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Western Watersheds Project v. Ken Salazar

September 28, 2011

WESTERN WATERSHEDS PROJECT, PLAINTIFF,
v.
KEN SALAZAR, SECRETARY, DEPARTMENT OF THE INTERIOR, DEFENDANTS.



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

MEMORANDUM DECISION ANDORDER

INTRODUCTION

The Court has before various motions including cross-motions for partial summary judgment. The Court held oral argument on the motions and took them under advisement. For the reasons expressed below, the Court will grant the motion for partial summary judgment filed by plaintiffs and deny the motions filed by defendants and intervenors.

LITIGATION BACKGROUND

Plaintiff WWP challenges 16 separate BLM Resource Management Plans (RMPs), and their associated Environmental Impact Statements (EISs). These RMPs and EISs were prepared by separate BLM offices in six different states: (1) Idaho; (2) Montana; (3) Utah; (4) California; (5) Wyoming; and (6) Nevada. The lands associated with the 16 RMPs at issue comprise the range of the sage grouse, and WWP alleges that each of the challenged RMPs and EISs failed to adequately consider the environmental impacts of grazing and energy development, among other influences, on the sage grouse.

WWP's claims are brought pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, for alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, and the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1700-1787. To streamline the case, WWP and the BLM proposed, and the Court subsequently approved, a case management plan under which the parties would brief initial summary judgment motions concerning two "test case" RMPs -- the Craters of the Moon RMP and the Pinedale RMP. The parties have now filed cross-motions for partial summary judgment on these two "test cases," and it is those motions that are under review in this decision.

While the Court has allowed this case to go forward as a collective action, see Memorandum Decision (Dkt. 31), the BLM remains entitled to an individual review of each RMP under the administrative record compiled for that specific RMP. See 5 U.S.C. § 706; Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (judicial review of agency action is focused upon the administrative record before the agency at the time the decision was made). Accordingly, the Court will address separately each of the two test case RMPs, after reviewing some basic facts about the sage grouse.

Sage Grouse

Sage grouse are sagebrush obligates, and rely on sagebrush all year to provide roosting, cover and food. Depending on large areas of contiguous sagebrush, they inhabit the sage-steppe ecosystem that features sagebrush in the overstory; native grasses, forbs, and litter in the understory; and biological soil crusts filling interspaces between vegetation. During the winter months, sage grouse depend almost exclusively on sagebrush for food. As winter turns to spring, sage grouse move to breeding areas known as leks. After mating, the female moves away from the lek to establish a nest. This nesting season is critical because the sage grouse has one of the lowest reproductive rates of any North American game bird. The nest is a shallow depression on the ground, usually under sagebrush. The hen and chicks require high quality forbs, which are herbaceous flowering plants, other than grasses. The forbs provide good nutrition for the hen, increasing her chances of successfully giving birth to, and raising, her chicks. As fall comes, and turns to winter, sage grouse migrate to winter sites, gradually eating less forbs and more sagebrush, until they are eating almost exclusively sagebrush by December.

In 2001 and 2002, the Nature Conservancy conducted a detailed scientific study of sagebrush habitat in three critical areas of the Craters Monument, including the Laidlaw Park grazing allotment that will be discussed further below. Their study found that about 38% of the study area was in poor condition meaning that it was "severely altered . . . seemingly having crossed a threshold from which recovery is not possible without seeding intervention." See Report at p. 41. The Report noted that "[l]arge areas are at considerable risk for future degradation." Id.

The Report concluded that unrestricted grazing in the early 1900s was responsible for much of the depletion of native grasses and forbs in the study area, but that "continuing problems were apparent during the study." Id. at p. 38. For example, "utilization of preferred grasses and forbs" were "generally heavy within a mile of water." Id. For those areas in fair condition (about 33% of the study area), the Report recommended that "no more than light utilization and periodic rest should be allowed."

Id. at 38, 41.

Between 2002 and 2003, the Fish and Wildlife Service (FWS) received three petitions to list the greater sage-grouse ( Centrocercus Urophasianus ) as an endangered species under the Endangered Species Act (ESA). On April 21, 2004, the FWS filed its 90-day finding, concluded that the petitions present "substantial information indicating that listing the greater sage-grouse may be warranted." See 69 Fed.Reg. at 21484-94. In making that finding, the FWS relied on the declining population throughout the western United States, the extensive habitat destruction, and the lack of regulatory mechanisms to protect the sage grouse. Id.

Just two months later, the Western Association of Fish and Wildlife Agencies (WAFWA) prepared a report entitled "Greater Sage-Grouse Conservation Assessment (CA). It is 600 pages in length and was prepared by 11 state fish and wildlife agencies responsible for management of sage grouse populations, and was peer-reviewed by a group of scientists.*fn1

The CA identified five core populations of sage grouse, the largest of which was the Wyoming Basin core population, which includes southwestern Wyoming where the BLM's Pinedale Field Office is located. Another of the core populations was located in the Snake River Plain area of south-central Idaho where the Craters of the Moon National Monument is located. The CA discussed at length the various threats to the sage grouse. The principal threat to the Wyoming Basin core population was from energy development. The CA noted that oil and gas development caused a "direct loss of [sage grouse] habitat." Id. at p. 7-40. Reviewing the increase in oil and gas drilling in Wyoming, the CA predicted that because 96% of all drilling permit applications are approved, "the frequency and extent of oil and gas development on sagebrush ecosystems are likely to increase . . . ." Id. at p. 13-7.

The principal threat to the Snake River Plain core population was destruction of habitat by fire and weed invasion. Sagebrush was being replaced by cheatgrass that dies off in the summer to become fuel for wildfires that incinerate any remaining sagebrush. Both the number of fires and the total area burned have increased dramatically in the last decade when compared with the past 100 years. Id. at 7-70 (Fig.7.1). According to the CA, periods of drought and global climate change could further facilitate cheatgrass invasion or exacerbate the fire regime, and thus accelerate the loss of sagebrush habitats. Id. at p. 7-18.

In addition, the CA found that livestock grazing depleted native forbs and grasses needed by sage grouse, and facilitated the cheatgrass invasion. Id. at pp. 7-26 to 7-28. Taking all these threats into consideration, the CA concluded that "we are not optimistic about the future of sage-grouse because of long-term population declines coupled with continued loss and degradation of habitat and other factors (including West Nile Virus) ." See CA at p. 6-1.

About five months after the CA was issued, and in response to the FWS 90-day finding that listing of the sage grouse may be warranted, the BLM adopted its National Sage-Grouse Habitat Conservation Strategy. The BLM adopted this National Strategy to respond to the potential listing of the sage grouse and demonstrate its commitment to protecting sage grouse habitat.*fn2 The BLM proposed to do this by using the "land use planning process as the primary mechanism to assure that conservation strategies are implemented and further refined to address local variations and issues . . . ." See National Strategy at p. 19. For example, the BLM stated that its land use planning process would include "sagebrush habitat assessments that provide[] a biological basis for identifying and managing priority sage-grouse habitats (e.g. large intact native sagebrush stands, moist riparian brood-rearing site, or crucial winter ranges)." Id. at p. 12. With regard to grazing, the BLM stated that land use plans,

(1) Identify objectives for vegetation goals, including those species crucial for nesting cover, brood-rearing and winter forage; (2) Determine where livestock grazing would and would not be permitted, including the season of use to meet specific requirements of sage-grouse, such as nesting in the spring . . . (6) Identify "initial levels" of livestock grazing to ensure numbers of livestock are at appropriate levels to meet land health standards.

Id. at p. 66-67. An appendix to the National Strategy was intended to "help BLM planning teams include sagebrush habitat and sagebrush-dependent wildlife species (including sage-grouse) considerations in BLM land use planning efforts." Id. at § 1.3.1, p. 2. It recommended that land use planners consider the information in the WAFWA Conservation Assessment, among other things. Id. at p. 3. The planning process should include "at least one alternative that maximizes conservation of sagebrush habitat (emphasizing special status species habitat) . . . ." Id. at p. 5. The land use plans should "[s]ustain the integrity of the sagebrush biome . . . to maintain sustainable populations of sage-grouse by . . . [m]aintain[ing] large patches of high quality sagebrush habitats . . . [and by] [m]aintain[ing] connections between sagebrush habitats." Id. at 5-6. The BLM praised the cooperative efforts of WAFWA and pledged their continuing support of WAFWA's work in "implement[ing] conservation measures across management jurisdictions using best available science including locally specific information." Id. at p. 7.

The BLM also designated the greater sage-grouse as a "sensitive" species pursuant to BLM's 2001 Special Status Species Policy. This Policy requires that "sensitive" species be afforded, at a minimum, the same protections as candidate species for listing under the ESA. It called on BLM managers to "obtain and use the best available information deemed necessary to evaluate the status of special status species in areas affected by land use plans . . . ." See Policy at § 6840.22A. Under the Policy, those land use plans "shall be sufficiently detailed to identify and resolve significant land use conflicts with special status species without deferring conflict resolution to implementation-level planning." Id.

Meanwhile, the FWS, after further study, issued a decision on January 6, 2005, deciding not to list the sage grouse under the ESA. Following a challenge by WWP, this Court held that the FWS failed to rely on the best science and was influenced by a political appointee who intimidated the scientists in an attempt to block listing. See WWP v. U.S. Fish and Wildlife Service, 535 F.Supp.2d 1173 (D. Id. 2007). The Court remanded the matter to the FWS to reconsider its decision in light of the Court's findings.

In March of 2010, the FWS issued a decision that the sage grouse warrants the protection of the ESA but that listing was precluded by the need to address higher priority species first.

Pinedale Field Office

The BLM's Pinedale Field Office (PFO) is located in western Wyoming and covers about 1,618,140 acres of land. Over three-quarters of the PFO is dominated by the sage-steppe ecosystem, prime habitat for sage grouse. See Pinedale EIS at p. 3-1. Historically, this area offered abundant sage-grouse habitat, and currently, the largest sage grouse population is found in the Wyoming Basin, where the PFO is located.

Prior to the issuance of the RMP now under review, the BLM administered this area under an RMP issued in 1988. A substantial increase in oil and gas leasing and drilling in the area prompted the BLM to update the RMP. By 2004, about 61% of the federal mineral estate in the Pinedale Field Office was covered by oil and gas leases. Id. at pp. 3-38 to 3-39. The Pinedale Anticline Project Area saw an increase in natural gas production of 94% between 2001 and 2006. In another area of the Pinedale Field Office, where the Jonah Infill Project was approved, the BLM authorized in 2006 the drilling of about "3,100 new wells at a rate of approximately 250 wells per year for 12 years." See Biodiversity Conservation Alliance v BLM. 2010 WL 3209444 at *2 (D.Wyo. 2010).

The final EIS and proposed RMP were issued in August 2008. The ROD and final RMP were issued in November of 2008. With regard to sage grouse, the EIS stated that [p]opulations of greater sage-grouse have declined in the planning area and some intensively developed areas no longer provide functioning sage-grouse habitats. The greater sage-grouse is a Wyoming BLM sensitive species; sage-grouse habitats should be managed to avoid the necessity of listing the greater sage-grouse in the future.

See EIS at p. 1-9. The EIS states that sage grouse populations are "negatively affected by energy development activities." Id. at p. 3-135. The EIS noted studies in the Pinedale Anticline revealing that "as development increased lek activity declined up to 100%." Id. There was an 18% decline in lek activity between 2001 and 2006 in the Upper Green River Basin, and the EIS attributed "part of this decline" to "increased gas development activity." Id. at p. 3-137. BLM policies do restrict development within a quarter-mile of a lek and during nesting and brood-rearing seasons. But the EIS noted that the policies do not preclude development after these times, and this has caused "severely fragmented habitats." Id. at p. 3-136. The fragmentation of the sage habitat is especially harmful to the sage grouse, the EIS observed. Id. at 3-135 to -136.

Consistent with these conclusions in the EIS, the leading expert on sage grouse, Dr. Clint Braun, stated in his comments on the draft EIS that the "health of the sage grouse populations and trends in quality of the available habitats in the Pinedale Resource Area have markedly declined over at least the last 10 years." Pinedale AR at 6472. Moreover, the WAFWA Conservation Assessment found a decline in the sage grouse population in the Pinedale area from 1965 to 2003, with a steeper decline during the period from 2000 to 2003. See Conservation Assessment at pp. 6-70, A5-23.

However, the EIS did not discuss the WAFWA Conservation Assessment. In addition, the BLM did not gather any new data in preparing its EIS. See EIS at p. 3-1 ("no new environmental data collection efforts were conducted on BLM-administered lands specifically for this RMP"). Nevertheless, the data the EIS did examine, discussed above, appear to be consistent with the WAFWA conclusion, i.e, that the sage grouse population and habitat are in decline. The EIS nevertheless concludes that "[n]o reliable population estimate can be made from data collected during 2006 (or any of the previous years) because sex ratios for grouse are unknown and not all active leks have been located. An increasing population trend during 2004-2006 is indicated by an increase in the average number of males/lek and males/complex since 2003." See EIS at p. 3-137.

The EIS evaluated four alternatives:

(1) Alternative 1 was the "no action" alternative ("maintains current management goals, objectives and direction as specified in the 1988 Pinedale RMP");

(2) Alternative 2 was a "maximum energy development" alternative ("designed to evaluate the impacts of maximizing development of energy resources while providing an adequate level of environmental protection for other resources");

(3) Alternative 3 was described as the "most environmentally protective" alternative ("designed to evaluate the impacts of providing the maximum level of environmental protection for surface resources ...


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