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Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 1 of 42
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`David A. Bahr (D.D.C. Bar # OR0001)
`1035 ½ Monroe St
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`Eugene, OR 97402
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`(541) 566-6439
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`davebahr@mindspring.com
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`Kristine Akland (Montana Bar # 13787) (pro hac vice application pending)
`317 E Spruce St, P.O. Box 7274
`Missoula, MT 59807
`(406) 544-9863
`aklandlawfirm@gmail.com
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`John Persell (Utah Bar # 17298) (pro hac vice application pending)
`309 N Holland St
`Portland, OR 97217
`(503) 896-6472
`jpersell@westernwatersheds.org
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`Attorneys for Plaintiffs
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Case No. 1:20-cv-860
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`WESTERN WATERSHEDS PROJECT
`126 S Main Street, Suite B
`P.O. Box 1770
`Hailey, ID 83333,
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`ALLIANCE FOR THE WILD ROCKIES
`P.O. Box 505
`Helena, MT 59624,
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`and YELLOWSTONE TO UINTAS
`CONNECTION
`P.O. Box 280
`Mendon, UT 84325,
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` Plaintiffs,
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`v.
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`COMPLAINT - 1
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 2 of 42
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`DAVID BERNHARDT,
`in his official capacity as
`Secretary, U.S. Department of the Interior,
`1849 C Street NW
`Washington, DC 20240,
`
`UNITED STATES FISH AND WILDLIFE
`SERVICE,
`1849 C Street NW
`Washington, DC 20240,
`
`and UNITED STATES FOREST SERVICE,
`1400 Independence Avenue SW
`Washington, DC 20250,
`
` Defendants.
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`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`
`INTRODUCTION
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`1.
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`The Greater Yellowstone Ecosystem (GYE) is one of the only places in the Lower
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`48 United States that still supports a full complement of native wildlife, including moose, elk,
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`pronghorn, wolves, and grizzly bears. The region’s forests, meadows, high plains, and
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`mountainous terrain comprise one of Earth’s largest temperate-zone ecosystems still existing in a
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`mostly-intact state.
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`2.
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`The Upper Green River area, on the southern end of the GYE, is often compared
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`to Yellowstone National Park’s world-renowned Lamar Valley in terms of biodiversity richness.
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`The Upper Green River area lies at an important crossroads and connection point for many
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`species, including grizzly bears, as they forage for food, migrate, and disperse into surrounding
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`areas. The area also contains at least 27 stream miles of native Colorado River cutthroat trout
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`habitat, leks for greater sage-grouse, and habitat for the Kendall Warm Springs dace, a small
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`endemic fish.
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`
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`COMPLAINT - 2
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`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 3 of 42
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`3.
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`These ancestral lands of the Kohogue (Green River Shoshone) people are vital to
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`the recovery and survival of the grizzly bear and the Kendall Warm Springs dace, both species
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`protected under the Endangered Species Act (ESA). The GYE provides one of just five
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`remaining isolated populations of grizzly bears in the Lower 48, while the Kendall Warm
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`Springs are the only known habitat for the imperiled dace.
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`4.
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`Unfortunately, recent actions by federal agencies increase threats to these species
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`and to the integrity of the GYE. On October 11, 2019, the United States Forest Service (USFS)
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`authorized domestic livestock grazing permits across 170,643 acres of suitable grizzly bear
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`habitat within the GYE, and authorized cattle-herding through the Kendall Warm Springs
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`exclosure. Through the Upper Green River Area Rangeland Project (UGRA Project) on the
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`Bridger-Teton National Forest, USFS permits 8,772 cow/calf pairs and 47 horses to graze six
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`allotments in the area between June 14 and October 15 for the next ten years. UGRA Project
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`Record of Decision at 5.
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`5.
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`Because USFS recognized domestic livestock grazing on these lands would
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`adversely affect grizzly bears, the agency consulted with the United States Fish and Wildlife
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`Service (FWS) regarding the UGRA Project’s impacts. On April 29, 2019, FWS produced a
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`Biological Opinion for the Effects to the Grizzly Bear (Ursus arctos horribilis) from the Upper
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`Green River Area Rangeland Project (2019 Biological Opinion), with the Reference Number
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`06E13000-2019-F-0012.
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`6.
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`In its 2019 Biological Opinion, FWS concluded the UGRA Project would not
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`jeopardize the continued existence of the grizzly bear in the GYE. Further, FWS included an
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`Incidental Take Statement with the Biological Opinion exempting from civil and criminal
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`COMPLAINT - 3
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 4 of 42
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`liability under the ESA the killing of up to 72 grizzly bears over the next ten years in association
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`with the UGRA Project. 2019 Biological Opinion at 46 and 48.
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`7.
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`USFS denied that the UGRA Project would adversely affect the Kendall Warm
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`Springs dace. FWS concurred and no formal consultation for that species occurred.
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`8.
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`This lawsuit challenges FWS’s unlawful 2019 Biological Opinion and Incidental
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`Take Statement regarding the UGRA Project’s effects on grizzly bears for violation of section 7
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`of the ESA. Specifically, FWS violated section 7 of the ESA, 16 U.S.C. § 1536, by failing to
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`consider the best scientific and commercial data available regarding grizzly bear population
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`dynamics and recovery in the GYE, ignoring important aspects of the problem, arbitrarily relying
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`on ineffective conservation measures that lack certainty and specificity, and failing to rationally
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`justify its exemption from ESA liability the anticipated killing of 72 grizzly bears.
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`9.
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`USFS violated section 7 of the ESA by unlawfully relying on the FWS’s flawed
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`2019 Biological Opinion and Incidental Take Statement to satisfy its own duty to ensure its
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`actions do not threaten the continued existence of grizzly bears in the GYE.
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`10.
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`USFS also violated section 9 of the ESA, 16 U.S.C. § 1538, which prohibits
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`“take” of ESA-protected species. “Take” is defined by the ESA to include “harm.” 16 U.S.C.
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`§ 1532(19). USFS admits in its Final Environmental Impact Statement for the UGRA Project
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`(UGRA FEIS) that the herding of cattle through the Kendall Warm Springs exclosure could
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`“cause dace to temporarily switch habitat, elevate turbidity, and alter submergent vegetative
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`cover,” all of which constitute harm and an illegal take of the dace. UGRA FEIS at 289.
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`11.
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`USFS and FWS both violated section 7 of the ESA, 16 U.S.C. § 1538, by failing
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`to engage in formal consultation regarding the effects of the UGRA Project on the Kendall
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`Warm Springs dace.
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`
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`COMPLAINT - 4
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 5 of 42
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`12.
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`Plaintiffs Western Watersheds Project, Alliance for the Wild Rockies, and
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`Yellowstone to Uintas Connection ask this Court to vacate and remand the challenged agency
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`actions in the interest of protecting the recovery trajectory of the GYE’s grizzly bears and the
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`survival of the Kendall Warm Springs dace as required by law and as intended by Congress.
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`JURISDICTION AND VENUE
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`13.
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`This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331
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`(federal question) and 16 U.S.C. § 1540(c), (g) (ESA), and may issue a declaratory judgment and
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`relief pursuant to 28 U.S.C. § 2201-02 and 16 U.S.C. § 1540 (ESA). Plaintiffs bring this action
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`pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, and the ESA citizen suit
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`provision, 16 U.S.C. § 1540(g), both of which waive Defendants’ sovereign immunity.
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`14.
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`Plaintiffs provided Defendants with notice of Plaintiffs’ intent to sue on January
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`24, 2020, as required by 16 U.S.C. § 1540(g)(2).
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`15.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because federal
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`Defendants reside in this District.
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`PARTIES
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`16.
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`Plaintiff WESTERN WATERSHEDS PROJECT is a non-profit conservation
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`organization founded in 1993 with the mission of protecting and restoring western watersheds
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`and wildlife through education, public policy initiatives, and legal advocacy. Headquartered in
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`Hailey, Idaho, Western Watersheds Projects has over 12,000 members and supporters.
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`17.
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`Plaintiff ALLIANCE FOR THE WILD ROCKIES is a non-profit organization
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`dedicated to the protection and preservation of native biodiversity of the Northern Rockies
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`Bioregion, its native plant, fish, and animal life, and its naturally functioning ecosystems. Its
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`
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`COMPLAINT - 5
`
`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 6 of 42
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`registered office is in Montana. Alliance for the Wild Rockies has over 2,000 individual
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`members.
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`18.
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`Plaintiff YELLOWSTONE TO UINTAS CONNECTION is a non-profit entity
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`working to restore fish and wildlife habitat, including the regionally significant wildlife corridor
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`connecting the GYE to the Uintas Mountains and Southern Rockies, through the application of
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`science, education, and advocacy. Its registered office is in Utah.
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`19.
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`Plaintiffs’ members and staff use public lands in the GYE, including lands with
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`the Upper Green River Area Rangeland Project area, for professional and recreational pursuits,
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`including hiking, fishing, camping, backpacking, hunting, horseback riding, wildlife viewing
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`(including bear watching), and aesthetic enjoyment. Plaintiffs’ members and staff also use these
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`same lands for scientific study. Plaintiffs’ members and/or staff have viewed and have planned
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`concrete efforts to view grizzly bears and signs of bear presence in the wild in the GYE,
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`including the Upper Green River Area Rangeland Project area. For this reason, FWS’s and
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`USFS’s challenged actions represent a direct threat to interests of all Plaintiffs. Accordingly, the
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`legal violations alleged in this complaint cause direct injury to the aesthetic, conservation,
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`recreational, scientific, educational, professional, and wildlife preservation interests of the
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`Plaintiffs and/or Plaintiffs’ members.
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`20.
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`Plaintiffs’ aesthetic, conservation, recreational, scientific, educational,
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`professional, and wildlife preservation interests have been, are being, and unless their requested
`
`relief is granted, will continue to be adversely and irreparably injured by Defendants’ failure to
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`comply with federal law. These are actual and concrete injuries, traceable to Defendants’
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`conduct that would be redressed by the requested relief. Plaintiffs have no adequate remedy at
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`law.
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`
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`COMPLAINT - 6
`
`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 7 of 42
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`21.
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`Defendant DAVID BERNHARDT is the United States Secretary of the Interior.
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`In that capacity, Secretary Bernhardt has supervisory responsibility over the United States Fish
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`and Wildlife Service. Secretary Bernhardt is sued in his official capacity.
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`22.
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`Defendant UNITED STATES FISH AND WILDLIFE SERVICE is an agency of
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`the United States within the Department of the Interior charged with administering and enforcing
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`the Endangered Species Act. FWS is responsible for preparing the challenged 2019 Biological
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`Opinion and Incidental Take Statement regarding the Upper Green River Area Rangeland Project
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`as part of its obligations under the Endangered Species Act.
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`23.
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`Defendant UNITED STATES FOREST SERVICE is an agency of the United
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`States within the Department of Agriculture charged with managing the Bridger-Teton National
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`Forest and other units of the National Forest System according to federal statutes and
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`regulations. USFS oversees livestock grazing on the Bridger-Teton National Forest as well as the
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`management of other Forest uses and resources. USFS authorized the challenged Upper Green
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`River Area Rangeland Project.
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`THE ENDANGERED SPECIES ACT
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`24.
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`The Endangered Species Act, 16 U.S.C. § 1531 et seq., is “the most
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`comprehensive legislation for the preservation of endangered species ever enacted by any
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`nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress enacted the ESA to
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`“provide a program for the conservation of . . . endangered species and threatened species” and
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`“to provide a means whereby ecosystems upon which endangered species and threatened species
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`depend may be conserved.” 16 U.S.C. § 1531(b).
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`25.
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`In order to receive the full protections of the ESA, the Secretary of the Interior
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`must list a species as “endangered” or “threatened” pursuant to section 4 of the Act. See id. §
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`
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`COMPLAINT - 7
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`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 8 of 42
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`1533. The ESA defines “endangered species” as “any species which is in danger of extinction
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`throughout all or a significant portion of its range.” Id. § 1532(6). Under the ESA, a “threatened
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`species” is “any species which is likely to become an endangered species within the foreseeable
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`future throughout all or a significant portion of its range.” Id. § 1532(20).
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`26.
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`Section 7 of the ESA commands that all federal agencies “shall, in consultation
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`with and with the assistance of” the relevant Secretary or representative wildlife agency (FWS
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`for terrestrial species such as the grizzly bear) “utilize their authorities in furtherance of the
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`purposes of [the ESA] by carrying out programs for the conservation of endangered species and
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`threatened species,” id. § 1536(a)(1), and “insure that any action authorized, funded, or carried
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`out by [any agency] is not likely to jeopardize the continued existence of any endangered species
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`or threatened species,” id. § 1536(a)(2). Regulations implementing the consultation requirement
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`direct that formal consultation is required before a federal agency may take “any action [that]
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`may affect listed species.” 50 C.F.R. § 402.14(a) (2015).
`
`27.
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`Section 7(a)(2) of the ESA requires every federal agency to “use the best
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`scientific and commercial data available” in assessing the effects of a proposed action on
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`protected species during this consultation process. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. §
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`402.14(d).
`
`
`
`28.
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`Through formal consultation, FWS must “[r]eview all relevant information” and
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`evaluate both the current status of, as well as the effects of the proposed action on, the listed
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`species. 50 C.F.R. § 402.14(g)(1), (2), and (3). Formal consultation results in the issuance of a
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`biological opinion by the wildlife agency, in this case FWS. See 16 U.S.C. §§ 1536(a)(2) and
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`(b)(3)(A). Under ESA regulations, a “biological opinion shall include . . . [a] summary of the
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`information on which the information is based,” a “detailed discussion of the effects of the action
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`
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`COMPLAINT - 8
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 9 of 42
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`on listed species,” and the “Service’s opinion on whether the action is likely to jeopardize the
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`continued existence of a listed species . . . .” 50 C.F.R. § 402.14(h)(1), (2), and (3).
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`29.
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`Under the operative regulations in place at the time FWS produced the 2019
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`Biological Opinion, “effects of the action” to be evaluated include “direct and indirect effects of
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`an action on the species or critical habitat, together with the effects of other activities that are
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`interrelated or interdependent with that action, that will be added to the environmental baseline.”
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`50 C.F.R. § 402.02. Effects need not be certain or adverse in order to be included in a biological
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`opinion; instead, “petitioners need to show only that an effect on listed species or critical habitat
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`is plausible.” Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1122 (9th
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`Cir. 2012).
`
`30.
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`The environmental baseline for a project “includes the past and present impacts of
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`all Federal, State, or private actions and other human activities in the action area that have
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`already undergone formal or early section 7 consultation, and the impacts of State or private
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`actions which are contemporaneous with the consultation in process.” 50 C.F.R. § 402.02.
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`31.
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`By regulatory definition, the “action area” for section 7 consultation purposes
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`must include “all areas to be affected directly or indirectly by the Federal action and not merely
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`the immediate area involved in the action.” 50 C.F.R. § 402.02.
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`32.
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`In addition, the Secretary must specify in a biological opinion the impact of any
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`authorized incidental take on the listed species. Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d
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`121, 127 (D.D.C. 2001). “The impact of an authorized incidental take cannot be determined or
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`analyzed in a vacuum, but must necessarily be addressed in the context of other incidental take
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`authorized by FWS.” Id.
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`
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`COMPLAINT - 9
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`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 10 of 42
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`33.
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`If the consulted wildlife agency relies upon mitigation or conservation measures
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`to reach a conclusion of “no jeopardy,” such “measures must be reasonably specific, certain to
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`occur, and capable of implementation.” Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp.
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`2d 1139, 1152 (D. Ariz. 2002) (citing Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987)
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`(abrogated on other grounds)).
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`34.
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`Even if FWS concludes in the biological opinion that the agency’s proposed
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`action is not likely to jeopardize a listed species, FWS still must specify the amount or extent of
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`any incidental “take” of the species that is anticipated to occur as a result of the action. 16 U.S.C.
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`§ 1536(b)(4); 50 C.F.R. §§ 402.14(i)(1)(i).
`
`35.
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`“Take,” under the ESA, “means to harass, harm, pursue, hunt, shoot wound, kill,
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`trap, capture, or collect, or any attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
`
`“Harm” is defined as “an act which actually kills or injures wildlife.” 50 C.F.R. § 17.3. This
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`includes habitat degradation that “actually kills or injures wildlife by significantly impairing
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`essential behavioral patterns, including breeding, feeding, or sheltering.” Id. Any unauthorized
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`“take” of an endangered or threatened species is illegal under the ESA and subject to civil and
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`criminal liability. 16 U.S.C. § 1538(a)(1)(B).
`
`36.
`
`FWS must specify quantities of exempted incidental take of endangered or
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`threatened wildlife in an “incidental take statement” (ITS). 50 C.F.R. § 402.14(i). An ITS
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`authorizes the action agency, if in compliance with the statement’s “reasonable and prudent
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`measures” and “terms and conditions,” to “take” listed species without facing otherwise
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`applicable ESA civil or criminal liability. 16 U.S.C. § 1536(o)(2); 50 C.F.R. § 402.14(i)(1)(ii)
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`and (iv); id. § 402.14(i)(5).
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`COMPLAINT - 10
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 11 of 42
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`37.
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`A biological opinion produced through section 7 formal consultation is a final
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`agency action subject to judicial review under the arbitrary and capricious standard. See Mayo v.
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`Jarvis, 177 F. Supp. 3d 91, 105 (D.D.C. 2016) (citation omitted). Under this standard, agency
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`action must be set aside if it is “arbitrary, capricious, and abuse of discretion, or otherwise not in
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`accordance with the law.” 5 U.S.C. § 706(2)(A). An “agency must examine the relevant data and
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`articulate a satisfactory explanation for its action including a ‘rational connection between the
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`facts found and the choice made.’” Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
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`463 U.S. 29, 42 (1983) (citation omitted).
`
`38.
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`An agency’s decision is arbitrary and capricious if the agency (1) entirely failed to
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`consider an important aspect of the problem, (2) offered an explanation for its decision that runs
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`counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
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`difference in view or the product of agency expertise, (3) failed to base its decision on
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`consideration of the relevant factors, or (4) made a clear error of judgment. See id.
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`39.
`
`The D.C. Circuit has held that a biological opinion “must be upheld as long as the
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`[Fish and Wildlife Service] ‘considered the relevant factors and articulated a rational connection
`
`between the facts found and the choice made.’” Am. Rivers v. Fed. Energy Regulatory Comm’n,
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`895 F.3d 32, 35 (D.C.C. 2018) (citations omitted).
`
`40.
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`Even after FWS’s procedural requirements of a consultation are complete,
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`however, the ultimate duty to ensure that an activity does not jeopardize a listed species lies with
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`the action agency, in this case USFS. An action agency’s reliance on an inadequate, incomplete,
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`or flawed biological opinion to satisfy its ESA section 7 duties is unlawful under the ESA. See
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`16 U.S.C. § 1536(a)(2).
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`COMPLAINT - 11
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 12 of 42
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`FACTUAL BACKGROUND
`
`A.
`
`41.
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`Grizzly Bears and the Greater Yellowstone Ecosystem
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`There were once more than 50,000 grizzly bears across the western portion of
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`what is now the Lower 48 United States. Following the arrival of Europeans to North America,
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`the species’ population plummeted to less than 1,000 individuals in the Lower 48 due to hunting
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`for sport, government-sponsored predator eradication efforts to support the livestock industry,
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`and wide-scale habitat loss and conversion. See generally Revised Grizzly Bear Recovery Plan,
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`p. ii (USFWS 1993), available at https://www.fws.gov/mountain-
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`prairie/es/species/mammals/grizzly/Grizzly_bear_recovery_plan.pdf (last visited March 31,
`
`2020).
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`42.
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`In 1975, FWS listed the grizzly bear in the “48 conterminous States” as
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`“threatened” under the ESA due to its dangerously low numbers and on-going threats to the
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`species’ survival. 40 Fed. Reg. 31736 (July 28, 1975).
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`43.
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`Since the grizzly bear received federal protection, its numbers have increased to
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`about 2,000 individuals in the Lower 48, spread among five isolated population areas that
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`constitute less than two percent of its former range south of the Canadian border. One of those
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`areas is the GYE. See 2019 Biological Opinion at 13-14.
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`44.
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`The GYE spans a relatively intact region of temperate forests, meadows, high
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`plains, and mountains spread across northwest Wyoming and overlapping into the neighboring
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`states of Idaho and Montana. According to the National Park Service, five national forests, three
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`national wildlife refuges, and other public, private, and tribal lands with Yellowstone and Grand
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`Teton national parks at their core comprise this world-renowned ecosystem. See Greater
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`Yellowstone Ecosystem, National Park Service (last updated Dec. 12, 2019), available at
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`COMPLAINT - 12
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`

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`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 13 of 42
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`https://www.nps.gov/yell/learn/nature/greater-yellowstone-ecosystem.htm (last visited March 31,
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`2020).
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`45.
`
`Because of the complex land management structure in the GYE and the wide
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`array of federal, state, and tribal authorities interested in the recovery of the region’s grizzly bear
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`population, the Department of the Interior formed the Interagency Grizzly Bear Study Team
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`(IGBST) in 1973 for purposes of long-term monitoring and research. See Interagency Grizzly
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`Bear Study Team webpage, available at https://www.usgs.gov/science/interagency-grizzly-bear-
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`study-team?qt-science_center_objects=0#qt-science_center_objects (last visited March 31, 2020)
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`46.
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`The IGBST now consists of FWS, USFS, the U.S. Geological Survey, the
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`National Park Service, the Eastern Shoshone and Northern Arapaho Tribal Fish and Game
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`Department, and the state wildlife agencies of Wyoming, Idaho, and Montana. Id.
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`47.
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`Grizzly bears in the GYE have large home ranges: 81 square miles for females
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`and 309 square miles for males. 2019 Biological Opinion at 12 (citing Bjornlie et al. 2014).
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`According to FWS, “[l]oss and fragmentation of habitat is particularly relevant to the survival of
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`grizzly bears.” Id. Recently, the Montana District Court recognized the importance of habitat
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`connectivity: “The Service does not have unbridled discretion to draw boundaries around every
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`potentially healthy population of a listed species without considering how that boundary will
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`affect the members of the species either side of it.” Crow Indian Tribe v. United States, 343 F.
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`Supp. 3d 999, 1013 (D. Mont. 2018).
`
`48.
`
`Grizzly bears reproduce very slowly; most females do not give birth until the age
`
`of five years, and litter sizes are small. 2019 Biological Opinion at 12. Because cubs stay with
`
`the mother for up to two years, there are lengthy periods between litters. Id.
`
`
`
`COMPLAINT - 13
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 14 of 42
`
`49.
`
`According to FWS, “providing maximum protection for females is essential to
`
`recovery” of grizzly bears, because females and dependent cubs are key to the species’ survival.
`
`Revised Grizzly Bear Recovery Plan, Part One, p. 5 (USFWS 1993).
`
`50.
`
`FWS states that “[t]he two primary challenges in grizzly bear conservation are the
`
`reduction of human caused mortality and the conservation of remaining habitat.” 2019 Biological
`
`Opinion at 13 (citing USFWS 1993). Grizzly bear persistence is “negatively associated with
`
`human and livestock densities.” Id. at 27 (citing Mattson and Merrill 2002).
`
`51.
`
`Between 1997 and 2017, over 70 percent of all grizzly bear mortalities in the
`
`GYE stemmed from anthropogenic causes, as opposed to natural causes. 2019 Biological
`
`Opinion at 20. Of these, at least 86 resulted from conflicts with livestock. Id.
`
`52.
`
`In the GYE, FWS and partner agencies manage grizzly bears and their habitat by
`
`combining the “Primary Conservation Area” with “adjacent areas where occupancy by grizzly
`
`bears is anticipated and acceptable.” 2016 Final Conservation Strategy, p. 1 (IGBST 2016),
`
`available at http://igbconline.org/wp-content/uploads/2016/03/161216_Final-Conservation-
`
`Strategy_signed.pdf (last visited March 31, 2020). Combined, this forms the “Demographic
`
`Monitoring Area” (DMA) within which recovery criteria for grizzly bears are assessed. Id., p. 4.
`
`53.
`
`As of 2017, the Greater Yellowstone Ecosystem supports an estimated 718
`
`individual grizzly bears. Yellowstone Grizzly Bear Investigations 2017, Annual Report of the
`
`Interagency Grizzly Bear Study Team, p. 2 (IGBST 2017), available at https://prd-wret.s3-us-
`
`west-
`
`2.amazonaws.com/assets/palladium/production/atoms/files/2017_AnnualReport_Final%28508%
`
`29.pdf (last visited March 31, 2020).
`
`
`
`COMPLAINT - 14
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 15 of 42
`
`54.
`
`Based on this estimated population size, FWS follows mortality thresholds for
`
`three cohorts of grizzly bears: independent females, dependent young, and independent males.
`
`The mortality thresholds for these three cohorts across the DMA are 9 percent, 9 percent, and 20
`
`percent respectively. Grizzly Bear Recovery Plan Supplement: Revised Demographic Recovery
`
`Criteria for the Yellowstone Ecosystem, p. 6 (USFWS 2017), available at
`
`https://ecos.fws.gov/docs/recovery_plan/GYE_RP_Supplement_2017_final.pdf (last visited
`
`March 31, 2020).
`
`55.
`
`Under FWS’s revised Demographic Recovery Criterion 3 for the GYE grizzly
`
`bear population, “[i]f mortality limits are exceeded for any sex/age class for three consecutive
`
`years and any annual population estimate falls below 612 . . . the IGBST will produce a Biology
`
`and Monitoring Review to inform the appropriate management response.” Id., p. 5.
`
`56.
`
`Despite its relatively pristine qualities, the GYE is experiencing significant effects
`
`of global climate change, which is altering the distribution and availability of food sources for
`
`native wildlife, including grizzly bears.
`
`57. Whitebark pine seeds are an important autumn food source for grizzly bears. 2019
`
`Biological Opinion at 11. However, roughly 70% of mature cone-producing whitebark pine trees
`
`were lost in the GYE between 2000 and 2010 to a climate-driven outbreak of mountain pine
`
`beetles.
`
`58.
`
`In the 2019 Biological Opinion, FWS states that “[i]n years of poor whitebark
`
`pine seed production, grizzly bears shifted their diets and consumed more meat.” 2019
`
`Biological Opinion at 11. FWS goes on to state “[w]e have information suggesting that
`
`whitebark pine has been reduced in the GYE, since 2002 and, therefore, may not be a major food
`
`source as previously concluded [sic].” Id.
`
`
`
`COMPLAINT - 15
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 16 of 42
`
`B.
`
`59.
`
`Grizzly Bears Conflicts in the UGRA Project Area
`
`USFS authorized the UGRA Project on October 11, 2019. See UGRA Project
`
`Record of Decision. The UGRA Project area includes 170,643 acres on six grazing allotments:
`
`Badger Creek, Beaver-Twin Creeks, Noble Pastures, Roaring Fork, Upper Green River, and
`
`Wagon Creek. These allotments lie across the headwaters of the Green River and Gros Ventre
`
`River, and include portions of the Gros Ventre and Bridger Wilderness areas. UGRA FEIS at 2.
`
`60.
`
`All of the allotments are within occupied grizzly bear habitat and within the
`
`Demographic Monitoring Area for GYE grizzly bears designated by the IGBST. 2019 Biological
`
`Opinion at 27.
`
`61.
`
`Despite the UGRA Project allotments comprising just a sliver of the entire GYE,
`
`grizzly bear mortality in the allotments constituted nearly 13% of all mortality across the GYE in
`
`2018. 2019 Biological Opinion at 31.
`
`62.
`
`The IGBST Annual Reports provide data regarding numbers of conflicts on
`
`various grazing allotments by year, going back to 1995. See IGBST Annual Reports, available at
`
`https://www.usgs.gov/centers/norock/science/igbst-annual-reports?qt-
`
`science_center_objects=1#qt-science_center_objects (last visited March 31, 2020).
`
`63. When compiled and graphed, the IGBST Annual Report data show the sharp
`
`uptick in conflicts coincident with terminal decline in whitebark pines:
`
`
`
`COMPLAINT - 16
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 17 of 42
`
`
`
`Figure 1, generated by Plaintiffs using IGBST Annual Report data.
`
`64.
`
`In Figure 1, the map in panel A shows all allotments in the GYE, including
`
`allotments that have been retired (dark green), allotments without conflicts (light green),
`
`allotments with a few conflicts (beige), and allotments with chronic high levels of conflict (red).
`
`The map shows that the Upper Green River area (Upper Green Complex) sits astride
`
`connectivity between potential and recently occupied habitat in the Wind River Range farther
`
`south and east and the remainder of grizzly bear distribution elsewhere.
`
`65.
`
`The number of conflicts in the Upper Green River area is disproportionately
`
`higher than any other single allotment or complex of grazing allotments in the GYE.
`
`66.
`
`The data also show that when an allotment is retired, conflicts are eliminated.
`
`This was done with the Blackrock-Spread Creek allotments immediately to the northwest of the
`
`Upper Green River area where high levels of chronic conflict were driven by the same
`
`
`
`COMPLAINT - 17
`
`

`

`Case 1:20-cv-00860-APM Document 1 Filed 03/31/20 Page 18 of 42
`
`configuration of landscape conditions and uses as the Upper Green River. See 2019 Biological
`
`Opinion at 42.
`
`67.
`
`In Figure 1, the map in panel B shows livestock-related conflicts in the GYE (red
`
`dots) relative to patterns of loss of whitebark pine. The data shows that conflicts on the Upper
`
`Green Complex sit squarely in the middle of an extensive area where there were heavy losses of
`
`whitebark pine.
`
`68.
`
`In Figure 1, IGBST data in panel D shows the dramatic jump in conflicts
`
`specifically on the Upper Green River area allotments juxtaposed with the trend in loss of
`
`whitebark pines.
`
`69.
`
`The Upper Green River Complex allotments have been consistently characterized
`
`as having “chronic conflicts.” See 2018 IGBST Annual Report, Appendix A, pp. 104-08,
`
`available at https://prd-wret.s3.us-west-
`
`2.amazonaws.com/assets/palladium/production/atoms/files/2018_AnnualReport_FINAL%28508
`
`%29.pdf (last visited March 31, 2020).
`
`70.
`
`Ebinger et al. (2015), Mattson (1997), and Schwartz et al. (2013)1 show that
`
`either consumption of meat varies inversely with availability of pine seeds (Mattson) or has
`
`increased since the decline of whitebark pines, presumably as a compensatory shift in diet
`
`(Ebinger and Schwartz).
`
`
`1 Michael R. Ebinger et al., Detecting grizzly bear use of ungulate carcasses using
`global positioning system telemetry and activity data, DOI 10.1007/s00442-016-3594-5
`Oecologia (2015); David Mattson, Wilderness-Dependent Wildlife, 3(4) International Journal of
`Wilderness 34 (1997); Charles C. Schwartz et al., Body and Diet Composition of Sympatric
`Black and Grizzly Bears in the Greater Yellowstone Ec

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