Western Watersheds Project v. Bennett, Civ. 04-0181-S-BLW.

• Decision Date: 01 August 2005
• Docket Number: No. Civ. 04-0181-S-BLW.,Civ. 04-0181-S-BLW.
• Citation: 392 F.Supp.2d 1217
• Parties: WESTERN WATERSHEDS PROJECT, Plaintiff, v. K. Lynn BENNETT, Director Idaho State Office, Bureau of Land Management, et al., Defendants.
• Court: U.S. District Court — District of Idaho

392 F.Supp.2d 1217

WESTERN WATERSHEDS PROJECT, Plaintiff, v. K. Lynn BENNETT, Director Idaho State Office, Bureau of Land Management, et al., Defendants.

No. Civ. 04-0181-S-BLW.

United States District Court, D. Idaho.

August 1, 2005.

COPYRIGHT MATERIAL OMITTED

Laurence J. Lucas, Law Office of Laurence J. Lucas, Todd C. Tucci, W. Alan Schroeder, Schroeder & Lezamiz Law Offices, L.L.P., Boise, ID, for Plaintiff.

Deborah A. Ferguson, US Attorney's Office, Boise, ID, Craig A. Pridgen, Tahoe City, CA, for Defendants.

MEMORANDUM DECISION and ORDER

WINMILL, Chief Judge.

INTRODUCTION

The Court has before it motions filed by WWP (1) for injunction, (2) for partial summary judgment, and (3) to file an amended complaint. The Court also has before it a motion to dismiss and motion to strike filed by the BLM, and a motion to intervene. The Court heard oral argument on May 17, 2005, and the motions are now at issue. For the reasons expressed below, the Court will grant WWP's motions, deny the motions filed by the BLM, and grant in part the motion to intervene.

FACTUAL BACKGROUND

Plaintiff WWP challenges the BLM's issuance of grazing permits for allotments on the Jarbidge Resource Area. WWP contends that the BLM's issuance of the permits was arbitrary and capricious under the Administrative Procedures Act (APA) because the BLM failed to follow the requirements of the National Environmental Protection Act (NEPA) and the Federal Land Policy and Management Act (FLPMA).

The BLM has divided the public lands it manages into administrative segments known as Resource Areas. See 43 C.F.R. § 1601.0-5. The Jarbidge Resource Area (JRA) comprises about 1.7 million acres of land in southern Idaho. Congress has required that each Resource Area be governed by a Resource Management Plan. See 43 U.S.C. §§ 1701-84. The BLM manages the JRA according to the terms of the Jarbidge Area Resource Management Plan and its accompanying Environmental Impact Statement and Record of Decision (JRA RMP-EIS), completed in 1987.

To manage cattle grazing, the BLM has created grazing allotments that cover the entire JRA. Recently, the BLM renewed ten-year grazing permits for 28 of these allotments, and it is that action that WWP challenges here. WWP seeks to halt the grazing to improve the condition of the rangeland.¹

When the JRA RMP-EIS was issued in 1987, it described a bleak landscape. Only 16% of the rangeland was in "fair" or better condition, while 48% was in "poor" condition. See RMP-EIS Appendix Table F-2. Recognizing that grazing was part of the problem, the RMP ROD stated that "wildlife goals and watershed needs will be satisfied prior to allowing increases in livestock use." See RMP ROD at p. I-3.

In the same vein, the RMP ROD stated that increased grazing "would not be authorized unless monitoring studies indicate that the basic soil, vegetation and wildlife resources are being protected and additional forage is available." Id. at p. I-7. Consistent with this, the RMP-EIS directs that "[p]riority for habitat management will be given to habitat for listed and candidate Threatened, Endangered, and Sensitive species." Id. at p. II-87.

One of the sensitive species designated by the BLM in the JRA is the sage grouse. Sage grouse were "originally spread over most of the [JRA] area." See Simplot EA at p. 3-58. More recently, however, the BLM has observed that their numbers have declined dramatically: "Over the last 20 to 50 years there has been an 85% reduction in the number of sage grouse male attendance at known leks ... and a subsequent overall population reduction." Id. The number of occupied leks "decreased 37% over the last 20 to 50 years." Id. The causes of this decline include "overgrazing of sagebrush habitats," along with wildfires, habitat fragmentation, drought, invasion of exotic plants, and conversion of sagebrush habitat to agriculture. Id.

The alarming decline of the sage grouse is occurring at the same time that the BLM is documenting problems with the JRA rangeland. Since 1999, the BLM has determined that all 28 of the grazing allotments at issue here fail to meet the ecological standards of the Fundamentals of Rangeland Health (FRH). See 43 C.F.R. § 4180.1 (2003). These regulations set minimum criteria for the condition of environmental resources, requiring, for example that watersheds and riparian areas be in proper functioning condition, id. at § 4180.1(a), that water quality meets legal standards, id. at § 4180.1(c), and that adequate habitat is being maintained for wildlife, id. at § 4180.1(d).

For example, after examining 14 allotments — designated as Crawfish, Three Creek, Antelope Springs, Cedar Creek, Pigtail Butte, Kubic, Flat Top, Clover Crossing, Echo Clover, Brackett Bench AMP, Noh Field, North Fork Field, Winter Camp, and Desert 71 — the BLM determined that for each, (1) FRH standards were not being met and (2) livestock grazing practices were a significant factor in the failure to meet those standards.

Despite the deterioration of these 14 allotments caused by grazing, the BLM has approved increased grazing on 9 of these allotments, and approved maintaining the past level of grazing on the other five. No reductions in grazing are planned.

On a 15^th allotment — Juniper Butte — the BLM found FRH violations and concluded that grazing was a factor in those violations although the BLM could not determine if it was a significant factor.² The BLM approved an increase in grazing on this allotment.

On another 13 allotments — Brown's Gulch, Yahoo, Echo Jewett, Bruneau Hills, Echo 4, Echo 5, Camas Slough, Coonskin, East Juniper Draw, Grassy Hills, Blackrock Pocket, Cedar Butte/Devil Creek, and Hallelujah — the BLM found FRH violations but concluded that grazing was not a significant factor in those violations. For 11 of these allotments, the BLM has approved an increase in grazing while for the remaining 2 allotments, the BLM approved maintaining grazing at past levels.

Before making final decisions on whether to re-issue ten-year permits for these 28 allotments, the BLM assessed the environmental impacts of grazing in Environmental Assessments (EAs). The BLM decided to do four EAs, because the 28 allotments were divided among four permittees. The four EAs are known as (1) the RCI EA, (2) the Simplot EA, (3) the Brown's Gulch EA, and (4) the Echo 5 EA.

Because three of the four permittees held permits for widely-separated allotments, three of the EAs evaluated allotments that were quite a distance apart from one another. For example, the RCI EA evaluated two allotments in the southwest corner of the JRA, and two others at least 15 miles away in the northeast corner. The Brown's Gulch EA evaluated allotments separated by over 15 miles. The eighteen allotments evaluated in the Simplot EA are scattered randomly throughout the entire JRA.

On the basis of the four EAs, the BLM issued Final Grazing Decisions renewing the ten-year permits for each of the allotments. Each of the Final Grazing Decisions contained a similar finding that the issuance of the permits would not constitute a major federal action that would significantly affect the quality of the human environment, and hence no Environmental Impact Statement (EIS) would be necessary.

WWP filed this lawsuit alleging among other things that the Final Grazing Decisions violate NEPA and FLPMA. WWP has now moved for partial summary judgment on both of these claims, and seeks to enjoin any grazing on these 28 allotments. The BLM has filed a motion to dismiss, and various ranching entities have filed motions to intervene. The Court will turn first to the BLM's motion to dismiss and then review the NEPA issues.³

ANALYSIS

1. BLM's Motion to Dismiss

The BLM argues that WWP has failed to exhaust its administrative remedies. The Court disagrees. WWP filed with the BLM three timely motions to stay and one untimely motion. The BLM denied all four motions. WWP has no further administrative remedies to pursue and thus has satisfied the exhaustion requirement.

The BLM responds that its new regulations require WWP to file a "timely" motion to stay in order to satisfy the exhaustion requirement. However, if that is how the regulation reads, it sets up roadblocks beyond those approved in Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) and hence cannot be applied to WWP.

2. NEPA Standard of Review

WWP challenges the BLM's decision, contained in the Final Grazing Decisions, to not prepare an EIS. An agency's decision not to prepare an EIS under NEPA is reviewed under the APA's arbitrary and capricious standard. Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir.1998). In determining whether the BLM's decision was arbitrary and capricious, the Court must ask whether the agency has taken a "hard look" at the environmental consequences of its proposed action. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998). Under this deferential standard, the Court will affirm an agency's decision that is "fully informed and well-considered." Id. However, the Court "must not `rubber-stamp' ... administrative decisions that [it] deem[s] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 858 (9^th Cir.2005).

3. NEPA Requires Public Input

NEPA regulations describe the EA as a "concise public document." See 40 C.F.R. § 1508.9. The regulations tell agencies that "public scrutiny [is] essential." 40 C.F.R. § 1500.1(b). Accordingly, agencies are charged to "encourage and facilitate public involvement in decisions," id. § 1500.2(d), so that "environmental information is available to public officials and citizens before decisions are made." Id. § 1500.1(b).

The Ninth Circuit has read these regulations to mean that "the public must be given an opportunity to comment on draft EAs and EISs." Anderson v. Evans, 371 F.3d...