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Western Watersheds Project v. U.S. Department of Interior

United States District Court, D. Idaho

September 30, 2016

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
U.S. DEPARTMENT OF INTERIOR, Defendant, and IDAHO WOOL GROWERS ASSOCIATION, MINIDOKA GRAZING ASSOCIATION, and ETCHEVERRY SHEEP COMPANY. Intervenor Defendants

         MEMORANDUM DECISION AND ORDER RE: PLAINTIFF WESTERN WATERSHEDS PROJECT'S MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 22) FEDERAL DEFENDANT'S CROSSMOTION FOR SUMMARY JUDGMENT (DOCKET NO. 30) FEDERAL DEFENDANT'S MOTION TO STRIKE NEW EVIDENCE (DOCKET NO. 33) INTERVENOR DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DOCKET NO. 34)

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Currently pending before the Court are (1) Plaintiff Western Watershed Project's Motion for Summary Judgment (Docket No. 22), (2) Federal Defendant's Cross-Motion for Summary Judgment (Docket No. 30), (3) Federal Defendant's Motion to Strike New Evidence (Docket No. 33), and (4) Intervenor Defendants' Motion for Summary Judgment (Docket No. 34). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the undersigned enters the following Memorandum Decision and Order:

         I. INTRODUCTION

         Plaintiff Western Watershed Project (“WWP”) seeks review of Defendant U.S. Department of Interior's (“Interior”) July 10, 2014 Office of Hearing and Appeals (“OHA”) decision, upholding the Bureau of Land Management's (“BLM”) decisions to allow grazing on the Big Desert Sheep Allotment (“Allotment”), as well as the accompanying Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”). WWP's allegations are all premised on the fact that the Allotment contains greater sage-grouse habitat.

         WWP generally contends that the Interior's approval of 15 BLM final grazing decisions and the environmental analyses underlying those decisions violated the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Administrative Procedure Act (“APA”). Specifically, through this action, WWP alleges that the EA (1) arbitrarily confined the geographic scope of its cumulative impacts assessment by excluding other allotments directly to the west of the Allotment; (2) failed to consider a reasonable alternative location for the BLM's proposed forage reserve within the Allotment; (3) failed to properly analyze the grazing decisions' impacts on wildfire frequency; and (4) contained no analysis of potential indirect impacts to relict vegetation sites found on nearby kipukas (islands of older, undisturbed/ungrazed terrain surrounded by newer lava flows), providing habitat for sage-grouse.

         Now before the Court are WWP's Motion for Summary Judgment (Docket No. 22), Interior's Cross-Motion for Summary Judgment (Docket No. 30), and the Intervenors'[1] separate Motion for Summary Judgment (Docket No. 34).[2], [3] The issues were argued before the undersigned at the federal courthouse in Boise, Idaho. After the considerable sederunt that follows in any administrative appeal such as this case, the Court decided such issues and now memorializes those details in this Memorandum Decision and Order.

         II. RELEVANT FACTUAL BACKGROUND

         A. The Big Desert Sheep Allotment and Sage-Grouse

         1. The 236, 990-acre Allotment is located in southeastern Idaho, within an expanse of the Snake River Plain known as the “Big Desert” - it includes rolling plains, lava outcrops, and other volcanic extrusions;[4] is situated 4, 350-5, 563 feet above sea level; and is relatively dry (averaging 8-16 inches of annual precipitation). See Pl.'s SOF Nos. 1-2 (Docket No. 23) (citing AR 982, 984-85); Defs.' SOF No. 1 (Docket No. 31) (citing AR 382).

         2. The Allotment provides habitat for a variety of native plant and animal species, some of which are BLM-designated special status species, including the greater sage-grouse. See Pl.'s SOF No. 3 (Docket No. 23) (citing Compl., ¶¶ 25-26 (Docket No. 1); Ans., ¶¶ 25-26 (Docket No. 9); AR 1009-10, 1014-19, 1023-24); Defs.' Obj. to Pl.'s SOF No. 3 (Docket No. 32).

         3. Sage-grouse within the Allotment are part of the Snake-Salmon-Beaverhead ID population whose trend, as indicated by average number of males per lek (sage-grouse breeding areas), has declined by 57% from 1965-1969 to 2000-2007. Pl.'s SOF No. 12 (Docket No. 23) (citing AR 1017). The five-year baseline from 1996-2000 in the Allotment was 9.23 males per lek and 17.7 males per active lek. See Defs. Obj. to Pl.'s SOF No. 12 (Docket No. 32) (citing AR 1017). As of December 2012 (the date of the at-issue EA), the three-year average number of males per lek was 17.88, while the three-year average number of males per active lek was 31.25. See id. There are 30 known sage-grouse leks within the Allotment and another 65 leks within five miles of the Allotment - 48% of these 95 leks are occupied; the remaining leks are undetermined, inactive, or not verified. See AR 1017.

         4. Of the Allotment's 236, 990 acres, 134, 840 are designated as Preliminary Priority Habitat (“PPH”) for sage-grouse, and 24, 807 acres are designated as Preliminary General Habitat (“PGH”) for sage-grouse. See Pl.'s SOF No. 3 (Docket No. 23) (citing AR 1016).

         a. Both PPH and PGH are divided into subsets: perennial grasslands and sagebrush - all of the PPH and PGH acres in the Allotment lie within the perennial grasslands subset. See AR 1016.

         b. PPH and PGH designations within the Allotment are based on sage-grouse populations - PPH is based on combined high male lek attendance, high lek density, and high lek connectivity; PGH provides corridors connecting PPH, potential stepping stones for grouse movements within corridors, or occupied habitats characterized by low lek density. See Pl.'s SOF No. 3 (Docket No. 23) (citing AR 1016).

         5. Of the Allotment's 236, 990 acres, 213, 220 acres are identified as Restoration Type 1 sage-grouse habitat, and 1, 287 acres are identified as Restoration Type 2 sage-grouse habitat. See Obj. to Pl.'s SOF No. 3 (Docket No. 32) (citing AR 1016). Due to past wildfires, there is limited key sage-grouse habitat identified within the Allotment. See id.

         a. Restoration Type 1 sage-grouse habitat refers to sagebrush-limited areas with acceptable understory conditions in terms of grass species composition. See AR 1016. Such areas are often a result of wildfires or seedings. See id. The majority of the Allotment is classified as Restoration 1 sage-grouse habitat due to fires within the Allotment that have reduced sagebrush cover, forb (herbaceous flowering plants) diversity, and abundance. See id.; see also Defs.' SOF No. 3 (Docket No. 31) (citing AR 382). While sagebrush provides critical habitat components (escape cover, nesting habitat) and food for sage-grouse, due to the limited sagebrush canopy cover and lack of forb diversity in Restoration Type 1 sage-grouse habitat areas, sage-grouse very rarely use them. See AR 1016.

         b. Restoration Type 2 sage-grouse habitat refers to inadequate sagebrush cover with poor understory herbaceous conditions. See id. Although sage-grouse may still use these sites during the winter months when the bulk of their diets are comprised of sagebrush, use during breeding and brood-rearing seasons would be limited due to the poor condition of the understory. See id.

         6. Ninety-two percent of the Allotment (219, 617 acres) is federal public land managed by the BLM's Upper Snake Field Office. See Pl.'s SOF No. 1 (Docket No. 23) (citing Compl., ¶¶ 80-81 (Docket No. 1); Ans., ¶¶ 80-81 (Docket No. 9); AR 982-83). The BLM's Upper Snake Field Office manages grazing on the Allotment, which has approximately 15 domestic sheep grazing permittees. Defs.' SOF No. 2 (Docket No. 31) (citing AR 382). The Allotment is “common” to all permittees, meaning that there are no internal pastures and each of the permittees has access to the entire allotment during the season of use. This leaves the Allotment largely free from internal pasture fencing. See id.; see also Pls.' SOF No. 9 (Docket No. 23) (citing Compl., ¶ 82 (Docket No. 1); Ans., ¶ 82 (Docket No. 9); AR 932, 23893).

         B. The BLM's Rangeland Health Evaluation for the Big Desert Sheep Allotment

         7. In early 2011, the BLM began a permit renewal process for the Allotment. See Defs.' SOF No. 4 (Docket No. 31) (citing AR 387). As part of that process, the BLM deemed it necessary to evaluate conditions on the ground by conducting a rangeland health assessment at representative areas, specifically five “assessment polygons” within the Allotment ranging in size from 31, 000 acres to 54, 000 acres. See id. The BLM then gathered an interdisciplinary team of resource specialists to complete the rangeland health assessment and field work. See id. at SOF No. 4 (citing AR 450, 1063).

         8. On April 25, 2011, the BLM sent a notice to all permittees and interested members of the public (including WWP), inviting them to participate in the field assessment for the Allotment. See id. at SOF No. 5 (citing AR 1062); see also Intervenor's SOF No. 1 (Docket No. 35, Att. 1) (citing AR same). Several permittees participated in the assessment; however, no interested members of the public (including WWP) participated. See Defs.' SOF No. 5 (citing AR 387); see also Intervenor's SOF No. 1 (Docket No. 35, Att. 1) (citing AR 1-483).

         9. After the BLM's interdisciplinary team completed field work in July 2011, it prepared an Allotment Assessment summarizing the BLM's findings. See Defs.' SOF No. 6 (citing AR 1063-76); see also Intervenor's SOF No. 3 (Docket no. 35, Att. 1) (citing AR 469-82). The Allotment Assessment contained explanations of how conditions on the Allotment related to the existing Idaho Standards for Rangeland Health and Guidelines for Livestock Grazing Management, explaining the rate of departure of key indicators of resource health from expected conditions. See Defs.' SOF No. 7 (citing AR 1065-76); see also Pl.'s SOF No. 29 (Docket No. 23) (citing AR 462, 469). Four of the eight Rangeland Health Standards applied to the Allotment: Standard 1 (Watersheds), Standard 4 (Native Plant Communities), Standard 5 (Seedings), and Standard 8 (Threatened and Endangered Plants and Animals). See Defs.' SOF No. 7 (Docket No. 31) (citing AR 1066-76); Pl.'s SOF No. 29 (Docket No. 23) (citing Compl., ¶ 90 (Docket No. 1); AR 463).[5] As to each of these four Standards, the Allotment Assessment revealed the following:

a. Standard 1 (Watersheds): The Allotment Assessment noted slight to moderate departure of indicators from expected conditions, and in every case attributed the departure to wildfire. See Defs.' SOF No. 7 (Docket No. 31) (citing AR 1066-67).
b. Standard 4 (Native Plant Communities): The Allotment Assessment revealed departure from expected conditions in the form of reduced presence of shrubs, increase in cheatgrass, and a general change in plant community. See id. at SOF No. 7 (citing AR 1067-70). As with Standard 1, the Allotment Assessment explained that wildfire was the major driver of the sub-prime conditions. See id. at SOF No. 7 (citing AR 1069).
c. Standard 5 (Seedings): The Allotment Assessment determined that the indicators for “biotic integrity” in the four assessment areas were rated as none to slight departure from site potential, except for functional/structural groups (slight to moderate departure for one assessment area, moderate departure for three assessment areas) and invasive plants indicators (none to slight department for two assessment areas, moderate departure for two assessment areas). See AR 1071. Additionally, previously-uncollected vegetative cover studies were conducted in non-native seedings within the Allotment. See id.
d. Standard 8 (Threatened and Endangered Plants and Animals): The Allotment Assessment described reduced shrubs and presence of cheatgrass as potential concerns. See Defs.' SOF No. 7 (Docket No. 31) (citing AR 1072-76).

         10. On November 17, 2011, the BLM sent a cover letter, along with the Allotment Assessment to all permittees and interested members of the public. See id. at SOF No. 8 (citing AR 1077); see also Intervenor's SOF No. 3 (Docket No. 35, Att. 1) (citing AR same). As with its April 25, 2011 letter, the BLM designed the letter to encourage public involvement and to solicit key issues which were important to the public. See id. The cover letter explained that the Allotment Assessment was part of the permit renewal process, allowing the public to review it, and requesting additional Allotment-specific data by December 9, 2011 for the BLM's consideration in the forthcoming Allotment evaluation(s). See id. According to Interior and Intervenors, WWP did not contact the BLM regarding the Allotment Assessment, nor did WWP provide additional Allotment-specific data as requested. See Defs.' SOF No. 8 (citing AR 387); see also Intervenor's SOF No. 3 (Docket No. 35, Att. 1) (citing AR 1-483). WWP disagrees, claiming that “[a] WWP staff member submitted a declaration describing that she did provide comments on BLM's [A]llotment [A]ssessment.” Pl.'s Obj. to Defs.' SOF No. 8 (Docket No. 40) (citing AR 22890-902, 1783-84, 1806-11); see also Pl.'s Obj. to Intervenor's SOF No. 3 (Docket No. 41) (citing same).[6]

         11. On December 12, 2011, the BLM's interdisciplinary team prepared an Evaluation Report in an effort to determine whether the Allotment was achieving the Idaho Standards for Rangeland Health and Guidelines for Livestock Grazing Management. See Defs.' SOF No. 9 (Docket No. 31) (citing AR 387, 1078-84). The Evaluation Report included BLM's findings as to whether the Allotment was either “Meeting the Standard, ” “Not meeting the Standard but making significant progress toward meeting, ” or “Not meeting the Standard.” See id. at SOF No. 9 (citing AR 1078-84). As to each of four above-referenced Standards, the Evaluation Report noted the following:

a. Standard 1 (Watersheds): The Evaluation Report indicated that “recent fire activity in the areas has removed a large majority of the shrub composition, as well as reduced the large bunchgrass competition” but, even so, “[t]he large majority of the [Allotment] provides for proper infiltration, retention, and release of water appropriate to soil type, vegetation, climate, and landform to provide for proper nutrient cycling, hydrologic cycling, and energy flow.” See Defs.' SOF No. 10 (Docket No. 31) (quoting AR 1080). Ultimately, it was concluded that the Allotment was “Meeting the Standard.” See id.
b. Standard 4 (Native Plant Communities): The Evaluation Report contains findings that “[t]he large majority of the Native Plant Communities in the [Allotment] is not meeting the standard, but is making significant progress toward meeting.” AR 1081, 1083; see also Defs.' SOF No. 11 (Docket No. 31) (citing same). Indeed, according to the Evaluation Report, “[t]he repeated disturbance associated with wildfires in the [A]llotment has contributed to the decrease in large bunchgrass composition in the areas and increase in cheatgrass composition, ” but that “[t]he shrub component will continue to reestablish in the [A]llotment as long as the [A]llotment isn't affect by future fires.” AR 1081. Despite this reduction in shrub component, the Evaluation Report includes a conclusion that “the grass and forb components are productive and healthy within the [Allotment].” Id.
c. Standard 5 (Seedings): As the BLM's finding that the Allotment was “Meeting the Standard, ” the Evaluation Report contains comments that it (1) “meets the Standard to maintain life form diversity, production, native animal habitat, nutrient cycling, energy flow, and the hydrologic cycle”; and (2) “[t]he seedings remain productive and provide adequate litter and residual plant material for site protection.” AR 1082; see also Defs.' SOF No. 10 (Docket No. 31) (citing same).
d. Standard 8 (Threatened and Endangered Plant and Animals): Consistent with Standard 4, breeding habitat for sage grouse was evaluated, with the Evaluation report finding “an unsuitable habitat rating overall for sage grouse” resulting from “greatly reduced sagebrush cover and heights, and slightly reduced tall bunchgrass densities and heights, and increased composition of annual grasses (cheatgrass) - each a result of past wildfires. AR 1083; see also Defs.' SOF No. 11 (Docket No. 31) (citing same). Still, as with Standard 4, the Evaluation Report also said that, despite the reduction in shrub component, “the large majority of the grass and forb components are productive and healthy within the [Allotment].” Id. Ultimately, the Evaluation Report contained a conclusion that the Allotment was “[n]ot meeting the Standard, but making significant progress towards meeting.” Id.

         12. After completing the Evaluation Report and finding that the Allotment was either meeting certain Standards or, if not, making significant progress towards meeting other applicable Standards (see supra), the BLM's interdisciplinary team assembled a draft set of alternatives (“Draft Alternatives”) for NEPA evaluation. See Defs.' SOF No. 12 (Docket No. 12 (Docket No. 31) (citing AR 1085-87). There were four Draft Alternatives identified, including (1) no action (Alternative A); (2) a slight modification of the season of use with additional flexibility, as proposed by the permittees (Alternative B); (3) a slight modification and extension of the season and the creation of a forage reserve (Alternative C); and (4) no grazing (Alternative D). See id.

         13. On December 14, 2011, the BLM circulated the Evaluation Report and Draft Alternatives to all permittees and interested members of the public, including WWP. See id. at SOF No. 13 (citing AR 1088); see also Intervenor's SOF No. 4 (Docket No. 35, Att. 1) (citing AR 1088, 1085-87). As with its April 25 and November 17, 2011 letters, the December 14, 2011 letter invited the public to comment on these documents by January 9, 2012, this time to ensure that the BLM had accurately evaluated resource conditions and had a good range of alternatives to consider on the Allotment. See id. Again, Interior and Intervenors claim that WWP did not respond to, or otherwise contact, the BLM about the Evaluation Report or the Draft Alternatives. See Defs.' SOF No. 13 (citing AR 387); see also Intervenor's SOF No. 4 (Docket No. 35, Att. 1) (citing AR 1-483). And, as before, WWP disagrees, claiming that “[a] WWP staff member submitted a declaration describing that she did provide comments on BLM's Allotment Assessment and conformance document.” Pl.'s Obj. to Defs.' SOF No. 13 (Docket No. 40) (citing AR 22890-902, 1783-84, 1806-11).[7]

         C. The BLM's Environmental Assessment: Grazing Permit Renewal for Big Desert Sheep Allotment

         14. After reviewing data and public feedback regarding the Evaluation Report and Draft Alternatives, the BLM completed an EA in December 2012. See Defs.' SOF No. 14 (Docket No. 31) (citing AR 380-461); see also Intervenor's SOF No. 5 (Docket No. 35, Att. 1) (citing same). According to Interior, because no permittee or interested member of the public expressed disagreement with the BLM's Allotment Assessment, Evaluation Report, or Draft Alternatives, the BLM analyzed in detail the four alternatives that it had previously disclosed to the public. See Defs.' SOF No. 14 (Docket No. 31); see also Intervenor's SOF No. 5 (Docket No. 35, Att. 1) (citing AR 1-483).

         a. The BLM's EA noted that naturally-occurring wildfire explained why conditions were not perfect on the Allotment. See Defs.' SOF NO. 15 (citing AR 410). The EA also explained that grass and forb components had largely recovered post-fire and provided “productive and healthy habitat” for certain wildlife. See id. at SOF No. 15 (citing AR 410, 437). Furthermore, the EA explained that shrubs and sagebrush were naturally coming back to the Allotment, thus allowing for the Allotment to make significant progress toward meeting Standards. See id. at SOF No. 15 (citing AR 425, 428-29). The BLM also described its non-grazing, active restoration efforts to plant and seed sagebrush on the Allotment. See id. at SOF No. 15 (citing AR 428).

         b. The BLM's EA examined how the Draft Alternatives would impact key resources on the Allotment. See id. at SOF No. 16 (citing AR 402-05, 407-08, 425-35).

         i. Interior suggests that, “[b]ecause the BLM's field work showed that current grazing management was not causing resource damage on the Allotment, it was not surprising that the BLM's analysis showed that continuation of current management with slight tweaks to the grazing season would allow the Allotment to continue making significant progress toward meeting Standard 4 (Native Plant Communities) and Standard 8 (Threatened and Endangered Plant and Animals). Id. at SOF No. 16 (citing AR 421-24, 429-31). WWP disagrees that with any characterization of the changes to the grazing season in the BLM's final decisions (40 days, including 25 during the critical sage-grouse breeding and nesting season) as “slight tweaks.” See Pl.'s Obj. to Defs.' SOF No. 16 (Docket No. 40) (citing AR 989, 992, 1020, 14814-15, 14822).

         ii. The BLM explained how the forage reserve incorporated into Alternative C would allow the BLM to increase sagebrush in a crested wheatgrass seeding, while providing a place where permittees in the area could graze livestock in emergency situations. See Defs.' SOF No. 17 (Docket No. 31) (citing AR 392-93, 420-22, 430-32). WWP disputes that increased grazing will increase sagebrush “because sheep eat sagebrush and grazing damages sagebrush.” Pl.'s Obj. to Defs.' SOF No. 17 (Docket No. 40) (citing Pl.'s SOF No. 18 (Docket No. 23); AR 23243-50, 22756, 22766, 22805-07, 22814-16, 23967-71). In short, WWP contends that the BLM's primary motivation for constructing the forage reserve was to promote livestock grazing. See Pl.'s Obj. to Defs.' SOF No. 17 (Docket No. 40) (citing AR 23522).

         iii. The BLM also considered the new infrastructure that would be built to accommodate the forage reserve - 14 miles of new boundary fence (including fence posts), three miles of new pasture fence (including fence posts), a well, water delivery devices, a corral, and other smaller projects. See Defs.' SOF No. 18 (Docket No. 31) (citing AR 393-94). In addition to noting the EA's recognition that forage reserves could align with various conservation plans/strategies relative to sage-grouse populations, Interior claims that, “[b]ecause [the forage reserve] would be built in restoration sage-grouse habitat, the BLM carefully analyzed the impacts of the new infrastructure on sage-grouse and weighed it against the benefits of the reserve to sage-grouse and other resources.” Id. at SOF No. 18 (citing AR 415-18, 421, 1346, 1348, 1351, 1363, 1404, 1542-43, 1546, 1132-39); see also AR 421-22 (EA concluding that “[p]otential impacts to sage-grouse are minimal due to the lack of suitable sage-grouse habitat and distance to occupied leks. Fence posts would provide perches for predators of sage-grouse nests and chicks but the distance to suitable sage-grouse habitat diminishes the potential for predators to be successful from fence posts.”). WWP counters that the forage reserve and associated infrastructure would be built in PPH-designated areas - the most important sage- grouse habitat type. See Pl.'s Obj. to Defs.' SOF No. 18 (Docket No. 40) (citing AR 997, 1132, 22690).

         D. The BLM's Proposed Decisions for the Big Desert Sheep Allotment, Finding of No Significant Impact, and WWP's Protest

         15. In early December 2012, after completing the EA, the BLM prepared proposed decisions for the Allotment, ultimately proposing the selection of Alternative C (a modification and extension of the grazing season and the creation of a forage reserve). See Defs.' SOF No. 19 (Docket No. 31) (citing AR 244-352). The rationale for the election of Alternative C included:

This decision is based on the findings of the interdisciplinary team on the available monitoring data, allotment evaluation, consultation, and [the EA]. Implementation of the actions described above, including the permit terms and conditions, will help ensure that the allotment continues to meet or make significant progress toward meeting all applicable standards within the allotment.
The decision for the Big Desert Sheep Allotment is in conformance with the Greater Sage-Grouse Interim Management Policies and Procedures Instruction Memorandum (IM-2012-043).
The rangeland health assessment indicates that Alternative C would also continue to meet Standards 1 and 5, and continue to make significant progress toward meeting Standards 4 and 8 at a similar rate as Alternative B. Use of the Big Desert Sheep Allotment would be similar to Alternative B, except for the creation of the Countyline Forage Reserve Allotment. The establishment of the Countyline Forage Reserve Allotment would include authorizing the construction of a boundary/pasture fence, the construction of a pipeline with three trough sets and two wildlife guzzlers, the drilling of a well, the placement of a storage tank, corral, and the placement of one cattleguard in the forage reserve allotment. Both the Sage Grouse Comprehensive Conservation Strategy (2006) and the Big Desert Sage-Grouse Planning Areas Conservation Planning Areas Conservation Plan (2010) suggest pursuing opportunities for forage reserves to accommodate livestock operators during implementation of rehabilitation and restoration activities. Currently, there are no alternative forage reserves identified in the Big Desert during natural recovery of untreated areas, or during rehabilitation and restoration establishment/rest periods for treated sites. These measures would facilitate resource objectives such as providing rest to improve herbaceous cover in certain nesting and brood-rearing areas. Another potential benefit of a forage reserve would be to reduce fuel loads where forage is being under-utilized, in turn reducing the frequency of wildfire and cause sagebrush to reestablish sooner onsite.
Seventeen miles of fences would be installed to establish the forage reserve. Fencing would be within the crested wheatgrass seedings. The proposed projects are all in conformance with IM 2012-043 (Greater Sage-Grouse Interim Management Policies and Procedures). A primary objective of the fence is to benefit greater sage-grouse habitat by increasing sagebrush cover in crested wheatgrass seeding. The fence will [be] no closer than 1.75 miles from the closest known lek and reflectors will be installed to improve fence visibility to sage-grouse. Approximately 2, 800 acres of the proposed forage reserve was homesteaded and farmed in the past, the forage reserve has been seeded into crested wheatgrass multiple times (1952 and 1971). Currently, over 80% of the proposed forage reserve is dominated by crested wheatgrass. The nearest occupied lek is greater than 1.75 miles from the proposed fence. Increased soil surface disturbance and compaction would be expected in a narrow area adjacent to the new fence, as livestock commonly trail along fences more intensively. The portion of the proposed fence located within 2 miles of an active lek would be made more visible by adding reflectors, if subsequent observations determine that sage-grouse are striking the new fence in other locations, the fence would be modified to make it more visible by adding reflectors. The addition of three troughs and wildlife guzzlers would provide a water source for migratory birds and wildlife throughout the spring, summer, and fall. Grazing use in the allotment would only be authorized on a temporary basis to existing BLM operators whose permitted use has been suspended due to fire, vegetation rehabilitation projects, or other causes. The season of use in the allotment would be 4/1-12/30. The expanded season of use in the allotment would give the BLM the flexibility to determine the most appropriate time to graze. Grazing will be used as a tool to improve sage-grouse habitat. Increasing sagebrush would be the primary consideration in determining the authorized annual season of use and amount of use. Permitted AUMs in the new allotment would be 1, 300. The AUMs needed to establish the forage reserve would be removed from the AUMs allocated in the Big Desert Sheep Allotment under the MFP.
The area that would be set aside for the forage reserve has been seeded into crested wheatgrass multiple times (1952 and 1971). By allowing both livestock species to graze within the forage reserve, the diversity of the plant community has potential to increase. The difference in food selection between the two species could reduce the competitive advantage of the crested wheatgrass, which dominates the area. The area of the proposed forage reserve is in priority sage grouse habitat the currently lacks sagebrush plants. Without taking some kind of action the crested wheatgrass seeding will continue to have an absence of sagebrush cover. Sagebrush cover would increase in the forage reserve considerably more in Alterative C than the other alternatives. Pellant and Lysne (2006) show that livestock grazing can facilitate an increase in the diversification of crested wheatgrass or similar seedings. Another benefit of livestock use at the appropriate time and intensity in crested wheatgrass seedings is to facilitate the return of sagebrush. Sagebrush cover in seedings is less under light to moderate spring livestock use, but increases under higher crested wheatgrass utilization levels for the same period of time (Frischknecht and Harris, 1968). The creation of the forage reserve would have a potential long term positive impact to the permittees in the USFO. Permittees in the field office that have been impacted by short term allotment closures, such as fire/non-fire vegetation treatments, wildfire recovery, or an opportunity to provide for a more rapid attainment of Idaho Standards for Rangeland Health in particular allotments or pastures, would have an opportunity to continue grazing on public land instead of reducing their herds or purchasing forage. The potential economic impact on operators authorized to use the forage reserve on a temporary basis would be a savings of between $14, 625 and $128, 245 when comparing the AUM cost for grazing public versus forage cost associated with private pasture or purchase of forage. The construction of boundary/pastures fences, well, pipeline, corral, wildlife guzzlers, and trough sets under Alternative C would result in additional cost incurred by the USFO in order to implement the forage reserve. Impacts to sage-grouse would be minimal due to the bedding area restrictions around leks and anti-collision reflectors being installed on new fence construction.

AR 275-77.

         16. The BLM concluded that the EA and proposed decisions would not have a significant impact on the environment and, on December 3, 2012, sent the EA, the proposed decisions, and the FONSI to all permittees and interested public, including WWP. See Defs.' SOF No. 19 (Docket No. 31) (citing AR 1141 (FONSI), 244-379 (EA and proposed decisions)); see also Intervenor's SOF NO. 6 (Docket No. 35, Att. 1) (citing AR 1089-97).

         17. On December 18, 2012, WWP submitted a protest to BLM's proposed decisions for the Allotment. See Defs.' SOF No. 20 (Docket No. 31) (citing AR 1098-120); see also Intervenor's SOF No. 7 (Docket No. 35, Att. 1) (citing AR 221-43). Interior claims that, “[a]side from a few references to the Allotment in the first couple pages, the majority of the protest complained about broad BLM policies or conditions, or action on other allotments that do not even apply to the Allotment at hand.” Defs.' SOF No. 20 (Docket No. 31) (emphasis added); see also Defs.' Opp./Mem. in Supp., p. 8 (Docket No. 30, Att. 1) (“In sum, it was a mostly generic, cut-and-paste document.”).

         18. For the first time, WWP's protest criticized the BLM's Draft Alternatives, demanding that the BLM ban grazing and that the area be turned into a “reference study area” and “used for carbon sequestration, including intact and functioning microbiotic crusts, and ungrazed and healthy native plant communities.” See Defs.' SOF No. 21 (Docket No. 31) (quoting AR 1098). WWP also complained that the BLM needed to prepare an environmental impact statement (“EIS”) to better consider WWP's new “reference study area” proposal, the “full effects of grazing disturbances, ” and how “the effects of this operation are . . . destroying biodiversity and promoting global warming.” See id.[8] Finally WWP noted its opposition to the infrastructure associated with Alternative C's contemplated forage reserve, explaining that it was inconsistent with sage-grouse conservation. See id. at SOF No. 21 (citing AR 1100).[9]

         E. The BLM's Final Decisions for the Big Desert Sheep Allotment

         19. After considering WWP's protest, the BLM reconsidered the EA. Then, on February 6, 2013, final decisions were issued to the 15 separate permittees. See Defs.' SOF No. 23 (Docket No. 31) (citing AR 43-208); see also Intervenor's SOF No. 8 (Docket No. 35, Att. 1) (citing AR 43-53). As in the proposed decisions, the BLM's final decisions selected Alternative C. See Defs.' SOF No. 23 (citing, e.g., AR 69). Each final decision specifically relied on the findings outlined in the EA, explaining that implementation of Alternative C would allow the Allotment to continue to meet or make significant progress toward meeting Standards 1, 4, 5, and 8. See id. at SOF No. 23 (citing, e.g., AR 72); compare with AR 275-77 (identical rationale for proposed decisions). The final decisions also explained why the BLM wanted to create the new forage reserve and why the new infrastructure associated with the forage reserve was consistent with conservation plans/strategies relative to sage-grouse populations. See Defs.' SOF No. 23 (Docket No. 31) (citing, e.g., AR 72-73).

         20. Moreover, the final decisions addressed some of the concerns raised in WWP's protest. See id. at SOF No. 24 (citing, e.g., AR 65-68). For example, the BLM said that WWP had failed to participate in the permit renewal process at key moments, and raised issues (like riparian problems) that did not even apply to the Allotment. See id. at SOF No. 24 (citing, e.g., AR 66-68); see also supra (discussing WWP's May 29, 2012 letter).

         F. WWP Appeals the BLM's Final Decisions for the Big Desert Sheep Allotment

         21. On or around March 8, 2013, WWP appealed and petitioned for a stay of all 15 final grazing decisions for the Allotment to the OHA. See Defs.' SOF No. 25 (Docket No. 31) (citing AR 484-86); see also Intervenor's SOF No. 9 (Docket No. 35, Att. 1) (citing AR 4-42). According to Intervenors, WWP did not serve its appeal to Etcheverry Sheep Company or other persons named ...


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