Opening brief filed in bighorn case
September 5, 2014
The first week, of September, Holland and Hart, LLP filed its Opening Brief on behalf of the Idaho Wool Growers Association, et al. in the Payette Forest/bighorn sheep case.
According to the brief, at the Forest Service's (FS) urging the district court made three legal errors in approving the FS National Environmental Policy Act (NEPA) procedures. The court also applied the wrong standard of review to the wool growers claim that the FS failed to obtain the special expertise of the U.S. Department of Agriculture's Agricultural Research Service (ARS). The core of the suite can be categorized into three parts.
First, the FS failed to comport with the plain meaning of NEPA and its implementing regulations that required it to obtain ARS's special expertise on the merits of the Draft Supplemental Environmental Impact Statement (SEIS). This requirement is at the heart of NEPA. It compels the lead agency to consider other agencies' special expertise and in so doing, improve the Draft NEPA analysis before it is finalized and presented to the public. No deference is owed to the FS's interpretation of NEPA or its implementing regulations because the statute and regulations are unambiguous and the regulations are those of the Council on Environmental Quality, not the FS.
Second, the FS failed to supplement its Final SEIS with significant information showing that the FS had incorrectly interpreted the Lawrence study.
Third, the FS failed to consider important aspects of its predictive models. One model predicted a risk of contact between domestic sheep and bighorn sheep without uniformly considering physical barriers to sheep mobility that would have affected the likelihood of contact. Another model predicted disease outbreaks following contact between the species while ignoring information in its own files showing that during significant portions of the year, the species were not on the national forest allotments at the same time. That model also failed to consider the life cycle of disease transmission and the effect of the passage of time on the probability of a disease outbreak.
These failures show a pattern of FS errors and omissions that could have been avoided had it taken the time necessary to conduct "a transparent process done correctly" as instructed in previous litigation.
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Had the FS obtained the special expertise of ARS, it would have both complied with its clear duty under NEPA and acquired the additional information it needed to conduct a supplemental analysis of the Lawrence study. The FS would have also adequately considered key information that was omitted from its new models. For these reasons, the brief requests that the court vacate the Final SEIS and Record of Decision and remand the matter back to the FS for compliance with the law.
Joining Idaho in the case are the American Sheep Industry Association, Public Lands Council, Colorado Wool Growers Association, Wyoming Wool Growers Association, Shirts Brothers Sheep and Carlson Company, Inc.
The entire Opening Brief is available at http://www.sheepusa.org by clicking on the Issues & Programs tab and then on the Bighorn tab.
–American Sheep Industry