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`Case 3:21-cv-00508-LRH-CLB Document1 Filed 12/09/21 Page 1 of 47
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`Julie Cavanaugh-Bill (NV Bar No. 11533)
`Cavanaugh-Bill Law Offices, LLC
`401 Railroad Street, Suite 307
`Elko, NV 89801
`Tel: (775) 753-4357
`Fax: (775) 753-4360
`julie@cblawoffices.org
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`Jennifer Rose Schwartz (OSB No. 072978), application for Pro Hac Viceto befiled
`WildEarth Guardians
`P.O. Box 13086
`Portland, OR 97213
`(503) 780-8281
`jschwartz@wildearthguardians.org
`Will comply with LR IA 11-2 within 14 days
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`Talasi B. Brooks (ISB No. 9712), application for Pro Hac Viceto befiled
`Western Watersheds Project
`P.O. Box 2863
`Boise ID 83701
`Tel: (208) 336-9077
`tbrooks@westernwatersheds.org
`Will comply with LR IA 11-2 within 14 days
`
`Attorneysfor Plaintiffs
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`
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`Case No.:
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`))))))))))))))))))
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`WILDEARTH GUARDIANSand
`WESTERN WATERSHEDS PROJECT,
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`Plaintiffs,
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`vs.
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`U.S. DEPARTMENT OF AGRICULTURE
`ANIMAL AND PLANT HEALTH
`INSPECTION SERVICE WILDLIFE
`SERVICES, U.S. FOREST SERVICE,and
`BUREAU OF LAND MANAGEMENT,
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`Defendants.
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`COMPLAINT- 1
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`Case 3:21-cv-00508-LRH-CLB Document 1 Filed 12/09/21 Page 2 of 47
`Case 3:21-cv-00508-LRH-CLB Document1 Filed 12/09/21 Page 2 of 47
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`INTRODUCTION
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`1.
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`Every year, our nation’s most majestic animals, including wolves, bears, coyotes,
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`bobcats and mountain lions, are poisoned, trapped and gunned down by Wildlife Services, an
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`agency within the United States Department of Agriculture (“USDA”), Animal and Plant Health
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`Inspection Service (hereinafter “APHIS”or “Wildlife Services”). Funded with millions of
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`taxpayer dollars, and without modern scientific support, this program uses cruel and often
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`archaic methodsto capture andkill wildlife from their native ecosystems, largely at the behest of
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`livestock producers. Across Nevada, Wildlife Services uses fixed-wing aircraft and helicopters to
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`aerially shoot coyotes; body-gripping traps, neck snares and leghold traps to kill mountain lions,
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`black bears, bobcats, badgers, coyotes, skunks, hares, ground squirrels, beaver and foxes; gas
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`cartridges and poisons to exterminate coyotes in their dens; M-44 devices (also known as
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`“sodium cyanide bombs”) to kill canines like foxes and coyotes; and other poisons to annually
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`eliminate thousandsofnative birds like ravens. Wildlife Services’ indiscriminate killing methods
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`havealso resulted in scores of unintentional animal deaths and injuries nationwide, including
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`federally-protected endangered and threatened species and even family pets.
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`2.
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`Plaintiffs WildEarth Guardians (“Guardians”) and Western Watersheds Project
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`(“WWP?”) challenge Nevada (NV)-Wildlife Services’ July 2020 Final Environmental
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`Assessment: Predator Damage Managementin Nevada (‘Final 2020 EA”or “2020 Nevada
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`PDM EA”) and associated Decision Notice/Finding of No Significant Impact (“DN/FONSI’).
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`These decision documents purport to authorize NV-Wildlife Services to continue, as well as
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`expand,its program ofaerial gunning, poisoning,trapping, and otherkilling of coyotes,
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`mountain lions, ravens, and a host of other wildlife across Nevada withoutfully disclosing or
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`adequately analyzing environmental impacts,in violation of the National Environmental Policy
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`COMPLAINT- 2
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`Case 3:21-cv-00508-LRH-CLB Document 1 Filed 12/09/21 Page 3 of 47
`Case 3:21-cv-00508-LRH-CLB Document1 Filed 12/09/21 Page 3 of 47
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`Act (“NEPA”), 42 U.S.C. § 4321 et seq., and its implementing regulations, 40 C.F.R. §§ 1500-
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`1508,! issued by the Council on Environmental Quality (“CEQ”).
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`3.
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`Even though it devotes millions of dollars and thousands of person-hours each
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`year to aerial gunning, poisoning, shooting, trapping, and otherwise killing thousands of animals
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`across Nevada, and even thoughthere is a growing bodyofscience contesting the efficacy of
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`these actions and pointing out their adverse environmental impacts, NV-Wildlife Services has
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`unlawfully refused to prepare a comprehensive Environmental Impact Statement (“EIS”)
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`disclosing the direct, indirect, and cumulative effects of its Nevada “predator damage
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`management”activities, as required by NEPA.
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`4.
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`A full EIS is required in light of the potentially significant environmental effects
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`of NV-Wildlife Services’ statewide predator damage management program (“PDM”), including
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`the decision to allow predator control activities to resume and potentially expand within
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`congressionally designated Wilderness Areas and agency-designated Wilderness Study Areas.
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`As discussed infra J 75, pursuant to the settlement agreement reached in WildEarth Guardiansv.
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`U.S. Dep’t ofAgric., APHIS, No. 2:12-cv-00716-MMD-PAL (ECF No. 67-1, filed October 5,
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`2016), Wildlife Services ceased predator control activities in Wilderness Areas and Wilderness
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`Study Areas until adopting the 2020 DN/FONSIand issuing the 2021 Annual WorkPlans
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`challenged herein.
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`5.
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`NV-Wildlife Services’ killing of native wildlife in designated Wildernesses for
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`the stated purpose of protecting private agricultural interests(7.e., preventing or reducing future
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`' All citations are to the 1978 Council on Environmental Quality (“CEQ”) regulations, 40 C.F.R.
`Part 1500, which were in effect at the time Wildlife Services issued the 2020 Nevada PDM EA
`and DN/FONSIchallenged herein and are the CEQ regulations that these decisional documents
`purport to follow. On September 14, 2020, the Trump Administration issued a final rule revising
`the CEQ regulations. See 85 Fed. Reg. 43304 (July 16, 2020) (Update to the Regulations
`Implementing the Procedural Provisions of the NEPA,Final Rule).
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`COMPLAINT- 3
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`losses of commercial livestock), with the approval of Defendant U.S. Bureau of Land
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`Management(‘the Bureau” or “BLM”’’) through the Nevada BLM 2021 Annual Work Plan and
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`the Bureau’s associated Decision Record/FONSI and Minimum Requirements Decision Guide,
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`also violates the Wilderness Act, 16 U.S.C. §§ 1131-1136, by sanctioning an impermissible
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`“commercial enterprise” within designated Wilderness Areas, id. § 1133(c), without
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`demonstrating that lethal PDM is either necessary for a valid “wilderness purpose,” id. §
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`1133(d)(5), or necessary for preventing serious losses of domestic livestock, and by offending
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`the Act’s mandate to preserve the untrammeled and “natural conditions” that are a part of the
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`““wilderness character” of the applicable designated Wildernesses, id. §§ 1131, 1133. Defendants
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`Wildlife Services and the Bureau have similarly violated Nevada’s Wilderness enabling
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`legislation because lethal control of wildlife in Bureau-managed Wildernesses for the stated
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`purpose of protecting commercial livestock is outside the scope of permissible wildlife
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`managementactivities under The Lincoln County Conservation, Recreation, and Development
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`Act of 2004 (Pub. L. No. 108-424) (“Lincoln County Conservation Act’) and The White Pine
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`County Conservation, Recreation, and Development Act, or Pam White Wilderness Act, of 2006
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`(Pub. L. No. 109-432) (“White Pine County Conservation Act”).
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`6.
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`Plaintiffs bring related claims against Defendants U.S. Forest Service and the
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`Bureau for authorizing NV-Wildlife Services to annually kill native wildlife on federal public
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`lands, including within ecologically significant and specially designated areas like Wildernesses
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`and Wilderness Study Areas, through Annual Work Plans. The Annual Work Plans provide no
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`public disclosure of the efficacy or local environmental impacts of Wildlife Services’ activities
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`and do not demonstrate consistency with federal land management requirements.’ By approving
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`2 The Bureau’s April 2021 Decision Record/FONSI and Determination of NEPA Adequacy for
`BLM Adoption ofActivities Proposed and Analyzed in BLM-Administered Designated
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`COMPLAINT- 4
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`NV-Wildlife Services’ wildlife killing on these federal public lands without legally adequate
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`site-specific environmental analyses, the Bureau and Forest Service violate NEPA.
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`7.
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`NV-Wildlife Services’ annual killing of native predators, including coyotes and
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`thousands of ravens, to purportedly “benefit” sage grouse is also unlawful because it exceedsthe
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`agency’s statutory authority under the Animal Damage Control Act, which only allows Wildlife
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`Services to take actions deemed “necessary” to control “injurious animal species.” 7 U.S.C. §
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`426. The 2020 Nevada PDM EA and DN/FONSIfail to establish that ravens and coyotes are
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`depressing or otherwise injuring populations of sage-grouse and are thus “injurious,” and hence
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`Wildlife Services lacks the statutory authority to undertake the killing of native wildlife for this
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`stated purpose.
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`8.
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`Accordingly, Plaintiffs request that this Court reverse, vacate, and set aside the
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`2020 Nevada PDM EA and DN/FONSI and the 2021 Forest Service and BLM Annual Work
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`Plans. Plaintiffs further request that this Court enjoin NV-Wildlife Services from conducting its
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`PDMactivities on the affected federal public lands unless and until Defendants have fully
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`complied with federal law.
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`JURISDICTION AND VENUE
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`9.
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`This Court has jurisdiction over Plaintiffs’ claims herein pursuant to 28 U.S.C. §
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`1331 (federal question jurisdiction), 28 U.S.C. § 1346(a)(2) (an agency of the United States as
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`the defendant), and 5 U.S.C. §§ 701-706 (the Administrative Procedure Act, or “APA”). There
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`now exists between the parties an actual, justiciable controversy within the meaning ofthe
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`Declaratory Judgment Act, 28 U.S.C. § 2201.
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`Wilderness and Wilderness Study Areas in the Environmental Assessment: Predator Damage
`Management in Nevada similarly fails to provide the requisite public disclosure andsite-specific
`analysis of the full scope of PDM activities that BLM authorized under the Nevada BLM 2021
`Annual WorkPlan for the applicable BLM Districts in Nevada.
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`COMPLAINT- 5
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`10.
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`The requested declaratory relief is authorized by 28 U.S.C. § 2201(a). The
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`requested injunctive relief is authorized by 28 U.S.C. § 2202. An awardofcosts, attorneys’ fees,
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`and other expensesis authorized, should Plaintiffs prevail, by the Equal Access to Justice Act
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`(“EAJA”), 28 U.S.C. § 2412.
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`11.|Venueis properin this judicialdistrict pursuant to 28 U.S.C. § 1391(e) because a
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`substantial part of the events or omissions giving rise to the claims herein occurred within this
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`district, Plaintiffs have members whoreside in this district, and this case includes a challenge to
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`Defendants’ activities in Nevada.
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`12.
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`This action is properly assigned to the Northern Division of this Court because a
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`significant part of Defendants’ actions challenged by Plaintiffs herein occurs in that Division.
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`PARTIES
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`13.
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`Plaintiff WILDEARTH GUARDIANSis a non-profit conservation organization
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`dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of the
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`American West. Guardians is headquartered in Santa Fe, New Mexico and has more than
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`190,000 membersand supporters across the West. Many of Guardians’ memberslive, work, and
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`recreate in areas affected by Wildlife Services’ activities in the State of Nevada.
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`organization with over 12,000 members and supporters and is dedicated to protecting and
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`conserving the public lands and natural resources of watersheds in the American West. WWP,as
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`an organization and on behalfof its members, is concerned with and active in seeking to protect
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`and improve wildlife and predator populations, natural resources, and ecological values of
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`watersheds throughout the West and in Nevada. WWP is headquartered in Hailey, Idaho, and has
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`additional staff and offices in other Western states.
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`COMPLAINT- 6
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`15.
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`Plaintiffs have a long history of working to protect and restore native wildlife
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`species across the West. Guardians operates a wildlife program with campaigns focused on
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`native carnivore protection and restoration as well as reigning in the controversial, cruel, and
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`destructive practices of Wildlife Services, including the agency’s use of poisoning, trapping, and
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`aerial gunning methods. WWP’s mission includes protecting and restoring western watersheds
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`and wildlife through education, public policy initiatives, and legal advocacy, and WWP has been
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`successful at challenging predator control and other initiatives harming native carnivores
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`throughout the West. Plaintiffs also actively participate in the public NEPAprocess for Wildlife
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`Services’ PDM programsandactivities in Nevada and otherstates nationwide. Plaintiffs
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`regularly comment on Wildlife Services’ activities and educate the public on the agency’s killing
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`of wildlife.
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`16.
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`Plaintiffs’ staff, members, and supporters are dedicated to ensuring that Wildlife
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`Services complies with all applicable federal laws. Wildlife Services’ wildlife killing program in
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`Nevada, along with its associated 2020 Nevada PDM EA and DN/FONSI,adversely affect
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`Plaintiffs’ interests in Nevada’s wildlife—including coyotes, mountain lions, bobcats, black
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`bears, gray wolves, ravens, and other species—that could intentionally or unintentionally be
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`killed by Wildlife Services.
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`17.
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`Plaintiffs’ members and supporters live and recreate in or near areas in Nevada
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`where the implementation of Wildlife Services’ wildlife killing program occurs or may occur
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`under the challenged agency decisions—including federally-designated Wildernesses and
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`Wilderness Study Areas. Plaintiffs’ members and supporters engagein activities including
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`hiking, observing wildlife, and other pursuits for health, recreational, scientific, spiritual,
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`educational, aesthetic, professional, and other purposes. They enjoy observing, attempting to
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`COMPLAINT- 7
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`observe, photographing, and studying wildlife, including signs of those species’ presence in
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`these areas. The opportunity to possibly view wildlife or their signs is of significant interest and
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`value to Plaintiffs’ members and supporters, and it increases their use and enjoyment of public
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`lands and ecosystems in Nevada. Plaintiffs’ members and supporters have regularly engaged in
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`these activities in the past, and they intend to continue to do so in the upcoming months.
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`18.
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`Plaintiffs’ members and supporters are concerned about the impacts of carnivore
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`removal on carnivore populations, prey populations, non-target species, and their ecosystems.
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`They are also concerned about the impacts of poisoning birds on bird populations, non-target
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`species, and their ecosystems. They have strong interests in enjoying and experiencing the
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`profound cultural, spiritual, recreational, and ecological benefits of Wildernesses and Wilderness
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`Study Areasin their natural, untrammeled state, where robust populations of native carnivores
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`can carry out their essential roles in balancing ecosystems, free of unnecessary persecution by
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`humans.Finally, they are also concerned about the toxicants and traps used by Wildlife Services
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`in Nevada, which place them and their companion animals at risk. Plaintiffs’ members and
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`supporters often walk or engage in outdoor recreation in areas where they, their loved ones,
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`and/or their companion animals may beat risk due to M-44s, traps, and other harmful toxicants
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`and devices introduced to the landscape by Wildlife Services.
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`19.
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`Plaintiffs’ members and supporters also have a procedural interest in ensuring that
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`Wildlife Services’ activities comply with all applicable federal statutes and regulations,
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`Guardians has worked to reform Wildlife Services’ activities throughout the United States,
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`including in Nevada. Plaintiffs and their members and supporters have an interest in preventing
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`Wildlife Services from being involvedin lethal wildlife damage management,particularly
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`COMPLAINT- 8
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`21.=Therelief Plaintiffs seek in this Complaint would redress the injuries of their
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`predator control, and have an interest in promoting the use of more effective and proactive non-
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`lethal alternatives that foster communities’ coexistence with wildlife.
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`20.
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`‘Theinterests of Plaintiffs’ members and supporters have been, and will continue
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`to be, adversely affected and aggrieved by the Defendant agencies’ failure to comply with NEPA
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`and its implementing regulations, the Bureau and Wildlife Services’ failure to comply with the
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`Wilderness Act in approving lethal predator control activities in designated Wildernesses, and by
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`Wildlife Services’ activities that are ultra vires of the ADCA.Theseare actual, concrete, and
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`particularized injuries caused by Defendants’ violations of law, as set forth herein.
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`members and supporters. Therelief Plaintiffs request, if granted, would prevent Wildlife
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`Services from engaging in PDMactivities unless and until it complies with federal law.
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`Plaintiffs’ requestedrelief, if granted, could also reduce the amountoflethal predator control and
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`other wildlife killing conducted in Nevada. In particular, State agencies, local municipalities, and
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`private livestock producers cannot completely replace Wildlife Services’ activities as authorized
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`through the 2020 Nevada PDM EA and DN/FONSIbecause they do not have the equipmentor
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`trained wildlife-killing personnel utilized by Wildlife Services.
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`22.
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` Insum,Plaintiffs’ interests, and those of their members and supporters, have
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`been, are being, and—unless this Court grants the requested relief—will continue to be harmed
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`by Defendants’ actions and inactions challenged in this Complaint. If this Court issues the relief
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`requested, the harm to Plaintiffs’ interests, and those of their members and supporters, will be
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`redressed.
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`23.
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`Defendant USDA APHIS WILDLIFE SERVICESis an agency or instrumentality
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`of the United States, within the USDA, whose responsible for carrying out “predator damage
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`COMPLAINT- 9
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`control” and wildlife killings in Nevada and nationwide. Wildlife Services receives federal and
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`cooperator funding to undertake wildlife damage managementactivities in Nevada, including for
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`the protection of private commercial interests such as livestock grazing.
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`24.
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`Defendant U.S. FOREST SERVICEis an agency of the United States charged
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`with managing certain federal lands in Nevada according to federal statutes and regulations. The
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`Forest Service authorizes Wildlife Services to operate on lands it manages through Annual Work
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`Plans.
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`25.
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`DefendantBUREAU OF LAND MANAGEMENTisan agency of the United
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`States charged with managing certain federal lands in Nevada according to federal statutes and
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`regulations. The Bureau authorizes Wildlife Services to operate on lands it manages through
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`Annual Work Plans.
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`LEGAL FRAMEWORK
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`I. Animal Damage Control Act
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`26. Wildlife Services drawsits statutory mandate from the Animal Damage Control
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`Act of 1931. 7 U.S.C. § 426. Asoriginally written, Section 426 reads:
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`The Secretary of Agriculture is authorized and directed to conduct such investigations,
`experiments, and tests as he may deem necessary in order to determine, demonstrate, and
`promulgate the best methods of eradication, suppression, or bringing under control on
`national forests and other areas of the public domain as well as on State, Territory, or
`privately owned lands of mountain lions, wolves, coyotes, bobcats, prairie dogs, gophers,
`ground squirrels, jack rabbits, and other animals injuriousto agriculture, horticulture,
`forestry, animal husbandry, wild game animals, fur-bearing animals, and birds, and for
`the protection of stock and other domestic animals through the suppression of rabies and
`tularemia in predatory or other wild animals; and to conduct campaignsfor the
`destruction or control of such animals: Provided, That in carrying out the provisions of
`this section the Secretary of Agriculture may cooperate with States, individuals, and
`public and private agencies, organizations, andinstitutions.
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`7 U.S.C. § 426 (1931).
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`27.
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`As amendedin 2001, Section 426 nowreads:
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`COMPLAINT - 10
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`The Secretary of Agriculture may conduct a program of wildlife services with respect to
`injurious animal species and take any action the Secretary considers necessary in
`conducting the program. The Secretary shall administer the program in a manner
`consistent with all of the wildlife services authorities in effect on the day before October
`28, 2000.
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`7 U.S.C. § 426 (2001).
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`28.|Upon information and belief, Wildlife Services has never promulgated regulations
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`implementing or interpreting this authority. Nonetheless, Wildlife Services is subject to
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`regulations promulgated by the Secretary of Agriculture under 7 U.S.C. Subtitle A and by
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`APHIS under 7 U.S.C. Subtitle B Part 300.
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`29.—‘Incarrying outits activities, Wildlife Services must comply with all other
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`applicable federal laws, including thoselisted below.
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`II. National Environmental Policy Act
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`30.
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`The National Environmental Policy Act (“NEPA”)is our“basic national charter
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`for protection of the environment.” 40 C.F.R. § 1500.1(a). NEPA’s twin aimsare (1) to ensure
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`that agencies consider every significant aspect of the environmental impact of a proposed action
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`and (2) to inform the public that the agency has considered environmental concernsin its
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`decision-making process. Kern v. U.S. Bureau ofLand Mgmt., 284 F.3d 1062, 1066 (9th Cir.
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`2002).
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`31.
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`Moreover, “the NEPA processis intended to help public officials make decisions
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`that are based on understanding of [sic] environmental consequences, and take actions that
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`protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c). The CEQ regulations
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`“provide the direction to achieve this purpose.” /d. To that end, “NEPA procedures must insure
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`[sic] that environmental informationis available to public officials and citizens before decisions
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`are made and before actions are taken.” Jd. § 1500.1(b). This “information must be of high
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`quality,” as “accurate scientific analysis, expert agency comments, and public scrutiny are
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`essential to implementing NEPA.” Jd.
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`32.|Under NEPA,a federal agency mustprepare an EISforall “major Federal actions
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`significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The
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`phrase “human environment”is “interpreted comprehensively to include the natural and physical
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`environmentandthe relationship of people with that environment.” 40 C.F.R. § 1508.14.
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`33.|To determine whether an action may be “‘significant”—triggering the requirement
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`to prepare an EIS—the agency mayfirst prepare an Environmental Assessment (“EA”). Jd. §
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`1501.4(b). Significance determinations are governed by CEQ regulations, which require agencies
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`to consider both the context of the action and the intensity of the environmental impacts. Jd. §
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`1508.27.
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`34.
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`“Intensity” requires the agency to consider several factors, including potential
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`effects on public health or safety, id. § 1508.27(b)(2); any “unique characteristics of the
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`geographic area,” including proximity to specially designated lands,id. § 1508.27(b)(3); effects
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`that are “likely to be highly controversial,” id. § 1508.27(b)(4); effects that are “highly uncertain
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`or involve unique or unknown risks,” id. § 1508.27(b)(5); the potential for “cumulatively
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`significant impacts,” id. § 1508.27(b)(7); and the potential for adverse effects to species listed
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`under the Endangered Species Act (“ESA”) (hereinafter “federally listed species”) or ESA-
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`designatedcritical habitat, id. § 1508.27(b)(9). These intensity factors may individually or
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`collectively be sufficient to require an EIS. See Blue Mountains Biodiversity Project v.
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`Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998).
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`35.
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`Ifthe agency determinesthatits action is not significant, and therefore that an EIS
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`is not necessary, the agency must prepare a Finding of No Significant Impact (“FONSI”). Jd. §
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`1501.4(e). A FONSIis a documentthat briefly explains why the proposed action “will not have a
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`significant effect on the human environment.” Jd. § 1508.13.
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`36.|The environmental analysis, whether in an EA or an EIS, must disclose and
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`37.|Moreover, NEPA requires federal agencies, whether in an EA or an EIS, to take a
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`analyze the direct, indirect, and cumulative effects of the proposed action on the environment. Jd.
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`§ 1502.16. Direct effects are “caused by the action and occurat the same time and place,”
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`whereasindirect effects are “caused by the action andarelater in time or farther removedin
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`distance, but are still reasonably foreseeable.” Jd. § 1508.8. Cumulative effects are “the impact
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`on the environment which results from the incremental impact of the action when addedto other
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`past, present, and reasonably foreseeable future actions.”Jd. § 1508.7. An agency cannot avoid
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`finding that a proposed action may besignificant “by terming an action temporary or by breakin
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`it down into small componentparts.” Jd. § 1508.27(b)(7).
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`“hard look”at the potential environmental consequences of a proposed action. Kern, 284 F.3d at
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`1066. To satisfy NEPA’s hard look requirement, an agency must include quantified and detailed
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`information, such as site-specific data, in its evaluation of potential environmental impacts.
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`Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1379 (9th Cir. 1998),
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`“Without such information, neither the courts nor the public, in reviewing the [agency’s]
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`decisions, can be assured that the [agency] provided the hard look that it is required to provide”
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`under NEPA./d. NEPA’s implementing regulations also require that an agency describe the
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`environmental baseline of the areas to be affected, 40 C.F.R. § 1502.15, and address “appropriate
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`mitigation measures not already included in the proposed action or alternative,” 40 C.F.R. §§
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`1502.14(f), 1502.16(h).
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`38.
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`Finally, NEPA requires federal agencies, whether in an EA or an EIS, to
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`“{rjigorously explore and objectively evaluate all reasonable alternatives” to the proposedaction.
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`40 C.F.R. § 1502.14. If an agencyfails to examine a viable alternative, its analysis is rendered
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`inadequate. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir. 2013).
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`Il. Wilderness Act
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`39.
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`The Wilderness Act of 1964 established the National Wilderness Preservation
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`System, under which Congress may designate Wilderness Areas. 16 U.S.C. § 1131 (a).
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`“Wilderness”is defined as “an area where the earth and its community oflife are untrammeled
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`by man,” where the land has retained “its primeval character and influence,” and wherethe land
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`has “been affected primarily by the forces of nature.” Jd. § 1131(c). Moreover, a Wildernessis ar
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`area that “is protected and managedso as to preserve its natural conditions,” and provides
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`“outstanding opportunities for solitude” or “primitive and unconfined”recreation.Id.
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`40. Wilderness areas must “be administered for the use and enjoymentofthe
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`American people in such manneras will leave them unimpaired for future use and enjoyment as
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`wilderness” and so as to protect and preserve their “wilderness character.” Jd. § 1133(b).
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`41.
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`In furtheranceofthis goal, the Wilderness Act sets forth a broad prohibition on
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`the operation of all commercial enterprise within designated Wilderness “[e]xcept as specifically
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`provided for [in the Act].” Jd. § 1133(c) (emphasis added).
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`42.
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`Accordingly, the Act expressly identifies certain nonconforming usesthat are
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`exceptions to its prohibition on “commercial enterprise.” 16 U.S.C. § 1133(d)(1)-(4). The Act’s
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`prohibition on commercial enterprises must be enforced wheneverone ofthe specified
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`exceptions is not present. Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1062
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`(9th Cir. 2003) (en banc). Amongthe specific exceptions is the continuation of commercial
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`livestock grazing on national forest lands where such use was established prior to the Act’s
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`passage on September3, 1964, subject to reasonable regulations deemed necessary by the
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`Secretary of Agriculture. /d. § 1133(d)(4).
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`43.
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`Duringinitial implementation of the Wilderness Act, the Forest Service saw that
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`livestock grazing was to be continued, but imposed regulations such as prohibiting the
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`developmentofstructures like fences and stockponds. In response to thoserestrictive
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`regulations, Congress issued guidelines on “Grazing in National Forest Wilderness Areas” in the
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`House Committee Report (H.R. REP. No. 96-617) accompanying the Colorado Wilderness Act of
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`1980, Pub. L. No. 96—560 at § 108, commonly known as the Congressional Grazing Guidelines,
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`and addeda statutory note to the Wilderness Actstating “the provisions of the Wilderness Act
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`relating to grazing shall be interpreted and administered in accordance with the Congressional
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`Grazing Guidelines.’?
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`44.
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`The Congressional Grazing Guidelines present five “guidelines and policies” and
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`a summary statement, which largely address the conditions under which an administering agency
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`may authorize the maintenance, repair, reconstruction and constructionoffacilities (e.g., fences,
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`water lines and wells, and stock tanks), and the emergency use of motorized equipment, to
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`support grazing operations in Wilderness Areas. H.R. REP. No. 101-405, Appendix A. The
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`Congressional Grazing Guidelines do not address “predator control” or make any mention of
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`managing wildlife for the purported protection of commercial livestock in Wilderness Areas.
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`45.
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`The Wilderness Act’s “special provisions” further provide that “commercial
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`services” within Wilderness Areas may be performed only “to the extent necessary for activities
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`3 The substantive language of this Report was duplicated in House Report 101-405, Appendix A,
`referenced in the Arizona Desert Wilderness Act of 1990, which extended to Bureau-managed
`wilderness lands the same grazing guidelines that Congress had applied to Forest Service lands a
`decade earlier. House Report 101-405, Appendix A is cited in subsequent legislation pertaining
`to Nevada wilderness designations, see infra § 48.
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`COMPLAINT- 15
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