Natural Resources Defense Council, Inc. v. Hodel

• Decision Date: 30 December 1985
• Docket Number: Civ. No. R-84-13-ECR.
• Citation: 624 F. Supp. 1045
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Donald P. HODEL, as Secretary of the United States Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Nevada

624 F. Supp. 1045

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Donald P. HODEL, as Secretary of the United States Department of the Interior, et al., Defendants.

Civ. No. R-84-13-ECR.

United States District Court, D. Nevada.

December 30, 1985.

COPYRIGHT MATERIAL OMITTED

David B. Edelson, Johanna H. Wald, Natural Resources Defense Council, Inc., Laurens H. Silver, San Francisco, Cal., for plaintiffs.

F. Henry Habicht II, Asst. Atty. Gen., Wells Burgess, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., William A. Maddox, U.S. Atty., Shirley Smith, Asst. U.S. Atty., Reno, Nev., for defendants.

MEMORANDUM

JAMES M. BURNS, District Judge, Sitting by Designation.

This is a complex case of first impression, brought by environmental organizations seeking to overturn certain decisions made by the Bureau of Land Management (BLM) relating to livestock grazing on public lands in the Reno, Nevada area. The plaintiffs challenge the BLM's land use plan as being in conflict with Congressional statutory mandates, and as being arbitrary and capricious as a matter of administrative law. They also raise a variety of challenges to BLM's environmental impact statement which purports to evaluate its proposed plan in comparison to other alternatives.

I have considered each of the many arguments raised by plaintiffs in this case in painstaking detail. The sheer size of the record, the complexity of the arguments, and the lack of useful precedent in many areas of the case have made this a perplexing chore for me. As a result, I have spent an extraordinary amount of time in reviewing, researching, and trying to decide these issues in a legally correct and fair way. Many of the complaints raised by plaintiffs have factual merit and suggest the possibility of either bad management or insensitivity to certain environmental concerns on the part of the BLM. But in the final analysis, I have concluded that these complaints do not give rise to causes of action sufficient to allow this court to intervene in the BLM's grazing programs in the manner sought by plaintiffs. To do otherwise would ultimately require this court to adopt the opinion of one expert over that of another, or to adopt one theory of range management over another. While I may not personally approve of some of the actions taken by the BLM, (in the sense that if I were the "rangemaster" I might as well have produced a different plan) I am powerless to substitute my judgment for that of the BLM in these matters. Such would be the inescapable result of the position urged by plaintiffs. For this reason I grant defendants' motion for summary judgment and deny the plaintiffs' cross motion.

BACKGROUND

The BLM manages some 171 million acres of federal lands in 11 western states. Responsibility for managing these lands was vested in the BLM initially by the Taylor Grazing Act of 1934, now codified at 43 U.S.C. § 315 et seq. The supervision of livestock grazing on these lands is a principal activity of the BLM.¹ The BLM lands are divided for grazing purposes into districts, and subdivided into planning areas, such as the "Reno Planning Area" which is the subject of this action. The Reno Planning Area encompasses an overall area of just over 5 million acres, about 700,000 of which are under BLM supervision. (A.R. V: 494).² The planning areas are further divided into grazing allotments, for which the BLM issues grazing permits or licenses.

In 1974 the BLM prepared a single, programmatic Environmental Impact Statement (EIS) to cover its entire grazing program. That EIS was declared to be inadequate by the U.S. District Court for the District of Columbia in Natural Resources Defense Council v. Morton, 388 F.Supp. 829 (D.D.C.1974), affirmed 527 F.2d 1386 (D.C.Cir.1976). The court found that the program-wide EIS "does not provide the detailed analysis of local geographic conditions necessary for the decision-maker to determine what course of action is appropriate under the circumstances." Id., 388 F.Supp. at 838-39.

Subsequent to the NRDC v. Morton decisions Congress enacted comprehensive legislation intended to guide the BLM's management of public lands, including those used for grazing. The Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782 gave the BLM organic authority and set out both general and specific policies and guidelines to be applied by the agency. The Public Rangeland Improvements Act (PRIA), 43 U.S.C. §§ 1901-1908, supplemented and refined FLPMA's range management provisions, and authorized funding for specific on-the-ground range improvements designed to reverse the widespread downward trend in range conditions.

Pursuant to the decision in NRDC v. Morton and the new statutes, the BLM undertook steps in the late 1970s to lay the groundwork for a comprehensive grazing management plan and EIS for the Reno area. The agency began gathering inventory data, listing the available resources in portions of the planning area. Agency specialists then began preparation of the Management Framework Plan (MFP), which is accomplished in three stages pursuant to agency regulations.³ At the first stage, or MFP I, individual planning recommendations were compiled and explained or justified based on substantive law or agency policies. At the next stage, MFP II, the agency attempted to identify and analyze resource conflicts between the various recommendations or uses. The MFP thus acts as a preliminary land use plan, striking some sort of balance among the competing pressures on the resources available. The MFP II for the Reno Planning Area was completed in mid-1981.

The MFP II then served as the "proposed action" within a draft EIS which was issued in July, 1982. The draft EIS ("DEIS") attempts to compare the "proposed action" with three other alternatives in terms of their environmental, economic, and social consequences. The plaintiffs herein took advantage of the opportunity to comment on the DEIS, and pointed out numerous perceived shortcomings. After purportedly considering these objections and considering the alternatives outlined, the BLM issued a Final Environmental Impact Statement (FEIS) which essentially incorporated the DEIS, and summarized the alternatives and predictions in tables. Also included were some minor corrections and copies of comments received relating to the DEIS. The "proposed action" was then adopted as the MFP III, or final land use plan for grazing in the Reno planning area on December 21, 1982.

The plaintiffs protested the adoption of the MFP III as a final agency action, first to the state BLM director, and then to the Director of the BLM. These protests were denied in all material respects. This lawsuit was then filed, in which plaintiffs challenge the adequacy of the EIS, as well as the substantive decision, the MFP III, as being contrary to law and applicable regulations. Plaintiffs' arguments will be discussed in approximately the same order as presented in their motion for summary judgment.

ANALYSIS

I. Violations of NEPA

A. MFP Decision Preceded EIS Process

In this argument, contained principally at pp. 20-22 of plaintiffs' memorandum in support of motion for summary judgment, plaintiffs contend that the BLM had actually decided on its intended course of action before preparing an EIS and actually considering the alternatives. They contend that by predetermining the course of action to be taken, the BLM essentially reduced the process required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970), to the level of a meaningless, after-the-fact exercise.

"The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decision on the environment." Friends of the Endangered Species v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985). Plaintiffs are thus correct in asserting, in theory, that preparation and consideration of an EIS should precede the adoption of the actual federal action proposed. State of California v. Bergland, 483 F.Supp. 465, 479 (E.D.Cal.1980), affirmed in part State of California v. Block, 690 F.2d 753 (9th Cir.1982). It does not follow, however, that an agency cannot formulate a proposed action, or even decide that it wishes to take the proposed action, before preparation of an EIS. Indeed, agency regulations contemplate the selection of a preferred course of action prior to completion and filing of the DEIS. 43 C.F.R. § 1601.5-F (1982). NEPA demands only that the agency follow certain procedural steps in evaluating the consequences of its action, and that the EIS itself comply with the general purposes of NEPA, by providing decision-makers with an analysis of the environmental effects of a proposed action, and to provide the public with such information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985).

There is no contention in this case that the BLM did not observe the procedural requirements of NEPA, in terms of the timing of its public announcements or the like. Moreover, there is no contention that the BLM implemented its proposed action prior to completion of the NEPA process. (Indeed, if one accepts the characterizations of the MFP III advanced by plaintiffs, the planned action involved virtually no change over the status quo, at least for the first several years of the plan period.) Rather, plaintiffs argue, in effect, that the BLM had decided that it liked the MFP III approach before it completed the NEPA/EIS process. In an ideal world, perhaps, agencies should refrain from any sort of policy decision until all environmental consequences have been fully analyzed. And perhaps the BLM can be validly criticized for operating in such a fashion in this case. But such policy-making criticisms do not rise to the level of NEPA violations, and none of the cases cited by plaintiffs so hold. I respectfully decline to...