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Western Watersheds Project v. Jewell

United States District Court, D. Idaho

September 29, 2014

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
S.M.R. JEWELL, Secretary, Dept. of Interior, et al., Defendants. J.R. SIMPLOT CO., et al., Intervenor-Defendants, PUBLIC LANDS COUNCIL, NATIONAL CATTLEMEN'S BEEF ASSOCIATION, IDAHO CATTLE ASSOCIATION, Intervenor-Defendants

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For Western Watersheds Project, Plaintiff: Kristin F. Ruether, Todd C Tucci, LEAD ATTORNEYS, ADVOCATES FOR THE WEST, Boise, ID; Laurence J Lucas, LEAD ATTORNEY, Boise, ID.

For Bureau of Land Management, Defendant: Robert H Foster, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Syrena Case Hargrove, LEAD ATTORNEY, U.S. Attorney's Office, Boise, ID; Tyler Welti, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, Environment & Natural Resources Div, Washington, DC; Dominika Tarczynska, U.S. Department of Justice, Washington, DC.

For Ken Salazar, Secretary of the U.S. Department of Interior, Defendant: Kenneth M Sebby, LEAD ATTORNEY, U.S. Dept. of the Interior, Boise, ID; Syrena Case Hargrove, LEAD ATTORNEY, U.S. Attorney's Office, Boise, ID; Tyler Welti, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, Environment & Natural Resources Div, Washington, DC; Dominika Tarczynska, U.S. Department of Justice, Washington, DC; Robert H Foster, U.S. DEPT OF JUSTICE, Environment and Natural Resources Division, Denver, CO.

For U.S. Department of Interior, an agency of the United States, Defendant: Syrena Case Hargrove, LEAD ATTORNEY, U.S. Attorney's Office, Boise, ID; Tyler Welti, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, Environment & Natural Resources Div, Washington, DC; Dominika Tarczynska, U.S. Department of Justice, Washington, DC.

For Arnold L. Pike, Bruneau Field Office Manager, BLM, Defendant: Dominika Tarczynska, LEAD ATTORNEY, U.S. Department of Justice, Washington, DC; Tyler Welti, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, Environment & Natural Resources Div, Washington, DC.

For J.R. Simplot Company, Intervenor Defendant: Paul LaMar Arrington, LEAD ATTORNEY, Barker Rosholt & Simpson LLP, Twin Falls, ID; Albert P Barker, Barker Rosholt & Simpson LLP, Boise, ID; W. Alan Schroeder, Schroeder & Lezamiz Law Offices, LLP, Boise, ID.

For J.R. Simplot Company DBA Wickahoney Cattle Company, J.R. Simplot Self-Declaration of Revocable Trust DBA Jack Ranch, J.R. Simplot Company DBA Raft River Cattle Company, Intervenor Defendants: Paul LaMar Arrington, LEAD ATTORNEY, Barker Rosholt & Simpson LLP, Twin Falls, ID; W. Alan Schroeder, LEAD ATTORNEY, Schroeder & Lezamiz Law Offices, LLP, Boise, ID; Albert P Barker, Barker Rosholt & Simpson LLP, Boise, ID.

For Simplot Land & Cattle Company, an Idaho corporation which merged into J.R. Simplot Company, Intervenor Defendant: W. Alan Schroeder, LEAD ATTORNEY, Schroeder & Lezamiz Law Offices, LLP, Boise, ID.

For Ellison Ranching Company, Intervenor Defendant: Karen Budd-Falen, LEAD ATTORNEY, PRO HAC VICE, Budd-Falen Law Offices, LLC, Cheyenne, WY; John Richard Hammond, Boise, ID.

For Publlic Lands Council, National Cattlemen's Beef Association, Inc, Idaho Cattle Association, Intervenor Defendants: Paul A Turcke, LEAD ATTORNEY, MOORE SMITH BUXTON & TURCKE, Boise, ID; Caroline Lobdell, PRO HAC VICE, Western Resources Legal Center, Portland, OR.

For Nevada Counties, Elko County, White Pine County, Lander County, Humboldt County, and Churchill County, all in the State of Nevada, Amicus: Kristin A McQueary, ELKO COUNTY DISTRICT ATTORNEY, Elko, NV.

For State of Nevada, Amicus: John Richard Hammond, Boise, ID; C Wayne Howle, Office of the Attorney General for the State of Nevada, Carson City, NV.

For Northwest Farm Credit Services, ACA, U.S. AgBank, FCB, American AgCredit, ACA, Farm Credit Services of America, ACA, Farm Credit Services of the Mountain Plains, ACA, Western AgCredit, ACA, Farm Credit Services Southwest, ACA, Northern California Farm Credit, ACA, Idaho ACA, Amicuses: Murray D Feldman, William Gerry Myers, III, HOLLAND & HART, Boise, ID.

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MEMORANDUM DECISION AND ORDER

B. Lynn Winmill, Chief United States District Judge.

INTRODUCTION

The Court has before it cross-motions for summary judgment. The Court heard oral argument, and took the motions under advisement. For the reasons expressed below, the Court will grant WWP's motion and deny those of the defendants and intervenors.

SUMMARY

In this lawsuit, WWP has challenged some 600 BLM decisions that allegedly failed to protect 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. To make the litigation manageable, the parties agreed to file a series of summary judgment motions concerning specific allotments that were representative of many others.

In the first round of litigation, the Court found insufficient the environmental reviews governing grazing permits on five allotments. In this second round, the Court finds that reviews of four other allotments were similarly insufficient.

STANDARD OF REVIEW

The Court's review of these four 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

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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, 93 S.Ct. 2367, 37 L.Ed.2d 350 (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, 109 S.Ct. 1851, 104 L.Ed.2d 377 (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). " 'When 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, 91 S.Ct. 814, 28 L.Ed.2d 136 (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 to, and the Court approved, the use of 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. The Court has resolved the permit challenges made in the first round, s ee WWP v. Salazar, 843 F.Supp.2d 1105 (D. Idaho 2012), and is now resolving those made in the second round.

In this first round, WWP challenged 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. The Court granted summary judgment to WWP, holding that the five permits renewals (1) violated NEPA because the BLM failed to conduct a sufficient cumulative impacts analysis; (2) violated

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FLPMA because the grazing allowed by the permits was not consistent with the Range Management Plans governing the relevant Field Office; and (3) violated the Fundamentals of Rangeland Health regulations because the BLM moved certain grazing restrictions out of the mandatory Terms and Conditions category and made them discretionary. Id.

In this second round, WWP is making many of the same claims against permit renewals for four allotments within the Burley Field Office: Jim Sage, Cassia Creek, Chokecherry, and Almo-Womack. WWP claims that the permit renewals on these four allotments (1) violated NEPA because the BLM failed to conduct a sufficient cumulative impacts analysis, and failed to consider alternative grazing levels, including a no-grazing alternative.; (2) violated FLPMA because the grazing allowed by the permits was not consistent with the Cassia Resource Management Plan (Cassia RMP); and (3) violated the Fundamentals of Rangeland Health regulations because the BLM moved certain grazing restrictions out of the mandatory Terms and Conditions category and made them discretionary.

In addition, both sides seek summary judgment concerning nine other allotments that were renewed without any environmental review pursuant to the 2003 grazing rider. Both sides ask the Court to ...


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