Oregon Wild v. Constance Cummins (239 F. Supp. 3d 1247, 2017)

ORDER

, MARK D. CLARKE, United States Magistrate Judge

Plaintiffs Oregon Wild, Friends of Living Oregon Waters, and Western Watersheds Project (collectively, “Plaintiffs”) bring this suit against Defendants Constance Cummins, the United-States Forest Service,' Laurie R. -Sada, and the United States Fish and Wildlife Service (collectively, “Defendants”). Ed Garrett Ranch, Inc.; Philip Grohs; Matt Owens; Adam Owens; Kness Cattle, Inc.; Steve Simmons; Holiday Ranches, Inc.; and C & A Vogt Community Property Trust (collectively, “Intervenor-Defendants”) timely intervened. Plaintiffs .allege Defendants violated and are violating the Endangered Species Act (“ESA”), the National Forest Management Act (“NFMA”), and the National Environmental Policy Act (“NEPA”). This case comes before the Court on Plaintiffs’ motion for summary judgment (# 23), Defendants’ cross-motion for summary judgment (# 32), and Inter-venor-Defendants’ cross-motion for summary judgment (#35). For the reasons below, Defendants’ and Intervenor-Defen-dants’ motions are GRANTED and Plaintiffs’ motion is DENIED.

FACTUAL BACKGROUND

Livestock have grazed on the Lost River and Sprague Watersheds, part of the Upper Klamath Basin, since the late 1800s. Much of the area is now incorporated into the Fremont-Winema National Forests. Congress requires the Forest Service “to consider the use of National Forest lands for grazing of livestock.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (citing 16 U.S.C. § 531 & 16 U.S.C. § 1604(e)(1)). “The Forest Service manages livestock grazing on an allotment by issuing a grazing permit; an allotment management plan (AMP); and an annual operating ... instruction (AOI).” Or. Nat. Desert Ass’n v. Sabo, 854 F.Supp.2d 889, 902 (D. Or. 2012). Grazing permits authorize livestock use on federal lands and set limits on the allowable timing and amount of that use. Id. The Forest Service generally issues permits for ten-year periods. Id. AMPs are allotment-specific planning documents that:

(i) Prescribe [] the manner in and extent to which livestock operations will be conducted in order to meet the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands, involved; and

(ii) Describe [ ] the type, location, ownership, and general specifications for the range improvements in place or to be installed and maintained on the lands to meet the livestock grazing and other objectives of land management; and

(iii) Contain[ ] such other provisions relating to livestock grazing and other objectives as may be prescribed by the Chief, Forest Service, consistent with applicable law.

36 C.F.R. § 222.1(b)(2). As their name implies, AOIs are agreements issued annually by the Forest Service to permittees. Sabo, 854 F.Supp.2d at 902. The Forest Service uses AOIs to respond to changing grazing conditions such as drought, water quality, habitat restoration, or risks to threatened plants or animals. Id.

In 1988, the Lost River sucker and shortnose sucker, fishes endemic to the Klamath Basin of south-central Oregon and north-central California, were classified as endangered species under the ESA by the U.S. Fish and Wildlife Service (“FWS”). 53 Fed. Reg. 27130-01 (Jul. 18, 1988). In issuing its final rule, FWS noted both species’ numbers and range had been reduced by more than 95 percent due to “[d]ams, draining of marshes, diversion of rivers and dredging of lakes.... ” Id. at 27130. Moreover, “hybridization with more common closely related species, competition and predation by exotic species, and insularization of remaining habitats” eminently threatened both species through continued loss of habitat. Id. “Further problems,” the agency noted, “may have been caused by decreases in water quality that result from timber harvest, ... removal of riparian vegetation and livestock grazing.” Id. at 27132. Accordingly, FWS labeled livestock grazing on Forest Service land located in the Upper Klamath Lake and Clear Lake Reservoir watersheds as “[fjederal actions that may affect the shortnose sucker and Lost River sucker....” Id. at 27133.

Both sucker species spend the majority of their time in “lake environments.” FWS 6762. In late winter and early spring of each year, however, both species migrate to tributaries to spawn. After hatching, the larvae “drift” downstream from the tributaries to the lakes; larvae typically “spend little time in rivers” before drifting back into their open-water habitats. FWS 6773. But because the larvae drift downstream after hatching, adequate water flow within tributaries is critical to survival, and insufficient flow can, among other things, prevent access to breeding habitat, cause the species’ eggs to dry out, and strand adults suckers who have already spawned. Consistent, and sufficient, water flow is largely an uncertainty in the Upper Klamath Basin due to the area’s environment, which experiences warm, dry summers and cold, wet winters; tributaries often dry out or retain little water come summer.

To make matters more uncertain for suckers, the Upper Klamath Basin has experienced significant drought conditions over the last few years; the water levels of Gerber and Clear Lake Reservoirs, two bodies of water with high concentrations of both sucker species, were significantly below average prior to summer 2014. The water levels were lower still prior to summer 2015. In addition, summer 2014 stre-amflow in the Basin was estimated to be merely 6 to 47 percent average flow. The federal government declared a severe drought in the Basin. The species are, however, “adapted to weather periodic droughts,” FWS 6794, though the potential for increased droughts in the Upper Kla-math Basin resulting from climate change appears to be a significant variable going forward, having the potential to place a larger strain on both sucker species, with decreased water “flows during late spring, summer, and early fall....” P 7210.

Plaintiffs have challenged the Forest Service’s decision to continue to approve livestock grazing on eight allotments they contend “contain designated critical habitat for shortnose suckers and/or are upstream of habitat for both species.” Compl. ¶ 2 [EOF No. 1.]. The eight allotments are the Arkansas, Yocum Valley, Fort Springs, Horesfly, Pitchlog, Privy Springs, Yainax Butte, and Wildhorse allotments. Plaintiffs argue the combination of grazing with man-made water diversions and impound-ments found throughout the Fremont-Winema National Forests, as well as on private land, “has a significant effect on suckers, degrading their instream habitat and reducing water levels in the reservoirs.” Compl. ¶ 2.

A. Endangered Species Act Consultation

Because of their ESA protection, the Forest Service must insure their actions, including the granting of permits for grazing, are “not likely to jeopardize the continued existence of’ suckers “or result in the destruction or adverse modification of [suckers’] habitat.” 16 U.S.C. § 1536(a)(2). The Forest Service fulfills this obligation by consulting with a designated wildlife agency prior to undertaking any action that may affect suckers or their critical habitat. The ESA and its implementing regulations provide a framework for this interagency consultation. First, the Forest Service, as the acting agency, prepares a biological assessment (“BA”), which evaluates potential effects of the proposed action on suckers or their critical habitat. If the Forest Service determines that the effects of the proposed action are unlikely to adversely affect suckers or their critical habitat, and the consulting agency agrees, the consultation process concludes without any additional action required. This is termed an informal consultation. By contrast, a “formal consultation” is required where a proposed action is “likely to adversely affect” suckers or their critical habitat. 50 C.F.R. § 402.14(a)-(c). Formal consultation requires a formal biological opinion (“BiOp”) from the consulting agency to determine “whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of [suckers] in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4).

On multiple occasions, the Forest Service consulted FWS regarding the effects of authorized grazing on suckers and their critical habitat. In 2007, the Forest Service determined that grazing was likely to adversely affect suckers on five allotments at issue here: Yocum Valley, Pitchlog, Wil-dhorse, Arkansas, and Yainax Butte. Accordingly, FWS prepared a BiOp assessing the matter. In its BiOp, FWS concluded that grazing on the five allotments was “likely to have some direct and indirect adverse effects” to shortnose suckers. FWS 2305. Potential adverse effects included: (1) water-quality reductions, “such as lower dissolved oxygen concentrations, higher water temperatures, and higher levels of suspended sediment”; (2) hydro-geomorphic changes, “such as reductions in summer base flows, increase in flood-lows, and alterations of stream morphology, including reduction/loss of critical fish habitats such as spawning and rearing areas”; and (3) ecological changes, “such as reductions in invertebrate prey, increases in exotic predators and competitors, and increases in pathogens and parasites.” FWS 2288.

As to the remaining allotments assessed in the 2007 consultation, the Forest Service concluded that grazing was not likely to adversely affect suckers or adversely modify or destroy their critical habitat. FWS concurred in part, agreeing that grazing would not adversely affect suckers; however, it found grazing would likely adversely modify or destroy their critical habitat “because it [would] likely incrementally reduce [ ] the amount of water of sufficient quantity and suitable quality; degrade[] physical habitat for spawning, feeding, rearing, and travel corridors; and adversely impact the biological environ-ment_” FWS 2310-11. This finding, however, was non-binding and merely advisory because FWS had not finalized -the contours of the suckers’ critical habitat at the time the finding was made.

By December 2012, FWS’s critical-habitat designation was finalized. The designated habitat differed from that originally proposed by FWS. Thus, in 2014, the Forest Service re-consulted FWS in an effort to assess grazing’s effects on the newly designated critical habitat. The 2014 BA analyzed grazing’s effects on nine pastures found on six allotments at issue in this case: the Arkansas, Horesfly, Pitchlog, Wildhorse, Yanaix Butte, and Yocum Valley allotments. In the BA, the Forest Service acknowledged grazing’s adverse impacts on water quality and quantity and that past grazing affected critical habitat on the allotments; as it stated:

Past grazing has led to biomass removal and trampling, alterations in species composition, compaction of soils, changes in fuel loading and the fire regime, down cutting of riparian areas with subsequent drying of adjacent meadows, and noxious weed invasion. Within riparian areas and wet meadows, livestock grazing has led to churning of the soil and hummocks.... Livestock grazing indirectly leads to an increase in stream temperatures through lower summer flows, widening of the stream channel (thus exposing more water surface' to solar radiation) increased solar exposure due to reduced shade from lack of streamside vegetation and to loss of undercut streambanks.

P 7204, 7208. Nonetheless, the Forest Service determined grazing was not likely to adversely affect critical habitat on’ any of the pastures within the six allotments. First, the Forest Service concluded that natural conditions, not grazing, dictated water quality and quantity in critical-habitat areas; the Forest Service stated, “grazing ,.. does not create the intermittent,' seasonal nature” of the various tributaries relied upon by suckers; instead, the intermittent nature of the tributaries is caused by natural conditions that constrain suckers, and, therefore, “continued grazing ,.. would have minimal effect ... relative to the effect caused by the natural conditions.” P 7211. Finally, the Forest Service determined that adverse effects to critical habitat caused by grazing the pastures was being sufficiently minimized by fencing off critical habitat; by beavers, whose dam construction “increas[es] riparian vegetation and vigor”; and/or through altered grazing practices, such as shortened or early-season grazing. P 7210-7222.

FWS concurred with the Forest Service’s analysis. In a letter of concurrence (“LOC”), FWS stated most grazing occurs in “late spring, summer, and fall” when there is inadequate water flow to support suckers and when most suckers have returned to their primary, open-water habitats, FWS 2772. Additionally, FWS agreed with the Forest Service’s conclusion that any adverse effects in the remaining pastures would be and already were minimized due to changes in grazing practices, such as fenced-off enclosures to protect critical habitat and “beaver dams that have altered the habitat to the benefit of suckers.” FWS 2772.

The Forest Service’s 2014 BA, which was a re-consultation of its 2007 ESA consultation, requested ESA coverage for the 2014 through the 2016 grazing season. The Forest Service’s “request for re-consultation rather than re-initiation [was] due to the dramatic difference in the number of acres of proposed critical habitat from that that was actually designated critical habitat _” P 7196. In merely re-consulting rather than re-initiating consultation, the Forest Service continued to follow the “ten-year cycle for re-initiation of consulta-tion_” P 7196. Accordingly, the Forest Service must complete a new ESA consultation prior to any livestock grazing in 2017. See 16 U.S.C. § 1536(a)(2) (stating every federal agency has a duty to engage in consultation to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence” of any species listed as endangered or threatened; 50 C.F.R. § 402.16 (stating the duty of consultation is an ongoing, duty of consultation).

B. 2009 Environmental Assessment

In 2009, the Forest Service completed an environmental assessment (“EA”) under NEPA. The EA analyzed “the direct, indirect, and cumulative environmental impacts” of. grazing on six allotments, five of which are at issue: the Arkansas, Pitchlog, Horsefly,. Wildhorse, and Yocum Valley allotments. P 5527. The allotments are located in the Sprague and Lost River watersheds. To determine cumulative effects, “past, present, and reasonably foreseeable future activities were considered, along with proposed activities of the Lost River'and Sprague Watersheds Grazing Allotment Project, to determine cumulative effects.” P 5561. Cumulative environmental impacts that were assessed included the effects of climate change; the increased intensity of summer droughts due to climate change’s effects; as well as the effects of man-made impoundments such as roads, dams, and reservoirs. The EA’s purpose was to use this information to assess grazing and non-grazing alternatives on each of the allotments. The EA concluded grazing would have no significant impact on the area assessed, a finding that cleared the way for continued grazing on the allotments. See P 5666-5691. Plaintiffs submitted comments during the EA’s public comments period, raising concerns about the environmental impacts grazing posed on the area. They did not, however, appeal the Forest Service’s finding that grazing would have no significant impact on the challenged allotments.

LEGAL STANDARD

The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. In this context, “ ‘[s]ummary judgment’ ” is “simply a convenient label to trigger” judicial review. Klamath Siskiyou Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1233 (D. Or. 2013), aff'd sub nom. Klamath-Siskiyou Wildlands Ctr. v. Gerritsma, 638 Fed.Appx. 648 (9th Cir. 2016). The Administrative Procedure Act (APA) governs. It allows a court to set aside a final agency action only if it is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law[.]” 5 U.S.C. § 706(2)(A). “A decision is arbitrary and capricious if the agency ‘has relied on fac tors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” O’Keeffe’s, Inc. v. U.S. Consumer. Prod. Safety Comm’n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). An agency action is also, arbitrary and capricious if the agency fails to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.! ” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).

Review under the APA is “searching and careful.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2004) (internal citations and quotations omitted). The court must ensure that the agency took a “hard look” at the environmental consequences of its proposed action. Or. Nat. Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997) (internal quotations and citations omitted). However, the court may not substitute its own judgment for that of the agency. Ocean Advocates, 402 F.3d at 858. It must presume the agency acted properly and affirm the agency when “‘a reasonable basis exists for its decision.’ ” Indep. Acceptance Co. v. Cal., 204 F.3d 1247, 1251 (9th Cir. 2000) (quoting Cal. Hosp. Ass’n v. Schweiker, 559 F.Supp. 110, 116 (C.D. Cal. 1982)).

DISCUSSION

I. Standing

At the outset, Defendants and Interve-nor-Defendants contest Plaintiffs’ “standing to challenge management of the Forest Service allotments at issue” in this case. Defs.’ Cross-Mot. for Summ. J, at 18 [ECF No. 32.]. Specifically, they contend Plaintiffs have failed to establish standing, as no plaintiff has shown use of any of “the vast public lands within the challenged allotments—or any lands adjacent to the allotments.” Defs.’ Reply in Supp. of Its Cross-Mot. for Summ. J., at 2 [ECF No. 41.]. Thus, they argue, the Court should grant their motions for summary judgment against all of Plaintiffs’ claims.

To establish standing, a plaintiff must demonstrate, “at an irreducible minimum,” (1) that he personally suffered some actual or threatened injury (injury in fact); (2) that the injury can be traced to the challenged conduct of the defendant (causation); and (3) that the injury is likely to be redressed by a favorable judicial decision (redressability). Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). An association has standing to bring suit on its members’ behalf if: “[1] its members would have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires individual members’ participation in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 169, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Critically, in a case brought under the ESA or another environmental-protection statute, the injury is not to the environment but to the plaintiff. Id.

In Laidlaw, the Supreme Court determined standing existed based on affidavits from association members stating “use [of] the affected area” and that the affiants were “persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). In that case, multiple environmental organizations brought suit under the citizen suit provision of the Clean Water Act for injunctive relief and civil penalties. Id. at 176-77, 120 S.Ct. 693. The plaintiffs alleged the defendant was violating its NPDES permit at a hazardous waste incinerator located on the banks of a river. Id. Several members of the plaintiff organizations filed declarations, which detailed the injury they had or that they would suffer because of the suspected pollution of the river. Id. at 181-83, 120 S.Ct. 693. Some members lived within two miles of the incinerator, one member lived 20 miles away, and others made no indication of where they lived but opined on their recreational use of the river. Id. In fact, one affiant claimed simply that he canoed 40-some miles downstream of the incinerator. Id. at 183, 120 S.Ct. 693. The Supreme Court held that these members had shown standing by demonstrating injuries to their aesthetic and recreational interests; indeed, they were people who “use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Id. at 183, 120 S.Ct. 693 (quoting Sierra Club, 405 U.S. at 735, 92 S.Ct. 1361).

Here, Plaintiffs, who are also associations, adequately establish standing through affidavits submitted by Plaintiffs’ members asserting livestock grazing, approved by the Forest Service on the challenged allotments, adversely affects endangered suckers, thereby directly affecting the affiants’ “aesthetic or recreational interest in a particular .., animal.” Ecological Rights Found, v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). As in Laidlaw, several members of the plaintiff organizations have filed affidavits detailing the injury they have suffered as a result of the allegedly unlawful grazing activity at issue in this case. For instance, Joe Serres, a co-founder of Plaintiff Friends of Living Oregon Waters (“FLOW’), states he and FLOW’S 223 southern Oregon members routinely visit grazing allotments and monitor “the environmental impact grazing has on public lands throughout Oregon, including the Fremont-Winema. National Forest.” Serres Decl. ¶ 3 [ECF No. 26.]. They have been monitoring the lands and waters since 2002. Mr. Serres states that FLOW’S interests in the particular area at issue in this case “serve [its] members’ interest of protecting waterways from pollution,” and that he, in his individual capacity, visits the affected areas for aesthetic, spiritual, and recreational reasons. Serres Decl. ¶ 5.

Likewise, George Wuerthner, a board member of Plaintiff Western Watersheds Project (“WWP”), states he “eamp[s], fishfes], huntfs], observe[s] wildlife, and hikefs] ... land on the Fremont-Winema National Forest,” Am. Wuerthner Decl. ¶ 4 [ECF No 27.], specifically the Lost River watershed, where the allotments at issue in this case are located. He states he has visited the Fremont-Winema National Forests more than a dozen-times—and will continue to do so—witnessing firsthand the impacts grazing has had on “riparian and upland areas.” Am. Wuerthner Decl. ¶ 4.

Defendants and Intervenor-Defendants argue, however, that the affiants make broad declarations about visiting “ ‘parts of the Lost -River watershed’ ” that are “ ‘impacted by the grazing allotments at issue,’ ” but have never visited specific allotments in question here. Defs.’ Cross-Mot. for Summ. J., at 19 (citing Serres Decl. ¶ 11). Defendants point out that Plaintiffs cannot satisfy standing requirements through “averments which state only that one of [the. organizations’] members uses unspecified portions of an immense tract of territory .... ” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

In Summers v. Earth Island Inst., 555 U.S. 488, 494-95, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), The Supreme Court determined that conservation organizations lacked standing where the only viable affidavit submitted cited a past injury, unattached to any particular site in the national forests, and entirely unrelated to the regulations being challenged. By contrast, in Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707-08 (9th Cir. 2009), the Ninth Circuit found standing where conservation organizations’ members alleged they had viewed polar bears and walruses in the “Beaufort Sea region, enjoy[ed] doing so, and h[ad] plans to return.”

Plaintiffs’ members’ allegations, if true, are geographically specific enough to establish standing. First, unlike the conservation organizations in Summers, who provided a single affidavit unattached to any particular site in any national forest, Plaintiffs have provided multiple affidavits from individual members stating they have, on multiple occasions, traveled to the Fremont-Winema National Forests and specifically to the Lost River watershed, where the challenged allotments at issue are found. Moreover, much like the affi-ants in Kempthome, who alleged they had viewed polar bears and walruses in the “Beaufort Sea region,” the affiants in this case specifically allege they have viewed suckers in the Lost River watershed region, that they “enjoy doing so, and have plans to return.” Kempthome, 588 F.3d at 708. If the affiants’ declarations are true, their statements are not broad allegations; instead, they show their members are people who “use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Laidlaw, 528 U.S. at 183, 120 S.Ct. 693 (quoting Sierra Club, 405 U.S. at 735, 92 S.Ct. 1361). Accordingly, Plaintiffs have established standing.

II. Endangered Species Act

In their first claim, Plaintiffs challenge the 2014 re-consultation’s conclusion that grazing is not likely to adversely affect suckers’ critical habitat. They argue FWS’s LOC is arbitrary,' capricious, an abuse of discretion, and not in accordance with the ESA, thus violating the APA, Specifically, in moving for summary judgment, Plaintiffs argue “[t]he 2014 LOC, which explicitly and exclusively relied on the 2014 BA, is arbitrary and capricious” because the “[re-]eonsultation ignored significant data and other key factors when assessing the environmental baseline and the direct and indirect effects of grazing on critical habitat_” Pis.’ Mot. for Summ. J., at 13 [ECF No. 23.]. In short, Plaintiffs contend the agencies expressly ignored “the combined effects of grazing and water impoundments”; instead, the agencies “compared the effects of grazing to the degraded baseline caused by low water -flows.” Pis.-’ Mot. for Summ. J., at 13,15 (emphasis in original).

Plaintiffs point to the Forest Service’s reliance on continued grazing’s “minimal effect ... relative to the effect caused by the natural conditions,” P 7211 (emphasis added), to find no significant threat to the species. As Plaintiffs point out, 50 C.F.R. § 402.02 requires the Forest Service to consider “direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are 'interrelated or interdependent with that action..,. ” (emphasis added).

Moreover, along with an argument that the BA and LOC ignore conflicting monitoring data, Plaintiffs also take issue with the fact the Forest Service repeatedly justified their decision that grazing is not likely to adversely affect suckers or their critical habitat by citing to the presence of suckers in areas grazed by cattle. See, e.g., P 7218 (“The fact that suckers are present when the [Primary Constituent Elements] are present is evidence that livestock grazing is not substantially impacting [short-nose sucker] critical habitat .in these pastures”). Plaintiffs direct the Court to the Ninth Circuit’s decision in Wild Fish Conservancy v. Salazar, 628 F.3d 513, 527 (9th Cir. 2010), where the court stated that the mere fact that a local population of threatened or endangered species has survived over time does not, alone, “provide any information about how much longer it can hold on.” Thus, Plaintiffs argue, the LOC, which adopted these findings in the EA, is arbitrary and capricious.

In their cross-motions for summary judgment, Defendants and Intervenor-De-féndants make two arguments in response. First, they contend Plaintiffs’ ESA claim is moot because the 2014 LOC covered only the 2014, 2015, and 2016 grazing seasons, and the Forest Service must complete a new ESA consultation prior to any livestock grazing in 2017. As such, “[n]o grazing actions that may affect stickers or their critical habitat will occur in 2017 until a new ESA consultation is complete.” Defs.’ Cross-Mot, for Summ. J., at 20-21. Second, ’they argue FWS’s LOC was rational and supported by ‘ the administrative record.

A. Mootness

A federal court lacks jurisdiction to decide a. moot claim. Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). “A claim is moot if it has lost its character as a present, live controversy.” Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (internal citation omitted). “A case or controversy must exist at all stages of review,...” Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010). However, “the mere cessation of illegal activity in response to pending litigation does not moot a case, unless the party alleging mootness can show that the ‘allegedly wrongful behavior could not be reasonably expected to recur.’ ” Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting Laidlaw, 528 U.S. at 189, 120 S.Ct. 693). Rather, “a case [] become[s] moot after it is filed, ‘when ... the parties lack a legally cognizable interest in the outcome’ ” or the issue is no longer “live.” Wolfson, 616 F.3d at 1053 (quoting Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003)). An issue is no longer live if “there is no longer a possibility that a[ ] [plaintiff] can obtain relief for his claim_” Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999). The party asserting mootness bears a heavy burden to show “that there is no effective relief that the court can provide.” Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (citing S. Or. Barter Fair v. Jackson Co., 372 F.3d 1128, 1134 (9th Cir. 2004)).

Plaintiffs’ ESA claim is moot because the 2014 LOC covered only the 2014, 2015, and 2016 grazing seasons; thus, the Forest Service must complete a new ESA consultation prior to any livestock grazing in 2017. In fact, by law, the Forest Service must complete a new -ESA consultation prior to issuing grazing permits. Section 7(a)(2) of the ESA requires every federal agency to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence” of any species listed as endangered or threatened. 16 U.S.C. § 1536(a)(2). In addition, every agency must insure its actions do not result in the destruction of any species’ critical habitat. Id. The term “action” includes “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies,” which includes the granting of grazing permits. 50 C.F.R. § 402.02.

As discussed, grazing permits authorize livestock use on federal lands and set limits on the allowable timing and amount of that use. Sabo, 854 F.Supp.2d at 902. The Forest Service generally issues permits for ten-year periods, id. and, indeed, here, the Forest Service expressly states that it follows a “ten-year cycle for re-initiation of consultation_” P 7196. Accordingly, the Forest Service must re-initiate ESA consultation every ten years, upon the issuing of new grazing permits. See 50 C.F.R. § 402.16 (stating that there is an ongoing duty of consultation and setting forth the circumstances under which consultation must be re-initiated).

In 2007, the Forest Service initiated an ESA consultation with the Fish and Wildlife Service (“FWS”) to assess the impacts of authorized grazing on suckers and their critical habitat, and FWS found grazing would likely adversely modify or destroy suckers’ critical habitat in certain areas “because it [would] likely incrementally re-ducen the amount of water of sufficient quantity and suitable quality; degrade[] physical habitat for spawning, feeding, rearing, and travel corridors; and adversely impact the biological environment....” FWS 2310-11. FWS’s finding was nonbinding, however, due to the fact that FWS had not yet finalized its designation of sucker critical habitat; thus, the assessment was merely advisory. In December 2012, FWS finalized the boundaries of the suckers’ critical habitat; the finalized habitat differed substantially from the habitat originally proposed by FWS. Consequently, in 2014, the Forest Service re-consulted FWS, and pursuant to the ESA’s requirements, it prepared a BA, which evaluated grazing’s potential effects on the newly designated critical habitat. FWS concurred with the Forest Service’s analysis in a LOC.

The Forest Service’s 2014 BA and ensuing LOC were part of a re-consultation of the 2007 ESA consultation and only provided ESA coverage for the 2014 through the 2016 grazing season. The Forest Service requested “re-consultation rather than re-initiation [ ] due to the dramatic difference in the number of acres of proposed critical habitat from that that was actually designated critical habitat_” P 7196. In merely re-consulting rather than re-initiating consultation, however, the Forest Service continued to follow the “ten-year cycle for re-initiation of consultation_” P 7196. The ten-year period has come and passed. Thus, as the Forest Service stated, the LOC has expired and it “w[ill] re-initiate consultation with the [FWS] for both [Lost River suckers] and [shortnose suckers] and their critical habitat” before allowing for grazing in 2017, as is required by Section 7(a)(2) of the ESA. P 7196; see also Brillenz Decl (stating grazing will not occur on the challenged allotments “until there is a new ESA determination with regard to the two ESA-listed sucker species”). Hence, the FWS’s LOC has expired and cannot, by law, control future grazing. Because it will not control future grazing, no impacts to the suckers will occur based on the challenged LOC, and as such, no live controversy remains.

Indeed, in Or. Nat. Desert Ass’n et al. v. U.S. Forest Serv. et al., Civ. No. 04-3096-PA, 2007 WL 1072112, at *1 (D. Or. April 3, 2007), this Court had occasion to address this very issue. There, the plaintiffs claimed the defendants’ authorization of grazing in the Fremont-Winema National Forests violated the ESA. Id. at *3. The plaintiffs argued, among other things, that FWS’s BiOps failed to properly incorporate Inland Native Fish Strategy standards, rendering the BiOps arbitrary and capricious and in violation of the APA. Id. The two BiOps had already expired, however, and “no livestock grazing actions that may affect the listed suckers or bull trout w[ould] occur ... until [a new] consultation [was] complete[d].” Id. at *1 (internal citations and quotations omitted). As such, the defendants argued, the plaintiffs’ ESA claims were moot. Id. at *4. In holding the claims moot, this Court noted that the Forest Service could not allow for additional grazing until the new ESA consultation had been completed. Id. at *4-*5. Because a new consultation had to take place before grazing occurred, the challenged BiOps had expired and could not possibly affect future grazing, rendering the plaintiffs’ ESA claims, which were based on the expired BiOps, moot. Id. at *4-*5.'

Here, much like Natural Desert, Plaintiffs challenge FWS’s 2014 LOC’s conclusion that grazing is not likely to adversely affect suckers’ critical habitat. As in Natural Desert, however, where the challenged BiOps had already expired, the challenged LOC has already expired, and the Forest Service and FWS must complete a new ESA consultation prior to any livestock grazing in 2017. Because a new consultation has to take place before grazing can occur, the challenged LOC cannot possibly affect future grazing, rendering Plaintiffs’ ESA claim, which is based on the expired LOC, moot.

Plaintiffs argue, however, that the Court can issue declaratory relief stating that the 2014 LOC violated the law. This, Plaintiffs contend, would ensure the Forest Service and FWS do not continue to fail to meet their obligations under the ESA. In support of this argument, Plaintiffs cite to Johanns, 450 F.3d 455. In that case, the plaintiff argued the Forest Service failed to re-initiate consultation on the impact of grazing on national forest land. Id. at 457. The plaintiff contended the Forest Service was obligated to re-consult due to its failure to comply with certain criteria it had agreed-upon “governing the monitoring of grazing’s impact on endangered and threatened species living in” the affected area. Id. Indeed, the Forest Service and FWS and previously entered into an agreement establishing criteria that would govern grazing in the affected area. Id. at 459, The agencies’ agreement stated that, “for the life of each ten-year grazing permit, ‘yearly conformation throughout the lifetime of the permit must take place to ensure the criteria ... continue to ■ be met.’ ” Id.

The plaintiff commenced suit, alleging the Forest Service violated the ESA by failing to re-consult with FWS after failing to meet the required criteria for several years. Id. Specifically, the plaintiff argued the Forest Service failed to adequately monitor utilization levels on various allotments every year, as required by the agreed-upon criteria. Id. After the district court ruled in favor of the Forest Service and - the plaintiff appealed the decision with respect to one allotment, the Forest Service re-initiated consultation on the challenged allotment. Id. at 460-61. Accordingly, the Forest Service contended the appeal was moot “because the agency re-initiated consultation ... [and] as a result of this recent re-consultation, there is no effective relief that the district court can grant.” Id.

The Ninth Circuit made two critical observations in finding the case was not moot. Id. at 462, First, it noted that the case involved a “continuing practice.” Id. More precisely, the grazing permit was for a period of ten years and continued to obligate the Forest Service to “obtain from FWS annual concurrence that the.guidance criteria governing the ‘not likely to adversely affect’ finding ha[d] been met.” Id. Second, the court found, “the Forest Service’s practice of not complying with the monitoring requirements [was] likely to persist despite :the recent re-consultation” because the Forest Service had argued throughout litigation that it was not required to meet the monitoring requirements in the agréed-upon criteria and had asserted the requirements were “‘unreasonable.’ ” Id, Hence, the court felt a declaratory judgment stating the Forest Service’s'actions violated the ESA would help ensure against similar violations because it would govern “the Forest Service’s actions for the remainder of the allotment’s permit term....” Id. Thus, the Ninth Circuit held that the Forest Service failed to show the case was moot. Id. at 463.

Here, Plaintiffs argue the 2014 LOC is “arbitrary, capricious, an abuse of discretion, and not in accordance with the ESA....” Compl. ¶ 141. Plaintiffs thus ask the Court to declare the 2014 LOC failed to adequately comply with the ESA, vacate the 2014 LOC, and order the Forest Service to re-initiate consultation with FWS. The 2014 LOC has expired, however, and the 2014 LOC is no longer operative. Because of this, the Forest Service must re-initiate consultation with FWS before future grazing can take place on any of the challenged allotments, precisely the relief Plaintiffs seek.

As in Johanns, Plaintiffs do also seek a declaration that the 2014 LOC violated the ESA—but, here, such a declaration would be superfluous. In Johanns, the Forest Service had a continuing obligation to adhere to annual monitoring requirements and to obtain annual concurrence of compliance from FWS; thus, a declaratory judgment stating the Forest Service’s failure to take such actions violated the ESA made sense'. That is, because of the continuing obligation, a declaratory judgment stating the Forest Service had an obligation to- adhere to annual monitoring requirements and to obtain annual concurrence of compliance from FWS would ensure “the Forest Service’s actions for the remainder of the allotment’s permit term” would be in compliance with its permit and, by extension, the law, Johanns, 450 F.3d at 462-63.

By contrast, here, as discussed, the Forest Service is precluded from continuing to adhere to the 2014 LOC; the Forest Service and FWS must engage in an entirely new consultation process to determine if grazing would adversely affect suckers or their critical habitat. Thus, any statement as to the now-expired and unenforceable LOC’s legality would be meaningless. And while it is certainly possible that the new consultation will fail to “ ‘remedy the alleged failures’ ” in the pri- or consultation, Pis.’ Reply in Supp. of Their Mot. for Summ. J., at 12 (quoting Conservation Congress v. Finley, 774 F.3d 611, 618-19 (9th Cir. 2014)), there is, as of now, no new consultation, and therefore no way of knowing whether the alleged failures will be remedied. The fact that the agencies might fail to remedy alleged failures in a future consultation “does not establish a basis for continuing jurisdiction.” Nw. Envtl. Def. Ctr. v. Allen, Civ. Nos. 05-1279-AA, 2007 WL 1746333, at *2 (D. Or. Jun. 13, 2007). Once a new consultation is complete, the Plaintiffs are free to “file a new complaint if the need arises,” id. at *3, but until such time, the Court lacks jurisdiction to hear Plaintiffs’ ESA claim. Such was the ruling in Natural Desert, where the plaintiffs also argued for declaratory relief in order “to ‘ensure that the new BiOp Complie[d] with the law and d[id] so in a timely manner’” and to “ ‘clarify and settle’ defendants’ legal obligations.” Or. Nat. Desert Ass’n, 2007 WL 1072112, at *5. The Court reaffirms its holding there that “such justifications are so vague as to make Article Ill’s ‘case or controversy’ requirement meaningless.” Id. Plaintiffs’ ESA claim is therefore moot, and Summary judgment must be granted in Defendants’ favor,.

III. National Forest Management Act

Plaintiffs contend the Forest Service violated NFMA when it issued its 2013, 2014, and 2015 AOIs. They contend the Forest Service ignored, its duty under NFMA to comply with the Inland Native Fish Strategy (“INFISH”) “by ignoring widespread evidence of riparian prob-lems_” Pis.’ Mot. for Summ. J., .at 25. Plaintiffs point out that INFISH requires the Forest Service to “‘modify grazing practices ... that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish’ and to ‘suspend grazing if adjusting practices is not effective in meeting RMOs.’” Pis.’ Mot. for Summ. J., at 26 (quoting P 2850). They argue the Forest Service ignored data indicating riparian conditions on numerous streams throughout the challenged, allotments were and are below RMO attainment, “with stagnant or worsening trends due to grazing.” Pis.’ Mot. for Summ. J., at 26.- Thus, by failing to adjust grazing in order to attain RMOs, the Forest Service failed to comply with INFISH and, by extension, NFMA.

Defendants and Intervenor-Defendants assert Plaintiffs’ argument is based on supposed INFISH violations at individual streams within the challenged allotments, but “INFISH consistency is not required allotment-by-allotment or stream-by-stream” rather, “conclusions related to consistency with INFISH are made at a watershed level,” and Plaintiffs provide nothing to suggest the Forest Service violated INFISH at a watershed level. Defs.’ Reply in Supp. of Their Cross-Mot. for Summ. J., at 36. In the alternative, Defendants and Intervenor-Defendants argue “there is ample evidence in the administrative record that shows RMOs are being attained_” Intervenor-Defs.’ Cross-Mot. for Summ. J., at 14 [ECF No. 35.].

NFMA requires the Forest Service to develop and maintain a comprehensive Land and Resource Management Plan (forest plan) for each national forest. 16 U.S.C. § 1604(a). A forest plan is “a broad, long-term planning document ... [that] establishes goals and objectives for management of forest resources.” Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1014 (9th Cir. 2012) (citing 16 U.S. C. § 1604(g)(l)-(3)). Once a forest plan is adopted, all subsequent agency actions must comply with it. 16 U.S.C. § 1604(i). The Forest Service’s “interpretation and implementation of its own forest plan is entitled to substantial deference.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012) (internal citations omitted).

It is undisputed that the forest plans for the Fremont-Winema Forests include an INFISH aimed at achieving desired conditions for suckers, as well as all other inland native fish species. P 5553. In Oregon Wild v. U.S. Forest Serv. (“Oregon Wild I”), a similar case, the plaintiffs argued AOIs violated NFMA by “contributing to violations of INFISH’s water temperature RMO....” 193 F.Supp.3d at 1171. In finding that the Forest Service reasonably evaluated INFISH-relevant data, this Court noted that the plaintiffs’ claim failed for two overarching reasons. Id. First, the plaintiffs failed “to demonstrate that permitted grazing [was] responsible for noted exceedances”; and second, the plaintiffs’ “narrow and rigid application of the RMOs departed] from the strategy’s text.” Id. As this Court stated, “INFISH contemplates that its objectives are ‘targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.” Id. Thus, due to “IN-FISH’s flexible approach,” and absent any evidence tending to show the water temperatures the plaintiffs complained of constituted “‘landscape-scale’ problems,” not mitigated by other long-term effects, this Court determined that the AOIs did not violate INFISH’s temperature RMO and, by extension, NFMA. Id.

Here, Plaintiffs’ NFMA claim fails for the same two reasons. First, Plaintiffs fail to demonstrate that grazing on the challenged allotments is the culprit for any failure to attain INFISH RMOs. Plaintiffs state “streams within these geographically widespread allotments have not attained multiple RMOs and are not recovering at a near-natural rate,” Pis.’ Mot. for Summ. J., at 26, but even if this were to be considered true, they fail to provide evidence countering the Forest Service’s 2002 assessment not only that “from the 1960s to present, conditions on some of these riparian areas have been dramatically improved even with the continued grazing,” but also that “[i]t is important to note that trends in the sites with little or no grazing are not significantly different th[an] those in grazed sites.” FWS 7035. This would tend to indicate grazing is not the reason for any failure to attain RMOs in streams found on the challenged allotments.

Plaintiffs do point to evidence that certain creeks, or portions of creeks or allotments, have experienced degraded conditions due to grazing, see Pis.’ Mot. for Summ. J., at 27-28 (quoting P 5398), but there is nothing to indicate that grazing is contributing to any failure to attain IN-FISH RMOs at a watershed level and thus nothing to challenge the Forest Service’s assessment that overall trends on grazing and non-grazing sites are largely the same; indeed, the Forest Service’s 2002 assessment was later reaffirmed by the Forest Service 2009 EA, which found that “grazing effectiveness monitoring shows that stream channel conditions are trending upward under the current grazing program [ ].” P 5597. Given Plaintiffs lack of watershed-level evidence challenging this assessment, and because “substantial deference” is given to the Forest Service in interpreting the requirements of its own forest plan, the Court does not believe its assessment and decision to issue the challenged AOIs was arbitrary and capricious.

Furthermore, Plaintiffs fail to provide evidence tending to show any failure to attain RMOs is a “landscape-scale” problem. Plaintiffs argue that failure to attain 80 percent bank stability in multiple creeks, including Barnes Valley Creek, North Fork Willow Creek, Horse Canyon Creek, and Wildhorse Creek, demonstrates a landscape-scale problem. Plaintiffs also point to water-temperature exceedances at multiple creeks as demonstrative of a landscape-scale problem.

Plaintiffs correctly point out the Forest Service’s failure to attain the specific, numerical goals set out in the RMOs, but like the plaintiffs in Oregon Wild I, this “narrow and rigid application of the RMOs” departs from INFISH’s text. As stated in Oregon Wild I, INFISH’s approach is a flexible one; its objectives are targets that will not be met instantaneously but over time. When viewed through this lens, then, it is clear that the Forest Service did not ignore its duty under NFMA to comply with INFISH. First, multiple creeks, including Barnes Valley Creek, North Fork Willow Creek, Horse Canyon Creek, and Wildhorse Creek, have indeed failed to attain 80 percent bank stability, but looking only at the 80 percent figure fails to ignore the Forest Service’s 2009 assessment that:

Stream channels in all of the allotments have proven to be stable and capable of withstanding high streamflow events. Large storm events [ ] and the resulting flood flows did not cause channel degradation or noticeable changes in channel morphology within the allotments. Stream channels within the allotments are in good condition and are trending upward. These conditions were achieved under the current management strategy, which in most cases has been in place for over 10 years. The trend toward all streams in the allotments maintaining and/or reaching .desired future condition is expected to continue for the next 10 years with the proposed management strategy, as it is relatively unchanged from the recent past.

P 5597. In addition, the Forest Service stated that while various factors influence a stream water’s temperature, “stream channels and their associated riparian areas on the Forest are on an improving trend.... All of the sites are either stable or are improving”; therefore, “the current grazing strategies appear to be maintaining or improving channel morphology which result in stream temperatures that are appropriate for Lost River and short-nose suckers.” P 5654. Hence, it appears the Forest Service is on a trajectory to reach INFISH’s targets, and while Plaintiffs make much of the fact that this assessment was conducted in 2009, prior to the 2013-15 AOIs that are being challenged, the 2009 assessment was intended to “provide guidance, for the [] grazing allotments in the project area over the next 20 years.” P 5536. Plaintiffs need more than creek-specific observations indicating this assessment has changed to successfully rebut the substantial deference given to the Forest Service’s assessment of its own data. Finally, many of the creek assessments Plaintiffs point to as evidence of a failure to attain RMOs actually show improving or stable trends. For instance, Plaintiffs state that failure to attain 80 percent bank stability in Wildhorse Creek, Horse Canyon Creek, North Fork Willow Creek, and Barnes Valley Creek has been a chronic problem, but data show Wil-dhorse Creek’s bank stability improved from 35 percent to 73 percent between 2002 and 2008. See P 6891. Meanwhile, Horse Canyon Creek’s bank stability was stable at 79 percent between 2002 and 2008, an improvement from 67 percent bank stability in 1997. See P 6899. North Fork Willow Creek’s bank stability did decrease from a high of 78 percent in 1997 to 67 percent in 1998, though bank stability appears to have stabilized, remaining at 52 percent in both 2002 and 2008; as the Forest Service stated, “the stream was functioning at risk in an upward trend.”, P 6893, And while Barnes Valley. Creek’s bank stability decreased from 46 percent in' 1997 to 25 percent in 2002, it improved to 39 percent in 2008. See P 6897. In fact, all four of these creeks’ overall geomorphology and vegetation trends were stable or functioning at risk but at an upward trend. See P 6891, 6893, 6897, 6899. Accordingly, Plaintiffs’ evidence is insufficient to demonstrate the AOIs violated INFISH and, by extension, NFMA.

Plaintiffs next argue the 2009 EA, which 'stated the trend was toward all streams maintaining or reaching desired future conditions, is inapplicable because it fails to take into account subsequent problems with unauthorized grazing on challenged allotments and noncompliance with allotment standards, thus preventing anticipated RMO achievement. The evidence indicates, however, that such exceedances are not widespread and that the Forest Service has addressed isolated incidents of overgrazing. Indeed, the Forest Service’s end-of-year monitoring of the challenged allotments following the 2012, 2013; and 2014 grazing seasons show either general compliance, or a detailed description as to why permit holders were out of compliance and a concerted effort by the Forest Service to work with permit holders to achieve compliance. See, e.g., HF 301-02, 326-27, 334-35; PL 463-66, 1118-19, 1142-43; WH 634-36, 672-73, 696-99; YV 1002-1003, 1037-38. On allotments where over-utilization was a persistent problem, the Forest Service either suspended grazing the following season or seasons, terminated the permit and granted a permit to a separate permittee, or developed monitoring schedules to achieve compliance. See, e.g„ YB 279-280, 220-221, 222-237; PL 1164.

Consequently, it seems INFISH’s targets, while not being met instantaneously, will be achieved over time,- as anticipated by the 2009 assessment. This is what is contemplated by INFISH’s flexible approach; thus, the Court cannot say that the challenged AOIs violated INFISH’s RMOs and, by extension, NFMA. Instead, it appears the Forest Service reasonably gathered and evaluated data relevant to INFISH, and issued the challenged AOIs on that basis. Its decision to authorize grazing was therefore neither arbitrary nor capricious.

IV. National Environmental Policy Act

Plaintiffs argue the Forest Service violated NEPA in issuing its 2009 EA, an assessment that found grazing would have no significant impact on the area assessed, clearing the way for continued grazing on the challenged allotments. Plaintiffs contend the Forest Service’s EA did not “assess the combined effects of grazing and water storage activities on shortnose suckers ..., in violation of NEPA.” Pis.’ Mot. for Summ. J., at. 29. Plaintiffs contend that failure to consider the combined, or cumulative, effects of a proposed action renders an EA arbitrary and capricious.

In response, Defendants and Interve-nor-Defendants point out that Plaintiffs, who participated in the public NEPA process by providing comments on the Forest Service’s analysis, failed to administratively appeal the Forest Service’s finding of no significant impact, and failed to raise their “cumulative effects” argument during the public NEPA process. By failing to use these available avenues to challenge the Forest Service’s assessment prior to filing suit, Defendants -and Intervenor-Defen-dants argue, Plaintiffs are precluded from challenging the Forest Service’s decision under NEPA. Defendants and Intervenor-Defendants argue in the alternative that the Forest Service did assess the combined effects of livestock grazing and water storage and diversion equipment on shortnose suckers, and, accordingly, their 2009 EA was not arbitrary and capricious under NEPA.

A. Failure to exhaust administrative remedies

“The NEPA process is intended to help public officials make decisions that, are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c). Pursuant to these goals, NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment_” 42 U.S.C. § 4332(C). An agency may first prepare an EA, however, to determine whether it must prepare an EIS or whether it may issue a Finding of No Significant Impact (“FONSI”). 40 C.F.R. § 1508.9(a)(1). If the agency issues a FON-SI, then it may proceed with the proposed action. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). An agency’s decision to forego preparing “an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 5 U.S.C. § 706(2)(A)).

In order to retain the right to challenge an agency’s compliance with NEPA, the APA requires the challenging party to exhaust administrative remedies prior-to bringing suit in federal court. 5 U.S.C. § 704; Great Basin Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006) (“This requirement [of administrative exhaustion] applies to claims under NEPA”). Challengers “have exhausted their administrative appeals if the appeal, taken as a whole, provided sufficient notice to the agency to afford it the opportunity to rectify the - violations the plaintiffs alleged.’” Great Basin Watch, 456 F.3d at 965 (quoting Native Ecosystems Council v. Dom- beck, 304 F.3d 886, 899 (9th Cir. 2002)). Requiring administrative exhaustion guards against premature claims and helps ensure the agency is provided “ ‘a chance to bring its expertise to bear to resolve a claim.’ ” Id. (quoting Dombeck, 304 F.3d at 900).

Plaintiffs do not dispute they failed to exhaust administrative remedies, but argue they were not required to do so because “an administrative appeal of the [Forest Service’s] EA would not have stopped the challenged grazing, and therefore exhaustion is not required under [ ] Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993)....” Pis.’ Reply in Supp. of Their Mot. for Summ. J., at 27. In Darby, the Supreme Court assessed the question of when federal courts have the authority to mandate that a plaintiff exhaust administrative remedies prior to seeking judicial review under the APA. 509 U.S. at 138, 113 S.Ct. 2539. The Court held that “an appeal to ‘superior agency authority’ is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.” Id. at 154, 113 S.Ct. 2539 (emphasis in original). In other words, under the second part of the test, if the statute or agency rule requires appeal before judicial review, the statute or rule must also provide that the administrative action ceases upon filing of an appeal. Gifford Pinchot Task Force v. Perez, No. 03:13-cv-00810-HZ, 2014 WL 3019165, at *5 (D. Or. July 3, 2014).

In Conservation Congress v. U.S. Forest Serv., the plaintiff brought suit alleging the Forest Service violated NEPA, NFMA, and the ESA by permitting a timber sale in northern spotted owl critical habitat. No. 13-cv-01922-TLN-CMK, 2014 WL 6610884, at *1-*2 (E.D. Cal. Nov. 19, 2014). The plaintiff did not appeal the project’s approval. Id. at *1. Accordingly, the defendants argued the plaintiffs claim was barred by its failure to exhaust administra