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Western Watersheds Project v. Rosenkrance

July 29, 2010


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



The Court has before it cross-motions for summary judgment. Following oral argument, the Court took the motions under advisement. For the reasons expressed below, the Court will grant WWP's motion and deny the BLM's motion.


WWP challenges the BLM's issuance of a grazing permit to Scott Whitworth on an allotment within the boundaries of the Burnt Creek Wilderness Study Area (WSA). In 2005, this Court held that the BLM issued a permit to Whitworth on the basis of a flawed environmental analysis that failed to consider sufficient alternatives. Grazing was halted on the allotment between 2005 and 2008 to give the allotment time to recover from past grazing damage.

Recently, the BLM re-issued a permit to Whitworth and allowed him to resume grazing on the allotment. WWP argues that the permit is once again based on an improper environmental analysis.

The Court agrees. While the BLM cured its earlier failure to consider sufficient alternatives, its environmental analysis fails to address whether the wilderness values of the Burnt Creek WSA -- as they existed at the time the BLM recommended the area be set aside for wilderness -- will be impaired by (1) the BLM's decision to allow grazing on this allotment, and (2) the cumulative effects of this decision and other grazing permitted across the entire Burnt Creek WSA.

Because the EA fails to address these issues, the BLM's decision to issue the permit based on that EA must be set aside.


Congress identified the conservation of wilderness lands as a national priority in the Wilderness Act of 1964. See 16 U.S.C. §§ 1131 et.seq. The Act defines a "wilderness" as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. Id. at § 1131(c). According to the Act, a wilderness area (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id. While the Wilderness Act did not address the selection and management of such lands, Congress allocated these duties to the Secretary of the Interior and the BLM in the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et seq. FLPMA directed the Secretary to recommend such lands to the President who, in turn, would recommend lands to Congress for permanent designation as wilderness. Id. § 1782. While under review by Congress, these lands are designated as "wilderness study areas," or WSAs, managed by the BLM "so as not to impair the suitability of such areas for preservation as wilderness." Id. § 1782(c).

Pursuant to FLPMA, the BLM's Idaho Office issued in 1980 an Intensive Wilderness Inventory for Idaho to evaluate lands for wilderness designation under the Wilderness Act. See AR at pp. 5606-09. In that Inventory, the BLM described an area of 24,980 acres it called the Burnt Creek Unit as suitable for designation as a WSA. The BLM explained that "[m]an-made imprints are not substantial within the western portion of the unit" (where the Burnt Creek allotment is located). AR at p. 5607. Further, the area contained an "outstanding" opportunity for solitude due to its "large size, excellent topographic relief, moderate vegetative screening, lack of nearby development, and remoteness." Id. The opportunity for primitive and unconfined recreation -- including hiking, horseback riding, cross-country skiing, snowshoeing, camping and backpacking -- was also deemed "outstanding" because "there are no continuing barriers or man-made developments to limit recreation activities." Id. Finally, the BLM highlighted the supplemental values of elk winter range and archaeological sites. AR at p. 5607.

Eleven years later, in 1991, the BLM formally recommended that 16,680 acres of the Burnt Creek WSA be released and that the remaining 8,300 acres be designated as wilderness. AR at p. 5612. Nevertheless, the BLM continues to manage the "entire 24,980 acres . . . as WSA until such time as Congress determines the area's wilderness status." AR at p. 4624.

This 8,300 acre portion of the Burnt Creek WSA recommended for wilderness designation offered, in the BLM's opinion, "outstanding wilderness quality, lack of conflicts with other resource uses, ease of management, and their value as an extension to the adjacent U.S. Forest Service [Borah Peak] Unit." AR at p. 5612. Moreover, it "offer[s] outstanding opportunities for solitude and primitive, unconfined recreation . . ., [and] is isolated from human influences that occur on the adjacent non-recommended portion . . . ." Id. The "naturalness" of the area was described as "outstanding," with its "primitive nature . . . add[ing] a spectacular example of sagebrush- and grass-covered hills with pockets of timber giving way to awesome rugged mountains rising into the adjacent [Forest Service roadless] Area. Both areas are dominated by the 12,655-foot Borah Peak, the highest point in Idaho." Id. Further, "most of the sights and sounds of man are not evident or are screened out by the vegetative cover." AR ...

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