Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

Opinion by Judge GRABER; Dissent by Judge Bybee.

OPINION

The Kofa National Wildlife Refuge and Wilderness in southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service (“Service”) built two water structures (the Yaqui and McPherson tanks) within the wilderness area. Plaintiffs Wilderness Watch, Inc., Arizona Wilderness Coalition, Grand Canyon Wildlands Council, Western Watersheds Project, and Grand Canyon Chapter of the Sierra Club brought suit against the Service. Plaintiffs allege that the Service’s actions violated the express prohibition on the development of structures in the Wilderness Act, 16 U.S.C. §§ 1131-1133 . The district court granted summary judgment to the Service, and Plaintiffs timely appeal. Reviewing de novo, High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638 (9th Cir.2004), we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Situated between two mountain ranges, the Kofa Refuge and Wilderness consists of more than 600,000 acres of land in the Sonoran Desert in southwest Arizona. The area contains steep…

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, for the plaintiffs-appellants.

Justin R. Pidot, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

James F. Odenkirk, Assistant Attorney General, Phoenix, AZ, and William P. Horn, Birch, Horton, Bittner and Cherot, Washington, D.C., for the defendant-intervenors-appellees.

Before: A. WALLACE TASHIMA, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge Bybee.

GRABER, Circuit Judge:

The Kofa National Wildlife Refuge and Wilderness in southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service ("Service") built two water structures (the Yaqui and McPherson tanks) within the wilderness area. Plaintiffs Wilderness Watch, Inc., Arizona Wilderness Coalition, Grand Canyon Wildlands Council, Western Watersheds Project, and Grand Canyon Chapter of the Sierra Club brought suit against the Service. Plaintiffs allege that the Service's actions violated the express…

dissenting:

This should not have been a hard case. For more than seventy years, “[t]he dominant wildlife and habitat management theme for the Kofa ... has been the preservation of the desert bighorn sheep species.” 1 For much of that period, the Fish and Wildlife Service (“Service”), together with the BLM and the Arizona Game and Fish Department (“AGFD”), has supplied water to bighorn herds in the Kofa. So it is no surprise that after observing a dramatic decline in the bighorn population in this region, the Service proposed a variety of non-mutually exclusive solutions, including redevelopment of the Yaqui and McPherson tanks — two existing but unreliable water sources considered to be critical to the survival of the bighorn in the Eastern Kofa.

Although “[tjhere is little question that improvements to the water supply likely will help the sheep recover,” Maj. Op. at 1039, and although “[t]he Service undoubtedly found that ... the development of the two water structures was necessary,” id. at 1037, and although the documents prepared by the Service “amply describe the reasons for the Service’s decision to construct these two particular water structures,” id. at 1038, the…