IDAHO WOOL GROWERS ASSOCIATION; AMERICAN SHEEP INDUSTRY ASSOCIATION; PUBLIC LANDS COUNCIL; WYOMING WOOL GROWERS ASSOCIATION; CARLSON COMPANY, INC.; SHIRTS BROTHERS SHEEP; COLORADO WOOL GROWERS ASSOCIATION, Plaintiffs-Appellants,
TOM VILSACK, in his official capacity as the Secretary of the U.S. Department of Agriculture; TOM TIDWELL, in his official capacity as the Chief of the U.S. Forest Service; KEITH LANNOM, in his official capacity as the Forest Supervisor of the Payette National Forest; UNITED STATES FOREST SERVICE, Defendants-Appellees, THE WILDERNESS SOCIETY; WESTERN WATERSHEDS PROJECT; HELLS CANYON PRESERVATION COUNCIL, Intervenor-Defendants-Appellees
Argued and Submitted, Portland, Oregon November 2, 2015.
Appeal from the United States District Court for the District of Idaho. D.C. No. 1:12-cv-00469-BLW. A. Wallace Tashima, District Judge, Presiding[*] .
The panel affirmed the district court's summary judgment in favor of the United States Forest Service in an action challenging the Forest Service's decision, made in response to concerns regarding disease transmission to immunologically vulnerable bighorn sheep, to close to domestic sheep grazing approximately 70% of allotments on which grazing had been permitted in the Payette National Forest in Idaho.
The panel held that, pursuant to the National Environmental Policy Act environmental review process, any error by the Forest Service in failing to consult the Agricultural Research Service, a federal agency within the U.S. Department of Agriculture, before preparing the final supplemental impact statement and Record of Decision, was harmless. The panel held that because the lack of consultation did not prevent the Forest Service or the public from considering information about the uncertainties in transmission of disease from domestic to bighorn sheep, such as the Agricultural Research Service would have offered, and because information about the precise mechanisms of such transmission was not a basis of the Forest Service's decision, no prejudice resulted from the lack of consultation.
The panel also held that the Forest Service did not otherwise act arbitrarily or capriciously or abuse its discretion. Specifically, the panel held that the Forest Service did not act arbitrarily or capriciously or abuse its discretion by declining to supplement the final supplemental impact statement. The panel also held that the Forest Service did not act arbitrarily or capriciously or abuse its discretion in its modeling used to analyze bighorn sheep home ranges and movement, and the potential impacts of various management alternatives.
William G. Myers III (argued) and Murray D. Feldman, Holland & Hart LLP, Boise, Idaho, for Plaintiffs-Appellants.
Robert J. Lundman (argued) and David B. Glazer, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C.; Sam Hirsch, Acting Assistant Attorney General, U.S. Department of Justice, Washington, D.C.; Heather Hinton-Taylor, Office of the General Counsel, U.S. Department of Agriculture, Washington, D.C., for Defendants-Appellees.
Lauren M. Rule (argued), Advocates for the West, Portland Oregon; Jennifer R. Schemm, La Grande, Oregon, for Intervenor-Defendants--Appellees.
Before: Raymond C. Fisher, Marsha S. Berzon, and Paul J. Watford, Circuit Judges.
BERZON, Circuit Judge:
Between the late 1800s and the early 1900s, the number of bighorn sheep in North America declined dramatically, falling from a high of 1.5 to 2 million individuals to approximately 10% of that number. Scientists have generally attributed the decline to over-harvesting, habitat loss, competition for food, and disease transmission from domestic sheep.
In response to concerns regarding disease transmission to immunologically vulnerable bighorn sheep, the Chief of the U.S. Forest Service ordered further analysis of the effects of grazing domestic sheep in the Payette National Forest of west-central Idaho (" Payette" ). In response, the Forest Service prepared a draft supplemental environmental impact statement (" DSEIS" ), an update to the DSEIS, and, eventually, a final supplemental environmental impact statement (" FSEIS" ) and Record of Decision (" ROD" ). Concluding that there is a significant risk of fatal disease to the small and insular populations of bighorn sheep in the Payette, the Forest Service decided in the ROD to close to domestic sheep grazing approximately 70% of the allotments on which grazing had been permitted.
The Idaho Wool Growers Association, other state and national trade associations, and two sheep ranchers (collectively, " Wool Growers" ) challenged the Forest Service's decision, objecting to the Forest Service's (1) failure to consult the Agricultural Research Service (" ARS" ), a federal agency within the U.S. Department of Agriculture, before preparing the FSEIS and ROD; (2) failure to supplement the FSEIS and ROD in light of the publication in 2010 of a certain study of the transmission of disease from domestic to bighorn sheep, the " Lawrence study" ; and (3) choice and use of particular models to evaluate the risk of contact between domestic and bighorn sheep and the effects of disease transmission from domestic to bighorn sheep. The district court entered summary judgment in favor of the Forest Service. Wool Growers appealed.
We conclude that any error in failing to consult ARS was harmless. As the Forest Service did not otherwise act arbitrarily or capriciously or abuse its discretion, we affirm.
Bighorn sheep are currently found in two populations in the Payette--one in Hells Canyon and the other in the Salmon River Mountains. In approximately 1870, major die-offs of bighorn sheep began to occur in the Salmon River Mountains. The die-offs roughly coincided with the onset of wide-spread grazing of domestic sheep in the Payette.
Over the years, the Payette's bighorn populations have continued to experience periodic " large-scale, rapid, all-age die-offs." FSEIS xx; see also ROD 6-7. Since 1981, despite efforts at transplanting sheep from elsewhere, the total population in the Payette has decreased by 47%. Although at one time more than 10,000 bighorn sheep lived in Hells Canyon and the surrounding mountains, " they were extirpated by the mid-1940s." ROD 6. Between 1971 and 2004, 474 bighorn sheep were transplanted into Hells Canyon. Seven die-offs in the Hells Canyon population have been reported since 1971. At the time the FSEIS was written, that population numbered 850 sheep.
The Salmon River population was never extirpated. According to surveys in 2001, 2003, and 2004, that population numbers roughly 700 sheep.
B. The NEPA Environmental Review Process
The administrative process underlying this appeal began in 2003, when the Forest Service, pursuant to the National Environmental Policy Act (" NEPA" ), issued the Southwest Idaho Ecogroup Land and Resource Management Plans Final Environmental Impact Statement and Record of Decision (" EIS" ), which revised the 1988 Payette National Forest Land and Resource Management Plan. The EIS was appealed, appellants urging that the EIS " violated the [National Forest Management Act] and Hells Canyon National Recreation Area (HCNRA) Act on the Payette National Forest by providing for grazing of domestic sheep within or near the range of bighorn sheep, thus threatening the viability of bighorn sheep though [sic] disease transmission." ROD 1. In March 2005, the Chief of the Forest Service agreed that the EIS " did not adequately address viability [of bighorn sheep populations in the Payette] or the potential for disease transmission." Id. The Chief therefore rejected the EIS's analysis.
The Chief then " instructed the Regional Forester to reanalyze the potential impacts of domestic sheep grazing on bighorn sheep viability on the Payette National Forest to ensure habitat is available to support a viable population of bighorn sheep." ROD 1. The Chief's decision reflected general concerns regarding disease transmission--in particular, the spread of various strains of pneumonia-causing or -contributing bacteria--from domestic to bighorn sheep, as confirmed by anecdotal evidence and a multitude of studies.
There is uncertainty regarding the particular mechanics of disease transmission, and the evidence of transmission is largely circumstantial. Pneumonia-causing bacteria are commonly found in domestic sheep, with the worst outbreaks killing 2.5% of domestic sheep in a herd. The impact of pneumonia on bighorn sheep is considerably more catastrophic. Episodic pneumonia outbreaks appear to be the current limiting factor in bighorn sheep abundance and distribution, both because large-scale die-offs caused by pneumonia kill most or all of a given population, and because female bighorns who survive die-offs experience low reproduction and high lamb mortality rates for years following an outbreak. Consequently, a number of state and federal agencies with jurisdiction over bighorn sheep have expressed concern and modified their management plans to address disease transmission from domestic to wild sheep. ROD 6; see, e.g., John Beecham et al., Rocky Mountain Bighorn Sheep (Ovis Canadensis): A Technical Conservation Assessment, Feb. 12, 2007; Timothy Schommer & Melanie Woolever, A Review of Disease Related Conflicts Between Domestic Sheep and Goats and Bighorn Sheep, 2008; Montana Department of Fish, Wildlife and Parks, Montana Bighorn Sheep ...