The 9th Circuit Court of Appeals has sided with environmental and wildlife organizations in ruling the Bureau of Land Management violated the law in issuing 2006 Bush-era amendments to the grazing regulations. 43 C.F.R. Part 4100 et seq.. See 71 Fed. Reg. 39,402.
The case was brought by Plaintiffs Western Watersheds Project; Ralph Maughan; Idaho Wildlife Federation; Idaho Conservation League; Natural Resources Defense Council; National Wildlife Federation, who argued that the BLM violated the National Environmental Policy Act (NEPA), 42 U.S.C. Â§Â§ 4331 et seq.,by failing to take the required "hard look" at the environmental effects of the revised regulations:
"(1) The 2006 regulations substantially reduce public oversight and consultation in the management of grazing on public rangelands;
"(2) The 2006 Regulations eliminate the Fundamentals of Rangeland Health, leaving only the Standards and Guidelines as enforceable standards. 43 C.F.R. Â§ 4180.2(c)(1). The 2006 Regulations extend the time for the BLM to take corrective measures to violations of the Standards and Guidelines from "as soon as practicable" or by the start of the next grazing year to 24 months. 43 C.F.R. Â§ 4180.2(c)(1)(i). The 2006 Regulations also increase the amount of monitoring required before the BLM can enforce the Standards and Guidelines. Prior to initiating an enforcement proceeding, the 2006 Regulations require that the BLM gather baseline monitoring data to determine "that existing grazing management practices or levels of grazing use on public lands are significant factors in failing to achieve the standards and conform with the guidelines" and only multi-year BLM data (not all available data as provided in the 1995 Regulations) may be considered. Id. Â§4180.2(c)(1); and
"(3) Under the 2006 regulations, ranchers would share title with the federal government to permanent range improvements. Compare 43 C.F.R. Â§ 4120.3-2 (1995), with 43 C.F.R. Â§ 4120.3-2, whereas previously the United States retained title to the public lands including permanent improvements. With respect to water rights, under the 1995 Regulations, to the extent allowed by state law, the right to any water on public lands was held by the United States. 43 C.F.R. Â§ 4120.3-9 (1995). Under the 2006 Regulations, to the extent permitted by state law, ranchers, not the United States, acquire and hold water rights on public lands. 43 C.F.R. Â§ 4120.3-9." A huge giveaway by BLMÂ of the public lands to private ranchers.
The plaintiffs also said BLM failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) which requires "avenues for public input in the planning and management of the public lands". Â The plaintiffs argued the "2006 regulations-limiting input and eliminating it entirely from certain management decisions-were in direct and unreasonable disregard of that [FLMPA]… requirement."
The 9th Circuit Court of Appeals upheld the District Court decision in favor of the plaintiffs that BLM violated NEPA and the ESA. W. Watersheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302, 1324 (D. Idaho 2008). The Appeals Court found the lower court did not consider the FLMPA claim under the proper standard and remanded that for further review.
It should be noted the BLM did not actually challenge the District Court’s decision on appeal.Â Instead, it was the intervenors, Public Lands Council and the American Farm Bureau Federation, that pursued the appeal – and lost.
BLM, in fact, filed an amicus brief in support of Plaintiffs’ challenge to the intervenors’ standing. The intervenors also challenged Plaintiffs’ standing and said their claims were not ripe. The Court found both parties have standing and the plaintiffs’ claims were ripe.
Development of Grazing Regulation
"Prior to 1934, the public rangelands were unregulated and ranchers freely grazed livestock on the publicly owned range. See Public Lands Council v. Babbitt, 529 U.S. 728, 731 (2000). Lack of oversight, â€˜[p]opulation growth, forage competition, and inadequate range control all began to have consequences both serious and apparent’ for the western rangelands. Id. at 733. Over-grazed and suffering from a terrible drought, the range was swept by dust storms. â€˜The devastating storms of the Dust Bowl were in the words of one Senator â€˜the most tragic, the most impressive lobbyist, that ha[s] ever come to this Capitol.’ â€˜ Id. (quoting 79 Cong. Rec. 6013 (1935)) (alteration in original).
"On June 28, 1934, President Franklin Roosevelt signed the Taylor Grazing Act, 43 U.S.C. Â§ 315 et seq., into law authorizing the Secretary of the Interior, for the first time, to manage the rangelands and divide them into regulated grazing districts. Id. The Taylor Grazing Act’s stated purpose was both to â€˜stop injury to the public grazing lands by preventing overgrazing and soil deterioration," 48 Stat. 1269, and to "promote the highest use of the public lands.’ 43 U.S.C. Â§ 315.
"To manage and oversee the division of the public rangelands into grazing districts, the Department of Interior created district advisory boards comprised of local ranchers. Public Lands Council, 529 U.S. at 734. The boards became the effective governing body of each grazing district. Id. Nearly three decades after the enactment of the Taylor Grazing Act, however, the Department of Interior had failed to achieve the first of the Act’s stated goals, namely, to halt the degradation of the public grasslands. Id. at 737. In 1962, 83.4 percent of the public grasslands remained in fair or poor condition. Id.
"In 1976, Congress enacted FLPMA, 43 U.S.C. Â§ 1701 et seq. The stated purpose of FLPMA was to manage the grasslands for â€˜multiple use,’ id. Â§ 1701(a)(7), with an increased emphasis on the management of the public lands â€˜in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.’ Id. Â§ 1701(a)(8).
"In 1978, to comply with the new law, the Department of the Interior amended its grazing regulations. Public Lands Council, 529 U.S. at 738 (citing 43 Fed. Reg. 29,067). Thereafter, the grazing amendments went largely unchanged until 1995. In 1995, the Department of Interior amended the federal grazing regulations in order to, among other objectives, broaden membership on the district advisory boards, â€˜improve administration of grazing permits and leases, to place greater emphasis on stewardship of the rangeland resource,’ and â€˜to manage the rangeland resource using an ecological approach.’ 58 Fed. Reg. 43,208; see Public Lands Council, 529 U.S. at 739.
"Public Lands Council and other ranching-related organizations with members who held grazing permits sued the Secretary, challenging the new regulations and arguing that they exceeded the Secretary’s authority under the Taylor Grazing Act. Public Lands Council, 529 U.S. at 739. The Supreme Court held that the amendments did not exceed the Secretary’s authority under the Act, and the 1995 amendments went into effect (hereinafter the 1995 Regulations). Id. at 743, 748, 750; see 43 C.F.R. Â§ 4100 et seq. (1995).
The 2006 Regulatory Changes
"In 2002, the Secretary of the Interior began efforts once again to amend the regulations governing BLM’s oversight of livestock grazing on public lands. See W. Watersheds Project, 538 F. Supp. 2d at 1306-07. Â A BLM internal report titled the Administrative Review Copy Draft EIS (ARCDEIS), Â criticized the new regulations, concluding that if put into effect the changes will cause â€˜a slow long-term adverse effect on wildlife and biological diversity in general.’ AR 68006. In December 2003, undeterred, the BLM proceeded to publish the proposed regulations and seek public comment. The BLM assembled a separate team to write the Final Environmental Impact Statement required by NEPA. The Final EIS team made substantial changes to the ARC-DEIS and deleted without comment the ARCDEIS’s conclusion that the proposed changes would have adverse impacts on wildlife, biological diversity, and riparian habitats. See W. Watersheds Project, 538 F. Supp. 2d at 1308.
The Court found in issuing the regulations, "the BLM gave short shrift to a deluge of concerns from its own experts, FWS, the EPA, and state agencies; the BLM neither responded to their considered comments "objectively and in good faith" nor made responsive changes to the proposed regulations. Id. "[P]ublic scrutiny [is] essential to implementing NEPA," 40 C.F.R. Â§ 1500.1(b), and the BLM was required to "assess and consider . . . both individually and collectively" the public comments received during the NEPA process and to respond to such in its Final EIS. Id. Â§ 1503.4(a)…We therefore conclude that the BLM violated NEPA by failing to take a "hard look" at the environmental consequences of the proposed regulatory amendments."
The Court also noted BLM planned to monitor only 16% of the allotments. "Having no monitoring data on the vast majority of the land the BLM monitors, and offering no corroborating scientific evidence, the assertion that the 16% Â finding is representative is unsupported. … 16% of all BLM public rangelands still amount to over 25 million acres. The Final EIS does not consider the environmental impact on the over 25 million acres of affected public rangelands of the requirement, under the 2006 Regulations, that monitoring data be collected by the agency prior to bringing an enforcement action."
"Furthermore, the BLM failed to consider the combined and synergistic effects of the proposed amendments. For example, the reduction of public participation in various grazing management and permitting decisions is logically compounded by the increased difficulty in maintaining â€˜interested public’ status as to a given allotment in the first place. Similarly, the dual changes of reducing the data that must be considered when monitoring an allotment, and permitting enforcement actions to be brought only where there is available monitoring data, combine synergistically to reduce enforcement significantly. Furthermore, phased in reductions of corrective measures, delayed corrective actions, and the requirement that monitoring data be available before corrective action is taken each delays enforcement and impedes agency responsiveness. Together, the effects of these changes are even more dramatic, resulting in greater delay and greater environmental impact. As the BLM’s own experts noted, â€˜these cumulative delaying tactics could result in a protracted 7 year period for full implementation and change" and therefore â€˜would result in long-term, adverse impact upon wildlife resources.’ AR 68008. We agree with the district court that the BLM violated the procedural requirements of NEPA and failed to take a â€˜hard look’ when it failed to consider the combined effects of the 2006 Regulations.
"Finally, we note that the Final EIS offers no reasoned explanation for the BLM’s change of policy from the 1995 Regulations. …Here, the BLM decreased its regulatory authority over rangeland management, decreased the role of the public in overseeing that management, and granted [ranchers]… increased ownership rights. These changes are inconsistent with the 1995 Regulations and discordant with the lessons learned from the history of rangeland management in the west, which has been moving towards multiple use management and increased public participation. The BLM itself acknowledges in the Final EIS that public input helps identify environmental impacts….
"Nonetheless, the BLM makes substantial reductions in the avenues for public input because, as the BLM explains, such input is at times â€˜inefficient’ and â€˜redundant.’ Appendix FEIS at 37. The BLM’s rationale falls short of the requirements of NEPA and the APA. …In short, the BLM’s Final EIS has not provided a â€˜full and fair discussion’ of the environmental impacts of the proposed regulatory changes, 40 C.F.R. Â§ 1502.1, impairing both the ability of the BLM to reach a reasoned decision and the ability of the â€˜larger audience’ to play an effective role in the decisionmaking process."
Endangered Species Act
The "BLM concluded that the proposed 2006 Regulations would have no effect on endangered or threatened species or their critical habitat and, therefore, did not consult with FWS."
"The heart of the ESA is section 7(a)(2), 16 U.S.C.Â§ 1536(a)(2). Section 7(a)(2) requires a federal agency to "insure that any action authorized, funded, or carried out" by the agency "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. Â§ 1536(a)(2); see Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018 (9th Cir. 2009). Section 7(b), a procedural component of the ESA, requires a federal agency to complete formal consultation with FWS if the agency determines that any action on its part â€˜may affect’ any listed species or critical habitat. 16 U.S.C. Â§ 1536(a)(2)-(c); 50 C.F.R. Â§ 402.14(a); see Cal. ex rel. Lockyer, 575 F.3d at 1018….
"The sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments â€˜may affect’ a listed species or its critical habitat. The BLM’s grazing regulations affect roughly 160 million acres of public lands, home to hundreds of special status species. Indeed, because of the sheer number of special status species present on those 160 million acres, the BLM lists the names of all the special status species in the West in the Final EIS. Final EIS at Appendix 1. The list includes over 300 special status species: 30 species of birds; 49 species of fish; 39 species of mammals; 137 species of plants; 8 species of snails; 10 species of crustaceans; 6 species of reptiles; 15 species of insects; and 11 species of amphibians that are endangered, threatened, or candidate species in the West. Id. (containing a 35 page table that lists identified special status species). Presumably and logically, the BLM listed these species-over 300- because many of them are found on the affected 160 million acres. Still, the BLM maintains-contrary to the experts’ reports-that the regulatory changes will not affect so much as one special status species, animal or plant, or its habitat. Furthermore, we find it significant that FWS, the agency that â€˜is primarily responsible for protecting endangered species," and that has what we have previously referred to as â€˜the more appropriate expertise,’ concluded that the 2006 Regulations would affect status species and their habitat. …
"With respect to the change in water ownership, FWS reasoned that "private water users seeking exclusive control of a water source on public lands for livestock grazing purposes would reduce habitat quality (for wildlife)" and that this would "have a slow, long-term adverse effect on wildlife as a whole and biological diversity in general." AR 68070 (quoting the Bureau of Land Management, Rangeland Reform â€˜94: Final Environmental Impact Statement (1994)).
"Not only FWS but also the BLM’s own scientists advised the agency that Section 7 consultation was necessary."Â The court concluded, "In sum, there is resounding evidence from agency experts that the eighteen amendments to the BLM’s grazing regulations, i.e. the 2006 Regulations, â€˜may affect’ listed species and their habitat. The requirement that a federal agency considering action consult with FWS is triggered under the ESA if that proposed action â€˜may affect’ listed species. Cal. ex rel. Lockyer, 575 F.3d at 1018.
"Because the BLM failed to consider relevant expert analysis or articulate a rational connection between the facts found and the choice made, we conclude that the BLM’s no effect finding and resulting failure to consult were arbitrary and capricious in violation of the BLM’s obligations under the ESA. See National Ass’n of Home Builders, 340 F.3d at 841."
The case is No. 08-35360.