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Californians For Alternatives To Toxics, A v. United States Fish and Wildlife Service

September 6, 2011

CALIFORNIANS FOR ALTERNATIVES TO TOXICS, A NON-PROFIT10/21 CORPORATION; WILDERNESS WATCH, A NON-PROFIT CORPORATION; THE FRIENDS OF SILVER KING CREEK, A CALIFORNIA NON-PROFIT CORPORATION; LAUREL AMES, AN INDIVIDUAL AND ANN MCCAMPBELL, AN INDIVIDUAL,
PLAINTIFFS,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; ALEXANDRA PITTS, IN HER OFFICIAL CAPACITY; UNITED STATES FOREST SERVICE; JEANNE M. HIGGINS, IN HER OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on the parties' cross-motions for summary judgment in this environmental case in which plaintiffs*fn1 seek to set aside the EIR/EIS*fn2 and the agencies' decisions authorizing the Paiute Cutthroat Trout Restoration Project (the "Project") in Silver King Creek, located in the Carson-Iceberg Wilderness in Alpine County, California. The Project will restore the Paiute cutthroat trout ("PCT") to its historic range in Silver King Creek by eradicating non-native trout between Llewellyn Falls and Silver King Canyon with the pesticide rotenone and restocking the treated area with pure PCT from donor streams. According to defendants, the Project is a critical and necessary step towards removing the PCT from the Endangered Species Act's threatened species list and preventing its extinction.

By their complaint, filed June 15, 2010, plaintiffs challenge the EIR/EIS, jointly prepared by the United States Fish and Wildlife Service ("USFWS") and the California Department of Fish and Game ("CDFG"), to authorize the Project under the National Environmental Policy Act ("NEPA"), the Wilderness Act of 1964 (the "Wilderness Act"), the Endangered Species Act ("ESA"), the Federal Water Pollution Control Act ("Clean Water Act"), the California Environmental Quality Act ("CEQA") and the Administrative Procedures Act ("APA").

Plaintiffs filed their motion for summary judgment on April 3, 2011, seeking partial summary judgment in their favor on their NEPA and Wilderness Act claims. On May 5, 2011, USFWS and the United States Forest Service ("USFS") filed an opposition and cross-motion for summary judgment on plaintiffs' other claims for relief under the ESA, Clean Water Act and APA.*fn3 The court heard oral argument on the motions on August 11, 2011, and by this order now renders its decision on the motions.

Plaintiffs' motion is GRANTED in part and denied in part. Plaintiffs have not demonstrated a violation of NEPA and therefore, their motion on that claim is DENIED. However, plaintiffs have shown a violation of the Wilderness Act because in choosing one competing value (the conservation of the PCT) over another value (preservation of the wilderness character), the agencies left native invertebrate species out of the balance, and thus improperly concluded that authorization of motorized equipment will comply with the Act by achieving the purpose of preserving wilderness character.

Having shown success on the merits of their Wilderness Act claim, plaintiffs are entitled to a permanent injunction, enjoining implementation of the Project because: (1) through the expert declaration of Nancy Erman, they have demonstrated that the rotenone treatment will kill sensitive macroinvertebrate species and that recolonization will not occur for some species because they cannot adapt to the Project area habitat; and (2) the balance of equities tips in their favor as no exigency exists to begin the Project now; and (3) the public interest favors preservation of the unimpaired wilderness.

Defendants' cross-motion is accordingly DENIED in part and GRANTED in part. Their motion is denied as to plaintiffs' Wilderness Act claim but granted with respect to plaintiffs' NEPA, ESA and Clean Water Act claims.

BACKGROUND*fn4

The USFWS, the CDFG and the USFS (sometimes collectively, the "Agencies") have proposed the Paiute Cutthroat Trout Restoration Project to poison with rotenone*fn5 eleven miles of Silver King Creek and then stock this area with pure PCT from established populations in the upper portions of the watershed. (UF #125.) Silver King Creek is within the Carson-Iceberg Wilderness of the Humboldt-Toiyabe National Forest in California's Sierra Nevada Mountains. (UF #11.) The eleven-mile project area includes a six-mile stretch of the mainstem of the river downstream of Llewellyn Falls to Silver King Canyon, sometimes referred to as lower Silver King Creek, and five miles of tributaries. (UF #84.) Currently six populations of PCT inhabit eleven and one-half miles of Silver King Creek, including above Llewellyn Falls. (UF #33.)

Originally, the USFWS and CDFG planned to begin project implementation in the late summer or early fall of 2011; however, due to record snowfall this winter, the Agencies recently announced that they will postpone implementation of the Project until the late summer or early Fall of 2012. (UF #126.) The Agencies propose to apply rotenone over two to three years. (UF #91.) Each application of rotenone would require seven working days and could be done twice a year. (UF #87.) An auger, powered by a gasoline-powered generator, will distribute potassium permanganate that will neutralize the toxicity of the rotenone downstream.*fn6 (UF #100.) Last, the Agencies propose to stock the project area with PCT the summer after the final poisoning, and continue annually until the population has reached the target size.*fn7 (UF #124.)

The objective of the Project is to eradicate non-native fish in the proposed area and establish PCT as the only salmonid fish species in the Silver King Creek system--an action proposed*fn8 in the 2004 Revised Recovery Plan (the "2004 Plan") to prevent extinction of the PCT, as required by the ESA. (AR 182.) The PCT is native to only Silver King Creek and is listed under the ESA as threatened with extinction. (AR 180, 33235.) The initial Recovery Plan, issued in 1985 (the "1985 Plan"), did not propose to establish PCT in Silver King Creek below Llewellyn Falls or to poison that stretch of the creek. (UF #56.) Instead, the 1985 Plan concluded that the PCT could be considered recovered "when a pure population of PCT has been reestablished in Silver King Creek above Llewellyn Falls, and the integrity of the habitats in Silver King Creek, Cottonwood Creek, and Stairway Creek has been secured and maintained over a consecutive five-year period with stable or increasing overwintering*fn9 populations of 500 or more adult fish in each of these streams."*fn10 (UF #54.)

Under the 2004 Plan, the PCT would have to be successfully reintroduced into Silver King Creek from Llewellyn Falls downstream to Silver King Canyon to avoid extinction. (AR 33237.) The USFWS stated reasons for the change from the 1985 Plan, including "1) the discovery of fish barriers downstream of Llewellyn Falls that would enable the expansion of Paiute cutthroat trout into historic habitat, 2) elimination and reduction of threats to existing populations, [and] 3) increased knowledge about Paiute cutthroat trout population dynamics based on long-term trend data." (UF #61.) According to this plan, the PCT listing for recovery under the ESA indicates a "moderate degree of threat for extinction." (UF #62.) The 2004 Plan concludes, however, that if the PCT remain only in their currently occupied habitat, they will be "highly vulnerable to extinction." (AR 33238.)

In 2004, the USFS ratified a Finding of No Significant Impact ("FONSI") under NEPA for an earlier iteration*fn11 of the project at issue in this case. Some of the plaintiffs in this case challenged the FONSI for failing to comply with NEPA, and this court ordered a preliminary injunction enjoining implementation of the project; specifically, any application of rotenone formulations and potassium permanganate to Silver King Creek, its tributaries and backwaters, and Tamarack Lake. (UF #76.) The court found that the plaintiffs made a strong showing of the likelihood of irreparable harm to native Silver King Creek species and the balance of interests tipped decisively in the plaintiffs' favor. Californians for Alternatives to Toxics v. Troyer, No. CIV-05-633-FCD-KJM, 2005 WL 2105343, at *2 (E.D. Cal. Aug. 31, 2005).

Thereafter, in 2010, the Agencies published the EIR/EIS for the Project at issue in this case.*fn12 (UF #83.) The EIR/EIS analyzes three alternatives: the No Action Alternative ("Alternative One"); the Proposed Action Alternative ("Alternative Two"); and the Combined Physical Removal Alternative ("Alternative Three"). (AR 177.) Alternative One continues current management of existing PCT populations in Silver King Creek, without introducing new populations or efforts to eradicate non-native trout; the EIR/EIS concluded that this alternative would not result in direct environmental benefits. (AR 193.)

Alternative Two analyzes the Project at issue here. The analysis acknowledges that this alternative could result in loss of individual macroinvertebrate taxa, potentially including rare or as yet unidentified species endemic to Silver King Creek.*fn13 (UF #115.) While common macroinvertebrate taxa would recolonize the Project areas, rarer taxa may be eradicated for a number of years or indefinitely. (UF #114.) There is no information about the existence of rare or endemic macroinvertebrate species in Silver King Creek because current studies do not provide the level of taxonomic resolution needed to detect rare or endemic species. (UF #118.)*fn14 The Agencies conclude in the EIR/EIS that performing species studies to determine whether endemic or rare taxa exist in Silver King Creek would require an intensive effort that would be costly, might be inconclusive, may be technically infeasible, and is beyond the scope of the proposed action.*fn15 (UF #s 143-144.)

Alternative Three proposes using non-chemical techniques (a combination of electrofishing, gill netting, seining, and other physical methods) to remove non-native trout from the Project area. (AR 204.) The electrofishing component is estimated to take 580 hours, over a period of ten years, before completion, and the electrofishing batteries would be recharged with small gasoline-powered generators.*fn16 (AR 205.)

On May 20, 2010, both the USFS and the USFWS issued Records of Decision ("ROD") adopting Alternative Two, the Proposed Action Alternative. (UF #83.) The Forest Supervisor explained that she chose Alternative Two over Alternative Three because the CDFG and the USFWS had determined that the application of rotenone to Silver King Creek was "the most effective method to remove non-native trout within PCT historic habitat." (FS 5156.) As the representative of the agency mandated to manage lands protected under the Wilderness Act, the Forest Supervisor concluded that "the short term negative effects to the 'natural' Wilderness character through introduction of a chemical pesticide were balanced by the improved long term natural conditions of Wilderness character through restoration of a native species."

(FS 5157.)

On June 15, 2010, plaintiffs filed this case. By their instant motion for summary judgment, plaintiffs seek an order for declaratory and injunctive relief. Specifically, plaintiffs ask the court to find a violation of NEPA and/or the Wilderness Act and enjoin implementation of the Proposed Action Alternative under the EIR/EIS. Defendants oppose plaintiffs' motion and cross-move for summary judgment.

More specifically, in their motion, plaintiffs move for summary adjudication on their NEPA claim on the following grounds: defendants' (1) failure to perform feasible studies to consider environmental effects, (2) reliance on faulty information in choosing the Proposed Action Alternative, (3) failure to use accurate scientific data in the 2004 Plan, and (4) failure to consider and disclose effects from the poisons in the EIR/EIS. Plaintiffs also move for summary adjudication on their Wilderness Act claim, arguing that the Project fails to comply with the Act's mandates. (Pls.' Mot. For Summ. J. and Injunctive Relief [Docket #48-1], filed April 11, 2011, at 11-26.)

In support of their first claim that the Agencies violated NEPA by failing to perform feasible studies, plaintiffs provide evidence that species-level studies of macroinvertebrates have been conducted for aquatic insects. In fact, endemic species of aquatic invertebrates, including stoneflies and caddisflies have been identified through species surveys in other locations in the Sierra Nevada Mountains. (UF #146.) According to plaintiffs, the absence of species studies for the Project area results in a violation because NEPA regulations state that when information relevant to a reasonably foreseeable significant impact is incomplete, the agency shall include complete information in the EIS. 40 C.F.R. § 1502.22(a). One of plaintiff's experts, Nancy

A. Erman, declares that a reasonable inventory of macroinvertebrate species in the Silver King Creek watershed could be feasibly conducted in two to three years.*fn17 (Decl. of Nancy A. Erman in Support of the Pls.' Mot. For Summ. J. and Injunctive Relief [Docket #57-1], filed May, 19, 2011, at 3:7-8.)*fn18

In response, defendants argue that they have met their burden under NEPA by (1) considering the effects of the Proposed Action Alternative on benthic macroinvertebrates based on the current state of scientific knowledge, (2) disclosing the possibility of loss of individual macroinvertebrate taxa, and (3) providing a thorough explanation of why a species-level study is not feasible. (USFWS and USFS's Opp'n to Pls.' MSJ [Docket #54], filed May 2, 2011, 21:26-22:3.) Defendants claim that plaintiffs have not cited authority to show that NEPA requires the Agencies to conduct a study to rule out the possibility that rare and endemic species may exist in the Project area. (Id. at 19:25 to 20:2.) Instead, defendants assert that it would be inappropriate to place such a burden on federal agencies where "(1) no federally endangered, threatened, sensitive, or candidate macroinvertebrate species are known to exist in the Silver King Creek Basin; (2) the [A]gencies' experts explained that the likelihood of finding rare and endemic mancroinvertebrates in Silver King Creek is low . . . ;*fn19 and (3) the agencies explained that untreated upstream areas would enhance recolonization of macroinvertebrates [in the Project area after poisoning]." (Id. at 20:9-16.)

According to defendants, a species inventory is infeasible because: (1) due to the lack of existing inventory data, a complete inventory of aquatic invertebrates would be necessary, requiring an intensive effort beyond the scope of the Project; (2) the state of the art of benthic invertebrate taxonomy is not sufficiently advanced to allow identification to the species level; (3) an inventory would require sampling at multiple stations over different seasons and across multiple years; and (4) even a complete species inventory may not determine if a species, which is absent after a rotenone treatment, was actually absent or whether it was missing during the sampling. (Id. at 20:17-21-27.)

Also under their first NEPA claim, plaintiffs assert that defendants only presume that there is a natural barrier downstream of the Project area, because all the data was collected in autumn when flows in Silver King Creek were minimal and the efficacy of any barriers was optimal. In support of this assertion, plaintiffs' expert, Don C. Erman, attests that scientific judgment of potential barriers should be based on a range of stream flows in order to establish a rating curve of changes in the horizontal distance from the fall's crest to the plunge pool, and other features. (Decl. of Don C. Erman [Docket #46], filed April 3, 2011, ¶ 5.)

In response, defendants maintain the Agencies properly relied on the CDFG's Senior Hydraulic Engineer who viewed the downstream barrier during low flow conditions, but also concluded that "[u]nder high flow conditions, the vertical magnitude of the barrier is reduced, but, due to the narrowness of the gorge and the steepness of the stream channel, it is my opinion that the excessive air entrainment and turbulence in the flowing stream will continue to prevent fish from moving upstream through the barrier reach." (AR 15102.)

In support of their second NEPA claim that defendants relied on faulty information in choosing the Proposed Action Alternative, plaintiffs assert that defendants misrepresented the potential effectiveness of the Combined Physical Removal Alternative in meeting the goal of establishing PCT in Silver King Creek. According to plaintiffs, defendants failed to disclose evidence of field experience and published studies proving that physical removal methods can be effective in the Sierra Nevada. (Pls.'

Mot. For Summ. J. and Injunctive Relief, 15:25-27.) Specifically, plaintiffs assert that a USFS project, using physical removal methods on the Upper Truckee River, will take only two seasons using four to five two-person crews to complete. (Id. at 17:6-8.) Moreover, according to plaintiffs, defendants failed to explain why physical removal would be unsuccessful in Silver King Creek when it has been successful in similar streams in the region. (Id. at 16:19-20.)

In response, defendants point out that the Agencies discussed the physical removal program on the Upper Truckee River in the EIR/EIS, and distinguished that program from this Project on Silver King Creek. (USFWS and USFS's Opp'n, 25:11-16.) According to defendants, unlike the successful program on the Upper Truckee River, the Physical Removal Alternative, here, will be ineffective because (1) the Project goal is to eradicate a hybridizing non-native species instead of controlling a competing non-native species, (2) Silver King Creek is a complex high-gradient system and not a shallow, low-gradient system, and (3) there are no barriers within the Project area except at either end to allow the Agencies to treat short sections like on the Upper Truckee River. (Id. at 25:17 to 26:7.) As to the Sequoia-Kings Canyon National Park project, also cited by plaintiffs, defendants emphasize that the USFWS' ROD addressed that project and contrasted the efforts there by noting that the streams that were successfully eradicated in the Canyon are short in length, small in width, have effective downstream barriers which prevent fish from re-invading and all but one stream are ephemeral; none of these conditions are present in Silver King Creek.

In support of their third NEPA claim that defendants failed to use accurate scientific data in the 2004 Plan, plaintiffs assert that the Agencies unjustifiably changed the recovery criteria from the 1985 Plan criteria. (Pls.' Mot. For Summ. J. and Injunctive Relief, 13:24-15:12 and 19:3-10.) Specifically, plaintiffs assert the change in the recovery criteria is unjustified because 2004 Plan did not explain why the recovery criteria changed from a "stable or increasing overwintering population of 500 or more adult fish," in the 1985 Plan, to a secure population with three or more age classes for five years, consisting of a minimum of 2,500 fish that are greater than seventy-five millimeters. (Id. at 18:16-21.) In addition, plaintiffs point out that the EIR/EIS classifies adult fish as individuals greater than 150 mm, and not 75 mm, thereby inaccurately identifying whether existing PCT populations in Silver King Creek meet the recovery criteria of the 2004 Plan. (Id. at 20:1-8.)

In response, defendants point out that plaintiffs offer no explanation for why the Agencies' recovery criteria is subject to review under NEPA. (USFWS and USFS's Opp'n, 27:5-9.) Still, the defendants contend that the Agencies developed the new criteria from peer reviewed literature. (Id. at 27:15-21.)

In support of their fourth NEPA claim that defendants failed to consider and disclose effects from the poisons, plaintiffs point to studies that connect rotenone to Parkinson's disease, evidence that past treatments have caused high-concentrations of rotenone to persist after the treatment period, and unintentional killings of fish downstream of the treatment area. (Pls.' Mot. For Summ. J. and Injunctive Relief, 21:6-27.) Plaintiffs also assert the EIR/EIS failed to disclose the potential toxic effects of cube resins contained with the rotenone formulations and that the poisons may be administered by use of gel or sand matrices.

In reply, defendants point to the EIR/EIS discussion of studies investigating the connection between rotenone and Parkinson's disease, which mention that those studies showed no cause and effect relationship between rotenone exposure and Parkinson's disease. (AR 318.) Additionally, defendants assert that the Project will not result in the persistence of rotenone or accidental fish kills because the Project includes a contingency plan, site safety plan, a site security plan, final implementation and neutralization plans in accordance with the Lahontan Region Water Quality Control Board's NPDES permit, and will employ improved monitoring methodologies that have greater precision for measuring potassium permanganate. (Id. at 29:17 to 30:21.) As to cube resins and the forms of treatment, defendants contend the EIR/EIS disclosed that the full extent of the potential toxicity of cube resins is unknown but that ultimately the Agencies believed, based on the relevant science, that the resins would not substantially affect the toxicity of the rotenone application, and contrary to plaintiffs' suggestion, the Agencies disclosed the potential use of gel and sand matrices to dispense the rotenone, which are not prohibited applications by the label.

Finally, in support of their claim that defendants failed to comply with the Wilderness Act, plaintiffs assert that the Project's use of a gasoline-powered auger does not qualify for an exception to the Act's prohibition against motorized equipment; that the Project elevates the goal of recreational angling over the goal of preserving wilderness character; and that the Agencies fail to prove that the Project is necessary to meet the Act's minimum requirements to administer wilderness. (Pls.' Mot. For Summ. J. and Injunctive Relief, 24:21-26.) Specifically, plaintiffs assert that the Act prohibits the Project's use of the motorized equipment because the Project is not restoring a species fundamental to the overall natural health of the ecosystem, and the Combined Physical Removal Alternative would be feasible without potentially killing endemic or native invertebrate species in Silver King Creek. (Id. at 26:1-20.)

Defendants respond, arguing that the Agencies met their burden of demonstrating that the use of motorized equipment was necessary to meet the goal of restoring PCT. (USFWS and USFS's Opp'n, 33:14-17.) Specifically, the Agencies determined that the use of a motorized auger at the neutralization site was the most effective method of applying potassium permanganate, compared to the drip system, and would minimize the human and ecological effects of the application. (Id. at 33:18-20.) In addition, the Agencies assert that, while the Combined Physical Removal Alternative would avoid the effect of chemical treatment, that alternative would be unsuccessful in reaching the conservation goal of the project. (Id. at 35:7-10.) Defendants point out that plaintiffs do not contest the proposition that recovery of the PCT is a conservation goal consistent with the purposes of the Act. (Id. at 33:8-17.)

STANDARD

A. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970).

When parties submit cross-motions for summary judgment, the court must review the evidence submitted in support of each cross-motion and consider each party's motion on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The court must examine each set of evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

In this case, the parties agree that there are no material facts in dispute. It is well-established that where, as here, plaintiffs seek judicial review under the APA, the scope of the review is confined to the administrative record compiled by the agency or agencies and presented to the court. In considering such cases, there are no disputed facts and no genuine issues of material fact precluding summary judgment. See e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

B. APA

Plaintiffs bring the instant challenges under NEPA and the Wilderness Act pursuant to the APA. Thereunder, the court may set aside a final agency action only where the action is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law." 5 U.S.C. § 706. Review under the APA is "searching and careful." Ocean Advocates v. United States Army Corps of Eng'rs, 361 F.3d 1108, 1118 (9th Cir. 2004). However, the court may not substitute its own judgment for that of the agency. Id. In short, the court must ensure that the agency has taken a hard look at the environmental consequences of its proposed action. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). As part of this inquiry, the court should ask "whether the [] decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Ocean Advocates, 361 F.3d at 1118. In addition, the court determines "whether the agency articulated a rational connection between the facts found and the choice made." Id. at 1118-19 (quoting Arizona Cattle Growers' Ass'n v. United States Fish and Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001)).

In The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008), the Ninth Circuit emphasized a court's proper role in reviewing agency action in an environmental case:*fn20 The court reaffirmed that the role of the court is necessarily at its most deferential when assessing the agency's consideration of technical matters. Id. at 993 (recognizing that the court is not to make "fine-grained judgments of [the science's] worth"). The court is to be "'most deferential'" when the agency is "'making predictions, within its [area of] special expertise, at the frontiers of science.'" Id. (citing Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003)). In that role, a reviewing court is not to entertain a "battle of the experts" when plaintiffs proffer expert testimony to set against the agency's professional judgment. Id. at 1000. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. Ultimately, the reviewing court must: look to the evidence the [the agency] has provided to support its conclusions, along with other materials in the record, to ensure the [the agency] has not, . . . 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 [an explanation that] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id. at 993 (internal quotations omitted).

As a "non-scientist," the court cannot impose bright-line rules on the agency regarding particular means that it must take in every case to show compliance with NEPA's or the Wilderness ., and orde[r] the agency to explain every possible scientific uncertainty." Id. at 988. However, the court in McNair ...


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