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Western Watersheds Project v. Schneider

United States District Court, D. Idaho

October 16, 2019

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 U.S. District Court Judge.

         INTRODUCTION

         The Court has before it the plaintiffs' motion for preliminary injunction to enjoin the Federal Defendants from implementing the 2019 BLM Sage-Grouse Plan Amendments. The Court heard oral argument on the injunction motion and took it under advisement. For the reasons explained below, the Court will grant the motion.

         LITIGATION BACKGROUND

         The original complaint in this case was brought by four different environmental groups challenging fifteen Environmental Impact Statements (EISs) issued in 2015 that govern land covering ten western states. The gist of plaintiffs' lawsuit was 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 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).

         Early in the case, the BLM filed a motion to sever and transfer arguing that, for example, the challenge to the Utah Plan should be transferred to Utah and the challenge to the Nevada Plan should be transferred to Nevada. The Court denied the motion, reasoning that “plaintiffs made overarching claims that applied to each EIS and RMP and required a range-wide evaluation that extended beyond the boundaries of any particular court.” See Memorandum Decision (Dkt. No. 86).

         As this litigation was underway, the Trump Administration came into office and began a process to review and revise the 2015 Sage-Grouse Plans. This litigation was put on hold pending that review. In 2017 that review was completed, and as a result, WWP alleges, Interior Secretary Ryan Zinke directed agencies to relax restrictions on oil and gas development in sage grouse habitat. The BLM responded by issuing amendments to the Sage Grouse Plans (referred to as the 2019 Plan Amendments). Plaintiffs supplemented their complaint to challenge the BLM's 2019 Amendments, alleging that the agency - acting at the direction of the Trump Administration - again made common errors across numerous Plans, including (1) failing to take a range-wide analysis, (2) failing to evaluate climate change impacts, and (3) generally removing protections for the sage grouse that were unjustified by science or conditions on the ground.

         The Utah and Wyoming intervenors responded by filing a motion to transfer, arguing that the circumstances have changed since the Court denied the BLM's motion discussed above.[1] The intervenors argued that the interests of justice and the interests of local concerns justified transferring, for example, the Utah Plan challenges to Utah and the Wyoming Plan challenges to Wyoming. The intervenors argued that the challenges in this case are Plan-specific and will be unique to each State.

         The Court disagreed and denied their motions. See Memorandum Decision (Dkt. No. 181). The Court reasoned that their motions ignored the allegations of plaintiffs' complaint. Plaintiffs allege that the challenged Plans suffer from common failings that did not result entirely from errors of local Field Offices but rather were heavily influenced by directions from the Trump Administration and the Interior Secretary. Transferring these cases to various States would require plaintiffs to make duplicative arguments and courts to render duplicative - and perhaps conflicting - decisions. The Court did not agree with intervenors that circumstances have changed since the Court denied the Government's earlier motion to sever and transfer.

         The Government filed a motion to dismiss or transfer, arguing that this Court was not the proper venue for resolving plaintiffs' challenges to the 2019 Plan Amendments. The Court disagreed, finding that venue was proper under 28 U.S.C. § 1391(e)(1)(C).

         The plaintiffs now seek to enjoin the BLM from implementing the 2019 Plan Amendments. The Court will resolve this challenge after reviewing the facts set forth in the record.

         FACTS

         Sage Grouse Decline

         This Court has written extensively on the decline of sage grouse populations and habitat. Despite these declines the Fish and Wildlife Service (FWS) in 2005 determined that a listing under the Endangered Species Act (ESA) was “not warranted.” The Court reversed that decision, finding that it ignored declines in population and habitat, and was not based on the best science as required. See WWP v. FWS, 535 F.Supp.2d 1173 (D. Idaho 2007). The Court remanded the case to the FWS for further consideration.

         On remand, the FWS issued a new finding in 2010 that the ESA listing was “warranted-but-precluded.” See 75 Fed. Reg. 13910 (March 5, 2010). That finding stressed the inadequacy of federal land use plans to protect sage-grouse, particularly from energy development impacts. Id. at 13, 942. The FWS's determination prompted the BLM and Forest Service, along with several States, to consider protections for the sage grouse to avoid a future ESA listing.

         National Greater Sage Grouse Planning Strategy

         The BLM and Forest Service launched their National Greater Sage-Grouse Planning Strategy in 2011 to amend federal land use plans with sage-grouse conservation measures to avoid ESA listing. To guide that Strategy, a National Technical Team of sage-grouse experts was convened and released their “Report on National Greater Sage-grouse Conservation Measures” (NTT Report) in December 2011. This Court found - after an evidentiary hearing and testimony from sage grouse expert Dr. Clait Braun - that the NTT Report “contains the best available science concerning the sage-grouse.” See WWP v. Salazar, 2012 WL 5880658, at *2 (D. Id. Nov. 20, 2012).

         The NTT Report emphasized the protection of priority sage grouse habitats and the need for buffers around sage grouse leks. The NTT report stated that the “overall objective is to protect priority sage-grouse habitats from anthropogenic disturbances that will reduce distribution or abundance of sage grouse.” See NTT Report, at 7. It identified priority sage-grouse habitats as “breeding, late brood-rearing, winter concentration areas, and where known, migration or connectivity corridors.” Id. The NTT Report recommended closing these priority sage-grouse habitat areas to oil and gas or other mineral leasing, concluding that “[t]here is strong evidence . . . that surface-disturbing energy or mineral development within priority sage-grouse habitats is not consistent with the goal to maintain or increase populations or distribution.” Id. at 19.

         With regard to lek buffers, the NTT Report found that BLM's existing 0.25 mile “No Surface Occupancy” (NSO) buffers around sage-grouse leks and 0.6 mile seasonal timing buffers were inadequate to protect sage-grouse, stating that “protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer” and even that “would not be large enough to offset all the impacts” of energy development. Id. at 21.

         In March 2013, FWS released its own report entitled the “Conservation Objectives Team Report” (COT Report) that identified “Priority Areas for Conservation” (PACs) as “key habitats necessary for sage-grouse conservation.” See COT Report (WO AR 1492), at 13. The COT Report emphasized that “[m]aintenance of the integrity of PACs . . . is the essential foundation for sage-grouse conservation, ” but recognized that “habitats outside of PACs may also be essential, ” including to provide connectivity between PACs. Id. at 13, 36. In October 2014, FWS identified a sub-category of the PACs as sage-grouse “stronghold” areas, which were the basis for the “Sagebrush Focal Areas” (SFAs) designated in the 2015 Plans for highest protection from energy development and other surface disturbance. See WO AR 1490.

         2015 Plans

         In 2015, the BLM and Forest Service adopted Sage-Grouse Plans that covered ten States, revised 98 federal land use plans, and incorporated many of the NTT and COT Reports' recommendations, such as restrictions to prevent or minimize surface disturbances in priority habitats, and requirements of compensatory mitigation for unavoidable adverse impacts to sage-grouse habitats. See, e.g., BLM Great Basin ROD, at S-1 to S-2 and 1-1 to 1-41.2 As called for in the NTT and COT Reports, the 2015 Plans established new sage-grouse priority habitat designations with heightened management protections across some 67 million acres of federal land, including “Priority Habitat Management Areas” (PHMAs) - of which SFAs are a subset - and “General Habitat Management Areas” (GHMAs), along with other priority habitats in certain states (including “Important Habitat Management Areas, ” or IHMAs, in Idaho). Id. PHMAs are “lands identified as having the highest value to maintaining sustainable GRSG populations, ” and “largely coincide with areas identified as PACs in the COT Report.” See Great Basin ROD at 1-15. GHMAs are “GRSG habitat that is occupied seasonally or year-round . . . where special management would apply to sustain GRSG populations.” Id.

         2015 FWS Finding

         The protections for sage grouse contained in the 2015 Plans of the BLM and Forest Service convinced the FWS to revise its 2010 finding that an ESA listing was “warranted but precluded” to a finding that listing was “not warranted.” The FWS explained this change as follows:

Since 2010, there have been several major changes in the regulatory mechanisms that minimize impacts to sage-grouse and their habitats. Foremost among these are the adoption of new Federal Plans specifically tailored to conserving sage-grouse over more than half of its occupied range. These Federal Plans now include substantial provisions for addressing activities that occur in sage-grouse habitats and affect the species, including those threats identified in 2010 as having inadequate regulatory measures. Aside from addressing specific activities, the Federal Plans include provisions for monitoring, adaptive management, mitigation, and limitations on anthropogenic disturbance to reduce impacts authorized in sage-grouse habitats. The Federal Plans are the foundation of land-use management on BLM and USFS managed lands. We are confident that these Federal Plans will be implemented and that the new changes, which are based on the scientific literature, will effectively reduce and minimize impacts to the species and its habitat.

See 80 Fed. Reg. at 59, 887. The FWS was particularly impressed that the 2015 Plans followed the “COT Report and NTT guidance [by] restricting impacts in the most important habitat [thereby] . . . ensur[ing] that high-quality sage grouse lands with substantial populations are minimally disturbed and sage grouse within this habitat remain protected.” Id. at 80 Fed. Reg. 59, 882.

         The FWS also relied on provisions in the 2015 Plans ensuring that unavoidable adverse impacts from energy development and other BLM-approved actions would be offset by off-site mitigation to provide a net gain to the species: “Requiring mitigation for residual impacts provides additional certainty that, while impacts will continue at reduced levels on Federal lands, those impacts will be offset to a net conservation gain standard”. See 80 Fed. Reg. at 59, 881.

         2019 ...


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