Court decision favors WWP, faults BLM

Jan 21, 2011

 Grazing permittees in central Idaho’s Pahsimeroi Valley will have an anxious year ahead. This is the amount of time the Challis District Bureau of Land Management (BLM) office has been given by an Idaho district judge to revise their National Environmental Protection Act (NEPA) analysis on reissuing four grazing permits, which together total over 48,000 acres. A recent ruling found that the BLM’s environmental assessment (EA) of grazing impacts on the Grouse Creek, Trail Creek, Meadow Creek, and Rock Creek allotments in the Pahsimeroi River valley violated NEPA on three counts. If the BLM’s revision is again considered inadequate, permittees will be stuck looking for other grazing options in 2012.

For permittees, these are the unhappy facts issuing from the Jan. 5 decision of Idaho District Judge Edward Lodge in response to a suit brought by the Hailey, ID-based anti-grazing group Western Watersheds Project (WWP). WWP alleged that BLM had failed to adequately assess impacts of grazing to the bull trout, as well as failing to consider a “no grazing” alternative in its planning process. WWP further alleged that BLM did not analyze the cumulative impacts of their decision to reissue the permits.

Lodge ruled in WWP’s favor on all three counts, vacating BLM’s decision to reissue the permits.

In the meantime, grazing will continue while BLM is given a chance to comply. Stated Lodge, “[I]n the interest of equity, the Court will order BLM to allow grazing consistent with the invalidated permits’ terms and conditions … for up to one year. …With this remedy, the Court seeks to hold BLM accountable for their land- management responsibility without unduly burdening the affected permittees. …the Court seeks only to allow the permittees some additional time to plan for future operations in light of this decision, while maintaining limited grazing in the project area.”

One source at the Challis District BLM said she was optimistic that BLM would soon be in full compliance with NEPA and grazing would be able to continue as before.

According to the judge’s ruling, the Challis District BLM first ran afoul of NEPA requirements by stating in the EA that none of the allotments under question were habitat for bull trout, which is listed as threatened under the Endangered Species Act.

Lodge observed in his ruling that “The ‘Affected Environment’ section of the EA states that the four allotments considered ‘contain no threatened or endangered aquatic species.’ …[I]n considering the Rock Creek Allotment, the EA mentions the species of concern that occur in the upper Pahsimeroi River within that allotment. The EA notes ‘[b]ull trout have also been observed in the nearby East and West Forks of the Pahsimeroi River.’ The EA states, however, that bull trout are not present in the Rock Creek-portion of the Pahsimeroi.”

Yet a subsequent study by a BLM biologist discovered several redds, or egg beds, of bull trout eggs in Rock Creek within the Rock Creek Allotment boundaries. The court found that BLM’s choice not to revise the EA in response to the finding, despite the fact that they did analyze potential impacts to the bull trout and found them to be insignificant, violated both NEPA’s “hard look” requirement as well as a requirement for public disclosure.

Lodge concluded: “BLM had notice of, and had ready access to information about, bull trout on Rock Creek. BLM’s EA should have considered bull trout in the Rock Creek Allotment. It did not. Because BLM’s EA does not take a “hard look” at the impacts of proposed action, or its alternatives, on bull trout, the EA violates NEPA.”

The ruling also found that BLM failed to adequately perform a “cumulative impact analysis” of the proposed grazing on wildlife, finding that the agency’s evidence was too general and drew from studies and documents that are not authorized for NEPA analysis.

Yet the most controversial ruling came when Lodge sided with WWP over whether  BLM needs to include a “no grazing” alternative as part of its analysis of possible courses of action.

In a NEPA analysis, an agency is required to consider a range of possible actions and their environmental consequences, and select the one they deem most appropriate. According to arguments on behalf of BLM, the Challis District did not explore a no grazing alternative in detail simply because the allotments in question are classified as available for grazing in their land use plan. BLM, they argued, must adhere to the existing classification of the land’s being available for grazing. Therefore, a “no grazing” alternative could not have been implemented.

Yet according to Lodge, a reduced grazing or a no grazing alternative would have been “eminently reasonable” and would not be “remote or speculative.”

Lodge also slammed BLM for apparently misquoting the federal regulations which were the basis for the BLM’s decision.

Lodge’s decision is significant, because it implies that a BLM District Office has discretion to significantly reduce or eliminate grazing on grazing districts through land use planning. This implication was not lost on John Marvel, executive director of WWP, who heralded the decision as a particular triumph.

In a statement on the WWP website, Marvel said, “The Order makes clear that BLM is not obliged to authorize livestock grazing on any allotment even if the Resource Management Plan for the area designates the allotment as available for livestock grazing.”

Yet speculation is brewing whether Lodge’s call of “foul” might be off the mark. Attorney William Myers III of Holland and Hart, Boise, ID, and former solicitor for BLM, maintains that BLM was actually spot-on in their citation of federal regulations to justify their action. Lodge, Myers maintains, got it wrong.

“In the context of this case, what worries me about it is how [Judge Lodge] got there,” says Myers. “How he seemed to have gotten to [his] conclusion was [by] resting on grazing regulations that are not currently in effect.”

It’s a confusing state of affairs. But the most recent set of grazing regulations on the books were enjoined in 2008 by Idaho District Judge Lynn Winmill—ironically, as a result of yet another WWP lawsuit. Therefore, a person would have had to go to back to the pre-2006 regulations to find any regulations that were currently in effect.

BLM, Myers argues, used the older regulations that are actually in effect. However, says Myers, “Judge Lodge seemed to reference and refer to the very regulations that Judge Winmill enjoined.”

The potential consequences of a judicial mistake could be far-reaching.

“It could affect the way the BLM considers its designation of lands as “chiefly valuable for grazing,” said Myers.

Wyatt Prescott, executive vice president of the Idaho Cattle Association, indicated that plans are underway to try and get the decision reversed.

“We will be meeting with the agency, encouraging them to appeal it,” said Wyatt.

“We are definitely going to do everything we can in this matter because it’s highly precedent-setting. It’s frustrating to see another decision made in a courtroom instead of out on the ground where the land is actually worked and put to use and conserved.” — Andy Rieber, WLJ correspondent