Idaho Wool Growers Assn v. Tom Vilsack
816 F.3d 1095
| 9th Cir. | 2016Background
- Payette National Forest bighorn populations have declined sharply; Forest Service concluded domestic sheep grazing poses significant disease risk and issued a Final Supplemental EIS (FSEIS) and Record of Decision (ROD) to close ~70% of grazing allotments (Alternative 7O).
- Forest Service used three models (source habitat, risk-of-contact, disease) built with UC Davis researchers and telemetry data (>54,000 locations) to analyze movement, contact, and extirpation risk under varying transmission probabilities (5–100%).
- The unpublished Lawrence study (later published) experimentally demonstrated transmission of bacteria from domestic to bighorn sheep causing fatal pneumonia; the FSEIS cited and incorporated the study’s findings.
- Idaho Wool Growers Association and others ("Wool Growers") appealed, arguing Forest Service violated NEPA by (1) failing to consult the Agricultural Research Service (ARS) before the FSEIS, (2) failing to supplement the FSEIS after publication of Lawrence, and (3) using flawed models.
- District court granted summary judgment for the Forest Service; Ninth Circuit reviewed whether any NEPA violation was arbitrary, capricious, or prejudicial and whether errors (if any) were harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to consult ARS before final EIS | ARS has "special expertise" on domestic-animal disease; agency should have obtained ARS comments | Forest Service: ARS expertise is in domestic animals, not wildlife management; consultation not required | Any failure to consult (if it occurred) was harmless because ARS perspectives were already in the record and did not affect the decision-making process |
| Prejudice/harm from non-consultation | Failure to consult deprived NEPA process of info on uncertainties of transmission and mechanisms | FS: Dr. Knowles (ARS coauthor) and agricultural critiques were already considered in FSEIS and public comments; precise mechanisms were not dispositive to decision | No prejudice shown—NEPA's concern is process integrity, and the record already contained the relevant critiques and uncertainties |
| Duty to supplement FSEIS after Lawrence study publication | Newly published Lawrence study (and critiques) required supplemental EIS because it provided significant new information | FS: FSEIS had already cited and discussed Lawrence (in unpublished form); study reinforced rather than changed conclusions; critiques did not present significant new information | FS did not abuse discretion by declining to supplement; Lawrence reaffirmed the consensus and was already considered |
| Validity and use of models (risk-of-contact and disease models) | Models failed to account for barriers, timing/duration of contact, and should have been validated/used different transmission probabilities (e.g., 0–1%) | FS: models were peer-reviewed, used local telemetry data, disclosed limitations, run across a range of transmission probabilities for planning purposes | Models were within agency discretion, adequately disclosed limitations, and were not arbitrary or capricious for NEPA purposes |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (NEPA requires agencies to take a "hard look" and provide full discussion of significant environmental impacts)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (discussing limits on NEPA’s role and standard of review implications)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (agencies need not supplement an EIS for every new piece of information; supplementation required only for significant new circumstances)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (NEPA requires high-quality information and disclosure of data/model shortcomings)
- Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980) (consultation requirement may attach when another agency has expertise on an environmental effect even if not on whole project)
- Tucson Herpetological Society v. Salazar, 566 F.3d 870 (9th Cir. 2009) (harmless-error and prejudice analysis under NEPA/APA)
- Asarco, Inc. v. U.S. EPA, 616 F.2d 1153 (9th Cir. 1980) (limits on expanding administrative record on review)