W. Watersheds Project v. Bureau of Land Mgmt.

• Decision Date: 04 September 2013
• Docket Number: No. 2:10–CV–02896–KJM–KJN.,2:10–CV–02896–KJM–KJN.
• Citation: 971 F.Supp.2d 957
• Parties: WESTERN WATERSHEDS PROJECT, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, Defendant, Flying M Ranch, et al., Defendant–Intervenors.
• Court: U.S. District Court — Eastern District of California

971 F.Supp.2d 957

WESTERN WATERSHEDS PROJECT, et al., Plaintiffs,

v.BUREAU OF LAND MANAGEMENT, Defendant,Flying M Ranch, et al., Defendant–Intervenors.

No. 2:10–CV–02896–KJM–KJN.

United States District Court,

E.D. California.

Sept. 4, 2013.

Alicia Ellen Thesing, Leah Russin, Deborah Ann Sivas, Mills Legal Clinic, Stanford, CA, Natalie J. Havlina, Advocates for the West, Inc., Boise, ID, for Plaintiffs.

J. Earlene Gordon, U.S. Attorney's Office, Sacramento, CA, William E. Peterson, Suellen Fulstone, Snell & Wilmer, LLP, Reno, NV, Brandon L. Jensen, Karen Jean Budd–Falen, Budd–Falen Law Offices, LLC, Cheyenne, WY, for Defendant.

ORDER

KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the parties' cross motions for summary judgment. (ECF 77, 83, 84, 87.) Plaintiffs assert BLM's renewal of grazing permits in Eastern California violates the Federal Land Policy and Management Act and the National Environmental Policy Act. The court held hearing on the motions on March 14, 2012. Natalie Havlina appeared for plaintiffs, J. Earlene Gordon appeared for defendant Bureau of Land Management (“BLM”), Brandon Jensen appeared for defendant-intervenor Flying M Ranch (“Flying M”), and Suellen Fulstone appeared for defendant-intervenor R.N. Fulstone Company (“Fulstone”) (collectively, “defendant-intervenors”). Having reviewed the parties' briefs and considered their arguments, and reviewed the substantial administrative record in this case, for the reasons below, the court GRANTS in part and DENIES in part each motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

BLM has authority under the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., to issue livestock grazing permits for federal lands. See43 C.F.R. § 4100.0–1, et seq. Grazing permits generally are valid for ten years and may be renewed. Id. §§ 4110.1(b)(1), 4130.2. Under BLM's grazing regulations, grazing is managed “on public lands under the principle of multiple use and sustained yield, and in accordance with applicable land use plans.” 43 C.F.R. § 4100.0–8. Grazing permits are required to have “terms and conditions determined by the authorized officer to be appropriate to achieve management and resource condition objectives for the public lands and other lands administered by the [BLM]....” Id. § 4130.3. Such terms and conditions include “the kind and number of livestock, the period(s) of use, the allotment(s) to be used, and the amount of use, in animal unit months, for every permit or lease.” Id. § 4130.3–1(a).

Three sets of standards, established by BLM in accordance with the FLPMA, are relevant to this action. The broadest standards are the “Central California Standards and Guidelines for Livestock Grazing” (“Central California Standards” or “Rangeland Health Standards”), which contain the management standards and guidelines for the entire Central California geographical area. (Doc. 186: AR ¹ 5777); 43 C.F.R. § 4180.2. The Central California Standards set standards for watershed function, ecological processes, water quality, and habitats of protected species. (Doc. 186: AR 5780.) These Standards apply only when a grazing allotment is not meeting certain criteria defined by the Standards themselves. (Doc. 186: AR 5791.)

Second, the 1993 Bishop Resource Management Plan (“Bishop RMP”) applies to a smaller geographic area. ( See Doc. 233: AR 8873.) The Bishop RMP is administered by the Bishop Field Office, which manages 750,000 acres of land in Eastern California's Inyo and Mono counties. (Doc. 233: AR 8881, 8971–8973; Doc. 49: AR 1269.) A total 606,000 acres of this land, divided into 58 allotments, are open to grazing. ( See Doc. 49: AR 1269.) The Bishop RMP defines mandatory conditions for grazing on these allotments. (Doc. 233: AR 8890–8902, AR 8967–8977.)

The most specific standards relevant to this case are the challenged grazing permits themselves, which were issued by the Bishop Field Office in 2010. (Doc. 9; Doc. 13.) The Bishop Field Office's 58 grazing allotments are grouped into nine management areas. The challenged grazing permits relate to the Bodie Hills Management Area (“Bodie Hills”), which encompasses 121,150 acres of public lands located north of Mono Lake. (Doc. 233: AR 8910.) Plaintiffs challenge BLM's renewal of grazing permits on four specific allotments within the Bodie Hills Management area: the Bodie Mountain, Mono Sand Flat, Potato Peak and Aurora Canyon allotments (collectively, “Bodie Hills allotments”). ( See Compl., ECF 1.) Defendant-intervenor Fulstone is the permit-holder for the Potato Peak and Aurora Canyon allotments, and defendant-intervenor Flying M holds permits for the Bodie Mountain, and Mono Sand Flat Allotments. (Doc. 1: AR 1; Doc. 9: AR 166).

Before BLM renewed the permits for the Bodie Hills allotments, in September 2008, BLM issued an environmental assessment (“EA”) analyzing the anticipated environmental impacts of renewal. ( See Doc. 49: AR 1238.) Prior to issuing the final EA, BLM published a draft version for public comment. Plaintiff Western Watersheds suggested changes to the draft EA, which BLM considered and addressed in the final EA. (Doc. 53: AR 1374; Doc. 49: AR 1238.)

BLM has designated two of the species known to inhabit the Bodie Hills allotments as “sensitive species”: the greater sage grouse ( centrocercus urophasianus ) and the pygmy rabbit ( brachylagus idahoensis ). (Doc. 49: AR 1323–1330.) The Bishop RMP contains provisions to protect these sensitive species. (Doc. 233: AR 8897.) Among these prescriptions are required yearlong and seasonal protections of these animals' habitats.

In 2003, several parties, including plaintiff Western Watersheds, petitioned the U.S. Fish and Wildlife Service to list the pygmy rabbit as endangered or threatened under the Endangered Species Act. (Doc. 3: AR 6.) In 2005, the U.S. Fish and Wildlife Service (“FWS”) published a 90–day finding in the Federal Register, which stated that listing was not warranted. ( Id.) The federal court for the District of Idaho vacated and remanded the finding, ordering FWS to issue a new finding on or before December 26, 2007. W. Watersheds Project v. Norton, CV 06–00127SEJL, 2007 WL 2827375 (D.Idaho Sept. 26, 2007). FWS issued the new 90–day finding on January 8, 2008, stating “that the petition presented substantial information indicating that the petitioned action may be warranted” and initiating a 60–day public comment period. (Doc. 3: AR 6.) On September 30, 2010, the FWS issued a proposed finding that listing was not warranted. ( Id.)

Plaintiffs filed their complaint challenging BLM's renewal of the grazing permits on October 26, 2010. Plaintiffs' two claims allege BLM's actions violated the 1) FLPMA and 2) the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq.² The court will address each of these claims in turn after addressing the threshold jurisdictional issues of exhaustion and standing.

II. JURISDICTIONA. Issue Exhaustion

Defendant-intervenors Flying M and Fulstone contend this court cannot entertain plaintiffs' FLPMA claim because plaintiffs did not raise their FLPMA arguments during the administrative process. Flying M and defendant BLM argue this court lacks jurisdiction to hear any claims brought by plaintiffs that were not raised during the administrative process. (ECF 83–1 at 12–13; ECF 84–1 at 17–18.) Fulstone similarly argues plaintiffs did not raise the issue of the contested grazing decisions violating the Bishop RMP at any time during the administrative process, but asserts instead that this lapse means plaintiffs' FLPMA claim fails as a matter of law. (ECF 87–1 at 21–22.) The court construes defendant-intervenors' arguments as raising issue exhaustion only. If defendant-intervenors also are arguing exhaustion of administrative remedies, the court finds this argument has no merit. Plaintiffs challenging BLM grazing decisions in this Circuit are not required to exhaust administrative remedies. W. Watersheds Project v. Salazar, 843 F.Supp.2d 1105, 1123 (D.Idaho 2012) (citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 827–28 (9th Cir.2002)).

Plaintiffs are two regional not-for-profit conservation organizations dedicated to protecting the Western United States' natural resources. (Compl. ¶¶ 11–12.) Plaintiffs argue that defendant-intervenors confuse exhaustion of administrative remedies with issue exhaustion, that the FLPMA does not require exhaustion of administrative remedies, and that issue exhaustion is not applicable to their FLPMA claim. (ECF 90 at 18–22.)

Defendant-intervenors cite Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), and related cases to contend plaintiffs are barred from raising claims before this court that were not raised in the administrative process. ( See, e.g., ECF 83–1 at 12; ECF 84–1 at 24; ECF 87–1 at 22.) Under Vermont Yankee and its progeny, parties “challenging an agency's compliance with NEPA must structure their participation so that it ... alerts the agency to the [parties'] position and contentions, in order to allow the agency to give the issue meaningful consideration.” Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (internal quotations and citation omitted). Plaintiffs argue this line of cases is distinguishable on two grounds. First, these cases' exhaustion holdings are applicable only to NEPA, and in the instant case defendant-intervenors' exhaustion arguments relate only to the FLPMA. (ECF 90 at 20–21.) Second, the Ninth Circuit has refused to apply the Vermont Yankee doctrine to other statutes. ( Id. at 20 (citing Nw. Envir. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1535 (9th Cir.1997)) (“NEDC ”).) In short, plaintiffs contend defendant-intervenors do not cite any legal authority requiring plaintiffs to exhaust their FLPMA claims prior to seeking judicial...