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Western Watersheds Project v. Ken Salazar

November 20, 2012

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 it a motion for remedies filed by WWP. The Court held an evidentiary hearing and requested further briefing. That briefing has been received and the motion is at issue. For the reasons set forth below, the Court will (1) remand all issues concerning the Craters of the Moon Resource Management Plan (RMP) and the Pinedale RMP to the BLM, without vacatur, for the purpose of revising both RMPs; (2) deny WWP's request to impose interim measures to manage grazing and drilling during the time the RMPs are being revised; (3) order the BLM to complete the new Craters RMP by the end of 2014, and to complete the Pinedale RMP by the end of 2016.

LITIGATION BACKGROUND

In its complaint, plaintiff WWP challenges sixteen separate BLM RMPs and the Environmental Impact Statement (EIS) associated with each RMP. 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 sixteen RMPs comprise the range of the sage grouse, and WWP alleges that each of the challenged RMPs, and their associated EISs, fail to adequately consider the environmental impacts of grazing and energy development 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.

Those motions were filed, and the Court issued its decision on September 28, 2011. See Memorandum Decision (docket no. 131). With regard to Craters, the Court found that although grazing was deemed by the agency to be a major contributing factor to the decline of sage grouse habitat, the RMP/EIS failed to adequately address the best science and the agency's own policies designed to protect that habitat. Moreover, the RMP/EIS failed to discuss alternatives to the status quo regarding grazing. More specifically, the Court found that the Craters EIS violated NEPA and FLPMA by failing to adequately address the Nature Conservancy Report, the WAFWA Conservation Assessment, and the BLM's own Special Status Species Policy ("Policy") and National Sage-grouse Habitat Conservation Strategy ("Strategy"). The BLM also failed to consider a no-grazing alternative or any alternative that would have reduced grazing levels.

With regard to the Pinedale RMP/EIS, the Court found that it failed to (1) identify how or where energy and grazing impacts to sage-grouse would occur; (2) map sage-grouse winter use areas; (3) adequately discuss the failure of one third of allotment acres to meet rangeland health standards due to grazing; (4) address the conclusions of Dr. Braun regarding cumulative impacts to sage-grouse ; (5) analyze the cumulative impacts due to energy development, including energy development in adjoining field offices such as the Kemmerer Field Office; and (6) address the Wyoming Basin Eco-Regional Assessment and the WAFWA Conservation Assessment. In addition, the Court held that BLM violated FLPMA by disregarding its own Policy and Strategy.

Following that decision, the parties briefed the remedy issues, and the Court held a three-day evidentiary hearing on remedies. The Court ordered further briefing that has now been received.

WWP seeks three forms of relief. It asks first for the Court to remand this case to the BLM, without vacating the RMPs for Craters and Pinedale, to correct the deficiencies in those RMPs. All parties agree to this, and the Court will so order.

WWP asks next for the Court to impose certain procedures and a timeline on the BLM during the remand. The BLM has proposed a timeline that WWP finds acceptable. The BLM proposes that the remand for the Pinedale RMP be completed by the end of 2014. See Green Declaration (Dkt. No. 167-5) at ¶ 13. For Craters of the Moon, the BLM wants 4.5 years to complete the remand process because it proposes a "two-step" process, whereby it will first complete a sub-regional EIS and RMP amendment process as part of its National Planning Strategy, and then complete a Craters of the Moon-specific EIS and RMP amendment process. The BLM agrees that the Court can impose this time line, and the Court will so order.

The BLM also proposes to use procedures on remand that are largely agreeable to WWP. Those procedures were set forth in the Declaration of Brent Ralston, who is the Planning and Environmental Coordinator for the BLM's Idaho State Office, and in the testimony and Declaration of Buddy Green, the Deputy State Director, Resource Policy & Management, for the BLM's Wyoming State Office. See Ralston Declaration (Dkt. No. 167-9) at ¶¶ 8-22; Green Declaration (Dkt. No. 167-5) at ¶¶ 7-18. WWP agrees with these procedures as far as they go, but demands that the BLM do more, as will be discussed further below. With regard to the procedures discussed by both Ralston and Green, the Court does not have the record before it that would allow the Court to micro-manage the BLM's drafting of the new RMPs by imposing each of these procedures on the BLM. However, the Court will put the parties on notice that the decision it reaches here on other issues relies in large part on the BLM's representation that it will carry out the procedures presented in the two Declarations cited above.

One specific concern of both parties concerning the remand is the use BLM will make of the National Technical Team Report (NTT Report) in revising the RMPs. The NTT Report was the BLM's response to the Fish and Wildlife Service's "warranted but precluded" listing determination. In that determination the FWS concluded that the BLM's "existing regulatory mechanisms" were inadequate to protect the sage grouse. See 75 Fed. Reg. 13910-01 at 13982 (March 23, 2010). The BLM's RMPs were one of those "existing regulatory mechanisms." Id. at 13975-76.

To counter that criticism, the BLM assembled the National Technical Team, a group of scientists, to serve "as an independent, technical and science-based team to ensure the best information related to greater sage-grouse management is fully reviewed, evaluated and provided to the BLM for consideration in the land use planning process." See NTT Report (Dkt. No. 167-6) at p. 2. The Team issued its Report on December 21, 2011, and the testimony at the evidentiary hearing established that it contains the best available science concerning the sage grouse.

The BLM will consider the NTT Report in revising the RMPs. The BLM announced its policy in a memorandum to its Field Offices, issued just a week after the NTT Report, stating that the NTT Report's "conservation measures must be considered and incorporated into at least one alternative in the land use planning process." See BLM IM-2012-044 (Dkt. No. 167-7) at p. 2. While it will consider the NTT Report, the BLM will not commit to adopting any of its recommendations, and will not use the NTT Report to govern management of these two Field Offices in the interim period while the RMPs are being revised.

This interim period -- two years in Pinedale and 4.5 years in Craters -- is now the focus of the dispute between the parties. WWP has proposed management measures that restrict grazing and drilling during this interim period, while the BLM and intervenors object to those measures. The evidentiary hearing focused entirely on this issue.

WWP's interim measures would: (1) exclude livestock grazing in sage-grouse nesting and brood-rearing habitats from March 1 until after June 20, and remove livestock by August 1 of each year; (2) leave at least 70 percent of the herbaceous production each year to form residual cover to benefit sage-grouse nesting the following spring; (3) prohibit twice-over grazing systems in sage-grouse habitats; (4) prohibit the BLM from allowing conversion of current "unavailable" or "traditional leasing" areas into "intensively developed" areas for oil and gas leasing and development; (5) prohibit BLM from issuing or renewing mineral leases within sage-grouse habitat; (6) prohibit surface disturbance and noise within 3.3 miles of occupied leks or in identified sage-grouse winter habitat; (7) prohibit more than 1 percent new surface disturbance per square mile; and (8) prevent wind farms within 5 miles of occupied leks.

There is no dispute that each of WWP's interim measures would benefit sage grouse. The leading expert on sage grouse, Dr. Clint Braun, explained how these measures would restore sage grouse habitat, and protect leks and nests, by reducing the negative impacts of energy development and early spring grazing. WWP's interim measures also find strong support in the NTT Report ...


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