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Western Watersheds Project v. David Rosenkrance

January 5, 2011

WESTERN WATERSHEDS PROJECT, PLAINTIFF,
v.
DAVID ROSENKRANCE, FIELD MANAGER, CHALLIS FIELD OFFICE; AND BUREAU OF LAND MANAGEMENT, DEFENDANTS.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM OPINION AND ORDER

INTRODUCTION

Western Watersheds Project ("WWP") challenges the United States Bureau of Land Management and Field Manager David Rosenkrance (together "BLM" or "Defendants") for decisions to grant several livestock grazing permits. WWP claims BLM violated the National Environmental Policy Act ("NEPA") because the Environmental Assessment ("EA") on which BLM based its decision is deficient in three respects: (1) it failed to take a "hard look" at impacts on bull trout, an Endangered Species Act ("ESA") listed species; (2) it failed to consider a reasonable number of alternatives; and (3) it failed to analyze the cumulative impacts of the proposed action.

WWP's complaint also alleged violations of the Federal Land Policy and Management Act; however, WWP has elected to pursue only the NEPA claims. BLM maintains it complied with NEPA in granting the contested grazing permits.

Both sides have moved for summary judgment. BLM has also moved to supplement the administrative record. The Court has reviewed the parties' briefing and the administrative record, and has determined that oral argument will not significantly aid in this decision. For the reasons discussed below, the Court will grant summary judgment for WWP and will deny BLM's cross motion for summary judgment and motion to supplement the record.

BACKGROUND

In 2007 and 2008, BLM prepared an EA to evaluate several applications for new ten-year grazing permits on public land in Idaho's Pahsimeroi River valley. (A.R 1885--87, Dkt. No. 13.) Specifically, the EA considered renewed grazing on four BLM allotments: Grouse Creek, Trail Creek, Meadow Creek, and Rock Creek. (A.R. 1886.) The first three allotments, at the northeastern base of the Lost River mountain range, are contiguous and separated from Rock Creek by other BLM and U.S. Forest Service allotments and by National Forest land. (Ex. A., Decl. Kathleen Fite, Dkt. No. 20-1.) Rock Creek is further to the south and spans a portion of the upper Pahsimeroi River. (Id.)

1. BLM's Environmental Assessment

A. Alternatives Considered

BLM considered three alternatives in its EA, all of which included comparable levels of grazing; no alternative considered no grazing or limited grazing. (A.R. 1895--08.) Alternative One, the Proposed Action, was "based on the concerns of the permittees for livestock management and to renew/modify their [expiring] 10 year term grazing permits." (A.R. 1895.) The Proposed Action provided for 826 animal unit months ("AUMs")*fn1 on Grouse Creek (A.R. 1895), 275 AUMs on Trail Creek (A.R. 1897), 240 AUMs on Meadow Creek (A.R. 1898), and 153 AUMs on Rock Creek (A.R. 1899). The Proposed Action also provided for a number of range improvements, including construction of several miles of new water pipeline. (A.R. 1896, 1898.)

Alternative Two, the "BLM-developed Alternative," proposed identical levels of grazing. (A.R. 1900, 1902--04.) Alternative Two also included some range improvements, although fewer than the Proposed Action. (A.R. 1901.) Alternative Two would allow permittees to develop a spring to fill water troughs on Grouse Creek and an adjacent allotment not considered in the EA. (A.R. 1901.) Additionally, Alternative Two's range improvements included enclosures to protect the developed spring. (A.R. 1901.) Nonetheless, the only notable difference between Alternative Two and the Proposed Action were the actual dates of use and extent of the range improvements; the total grazing and number of grazing days remained unchanged from the Proposed Action. (Attach.1, Def.'s Object. WWP's State. Facts, Dkt. No. 30-1.)

Finally, Alternative Three-the so-called "No Action" Alternative-would have issued permits with identical terms to the prior permits. (A.R. 1904.) "There would be no changes to the mandatory terms and conditions, other terms and conditions, grazing seasons, or kind of livestock" from the expiring permits. (A.R. 1904.) Under the "No Action" Alternative, the grazing levels would be nearly identical to the Proposed Action, but one permittee would be authorized to graze sheep instead of cattle.*fn2 (A.R. 1905.)

B. Environmental Impact Analysis

The "Affected Environment" section of the EA states that the four allotments considered "contain no threatened or endangered aquatic species." (A.R. 1908.) That section goes on:

No adverse effects to the environmental baseline were identified in the Pahsimeroi River [ESA] Section 7 Watershed [Biological Assessment ("BA")] or during consultation with [the National Marine Fisheries Service] and U.S. Fish and Wildlife Service (USFWS). The BA determined that due to the lack of listed salmonids or their habitats within the allotments and the existing grazing allowable use criteria for the allotments, livestock grazing on the allotment [sic] would have no effect on federally listed salmonids. (A.R. 1908.) Further, that EA section includes a table that lists the presence of fish within each allotment. (A.R. 1922.) That table does not acknowledge bull trout presence. (A.R. 1922.)

The EA also notes that "[t]he Rock Creek Allotment . . . falls within the boundaries of the Burnt Creek [Wilderness Study Area or] WSA. The other three allotments being analyzed in [the EA] do not lie within any WSA's [sic]." (A.R. 1909.) WSAs are noteworthy because the BLM manages each WSA to protect its suitability for wilderness, should Congress decide to designate the area as wilderness. (A.R. 1909.)

In the "Environmental Impacts" section, the EA discusses the effects of the Proposed Action on federally listed and BLM sensitive fish species. (A.R. 1932.) Specifically, in considering the Rock Creek Allotment, the EA mentions the species of concern that occur in the upper Pahsimeroi River within that allotment. (A.R. 1933.) The EA notes "[b]ull trout have also been observed in the nearby East and West Forks of the Pahsimeroi River." (A.R. 1933.) The EA states, however, that bull trout are not present in the Rock Creek-portion of the Pahsimeroi and "[t]herefore federally protected fisheries and associated critical habitat should not be negatively affected" by the Proposed Action. (A.R. 1933.)

Finally, that section concludes "[n]o significant direct, indirect, or cumulative impacts are expected as a result of the [P]roposed [Action]." (A.R. 1937.) The EA asserts there will be no impacts because the Proposed Action "is consistent with the guidelines for livestock grazing management and would ensure maintenance or significant progress toward meeting the six applicable standards for rangeland health from the Idaho Standards for Rangeland Health and Guidelines for Livestock Grazing Management FINAL, 1997 for the four allotments analyzed."*fn3 (A.R. 1937.)

C. Cumulative Impacts Analysis

The EA has a subsection entitled "Cumulative" within the "Environment Impacts" section. (A.R. 1934.) That subsection discusses BLM's scheduled Rangeland Health Assessments and BLM's changing management practices in the Pahsimeroi Valley, which began in 1993. (A.R. 1934--35.) That subsection also mentions the benefits of the range improvements in the Proposed Action: "[t]he proposed projects in three of the four allotments would improve livestock distribution within the uplands and alleviate pressure on streams, improving riparian condition, though at the same time adding limited disturbance to the upland areas presently not receiving use." (A.R. 1935.) It also considers the potential for wildlife to move onto private land to find food in the event that livestock consume too much forage on the allotments. (A.R. 1936.) Yet the only apparent cumulative impacts discussion is one sentence: "Cumulative impacts could occur on the permittee's private land by the increase in livestock use on private lands." (A.R. 1935.)

The "Cumulative" subsection for Alternatives Two summarily states: "Cumulative impacts under this alternative would be similar to the Proposed Action." (A.R. 1941.) Similarly, the EA finds the "No Action" Alternative's "[c]umulative impacts would be similar to the Proposed Action and Alternative [Two] except that there would be no new range improvements constructed." (A.R. 1944.) The "No Action" cumulative discussion also states that prior grazing management-i.e., management under the expiring permits-kept the allotments consistent with the Fundamentals for Rangeland Health*fn4 ; it determines, therefore, that continued management under a similar regime would provide similar results. (A.R. 1944.)

2. BLM's Finding of No Significant Impact and Grazing Decisions

On August 20, 2008, based on the EA, BLM made a finding of no significant impact ("FONSI")*fn5 and issued proposed decisions to grant grazing permits for the four allotments on August 20, 2008.*fn6 (Defs.' Resp./Brief Supp. Cross Mot., at 2, Dkt. No. 27; WWP's Open. Brief Supp. Mot., at 7, Dkt. No. 18-1.) Those decisions became final, and then Field Manager David Rosenkrance authorized grazing on the four allotments on February 23, 2009 (A.R. 2124 (authorizing grazing on Trail Creek, Meadow Creek, and Grouse Creek)), February 26, 2009 (A.R. 2127 (authorizing grazing on Grouse Creek, Trail Creek, and Rock Creek), March 23, 2009 (A.R. 2129 (authorizing grazing on Grouse Creek and Trail Creek), and April 9, 2009 (A.R. 2133 (authorizing grazing on Grouse Creek)).

3. Presence of Bull Trout on Rock Creek Allotment

Between September 23 and October 16, 2008, about four months before BLM issued the permit for Rock Creek, a BLM fisheries technician conducted a bull trout redd*fn7 survey and identified seven (7) redds in the upper Pahsimerioi River, within the Rock Creek Allotment. (A.R. 2041--42.) Then, about nine months later, on July 28, 2009, a BLM fisheries biologist noted [a]n error in the Challis BLM fish presence absence [sic] database (2003 data) led to an incorrect conclusion regarding the presence of the bull trout [sic] in the section of the Pahsimeroi River passing through the Rock Creek Allotment . . . . [The biologist] used this result in the fisheries section of the Grouse Creek, Meadow Creek, Rock Creek, and Trail Creek Allotments [EA], believing it was the most current source . . . of information regarding fish presence. (A.R. 2134.)

A decade earlier, in March 1999, BLM had prepared a "Biological Assessment for Federally Listed Salmonids in the Pahsimeroi River Section 7 Watershed," in order to evaluate the effects on bull trout due to activities in the basin. (A.R. 89, 92.) That Biological Assessment ("BA") determined the Rock Creek Allotment contained "occupied habitat for bull trout." (A.R. 131.)

4. WWP's Protest and Administrative Appeal

WWP sent letters to the BLM Challis Field Office protesting the proposed decision. (A.R. 2039.) BLM determined those protests untimely. (A.R. 2039.) On September 23, 2008, WWP filed an administrative appeal challenging the EA, FONSI and decision to issue new permits; WWP also petitioned to stay the decision. (A.R. 2056.) The Department of the Interior's Office of Hearings and Appeals denied WWP's petition for stay on November 4, 2008. (A.R. 2106.) ...


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