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Western Watersheds Project v. Steven Ellis

July 22, 2011


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



The Court has before it a motion to set aside judgment filed by the ranchers/intervenors. The Court held an evidentiary hearing and took the motion under advisement, allowing counsel additional time to file briefing. Those briefs were received on June 27, 2011, and the matter is now at issue. For the reasons explained below, the Court will grant the motion in part, and modify its prior total ban on grazing to allow for grazing under certain conditions.


In 2005, the Court enjoined grazing on 28 allotments in the Jarbidge Resource Area (JRA). The ranchers/intervenors who graze these allotments now seek to modify that injunction on the ground that a total ban is no longer equitable. The Court's injunction banning grazing was based in large part on the failure of all 28 allotments to meet the Fundamentals of Rangeland Health (FRH) standards. The BLM had determined that livestock grazing was a "significant cause" of the failure to meet FRH standards. The Court's ban on grazing was to last until the BLM had completed an EIS on the 28 allotments.

After the Court issued its injunction in 2005, the parties entered into extensive negotiations. They eventually signed a Stipulated Settlement Agreement (SSA). In the SSA, the parties agreed that grazing could continue on the 28 allotments governed by Interim Grazing Management Plans (IGMPs). The intent behind the IGMPs was to place conditions on grazing to improve conditions. In addition, the SSA provided that the BLM would conduct monitoring and inventory assessment to assure compliance with the IGMPs. The Court approved the SSA.

In the SSA, the BLM agreed to prepare a revised JRA Resource Management Plan and supporting EIS, and then conduct site-specific NEPA reviews and issue ten-year grazing permits for all JRA allotments (not just the 28 allotments governed by the SSA terms). The Court administratively terminated the case as the BLM continued to work on the new JRA RMP and EIS.

In July of 2007, one of the largest wildfires in our Nation's history burned over 400,000 acres in the JRA, destroying 70% of sage grouse habitat. The fire prompted WWP to file a motion to reopen this case to (1) strike down the SSA and enjoin grazing once again on those 28 allotments, and (2) to enjoin all grazing on an additional 36 allotments. The Court refused to strike the SSA and so it continued to govern the 28 allotments. With regard to the additional 36 allotments, a trial was set to determine whether it was necessary to enjoin grazing on those allotments.

Following that trial, in February of 2009, the Court refused to enjoin grazing on the 36 non-SSA allotments. Relying on a team of experts, the BLM had closed many areas to grazing and immediately started rehabilitation projects in other areas. These actions, the Court found, showed that a fully engaged BLM was doing all it could in a crisis situation.

By the end of the grazing season in 2010, the IGMPs expired by their own terms. The parties were not able to reach agreement on an extension, and the Court denied a motion to impose the terms on the parties, holding that the issue must be raised by a motion under Rule 60(b). The injunction banning all grazing on the 28 allotments came back into place as the IGMPs expired. See Memorandum Decision (Dkt.430)

The ranchers/intervenors responded by filing a motion to modify the injunction under Rule 60(b)(5). The Court held a day-long evidentiary hearing on June 15, 2011, and took the motion under advisement.


Rule 60(b)(5) authorizes this Court to "relieve a party or its legal representative from a final judgment, order, or proceeding [when] applying it prospectively is no longer equitable." To modify the Court's injunction, Simplot bears the burden of showing that a "significant change in circumstances warrants revision." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 383 (1992). This is done by "showing either a significant change . . . in factual conditions or in law." Id. at 384.

This standard has been described as "flexible." Jeff D. v. Kempthorne, 365 F.3d 844, 854 (9th Cir. 2004). A "flexible approach allows courts to ensure that 'responsibility for discharging the State's obligations is returned promptly to the State and its officials when the circumstances warrant.'" Horne v. Flores, 129 S.Ct. 2579, 2593 (2009) (quoting Frew v. Hawkins, 540 U.S. 431, 442 (2004)).

A judgment may be modified when changed circumstances make compliance with the old decree "more onerous, unworkable, or detrimental to the public interest." U.S. v. Asarco, Inc., 430 F.3d 972, 979 (9th Cir. 2005). But the mere inconvenience of "liv[ing] within the terms" of a judgment is an insufficient demonstration of changed circumstances. Rufo, 502 U.S. at 383.

Once a court has determined that changed circumstances warrant a modification, "the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances." Id. at 391. "A court should do no more, for a . . . final judgment [should] be reopened only to the extent that equity requires." Id. However, "once a party carries this burden, a court abuses its discretion 'when it refuses to modify an injunction . . . in light of such changes.'" Horne ...

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