Plaintiffs are environmental organizations challenging the new plan for livestock grazing in the Fremont-Winema National Forest. Plaintiffs sued U.S. Forest Service (USFS) and the U.S. Fish and Wildlife Service (FWS) in the Federal District Court of Oregon. Plaintiffs argued that both the USFS and ESA failed to adequately address the threats this program would pose to the Oregon spotted frog. They argued there were material deficiencies in the USFS's Final Environmental Impact Statement (FEIS) and the FWS's 2018 Biological Opinion (BiOp). On a summary judgment motion, the district court found that both USFS and FWS properly reviewed the environmental consequences of the new livestock grazing program in the FEIS and BiOp. The plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit found that the FEIS properly addressed impacts to the Oregon spotted frog, but the BiOp did not. The court found that the FEIS “rationally explained its decision to focus on habitat characteristics rather than frog numbers[,]” and therefore met the “rule of reason” standard for a FEIS. In contrast, the court found that the BiOp failed to adequately address the impact of both possible climate change and grazing-related impacts on the Oregon spotted frog population. Additionally, the BiOp failed to address what effect climate change could have on water levels and streamflow. The failure to address these two issues was enough to show that the FWS “failed to consider an important aspect of the problem.” Further, the mitigation strategies outlined in the BiOp were not clear or definitive enough to overcome the deficiency. Finally, the BiOp failed to specifically find that the new grazing plan would not jeopardize the Oregon spotted frog’s survival. The Ninth Circuit reversed the grant of summary judgment and vacated the FWS’s BiOp.

W. Watershed Project v. McCay, No. 22-35706 (9th Cir. Oct. 26, 2023).