 35-1 at 29. Gifford Pinchot stands for the opposite proposition. “Without evidence in the record supporting that some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the [agency].” 378 F.3d at 1075. As in Rock Creek Alliance, Plaintiffs rehash FWS’s analysis of local effects but do not identify any local impact that FWS failed to 12 FWS’s finding that the primary constituent elements for the Kootenai River Basin or the Clark Fork River Basin “would be diminished functionally by a small degree” is not inconsistent with its earlier findings. ECF 35-1 at 27 n.12 (quoting ConsDoc857:985-86). While Project effects at the local scale may be “significant,” ConsDoc857:984, FWS also addressed the effects to the primary constituent elements available at the basin-scale, id.:985-86 (discussing why local Project effects are considered “small” in view of the 3,328 and 325 miles of primary constituent elements available in the Clark Fork River and Kootenai River basins, respectively). Plaintiffs simply conflate FWS’s analysis performed at different spatial scales. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 28 of 41 24 fully consider in its opinion. 663 F.3d at 443 (“The agency did not attempt to hide the local impacts of the action, but considered them in detail.”). Nor can Plaintiffs show that local areas of critical habitat are unique in terms of the primary constituent elements available to the core area populations. They cannot show, for example, that the water quantity and quality primary constituent elements provided for in a little over seven miles of East Fork Bull River (ConsDoc857:971-72) are unique in terms of the water quantity and quantity available in the 308 miles of key recovery habitat for the core area populations (id.:985-86). Because the bull trout critical habitat designation serves to support the core areas, id.:902; 75 Fed. Reg. at 63,943, FWS’s assessment of the localized impacts on the core areas is reasoned. Rock Creek All., 663 F.3d 442-43. Finally, Plaintiffs argue that the ESA prohibits actions unless “the remaining [critical] habitat is adequately abundant, diverse, and well distributed to satisfy the species’ conservation needs.” ECF 35-1 at 28. This is the same flawed argument Plaintiffs raise in the jeopardy section. In actuality, Congress did not prohibit actions from proceeding where critical habitat is not fully functional or recovered; for instance, where the action is attended by a “range-wide trend in habitat loss” and “fragmentation” of critical habitat. Butte Envtl. Council, 620 F.3d at 944, 948 (“An area of a species’ critical habitat can be destroyed without appreciably diminishing the value of critical habitat for the species’ survival and recovery.”). Under the ESA, the status of and threats to critical habitat inform FWS’s inquiry of “how the agency action affects … critical habitat.” 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(1)-(4), (h)(1)-(3) That is the analysis FWS performed in this case, ConsDoc857:983-87, and Plaintiffs cannot identify any legal error with Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 29 of 41 25 FWS’s analytical approach used in this consultation. D. Plaintiffs’ concerns with FWS’s surrogate for baseflow reductions misconstrues the facts. After evaluating whether an action is likely to jeopardize a listed species or destroy or adversely modify critical habitat, FWS issues an incidental take statement. 16 U.S.C. § 1536(b)(4). In doing so, Congress required FWS to “specif[y] the impact of such incidental taking,” id. § 1536(b)(4)(i), which can be done numerically or, where impractical, through a surrogate, 50 C.F.R. § 402.14(i)(1)(i).13 This requirement serves to both exempt the agency or applicant from liability for incidental take and identify when more take than anticipated has occurred and reinitiation of consultation is required. 50 C.F.R. § 402.16(a); Ariz. Cattle Growers’ Ass’n v. FWS, 273 F.3d 1229, 1239, 1249-51 (9th Cir. 2001). Here, FWS determined that numerically quantifying take associated with baseflow depletions was not practical, ConsDoc857:989-90, and Plaintiffs do not contest this finding, Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1127 (9th Cir. 2012) (noting “self-evident” impracticability of quantifying take where “minute size of fish eggs and fry” are affected). FWS therefore identified a surrogate—the extent and magnitude of baseflow depletions caused by the action. See ConsDoc857:990-91; id.:946-47 (Table 5); Ctr. for Biological Diversity, 698 F.3d at 1127 (noting permissibility of using “‘habitat characteristics’ as a proxy for a numerical limit”). Plaintiffs argue this surrogate is arbitrary for three reasons. First, they repeat 13 After FWS issued its opinion, it revised its regulations on the use of surrogates in an incidental take statement. 80 Fed. Reg. 26,832 (May 11, 2015). This regulatory change “codifie[d] existing practices … with respect to use of surrogates” and does not affect FWS’s analysis here. Id. at 26,844. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 30 of 41 26 the flawed argument that FWS arbitrarily ignored a 97% baseflow depletion in East Fork Bull River. ECF 35-1 at 30-31. As explained previously, this argument has no merit. See Section IV.B., supra. Second, Plaintiffs argue the surrogate is illusory because baseflow depletions occur only after mining is complete. ECF 35-1 at 32. This is incorrect. Baseflow reductions are expected to occur, to varying degrees, during the construction, operations, closure, and post-closure phases. See ConsDoc857:946- 47 (Table 5). Further, the Project is required to gather data and revise the 3D model during the evaluation phase, ConsDoc857:944-45; FS6-9:7822, 7999, 8487; FS6- 10.1:10622, as well as monitor streamflow during all Project phases, see, e.g., FS6- 10.1:10529-32, 10780-10829. These measures ensure that baseflow impacts can be identified during each phase and, if the amount or extent of take specified in the statement is exceeded, “trigger” reinitiation. ConsDoc857:991; Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F.Supp.2d 1290, 1304-05 (D. Or. 2011) (surrogate with “meaningful and binding restrictions” complies with the ESA). Third, Plaintiffs argue that impacts to stream flows cannot be mitigated. ECF 35-1 at 32. This argument fails because streamflow impacts can and will be fully mitigated, ConsDoc857:885; see also id.:1077-1094; FS6-10.1:10878. Indeed, mitigation actions specified in the plan include measures the Project can take to address baseflow depletions after mining is complete. FS6-10.1:10735-38 (post- closure mitigation). Plaintiffs’ concerns with the take statement are unfounded. E. FWS’s findings that the Project is not likely to jeopardize grizzly bears applies the best scientific data available and is reasoned. FWS also properly analyzed the Project’s effects to grizzly bears in the Cabinet-Yaak Ecosystem. The Cabinet-Yaak is one of six recovery zones FWS Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 31 of 41 27 identified to evaluate grizzly bear recovery in the lower-48 States. ConsDoc554:558. Here, FWS analyzed the adverse impacts of the mine and transmission line, which are expected to result in the loss of one grizzly bear and temporarily impact female reproduction in the Project area. Id.:639, 674. These effects are caused by the direct loss of habitat, disturbance and fragmentation effects, and the influence of increased human presence and activity on grizzly bear mortality. Id.:620, 630-73. These adverse effects, however, do not occur in isolation. ConsDoc554:620 (effects analysis organized into two sections, where the “second is an analysis of the effects of the specific proposed action, including the accompanying mitigation plan”) (emphasis added). The agencies explained early on that the “standards are higher” for this consultation, such that the proponent “needs to show that this [Project] is really good for bears, even with [the] mine.” FS78-82:66469 (FWS Field Supervisor Wilson); id.:66465-69. A multi-faceted, comprehensive grizzly bear mitigation plan was designed to achieve this objective. FS6-10.1:10873-77 (summarizing plan’s measures, by phase). The plan’s measures include: securing 5,427 acres of habitat (via purchase or easement) to offset habitat loss and disturbance and further improve habitat conditions for bears, FS6-10.1:10862 (Table 4); id.:10965 (Mod. 4); see also ConsDoc554:630-31, 641, 682;14 reducing open and total motorized route densities and creating 7,030 acres of secure grizzly bear core habitat, FS6-10.1:10856-57 (Table 1 and 2); ConsDoc554:663-64, 640-42 (Table A12); improving key linkage zones and population connectivity via habitat 14 FWS’s opinion discusses different amounts of replacement habitat due to errors in USFS’s initial calculations. See FS10-213. FWS reviewed the revised calculations and agreed that the changes “are expected to result in effects less than previously disclosed.” FS6-10.1:10843. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 32 of 41 28 acquisition, access management, and adaptive management through the Oversight Committee, ConsDoc554:637, 664-71; see, e.g., id.:642, 652 (changes to Rock Creek trail, which widens the north-south movement corridor from 0.9 to 3.4 miles wide); FS85-941:212971 (Fig.9a); funding and implementing an array of actions that address human-caused mortality, including management of attractants throughout the Ecosystem, road and trail access measures, mine transportation management, educational and outreach programs, funding for grizzly bear specialist, law enforcement, and habitat conservation specialist positions, ConsDoc554:640, 654-61;15 and funding extensive monitoring and use of an Oversight Committee to oversee, monitor, and ensure effective plan implementation, thereby allowing a determination on whether Project effects are greater than anticipated, ConsDoc554:643, 645, 660-61, 669-70, 685. These and the other mitigation actions “represent the full complement of the type of actions that are recognized by grizzly bear experts as being effective in reducing conflicts between bears and people,” ConsDoc554:656, and “have been shown in practice to work together to reduce mortality risks to grizzly bears,” id.:682. Since 2006, for example, nearly every measure of the Cabinet-Yaak population has improved: population numbers have increased, mortality rates (including female mortality, the largest influence on population trends) have declined, and population trends have substantially improved. LIT13352:13389-90 (Fig.9); Fed.SOUF ¶¶ 47-51.16 During the same period, conservation actions were implemented that decreased motorized access, improved availability of secure core habitat, managed attractants to reduce human-bear conflicts, and increased 15 The Project is required to fund one grizzly bear specialist position if the Rock Creek mine proceeds (two if it does not), and it is required to fund a habitat conservation specialist position only if the Rock Creek mine proceeds. Id. 16 Compare ConsDoc554:598 (population growth rate in 2006 was 0.920 (annual rate of decline of 8.3%), with a 94% probability that the population was declining), with id.:598-99 (population growth rate in 2012 was 0.992 (a 0.8% annual rate of decline), with a 57% probability that the population was declining). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 33 of 41 29 educational and outreach efforts (including creation of a grizzly bear specialist position in Libby, Montana). Id. These same measures are included to a significant degree in the grizzly bear mitigation plan, supporting FWS’s finding that the plan is likely to improve the status of the Cabinet-Yaak population. ConsDoc554:674- 75, 667 (Table A14). Considering both the mine’s adverse effects and the beneficial effects of the mitigation plan, FWS found that the Project “would prevent conflict and/or resolve conflicts in a way that prevent the removal or human-caused death of more than one grizzly bear over the 30-year life of the project, thus more than offsetting the loss we anticipate from the project (one grizzly bear).” ConsDoc554:656, 661-64, 674-77. It concluded that the full mitigation plan, combined with ongoing conservation actions being implemented (i.e., the bear augmentation program), “would eliminate the likelihood that the proposed action would appreciably diminish the survival and recovery of grizzly bears, and would in fact improve conditions over the long-term over the existing conditions, ultimately promoting the recovery of the [Cabinet-Yaak Ecosystem] grizzly bear population.” Id.:681. FWS’s analysis is comprehensive, supported by ample evidence, and well- reasoned. This analysis stands in stark contrast to Plaintiffs’ challenge, which rests on rhetoric, not fact. Plaintiffs, for example, sweepingly argue that FWS had “no evidentiary basis” and cited no “supporting evidence” for its findings. ECF 35-1 at 35-36. As Plaintiffs admit mere pages later (id. at 40), this is false. FWS cites, discusses, and analyzes in detail a wealth of existing scientific data and information relating to the effectiveness of actions incorporated into the Project’s mitigation plan (including the grizzly bear specialist position). See, e.g., Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 34 of 41 30 ConsDoc554:626-27, 659-70;17 id.:693-709 (literature cited). That Plaintiffs disagree with the weight that FWS gave to particular evidence does not justify their unqualified accusations or identify any deficiency in FWS’s analysis. Lands Council, 537 F.3d at 997 (rejecting arguments that courts should “require a particular type of proof that a project would maintain a species’ population”); Jewell, 747 F.3d at 618 (agency’s reliance even on “weak” data or “imperfect” studies is not dispositive). In a similar vein, Plaintiffs argue that any numerical estimate of take (i.e., one bear mortality, more than one bear saved) is arbitrary unless it is supported by empirical data gathered for the mine. ECF 35-1 at 36-37. This standard is conjured. The ESA requires FWS to make judgments on the effects of actions (including mitigation actions), issue an “opinion,” and in many instances quantify “take” numerically. 16 U.S.C. § 1536(a)(2), (b). It asks FWS to do so on the basis of “available,” not perfect, data. Id. § 1536(a)(2). Ninth Circuit law therefore rejects Plaintiffs’ arguments, holding that the absence of a “study directly addressing the Project’s effect … does not render the FWS’s conclusions unreasonable or unsupported.” Jewell, 747 F.3d at 633; see also FCC v. Fox Television Stations, 556 U.S. 502, 521 (2009) (predictive judgments merit deference even in the absence of empirical support).18 17 See, e.g., LIT23853:23890 (public education and management actions “can reduce bear attractants and conflict-related mortalities within linkage zones”); LIT10442:10504 (increase of Yellowstone population facilitated by “[s]uccessful long-term community involvement”); see also LIT9127:9127; LIT48324:48326, 48356; LIT21988:21999; LIT26544:26644; LIT11015:11117; LIT23584:23587; LIT17883:17900-01, 17941-42; LIT26544:26645-47, 26649, 26669-72. 18 Plaintiffs’ complaint with FWS’s finding that the comprehensive mitigation package will benefit female grizzly bear mortality is similarly baseless. ECF 35-1 Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 35 of 41 31 Finally, Plaintiffs argue that FWS ignored Table 1 in Kasworm et al. 2013 (LIT13352:13366-67). ECF 35-1 at 38-39. FWS obviously did not ignore grizzly bear mortality in the Cabinet-Yaak, the subject of the table. See, e.g., ConsDoc554:595-602, 662-63, 689. Instead, the “evidence” Plaintiffs claim FWS ignored is their interpretation of Table 1—that a comparison of mortalities in two time periods (2001-2006 and 2007-2012) means one mitigation measure (grizzly bear specialist position) is ineffectual. ECF 35-1 at 38-39. There are at least three critical flaws with Plaintiffs’ argument. First, Plaintiffs incorrectly assume that FWS’s conclusions are premised on a single action, the grizzly bear specialist position. ECF 35-1 at 38-40. This is the same flawed argument that Plaintiffs raised in Rock Creek Alliance, which the Ninth Circuit addressed and soundly rejected. 663 F.3d at 443-44 (finding FWS’s conclusions properly based on and justified by the “multi-faceted” mitigation plan that “‘collectively’” improves the survival and recovery prospects of the population). The same conclusion applies here. ConsDoc554:675 (measures “work collectively to improve the existing status of” the Cabinet-Yaak population).19 Second, FWS considered Kasworm et al. 2013—the study Plaintiffs wrongly contend FWS ignored, ECF 35-1 at 39, 41—and this study supports at 37. Factors that address human-caused mortality benefit all bears, including female bears residing in the areas. Fed.SOUF ¶ 59-60. 19 See also id.:654 (“Collectively, the measures represent a substantial effort to reduce and minimize human-caused grizzly bear mortality risk”); id.:656 (“the mitigation measures would prevent conflict and/or resolve conflicts”); id.:663 (“We expect that this suite of measures will significantly minimize the potential for grizzly bears to be killed”); id.:682 (Project includes “measures that have been shown in practice to work together to reduce mortality risks”); FS6-10.1:10843 (FWS explaining: “Implementation of the entire mitigation plan will result in an improved condition over the baseline. This improved condition is anticipated to offset and minimize the impacts of the incidental take anticipated”). Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 36 of 41 32 FWS’s findings. It shows that the status of the grizzly bear population has improved since 2006 when the same types of actions incorporated into the Project’s mitigation plan have been implemented. LIT13352:13389; Fed.SOUF ¶¶ 44-51. Plaintiffs cite no contrary evidence or otherwise rebut FWS’s judgment that the mitigation measures “represent the full complement of the type of actions that are recognized by grizzly bear experts as being effective in reducing conflict between bears and people” is sound. ConsDoc554:656; see Oregon Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1120 (9th Cir. 2006) (“Bereft of any contrary science, plaintiffs’ bare allegation that the agency’s distinction conflicts with the ‘best scientific evidence available’ fails.”). Third, Plaintiffs’ proffered “interpretation” is objectively flawed. They do not address the situation FWS reviewed. ECF 35-1 at 38-39 (critiquing the existing specialist that covers the ecosystem in Montana); but see ConsDoc554:657 (new specialist and law enforcement positions will “primarily deal with the Montanore Mine mitigation issues”). They present no basis for disregarding data belying their position, such as reduced mortality rates and improved growth trends since 2006. ECF 35-1 at 33.20 They disparage proactive educational and management measures that Defenders of Wildlife funds and their own declarant attests “are vital to grizzly 20 Plaintiffs’ brief is misleading in numerous other ways. On ECF 35-1 at 33-34, Plaintiffs wrongly imply that bears are isolated, but see Fed.SOUF ¶ 48; omit necessary context around statements that the Project “will displace” bears from “preferred habitat,” such as the fact that Project disturbances cover 5% of the home range of a female grizzly bear, leaving extensive alternative habitats available, ConsDoc554:646-48; and misleadingly assert that an influx of “more than 800 people” gives bears little time to adapt, even though mine employees arrive in phases, 80% of the workforce is expected to be local hires, and FWS actually said that bears may have “little opportunity to adapt” to changes “[w]ithout proactive attractant storage measures,” ConsDoc554:650. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 37 of 41 33 bear conservation in all ecosystems, but particularly” the Cabinet-Yaak. ECF 35-4 ¶¶ 5, 9. And they irrationally apply their own flawed methodology, counting mortalities in Idaho to judge the effectiveness of a specialist that works in Montana. See LIT635:636 (identifying specialist’s work area); LIT13352:13366- 67 (11 human-caused mortalities in Montana from 2001-2006, as compared to 10 in 2007-2012—an improvement). In short, Plaintiffs seek to prevail by ignoring all evidence contrary to their position. They are also forced to repeat the same flawed argument the Ninth Circuit rejected in Rock Creek Alliance—that FWS must justify its ultimate conclusions on the basis of one mitigation measure plucked from a comprehensive mitigation plan. 663 F.3d at 442-43. Rather than undercut FWS’s analysis, Plaintiffs reinforce the strength of the grizzly bear mitigation plan and the rigor FWS applied to reviewing the effects of the Project on grizzly bears. FWS’s analysis and conclusions for grizzly bears are sound and should be upheld. F. The Forest Service has fully complied with the ESA. USFS performed its own extensive analysis of all of the Project’s effects on the environment, including effects to bull trout and grizzly bears. FS6-9; ConsDoc6518; FS85-941. It further engaged in consultation with FWS, the expert wildlife agency. ConsDoc554, 857. Following all of this analysis and review, USFS issued a Record of Decision (FS6-10.1) that carefully analyzed all of the data available to it, including new data and analyses that emerged after FWS issued its opinions.21 USFS also heeded FWS’s direction by requiring the Project to 21 For example, the Montana Department of Environmental Quality provided new data on the temperature effects of the Project on Libby Creek, FS85-175.3, which showed that the impacts evaluated in FWS’s opinion was less than previously anticipated, FS10-231:13306, 13320-21. USFS also reevaluated its sedimentation Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 38 of 41 34 implement the revised bull trout and grizzly bear mitigation plans, FS6- 10.1:10836, 10878, 10899, 10902, which are expected to offset the adverse effects of the Project on the listed species, ConsDoc554:557, 690-91; ConsDoc857:885, 996. USFS performed its own independent analysis, rationally relied on FWS’s expertise, and satisfied its procedural and substantive obligations under the ESA. On this record, Plaintiffs cannot show that USFS violated the law by, inter alia, failing to perform its own analysis. ECF 35-1 at 41-42. Contrary to Plaintiffs’ assertions, USFS also is entitled to rely on FWS’s opinions, particularly where the opinions represent a thorough and precautionary analysis of the Project’s effects. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984) (“On its face,” reliance on the expert agency’s opinion “does not seem to be a ‘clear error of judgment’”). Plaintiffs’ bare disagreement with USFS’s expert choices is not a valid basis to overturn its decision, and this claim should be dismissed. V. CONCLUSION The Project proponent has valid mineral rights to the underground copper and silver resources, and the law gives it the right to access those deposits. USFS, in turn, has no legal right to prohibit the activity conducted in accordance with applicable laws and regulations. What it can do, and what it did here, is ensure that the Project minimizes environmental effects on National Forest System surface resources and complies with all applicable laws, including the ESA. USFS accomplished this through consultation with FWS and by requiring actions that minimize and mitigate harm to listed species and other environmental resources. FWS proceeded with the same care and attention, rigorously analyzing the modeling FWS used in its opinion, which likewise showed fewer effects than FWS anticipated in the 2014 opinion. FS10-231:13362, 13363-78. Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 39 of 41 35 Project’s effects and making informed and reasoned judgments on the scale, scope, and significance of those effects on ESA-listed species and designated critical habitat. The ESA consultation at the heart of this case is sound, and the Court should grant summary judgment in favor of Federal Defendants. DATED: November 21, 2016 Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General U.S. Department of Justice Environment & Natural Resources Division SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ROBERT P. WILLIAMS, Sr. Trial Attorney /s/ Michael R. Eitel MICHAEL R. EITEL, Sr. Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 Tel: (303) 844-1479 | Fax: (303) 844-1350 Email: Michael.Eitel@usdoj.gov MICHAEL W. COTTER United States Attorney MARK STEGER SMITH Assistant United States Attorney U.S. Attorney’s Office 2601 Second Avenue North, Suite 3200 Billings, Montana 59101 Phone: (406) 247-4667 | Fax: (406) 657-6058 Email: Mark.Smith3@usdoj.gov Attorneys for Federal Defendants Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 40 of 41 36 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(d)(2)(E) and the Court’s July 8, 2016 Order (ECF 32), the attached brief is proportionately spaced, has a typeface of 14 points and contains 9,914 words, excluding the caption and certificates of service and compliance. DATED November 21, 2016 /s/ Michael R. Eitel MICHAEL R. EITEL Senior Trial Attorney U.S. Department of Justice CERTIFICATE OF SERVICE I hereby certify that on November 21, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the attorneys of record. /s/ Michael R. Eitel MICHAEL R. EITEL Senior Trial Attorney U.S. Department of Justice Case 9:15-cv-00069-DWM Document 45 Filed 11/21/16 Page 41 of 41
