Idaho Watersheds Project v. Hahn
| Citation | 307 F.3d 815 |
| Decision Date | 24 September 2002 |
| Docket Number | No. 01-35033.,No. 01-35150.,No. 01-35152.,01-35033.,01-35150.,01-35152. |
| Parties | IDAHO WATERSHEDS PROJECT; Committee for Idaho's High Desert, Plaintiffs-Appellees, v. Martha G. HAHN, State Director; Bureau of Land Management; Jenna Whitlock, Owyhee Area Manager, Defendants, and [PG] Owyhee Resources Area Permittees; Thomas Hook; Connie Brandau; James Randall Collins; Michael F. Hanley, IV; Tim Lowry, Defendants-Intervenors-Appellants. Idaho Watersheds Project; Committee for Idaho's High Desert, Plaintiffs-Appellees, v. Martha G. Hahn, State Director; Jenna Whitlock, Owyhee Area Manager, Defendants, and Petan Company of Nevada, Defendant-Intervenor-Appellant. Idaho Watersheds Project; Committee for Idaho's High Desert, Plaintiffs-Appellees, v. Martha G. Hahn, State Director; Jenna Whitlock, Owyhee Area Manager; Bureau of Land Management, Defendant-Appellants, and Owyhee Resources Area Permittees; Thomas Hook; Connie Brandau; James Randall Collins; Baltzor Cattle Company; Michael F. Hanley, IV; Tim Lowry; Petan Company of Nevada, Defendants-Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael J. Van Zandt, Robert L. Zaletel, Anthony L. Francois, McQuaid, Metzler, Bedford & Van Zandt, San Francisco, California, attorneys for Appellants Owyhee Resource Area Permittees, Thomas Hook, Connie Brandau, James Randall Collins, Michael F. Hanley, IV, and Tim Lowry.
John C. Cruden, Acting Assistant Attorney General, David C. Shilton, David J. Lazerwitz, U.S. Department of Justice Environment & Natural Resources Division, Washington D.C., Paul Smyth, Laura Brown, Jean Sonneman, Office of the Solicitor, U.S. Department of the Interior, Kenneth M. Sebby, Office of the Regional Solicitor, U.S. Department of the Interior, attorneys for Appellants Martha Hahn, Jenna Whitlock, and Bureau of Land Management.
W. Alan Schroeder, John T. Schroeder, Schroeder & Lezamiz Law Offices, Boise, Idaho, attorneys for Appellant Petan Ranch.
Laurence J. ("Laird") Lucas, Robert W. Bartlett II, William M. Eddie, Land and Water Fund of the Rockies, Boise, Idaho, attorneys for Appellees Idaho Watersheds Project and Committee For Idaho's High Desert.
Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief Judge, Presiding. D.C. No. CV-97-00519-BLW.
Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.
Appellee environmental groups Idaho Watersheds Project and Committee For Idaho's High Desert ("Environmental Groups") brought suit in federal district court alleging, inter alia, violation of the National Environmental Policy Act ("NEPA") by the Bureau of Land Management ("BLM") in the exercise of its resource management responsibilities and particularly in the issuance of grazing permits to cattle ranchers ("Ranchers" or "Cattle Ranchers") on federal lands in the Owyhee Resource Area ("Owyhee Area" or "Owyhee"). The district court found that the BLM had violated NEPA and granted a permanent injunction imposing interim conditions on grazing and imposing a timetable for the BLM to issue new permits in compliance with NEPA. The Ranchers and the BLM contest the issuance of the injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292 and we affirm.
The Owyhee Resource Area covers over one million acres of ruggedly beautiful landscape in southwestern Idaho bounded on the west by Oregon, on the south by Nevada, and on the north by the Snake River. Deep Creek, South Fork Owyhee Creek, Jordan Creek, Hardtrigger Creek, Reynolds Creek and many other tributaries feed the Owyhee and Snake Rivers, which have sculpted spectacular and wild canyonlands out of the Owyhee's volcanic rock formations.
Remote and traversed by life-giving waterways, the Owyhee provides habitat for bighorn sheep, elk, mule deer, antelope, peregrine falcon, redband trout, sage grouse, and hundreds of other species. Startling in its ecological diversity, from and sagebrush desert to lush juniper woodlands, the Owyhee shelters the world's largest population of nesting raptors and a variety of rare and endangered species.
Along with supporting a wide variety of wildlife, the Owyhee has supported cattle ranching as a traditional occupation for a century or more. Ranching families are an important part of the local community with many family members participating actively in civic life as local elected officials, volunteer firefighters, and school board members. Well over four hundred people currently depend on cattle grazing in the Owyhee for their livelihood.
Water is life, and the health of the Owyhee depends on the health of its streams. Unfortunately, cattle overgrazing now threatens the life of the Owyhee. In his Memorandum Decision and Order of February 11, 1998 ("Feb.Memorandum"), Chief Judge Winmill succinctly summarized the pernicious effect of cattle overgrazing:
These livestock, the EIS noted, tend to congregate near water. Riparian areas — lands adjacent to streams that support a thicker growth of vegetation — are crucial to the wildlife and fish of the ORA [Owyhee Resource Area]. Fish thrive in streams near healthy riparian areas because vegetation stabilizes the stream banks, keeping sediment out of the water and providing shade that cools the water. Although these riparian areas constitute only one percent of the ORA acreage, wildlife congregate there in much greater concentrations than in any other habitat in the ORA.
When riparian vegetation is overgrazed, lush stream banks turn to bare dirt. Trampled by livestock, the dirt banks crumble into nearby waterways. Water quality deteriorates and water temperatures rise, creating adverse conditions for fish. The stream bank erosion prevents plant growth, ensuring further erosion, and destroying wildlife habitat. In this way, overgrazing ruins not only the habitat benefits of riparian areas, but also the grazing benefits of the ORA.
In 1981 the BLM identified livestock overgrazing as a significant problem in the Owyhee and concluded that approximately ninety percent of the Owyhee rangeland was in poor or fair ecological condition. In 1981, the BLM also found over one hundred and forty miles of streams to be in poor condition, due in large part to overgrazing. In 1996, the BLM again examined the health of the streams in the Owyhee and found that ninety-one percent of the stream miles inventoried were in unsatisfactory condition. Despite the BLM's own findings, the BLM failed to address destruction of riparian habitat caused by cattle overgrazing in the fifteen years between 1981 and 1996 and the condition of stream banks in the Owyhee continued to deteriorate during this period.
The BLM is statutorily charged with managing the Owyhee and is required to consider many interests, including livestock grazing. 43 U.S.C. § 1702(c). In 1981, the BLM adopted a master management plan to guide its management of the Owyhee. An Environmental Impact Statement ("EIS") was prepared and adopted along with the 1981 management plan in order to evaluate the environmental impacts of the management plan, including contemplated cattle grazing, as required by NEPA. NEPA imposes procedural requirements upon federal agencies, mandating that the government formally and adequately consider the environmental impacts of proposed federal actions that may have a significant impact on the environment. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
In 1995 major changes were made to substantive grazing regulations governing the BLM, including a new requirement that all ranchers grazing cattle in the Owyhee obtain a grazing permit and undergo an annual reauthorization. 43 C.F.R. § 4140.1(b)(i). The regulations require the BLM to place terms and conditions in the permits to achieve management and resource condition objectives. 43 C.F.R. § 4130.3. As a result of these regulatory changes, the BLM found that most ranchers needed new multi-year permits because they either did not hold a permit or because their permit had expired.
In 1997, in order to comply with the 1995 regulations, the BLM issued sixtyeight grazing permits covering about one million acres. The BLM sought to comply with NEPA by filling out pre-printed one page forms for each permit, and stating on the form that the permit complied with the then sixteen-year-old EIS that had been adopted in 1981. Grazing on the allotments covered by these permits continued uninterrupted and continues today.
Subsequent to the permits being issued, the Environmental Groups filed suit alleging violations of the Clean Water Act, NEPA, and other federal statutes and regulations. The Environmental Groups challenged the issuance of the sixty-eight permits in particular and sought in general to force the BLM to institute grazing management changes to bring BLM's practices into conformance with substantive statutory requirements, the BLM's own guidelines for rangeland management, and the general procedural requirements imposed by NEPA. The Environmental Groups additionally sought to force completion of the long delayed new management plan and new EIS. The Petan Company and the Baltzor Cattle Company, and a group of other ranchers styled the Owyhee Resource Area Permittees ("ORAP"), intervened as defendants.
The district court granted partial summary judgment in favor of the Environmental Groups on their seventh claim for relief. The seventh claim for relief asserts that the BLM violated NEPA because it failed to prepare required environmental documentation before issuing the sixty-eight permits. The BLM argued that referencing the...
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