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Western Watersheds Project v. Schneider

United States District Court, D. Idaho

March 3, 2017

WESTERN WATERSHEDS PROJECT, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, and PRAIRIE HILLS AUDUBON SOCIETY, Plaintiffs,
v.
JANICE SCHNEIDER, Assistant Secretary of Interior; BUREAU OF LAND MANAGEMENT; and U.S. FOREST SERVICE, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge

         INTRODUCTION

         The 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.

         LITIGATION BACKGROUND

         In 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).

         Four 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).

         More 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.

         There 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.[1] 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 grouse.[2]

         The BLM 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. litigation.

         Finally, 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).

         The BLM 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.

         ANALYSIS

         This 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.

         The BLM 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 ...


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