Court gets its goats in wildlife spat

By Nathaniel Smith • The Times-Independent

The legal battle over the controversial introduction of non-native Rocky Mountain goats to the La Sal Mountains moved forward on Sept. 25 when the Court of Appeals for the Tenth Circuit heard arguments regarding the Utah District Court’s dismissal of the Utah Native Plant Society’s lawsuit against the U.S. Forest Service.

Utah’s Division of Wildlife Resources introduced 35 mountain goats to the La Sal Mountains in 2013 and 2014. Despite pushback from the regional Forest Service office and numerous environmental conservation groups, the DWR translocated goats from another introduced herd that had grown too large on the Tushar Mountains in the Fishlake National Forest of central Utah. Conservationists worried the voracious herbivores would irreparably damage the fragile high alpine ecosystems and endemic flora of the La Sals. The DWR prioritized the enjoyment of wildlife enthusiasts and trophy hunters, though they also cited years of studies by state biologists showing no negative impacts of goats in other mountain ranges where they’ve been introduced. Whether those studies are relevant to the drier and less vegetated ecosystem of the La Sals is a matter up for debate.

In February of this year, Grand Canyon Trust published a report that claims, “nonnative mountain goats have caused observable physical damage to plants and soil.” The Forest Service is yet to publish the results of its five-year vegetation monitoring. According to DWR biologist Dustin Mitchell, the latest estimates place the herd somewhere between 95 and 100 animals, but that is only halfway to the DWR’s goal of 200 goats. In 2015, the Utah Native Plant Society, along with the Grand Canyon Trust, made a three-pronged request of the Forest Service. First, that the agency prohibit more goat transplants; second, require the State of Utah to acquire a special-use permit for use of federal lands; and third, to immediately remove the goats already present on the La Sal Mountains. The Forest Service rejected all three requests and the two nonprofit groups responded by filing a lawsuit against the Forest Service in 2016. A federal judge in the Utah District Court dismissed the case, concluding that the Forest Service had not made a specific decision that could be challenged in court, but rather had refrained from action.

“Now that the animals have migrated to some degree onto federal land, the Forest Service is tasked with determining whether the goats’ presence violates federal law and the existing forest plan. To achieve this task, the Forest Service has decided that it needs to gather more information,” the judge wrote at the time.

When the lawsuit against the Forest Service was dismissed, the Utah Native Plant Society and Grand Canyon Trust appealed the decision based on two primary claims. First, they argued that the district court could overturn the Forest Service’s decision to reject the three requests under the Administrative Procedure Act because it counts as “final agency action.” The appeal’s second claim was that the Forest Service failed to take a discrete action that is required by its own regulations when it allowed the goats to occupy the Mount Peale Natural Research Area.

In their appeal case, the groups claim, “the dismissal was predicated on the mistaken belief that the federal government’s authority to manage how wildlife use and affect federal public lands is constrained by an obligation to cooperate with, if not defer to, the states.”

Though negative environmental impacts were the impetus for the lawsuit, the court’s decision will be based more on the legal obligations of the Forest Service rather than scientific data. The mountain goats were released at a low elevation on state-owned land close to the forest boundary, but they quickly moved to the high peaks of the La Sal National Forest. Goats wandered into the Mount Peale RNA, one of 29 such areas in Utah, each meant to protect a specific biome from human influence so researchers can gather data and gauge long-term trends and environmental changes. The Forest Service’s regulations state that the agency must preserve an RNA in a “virgin and unmodified condition.” The lawsuit alleges that the Forest Service, by allowing goats in the Mount Peale RNA, is failing to abide by its own regulations.

Aaron Paul, the lawyer speaking on behalf of the plaintiff-appellants before the Court of Appeals, began his argument by describing the role of RNAs to be an example of what an environment would look like if left alone. “The Forest Service has rules for managing RNAs that are meant to protect that purpose and they require the Forest Service to disallow the sorts of occupancy and uses that it can allow elsewhere,” said Paul. “Those rules are at the core of the two claims on appeal.”

Paul pointed to the Forest Service’s claim that it lacks the jurisdiction to regulate state management of wildlife as the final agency action. The judges presiding over the case were unconvinced the Forest Service’s decision to conduct studies rather than immediately remove the goats constitutes a final action. Paul responded, “Monitoring for five years doesn’t change the legal question that we’re raising on the merits, which is whether it was unlawful or arbitrary and capricious to allow the goats to occupy the RNA, despite the RNA’s rules. And that question can be answered by the district court below, and that’s why there’s a final agency action on this request.” For the failure to act claim, Paul said the question is whether the RNA rules give the Forest Service the discretion to allow mountain goats to occupy and modify the RNA. “Is there a discrete agency action that the agency is required to take?” Paul asked, then answered his own question by again citing the “twin commands” that an RNA remain in virgin or unmodified condition and that occupancy under a special-use permit shall not be allowed. “Those two commands deprive the agency of the discretion to allow non-native, transplanted mountain goats that have never before been in the La Sal Mountains… to occupy and modify the RNA.”

Jared Bennett argued on behalf of the federal defendants. Bennett said that if the Forest Service was to remove the goats without first properly studying the issue, then the state could sue the agency for taking an arbitrary and capricious action. “If the Forest Service is going to undertake removal action, it needs to have evidence that is what is necessary to do in order to avoid a lawsuit from the state,” Bennett said. He noted that for the Forest Service to prevent the state from releasing wildlife on federal land, it would need to get the Department of Justice to file a lawsuit on its behalf. “I have yet to see any case that the plaintiffs have cited that has any court ever ordering the Department of Agriculture to ask the Department of Justice to file a lawsuit against the State of Utah to enjoin it from using [federal] land,” Bennett said. “That’s simply not practical, but that’s exactly what the plaintiffs are asking.”

Bennett posited that such a lawsuit would require substantial evidence showing “that the mountain goats the state is releasing are affecting the Forest Service to the point where it’s undermining the very purpose for which it was created.” He added, “That is the standard that has to be applied.”

Regarding the topic of final agency action, Bennett said based on legal precedent, “further study does not final agency action make. In fact, it’s the beginning of agency action.” He added that final agency action has to be a culmination of a decision-making process, and the Forest Service’s rejection of the request to remove the goats was only the beginning of such a process. Furthermore, Bennett argued the Forest Service’s decision to conduct studies does not constitute a failure to act because there is no statute that provides a discrete agency action to remove exotic species. He said RNA regulations provide a management standard, not the requirement for a discrete action.

Following the 30 minutes of oral arguments, there will likely be a long wait for the decision. It will probably take months for the judges to issue an opinion on the matter. If the dismissal is upheld, the only recourse for the environmental groups would be to appeal the case to the Supreme Court, otherwise they’ll have to give up the lawsuit altogether. Should the dismissal be overturned, the case will go back to the Utah District Court for another hearing.