Court finds Thunder Basin management plan full of prairie dog holes

Amanda Pampuro

DENVER (CN) — A divided 10th Circuit on Monday reversed a lower court’s approval of a Thunder Basin National Grassland management plan that removed protections for the black-tailed prairie dogs needed to support the recovery of black-footed ferrets.

“We agree with the conservation groups that the U.S. Forest Service failed to produce a sufficient purpose and need statement, failed to consider a reasonable range of alternatives, and failed to take a hard look at the combined effects of decreased acreage objectives, density control, plague, poison, and recreational shooting as required,” U.S. Circuit Judge Carolyn McHugh wrote for the majority in a 38-page opinion.

While black-footed ferrets’ range once stretched across the Great Plains and semiarid grasslands of the West, the keystone species has been endangered in the U.S. for 55 years following the systematic poisoning of prairie dogs as well as habitat loss and disease.

The Thunder Basin National Grassland in northeast Wyoming covers 553,000 acres of land managed by the government patched around 1 million acres of state and private land. In addition to serving as wildlife habitat, the grassland supports energy extraction and provides forage for livestock.

Because prairie dogs compete with cattle for grass and dig burrows that can injure people and their livestock, the rodents and ranchers have long been at odds. The black-tailed prairie dog population in Thunder Basin however makes the grassland ideal for black-footed ferret recovery, since the weasel depends on the rodent for food and shelter.

Over the decades, the area's management plans have offered certain protections for the prairie dogs and ferrets, such as limiting grazing and sports shooting on federal land. Previous plans also raised concerns that if combined these lethal tools could outright eradicate the prairie dog.

In 2020, the U.S. Forest Service approved a Thunder Basin resource management plan that largely removed measures aimed at protecting the prairie dogs and preparing to bring back the ferrets.

Western Watersheds Project, Rocky Mountain Wild and WildEarth Guardians sued the federal government in November 2021 in Washington over the plan that would allow poisoning and recreational shooting of prairie dogs in Thunder Basin.

The case was transferred to the District of Wyoming in September 2022. A federal judge affirmed the Forest Service plan a year later. Western Watersheds appealed.

Upon review, McHugh, an appointee of Barack Obama and Bill Clinton-appointed U.S. Circuit Judge Scott Matheson found the federal agency selected a project purpose that was so narrow it prevented consideration of nonlethal prairie dog management.

“Each proposed action alternative accordingly increases the availability of lethal control methods, including poisoning and shooting,” McHugh wrote. “There are viable alternatives to expanding the use of lethal controls, but none of the proposed actions consider these alternatives."

The majority also found the Forest Service failed to consider measures like limiting grazing that might have fulfilled the plan’s conservation goal.

U.S. Circuit Judge Timothy Tymkovich, appointed by George W. Bush, penned a 12-page dissent supporting affirmation of the Forest Service plan as submitted.

Tymkovich argued the majority “misses the forest for the trees,” when the government sought to learn from years of experience and mistakes.

Dating back to the 2015 plan, for example, the Forest Service determined many nonlethal control tools to be “inefficient and costly.”

“Sticking to a plan that has proven to be ineffective makes little sense and amending such plans — even considerably — can hardly be arbitrary or capricious,” Tymkovich wrote. “The Forest Service, based on its experience with the failed plan, properly identified and explained how it believed the plan must change. It then analyzed a reasonable range of alternatives that accomplished its purposes and needs.”

Western Watersheds Project attorney Megan Backsen said she was elated by the decision.

“The court was obviously acquainted with the facts and application of the law,” Backsen said by phone. With the case being remanded to the U.S. District of Wyoming for a decision on the remedies, Backsen will continue to argue for the amended management plan to be vacated.

“I’m hopeful that when we get a chance to discuss the remedy in front of the district court that we will see a vacatur of this plan amendment,” she said.

U.S. Attorney Amy Collier represented the federal government on appeal. Representatives from the Department of Justice declined to comment on the development.