WWP victory affects up to 30,000,000 ac.

Oct 7, 2011

Western Watersheds Project (WWP) is celebrating what its founder John Marvel called a “great court victory” after Idaho Federal District Judge B. Lynn Winmill issued a major ruling in favor of the anti-grazing non-profit group and against the Bureau of Land Management (BLM). The case involves 16 Resource Management Plans (RMPs) and their associated environmental impact statements, which together cover over 30,000,000 acres of public land across the West. States affected by the ruling are Idaho, Wyoming, Montana, Utah, California and Nevada.

Wyoming Stock Growers Association (WSGA) Executive Vice- President Jim Magagna indicated that although the outcome of the case is not yet certain, the potential ramifications for public lands ranchers cannot be underestimated. “The substantive issues … that were before the court in this case and that the court decided have potentially very wide impact,” said Magagna.

Todd Tucci, attorney with environmental law group Advocates for the West, is representing WWP in the case. “I’m unaware of any other case that deals with a larger landscape than this RMP case,” Tucci remarked. He described Winmill’s decision as “groundbreaking.”

Winmill’s order, issued Sept. 28, faulted BLM for failing to adequately assess the cumulative impact of grazing and energy development on sage grouse, and for failing to consider sufficient alternatives to grazing and oil and gas development in 16 separate RM- Ps.

The greater sage grouse is listed by the U.S. Department of Fish and Wildlife as a candidate species for an endangered listing. It has been designated “warranted but precluded,” meaning that although the declining population of the sage grouse warrants an endangered listing, the number of other species in more serious need precludes it from being listed at this time.

BLM has also recognized the sage grouse as a “sensitive” species, in accord with its Special Status Species Policy, which requires BLM to give the sage grouse special protections.
According to Winmill’s decision, BLM violated both the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act in two RMPs—Pinedale, Wyoming, and the Craters of the Moon, Idaho, which because of the massive scope of the case, were used as “test cases” to evaluate the adequacy of all 16 RMPs under litigation.
Although Winmill’s ruling only vacated the RMPs on the two test cases, this ruling will help to inform any decision made on the remaining 14 RPMs. Tucci stated that there is significant overlap between the test cases and the other RMPs.
Among the NEPA violations cited by Winmill, of particular interest was BLM’s apparent failure to consider a full range of alternatives to the management plan supported by an environmental impact statement (EIS). In his ruling, Winmill stated that “the Craters EIS did not discuss in any manner alternatives that reduced grazing short of a total ban; it did discuss, but refused to analyze, a ‘no grazing’ alternative. Yet grazing was found to be a ‘major contributing factor’ to the decline of sage grouse habitat.”
Winmill also rapped the BLM for providing misleading information. By focusing on the number of allotments, and not the overall acreage of allotments, that were failing to meet land health standards in both the Pinedale and Craters of the Moon RMPs, Winmill suggested that BLM was downplaying land health issues. “While the [Craters] EIS found that grazing should not be decreased because ‘most’ of the allotments were meeting rangeland health assessments,” stated Winmill, “the data in the EIS showed that 61 percent of the acres in the Monument failed to meet those standards.”
Magagna was displeased with the criticism, pointing out that an allotment can fail to meet land health standards on the basis of isolated issues, like a riparian area, that are not present throughout the allotment. “That’s an incorrect transposition because within those … allotments, there might have only been a small area … that did not meet standards,” said Magagna.
In addition, Winmill cited BLM for ignoring two major studies on sage grouse, one by the Western Association of Fish and Wildlife Agencies, in the development of their management plans, and further for disregarding their own National Sage Grouse Population Policy.
Yet WSGA, who, along with the Wyoming Petroleum Association have full intervener status in the case, were dismayed at what they viewed as Winmill’s selective approach to the broad range of available science on sage grouse conservation.
“To me, the judge chose to look at only the type of evidence that the plaintiffs put in front of him, and didn’t look at the broader efforts that are taking place out there,” Magagna said. “He looked at the magnitude of mineral development and just assumed that that had to be a negative for sage grouse,” although according to Magagna, habitat for 86 percent of the sage grouse in Wyoming is being protected from oil and gas development.
Further, Magagna pointed out that Winmill gave no recognition to Wyoming’s core habitat sage grouse strategy, which recently received national recognition from the Fish and Wildlife Service.
At present, the ramifications of Winmill’s decision remain unclear. In an attempt to reach a compromise, BLM requested that the portion of the case challenging the Craters of the Moon RMP be remanded, offering to amend the plan. Winmill rejected the request, insisting that “the BLM has not … admitted any error, and it wants to keep the present Craters RMP in place during the period it will be working on a new RMP. Meanwhile, the Craters RMP at issue in this action authorizes a certain level of grazing on the monument and thus has an immediate effect on the ground.”
Winmill added that RMPs can sometimes take years to write and amend, during which time potential damage to sage grouse habitat would be ongoing.
So it remains an open question how interim management practices will be arrived at. It is possible that an interim plan could be negotiated by interested parties, including WSGA, who are considered “full parties in interest” in the case.  A settlement conference has been scheduled for Oct. 27.
Yet according to Tucci, how interim planning proceeds will depend very much on how BLM decides to approach the issue.
“Western Watersheds would probably rather work that out through negotiation,” Tucci remarked, “but if Secretary Salazar wants to hold fast and tight to Bush-era decisions, then we’ll do it through litigation.”
Magagna observed that a negotiation process would likely involve a struggle to keep ranchers in a position to turn out on their permits. “Plaintiffs, I am going to anticipate, are going to want the court to issue some injunctions against further activity, certainly mineral development and perhaps renewal of grazing permits,” Magagna said.
At very least, it is likely that WWP will be pressing Winmill for drastic reductions in grazing numbers. Dr. Clait E. Braun, a sage grouse expert repeatedly cited in Winmill’s ruling and extolled by Tucci, is author of a paper titled “Blueprint for sage grouse conservation and recovery.”  The paper recommends that livestock grazing on public lands should not exceed 25-30  percent utilization and should be limited to a maximum 40-day turn out.
“I think that would form a basis for some kind of interim [solution],” stated Tucci.
Magagna, however, was not optimistic about the feasibility of Braun’s proposals for ranchers.
“If that were to be applied across the board, that clearly would have a dramatic impact on livestock grazing,” Magagna observed. — Andy Rieber, WLJ Correspondent