Western Watersheds Project v. Kraayenbrink, No. CV-05-297 E-BLW.

• Court: United States District Courts. 9th Circuit. District of Idaho
• Writing for the Court: B. Lynn Winmill
• Citation: 538 F.Supp.2d 1302
• Parties: WESTERN WATERSHEDS PROJECT, Plaintiff, v. Joe KRAAYENBRINK, et al., Defendants. Ralph Maughan, et al., Plaintiff, v. Dave Rosenkrance, et al., Defendants.
• Decision Date: 28 February 2008
• Docket Number: No. CV-06-275 E-BLW.,No. CV-05-297 E-BLW.

538 F.Supp.2d 1302 WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
Joe KRAAYENBRINK, et al., Defendants.
Ralph Maughan, et al., Plaintiff,
v.
Dave Rosenkrance, et al., Defendants. No. CV-05-297 E-BLW. No. CV-06-275 E-BLW. United States District Court, D. Idaho. February 28, 2008.

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Judith M. Brawer, Lauren M. Rule, Todd C. Tucci, Advocates for the West, Laurence J. Lucas, Law Office of Laurence J. Lucas, Brad Michael Purdy, Attorney at Law, Boise, ID, Johanna H. Wald, Natural Resources Defense Council, San Francisco, CA, Joseph Feller, Arizona State University College of Law, Tempe, AZ, Thomas David Lustig, National Wildlife Federation, Boulder, CO, for Plaintiff.

Courtney O'Hara Taylor, Donna Sheehan Fitzgerald, US Department of Justice, Washington, DC, Deborah A. Ferguson, US Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief Judge.

SUMMARY OF ANALYSIS

The parties seek a ruling on the legality of the BLM's revisions to nationwide grazing regulations: Past BLM regulations imposed restrictions on grazing and increased the opportunities for public input to reverse decades of grazing damage to public lands. Without any showing of improvement, the new BLM regulations loosen restrictions on grazing.

They limit public input from the nonranching public, offer ranchers more rights on BLM land, restrict the BLM's monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM's authority to sanction ranchers for grazing violations.

While the BLM justifies the changes as making it more efficient, the BLM was not their originator — it was the grazing industry and its supporters that first proposed them. Certainly the industry has a vital interest in being regulated efficiently, but the new regulations reach far beyond that prosaic purpose. According to the federal agency charged with protecting endangered species — the Fish and Wildlife Service — the new regulations "fundamentally change the way BLM lands are managed," and "could have profound impacts on wildlife resources." AR at 68069.

After thoroughly reviewing the extensive Administrative Record in this case, the Court finds that this assessment of the Fish and Wildlife Service is accurate. Accordingly, the Court finds that the BLM should have consulted with the Fish and Wildlife Service — as required by the Endangered Species Act (ESA) — before issuing the new regulations. The Court also finds that BLM violated the National Environmental Policy Act (NEPA) by failing to take the required "hard look" at the environmental effects of the regulations. For many of same reasons, the Court also finds that the regulations violate the Federal Land Policy and Management Act (FLPMA).

Based on these violations, the Court will issue an injunction enjoining the revised regulations from taking effect until the BLM proceeds with consultation under the ESA and takes the requisite "hard look" at the environmental impacts under NEPA.

FACTUAL BACKGROUND

In 1978, Congress declared that "vast segments of the public rangelands . . . are in unsatisfactory condition." See 43 U.S.C. § 1901(a)(1). These poor conditions, Congress

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found, contributed "significantly to unacceptable levels of siltation and salinity in major western watersheds; negatively impact[ed] the quality and availability of scarce western water supplies; [and] threaten[ed] important and frequently critical fish . . . habitat." Id. at § 1901(a)(3).

Almost 20 years later, the stewards of this rangeland — the BLM and Forest Service — jointly concluded that while "[t]he epological condition on most uplands has improved[,] . . . many riparian areas continue to be degraded and are not functioning properly." AR at 68952. This situation caused "several conservation groups [to] request that the Secretary of the Interior require BLM to improve its grazing administration by encouraging stewardship and designing ways to quickly improve the environment" AR at 68952.

1. 1995 Regulations

Prompted by these concerns, the BLM and Forest Service began in 1993 to propose new grazing rules that would become known as the 1995 regulations. A keystone of these reforms was a set of criteria for healthy rangelands that would be applied nation-wide, called the Fundamentals of Rangeland Health (FRH). AR at 68959; 69253; 43 C.F.R. § 4180 et seq. The BLM described the FRH as "critical" to improving rangeland conditions, "especially riparian areas." AR at 69253.

The 1995 regulations were also designed to increase public participation. In announcing the new rules, the BLM declared that "[a]llowing more Americans to have a say in the management of their public lands is an important element of improving the management of the public rangelands," AR at 69249. The BLM concluded that "increased public participation is essential to achieving lasting improvements in the management of our public lands." Id. To that end, the new rules "gave extensive consideration to public participation in rangeland management." Id.

The BLM concluded that the proposed 1995 regulations required consultation with the Fish and Wildlife Service (FWS) under Section 7 of the ESA. The FWS issued a Biological Opinion (BO) that assessed the impact of the regulations on listed species "assum[ing] full implementation" of the FRH regulations. On the basis of that assumption, the FWS concluded in the BO that the 1995 regulations were "not likely to jeopardize the continued existence of listed or proposed species, and [are] not likely to result in the destruction or adverse modification of designated or proposed critical habitat." AR at 69143.

2. 2006 Regulatory Changes

The Administrative `Record contains the BLM's observation that "almost immediately after implementation of the grazing rules changes of 1995, there have been suggestions from BLM field managers for improving them." AR at 67799. These changes were either "minor technical corrections," AR at 67797, or responses to a recent Tenth Circuit case. These minor corrections were largely adopted and are not at issue here.

Other proposals for change, more sweeping in scope, were developed by outside groups and conveyed to the BLM by "letters from various livestock industry groups and western politicians that contain specific requests for grazing rules revisions." AR at 67797. For example, the National Cattlemen's Beef Association (NCBA) proposed revisions to allow permittees to share title to range improvements "in order to protect their financial investment" AR at 67800-01. Likewise, proposed restrictions on public participation in day-to-day grazing matters was also, according to the BLM, "requested by

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Constituency," referring to the `cattle industry and its supporters. AR at 67877.

The BLM asserts that the changes were necessary to "improv[e] the working relationship with permittees and licensees and increas[e] administrative efficiency and effectiveness, including resolution of legal issues." See Visser Declaration at ¶ 6. By July of 2002, the BLM had developed a list of proposed changes, and assembled an interdisciplinary team of experts to review and report on the planned changes. AR at 67845. The team's report, dated November 29, 2002, predicted that the limitations on public input would "lead to poorer land management decisions" and to "greater environmental harm, without necessarily sustaining or improving economic conditions." AR at 67849. Based on these findings, the team recommended that "the definition of interested public be changed to specifically allow for broader public participation. . . ." AR at 67848 (emphasis in original).

The BLM decided not to alter the proposed changes, and published a Federal Register notice on March 3, 2003, setting forth the proposed rules and inviting comments. AR at 4-9. It is difficult to tell precisely how many comments were received, but WWP has estimated that 5,000 comments opposed the proposed rules, and the BLM has not rebutted that estimate. See also, AR at 67903 (BLM's estimate that "[m]ost of the 8300 comments were form letters expressing opposition to BLM making any changes to the existing regulations that were passed in 1995").

The BLM assembled a second interdisciplinary team in the spring of 2003 to review the proposed rules. The team members were selected for, among other qualities, being "[k]nowledgeable in their field of expertise, preferably with field experience." AR at 75929. The team was led by Molly Brady from the BLM's Washington D.C. office, and included (1) Jay Thompson, a fisheries biologist from BLM's Montana office, (2) Erick Campbell, a BLM wildlife biologist for 30 years, (3) William Brookes, a BLM hydrologist for 34 years, (4) a soils scientist, and (5) other specialists in economics, fuels/fire, recreation, wild horses, and archeology. This team issued a report referred to as the Administrative Review Copy Draft EIS (ARC-DEIS).

The ARC-DEIS was issued on November 17, 2003, just three weeks before the publication of the proposed changes on December 8, 2003. Given the wide-ranging expertise of the authors, it is no surprise that the discussion in the ARCDEIS is scientific in nature with heavy citation to numerous authorities and studies.

The ARC-DEIS is quite critical of the new regulations. For example, it concludes that the new regulations will cause (1) "a slow long-term adverse effect on wildlife and biological diversity in general," see ARC-DEIS at p. 9; (2) "[u]pland and riparian habitats [to] continue to decline," id.; and (3) "[t]he numbers of special status species [to] continue to increase," id. Addressing the changes to ownership of range improvements, the ARC-DEIS concludes that they will have a "very longlasting adverse effect to the wildlife of the public lands of the West." Id. at p. 10. With regard to the FRH changes, the report concludes that...