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Western Watersheds Project v. Zinke

United States District Court, D. Idaho

September 27, 2018

WESTERN WATERSHEDS PROJECT, Plaintiff,
v.
RYAN ZINKE, 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.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it the BLM's motion to reconsider, and WWP's motions to file a supplemental complaint and to require the BLM to issue certain decisions. The motions are fully briefed and at issue. For the reasons described below, the Court will grant the BLM's motion to reconsider, deny WWP's motion to file a supplemental complaint, and grant in part WWP's motion to require the BLM to issue certain decisions.

         Motion to Reconsider

          In this lawsuit, WWP challenges some 600 BLM decisions to allow grazing that allegedly failed to protect sage grouse. 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 motions, the Court found that the BLM's environmental reviews of five allotments in the Bruneau and Owyhee Field Offices were insufficient under the law. In the second round, the Court found that reviews of four other allotments within the Burley Field Office were similarly insufficient.

         Specifically, in the second round, the Court granted WWP's motion for summary judgment on the following issues: (1) the Environmental Assessment (EA) evaluating the four allotments at issue violated NEPA; (2) the final grazing decisions at issue for the four allotments violated the Fundamentals of Rangeland Health (FRH) regulations; and (3) the grazing rider contained in § 325 of Public Law 108-108 tolled BLM's obligation to proceed with environmental obligations imposed by laws like NEPA, but carved out an exception for FLPMA and requires a continuing obligation to follow that statute.[1]

         This last finding was crucial. The BLM's Burley Field Office had been using the grazing rider to renew grazing permits without doing any NEPA or FLPMA review in 168 of 200 allotments since 2005, including the four allotments at issue here. The BLM argued that § 325 tolls the BLM's deadline to comply with all applicable laws, including NEPA and FLPMA, to allow the BLM to catch up on a massive backlog of environmental reviews.

         The BLM asks the Court to reconsider that decision carving out an exception for FLPMA in § 325. The BLM argues that the language of § 325 tolls the time for the BLM to conduct the environmental reviews required by “all applicable laws and regulations” and hence does not carve out an exception for FLPMA.

         In the Court's prior decision, it began its analysis by noting that in previous cases, the BLM had argued that § 325 completely absolved it from following NEPA and FLPMA in renewing permits. See WWP v. Bennett, 2008 WL 2003114 (D. Id. 2008). The Court rejected that argument, holding that nothing in § 325 allowed the BLM to ignore NEPA and FLPMA entirely. Id.

         The BLM subsequently changed its argument from waiver to tolling, arguing that § 325 merely tolls the time for NEPA and FLPMA review by allowing that review to come after the permit is renewed. In considering this new argument, the Court found the conclusions of two district court decisions cited by the BLM - that § 325 tolled NEPA claims, among others - to be persuasive. See WWP v. BLM, 629 F.Supp.2d 951 (D. Ariz. 2009); Great Old Broads for Wilderness v. Kempthorne, 452 F.Supp.2d 71 (D.D.C. 2006). Both cases held that in § 325, Congress granted a grace period to the BLM, allowing it to renew certain expiring permits without doing the environmental reviews required by NEPA, among other statutes. However, neither case specifically considered whether § 325 tolled the required review under FLPMA. Because § 325 states that expiring permits “shall be renewed under [FLPMA], ” the Court reasoned that § 325 carved out an exception for a FLPMA review, maintaining the requirement that the FLPMA review be done before the expiring permit could be renewed. See Memorandum Decision (Dkt. No. 265) at p. 20.

         The BLM now asks the Court to reconsider that decision, arguing, among other things, that the Court's decision was contrary to the plain language of § 325. The Court begins its analysis by examining once again the language of § 325:

SEC. 325. A grazing permit or lease issued by the Secretary of the Interior . . . that expires, is transferred, or waived during fiscal years 2004-2008 shall be renewed under section 402 of the Federal Land Policy and Management Act of 1976, as amended (43 U.S.C. 1752) . . . The terms and conditions contained in the expired, transferred, or waived permit or lease shall continue in effect under the renewed permit or lease until such time as the Secretary of the Interior . . . completes processing of such permit or lease in compliance with all applicable laws and regulations, at which time such permit or lease may be canceled, suspended or modified, in whole or in part, to meet the requirements of such applicable laws and regulations. Nothing in this section shall be deemed to alter the statutory authority of the Secretary of the Interior or the Secretary of Agriculture . . . . Provided further, That notwithstanding section 504 of the Rescissions Act (109 Stat. 212), the Secretaries in their sole discretion determine the priority and timing for completing required environmental analysis of grazing allotments based on the environmental significance of the allotments and funding available to the Secretaries for this purpose. . . .

         The key language of § 325 requires that expiring permits “shall be renewed under § 402 of [FLPMA], ” and that the existing terms and conditions shall “continue in effect under the renewed permit” until BLM can complete the processing of the permits under “all applicable laws and regulations.” The phrase “shall be renewed under § 402 of [FLPMA]” could, standing alone, mean either that the permit should not be renewed until its compliance with FLPMA was determined (as the Court initially interpreted it) or that the permit should be renewed even if the FLPMA review had not yet been done. The latter meaning makes the most sense upon reconsideration, and this becomes apparent by focusing on what is held in abeyance by the statute. Section 325 makes it clear that the permit's existing terms shall continue in effect until the BLM can complete the processing of the permit under “all applicable laws and regulations.” That phrase is certainly broad enough to include FLPMA. See WWP, 629 F.Supp.2d at 969 (rejecting WWP's argument that the phrase “all applicable laws and regulations” should be read narrowly to include only NEPA and other procedural statutes). Thus, Congress was not carving out an exception for FLPMA but was in fact sweeping it into the broad category of environmental reviews that would be held in abeyance while the permits were renewed. Great Old Broads, 452 F.Supp.2d at 81 (holding that by the language of § 325, “Congress amended ‘all applicable laws' to require reissuance of expired, transferred or waived grazing permits prior to the completion of otherwise required actions”).

         WWP argues that this interpretation constitutes an implied repeal of environmental statutes. It is true that “statutory repeals by implication are disfavored.” TennesseeValley Authority v. ...


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