[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:04] Speaker 00:
My name is Kelly Noakes, appearing on behalf of Appellant's Western Watersheds Project and Wilderness Watch.

[00:00:09] Speaker 00:
I would like to reserve four minutes of my time for rebuttal, please.

[00:00:13] Speaker 00:
Mexican wolves were once on the brink of extinction, reduced to only seven individuals in the wild, in large part because of livestock grazing on federal lands and the resulting impacts and conflicts that this activity causes.

[00:00:25] Speaker 00:
Now, after a quarter century of conservation efforts and millions of dollars spent, wolves are finally beginning to recover across their historic southwest range.

[00:00:35] Speaker 00:
But despite this project, the Forest Service failed to consider, study, and disclose the impacts of authorizing livestock grazing in the exact location that the experts have designated as where these recovering wolves should live, roam, and reproduce, and where the population is now expanding back into.

[00:00:54] Speaker 00:
While the Forest Service recognized Mexican wolves would likely re-occupy this area, and indeed the wolves have since returned, the agency failed to consider any of the well-known impacts of grazing on wolves as the National Environmental Policy Act requires.

[00:01:10] Speaker 04:
When you talk about the area, are you speaking of the entire experimental project area that however many acres it is, it's a very large amount of territory covering most of Arizona, if not all of it?

[00:01:24] Speaker 00:
The Mexican Wolf experimental population area does cover portions of New Mexico and Arizona that does expand beyond the 270,000 acres that are at issue in this case.

[00:01:35] Speaker 04:
And the state land project at issue here relates to I believe 13 parcels that are

[00:01:42] Speaker 04:
a much smaller area, is that correct?

[00:01:45] Speaker 00:
That is correct, Your Honor.

[00:01:46] Speaker 00:
However, all of the parcels that are at issue, all of the allotments at issue in this case, are located in management zone one of the recovery area.

[00:01:53] Speaker 04:
They are something like 3.5 percent of management area zone one?

[00:01:59] Speaker 00:
That is correct.

[00:01:59] Speaker 00:
It's about 3.5 percent of the experimental population area.

[00:02:03] Speaker 04:
So I think for me, something that was very significant was the forced service finding that the wolves don't have dens

[00:02:11] Speaker 04:
in this particular area, all these sorts of things they look at as to whether the wolves are there, and they found that they are not.

[00:02:18] Speaker 04:
And that was a reason why they concluded that allowing grazing to continue in this area, as it has for decades, would not pose a significant threat to the wolves.

[00:02:31] Speaker 04:
I mean, so what is your response to that, that in your brief it seemed to be that while

[00:02:37] Speaker 04:
these activities have caused the loss of the wolves in the past.

[00:02:42] Speaker 04:
And so the Forest Service isn't sufficiently considering that, but they made specific findings about where the wolves are now or where they were at the time of the study.

[00:02:52] Speaker 00:
Yes, Your Honor.

[00:02:53] Speaker 00:
While there were no known documented wolves on the allotments, with the exception of one allotment, the government did admit in the biological assessment that was prepared for this case that there was one known wolf livestock interaction on the Elma Mesa allotment, which is farther to the north of the allotments at issue in this case.

[00:03:11] Speaker 00:
The population has been growing, which is great.

[00:03:13] Speaker 00:
We're excited that wolves are starting to recover, but with that comes the expansion of the population as well.

[00:03:19] Speaker 00:
And the Forest Service has admitted that it expected and anticipated wolves would be returning to these allotments at issue in this case.

[00:03:26] Speaker 04:
And then they had findings and recommendations in case there were.

[00:03:31] Speaker 04:
encounters between livestock and the wolves.

[00:03:33] Speaker 04:
Is that correct?

[00:03:34] Speaker 00:
There are limited mitigation measures that were included in the government's analysis.

[00:03:39] Speaker 00:
However, the listing of mere mitigation measures alone is insufficient under this court's precedent.

[00:03:45] Speaker 00:
The agency still needed to consider what the impacts that

[00:03:48] Speaker 00:
are being sought to be ameliorated by those mitigation measures are, and the agency failed to do that here.

[00:03:54] Speaker 00:
There's nowhere in the environmental assessment, in the ESA consultation documents that the agency points to that actually looks at the impacts to the Mexican wolves.

[00:04:04] Speaker 04:
Do you think that the Fish and Wildlife Service reports, which are incorporated by reference, I guess there's two issues.

[00:04:12] Speaker 04:
One, is that sufficient to incorporate them by reference?

[00:04:15] Speaker 04:
And two, do you think those documents address

[00:04:18] Speaker 04:
your concerns with the sufficiency of the findings?

[00:04:21] Speaker 00:
No, Your Honor.

[00:04:22] Speaker 00:
While the agency may look to endangered species at consultations in a NEPA analysis to inform its analysis, here the documents that the agency points to are insufficient.

[00:04:31] Speaker 00:
First, the biological assessment that was prepared in this case was prepared for only two allotments, the Blackjack and Hickey allotments, which were further to the south of the project area.

[00:04:40] Speaker 00:
And in that document, the biological assessment notes that there was the wolf-lifestock conflict on the Alma Mesa allotment.

[00:04:48] Speaker 00:
yet it still doesn't look at any of the impacts of grazing on Mexican wolves.

[00:04:52] Speaker 04:
But what happened in that encounter, as I understand it, no wolves were moved as a result.

[00:04:57] Speaker 04:
Essentially nothing happened.

[00:04:58] Speaker 00:
No wolves were removed as a result of that livestock conflict situation.

[00:05:02] Speaker 00:
But it is evidence of the fact that conflicts can arise and that impacts could occur as a result of this activity in the heart of the Mexican wolves' recovery area.

[00:05:12] Speaker 00:
I would also note that the streamlined consultation forms that the government points to also just reiterate the species status under the Endangered Species Act and once again don't include any impacts analysis.

[00:05:24] Speaker 00:
There's no discussion, no consideration of what the actual impacts to Mexican wolves are.

[00:05:30] Speaker 00:
And because Mexican wolves are listed as an experimental non-essential population, formal consultation was never required for Mexican wolves.

[00:05:38] Speaker 00:
So that's why the NEPA document here is so important.

[00:05:42] Speaker 00:
The NEPA document is where the government had the opportunity and the requirement to actually analyze the impacts of its action on this species on the environment at issue here.

[00:05:56] Speaker 00:
I would like to point out additionally that the

[00:06:00] Speaker 00:
The government relies on the no jeopardy finding throughout its briefing as far as the no jeopardy finding having significance, but the no jeopardy finding is not based on any analysis either.

[00:06:11] Speaker 00:
That no jeopardy finding is simply based on the species status as experimental non-essential in the status alone, which does not equate to an impacts analysis as NEPA requires.

[00:06:25] Speaker 00:
And this Court has held in Conservation Congress that the Forest Service can't conflate the Endangered Species Act and the National Environmental Policy Act.

[00:06:32] Speaker 00:
And it can't rely on any alleged compliance with the ESA as a substitute wholly for the NEPA compliance here.

[00:06:38] Speaker 00:
A no jeopardy finding does not mean that no impacts will occur.

[00:06:43] Speaker 03:
What impact do you think should have been identified and studied?

[00:06:47] Speaker 00:
The type of impacts that should have been considered are the impacts of conflict situations and the associated removals.

[00:06:53] Speaker 00:
of Mexican wolves from the landscape?

[00:06:56] Speaker 03:
From an area where they were not known to inhabit.

[00:06:59] Speaker 00:
At the time of the decision.

[00:07:00] Speaker 03:
Well, that's sort of what I'm getting to.

[00:07:04] Speaker 03:
You propose that the population could expand and the area occupied by these plots make up a small fraction of that area

[00:07:23] Speaker 03:
with Area 1.

[00:07:25] Speaker 03:
And so, yes, they could expand, but I'm not sure what conclusion that points to.

[00:07:34] Speaker 03:
That doesn't suggest there are going to be any further risk to them in the areas that they currently inhabited at that time.

[00:07:41] Speaker 03:
And the expansion could go into other parts not occupied by the Forest Service Land in question here.

[00:07:48] Speaker 03:
So I'm not sure I really understand how a greater risk

[00:07:53] Speaker 03:
to that species exists as a result of this program?

[00:07:57] Speaker 00:
Well, Your Honor, the issue is the cumulative impacts on the species' recovery potential overall.

[00:08:02] Speaker 00:
They've increased in numbers.

[00:08:05] Speaker 04:
So from 2015 to 2020, the wolf population increased, and the grazing that was allowed was at higher amounts than under the state line project.

[00:08:16] Speaker 04:
So I'm having a hard time reaching your conclusion.

[00:08:21] Speaker 04:
that there's a risk to the entire species when the species has been increasing with higher amounts of grazing.

[00:08:28] Speaker 00:
That is correct that the grazing has been reduced in this project and the population has been expanding, has been growing.

[00:08:34] Speaker 00:
But with that growth comes the expansion of the population.

[00:08:37] Speaker 00:
It's notable that all of the allotments that issue.

[00:08:40] Speaker 03:
It may not expand as much as you would hope.

[00:08:42] Speaker 03:
I'm not sure I understand what threat is posed by that.

[00:08:46] Speaker 03:
I mean, why isn't identifying that, which is what I gleaned from looking at the documents,

[00:08:52] Speaker 03:
sufficient to conclude that the risk is not going to be greater under this project?

[00:08:56] Speaker 00:
This is the first NEPA analysis of grazing's impacts in this environment on these allotments ever.

[00:09:02] Speaker 00:
This is the first time the government is actually taking a look at this long-standing activity's impacts on Mexican wolves, and it failed to consider the cumulative impacts to the species' genetic health, for example.

[00:09:14] Speaker 03:
See, I hear you give me those words.

[00:09:16] Speaker 03:
I don't understand what they mean.

[00:09:18] Speaker 03:
If, as Judge Beatty just pointed out,

[00:09:21] Speaker 03:
The population has been expanding.

[00:09:24] Speaker 03:
The grazing proposed under this project is reduced.

[00:09:28] Speaker 03:
I'm having trouble figuring out exactly what the threat is.

[00:09:31] Speaker 00:
The threat is to the species' recovery overall from livestock grazing.

[00:09:35] Speaker 00:
The types of impacts that the agency never considered were the impacts of removals on the species' genetic health or the impacts of prey displacement of the Mexican wolves' native prey by cows on the landscape.

[00:09:49] Speaker 00:
None of these issues were ever considered by the agency as it should have as NEPA requires in requiring the agency to take a direct... You keep telling me what NEPA requires.

[00:09:57] Speaker 03:
I still don't understand what the real impact is.

[00:10:00] Speaker 03:
And I'll give up after this.

[00:10:02] Speaker 03:
But if the population is expanding and this project approves less grazing than before, exactly what's the threat?

[00:10:11] Speaker 00:
Well, Mexican wolves are one of the most critically imperiled species.

[00:10:15] Speaker 00:
They were derived from only seven founding members, and so their genetic health is in dire straits.

[00:10:21] Speaker 00:
One of the key threats to the species' recovery is the genetic health of the wild population.

[00:10:26] Speaker 00:
Mexican wolves are being reintroduced actively into this area.

[00:10:30] Speaker 00:
Zone one is the area of the recovery zone where releases will occur, where the animals are intended to

[00:10:37] Speaker 00:
and expected to and encouraged to live, survive, reproduce, and roam.

[00:10:42] Speaker 00:
The Mexican wolf experimental population area is geographically limited to below south of I-40.

[00:10:49] Speaker 00:
And so this is the key area where the experts have determined that Mexican wolves are being encouraged to be reintroduced into.

[00:10:56] Speaker 04:
So I-40 runs across the top of the state, right?

[00:11:00] Speaker 04:
That's correct.

[00:11:00] Speaker 04:
So it is limited to south of I-40.

[00:11:02] Speaker 04:
You're essentially saying it's limited to seven-eighths of Arizona.

[00:11:06] Speaker 04:
I mean, there's a huge amount of territory.

[00:11:08] Speaker 04:
And if only 3.5 percent of zone one is where the wolves are being introduced, that means like 96.5 percent of that zone has no impact whatsoever.

[00:11:18] Speaker 04:
The wolves can be, there's no grazing.

[00:11:20] Speaker 04:
It's not going to be an impact.

[00:11:23] Speaker 00:
But that's incorrect, because there is grazing.

[00:11:25] Speaker 00:
The state line decision at issue here only covers these 14 allotments as part of the state line grazing project.

[00:11:31] Speaker 00:
However, livestock grazing occurs elsewhere throughout the Mexican wolf experimental population area, elsewhere on the two national forests that are at issue here in the Apache sick greaves and the Gila National Forest.

[00:11:43] Speaker 00:
The Forest Service has limited this project decision to the 14 allotments that are at issue in this case.

[00:11:49] Speaker 00:
But that does not mean that grazing doesn't occur elsewhere throughout the Mexican wolves recovery area.

[00:11:54] Speaker 00:
And that's the key issue here, the fact that the cumulative impacts of removals here on the 14 state line allotments could add up to something more when you look at the cumulative impacts of grazing elsewhere in the species habitat and in combination with the illegal killing of Mexican wolves or prey displacement impacts

[00:12:13] Speaker 00:
These are all the types of impacts that the government just failed to consider in this first ever NEPA analysis of grazing's impacts on Mexican wolves in the heart of their recovery zone here.

[00:12:24] Speaker 04:
So there are two other findings in the district court's decision with respect to whether the Forest Service took a sufficiently hard look at the project's potential effect on the Blue Range primitive area and on inventory

[00:12:42] Speaker 04:
roadless areas, and I did not see any challenge in your briefs to those findings.

[00:12:47] Speaker 04:
Have you abandoned that challenge on appeal?

[00:12:51] Speaker 00:
We have included the significance factors analysis for our argument that an environmental impact statement was required.

[00:13:01] Speaker 00:
We point to the unique characteristics of the geographic area of the state line project, including the wilderness areas at issue.

[00:13:09] Speaker 00:
the Blue Range Primitive Area, which is managed as wilderness, as well as the inventoried roadless areas that are at issue to help describe the unique ecological characteristics of this project to point to one of the significance factors that shows that EIS was warranted in this case.

[00:13:29] Speaker 04:
Okay.

[00:13:29] Speaker 04:
So I didn't see any argument in your brief about the district court's findings on those two areas.

[00:13:35] Speaker 00:
You're saying it's there because it's discussed in background?

[00:13:38] Speaker 00:
It's discussed in the environmental impact statement required section of the brief at the very end.

[00:13:47] Speaker 00:
Our argument that an environmental impact statement was required is based on the significance factors of adverse impacts to listed species such as Mexican wolves and the fact that unique characteristics including the project area's role as an ecologically critical area for Mexican wolves and the unique characteristics of the wilderness

[00:14:07] Speaker 00:
lands that are at stake, the wilderness resources and the roadless area resources here warrant preparation of an environmental impact statement.

[00:14:17] Speaker 02:
And would an EIS have to cover more than just the allotments at issue that are proposed that are at issue here?

[00:14:24] Speaker 00:
No, Your Honor.

[00:14:25] Speaker 00:
I believe that an environmental impact statement that analyzes, that takes a hard look at the impacts of

[00:14:32] Speaker 00:
grazing on these 14 allotments would be sufficient to support the decision notices for grazing on these 14 allotments.

[00:14:42] Speaker 02:
Because I thought in your answer to Judges Beatty and Clifton, I thought that we were going to have to consider the impact on grazing outside of those allotments.

[00:14:53] Speaker 00:
That could be considered as part of the cumulative impacts of grazing on Mexican wolves.

[00:14:58] Speaker 00:
Grazing does occur outside of these 14 allotments.

[00:15:00] Speaker 02:
So does the EIS have to deal with grazing generally, or does it just have to deal with grazing on the 14 allotments at issue here?

[00:15:06] Speaker 00:
Well, I think it's tied to the cumulative impacts.

[00:15:09] Speaker 00:
When you're looking at the impacts of grazing on these 14 allotments, you should consider the cumulative impacts of grazing on the species overall.

[00:15:16] Speaker 00:
Grazing has impacts that stretch farther than the bounds of this project area.

[00:15:32] Speaker 00:
Unless Your Honors have no further questions, I'll save my remaining time for rebuttal.

[00:15:35] Speaker 00:
Thank you.

[00:15:36] Speaker 04:
Thank you.

[00:15:50] Speaker 01:
Good morning, and may it please the court.

[00:15:52] Speaker 01:
Kyle Glenn appearing on behalf of the Forest Service.

[00:15:55] Speaker 01:
Your Honors, I'll start with plaintiff's claim that the Forest Service failed to take a hard look at potential wolf impacts.

[00:16:01] Speaker 01:
before turning to their related claim that environmental impact statement was required here.

[00:16:07] Speaker 01:
On the hard-look claim, the ultimate question here is simply one of reasonableness, is whether the agency undertook a reasonably thorough analysis of the action's likely environmental impacts.

[00:16:18] Speaker 01:
In the environmental assessment of informed readers that the analysis of potential wolf impacts here was shaped by the agency's consultation with the Fish and Wildlife Service.

[00:16:31] Speaker 01:
Those consultations revealed a number of basic facts that plaintiffs have not disputed here today or at any point during the litigation.

[00:16:41] Speaker 01:
On 13 of the active grazing allotments, there's no wolf dens, no wolf packs, no territory, no rendezvous site.

[00:16:51] Speaker 01:
The one allotment that's within the wolf's occupied range at the time of the decision was the Alma Mesa allotment.

[00:16:59] Speaker 01:
And despite grazing occurring on that allotment at the same amount as what the project reauthorized, there was only one conflict in early 2018, and that one conflict did not lead to any wolf removal.

[00:17:13] Speaker 01:
Removals of wolves from the wild being the chief impact that plaintiffs have said that the Forest Service failed to take a hard look at.

[00:17:23] Speaker 01:
So plaintiffs have offered no explanation why in light of these

[00:17:28] Speaker 01:
background facts or they point to nothing in the administrative record that indicates that future removals of wolves from the wild are likely to result from grazing on these allotments.

[00:17:41] Speaker 01:
Moreover, as to the point about Zone 1 being a critical area where the wolf is primarily reintroduced, there's nothing in either the 1998 or the 2015 10-J rule from the Fish and Wildlife Service

[00:17:57] Speaker 01:
that says that this part of the project area allotments within Zone 1 or that Zone 1 generally is the sort of wolf sanctuary that plaintiffs have suggested it is.

[00:18:14] Speaker 01:
Reintroduction of wolves into this area is predicated on wolves adapting to current land uses like livestock grazing.

[00:18:26] Speaker 01:
The issue of the agency relying on fact findings made during the Endangered Species Act consultations, as we discussed in our brief, this Court has already squarely rejected in Environmental Protection Information Center and Francis Santa Clara River that NEPA requires an agency to ignore

[00:18:49] Speaker 01:
findings made as part of its Endangered Species Act analysis.

[00:18:53] Speaker 01:
It's certainly reasonable to keep, or it was certainly reasonable for the Forest Service to keep the environmental assessments discussion of potential wolf impacts brief in light of what the consultations here revealed.

[00:19:08] Speaker 01:
To the extent that it's been suggested here today that the consultation information should be cast aside because

[00:19:15] Speaker 01:
the findings here were not made as part of a formal consultation.

[00:19:20] Speaker 01:
We acknowledged that in Environmental Protection Information Center there was a formal consultation, but this court had noted that the agency didn't rely just on a biological opinion, but also on numerous other sources of information, like a biological assessment.

[00:19:35] Speaker 01:
And although the biological assessment here was primarily

[00:19:40] Speaker 01:
prepared to assess impacts on other species, it did discuss the Mexican gray wolf.

[00:19:47] Speaker 01:
Moreover, in Friends of Santa Clara River, which upheld an environmental assessment that relied in part on findings made under the Endangered Species Act, there was no formal consultation at all in that case.

[00:20:03] Speaker 01:
In fact, there was an Endangered Species Act claim, independent from the NEPA claim,

[00:20:08] Speaker 01:
that the agency was required to formally consult the National Marine Fisheries Service.

[00:20:13] Speaker 01:
So there's nothing that supports, you know, casting aside the Endangered Species Act findings here because they were not prepared as part of a formal consultation.

[00:20:26] Speaker 04:
What is the significance of the wolf status as an experimental non-essential population?

[00:20:35] Speaker 04:
Is it the government's position that,

[00:20:37] Speaker 04:
because this area is deemed nonessential, that the Forest Service didn't have any duty under NEPA to analyze the project's effects on this subspecies?

[00:20:49] Speaker 01:
No, Your Honor, that is not our position here.

[00:20:52] Speaker 01:
If the Forest Service simply noted that the wolf was a nonessential population and stopped its NEPA analysis at that and didn't look at anything else, we acknowledge that would be a problem.

[00:21:04] Speaker 01:
But there is much more here to the Forest Service noting that

[00:21:07] Speaker 01:
the wolf was a non-essential population and that this action was not likely to jeopardize it.

[00:21:13] Speaker 01:
And this gets into the next point I wanted to make about these informal consultation forms.

[00:21:19] Speaker 01:
These forms were not, these forms were detailed and not conclusory as plaintiffs have suggested.

[00:21:26] Speaker 01:
The Forest Service and Fish and Wildlife Service as discussed in the Fish and Wildlife Service's concurrence letters had a two-day meeting where they discussed

[00:21:38] Speaker 01:
information to put in these forms.

[00:21:40] Speaker 01:
There was a lot of back and forth over email and phone over the information to put in these forms.

[00:21:45] Speaker 01:
And the Forest Service actually made changes to these forms based on information that it learned in consultation with the Fish and Wildlife Service.

[00:21:53] Speaker 01:
These forms also noted that there were ground level survey efforts, trapping and identification efforts on each allotment to identify potential wolf presence and found none except for, again, the Yama Mesa allotment being the only

[00:22:08] Speaker 01:
one within the wolf's occupied range.

[00:22:11] Speaker 04:
But I think that plaintiff's point is that the reason there are no wolves or very few wolves is because of historic activities, human activities, grazing.

[00:22:22] Speaker 04:
And so the fact that these 14 allotments, there's no evidence of wolf presence, that's the result of these historical impacts.

[00:22:32] Speaker 04:
And so the Forest Service should have

[00:22:35] Speaker 04:
gone beyond the absence of the wolves on these allotments and taken a harder look and perhaps after they had an impact statement.

[00:22:47] Speaker 01:
Well, Your Honor, I do believe that the Forest Service here went beyond merely looking at the absence of wolves on certain allotments.

[00:22:55] Speaker 01:
In the biological assessment, it accounted for how on the Yama Mesa allotment, there were reports of uncolored wolves on that allotment.

[00:23:03] Speaker 01:
and it accounted for how because that allotment is not far from the blackjack and hickey allotments, there's a potential for wolves to travel onto those allotments.

[00:23:15] Speaker 01:
However, it recently found that any impacts from livestock interaction would be minimal considering that grazing had been ongoing for the past several decades and had not led to any removals of wolves from the wild.

[00:23:34] Speaker 01:
I'd like to turn to Planoff's point, relatively, on the cumulative impacts claim.

[00:23:42] Speaker 01:
The only argument that's really been developed here on cumulative impacts is Planoff's argument regarding genetic threats to the wolf.

[00:23:52] Speaker 01:
And it's not just genetic threats to the wolf in the abstract, it's genetic threats resulting from removals of wolves from the wild.

[00:24:01] Speaker 01:
But again, the Forest Service,

[00:24:03] Speaker 01:
took a hard look and reasonably found that removals of wolves from the wild were not likely to result from ongoing grazing on these allotments.

[00:24:13] Speaker 01:
And in fact, it adopted a number of measures short of wolf removal that it could implement to avoid, you know, exacerbating that risk.

[00:24:24] Speaker 01:
So in light of the fact that there was nothing indicating that wolf removals were likely, it's unclear why the environmental assessment

[00:24:32] Speaker 01:
which is a document, of course, by its nature, that's intended to be a concise explanation of why the agency is finding no significant impact, had to engage in this tangential effect, or this tangential discussion of potential genetic threats to the wolf.

[00:24:51] Speaker 01:
Indeed, as has been discussed today, the wolf has, its population has been increasing.

[00:24:57] Speaker 01:
There's been an increase in the wolf population over each of the past eight years.

[00:25:01] Speaker 01:
with record numbers of pups and breeding pairs in the wild.

[00:25:06] Speaker 01:
So there simply is nothing in the record that indicates that there's been a spillover effect from grazing on these allotments that might impact wolves in other allotments.

[00:25:20] Speaker 04:
How frequently does the Forest Service conduct this sort of assessment?

[00:25:25] Speaker 04:
The government's position is now the wolves are increasing and we didn't see a threat to them by allowing this project.

[00:25:35] Speaker 04:
When do you reassess that and what if it starts to have an impact on the wolves?

[00:25:40] Speaker 04:
How would you know?

[00:25:42] Speaker 01:
Your Honor, well, the project has ongoing monitoring built into it and as the grazing consultation forms note, permittees have a responsibility

[00:25:54] Speaker 01:
to report wolf livestock interactions.

[00:25:57] Speaker 01:
If wolf depredation on livestock becomes a significant issue, which the record at the time of the decision indicated it would not be, then both the Endangered Species Act regulations and NEPA require the Forest Service to take that information to account and potentially prepare a supplemental NEPA analysis or re-consult with the Fish and Wildlife Service.

[00:26:23] Speaker 01:
Plaintiffs have not made any assertion that since the project has been authorized that these wolf issues have or any wolf issues have arisen or that any supplementation was necessary.

[00:26:37] Speaker 01:
The decision notices were each issued in late 2019 and early 2020 and authorized immediate implementation.

[00:26:46] Speaker 01:
So grazing has been ongoing under the project for the past five years.

[00:26:56] Speaker 01:
On the hard look claim, once you remove the premise that the Forest Service was unable to rely on its findings made as part of the Endangered Species Act consultation, the rest of their hard look claim sort of falls apart.

[00:27:15] Speaker 01:
Again, the Forest Service recently found that there's no significant likelihood of wolf removal from conflicts on these allotments.

[00:27:25] Speaker 01:
Because the genetic threats claim is tied to wolf removal specifically, which the Forest Service found was not likely to happen, it's unclear, again, why the Forest Service had to engage in any discussion of genetic threats.

[00:27:42] Speaker 01:
Plaintiffs made a brief mention of their prey displacement theory.

[00:27:46] Speaker 01:
We believe that theory is both waived and forfeited for the reasons we explained in our briefing.

[00:27:52] Speaker 01:
But in any event, the environmental assessment

[00:27:55] Speaker 01:
in the Terrestrial Wildlife Report that had been incorporated by reference discussed potential prey impacts at length.

[00:28:04] Speaker 01:
Turning away from the hard look claim to the environmental impact statement claim, plaintiff's arguments on this point largely, as to the wolf, largely repeat their hard look points.

[00:28:17] Speaker 01:
And I would like to briefly note regarding Judge Bybee's question,

[00:28:22] Speaker 01:
about an environmental impact statement as to other allotments, the Fish and Wildlife Service has already conducted two environmental impact statements in conjunction with each 10-J rule, both in 1998 and in 2015.

[00:28:35] Speaker 01:
In both of those analyses, the Fish and Wildlife Service determined that livestock grazing on lands throughout the experimental population area

[00:28:51] Speaker 01:
was not likely to significantly impact the wolf.

[00:28:56] Speaker 01:
So it's unclear why the Forest Service had to reengage in that same analysis here when it recently found that wolf removals or conflicts were not likely to result.

[00:29:10] Speaker 04:
So why do we consider the Fish and Wildlife Service reports?

[00:29:15] Speaker 04:
Is it because they're incorporated in the Forest Service

[00:29:20] Speaker 04:
of no significant impact?

[00:29:23] Speaker 04:
Another point is do we consider responses to the public comments?

[00:29:28] Speaker 04:
What all gets scooped into the environmental assessment?

[00:29:34] Speaker 01:
Well, Your Honor, the Fish and Wildlife Service or the Forest Service, of course, look to the 10-J rules in conducting its NEPA analysis.

[00:29:45] Speaker 01:
I do think that the Court can look to the public comments as well.

[00:29:49] Speaker 01:
And of course, I think it's important to note that the public comments read the environmental assessment here as the district court read it as saying wolves had not yet established a presence in the project area.

[00:30:09] Speaker 01:
I'll turn briefly to plaintiff's remaining claim regarding the special management areas.

[00:30:16] Speaker 01:
On this point, the briefing does talk about

[00:30:19] Speaker 01:
special management areas, but at the same time it simply points out that the project area overlaps these areas.

[00:30:27] Speaker 01:
The Forest Service discussed rowless areas, wilderness areas, wilderness study areas at length in the environmental assessment and a number of reports that it incorporated by reference and found that any impacts to these areas would be minimal.

[00:30:44] Speaker 01:
And plaintiffs have really, plaintiffs have not shown that

[00:30:47] Speaker 01:
that determination about minimal impacts was arbitrary and capricious.

[00:30:52] Speaker 04:
So help me remember the chronology here.

[00:30:58] Speaker 04:
Were wolves reintroduced in 1998 or was it earlier than that?

[00:31:03] Speaker 01:
There were 11 wolves I believe introduced in 1998 and that was the first reintroduction.

[00:31:09] Speaker 04:
So by 2019 we're up to over 100.

[00:31:16] Speaker 04:
And they haven't gone into these particular allotments or at least 12 of the 13.

[00:31:21] Speaker 04:
Um, I guess I'm trying to understand plaintiff's point that, um, the reason they're not there is because this species has been decimated and they're not going there because grazing is there.

[00:31:33] Speaker 04:
And that maybe if the grazing weren't there, the wolves would move in.

[00:31:37] Speaker 04:
That may not be an accurate assessment of their position.

[00:31:40] Speaker 04:
Um, but how would you respond to that?

[00:31:43] Speaker 01:
Your honor.

[00:31:44] Speaker 01:
Again, I would point to the Alma Mesa allotment where grazing was ongoing, I believe, at a level of 8,400 animal unit moths, which is the same level that the project reauthorized, and it did not preclude occupancy of that allotment by the wolf.

[00:32:00] Speaker 01:
So in light of that determination, the Forest Service recently found that

[00:32:05] Speaker 01:
on the other allotments, and especially with the mitigation measures that the Forest Service might implement, that grazing on those allotments would not preclude occupancy of the wolf if they moved on to them.

[00:32:20] Speaker 01:
If the Court has no further questions, we would ask that the Discourse Judge would be affirmed.

[00:32:26] Speaker 04:
Thank you.

[00:32:34] Speaker 00:
Thank you, Your Honors.

[00:32:35] Speaker 00:
Just a few points in rebuttal to a few points that came up in the government's argument.

[00:32:41] Speaker 00:
First, wolves were expected to be on these allotments, and indeed, that's the whole point of the recovery project underway.

[00:32:49] Speaker 00:
Wolves need to be restored to their historic habitat, and this is the core of their recovery zone.

[00:32:55] Speaker 00:
And as Your Honor has recognized, it's because of this activity that... I'm sorry, is the recovery zone, is that just zone one?

[00:33:03] Speaker 02:
Are we talking about all three zones?

[00:33:05] Speaker 00:
There's three zones that are included in the Mexican wolf experimental population.

[00:33:09] Speaker 02:
Again, that's going to be three quarters of Arizona and New Mexico.

[00:33:13] Speaker 00:
That's correct, Your Honor.

[00:33:17] Speaker 00:
To the point about

[00:33:20] Speaker 00:
So your final point that you raised, grazing animals can coexist, but that doesn't mean that impacts do not need to be considered under NEPA.

[00:33:29] Speaker 00:
We shouldn't have to wait until something goes wrong to consider what the impacts of this action is going to be on this species.

[00:33:37] Speaker 00:
NEPA requires that hard look and is forward looking to look at what are the impacts of this action going to be over the course of the lifetime of this project.

[00:33:46] Speaker 00:
This project authorizes grazing for 10 years moving forward.

[00:33:50] Speaker 00:
10 years where hopefully the wolves are going to continue to continue to grow in their population and continue to expand back into their historic habitats.

[00:33:58] Speaker 04:
So are we five years into the 10 years at this point?

[00:34:01] Speaker 04:
Just about.

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

[00:34:03] Speaker 04:
And are there any indications that the project is harming the subspecies?

[00:34:10] Speaker 00:
There's indications that if you look at the most recent occupancy maps, Mexican wolves are returning to this area.

[00:34:16] Speaker 00:
All 14 allotments at issue, all 13 allotments at issue in this case are now part of the occupied range of Mexican wolves.

[00:34:25] Speaker 00:
And so the wolves are starting to make a comeback.

[00:34:28] Speaker 00:
But the fact that an activity is allowed just because grazing is allowed doesn't mean that we don't need to consider the impacts of that activity on the environmental resources.

[00:34:37] Speaker 00:
And that's what we're asking the Forest Service to do here.

[00:34:39] Speaker 00:
is to actually take a look at what kind of impacts grazing may have on this species, so that we can make sure that wolves are given the space to recover as they're being intended to do, as we're spending the money to do so, as the government is intending to recover this species in the wild.

[00:34:55] Speaker 00:
I would also like to note that the government, we're not asking for the

[00:35:02] Speaker 00:
consultation documents to be set aside.

[00:35:04] Speaker 00:
But if you actually look at the consultation documents that issue here, the streamlined consultation forms and the biological assessment, there is no analysis of the impacts to Mexican wolves.

[00:35:13] Speaker 00:
And if you look at the mitigation measures that are included, most of those mitigation measures are actually mitigating the impacts to the livestock as opposed to the Mexican wolves.

[00:35:22] Speaker 00:
We're asking the agency to actually consider what are the impacts of grazing on Mexican wolves and the species recovery here.

[00:35:29] Speaker 00:
Also,

[00:35:33] Speaker 00:
The significance of the population status as experimental, non-essential, and Your Honor's question about that, I would encourage the government to consider that this is, or Your Honors to consider that the experimental population is one of the most critically endangered species.

[00:35:50] Speaker 00:
Just because they are experimental does not mean they are no longer fully endangered.

[00:35:54] Speaker 00:
If you look at the terrestrial wildlife report that was included that the government points to as informing its NEPA analysis, there's more argument arguably for the Davidson cliff carrot as opposed to Mexican wolves in that report.

[00:36:07] Speaker 00:
Mexican wolves are not even mentioned.

[00:36:09] Speaker 00:
And at least the government acknowledges that the cliff carrot is on steep habitat, very steep habitat where cows won't be to have no impacts.

[00:36:19] Speaker 00:
Whereas Mexican wolves are never considered with that level of analysis here.

[00:36:25] Speaker 00:
Finally, just in closing, I would just encourage your honors to consider that NEPA is the relevant law that is at issue here.

[00:36:36] Speaker 00:
Plaintiffs have met their burden that substantial questions are at least raised, that significant impacts may occur to Mexican wolves warranting an EIS.

[00:36:44] Speaker 00:
Thank you.

[00:36:45] Speaker 04:
Thank you.

[00:36:48] Speaker 04:
Counsel, thank you for your arguments this morning.

[00:36:50] Speaker 04:
They were very helpful.

[00:36:51] Speaker 04:
And we are in recess until tomorrow morning.