Case 0:20-cv-00231-NDF Document 1 Filed 03/31/20 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`
`
`
`Case No.:
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`
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`
`
`
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`1411 K Street, NW, Suite 1300
`Washington, D.C. 20005
`
`and
`
`SIERRA CLUB,
`2101 Webster Street, Suite 1300
`Oakland, CA 94612
`
`
`Plaintiffs,
`
`
` v.
`
`DAVID BERNHARDT, in his official
`capacity as Secretary of the United States
`Department of the Interior,
`1849 C Street NW
`Washington, D.C. 20240,
`
`AURELIA SKIPWITH, in her official
`capacity as the Director of the United States
`Fish and Wildlife Service,
`1849 C Street NW
`Washington, D.C. 20240
`
`UNITED STATES FISH AND WILDLIFE
`SERVICE,
`1849 C Street NW
`Washington, D.C. 20240
`
`and
`
`UNITED STATES FOREST SERVICE,
`1400 Independence Avenue SW
`Washington, D.C. 20250
`
`
`
`Defendants.
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`
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`Case 0:20-cv-00231-NDF Document 1 Filed 03/31/20 Page 2 of 29
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`INTRODUCTION
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`
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`1.
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`In this action, Plaintiffs challenge the U.S. Fish and Wildlife Service’s (“FWS”)
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`issuance of, and the U.S. Forest Service’s (“Forest Service”) reliance on, a flawed Biological
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`Opinion regarding the negative impacts to grizzly bears that arise from the Forest Service’s
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`authorization of continued livestock grazing in prime grizzly bear habitat within the Bridger-
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`Teton National Forest, in violation of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-
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`1544.
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`2.
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`Specifically, the Forest Service has authorized livestock grazing for cattle for ten
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`years, through the 2028 grazing season, on numerous allotments in the Upper Green River Area
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`Rangeland Project area (“Project”), encompassing the headwaters of both the Green and Gros
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`Ventre River and approximately 170,643 acres. The closest allotment lies less than 30 miles
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`from the boundary of Grand Teton National Park.
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`3.
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`As a result of previous and ongoing livestock grazing, the Upper Green River
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`Area represents the highest number of grizzly bear conflicts in the entire Greater Yellowstone
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`Ecosystem (“GYE”), and thus has become a sink for grizzly bears. Since 1999, 37 grizzly bears
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`have been killed in the Project’s action area, including 35 on the Upper Green grazing
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`allotments.
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`4.
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`Recognizing that continued livestock grazing was likely to be detrimental to
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`grizzly bears, the Forest Service initiated consultation with FWS as required under Section 7 of
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`the ESA. 16 U.S.C. § 1536(a)(2). Following consultation, FWS issued a Biological Opinion in
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`2019 (“2019 BiOp”) approving the killing of up to 72 grizzly bears over the ten-year life of the
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`Case 0:20-cv-00231-NDF Document 1 Filed 03/31/20 Page 3 of 29
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`Project. The anticipated and exempted lethal removal of up to 72 bears nearly doubles the
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`number of grizzly bears killed in the project area over the past 20 years
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`5.
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`FWS concluded that despite the high number of bears that may be killed as a
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`result of the authorized livestock grazing, the Project would not jeopardize grizzly bears. FWS
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`relied upon the Forest Service’s commitment to implement enumerated conservation measures to
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`reach its no jeopardy conclusion.
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`6.
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`Because FWS must rely upon the livestock permittees to implement several of the
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`conservation measures, FWS cannot presume that the measures are reasonably certain to occur.
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`Thus, FWS’s reliance upon these conservation measures cannot satisfy the ESA’s mandate to
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`ensure that the grazing authorization will not jeopardize grizzly bears.
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`7.
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`Many of the conservation measures also contain vague language, lack specificity,
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`are mere recommendations, or are subject to agency discretion. Thus, even if the Forest Service
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`is committed to enforcing the conservation measures, the unclear language and voluntary nature
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`of the conservation measures makes it difficult for the agency to enforce them.
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`8.
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`Even if the Forest Service and the permittees fully implement the conservation
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`measures, these measures are insufficient to protect grizzly bears or minimize conflicts in the
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`project area, as explained in detail below.
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`9.
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`Furthermore, FWS acknowledged that grizzly bear mortality across the GYE is
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`high and increasing but failed to consider whether the high level of take permitted by the 2019
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`BiOp may jeopardize the grizzly bear population in connection with the increasing mortality
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`rates across the ecosystem.
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`10.
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`For these reasons, FWS’s no jeopardy conclusion is arbitrary and capricious, and
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`the Forest Service’s reliance on that conclusion and the invalid 2019 Biological Opinion is
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`unlawful. 5 U.S.C. § 706(2)(A).
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`JURISDICTION AND VENUE
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`11.
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`This action arises under the ESA, 16 U.S.C. § 1531 et seq. This Court has
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`jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. §§ 2201-2202
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`(declaratory judgments and further relief); 16 U.S.C. §§ 1540(c), (g)(1)(c) (action arising under
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`the ESA and citizen suit provision); and 5 U.S.C. § 702 (Administrative Procedure Act).
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`12.
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`Venue in this Court is proper pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28
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`U.S.C. § 1391(e) because this civil action is brought against agencies of the United States and
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`officers and employees of the United States acting in their official capacities under the color of
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`legal authority, a substantial part of the events giving rise to the claim occurred in the District of
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`Columbia, and no real property is involved in this action. Plaintiffs Center for Biological
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`Diversity and Sierra Club also maintain offices in this judicial district.
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`13.
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`Plaintiffs provided Defendants with 60 days’ written notice of Plaintiffs’ intent to
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`sue on January 21, 2020, as required by 16 U.S.C. § 1540(g)(2)(C).
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`PARTIES
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`14.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”) is a non-
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`profit organization that is dedicated to the protection of native species and their habitats through
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`science, policy, and environmental law. The Center is incorporated in California and
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`headquartered in Tucson, Arizona, with offices in Arizona, California, Colorado, the District of
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`Columbia, Florida, Hawai’i, Idaho, Minnesota, Nevada, New Mexico, New York, North
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`Carolina, Oregon, Washington, and Mexico. The Center has more than 74,000 active members,
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`including members within the grizzly bear’s current and historic range. The Center and its
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`members have a long-standing interest in conserving native species in the American West and
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`have routinely advocated for the conservation and protection of native species, including grizzly
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`bears.
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`15.
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`The Sierra Club is a national non-profit organization with 67 chapters and more
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`than 796,000 members dedicated to exploring, enjoying, and protecting the wild places of the
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`earth; to practicing and promoting the responsible use of the earth’s ecosystems and resources; to
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`educating and enlisting humanity to protect and restore the quality of the natural and human
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`environment; and to using all lawful means to carry out these objectives. The Sierra Club and its
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`members have advocated for grizzly bear recovery and protection of grizzly bear habitat in the
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`Greater Yellowstone Ecosystem for more than 20 years.
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`16.
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`Plaintiffs, both organizationally and on behalf of their staff, members, and
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`supporters, have deep and long-standing interests in the preservation and recovery of imperiled
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`species, including grizzly bears in the Greater Yellowstone Ecosystem. To further these goals,
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`Plaintiffs have participated in various agency proceedings and public comment opportunities to
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`protect and recover grizzly bears, including FWS delisting proposals and Forest Service projects
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`that may negatively impact grizzly bears in and around the project area.
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`17.
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`Specific to the Upper Green River Area Rangeland Project, Plaintiffs actively
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`participated in all stages of the Project, submitting comments throughout the National
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`Environmental Policy Act process, including during initial scoping for the project, and providing
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`comments on the Draft Environmental Impact Statement. Following publication of a Final
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`Environmental Impact Statement, Plaintiffs participated extensively in the objection process
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`provided for under the National Forest Management Act. Plaintiffs submitted two written
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`objections each, and participated in two objection process meetings with the Forest Service and
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`other objectors. Plaintiffs also submitted a written letter to the Forest Service following the
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`mandatory objection process to summarize concerns about the Project, mainly highlighting
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`apprehensions regarding the protection and conservation of grizzly bears in the project area.
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`18.
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`Plaintiffs’ staff and members live near and regularly visit areas in and around the
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`project area, often using these areas for various recreational pursuits, including to observe and
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`photograph grizzly bears in their natural habitat. Plaintiffs’ staff and members have professional,
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`spiritual, aesthetic, and recreational interests in wildlife that may be impacted by the Project.
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`Plaintiffs’ staff and members have visited and plan to continue travelling and recreating in these
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`areas, and they will maintain an interest in preserving grizzly bears and grizzly bear habitat in
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`and around the project area in the future.
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`19.
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`Plaintiffs’ interests in protecting and recovering grizzly bears are directly harmed
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`by the Defendants’ approval of the Project. By approving the killing of up to 72 grizzly bears in
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`the project area, Plaintiffs’ professional, spiritual, aesthetic, and recreational interests and
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`enjoyment have been and will continue to be greatly diminished because the Project will thwart
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`grizzly bear recovery and survival, decreasing Plaintiffs’ opportunities to see grizzly bears in and
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`around the project area.
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`20.
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`Plaintiffs also have an interest in the effective implementation of environmental
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`laws aimed at protecting wildlife and wildlife habitat, including the ESA. Plaintiffs are injured
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`by Defendants’ failure to comply with the ESA which they have violated by relying upon
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`conservation measures that are not reasonably certain to occur and lack specificity to find that
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`the Project will not jeopardize grizzly bears.
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`21.
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`Defendants’ approval of the Project and reliance on the 2019 BiOp without
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`complying with mandatory duties under the ESA and APA have harmed and will continue to
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`harm Plaintiffs’ interests. The injuries described above are actual, concrete injuries presently
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`suffered by Plaintiffs’ staff and members and they will continue to occur unless this Court grants
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`relief. These injuries are directly caused by Defendants’ actions and inactions, and the relief
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`sought herein would redress those injuries. Plaintiffs have no other adequate remedy at law.
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`22.
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`Defendant DAVID BERNHARDT is the Secretary of the United States
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`Department of the Interior. In this role, Secretary Bernhardt has supervisory responsibility over
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`the United States Fish and Wildlife Service. Secretary Bernhardt is sued in his official capacity.
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`23.
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`Defendant AURELIA SKIPWITH is the Director of the United States Fish and
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`Wildlife Service and is charged with ensuring agency decisions comply with law. Director
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`Skipwith is sued in her official capacity.
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`24.
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`Defendant UNITED STATES FISH AND WILDLIFE SERVICE is a federal
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`agency within the Department of Interior. FWS is responsible for administering the ESA with
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`respect to terrestrial wildlife, such as grizzly bears, and ensuring that agency decisions comply
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`with the ESA and other laws.
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`25.
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`Defendant UNITED STATES FOREST SERVICE is a federal agency within the
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`U.S. Department of Agriculture. The Forest Service is responsible for managing the lands and
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`resources within the Bridger-Teton National Forest in accordance with federal laws and
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`regulations, including the ESA and APA.
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`STATUTORY BACKGROUND
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`26.
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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). The ESA provides a means to
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`conserve the ecosystems upon which endangered and threatened species depend and a program
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`to conserve listed species. 16 U.S.C. § 1531(b). The ESA defines “conservation” as the “use of
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`all methods and procedures which are necessary to bring any endangered species or threatened
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`species to the point at which the measures provided pursuant to this chapter are no longer
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`necessary,” id. § 1532(3), i.e. to bring about the recovery of species listed as endangered or
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`threatened. See id. § 1532(6), (20) (definitions of “endangered species” and “threatened
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`species”).
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`27.
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`To receive the full protections under the ESA, a species must first be listed by the
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`Secretary of the Interior as “endangered” or “threatened” pursuant to ESA section 4. See id.
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`§ 1533. An “endangered species” is “any species which is danger of extinction throughout all or
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`a significant portion of its range.” Id. § 1532(6). A “threatened species” is “any species which is
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`likely to become an endangered species within the foreseeable future throughout all or a
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`significant portion of its range.” Id. § 1532(20).
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`28.
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`Section 7(a)(2) of the ESA requires each federal agency, in consultation with a
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`federal wildlife agency (FWS for the grizzly bear) to insure that any proposed action is not likely
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`to jeopardize the continued existence of a listed species, or result in the destruction or adverse
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`modification of critical habitat. Id. § 1536(a)(2). To “jeopardize the continued existence of”
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`under the ESA means “to engage in an action that reasonably would be expected, directly or
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`indirectly, to reduce appreciably the likelihood of both survival and recovery of a listed species
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`in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R.
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`§ 402.02.
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`29.
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`To carry out these mandates, the action agency must first ask FWS whether any
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`listed or proposed species may be present in the area of the agency action. 16 U.S.C.
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`§ 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, the action agency
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`must prepare a “biological assessment” to determine whether the listed species may be affected
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`by the proposed action. 16 U.S.C. §1536(c)(1); 50 C.F.R. § 402.12. The biological assessment
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`must generally be completed within 180 days. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(i).
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`30.
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`If an agency determines that its action “may affect” but is “not likely to adversely
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`affect” a listed species or its critical habitat, the regulations permit “informal consultation,”
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`during which FWS must concur in writing with the agency’s determination. 50 C.F.R.
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`§§ 402.14(a), (b). If the agency determines that the action is “likely to adversely affect” a listed
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`species or critical habitat, or if FWS does not concur with the agency’s “not likely to adversely
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`affect” determination, the agency must engage in “formal consultation,” as outlined in 50 C.F.R.
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`§ 402.14. Id. §§ 402.02, 402.14(a).
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`31.
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`After FWS evaluates the current status of the listed species and the proposed
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`action’s impacts on the species using the best scientific and commercial data available, FWS
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`reaches a “biological opinion as to whether the action, taken together with cumulative effects, is
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`likely to jeopardize the continued existence of listed species . . . .” 16 U.S.C. § 1536(a)(2); 50
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`C.F.R. §§ 402.14(d), (g)(4). If FWS concludes that the proposed action “will jeopardize the
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`continue existence” of a listed species, the biological opinion must outline “reasonable and
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`prudent alternatives.” 16 U.S.C. § 1536(b)(3)(A).
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`32.
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`In addition, FWS must provide an “incidental take statement” if FWS concludes
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`that an action is not likely to jeopardize the continued existence of a listed species or result in the
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`destruction or adverse modification of critical habitat, either as proposed or through the
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`implementation of the reasonable and prudent alternatives described in the biological opinion.
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`The incidental take statement must specify the amount or extent of such incidental taking on the
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`listed species; any “reasonable and prudent measures” that FWS considers necessary or
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`appropriate to minimize such impact; and the “terms and conditions” with which the action
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`agency must comply to implement those measures. Id. § 1536(b)(4); 50 C.F.R. § 402.14(i).
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`Taking of listed species without the coverage of an incidental take statement is a violation of the
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`ESA. 16 U.S.C. § 1538.
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`33.
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`A biological opinion produced through formal consultation under the ESA is a
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`final agency action subject to judicial review under the arbitrary and capricious standard of the
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`Administrative Procedure Act. Bennett v. Spear, 520 U.S. 154, 178 (1997); 5 U.S.C. § 706(2).
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`An action is arbitrary and capricious “if the agency has relied on factors which Congress has not
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`intended it to consider, entirely failed to consider an important aspect of the problem, offered an
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`explanation for its decision that runs counter to the evidence before the agency, or is so
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`implausible that it could not be ascribed to a difference in view or the product of agency
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`expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
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`34.
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`Even after the procedural requirements of consultation are complete, the ultimate
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`duty to ensure that an activity does not jeopardize a listed species lies with the action agency.
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`An action agency’s reliance on a flawed biological opinion to satisfy its ESA section 7 duty is
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`arbitrary and capricious and unlawful under the ESA. 16 U.S.C. § 1536(a)(2); Mayo v. Jarvis,
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`177 F. Supp. 3d 91, 146 (D.D.C. 2016).
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`FACTUAL BACKGROUND
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`I. The Upper Green River Area Rangeland Project
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`35.
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`The Upper Green River Area Rangeland Project area, which encompasses the
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`headwaters of both the Green River and Gros Ventre River, lies approximately 30 miles
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`northwest of Pinedale, Wyoming in the Bridger-Teton National Forest.
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`36.
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`The project area is within the Greater Yellowstone Ecosystem, which the Forest
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`Service describes as one of the largest intact ecosystems remaining in the temperate zones of the
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`world. Of the 170,643-acre project area, 17,818 acres lie in designated Wilderness areas—
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`12,447 acres in the Gros Ventre Wilderness and 5,371 acres in the Bridger Wilderness. And
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`while the Forest Service’s delineation of the project area does not include Grand Teton National
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`Park, the closest grazing allotment lies less than 30 miles from the park boundary.
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`37.
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`The project area contains six grazing allotments: Badger Creek, Beaver-Twin
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`Creeks, Noble Pastures, Roaring Fork, Wagon Creek, and Upper Green River. Allotment
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`management plans and other direction permit approximately 9,089 livestock—including 9,042
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`cow/calf pairs and yearlings and 47 horses—to graze these allotments from June 14 to October
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`15 annually.
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`38.
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`There are 21 different people authorized to graze cattle and/or horses in the
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`project area, for a maximum permitted use of approximately 46,148 animal unit months. An
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`animal unit month is the amount of forage for one mature cow or equivalent for one month based
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`upon an average daily forage consumption of 26 pounds of dry matter.
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`39.
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`Prior grazing in the project area has led to negative impacts on wildlife, fish,
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`water quality, soil quality, and vegetation. The Record of Decision authorizes continued grazing
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`in the project area for 10 more years, through the 2028 grazing season.
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`II. Grizzly Bears in the Greater Yellowstone Ecosystem
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`40.
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`Grizzly bears once ranged throughout most of western North America, from the
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`high Arctic to the Sierra Madre Occidental of Mexico, and from the coast of California across
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`most of the Great Plains. Scientists believe that prior to European settlement, approximately
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`50,000 grizzly bears occupied the western United States between Canada and Mexico. With
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`European settlement of the American West and a federally funded bounty program aimed at
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`eradication, grizzly bears were shot, trapped, and poisoned, reducing the population to just two
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`percent of their historic range.
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`41.
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`Because of its precipitous decline, FWS listed the grizzly bear as a threatened
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`species in the lower 48 states under the ESA in 1975. Today scientists estimate there are less
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`than 2,000 grizzly bears left in the lower 48 states, occupying five isolated populations.
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`42.
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`In the Greater Yellowstone Ecosystem, FWS and other agencies manage grizzly
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`bears and their habitat by combining the Primary Conservation Area (the existing Yellowstone
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`grizzly bear recovery zone as identified in the 1993 Grizzly Bear Recovery Plan) with adjacent
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`areas where occupancy by grizzly bears is anticipated and acceptable. Combined, these areas
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`form the Demographic Monitoring Area, within which habitat is considered suitable to support
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`grizzly bears and recovery criteria for grizzly bears are assessed. The Upper Green allotments all
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`lie within the Demographic Monitoring Area.
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`43.
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`Although grizzly bears in the Greater Yellowstone Ecosystem have increased
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`under the protections of the ESA, these bears still face a host of threats. For example, with the
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`severe decline of traditional food sources such as whitebark pine seeds and Yellowstone
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`cutthroat trout, bears have been forced to seek food elsewhere and have turned to a more meat-
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`based diet. This alternative diet has brought grizzlies into more frequent contact with livestock
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`and with humans, such as hunters.
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`44.
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`As a result, conflicts with grizzly bears within the GYE have been on the rise,
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`leading to record-high numbers of grizzly bear mortalities in recent years. The 2019 BiOp
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`estimates 62 grizzly bear deaths in 2018, 66 in 2017, 58 in 2016, and 70 in 2015, compared with
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`28 grizzly bear mortalities in 2014 and 29 in 2013.
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`45.
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`The Upper Green area consistently represents the highest number of grizzly bear
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`conflicts in the GYE. Since 1999, a total of 37 grizzly bears have been killed in the project
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`action area, including 35 on the Upper Green allotments. Indeed, the Forest Service and FWS
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`have determined that the area is a population sink for grizzly bears.
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`46.
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`In the GYE, home range estimates are 81 square miles for females and 309 square
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`miles for males. Thus, both males and females that reside primarily in Grand Teton National
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`Park may have home ranges that overlap with the project area.
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`47.
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`Grizzly bears have one of the lowest reproductive rates of all terrestrial mammals
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`in North America, resulting primarily from the late age at first reproduction (four and a half to
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`five and a half years), small average litter size (two cubs), and the long interval between litters.
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`Scientists estimate that female grizzly bears may be able to produce two litters in a ten-year
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`period, with one female surviving to reproductive age. Thus, it takes an adult female grizzly
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`bear approximately ten years to replace herself in the wild.
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`48.
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`The survival of a female grizzly bear and her cubs enables the grizzly population
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`to grow. Thus, the 1993 Grizzly Bear Recovery Plan found that “providing maximum protection
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`for females is essential to recovery.” And FWS notes that the long-term survival of grizzly bears
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`in the GYE is contingent upon minimizing annual mortality rates, especially for adult females.
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`49.
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`The project area is currently occupied by grizzly bears, including females with
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`cubs. Despite the project area’s known history as a hotspot for grizzly bear conflicts and
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`associated mortalities, neither the Forest Service nor FWS provide an estimate as to how many
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`female grizzly bears may use lands in the project area, but FWS acknowledges that there has
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`been an increase in the use of the area by female bears with dependent young.
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`III. The Forest Service’s Consultation History with FWS
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`50.
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`As required by section 7 of the ESA and in response to livestock-grizzly bear
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`conflicts in the Upper Green, the Forest Service has engaged in a series of consultations with
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`FWS to assess the impacts of livestock grazing on grizzly bears.
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`51.
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`In 1997, the Forest Service drafted a Biological Assessment (“BA”) to assess the
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`impacts of livestock grazing on grizzly bears on six of the nine permitted allotments in the Upper
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`Green area. In 1999, the Forest Service amended that BA and initiated formal consultation with
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`FWS. Following formal consultation, FWS issued a Biological Opinion (“1999 BiOp”) on
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`grazing in the Upper Green. In the 1999 BiOp, FWS anticipated and permitted through an
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`Incidental Take Statement (“ITS”) the lethal removal of up to five grizzly bears over an
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`indefinite period of time in the Upper Green area. The 1999 BiOp limited permitted take to four
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`males and one female grizzly bear.
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`52.
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`In 2009, the Forest Service reached the level of take identified in the 1999 BiOp
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`and consequently reinitiated consultation with FWS in 2010. In its request for further
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`consultation, the Forest Service expanded the area for consideration to encompass three new
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`allotments in the Upper Green area. In 2011, FWS issued an amended BiOp (“2011 BiOp”) that
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`anticipated the lethal removal of six grizzly bears within any consecutive three-year period.
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`53.
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`The following year, in August 2012, the Forest Service determined that it had
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`reached the level of incidental take identified in the 2011 BiOp, lethally removing six grizzly
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`bears, and again reinitiated consultation. Later that same month, another grizzly bear was killed,
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`and anticipated take was exceeded. In total, seven grizzly bears were lethally removed during
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`the 2011-2012 grazing seasons, including 4 bears in 2011 and 3 bears in 2012.
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`54.
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`In response, FWS decided to provide “an amended, short-term ITS to the Forest,”
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`authorizing the lethal removal of three additional grizzly bears through the end of the 2012
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`grazing season. No additional grizzly bears were lethally removed through the end of the 2012
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`grazing season.
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`55.
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`In April 2013, the Forest Service reinitiated formal consultation. In response,
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`FWS issued a revised BiOp anticipating the incidental take of no more than 11 grizzly bears
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`within any three-year period. Permitted take was limited to eight males and three females.
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`56.
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`By the end of the 2013 grazing season, four grizzly bears had been lethally
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`removed, including two males and two females. Because the Forest Service anticipated that
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`additional females would be killed before the end of the consecutive three-year period, the Forest
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`Service once again reinitiated formal consultation in January 2014.
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`57.
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`In 2014, FWS issued another BiOp (“2014 BiOp”) and yet again increased the
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`number of grizzly bears that could be lethally removed in the Upper Green area as a result of
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`livestock grazing. The 2014 BiOp exempted the lethal take of 11 grizzly bears and the relocation
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`of 18 grizzly bears within any three-year period. The 2014 BiOp, valid through the end of 2019,
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`no longer established separate take allocations by sex. From 2014 to 2018, 23 grizzly bears were
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`lethally removed. These lethal removals exceeded the level of exempted take in the 2014 BiOp
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`(for example, 13 bears were killed within the 2015-2017 three-year period, and 15 bears were
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`killed in the three-year period from 2016 to 2018). Nevertheless, FWS did not issue a new
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`Biological Opinion until it issued the 2019 BiOp, challenged here.
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`IV. The 2019 BiOp
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`58. While the Forest Service was considering its options related to the authorization
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`of the Upper Green River Area Rangeland Project, it reinitiated consultation with FWS after
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`determining that most of the Project alternatives under consideration were likely to adversely
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`affect grizzly bears. Although a 2016 Supplemental Wildlife Specialist report stated that the
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`Forest Service would prepare a new biological assessment to obtain a new biological opinion for
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`the Project, the Forest Service never prepared one. Nevertheless, without the benefit of a new
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`biological assessment, on April 29, 2019, FWS issued the 2019 BiOp.
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`59.
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`In the 2019 BiOp, FWS assessed the impacts from the Project on grizzlies in its
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`defined action area, which FWS delineated as the grazing allotments plus a 7.5-mile buffer.
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`FWS chose the boundaries of the action area based upon the agency’s interpretation of a 1982
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`study finding that grizzly bears may generally be drawn to carcasses from a distance of 7.5 miles
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`away. In accordance with ESA regulations, the identified action area is meant to reflect “all
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`areas to be affected directly or indirectly by the Federal action and not merely the immediate area
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`involved in the action.” 50 C.F.R. § 402.02.
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`60.
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`FWS predicts in the 2019 BiOp that grizzly bear occupancy and conflicts in the
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`Project’s action area are likely to increase, noting that the number of conflicts in the area has
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`increased by an average of 9 percent per year since 2010. As a result, FWS predicts the desire
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`for lethal removal of grizzly bears will also rise. To account for the anticipated increase in
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`grizzly bear occupancy in the action area, FWS approved an ITS exempting the lethal removal of
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`up to 72 bears over the ten-year life of the Project. This ITS thus authorizes the lethal removal of
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`nearly double the number of bears that have been lethally removed in the project area over the
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`past 20 years (37 bears) in half the time.
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`61.
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`FWS states that it will review the accuracy of its estimates on the basis of
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`consecutive three-year periods, rather than setting an expectation as to how many bears will be
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`killed on a yearly basis.
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`62.
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`Unlike many of the previous biological opinions for the Upper Green area, and
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`despite the importance of female grizzly bear survival for grizzly bear recovery, the ITS does not
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`have a limit on the basis of sex. Therefore, out of the 72 exempted lethal removals, there is no
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`limit as to how many female grizzly bears may be killed. FWS fails to explain why it did not
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`include a limit on female take even though it included such a limitation in previous iterations of
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`the BiOp.
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`63.
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`FWS acknowledges that females with cubs are increasingly establishing home
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`ranges in the project area and more females may thus be killed for livestock conflicts in the
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`project area than in the past.
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`64.
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`Despite FWS’s authorization of lethal removal of a large number of grizzly bears,
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`and the absence of a limit on how many female grizzly bears may be killed, FWS concludes that
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`the Project will not jeopardize grizzly bears.
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`65.
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`In reaching this no-jeopardy determination, FWS relies heavily on the Forest
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`Service’s commitment to implement the conservation measures contained within the BiOp.
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`66.
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`The conservation measures are generally meant to prevent grizzly bear conflicts
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`with cattle in order to limit the number of management removals of grizzly bears. They include
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`bear sanitation guidelines and recommendations for allotment monitoring, watching for sick or
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`Case 0:20-