W. Watersheds Project v. Bernhardt
| Decision Date | 11 February 2021 |
| Docket Number | Case No. 1:16-cv-00083-BLW |
| Citation | 519 F.Supp.3d 763 |
| Court | U.S. District Court — District of Idaho |
| Parties | WESTERN WATERSHEDS PROJECT; et al., Plaintiffs, v. David BERNHARDT, Secretary of Interior; et al., Defendants. |
Laurence J. Lucas, Sarah Stellberg, Todd C. Tucci, Advocates for the West, Boise, ID, for Plaintiffs.
Luther L. Hajek, Barclay T. Samford, US Dept. of Justice Environment and Natural Resources Division, Clare Boronow, U.S. Department of Justice, Denver, CO, Christine Gealy England, United States Attorney's office, Boise, ID, for Defendants Bureau of Land Management, US Forest Service, Joseph R. Balash.
Barclay T. Samford, Luther L. Hajek, US Dept. of Justice Environment and Natural Resources Division, Clare Boronow, U.S. Department of Justice, Denver, CO, for Defendant David Bernhardt.
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 235) and Defendants’ Cross Motion for Partial Summary Judgement (Dkt. 239). At issue on the cross motions is the Bureau of Land Management's decision to cancel the proposed mineral withdrawal of 10 million acres of federal lands located in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, which had previously been identified as Sagebrush Focal Area (SFA) essential for the long-term health of sage grouse. Plaintiffs seek partial summary judgment reversing the Bureau of Land Management's cancellation decision. Defendants seek partial summary judgment on, and the dismissal of, Plaintiff's claim challenging the cancellation decision.
The Court heard oral argument on October 6, 2020. For the reasons set forth below, the Court will grant in part and deny in part Plaintiffs’ motion for partial summary judgment and deny Defendants’ motion for partial summary judgment.
The original complaint in this case was brought by four different environmental groups challenging fifteen Environmental Impact Statements (EISs) issued in 2015 that govern land covering ten western states. The gist of Plaintiffs’ lawsuit was that the BLM and Forest Service artificially minimized the harms to sage grouse by segmenting their analysis into 15 sub-regions without conducting any range-wide evaluation—the agencies looked at the trees without looking at the forest, so to speak. Plaintiffs brought their claims under the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and the National Forest Management Act (NFMA).
As this litigation was underway, the Trump Administration came into office and began a process to review and revise the 2015 Sage Grouse Plans. This litigation was put on hold pending that review. In 2017 that review was completed. WWP alleges that, as part of that review, former Interior Secretary Ryan Zinke directed agencies to relax restrictions on oil and gas development in sage grouse habitat. The BLM responded by issuing amendments to the Sage Grouse Plans (referred to as the 2019 Plan Amendments).
In May 2019, Plaintiffs supplemented their complaint to challenge the BLM's 2019 Plan Amendments. Plaintiffs allege that the agency—acting at the direction of the Trump Administration—again made common errors across numerous Plans, including (1) failing to conduct a range-wide analysis, (2) failing to evaluate climate change impacts, and (3) generally removing protections for the sage grouse that were not justified by science or conditions on the ground. Plaintiffs also brought numerous supplemental claims for relief. At issue in the cross-motions for summary judgment currently before the Court is Plaintiffs’ fifth supplemental claim, challenging the BLM's October 2017 SFA Mineral Withdrawal Cancellation Notice, 82 Fed. Reg. 47,248 (Oct. 11, 2017), as violating NEPA, NEPA regulations, and the APA.
This Court has written extensively about the decline of sage grouse populations and habitat. See WWP v. FWS , 535 F. Supp. 2d 1173 (D. Idaho 2007) ; WWP v. Schneider , 417 F. Supp. 3d 1319 (D. Idaho 2019). Despite these declines, the Fish and Wildlife Service (FWS) in 2005 determined that a listing under the Endangered Species Act (ESA) was "not warranted." The Court reversed that decision, finding that it ignored declines in population and habitat, and was not based on the best available science as required by the Endangered Species Act (ESA). See 535 F. Supp.2d 1173. The Court remanded the case to the U.S. Fish and Wildlife Service (FWS) for further consideration.
On remand, the FWS issued a new finding in 2010 that ESA listing of the sage grouse was "warranted-but-precluded." See 75 Fed. Reg. 13910 (March 5, 2010). That finding stressed the inadequacy of federal land use plans to protect sage grouse, particularly from energy development impacts. Id. at 13,942. The FWS's determination prompted the Bureau of Land Management (BLM) and the U.S. Forest Service, along with several states, to consider protections for the sage grouse to avoid a future ESA listing.
The BLM and Forest Service launched their National Greater Sage-Grouse Planning Strategy in 2011 to amend federal land use plans with sage grouse conservation measures necessary to avoid ESA listing. To guide that strategy, a National Technical Team (NTT) of sage-grouse experts was convened. The NTT released their "Report on National Greater Sage-Grouse Conservation Measures" (NTT Report) in December 2011. This Court found—after an evidentiary hearing and testimony from sage grouse expert Dr. Clait Braun—that the NTT Report "contains the best available science concerning the sage-grouse." See WWP v. Salazar , 2012 WL 5880658, at *2 .
The NTT Report emphasized the protection of priority sage grouse habitats and the need for buffers around sage grouse leks. (SFA_18380-83; SFA_18393-94.) The NTT report stated that the "overall objective is to protect priority sage-grouse habitats from anthropogenic disturbances that will reduce distribution or abundance of sage grouse." (SFA_18380.) It identified priority sage-grouse habitats as "breeding, late brood-rearing, winter concentration areas, and where known, migration or connectivity corridors." (Id. ) The NTT Report recommended closing these priority sage-grouse habitat areas to oil and gas or other mineral leasing, concluding that "[t]here is strong evidence from the literature to support that surface-disturbing energy or mineral development within priority sage-grouse habitats is not consistent with the goal to maintain or increase populations or distribution." (SFA_18392.)
With regard to lek buffers, the NTT Report found that the BLM's existing 0.25 mile "No Surface Occupancy" buffers around sage-grouse leks and 0.6 mile seasonal timing buffers were inadequate to protect sage-grouse, stating that "protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer" and that even a 4-mile buffer "would not be large enough to offset all the impacts" of energy and mineral development. (SFA_18393-94.)
In March 2013, the FWS released its own report entitled the "Conservation Objectives Team Report" (COT Report) that identified "Priority Areas for Conservation" (PACs) as "key habitats necessary for sage-grouse conservation." (SFA_18467.) The COT Report emphasized that "[m]aintenance of the integrity of PACs .... is the essential foundation for sage-grouse conservation," but recognized that "habitats outside of PACs may also be essential," including to provide connectivity between PACs. (SFA_18467; SFA_18490.) The COT Report recommended avoiding "new mining activities and/or any associated facilities within occupied habitats, including seasonal habitats" and stressed the need to ensure "no net loss of sage-grouse habitats in areas affected by mining." (SFA_18503.) The COT Report also stated: "There is an urgent need to ‘stop the bleeding’ of continued population declines and habitat losses by acting immediately to eliminate or reduce the impacts contributing to population declines and range erosion," and that "[t]here are no populations within the range of sage-grouse that are immune to the threat of habitat loss and fragmentation." (SAF_18485-46.) "Achieving this objective requires eliminating activities known to negatively impact sage-grouse and their habitats, or redesigning these activities to achieve the same goal." (SFA_18486.) The report found that management "must continue to effectively conserve all current PACs," which are "essential for sage-grouse conservation." (SFA_18448; SFA_18486.)
In an October 2014 memorandum to the BLM and Forest Service, the FWS identified a sub-category of the PACs as sage-grouse "stronghold" areas that have the "highest densities of greater sage-grouse and other criteria important for the persistence." (SFA_14530.) These strongholds were the basis for the "Sagebrush Focal Areas" (SFAs) in the 2015 Plans (which are discussed next) and were designated as "a subset of priority habitat most vital to the species persistence within which [the FWS] recommend[s] the strongest levels of protection." (Id. )
In 2015, the BLM and Forest Service adopted Sage-Grouse Plans (the 2015 Plans) that covered ten states, revised 98 federal land use plans, and incorporated many of the NTT and COT Reports’ recommendations, such as restrictions to prevent or minimize surface disturbances in priority habitats, and requirements of compensatory mitigation for unavoidable adverse impacts to sage-grouse habitats. As called for in the NTT and COT Reports, the 2015 Plans established new sage-grouse priority habitat designations with heightened management protections across some 67 million acres of federal land, including "Priority Habitat Management Areas" (PHMAs)—of which SFAs are a subset—and "General Habitat Management Areas" (GHMAs), along with other...
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