W. Watersheds Project v. Abbey

• Citation: 719 F.3d 1035
• Decision Date: 07 June 2013
• Docket Number: No. 11–35705.,11–35705.
• Parties: WESTERN WATERSHEDS PROJECT, a nonprofit organization; Glenn Monahan, in his individual capacity and as a member of Western Watersheds Project; Nancy Schultz, in her individual capacity and as a member of Western Watersheds Project, Plaintiffs–Appellants, v. Bob ABBEY, in his official capacity as Director of the Bureau of Land Management, an agency of the United States; Gary Slagel, in his official capacity as Manager of the Upper Missouri River Breaks National Monument; Gene R. Terland, in his official capacity as BLM Montana State Director; Gary L. Benes, in his official capacity as Field Manager of BLM's Lewistown Field Office; Bureau of Land Management, an agency of the United States Department of Interior, Defendants–Appellees, and Blaine County; Chouteau County; Fergus County; Missouri River Stewards; Phillips County, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

719 F.3d 1035

WESTERN WATERSHEDS PROJECT, a nonprofit organization; Glenn Monahan, in his individual capacity and as a member of Western Watersheds Project; Nancy Schultz, in her individual capacity and as a member of Western Watersheds Project, Plaintiffs–Appellants,

v. Bob ABBEY, in his official capacity as Director of the Bureau of Land Management, an agency of the United States; Gary Slagel, in his official capacity as Manager of the Upper Missouri River Breaks National Monument; Gene R. Terland, in his official capacity as BLM Montana State Director; Gary L. Benes, in his official capacity as Field Manager of BLM's Lewistown Field Office; Bureau of Land Management, an agency of the United States Department of Interior, Defendants–Appellees,andBlaine County; Chouteau County; Fergus County; Missouri River Stewards; Phillips County, Intervenor–Defendants–Appellees.

No. 11–35705.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 2013.

Filed June 7, 2013.

Thomas J. Woodbury, Western Watersheds Project, Missoula, MT, for Plaintiffs–Appellants.

Robert Parke Stockman (argued), Ignacia S. Moreno, Assistant Attorney General, Tyler Welti, Rachel K. Bowen, and David C. Shilton, United States Department of Justice, Environment & Natural Resources Division, Washington D.C.; Sarah Shattuck and Karan Dunnigan, Of Counsel, Office of the Solicitor General, United States Department of the Interior, Washington D.C., for Defendants–Appellees.

Hertha L. Lund (argued), Lund Law, Bozeman, MT; Steven J. Lechner and Jeffrey Wilson McCoy, Mountain States Legal Foundation, Lakewood, CO, for Intervenors–Appellees.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:10–cv–00004–SEH.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

More than two-hundred years ago, the Upper Missouri River Breaks enchanted Lewis and Clark as they traveled westward through what is now north-central Montana. Proclamation No. 7398, 3 C.F.R. § 7398 (2002). The explorers marveled at the area's “most romantic appearance,” with white sandstone bluffs that seemed “to rival the human art of masonry.” Id. They admired the abundant wildlife and observed big-horn sheep, mule deer, elk, and antelope. Id. In 2001, President Clinton recognized the biological, historical, and cultural significance of the Breaks country by designating the area as the Upper Missouri River Breaks National Monument (“Breaks Monument” or “Monument”). The Bureau of Land Management (“BLM”), an agency of the United States Department of the Interior, manages the Monument, an area of unparalleled scenic beauty, great geological and biological import, and special historical significance.

Appellants Western Watersheds Project, Glenn Monahan, and Nancy Shultz (collectively “Western Watersheds”) argue that BLM's management of grazing within the Breaks Monument violates the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701–1787; Proclamation No. 7398, 3 C.F.R. § 7398 (2002); and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–4347. Western Watersheds contends that BLM improperly interpreted the Proclamation to exclude programmatic grazing changes from the Breaks Monument Resource Management Plan (“Breaks Resource Plan”). It further argues that the Breaks Monument Environmental Impact Statement (“Breaks EIS”) and the site-specific Environmental Assessment (“EA”) for the Woodhawk Allotment violated NEPA by not adequately assessing the impacts of livestock grazing within the Monument.

The district court granted summary judgment in favor of Appellees United States Department of the Interior, BLM, and named employees in their official capacities (collectively “BLM”). Western Watersheds appealed. We have jurisdiction to review this appeal under 28 U.S.C. § 1291. We affirm in part and reverse in part. We conclude (1) that BLM reasonably interpreted the Proclamation in developing the Breaks Resource Plan, (2) that the Breaks EIS complied with NEPA, and (3) that the EA for the Woodhawk Allotment violated NEPA. We remand for further proceedings on the Woodhawk Allotment permit renewal.

I

President Clinton established the Breaks Monument by presidential proclamation pursuant to his authority under the Antiquities Act, 16 U.S.C. § 431. See 3 C.F.R. § 7398. The Breaks Monument comprises more than 375,000 acres of federal land in north-central Montana intermingled with nearly 120,000 acres of state, county, and private land. The Proclamation's purpose is to protect various “objects” in the Breaks country that have biological, geological, or historical significance. Id.

The Breaks country remains remote and largely undeveloped, so “[m]any of the biological objects described in Lewis' and Clark's journals continue to make the monument their home.” Id. These biological objects include essential habitat for sage-grouse and waterfowl, the Judith River and its tributaries that provide habitat for forty-eight species of fish, and a fully functioning cottonwood gallery forest ecosystem—one of only a few remaining in the Northern Plains. Id.

The Proclamation directs BLM to manage the Breaks Monument pursuant to applicable legal authorities and the Proclamation's purposes and terms. Id. These terms include provisions that either direct BLM to take a specific action or limit the Proclamation's impact. Id. One of these provisions, and a key one affecting this lawsuit, states that the “[l]aws, regulations, and policies followed by the [BLM] in issuing and administering grazing permits or leases on all lands under its jurisdiction shall continue to apply with regard to the lands in the monument.” Id. Western Watersheds challenges BLM's interpretation of that grazing provision.

BLM concluded that the grazing provision authorized it to follow existing laws, regulations, and policies governing grazing to “protect the objects of the Monument and rangeland resources.” This interpretation limited the scope of both the Breaks Resource Plan, which BLM created to guide the agency's management of the Breaks Monument, and the Breaks EIS, which assessed environmental impacts of the Breaks Resource Plan. The Breaks EIS considered six alternatives, but none proposed programmatic changes to grazing management because, importantly, BLM interpreted the Proclamation not to require such changes. The Breaks ResourcePlan and Breaks EIS adopted BLM's interpretation and explained that existing laws, regulations, and policies would continue to apply in the Monument. These laws and regulations include the Lewistown District Standards for Rangeland Health and Guidelines for Livestock Grazing Management (Lewistown Standards).

Western Watersheds contends that the Lewistown Standards are inadequate to protect Monument objects and that BLM erred by relying on the Lewistown Standards in the Breaks Resource Plan, the Breaks EIS, and the EA for the Woodhawk Allotment. This contention moves us toward center stage in the drama of this dispute involving grazing within the Breaks area protected by the Proclamation. We must consider both BLM's grazing policies, which may be continued under the Proclamation, and the needs of the Monument objects, some of which are in tension with BLM's existing grazing policies.

The Lewistown Standards were created in 1997 as part of the regional Montana/Dakotas Standards for Rangeland Health and Guidelines for Livestock Grazing Management. BLM regulations mandate the creation of regional or statewide rangeland standards consistent with the fundamentals of rangeland health set forth in those regulations. See43 C.F.R. §§ 4180.1, 4180.2. These regulations also allow for localized standards and guidelines, like those developed for the Lewistown District, “to address local ecosystems and management practices.” 43 C.F.R. § 4180.2(b). The Central Montana Resource Advisory Council participated in developing the Lewistown Standards.

The Lewistown Standards set five standards and fourteen guidelines. The “[s]tandards are statements of physical and biological condition or degree of function required for healthy sustainable rangelands.” Standards one and two adopt a proper-functioning-condition model to determine upland, riparian, and wetland health. These standards require soil stabilization, adequate vegetation, and a rich biotic community. The guidelines “are preferred or advisable approaches to ensure that standards can be met or that significant progress can be made toward meeting the standard(s).” All BLM rangelands in the Lewistown District must achieve the standards or make measurable progress toward them. The Lewistown Standards are implemented through a watershed planning process that identifies watershed plan areas by grouping grazing allotments that have similar resource values and concerns. Generally, BLM issues ten-year grazing permits for these allotments, and each permit renewal must comply with NEPA.

The Woodhawk Allotment, located within the Monument, is governed by the watershed planning process and the Lewistown Standards. When the ten-year grazing permit for the Allotment expired on December 31, 2008, BLM proposed renewing the permit for another ten-year period. BLM then conducted an environmental assessment to determine the environmental impact of renewing the permit. With this assessment, BLM released a finding of no significant impact because (1) the permit renewal would facilitate management changes to improve riparian and water quality conditions and (2) it would not impact wildlife, air quality, or cultural resources. The EA considered four alternatives in detail: one no-action alternative, which would implement the same management practices as the previous permit, and three action alternatives that proposed different management practices for the Allotment. Also, the EA considered but did...