United States District Court, D. Idaho
WESTERN WATERSHEDS PROJECT, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, and PRAIRIE HILLS AUDUBON SOCIETY, Plaintiffs,
JANICE SCHNEIDER, Assistant Secretary of Interior; BUREAU OF LAND MANAGEMENT; and U.S. FOREST SERVICE, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
Court has before it a motion to sever and transfer filed by
defendants Bureau of Land Management and the Forest Service.
The motion is fully briefed and at issue. For the reasons
explained below, the Court will deny the motion.
2015, the Forest Service joined the Bureau of Land Management
(BLM) in carrying out the National Planning Strategy to
update the protections for the sage grouse. The Strategy
divided the sage grouse's range in two Regions and 15
Sub-Regions. For each Sub-Region, the BLM Field Office in
that geographic area prepared an Environmental Impact
Statement (EIS). From each EIS, a Record of Decision (ROD)
was made, leading to amendments or revisions of that
area's Resource Management Plan (RMP). Thus, the National
Planning Strategy resulted in a total of 15 EISs and 5 RODs
that amended 98 RMPs. As a result of the National Planning
Strategy, the Fish and Wildlife Service issued a decision
that the listing of the sage grouse was not warranted under
the Endangered Species Act. See 80 Fed. Reg. 59, 858
(Oct. 2, 2015).
different environmental groups have brought this lawsuit to
challenge all 15 EISs that govern land covering ten western
states. The gist of plaintiffs' lawsuit is that the BLM
and Forest Service artificially minimized the harms to sage
grouse by segmenting their analysis into 15 sub-regions
without conducting any range-wide evaluation - the agencies
looked at the trees without looking at the forest, so to
speak. The plaintiffs have brought their claims under the
National Environmental Policy Act (NEPA), the Federal Land
Policy and Management Act (FLPMA), and the National Forest
Management Act (NFMA).
specifically, plaintiffs allege that each EIS failed to
consider, among other things, (1) the cumulative impacts of
the activities allowed by the 5 RODs across the entire range
of the sage grouse; (2) the effects of climate change, and
(3) whether isolated sage grouse populations would be
connected with key populations across their entire range.
These three claims listed above apply to each EIS and will be
referred to by the Court as plaintiffs'
“overarching” claims, for ease of reference. In
support, plaintiffs will be submitting the entire
Administrative Record for all 15 EISs.
are five other courts hearing challenges to some of the same
EISs and RMPs challenged here. Courts in Utah, Wyoming, North
Dakota, Nevada, and Washington D.C. are currently considering
these challenges. Each of those cases was brought by
entities seeking to remove protections for sage grouse.
Environmental groups have intervened as defendants in most of
the cases. However, all of those groups limit their arguments
to countering the attempt to overturn sage grouse
protections; none of them make the overarching claims made by
plaintiffs here seeking even greater protections for sage
has filed a motion to sever and transfer plaintiffs'
claims to the other five courts. For those claims challenging
RMPs in states where litigation has been filed - Utah,
Nevada, Wyoming, and North Dakota - the BLM seeks to carve
off plaintiffs' claims pertaining to each of those states
and transfer them there. For example, plaintiffs'
challenge to the Utah RMP would be transferred to the Utah
litigation, the challenge to the Nevada RMP would be
transferred to the Nevada litigation, and so on. For those
claims challenging RMPs in states where no litigation has
been filed - Colorado, Oregon, Montana, and South Dakota -
the BLM proposes transferring them to the Washington D.C.
the BLM proposes transferring plaintiffs' challenges to
the Idaho RMP to the Washington D.C. litigation known as
Otter v. Jewell, brought by the State of Idaho to
overturn some plan provisions as over-protective. While the
BLM concedes that plaintiffs' Idaho challenge could be
litigated here, it argues that “the Otter case
was filed earlier and has already proceeded to summary
judgment briefing [so] it would be more efficient to brief
additional claims regarding that sub-region in the District
of Columbia.” See BLM Brief (Dkt. No. 46-1) at
p. 4. But the Otter case was recently dismissed, as
will be discussed further below. See Otter v.
Jewell, 2017 WL 61924 (D.D.C. Jan. 5, 2017).
argues that leaving plaintiffs' claims in this Court will
risk exposing the agency to conflicting decisions if, say,
the Utah court's evaluation of the Utah RMP differs from
that of this Court. A transfer will also, the BLM asserts,
send most of the RMP challenges to courts sitting in the
state affected by the RMP at issue.
Court faced similar issues in WWP v. Salazar, 2009
WL 1299626 (D.Idaho May 7, 2009). There, WWP claimed that the
BLM was not protecting the sage grouse, and challenged 18
Environmental Impact Statements (EISs) prepared by 18
separate BLM offices in six different states: (1) Idaho; (2)
Montana; (3) Utah; (4) California; (5) Wyoming; and (6)
Nevada. Each EIS supported a Resource Management Plan (RMP)
governing that BLM district. WWP argued that each of these 18
EISs suffered from the same two flaws. First, each EIS
allegedly rejected a “no grazing” alternative as
unlawful - that is, each agency concluded that it had no
legal authority to consider a “no grazing”
alternative. Second, each EIS allegedly failed to consider
the cumulative effects of livestock grazing and climate
change, among other impacts.
sought to either dismiss the entire action or transfer each
non-Idaho claim to the state corresponding to the RMP. The
BLM pointed out that the alleged shortcomings of the RMPS -
rejecting a no-grazing alternative and ignoring impacts of
grazing and climate change - had never been expressly adopted
by the BLM and applied across-the-board to each EIS. That
precluded WWP from making a generic argument that avoided
evaluation of each separate EIS, and required that the action
be dismissed, argued the BLM, citing Lujan v. National
Wildlife Federation,497 U.S. 871 (1990). The Court
rejected that argument, however, holding that WWP's
complaint made just the sort of discrete individualized
challenge required by Lujan: “The complaint,
read broadly, challenges the separate decisions of ...