Home » Case Summaries » 2016 » Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095 (9th Cir. 2016)

 
 

Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095 (9th Cir. 2016)

 

 

Idaho Wool Growers Association and other ranchers and sheep industry representatives (collectively, Idaho Wool Growers)[1] sued the United States Forest Service under the National Environmental Policy Act[2] (NEPA) after the Forest Service reduced grazing in the Payette National Forest by roughly 70%. Idaho Wool Growers sought declaratory and injunctive relief, claiming that the Forest Service provided inadequate justification for the reduction in its Final Supplemental Environmental Impact Statement (FSEIS) and Record of Decision (ROD). In response, intervening environmental groups[3] filed a cross-motion for summary judgment. Idaho Wool Growers’ motion was denied, and the latter motion granted, by the United States District Court for the District of Idaho.[4] On appeal, the Ninth Circuit affirmed the ruling after reviewing the Forest Service’s decision under the Administrative Procedure Act’s (APA) arbitrary and capricious standard.[5]

The call to restrict grazing in the Payette National Forest (the Forest) came in 2010 after years of NEPA analyses by the Forest Service. That analysis stemmed from a 2003 Final Environmental Impact Statement (FEIS) and ROD prepared by the Forest Service for the Southwest Idaho Ecogroup Land and Resource Management Plan, which increased domestic grazing throughout the Forest. Environmental groups promptly appealed the FEIS and ROD out of concern that extensive grazing might eliminate the area’s population of bighorn sheep through disease. In response, the Forest Service engaged in further analysis of the impact that grazing might have on the bighorn population, in particular the transmission of various bacteria known to cause pneumonia. The Forest Service returned with draft supplemental environmental impact statements in 2008 and 2010, each generating over 10,000 public comments, before issuing its FSEIS, in which it reduced grazing to mitigate the risk of domestic sheep spreading disease throughout the bighorn sheep population. Idaho Wool Growers filed suit, challenging the adequacy of the FSEIS.

Idaho Wool Growers raised three arguments on appeal. First, it claimed that the Forest Service violated NEPA by not consulting the Agricultural Research Service (ARS) before restricting grazing in the Forest. Idaho Wool Growers cited to the requirement under NEPA that federal agencies consult with any other agency “which has jurisdiction by law or special expertise” when making environmental assessments.[6] Idaho Wool Growers argued that ARS has special expertise in the transmission of disease by domestic sheep, illustrated by Department of Agriculture regulations that delegate to ARS the research of the “causes of contagious, infectious and communicable diseases” in domesticated animals.[7] Idaho Wool Growers claimed the Forest Service’s failure to consult with ARS constituted an error because ARS would have informed the agency of the uncertainty of disease transmission between the two sheep species.

In response, the Forest Service argued that, regardless of ARS’s expertise as to domestic sheep, ARS has no expertise in wildlife management, which is the context in which this disease transmission was being considered. The Ninth Circuit found that ARS does offer some relevant expertise in that area, and cautioned the Forest Service against reading NEPA’s consultation mandate too narrowly, but the court concluded that the Forest Service’s failure to consult ARS was harmless error because the Forest Service already had obtained ample public input regarding the uncertainty of disease transmission between the two species.

Next, Idaho Wool Growers alleged that the Forest Service erred by not supplementing the FSEIS with the results of new research from the 2010 “Lawrence Study,” which examined disease transmission between domestic and bighorn sheep. In support, Idaho Wool Growers relied on the regulation governing environmental impact statements that requires agencies to supplement their statements if new information bears significantly on the proposed action.[8] The Ninth Circuit found that, to the extent that comments by one of the Lawrence Study’s authors supported Idaho Wool Growers’ claim, the Forest Service acted reasonably in not supplementing its FSEIS once the study was published. First, the court pointed out that the Forest Service cited several times to the Lawrence Study in its unpublished form. Second, the court noted that the responses of other authors and the study’s express findings regarding transmission of disease between domestic and bighorn sheep contradicted the comments cited by Idaho Wool Growers. Finally, the court held that supplementation is not required where the impacts of new research are not significantly different. The Ninth Circuit concluded that the Forest Service did not act arbitrarily or capriciously when it declined to further supplement the FSEIS.

Finally, Idaho Wool Growers claimed that the Forest Service’s risk-of-contact and disease modeling was arbitrary and capricious, the former because it failed to account for obstacles that hinder the bighorn sheep population’s mobility, and the latter because it failed to address the timing of disease transmission. Idaho Wool Growers argued that, because NEPA requires agencies to guarantee the scientific integrity of environmental impact statements,[9] reliance on inaccurate models violated NEPA. The Ninth Circuit disagreed. First, the court explained that agencies are entitled to “greater-than-average deference” when it comes to the choice of technical methodologies. Due to the fact that the model depicting bighorn sheep mobility was based on actual herd movements, the court found that the agency’s choice to use that model was reasonable. In addition, the fact that the model depicting disease transmission ignored the effects of time was reasonable to the court in light of the model’s purpose. The disease model did not intend to accurately predict the chance of disease transmission; rather, it assumed disease transmission, at set probabilities ranging from 5%–100%, to help predict whether bighorn sheep might be eradicated. Therefore, the court found that reliance on the models was not arbitrary or capricious.

In sum, the Ninth Circuit affirmed the district court’s grant of summary judgment to the defendant-intervenors against Idaho Wool Growers’ suit seeking to challenge the adequacy of the Forest Service’s research. The court found the Forest Service’s actions either harmless error or reasonable under the circumstances.

 

 

 

Footnotes    (↵ returns to text)

  1. Plaintiffs included Idaho Wool Growers Association, American Sheep Industry Association, Public Lands Council, Wyoming Wool Growers Association, Colorado Wool Growers Association, Shirts Brothers Sheep, and Carlson Company, Inc.
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  3. These groups included Wilderness Society, Western Watersheds Project, and Hells Canyon Preservation Council.
  4. Idaho Wool Growers Ass’n v. Vilsack, 7 F. Supp. 3d 1085, 1088 (D. Idaho 2014).
  5. 5 U.S.C. § 706(2)(A) (2012).
  6. 42 U.S.C. § 4332(2)(C).
  7. 7 C.F.R. § 2.65(a)(4) (2016).
  8. 40 C.F.R. § 1502.9(c)(1)(ii) (2016).
  9. Id. § 1502.24.
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