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Western Watersheds Project v. Ken Salazar

February 6, 2012

WESTERN WATERSHEDS PROJECT, PLAINTIFF,
v.
KEN SALAZAR, SECRETARY, DEPARTMENT OF THE INTERIOR, AN AGENCY OF THE UNITED STATES, AND BUREAU OF LAND MANAGEMENT, 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 it cross-motions for summary judgment. The Court heard oral argument on January 30, 2012, and took the motions under advisement. For the reasons expressed below, the Court will grant WWP's motion and deny the remaining motions.

SUMMARY

In this decision, the Court reviews the BLM's renewal of grazing permits on five allotments in the BLM's Owyhee and Bruneau Field Offices. The parties have selected these five permit renewals as test cases to render more manageable WWP's challenge to some 600 BLM decisions that allegedly failed to protect the sage grouse, a species that is in such decline that the BLM designed it as a "sensitive" species, to be treated as if it was a candidate species under the Endangered Species Act.*fn1

The main threat to the sage grouse comes from the destruction of its sage brush habitat, and one contributing factor to that destruction is livestock grazing. The sage grouse habitat on all five allotments is degraded, and much of that degradation was caused by livestock grazing.

Nevertheless, when evaluating these grazing permit renewals, the BLM decided to essentially maintain the same levels of grazing, continue the same seasons-of-use, and loosen restrictions on the permit holders. These decisions are not consistent with the land use plans governing the BLM's Bruneau and Owyhee Field Offices and therefore violate the Federal Land Policy and Management Act (FLPMA). They also fail to make significant progress toward improving conditions for the sage grouse and thus violate the Fundamentals of Rangeland Health (FRH) regulations. Finally, the BLM's decisions violate the National Environmental Policy Act (NEPA) because the agency did not conduct an analysis of the cumulative impacts of grazing over a sufficiently wide area.

STANDARD OF REVIEW

The Court's review of these five permit renewals by the BLM is governed by the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Under the APA, the reviewing court must set aside the agency's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir.1996). An agency action is also arbitrary and capricious if the agency fails to articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Id. Finally, an agency must set forth clearly the grounds on which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973).

"Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency." O'Keeffe's, 92 F.3d at 942 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989)). Courts "must be at [their] most deferential when reviewing scientific judgments and technical analyses within the agency's expertise." Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). Courts "are not to act as a panel of scientists, instructing the agency, choosing among scientific studies, and ordering the agency to explain every possible scientific uncertainty." Id. at 1074 (citation omitted). And, "'[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting Marsh, 490 U.S. at 378). With this in mind, the reviewing court must still undertake a "thorough, probing, in-depth review" of the agency's decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415--16 (1971).

LITIGATION BACKGROUND

In its original complaint, WWP challenged about 600 separate decisions of the BLM concerning some 40 million acres spread out over two states -- Idaho and Nevada. WWP's basic claim is that each decision fails to protect the sage grouse, a BLM-designated sensitive species.

The BLM filed a motion to dismiss that the Court granted in part, finding that the challenges to the decisions of the BLM's Nevada District Offices should be severed and transferred to the District of Nevada. The Court denied the motion in all other respects.

Thereafter, the parties agreed, and the Court approved, to use a "staggered" approach to summary judgment. In the first round of summary judgments, WWP would challenge the BLM's renewal of grazing permits on certain allotments in the Owyhee and Bruneau Field Offices, and then, after receiving a decision on those, would start a second round by challenging another set of decisions, not yet selected.

In this first round, WWP challenges BLM decisions to renew grazing permits on five allotments: (1) Rockville; (2) Silver City, (3) Diamond Basin; (4) Battle Creek; and (5) East Castle Creek. The latter two allotments are in the Bruneau Field Office; the former three are in the Owyhee Field Office.

WWP seeks a summary judgment that these five decisions (1) violate NEPA because they failed to contain a sufficient cumulative impacts analysis; (2) violate FLPMA because they are not consistent with the Range Management Plans governing the relevant Field Office; and (3) violate the Fundamentals of Rangeland Health regulations because the BLM moved certain grazing restrictions out of the mandatory Terms and Conditions category.

Before resolving those legal claims, the Court will first examine basic facts about the sage grouse and then turn to a review of the condition of each allotment and the BLM's decision to renew grazing on each allotment.

FACTUAL BACKGROUND

Owyhee & Bruneau Field Offices

The Owyhee Field Office is located in the southwestern corner of Idaho, bounded on the west by Oregon, on the south by Nevada, and on the north by the Snake River. It covers about 1.8 million acres of mostly BLM land.

Just to its east is the Bruneau Field Office, covering about 1.5 million acres of BLM land. Both Field Offices are home to the sage grouse, among other BLM-designated sensitive species. Both contain large tracts of sage grouse habitat that support part of the Great Basin core population of sage grouse, one of the five largest remaining core populations across the entire range of this species.

Sage Grouse Characteristics

The sage grouse is a squat feathered bird, about half the size of a turkey, grayish in color with a black belly and spiky tail feathers. It gets around mostly by walking, but is a strong flier over a short distance. It is not a fast runner, so to escape predators, it will usually either hide or fly.

The birds inhabit the sage steppe ecosystem found in ten western states, including Idaho. They are sagebrush obligates, and rely on sagebrush all year to provide roosting, cover and food.

The sagebrush-steppe (or sage-steppe) ecosystem is found across the "Great Basin" region, defined by the BLM to include much of southern Idaho and northern Nevada, plus portions of Oregon, California and Utah. See WWP v. Dyer 2009 WL 484438 (D.Id. 2009). The sage-steppe ecosystem 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, in early March, sage grouse move to breeding areas known as leks. In Idaho, the lek season runs from about March 15 to May 1. Id. In establishing leks, sage grouse prefer sites with extensive cover of low grasses, surrounded by taller sagebrush.

After mating, the female moves away from the lek to establish a nest. The nesting season in Idaho lasts from about April 1 to June 15. This nesting season is critical because the sage grouse has one of the lowest reproductive rates of any North American game bird, and its populations are not able to recover from low numbers as quickly as many other upland game bird species.

The nest is a shallow depression on the ground, usually under sagebrush. The nests established under sagebrush are more successful than nests under other shrub species. The reason is that taller stands of sagebrush and grasses provide scent, visual and physical barriers to potential predators. Without this cover, predators can more easily locate the hen and her chicks as they leave the nest to seek food.

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. Both the hen and her chicks also feed on insects and beetles. An herbaceous understory provides greater access to insects and forbs, both by the females before breeding and by chicks after hatching. Sage Grouse Migration

Sage-grouse typically inhabit large, interconnected expanses of sagebrush habitat, and thus are characterized as a landscape-scale species. AR 9463. While some populations are resident, others have been recorded traveling distances up to 100 miles. AR 9430. Sage grouse in Idaho moved as far as 50 miles from breeding and nesting sites to summer ranges, although migration may be much shorter depending on the distance between ranges. AR 9458. On an annual basis migratory sage-grouse populations may occupy an area that exceeds 1,042 square miles. AR 10957

During summer months, the sage grouse move to wetter habitats like springs, wet meadows, and irrigated areas, as these areas will have good forb cover. AR 9457-58. These moist areas are critical late brood-rearing habitat. Id. 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. Sage Grouse Population Trends

Greater sage grouse populations have been declining for at least 25 years. AR 9533. Eight of ten states showed population declines over the last 10 years. Id. Range-wide sage grouse populations declined at an overall rate of 2.0% per year from 1965 to 2003, with the rate of decline being much higher in the first two decades (1965 to 1986) compared to the last two decades (1986 to 2003). Id.

The Conservation Plan published in 2006 by the Idaho Sage Grouse Task Force, acting under the direction of the Idaho Fish and Game Commission, estimated that Idaho's sage-grouse population, during the years 1965-2003, declined at an average rate of 1.47% per year. See Conservation Plan at p. 3-1.*fn2 The most dramatic decline occurred between 1965-1984, when the sage-grouse population declined by an average rate of 3.04% per year. Id. Between 1985 and 2003, the average decline slowed, to 0.12% annually. Id. In general, Idaho sage-grouse numbers reached a low in the mid 1990s but have increased since that time. Id.Nevertheless, "[a]nnual rates of change suggest a long-term decline for sage grouse in Idaho." AR 9563 (Conservation Assessment). Habitat Trends

The declining populations are occurring as sage brush habitat disappears. The leading experts concluded in the Conservation Plan that "[t]he loss and fragmentation of sage-grouse habitat in some parts of Idaho are of major concern." Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts. Id. at p. 4-3. These threats are not independent of one another but are in fact closely related. Annual grasses like cheatgrass provide abundant fuel resulting in hotter and more frequent wildfires that destroy huge swaths of sage grouse habitat. See Conservation Plan at pp. 4-5 to -6. Cheatgrass is spread, in part, along infrastructure like fences used to control livestock grazing. The posts of these fences also provide perch sites for predators, and the barbed wires often injure or kill the low-flying sage grouse. Id. at p. 4-58. Livestock grazing reduces the forbs and perennial grasses so critical during the sage grouse nesting season in Idaho from April 1 to June 15. Id. at p. 4-60.

Sage Grouse Improvement Plans

To protect sage-grouse from further habitat and population losses, the BLM adopted in November of 2004, a National Sage-Grouse Habitat Conservation Strategy to give management direction and guidelines to BLM Field Office staff. The BLM has also designated greater sage-grouse a "sensitive" species in the Bruneau and Owyhee Field Offices, and across its range, pursuant to BLM's 2001 Special Status Species Policy. That Policy requires that "sensitive" species be afforded, at a minimum, the same protections as candidate species for listing under the ESA, and makes BLM Field Office managers responsible for implementing the Policy.

Also in 2004, leading experts on the sage grouse published the Conservation Assessment. AR 9335-9945. In 2006, the Idaho Sage Grouse Task Force published the Conservation Plan for the Greater Sage Grouse in Idaho (Idaho Conservation Plan). AR 10946-58.

Rockville Allotment

The Rockville Allotment is located in the Owyhee Field Office, adjacent to the Oregon-Idaho border. Its seven pastures (1, 2, 3, 4, 5S, 5N, and 6) contain 13,903 acres, making it the smallest of the allotments at issue in this decision. Two permitees graze cattle and sheep on these pastures between April 1 and November 31 of each year. The allotment is also home to the sage grouse, among other imperiled animal species. AR 23489.

The allotment's permits were challenged by WWP in Idaho Watersheds Project v. Hahn, Case No. 97-0519-S-BLW. See Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002). In that litigation, this Court, on remand, ordered the BLM to complete a NEPA review by 2006. AR23758-59. In accordance with the Court's order, the BLM took the first step in that analysis by issuing, on September 21, 2004, the Determination under the Fundamentals of Rangeland Health. AR 23531.

In that Determination, the BLM found that (1) Standard 4 (native plant communities) was being met; (2) Standards 2 (riparian) and 3 (stream channels) were not being met but were making significant progress toward meeting the standards; and (3) Standards 1 (watersheds), 5 (seedings), and 8 (endangered species) were not being met and "livestock grazing management practices are significant factors" in not meeting those standards. Id.

In explaining why grazing resulted in a failure of the allotment to meet Standard 1 (watersheds), the BLM found that pastures 1, 2, 3, and 4 "are grazed during the critical growth period and grazing practices have not been altered appropriately during drought conditions. Current livestock grazing practices appear to be keeping the unburned portions of these pastures from improving." AR 23532.

In explaining why grazing resulted in a failure of the allotment to meet Standard 8 (endangered species), the BLM found that (1) sagebrush did not provide adequate cover for sage grouse in pastures 1, 2, 3 and 4; (2) native bunchgrasses and seeded crested wheatgrass were reduced in pastures 1, 2, and 3, contributing to "unsatisfactory or marginal sage grouse breeding habitat ratings"; (3) limited forb diversity and abundance "is limiting habitat suitability for sage grouse"; and (4) sage grouse late brood-rearing habitat "was very limited within the allotment . . . ." AR 23542.

In June 2008, the BLM issued an Environmental Assessment (EA) evaluating the impacts of the renewal of grazing permits on the allotment. The EA addressed the Determination and stated that "[a]ction is needed to improve livestock grazing management practices on the Rockville allotment where we are not achieving nor making significant progress toward achieving the standards for rangeland health as a result of current livestock grazing management practices." AR 23755.

In the EA, BLM looked at three alternatives, including (1) re-authorizing grazing without modification (Alternative A), (2) allowing grazing to continue under a modified approach proposed by the permitees (Alternative B), and (3) modifying existing grazing to transition from a four-year rest rotation scheme to a seven-year rest rotation scheme, divide Pasture 5 into two pastures (5S and 5N), and make minor adjustments in grazing numbers and seasons of use (Alternative C). AR 23762 (outlining alternatives).

Alternative C was the BLM's proposed alternative. It proposed to use Annual Grazing Indicators that would set standards for such things as stubble height, streambank alterations, and forage utilization. AR 23762. The BLM explained that it would no longer make these standards mandatory (because they would be removed as Terms and Conditions on the grazing permits) but nevertheless stated that the standards were "required to be followed precisely." AR 23763. According to the BLM, a permit holder's failure to achieve the Indicators "may stimulate immediate action against the permit . . . holder . . . ." Id. 23770-74.

This created confusion among the permit holders because the BLM seemed to be taking back with one hand what it had just given with the other -- that is, the BLM was saying that satisfying the Indicators was "required" but at the same time was removing them from the mandatory Terms and Conditions provisions. The BLM clarified this in its FONSI by explaining that the Indicators are not mandatory and that the BLM did not intend to authorize itself to "take immediate action against a permit" if an Indicator was violated. AR 24996-7. Instead, the BLM hopes that the Indicators, if adhered to, "will result in a reasonable expectation that long term desired conditions objectives will be achieved." Id. When BLM monitoring shows Indicators are not being met, modifications to grazing "would be practiced." Id

In its review of the direct and indirect impacts of Alternative C, the BLM concluded that "[t]he rest rotation, AUM reduction, and adherence to Annual Grazing Use Indicators, would promote perennial grass health and recruitment would be expected to improve." AR 23776. This improvement would, in turn, mean that "[p]astures 1, 2, 3, and 4 would be expected to make significant progress toward meeting Standard 1." Id. The BLM also concluded that "the rest rotation grazing schedule, AUM reductions, and Annual Grazing Use Indicators would result in making significant progress towards meeting Standards 4 and 5 throughout the allotment in the long term." AR 23781.

In finding that Alternative C would make "significant progress" the BLM relied on its conclusion that the Alternative proposed an "AUM reduction." Id. The EA -- and eventually the Final Decision -- settled on an AUM limit of 2,288. AR 24983, 25009. That is a reduction from the past AUM limit of 2,423. AR 23761. But the average actual use of the past 17 years -- that is, the actual grazing levels that caused the degraded condition of the Rockville allotment -- was 1,914 AUMs. AR 23813. Thus, Alternative C proposed a level of grazing above the past actual use levels that resulted in FRH violations. The reductions in AUMs cited by the BLM are largely illusory -- they are simply reductions from past levels of permitted AUMs. When compared with past levels of actual use, Alternative C allowed more grazing. Thus, a key factor in the BLM's finding that Alternative C would make "significant progress" in curing FRH violations has no support in the record.

The BLM also relied on the "rest rotation" to find that Alternative C would result in "significant progress." This was an important finding because the BLM's FRH Determination, as discussed above, had found that grazing during "the critical growth period" was causing a violation of Standard 1 (watersheds) and also that grazing reduced certain grasses and forbs causing a violation of Standard 8 (endangered species). It is well-established in this record that to avoid conflicts with sage grouse nesting and late brood-rearing habitat grazing should be limited to mid-summer (June 20 to August 1), and to minimize impacts on herbaceous vegetation prior to the next nesting season it should be limited to late fall and winter months (November 15 to March 1). AR 9540-63.

Yet in this "rest rotation" cited by the BLM as a key to its "significant progress," grazing is permitted during the restricted time-frames in four of the seven years in pastures 1, 3 & 4. AR 24985. In pasture 2, grazing is permitted during these off-limit times in six of the seven years. Id. The BLM does not explain how it can make "significant progress" on its FRH violations when its grazing rotation repeats the same errors its Determination found were contributing to the FRH violations in the first place.

While the BLM concluded that Alternative C would be "an improvement over the current system," the agency never determined whether it would improve sage-grouse nesting, breeding, and late-rearing habitat across the Rockville allotment. AR 23786. Indeed, BLM provided no analysis or examination of whether Alternative C will make significant progress toward achieving Standard 8, or the Owyhee RMP requirements for managing sensitive species habitat. AR 23786.

For its cumulative effects analysis, BLM chose an analysis area which includes the adjoining federal allotments and surrounding state and federal lands. AR 23794. In its three-sentence cumulative effects analysis for wildlife, BLM claims only that the effects of Alternative C and other actions would "eventually lead to improvements or maintaining habitat," and Alternative C "would allow for long term improvements in overall wildlife habitat for species such as sage grouse." AR 23797-98.

On July 2, 2008, BLM issued its Finding of No Significant Impact (FONSI) -- determining that it was unnecessary to prepare an Environmental Impact Statement (EIS). AR 23826-28. In its FONSI, BLM never examines the impacts on sage-grouse of Alternative C -- which allows livestock grazing within key sage-grouse habitat during the critical spring timeframe -- together with other past, present and future grazing decisions occurring on federal lands within the Owyhee and Bruneau Field Offices. Id.

On July 3, 2008, BLM issued its proposed grazing decisions on the Rockville allotment, which proposed to adopt the grazing scheme outlined as Alternative C in the EA. AR 23829-53. On July 13, 2008, WWP submitted its protest to BLM's proposed action, requesting that BLM undertaking a more thorough examination of the impacts of BLM's proposed grazing scheme on sage-grouse populations and habitat. Among other issues, WWP protested the BLM's lack of enforceable terms and conditions, and BLM's reliance on so-called Annual Grazing Use Indicators. AR 23854.

On August 26, 2008, BLM responded to protests and issued its final grazing permit renewal decisions for the Rockville Allotment. WWP filed an administrative appeal of the BLM's decisions to the IBLA on September 25, 2008. Thereafter, on November 7, 2008, the IBLA denied WWP's petition for stay, and BLM's final decision became effective. WWP voluntarily withdrew its appeal on November 18, 2008, and the IBLA dismissed the appeal. The BLM issued grazing permits on February 19, 2009, and April 4, 2009, on the basis of the August 26, 2008, final decisions, and the ...


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