Case 4:20-cv-00020-DCB Document 29 Filed 12/03/20 Page 1 of 53
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`Brian Segee (Cal. Bar No. 200795)
`Center for Biological Diversity
`660 S. Figueroa Street, Suite 1000
`Los Angeles, CA 90017
`Tel: (805) 750-8852
`Email: bsegee@biologicaldiversity.org
`Pro Hac Vice Application
`
`Marc Fink (Minn. Bar No. 343407)
`Center for Biological Diversity
`209 East 7th Street
`Duluth, MN 55805
`Tel: (218) 464-0539
`Email: mfink@biologicaldiversity.org
`Pro Hac Vice Application
`
`Attorneys for Plaintiff
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`TUCSON DIVISION
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`
`v.
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`U.S. Forest Service; and U.S. Fish and
`Wildlife Service,
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`Defendants,
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`and
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`Spur Ranch Cattle Company, et al.
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`
`Defendant-Intervenors
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`First Amended Complaint for Declaratory and Injunctive Relief
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`Page 1
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`Center for Biological Diversity, a non-
`profit organization,
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`Plaintiff,
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`Case No.: 4:20-cv-0020-DCB
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`FIRST AMENDED COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
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`INTRODUCTION
`1. Plaintiff Center for Biological Diversity (“Center”) brings this action
`against the U.S. Forest Service (“USFS”) and U.S. Fish and Wildlife Service (“FWS”)
`(collectively, “the Agencies”) for violations of the Endangered Species Act (“ESA”)
`arising from USFS final agency actions authorizing domestic livestock grazing on 36
`grazing allotments within the upper Gila River watershed on the Apache-Sitgreaves and
`Gila National Forests, including the issuance of term grazing permits, allotment
`management plans (“AMPs”), and allotment annual operating instructions (“AOIs”), as
`well as the Forest Service’s failure to prevent unlawful livestock grazing on an additional
`4 allotments that have been purportedly closed to grazing.
`2.
` The aquatic and streamside riparian habitats of the upper Gila River
`watershed within the Apache-Sitgreaves and Gila National Forests are occupied by listed
`threatened and endangered species including the yellow-billed cuckoo, southwestern
`willow flycatcher, Chiricahua leopard frog, Gila chub, narrow-headed and northern
`Mexican garter snakes, spikedace, and loach minnow.
`3. Scientific study of the impacts of livestock grazing on aquatic and riparian
`habitats in the Southwest is extensive and universally shows severe and lasting negative
`impacts such that near complete exclusion of cattle is widely accepted as an essential
`cornerstone for preserving stream health, water quality and quantity, and endangered
`species habitat within grazed areas.
`4.
`For two decades, the Agencies have committed to the exclusion of cattle
`from riparian areas—typically through fencing—as a foundation for meeting their
`obligations under the Endangered Species Act to ensure that USFS’s grazing
`authorizations do not jeopardize the continued existence of endangered species, or result
`in the destruction or adverse modification of their designated critical habitat.
`Specifically, in carrying out their consultation duties pursuant to section 7 of the ESA for
`the individual grazing allotment authorizations challenged in this action, the Agencies
`have determined that the effects of domestic livestock grazing are not likely to adversely
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`impact endangered species dependent on aquatic and riparian habitat based largely on
`commitments to exclude this streamside habitat from cattle and to have USFS regularly
`monitor riparian areas to ensure that the fencing exclusions remain intact and effective.
`5.
`Plaintiff Center for Biological Diversity conducted on-the-ground
`assessments to determine if cattle are present within riparian areas excluded from cattle
`on grazing allotments in the Apache-Sitgreaves and Gila National Forests in 2017, 2018,
`and 2019. These assessments documented that the purported fencing exclusions were
`frequently in disrepair or simply nonexistent, resulting in widespread unauthorized cattle
`presence with associated damage to riparian areas and occupied or suitable endangered
`species habitat. The Center provided these assessments to USFS.
`6.
`The ESA places ongoing obligations on federal agencies to ensure that their
`actions do not jeopardize the continued existence of endangered species or adversely
`modify or destroy their designated critical habitat, including the duty to reinitiate section
`7 consultations in four circumstances. 50 C.F.R. § 402.16(a)(1)-(4). Agencies must
`reinitiate consultation, for example, “[i]f the amount or extent of taking specified in the
`incidental take statement is exceeded,” when “[n]ew information reveals effects of the
`action that may affect listed species or critical habitat in a manner or to an extent not
`previously considered,” or when “[t]he identified action is subsequently modified in a
`manner that causes an effect to the listed species or critical habitat that was not
`considered in the biological opinion.” Id. § 402.16(a)(1)-(3).
`7.
`The Agencies were required to reinitiate and complete consultation when
`presented with evidence documenting extensive cattle use and associated lack of USFS
`monitoring within the riparian streamside areas of specific allotments within the upper
`Gila River watershed in the Apache-Sitgreaves and Gila National Forests. The USFS’s
`failure in fact to exclude domestic livestock from occupied threatened and endangered
`species habitat, and designated critical habitat, or to take immediate corrective action to
`remedy these failures, undermines the Agencies’ conclusions regarding the impact of
`those specific grazing allotment authorizations on listed species and their designated
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`critical habitat, and specifically triggers the reinitiation thresholds at 50 C.F.R.
`§ 402.16(a).
`8.
`In addition, the Agencies were required to reinitiate and complete
`consultation due to the listing and designation of critical habitat for threatened or
`endangered species subsequent to the most recent section 7 consultations for the upper
`Gila River watershed allotments.
`9.
`Plaintiff provided sixty (60) days’ Notice of its Intent (“NOI”) to file this
`suit pursuant to the citizen suit provision of the ESA, 16 U.S.C. § 1540(g), by letter to the
`Agencies dated July 17, 2019.
`10. On October 16, 2019, the USFS Southwestern Regional Forester responded
`to Plaintiff’s NOI. The response does not resolve the ESA violations alleged in
`Plaintiff’s NOI. Accordingly, Plaintiff seeks declaratory and injunctive relief to enforce
`the ESA’s requirements with respect to USFS agency actions authorizing grazing on the
`specific allotments discussed further below and listed in Table 1 (organized by National
`Forest, and then by river or stream).
`11. On September 16, 2020, Plaintiff sent a supplemental NOI providing
`additional details regarding alleged ESA violations, including the addition of three
`allotments that were not included in the original NOI. The supplemental NOI also
`provided additional details regarding alleged ESA section 7(a)(1) violations. The
`Agencies have not responded to this supplemental NOI.
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`JURISDICTION AND VENUE
`12.
`This Court has jurisdiction over this action pursuant to 16 U.S.C.
`§ 1540(c),(g) (action arising under ESA citizen suit provision); 5 U.S.C. § 702 (APA
`review); and 28 U.S.C. § 1331 (federal question jurisdiction).
`13.
`The Court may grant the relief requested under the ESA, 16 U.S.C.
`§ 1540(g); the APA, 5 U.S.C. §§ 701-706; and 28 U.S.C. §§ 2201-2202 (declaratory and
`injunctive relief).
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`14.
`Plaintiff provided sixty (60) days’ NOI to file this suit pursuant to the
`citizen suit provision of the ESA, 16 U.S.C. § 1540(g), by letter to the Agencies dated
`July 17, 2019, and provided supplemental Notice by letter to the Agencies dated
`September 16, 2020 Defendants have not taken action to remedy their continuing ESA
`violations by the date of this complaint’s filing. Therefore, an actual controversy exists
`between the parties under 28 U.S.C. § 2201.
`15. Venue is proper in the United States District Court for the District of
`Arizona pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) because a
`substantial part of the events or omissions giving rise to the Center’s claims occurred in
`Greenlee and Graham Counties, which are within this District. Additionally, the Center’s
`primary office is located in Tucson, Arizona.
`PARTIES
`16. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit
`environmental organization dedicated to the protection of endangered species and wild
`places through science, policy, and environmental law. The Center is headquartered in
`Tucson, Arizona, with offices throughout the United States, including in California, the
`District of Columbia, Florida, Hawaiʻi, Minnesota, New Mexico, North Carolina,
`Oregon, and Washington. The Center has more than 81,000 members.
`17. The Center and its members have protectable interests in the conservation
`of imperiled species and their streamside riparian habitat, including the yellow-billed
`cuckoo, southwestern willow flycatcher, Chiricahua leopard frog, narrow-headed and
`northern Mexican garter snakes, Gila chub, spikedace, and loach minnow, and in the full
`and effective implementation of the Endangered Species Act.
`18. Plaintiffs’ members include individuals who regularly visit specific areas of
`the Apache-Sitgreaves and Gila National Forests on the upper Gila River watershed that
`are directly within, or impacted by, the individual grazing authorizations challenged in
`this case. Plaintiffs’ members can demonstrate consistent and longstanding use and
`enjoyment of the rivers and streams being degraded by unauthorized riparian grazing,
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`including the Blue River, Eagle Creek, and San Francisco River on the Apache-
`Sitgreaves National Forests in Arizona, and the Gila River Headwaters (West, Middle,
`and East Forks), Gila River, Tularosa River, and San Francisco River on the Gila
`National Forest in New Mexico, as well as areas within those rivers’ larger watershed
`that are impacted by unlawful grazing. Plaintiff has members who have concrete plans to
`return to these areas during the next year.
`19. Plaintiff’s members also specifically seek to observe or study the yellow-
`billed cuckoo, southwestern willow flycatcher, Chiricahua leopard frog, narrow-headed
`and northern Mexican garter snakes, Gila chub, spikedace, and loach minnow in their
`natural habitat in the upper Gila River watershed within the Apache-Sitgreaves and Gila
`National Forests, including the Blue River, Eagle Creek, and the San Francisco River in
`the Apache-Sitgreaves National Forests in Arizona, and the Gila River Headwaters
`(West, Middle, and East Forks), Gila River, Tularosa River, and San Francisco River in
`the Gila National Forest in New Mexico.
`20. Plaintiffs’ members and staff derive recreational, professional, scientific,
`educational, aesthetic, spiritual and other benefits from their use of the specific areas of
`the upper Gila River watershed within the Apache-Sitgreaves and Gila National Forests
`described above. These interests of Plaintiff’s members, have been, are being, and will
`continue to be adversely harmed by the Agencies’ failure to meet their procedural and
`substantive duties under section 7 of the ESA. Through the Agencies’ actions and failures
`to act, domestic livestock are being allowed to use streamside riparian areas, resulting in
`streambank trampling, soil compaction, removal of riparian vegetation, and deposition of
`cattle feces, resulting in water quality degradation, dewatering of streams, habitat
`destruction, and related adverse impacts to endangered species and other natural resource
`values, which in turn significantly and directly harms Plaintiff’s members. The injuries
`described are actual, concrete injuries presently suffered by Plaintiff and its members,
`and they will continue to occur unless this Court grants relief. The relief sought herein—
`an Order compelling the Agencies to reinitiate and complete section 7 consultations for
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`the challenged actions while taking immediate corrective actions to effectively exclude
`cattle from streamside and riparian areas and remedy the damage caused by those
`cattle—would redress those harms. Plaintiffs and their members have no other adequate
`remedy at law.
`21. Defendant UNITED STATES FOREST SERVICE is an agency within the
`Department of Agriculture. Like all federal agencies, the USFS must comply with all
`applicable requirements of the ESA.
`22. Defendant UNITED STATES FISH AND WILDLIFE SERVICE is the
`agency within the Department of the Interior that is charged with implementing the ESA,
`and shares responsibility for reinitiation and completion of consultation under section 7.
`LEGAL BACKGROUND
`23.
`The Endangered Species Act, 16 U.S.C. §§ 1531-1544, is “the most
`comprehensive legislation for the preservation of endangered species ever enacted by any
`nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Its fundamental purposes
`are “to provide a means whereby the ecosystems upon which endangered species and
`threatened species depend may be conserved [and] to provide a program for the
`conservation of such endangered species and threatened species . . . .” 16 U.S.C.
`§ 1531(b).
`24.
`To achieve these objectives, the ESA directs the Secretary of the Interior,
`through FWS, to determine which species of plants and animals are “threatened” and
`“endangered” and place them on the list of protected species. Id. § 1533. An
`“endangered” or “threatened” species is one “in danger of extinction throughout all or a
`significant portion of its range,” or “likely to become endangered in the near future
`throughout all or a significant portion of its range,” respectively. Id. § 1532(6), (20).
`25. Once a species is listed, the ESA provides a variety of procedural and
`substantive protections to ensure not only the species’ continued survival, but its ultimate
`recovery, including the designation of critical habitat, the preparation and implementation
`of recovery plans, the prohibition against the “taking” of listed species, and the
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`requirement for interagency consultation. Id. §§ 1533(a)(3), 1533(f), 1536, 1538.
`26.
`The ESA recognizes that federal agencies such as USFS have a critical role
`to play in meeting these statutory purposes. The ESA establishes that it is “the policy of
`Congress that all Federal departments and agencies shall seek to conserve endangered
`species and threatened species and shall utilize their authorities in furtherance of the
`purposes” of the ESA. Id. § 1531(c)(1).
`27.
`To implement this policy, section 7(a)(1) of the ESA requires that “Federal
`agencies shall, in consultation with and with the assistance of [FWS], utilize their
`authorities in furtherance of the purposes of this Act by carrying out programs for the
`conservation of endangered species and threatened species.” Id. § 1536(a)(1). The ESA
`defines “conserve” and “conservation” to mean “the use of all methods and procedures
`which are necessary to bring any endangered species or threatened species to the point at
`which the measure provided pursuant to this chapter are no longer necessary.” 16 U.S.C.
`§ 1532(3).
`28.
`Section 7(a)(2) of the ESA requires that “[e]ach Federal agency shall, in
`consultation with . . . [FWS], [e]nsure that any action authorized, funded, or carried out
`by such agency . . . is not likely to jeopardize the continued existence of any endangered
`species or threatened species or result in the destruction or adverse modification of
`[critical habitat].” Id. § 1536(a)(2).
`29.
`FWS’ regulations define an agency “action” to mean “all activities or
`programs of any kind authorized, funded, or carried out, in whole or in part, by Federal
`agencies.” 50 C.F.R. § 402.02.
`30.
`Section 7(a)(2) of the ESA contains both procedural and substantive
`mandates. Substantively, it requires that all federal agencies avoid actions that: (1)
`jeopardize the continued existence of listed species; or (2) destroy or adversely modify
`their designated critical habitat. Procedurally, to ensure compliance with the substantive
`standards, the federal agency taking action and FWS take part in a cooperative analysis of
`potential impacts to listed species and their designated critical habitat known as the
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`consultation process. 16 U.S.C. § 1536(a)(2). The consultation process has been
`described as the “heart of the ESA.” W. Watersheds Project v. Kraayenbrink, 632 F.3d
`472, 495 (9th Cir. 2011).
`31.
`If listed or proposed species may be present in the project area, the action
`agency must prepare a “biological assessment” to determine whether the listed species
`may be affected by the proposed action. 50 C.F.R. § 402.12.
`32.
`If the action agency determines that its proposed action may affect any
`listed species or critical habitat, the agency must normally engage in “formal
`consultation” with FWS. Id. § 402.14. However, the agency need not initiate formal
`consultation if, as a result of the preparation of a biological assessment or as a result of
`informal consultation with FWS, the agency determines, with the written concurrence of
`FWS, that the proposed action is not likely to adversely affect any listed species or
`critical habitat. Id. §§ 402.13, 402.14(b)(1).
`33.
`Through the formal section 7 consultation process, FWS prepares a
`“biological opinion” as to whether the action is likely to jeopardize the species or destroy
`or adversely modify critical habitat and, if so, suggests “reasonable and prudent
`alternatives” to avoid that result. Id. § 402.14; 16 U.S.C. § 1536(b)(3)(A). If the
`biological opinion concludes that the action is not likely to jeopardize the continued
`existence of a listed species, and will not result in the destruction or adverse modification
`of critical habitat, FWS must provide an “incidental take statement,” specifying the
`amount or extent of such incidental taking on the species and any “reasonable and
`prudent measures” that FWS considers necessary or appropriate to minimize such impact,
`and setting forth the “terms and conditions” that must be complied with by the action
`agency to implement those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).
`34. Agencies must reinitiate consultation on agency actions over which the
`action agency retains, or is authorized to exercise, discretionary involvement or control,
`if: (a) the amount or extent of taking specified in the incidental take statement is
`exceeded; (b) new information reveals effects of the action that may affect listed species
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`or critical habitat in a manner or to an extent not previously considered; (c) the identified
`action is subsequently modified in a manner that causes an effect to the listed species or
`critical habitat that was not considered in the biological opinion or written concurrence;
`or (d) a new species is listed or critical habitat designated that may be affected by the
`identified action. 50 C.F.R. § 402.16(a)(1)-(4).
`35. After the initiation or reinitiation of section 7 consultation, the action
`agency is prohibited from making any irreversible or irretrievable commitment of
`resources with respect to the agency action. 16 U.S.C. § 1536(d).
`36. During the consultation process, federal agencies must “use the best
`scientific and commercial data available.” Id. § 1536(a)(2); 50 CFR § 402.14(d).
`BACKGROUND
`A.
`The National Forests of the Upper Gila River Watershed
`37.
`The Gila River originates in southwestern New Mexico and flows westward
`across Arizona to its confluence with the Colorado River north of Yuma (although much
`of the lower watershed is commonly dry). The upper portion of the watershed—defined
`as all of the land drained by that portion of the river and its tributaries east of Coolidge
`Dam—is largely comprised of federal lands, including National Forests (thirty-seven
`percent) and public lands administered by the Bureau of Land Management (twenty
`percent).
`38.
`The Apache-Sitgreaves and Gila National Forests administer the large
`majority of national forest lands within the upper Gila River watershed. Within the Gila
`National Forest, the West Fork, Middle Fork, and the East Fork Headwaters of the Gila
`River begin the river’s journey down from the heights of the rugged Mogollon
`Mountains, as well as the Black Range along the continental divide. These headwaters
`join together to form the mainstem of the Gila River within the Gila Wilderness. After
`emerging from the Gila Wilderness near the town of Glenwood, New Mexico, the river
`then flows south and west across the Arizona state line.
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`39.
`In Arizona, the Blue River drains a large portion of the Blue Range within
`the Apache National Forest as it flows southward, eventually joining the waters of the
`San Francisco River at the southern end of the range. Although the San Francisco River
`has its headwaters in Arizona, much of it flows through the Gila National Forest in New
`Mexico before flowing back into Arizona. These combined waters then flow into the
`larger Gila River.
`40.
`Together, the upper Gila River, the San Francisco River, the Blue River,
`and their tributaries define an expansive undeveloped area that includes the first
`designated Forest Service wilderness (the Gila) and the last remaining Forest Service
`primitive area (the Blue Range). In addition to its high concentration of endangered
`species, the upper Gila River watershed and adjacent areas contain one of the world’s
`largest ponderosa pine forests (and one of the first areas to successfully reintroduce fire to
`the landscape), which sustains abundant wildlife including wild turkeys, eagles, deer,
`pronghorn, elk, bighorn sheep, javelina, cougars, and black bears, as well as the
`reintroduced population of Mexican gray wolves.
`41.
`In addition to the pervasive impacts of domestic cattle grazing, persistent
`drought, dewatering, global warming, invasive species, and other impacts have in recent
`years taken an increasing toll on southwestern ecosystems, resulting in the recent listing
`of numerous threatened or endangered species dependent on southwestern riparian areas.
`Reflecting these impacts, and the looming threat of a major diversion project, the Gila
`was named the nation’s most endangered river in 2019.
`
`
`B.
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`Public Lands Grazing is a Primary Threat to Endangered Species
`Dependent on Southwestern Streams
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`42. Due in part to their undeveloped nature and remoteness, the national forests
`of the upper Gila River watershed are refugia for many listed threatened and endangered
`species, including the yellow-billed cuckoo, southwestern willow flycatcher, Chiricahua
`leopard frog, narrow-headed and northern Mexican garter snakes, Gila chub, spikedace,
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`loach minnow, and more. However, land use within the national forests often negatively
`impacts these species. Like the large majority of public lands within the arid west, the
`Gila and Apache-Sitgreaves National Forests routinely authorize domestic livestock
`grazing that poses significant environmental risks to arid Southwestern ecosystems,
`particularly to streamside and riparian areas but also including adjacent upland areas.
`43.
`Scientific study on the impacts of livestock grazing on aquatic and riparian
`habitats in the Southwest is extensive and universally shows severe and lasting negative
`impacts such that near complete exclusion of cattle is widely accepted as a minimum
`baseline management strategy in preserving stream health. Livestock grazing has both
`direct and indirect effects on streams. Livestock directly affect riparian habitat through
`removal of riparian vegetation. Loss of riparian vegetation in turn raises water
`temperatures, reduces bank stability, and eliminates an important structural component of
`the stream environment that contributes to the formation of pools. Grazing physically
`alters streambanks through trampling and shearing, leading to bank erosion. In
`combination, loss of riparian vegetation and bank erosion can alter channel morphology,
`including increased erosion and deposition, downcutting and an increased width/depth
`ratio, all of which lead to a loss of pool habitats and shallow side and backwater habitats
`used by several of the listed species that are the subject of this lawsuit.
`44.
`Livestock also indirectly impact aquatic and riparian habitats by
`compacting soils, altering soil chemistry, and reducing vegetation cover in upland areas,
`leading to increased severity of floods and sediment loading, lower water tables, and
`altered channel morphology.
`45. One consequence of these impacts to watersheds is a reduction in the
`quantity and quality of pool habitat. A lowered water table, for example, results in direct
`loss of pool habitats, simply because water is not available to form pools. Increased
`erosion and sedimentation results in filling of pools with sediments. Channel incision and
`increased flood severity both can scour out pools, reducing habitat complexity and
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`resulting in shallow, uniform streambeds, all of which harms the species at issue in this
`suit.
`
`46. Because of the severity and broad array of these impacts, livestock grazing
`is one of the most prevalent causes of the federal listing of species in this region,
`including the following eight threatened and endangered species, all of which are
`specifically dependent on aquatic and streamside riparian habitat: Yellow-billed cuckoo
`(western DPS): listed as threatened October 3, 2014 (79 Fed. Reg. 59,992); proposed
`critical habitat November 12, 2014 (79 Fed. Reg. 67,154); Southwestern willow
`flycatcher: listed as endangered February 27, 1995 (60 Fed. Reg. 10,694); final critical
`habitat January 3, 2013 (78 Fed. Reg. 344); Gila chub: listed as endangered and final
`critical habitat November 2, 2005 (70 Fed. Reg. 66,664); Loach minnow and spikedace:
`uplisted to endangered and final critical habitat February 23, 2012 (77 Fed. Reg. 10,810);
`Chiricahua leopard frog: listed as threatened June 13, 2002 (67 Fed. Reg. 40,657,
`40,665); final critical habitat March 30, 2012 (77 Fed. Reg. 16,324); Northern Mexican
`garter snake and narrow-headed garter snake: listed as threatened July 8, 2014 (79
`Fed. Reg. 38,678); proposed critical habitat July 10, 2013 (78 Fed. Reg. 41,550).
`
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`C.
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`Two Decades Ago, USFS Committed to Remove Cattle from
`Southwestern Streams
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`47.
`Prior to the late 1990s, USFS routinely authorized cattle grazing on
`Southwestern streams and riparian areas despite the mounting evidence of its devastating
`impacts on those areas and the imperiled species that depend upon them.
`48.
`In Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., the Center sued
`USFS for its failure to fulfill its Endangered Species Act section 7 consultation duties
`with respect to the impacts of 158 grazing allotments on southwestern willow flycatcher,
`loach minnow, and spikedace. No. CV-97-666-TUC-JMR (D. Ariz. Oct. 23, 1997).
`49.
` Under a resultant April 1998 settlement agreement, USFS agreed to
`immediately remove cattle from ninety-nine percent of riparian habitats within the
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`allotments at issue until FWS issued a biological opinion pursuant to section 7 of the
`ESA.
`
`50.
`These obligations catalyzed USFS, in cooperation with FWS, to develop
`“Grazing Guidance Criteria,” to guide ESA section 7 consultations regarding grazing and
`to apply those criteria to all 962 grazing allotments within USFS Region 3 (Southwestern
`Region.). See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., Nos. CV-97-666-
`TUC-JMR, CV-97-2562-PHX-SMM, 2001 U.S. Dist. LEXIS 25027, *6-8 (D. Ariz. Mar.
`30, 2001) (emphasis added).
`51.
`Since that time, grazing exclusions, as well as annual monitoring to ensure
`the effectiveness of those exclusions, have served as a cornerstone for USFS ESA
`compliance in relation to its grazing program and individual decisions authorizing
`grazing on individual grazing allotments.
`52.
`36 of the 40 allotments at issue in this suit have been considered in specific
`consultations described below. The remaining 4 allotments are considered vacant by
`USFS. In accordance with the Grazing Criteria and substantive ESA obligations to avoid
`jeopardizing the continued existence of listed species, or destroy or adversely modify
`designated critical habitat, the consultations at issue in this suit have relied upon USFS
`commitments to exclude livestock from riparian areas, ensured through consistent USFS
`monitoring, to justify conclusions of no effect or not likely to adversely affect
`determinations in relation to aquatic or riparian dependent endangered species.
`
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`The Center Conducted Assessments Documenting Widespread and
`Significant Streamside Damage from Cattle on Apache-Sitgreaves
`and Gila National Forest Grazing Allotments
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`D.
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`53.
`Plaintiff Center for Biological Diversity conducted an on-the-ground
`assessment in 2017 to determine if cattle are present within riparian areas excluded from
`grazing on 23 permitted allotments, and 4 purportedly closed or vacant allotments, in the
`Gila National Forest, and to document the extent and intensity of impacts from cattle
`grazing where present. In total, the Center surveyed riparian areas along approximately
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`106 stream miles on the San Francisco, Tularosa, and Gila Rivers, and portions of major
`tributaries including Big Dry Creek, Dry Blue Creek, Frieborn Canyon, Pace Creek,
`Negrito Creek, Mogollon Creek, Taylor Creek, and Bea