[00:00:01] Speaker 05:
Okay, if council are ready, let's move on to ferrets and prairie dogs.

[00:00:07] Speaker 05:
This is 23-8081, Western Watersheds Project versus Vilsack.

[00:00:14] Speaker 05:
Ms.

[00:00:14] Speaker 05:
Vaxen?

[00:00:16] Speaker 01:
Correct, Your Honor.

[00:00:18] Speaker 01:
Good morning.

[00:00:19] Speaker 01:
May it please the court, my name is Megan Vaxen.

[00:00:21] Speaker 01:
I am here on behalf of Western Watersheds Project, Rocky Mountain Wild and Wild Earth Guardians.

[00:00:26] Speaker 01:
I'd like to reserve four minutes for rebuttal.

[00:00:29] Speaker 01:
I'm gonna begin today with our Section 7A1 claim and move into our NEPA Heart Look claim after that.

[00:00:37] Speaker 01:
Section 7A1 of the ESA requires all federal agencies to pursue conservation until conservation is achieved.

[00:00:46] Speaker 01:
And the context of this case is highly important because the Thunder Basin is absolutely necessary for black food ferret recovery.

[00:00:53] Speaker 01:
It is the only large prairie dog colony in all of Wyoming

[00:00:57] Speaker 01:
and is one of just two reintroduction areas that the Forest Service manages its entire better than four million acre great plant holdings.

[00:01:06] Speaker 01:
And critically, it is also black tail prairie dog colonies.

[00:01:10] Speaker 01:
Black tail prairie dogs are themselves highly rare in Wyoming.

[00:01:14] Speaker 01:
They occupy only 0.1% of their former habitat in the state.

[00:01:19] Speaker 01:
And they have been characterized by Fish and Wildlife Service as the key species for black footed ferret recovery.

[00:01:27] Speaker 01:
In recognition of how vital this area is, the Forest Service has managed it for black-footed ferret reintroduction since 1981.

[00:01:34] Speaker 01:
That meant that poisoning and recreational shooting were largely prohibited and plague mitigation was administered annually, or at least it was until 2017.

[00:01:47] Speaker 01:
But the 2020 amendment fully removed this conservation management scheme and instead introduced a host of recognized threats to black-footed ferret recovery.

[00:01:57] Speaker 01:
Now the Forest Service has argued first that it owes no duty to the black-footed ferret because it is not currently present on the Thunder Basin.

[00:02:05] Speaker 01:
And second, that even if it does owe a duty to the black-footed ferret, that it has more than achieved that duty at a different reintroduction site in an entirely different state.

[00:02:14] Speaker 01:
One reintroduction site only.

[00:02:17] Speaker 01:
So as to the first, regarding the presence of the ferret, this is a convenient litigation position.

[00:02:22] Speaker 01:
It has not ever been held by the agency before.

[00:02:26] Speaker 01:
And that is evident in pretty much all of the record that you have before you.

[00:02:31] Speaker 01:
You can find it in volume 1 at 164, 175, 196, volume 2 at 214 through 215, 218, 246.

[00:02:39] Speaker 01:
It has held this position that this area must be conserved for black-footed ferret recovery and furtherance of its conservation duty.

[00:02:48] Speaker 05:
The ferret has been reintroduced in a

[00:02:51] Speaker 05:
colony in South Dakota, right?

[00:02:54] Speaker 05:
Correct.

[00:02:55] Speaker 05:
And the agency in charge of the species introduction is Fish and Wildlife?

[00:03:02] Speaker 01:
I think you're thinking of Kanata Basin.

[00:03:05] Speaker 05:
I just want to get to the duty and what the scope of the duty is because the plan that was approved here does, according to the record, allow enough acreage for ferrets to be reintroduced at some point by the agency that has that

[00:03:29] Speaker 05:
responsibility.

[00:03:32] Speaker 05:
Is your complaint here that there's not enough acreage set aside or is it something else?

[00:03:38] Speaker 01:
This was an error at the district court too because the acreage is not the only factor here.

[00:03:43] Speaker 01:
It doesn't really matter how much acreage you provide them if that acreage is like a war zone.

[00:03:48] Speaker 01:
There is plague mitigation that's being withheld, recreational shootings allowed annually, and poisoning happens throughout the entire reintroduction area.

[00:03:57] Speaker 01:
Each of these things alone are an identified threat to black-footed ferret recovery.

[00:04:02] Speaker 01:
And in combination, this is

[00:04:04] Speaker 01:
more to our hard-look claim, but in combination, the Forest Service has previously said, no less than three times, that this combination of things can lead to the extirpation of the black-tailed ferret dog, which is the species that the black-footed ferret is entirely reliant on.

[00:04:20] Speaker 01:
So, looking only to the acreage ignores a critical component of how that acreage is managed.

[00:04:27] Speaker 02:
Well, let's focus on the acreage for just a minute.

[00:04:32] Speaker 02:
I think, what are they going to, 10,000?

[00:04:34] Speaker 02:
That's the maximum.

[00:04:37] Speaker 02:
And that even under the prior plan was permitted, right?

[00:04:45] Speaker 01:
No.

[00:04:45] Speaker 01:
Under the prior plan, the 2009 amendment was the prior plan that was covering and had several categories of prairie dog acreage, but the one that most overlapped with the re-interaction area required 18.

[00:04:59] Speaker 01:
Yeah, but they had the option to go down to 10, didn't they?

[00:05:03] Speaker 01:
They did not, Your Honor.

[00:05:06] Speaker 03:
Could you explain very briefly the relationship between acreage and population?

[00:05:15] Speaker 01:
The acreage objective, prairie dogs are generally measured by acreage objective rather than an actual population count.

[00:05:24] Speaker 01:
So the acreage objective is meant to be an area that is occupied by black-tailed prairie dogs.

[00:05:31] Speaker 01:
So they'll measure it by an acre instead of doing an actual population count.

[00:05:35] Speaker 01:
Does that answer your question?

[00:05:36] Speaker 04:
Is it sort of proxy then for population?

[00:05:40] Speaker 01:
I think it could be used as a proxy.

[00:05:43] Speaker 01:
I'm not entirely sure what the correlation between an acreage amount and the number of prairie dogs on it would be.

[00:05:49] Speaker 01:
I don't think that's anywhere in the record.

[00:05:51] Speaker 02:
But they do use it as a proxy for the ferrets, right?

[00:05:56] Speaker 02:
Didn't they say 30 now was the maximum that this could support?

[00:06:03] Speaker 01:
That's correct, Your Honor, and that's actually another point that I wanted to make, was that this amendment from 2020 admits that it forecloses meeting one of Wyoming's reintroduction objectives, recovery objectives, and that is housing a population of 100 or more breeding adult ferrets.

[00:06:20] Speaker 01:
That was previously possible.

[00:06:22] Speaker 02:
Well, when you say forecloses, I guess the question is, if they do this and they introduce 30, are they saying they'll never do a larger population,

[00:06:32] Speaker 02:
introduce more, my question being basically, can they do it in pieces?

[00:06:38] Speaker 01:
It would require another plan amendment.

[00:06:40] Speaker 01:
They no longer have enough acreage to maintain the size that they would need for a population of 100 breeding adults.

[00:06:49] Speaker 01:
And so if they were ever to increase it, it would require another plan amendment.

[00:06:54] Speaker 01:
So not under the current plan.

[00:06:57] Speaker 05:
Why is a management area of 10,000 acres

[00:07:02] Speaker 05:
inadequate to fulfill their duty under the ESA?

[00:07:07] Speaker 01:
Again, Your Honor, it's because of the type of management.

[00:07:10] Speaker 01:
This is critically important here.

[00:07:12] Speaker 01:
Each one of these things, as I mentioned, is a recognized threat to black-footed ferret reintroductions.

[00:07:18] Speaker 01:
So if the acreage may be enough to support 30 ferrets in isolation from all of this, then this would be an entirely different question, but you can't divorce

[00:07:31] Speaker 01:
the amount of acreage that they're retaining with the management of that acreage.

[00:07:37] Speaker 01:
And each one of these things has been discussed at length in both the 2013 recovery plan and the 2019 species status assessment as to the impacts that they have on black-footed ferrets.

[00:07:53] Speaker 05:
In fact... But as I understand the plan, I think this is what Judge McHugh was saying, the plan does permit the

[00:08:00] Speaker 05:
enough acreage to support at least 30 adult ferrets if and when the service ever gets around to a reintroduction plan.

[00:08:12] Speaker 01:
That's only if you look at the acreage, Your Honor.

[00:08:14] Speaker 01:
All of these things, these new management actions may work to preclude ferret reintroduction, which is actually a determination that the Forest Service has already made in those three prior plan amendments.

[00:08:27] Speaker 05:
In their scientific judgment,

[00:08:29] Speaker 05:
The plan does permit for some reintroduction population and we're on an arbitrary and capricious review on the APA side, but I mean it sounds like a lot of your complaints is really hypothetical that maybe they'll kill too many prairie dogs or maybe they'll use too much poison and on acreage that doesn't have any ferrets at this point.

[00:08:54] Speaker 05:
What was the mistake that they made?

[00:08:57] Speaker 01:
I have to disagree with you there, your honor, because their scientific determination is, if you can call it a scientific determination, directly at odds with three prior plan amendment determinations that are highly relevant here, particularly the 2013 viability analysis, which the Forest Service put together in answer to the identical management scheme that we see here.

[00:09:21] Speaker 01:
And that 2013 viability analysis found that in combination

[00:09:26] Speaker 01:
These managements, this management scheme has the potential to extirpate black-tailed prairie dogs and will preclude black-footed ferret reintroductions.

[00:09:36] Speaker 01:
It made the same conclusion in 2009 when it looked at alternative three.

[00:09:40] Speaker 01:
Alternative three was heavily reliant on rodenticides and put in a half-mile boundary around the Thunder Basin.

[00:09:47] Speaker 01:
Again, the Forest Service concluded that this would preclude black-footed ferret reintroductions.

[00:09:52] Speaker 05:
My understanding was that the 10-J plan was

[00:09:54] Speaker 05:
the evaluation that was going to determine that.

[00:09:57] Speaker 05:
Is there anything in the amendments that's inconsistent with the 10-J plan?

[00:10:02] Speaker 01:
The 10-J plan sets a floor.

[00:10:04] Speaker 01:
The 10-J plan is meant to identify new reintroduction areas.

[00:10:08] Speaker 01:
There is simply nothing in agency discretion that allows them to look at something that is the floor.

[00:10:13] Speaker 01:
and take management of an extraordinarily rare and vitally needed reintroduction area to lower it down to a minimum.

[00:10:21] Speaker 01:
That is not what the recovery mandate requires from the ESA.

[00:10:24] Speaker 01:
The recovery mandate from the ESA requires that we pursue conservation until conservation is achieved.

[00:10:31] Speaker 01:
And we do not do that by lowering management to a point where this area is inhospitable to the species we may introduce there.

[00:10:41] Speaker 05:
correct legal outcome here should have been that the agency selected alternative one, no action.

[00:10:48] Speaker 05:
Would that be a W for Western Watersheds?

[00:10:56] Speaker 01:
It would, but I think in addition to that, the range of alternatives that we see here doesn't include a vital concept, and that is what could they have done to achieve both their recovery mandate

[00:11:11] Speaker 01:
and conserve the species and change management in whatever way they needed to.

[00:11:17] Speaker 01:
And that might have been a change to grazing.

[00:11:20] Speaker 01:
So I want to note that yes, alternative one would have been good, but we had probably many other alternatives that I myself am not aware of and cannot explain to this court because none of us are the experts here, that went unanalyzed simply because they decided that lethal control was the only mechanism that they were going to consider.

[00:11:38] Speaker 01:
Did you raise grazing below?

[00:11:43] Speaker 01:
Grazing, you're asking about forfeiture, correct, Your Honor?

[00:11:47] Speaker 01:
I am.

[00:11:51] Speaker 01:
The argument about changing grazing is not necessarily as precise as the state and the agency would like you to believe.

[00:12:01] Speaker 01:
It is still the same argument that there was not a reasonable range of alternatives.

[00:12:05] Speaker 01:
And I can make that argument about grazing because the Forest Service has set this up as a binary choice.

[00:12:11] Speaker 01:
Either we preserve prairie dog colonies,

[00:12:14] Speaker 01:
or we work to increase forage for livestock grazing.

[00:12:18] Speaker 01:
So why then, was there no alternative that considered conserving prairie dog colonies in order to both fulfill their conservation mandate and not in conflict with their NIFMA multi-use mandate?

[00:12:32] Speaker 02:
Well, I think the answer to that that they gave was that it's outside of their consideration to manage those grazing permits.

[00:12:44] Speaker 01:
That is correct.

[00:12:45] Speaker 01:
And that is why I think back country against jumps.

[00:12:47] Speaker 01:
One of the cases that we cited in briefing is pertinent here and merits some consideration because the agency in that case also said that the distributed energy alternative was outside the scope of their amendment.

[00:13:06] Speaker 01:
But that court found that they should have considered it.

[00:13:10] Speaker 02:
Well, those cases, I think you actually cite two cases that are kind of similar.

[00:13:14] Speaker 02:
There where they considered a single vendor.

[00:13:17] Speaker 02:
One was a water case and they considered only one provider of the water.

[00:13:22] Speaker 02:
And on this one, again, they considered just one third party in that case as well, right?

[00:13:31] Speaker 01:
The Simmons case is a case on purpose and need.

[00:13:34] Speaker 01:
It's about setting too narrow a purpose, which is another argument that we made here.

[00:13:39] Speaker 01:
But the relevance of that case is that if you constrain the purpose so narrowly, i.e.

[00:13:45] Speaker 01:
one water provider or only lethal management, then you set a purpose and need that ultimately results in a range of alternatives that are too narrow, as it did here.

[00:13:58] Speaker 01:
And I'd like to reserve the rest of my time if I may.

[00:14:01] Speaker 05:
Thank you.

[00:14:04] Speaker 05:
So you're going to try to split your arguments between the federal and state defendants, all right?

[00:14:09] Speaker 05:
Good luck.

[00:14:10] Speaker 05:
Good luck.

[00:14:13] Speaker 05:
I'll try to help you out.

[00:14:15] Speaker 05:
When do you want to stop?

[00:14:16] Speaker 06:
Yes, Your Honor.

[00:14:17] Speaker 06:
May I please the court?

[00:14:18] Speaker 06:
Amy Collier on behalf of the federal defendants.

[00:14:20] Speaker 06:
I plan to speak for 13 minutes and reserve two minutes for Mr. Jordan representing the state of Wyoming.

[00:14:26] Speaker 06:
I'd like to start by sort of breaking down what the claims are for the Section 7A1 claims that appellants have brought here today.

[00:14:34] Speaker 06:
I think there are two sort of issues there.

[00:14:37] Speaker 06:
There's what the statute requires the agency to do, but then there's also some helpful factual context in terms of what this actual plan amendment did.

[00:14:47] Speaker 06:
So to start with the statutory language itself, the statute requires federal agencies to carry out programs for the consul, utilize their authorities,

[00:14:56] Speaker 06:
to carry out programs for the conservation of listed species in consultation with the Fish and Wildlife Service.

[00:15:03] Speaker 06:
As Fish and Wildlife has determined in its regulations, as other courts have recognized in the few cases where this has arisen, agencies have quite a bit of discretion in determining how best to fulfill that conservation duty.

[00:15:18] Speaker 06:
And it stands in contrast just looking at the statute with Section 7A2, which applies specifically to agency actions.

[00:15:27] Speaker 06:
Whenever an agency acts, it's supposed to undertake this consultation process if there's

[00:15:32] Speaker 06:
risk of effects to listed species.

[00:15:35] Speaker 06:
But Section 7A1 doesn't apply to agency actions.

[00:15:38] Speaker 06:
It tells agencies to look at their conservation duty when carrying out programs.

[00:15:44] Speaker 06:
And courts have recognized that that means that the agency can't do nothing.

[00:15:47] Speaker 06:
It means that the agency can't rely on its other statutory obligations and say that we have no conservation duty because we have these other obligations.

[00:15:55] Speaker 04:
Could I just ask you on 7A1, has the 10th Circuit

[00:16:00] Speaker 04:
addressed the scope of 7A1?

[00:16:04] Speaker 06:
The 10th Circuit has not.

[00:16:06] Speaker 06:
There was a Wyoming District Court case, Coalition for Sustainable Resources, where the district court ruled on that, but when it came up to the 10th Circuit, this court vacated that decision, I think, on rightness grounds.

[00:16:19] Speaker 06:
So I don't think this court has squarely addressed that question.

[00:16:23] Speaker 06:
But the courts that have addressed it have looked specifically and said that there's that discretion there for an agency to determine how to carry out that duty.

[00:16:33] Speaker 05:
Can you clear up one point on that?

[00:16:36] Speaker 05:
Is it your position that the service had no duty to evaluate Thunder Basin for fair recovery?

[00:16:48] Speaker 06:
Because Section 7A1 doesn't speak to specific actions, it doesn't require every action an agency take to necessarily be one for conservation, but that you must look a little bit more broadly at what an agency is doing to fulfill that conservation duty.

[00:17:03] Speaker 06:
So here the Forest Service does things in other contexts to support ferret recovery.

[00:17:08] Speaker 06:
It works closely with Fish and Wildlife.

[00:17:10] Speaker 06:
It has other reintroduction sites.

[00:17:12] Speaker 06:
It's working on identifying other places to reintroduce ferrets.

[00:17:16] Speaker 06:
I don't think you can look just so narrowly at what is happening here, but that leads me to my second point, which is more the context and facts at issue in this case.

[00:17:26] Speaker 06:
Appellants, as they said today at oral argument and they say in their briefs, would much prefer the Forest Service have adopted the no action alternative and maintained what was in place from the 2009 plan amendment.

[00:17:40] Speaker 06:
But as the Forest Service repeatedly recognized in their EIS and in the Record of Decision, the prior version of the plan did not support ferret recovery, both because it did not maintain a stable prairie dog population.

[00:17:55] Speaker 06:
The recent experience with the rapid explosion in prairie dog population size and then rapid decline from plague really epitomized that.

[00:18:05] Speaker 02:
Well, one of the responses they make to that is that there was no attempt to mitigate the plague.

[00:18:13] Speaker 06:
Yeah, and I think this actually just highlights one of the issues that the Forest Service faced with the prior version of the plan.

[00:18:20] Speaker 06:
So if you look at the prairie dog numbers as they were growing so rapidly in 2015, 2016, 2017, these colonies were growing by tens of thousands of acres.

[00:18:30] Speaker 06:
And by the time 2017 rolled around, the Forest Service was dealing with widespread issues with encroachment onto non-federal land.

[00:18:38] Speaker 06:
And it made the decision to use its resources to address that pressing issue with the issues that prairie dogs cause to infrastructure, the hazards they may create on private land, rather than using the resources to potentially treat a couple thousand acres for plague.

[00:18:55] Speaker 06:
But at the same time, I will emphasize that the Forest Service was treating the reintroduction site at Kanata Basin for plague.

[00:19:02] Speaker 06:
It wasn't abandoning its duty to manage for this species, but it really showed the inflexibility of the prior plan and the inability for the Forest Service to maintain this manageable prairie dog population size ahead of time, deal with encroachment ahead of time, and really left the Forest Service struggling as this plague outbreak came about.

[00:19:23] Speaker 06:
So in terms of what the new plan amendment does is it again maintains an acreage, prairie dog acreage objective that is well above the amount that Fish and Wildlife has recognized is needed for a reintroduction site, which is 1,500 acres.

[00:19:40] Speaker 06:
well above the amount required for 30 ferrets.

[00:19:44] Speaker 06:
And also provides other sort of components that Fish and Wildlife has recognized are important for any reintroduction site, both in its recovery plan for the ferret and in for the 10-J rule for Wyoming itself.

[00:19:57] Speaker 04:
Could I just jump in?

[00:20:00] Speaker 04:
I've been interested that both of you started today with the ESA 781 issue.

[00:20:10] Speaker 04:
And you didn't, neither of you started with the NEPA issues.

[00:20:14] Speaker 04:
But if there's a problem on the NEPA issues for you, in other words, if we were to find that the purpose of need statement is too narrow, the range of alternatives, insufficient range of alternatives, you fail to take a hard look, do we even get to the 7A1 issue?

[00:20:35] Speaker 06:
I mean, it depends what the breadth of the court's decision there would be.

[00:20:41] Speaker 06:
I mean, if the court is deciding that the Forest Service needs to go back and do different analysis under NEPA, that's not necessarily an outcome-determinative decision.

[00:20:53] Speaker 04:
Why not?

[00:20:54] Speaker 04:
How can we evaluate whether the government satisfied the conservation mandate if, for example, it failed to take a hard look at the combined effects

[00:21:05] Speaker 04:
of these management controls.

[00:21:09] Speaker 04:
I mean, how can one even do a meaningful analysis if that's the case?

[00:21:13] Speaker 06:
So I think it would be hard for this Court to say that the conservation duty was not satisfied when the Forest Service... That wasn't my question.

[00:21:22] Speaker 04:
My question is could we even say one way or the other whether the conservation duty was satisfied?

[00:21:29] Speaker 06:
I wouldn't think so, because again, that involves sort of a technical evaluation of what the agencies are looking at.

[00:21:37] Speaker 06:
I do want to address the NEPA question if we want to get there to the hard look analysis, because I think that is what the court is most interested in.

[00:21:46] Speaker 04:
Well, I'm actually interested in something that nobody talked about, and I'm going to just say it briefly.

[00:21:53] Speaker 04:
But in looking at the EIS,

[00:21:56] Speaker 04:
There's actually two sets of purpose and needs lists.

[00:22:00] Speaker 04:
One is in the narrative part of it, the text part of it, and there's a different list in the table, table four.

[00:22:09] Speaker 04:
And why isn't that a problem for you?

[00:22:13] Speaker 06:
I don't know specifically what... Well, I'll tell you.

[00:22:17] Speaker 04:
I'll tell you.

[00:22:18] Speaker 04:
I think there's a pretty significant listing in Table 4 which says, refocus management in management area 3.67 to de-emphasize black-footed ferret reintroduction.

[00:22:31] Speaker 04:
That was nowhere in your text list of purpose and need.

[00:22:35] Speaker 04:
So there's an inconsistency in the EIS that seems to be pretty material.

[00:22:40] Speaker 06:
So I think that speaks specifically to the purpose of reevaluating the management direction for this management area.

[00:22:47] Speaker 04:
It wasn't in the list.

[00:22:49] Speaker 04:
And there it is here.

[00:22:50] Speaker 04:
What are we supposed to do with that?

[00:22:52] Speaker 06:
I think that does fall under the purpose of sort of revisiting that management directive.

[00:22:56] Speaker 06:
And that speaks in potentially different terms in that other list.

[00:23:00] Speaker 04:
Well, somebody didn't proofread the table because it's not the same as what's in the text.

[00:23:05] Speaker 04:
And here we are having to deal with that.

[00:23:09] Speaker 06:
I would point out the plaintiffs don't make that argument here.

[00:23:13] Speaker 04:
I understand that.

[00:23:14] Speaker 04:
It troubled me to see that, though.

[00:23:18] Speaker 06:
I understand, Your Honor.

[00:23:19] Speaker 04:
Because they have made the argument that the purpose and need statement is too narrow.

[00:23:24] Speaker 04:
And why isn't it?

[00:23:26] Speaker 04:
Especially the need about the availability of more lethal control and nothing about grazing.

[00:23:33] Speaker 06:
Certainly, Your Honor.

[00:23:34] Speaker 06:
So a couple of points on that.

[00:23:35] Speaker 06:
I think here we have, unlike the Simmons case, unlike some of the other cases at Appellant's site, we have the Forest Service has many, many years of experience with what is the prior version of the plan.

[00:23:47] Speaker 06:
with the no action alternative and determined that that just did not provide the flexibility to respond quickly and efficiently, effectively to various issues that arise.

[00:23:58] Speaker 06:
The Forest Service talks throughout the EIS about the other

[00:24:03] Speaker 06:
non-lethal control measures and how they are ineffective and have limits to their use.

[00:24:09] Speaker 06:
That's the EIS supplemental appendix 36, 76, 468.

[00:24:13] Speaker 06:
It talks specifically about the costs associated with the non-lethal measures at 131.

[00:24:21] Speaker 06:
It talks about how vegetation barriers, which is somewhat related to the grazing component.

[00:24:26] Speaker 04:
I'm still, I'm not getting your point.

[00:24:28] Speaker 04:
What is the point you're now trying to make?

[00:24:30] Speaker 06:
So the point is that the Forest Service had experience with a version of the plan that allowed for all of those non-lethal control measures, and that did not provide the ability to respond quickly, especially with in boundary management areas.

[00:24:43] Speaker 04:
But now you have a need for allowing more lethal control tools

[00:24:48] Speaker 04:
As I understand it, the purpose and need statement sets the meets and bounds for the range of alternatives.

[00:24:54] Speaker 04:
So you have more lethal controls in every alternative.

[00:24:57] Speaker 04:
Isn't that an indicator that it's too narrow?

[00:25:00] Speaker 06:
Well, more lethal controls under each alternative, but to different degrees, different thresholds, and different types of lethal control measures.

[00:25:07] Speaker 06:
But I would emphasize again that all of the non-lethal control measures remain available under all of the alternatives, and the Forest Service will continue to consider using those under the selected alternative and under the... If it comes across that really what we're talking about here is let's allow more poison and recreational shooting.

[00:25:27] Speaker 06:
I don't think that's fair, Your Honor.

[00:25:29] Speaker 06:
I think what the Forest Service looked at was... Well, it's in every alternative.

[00:25:34] Speaker 06:
Recreational shooting is prohibited in the management area under alternative four.

[00:25:39] Speaker 06:
Alternative four also has much greater restrictions on the use of rodenticides, higher thresholds for their use, don't allow fumigants in boundary zones.

[00:25:50] Speaker 04:
There are differing... You're running out of time and you wanted to say something about hard look.

[00:25:55] Speaker 02:
Do you want to do that really quickly?

[00:25:56] Speaker 02:
Yes, I will address that.

[00:25:58] Speaker 02:
Let me focus you a little bit because I've got a problem with the hard look at the combined effects of poisoning, plague, recreational shooting, and there's a citation that allegedly is saying where you

[00:26:17] Speaker 02:
say there's support that you took a hard look.

[00:26:19] Speaker 02:
We've looked at that citation, it doesn't support it.

[00:26:22] Speaker 02:
So if you can give us a 28J where you think you took a hard look at the combined effects, I would be happy to see it, but go ahead.

[00:26:31] Speaker 06:
Sure, so the impact analysis for Prairie Dogs specifically is an appendix E. It starts at EIS supplemental appendix 732 and goes about 20 pages.

[00:26:42] Speaker 06:
The determination and the rationales, which look at, it specifically says the combined effect of these alternatives, or of these planned components is at 751.

[00:26:53] Speaker 06:
But in the pages before that, when the Forest Service is looking at the various specific components, so for example, recreational shooting,

[00:27:01] Speaker 06:
at 744 as well as 736.

[00:27:05] Speaker 06:
It's looking at the studies that have evaluated recreational shooting.

[00:27:10] Speaker 06:
It's also looking at fish and wildlife's own determination in 2009.

[00:27:14] Speaker 06:
which it cites there and which itself looks at the impacts of recreational shooting and looks at the impacts of these activities and determine that even in states where recreational shooting is allowed, on grasslands where it happens, prairie dog populations continue to expand.

[00:27:30] Speaker 02:
And these are all individually looking at recreational shooting.

[00:27:34] Speaker 02:
They're looking at the poisoning.

[00:27:37] Speaker 02:
What I'm looking for is a hard look at the combined effects of all of those because in the prior

[00:27:43] Speaker 02:
reports, that was a concern.

[00:27:46] Speaker 06:
Yes, Your Honor.

[00:27:48] Speaker 06:
And I would point out that since those prior determinations, there have been additional measures to control plague that have been developed.

[00:27:55] Speaker 06:
There have been the Forest Service's own experience on the grassland in 2017 to 2018 to now where the prairie dog population

[00:28:02] Speaker 06:
declined rapidly and has started to rebound again.

[00:28:05] Speaker 06:
It's back up to about 10,000 acres in the management area.

[00:28:09] Speaker 06:
So it had that experience with the population declining rapidly and increasing.

[00:28:14] Speaker 06:
And then the rationales that it provides at 751 are ones that are applicable to each of those components and continue to provide prairie dog resilience and viability in the face of various threats.

[00:28:28] Speaker 06:
The Forest Service recognized that plague as fish and wildlife has also recognized is the greatest threat to the prairie dog population.

[00:28:36] Speaker 06:
And it has, in response to that, developed a particular integrated management approach that is specifically designed to address that, along with the other sort of components of maintaining a more manageable prairie dog population size, and including these sort of boundary control measures.

[00:28:52] Speaker 06:
I would like to just push back on the idea that this is open warfare on prairie dogs.

[00:28:57] Speaker 06:
There are limits to the use of rodenticide.

[00:29:00] Speaker 04:
Did anybody say that?

[00:29:01] Speaker 06:
I think the Pellants Council did say that this was sort of a war zone for prairie dogs in their argument, and I just want to push back on that.

[00:29:08] Speaker 06:
The Forest Service feels very strongly about preserving this habitat.

[00:29:12] Speaker 06:
for prairie dogs and for the species that depend on it.

[00:29:15] Speaker 06:
To Judge McHugh's question on supplementation, if fish and wildlife decides to reintroduce ferrets and it's successful, at appendix volume five, page 98, the Forest Service discusses supplementing if that happens.

[00:29:30] Speaker 05:
And in terms of how many- Who decides when and where the ferret reintroduction would be?

[00:29:35] Speaker 06:
That would be fish and wildlife.

[00:29:37] Speaker 06:
That is not the Forest Service's decision.

[00:29:39] Speaker 06:
It works closely with the state of Wyoming to identify sites that would be receptive to it, but it's fish and wildlife's determination.

[00:29:47] Speaker 06:
And again, fish and wildlife has been working on rebuilding this fair population for decades.

[00:29:52] Speaker 06:
it's not gonna put 100 of its precious resources in one location without establishing that there's a stable prairie dog population, there's boundary control, there's plague management, which is all of the things that this plan amendment does.

[00:30:06] Speaker 06:
Just to judge Madison's question, I think there's about 10 to 20 prairie dogs per acre is my understanding of the amount.

[00:30:14] Speaker 04:
That's the conversion?

[00:30:16] Speaker 06:
Yeah, and I don't have the site in front of me, but it is in the IS.

[00:30:19] Speaker 05:
Okay, thank you.

[00:30:20] Speaker 05:
We took most of Wyoming's time, so Mr. Jordan, you can have two minutes.

[00:30:30] Speaker 05:
Can you give him two?

[00:30:35] Speaker 05:
Thank you, Your Honor, for your... Hold on, let's get... Oh, of course.

[00:30:39] Speaker 05:
All right, whenever you're ready.

[00:30:41] Speaker 00:
Thank you, Your Honor, for your generosity.

[00:30:42] Speaker 00:
Travis Jordan, for the State of Wyoming.

[00:30:45] Speaker 00:
For the past nine years under the 10-J rule, the state of Wyoming working with the Fish and Wildlife Service has been reintroducing ferrets across the state of Wyoming.

[00:30:53] Speaker 00:
That rule here is relevant for the section seven question.

[00:30:57] Speaker 00:
I prefer to use my limited time to talk about two things and clarify things that were said by the appellants.

[00:31:04] Speaker 00:
First and foremost, the appellants, when referencing the hundred ferret recovery goal, are confusing recovery with reintroduction.

[00:31:14] Speaker 00:
Black-footed ferret recovery is a marathon, it is not a sprint.

[00:31:19] Speaker 00:
As Arad explains at page eight, the goal is to start with 30 ferrets.

[00:31:23] Speaker 00:
The continual reference is to the Cantana Basin.

[00:31:26] Speaker 00:
Keep in mind that that 10-J rule for South Dakota has been in place for almost three decades.

[00:31:31] Speaker 00:
They have a 20-year start on the Thunder Basin.

[00:31:35] Speaker 00:
And the goal in Wyoming's own ferret reintroduction sites, both of which are on the western side of the divide,

[00:31:41] Speaker 00:
The Shirley Basin has been developed for almost three decades.

[00:31:47] Speaker 00:
So the point being is that the Forest Service, the State of Wyoming, and the Fish and Wildlife Service start small, and they need to start small.

[00:31:55] Speaker 00:
The last thing is the appellant suggestion that the Thunder Basin is the only location

[00:32:00] Speaker 00:
in which black-tailed prairie dogs are capable of supporting ferrets is a little disingenuous.

[00:32:06] Speaker 00:
I'd encourage the court to look at the appellant's record at volume two, page 244, which identifies six to eight sites across eastern Wyoming where black-tailed prairie dogs could be capable of supporting reintroductions.

[00:32:21] Speaker 00:
as well as the distribution map in the state of Wyoming's map, the supplemental appendix, 084.

[00:32:26] Speaker 00:
And then finally, the 10-J rule, which recognizes at that time in 2016, there were well over 200,000 acres of black-tailed prairie dog populations in Eastern Wyoming that might be able to support a reintroduction.

[00:32:38] Speaker 00:
With that, Your Honor, the state would like to join the Forest Service in asking this court to affirm.

[00:32:44] Speaker 00:
And thank you for the opportunity to provide it.

[00:32:45] Speaker 00:
Thank you, Councilman.

[00:32:46] Speaker 00:
We appreciate your succinct statement.

[00:32:47] Speaker 05:
And there's a little bit of rebuttal time for Ms.

[00:32:50] Speaker 05:
Baxson.

[00:33:02] Speaker 01:
First I would like to note that I agree with this court in its assessment that there is no combination.

[00:33:08] Speaker 01:
There is no analysis of the combination of these threats and I don't feel like any of the sites that have been given to you have that combination in it and I have indeed read through the entire EIS and I have not found it myself.

[00:33:22] Speaker 04:
Quick question about purpose and needs.

[00:33:25] Speaker 04:
Your focus is on the lethal controls need but there's

[00:33:31] Speaker 04:
three needs and four purposes or two needs.

[00:33:36] Speaker 04:
Anyway, that isn't the only listed need.

[00:33:39] Speaker 04:
If you've only focused on that one, why is the purpose of needs statement too narrow?

[00:33:46] Speaker 01:
That's where the Simmons case is really helpful, because when you include some aspect of a purpose and need that is too narrow, it augments the range of alternatives that can come out of it.

[00:33:55] Speaker 01:
And it ends up defining how something like

[00:34:01] Speaker 01:
The third purpose, I believe it was, that was to address resource conflicts between prairie dog occupancy and grazing is decided.

[00:34:10] Speaker 01:
And it was decided for livestock grazing interests.

[00:34:13] Speaker 04:
It was decided to... How would you respond to Ms.

[00:34:15] Speaker 04:
Collier's point that all the management controls are still available?

[00:34:20] Speaker 01:
I think in our reply brief we cite to, and I apologize, I know it's in the brief, but I can't remember the actual site, that non-lethal controls remain available if requested.

[00:34:33] Speaker 01:
And this assertion that these non-lethal controls were ineffective is also in itself disingenuous because they haven't actually enacted the full plan since 2011.

[00:34:44] Speaker 01:
2011 was the last time they tried translocation.

[00:34:48] Speaker 01:
There is no evidence in the record that they ever attempted grazing changes, which was another

[00:34:54] Speaker 01:
non-lethal component or vegetation barriers.

[00:34:57] Speaker 01:
And in our supplemental appendix in the 2014 prairie dog management document, it talks about a boundary fence that they put in that was highly successful.

[00:35:08] Speaker 01:
It did stop prairie dogs from going onto adjacent lands until a permittee required that it be removed.

[00:35:15] Speaker 01:
So these non-lethal methods could be very effective.

[00:35:19] Speaker 01:
We have no idea, they were never tried.

[00:35:22] Speaker 01:
And then the last thing that I really wanted to hit was that the Fish and Wildlife Service recovery objectives do require 10 populations of 100 breeding adults before delisting can be achieved.

[00:35:35] Speaker 01:
And that is nationwide, but this area prior to this management change could have fulfilled one of those population objectives.

[00:35:45] Speaker 05:
Council, thank you.

[00:35:46] Speaker 05:
Your time is expired.

[00:35:47] Speaker 05:
Council are excused.

[00:35:48] Speaker 05:
We appreciate the fine arguments.

[00:35:50] Speaker 05:
The case shall be submitted.