June 21, 2007


MEMORANDUM

From: Jeff Eisenberg
Executive Director
Public Lands Council

To: Public Lands Council and National Cattlemen’s Beef Association

Subject: Western Watersheds Project v. Kraayenbrink, No. CV-05-297 (D. Id. June 8, 2007)

Introduction

In July 2006, the Bureau of Land Management (BLM) issued final regulations for the administration of grazing lands. These regulations contain a number of provisions restore strengthening the balance of multiple uses on public lands. A number of environmental groups led by the Western Watersheds Project sued the BLM immediately upon issuance of the regulations seeking to set them aside. The Public Lands Council (PLC) joined the litigation as an intervenor on behalf of BLM.

On June 8, Judge Winmill issued a decision barring implementation of the regulations on the grounds they violate the National Environmental Policy Act (NEPA), the Federal
Land Policy Management Act (FLPMA), and the Endangered Species Act (ESA). This Decision is a significant setback to implementation of the regulations. We are in the process of gathering information to help inform our own decision making.

The Decision

1. Public Participation

A. NEPA

The court first considered changes to public participation in the grazing program. The 2006 rule authorized the BLM to drop a group from participating in decisions if the group received notice of pending decision but failed to submit a comment. The rule eliminated public participation in decisions affecting: (1) adjustments to allotment boundaries; (2) changes in active use; (3) emergency allotment closures; (4) issuance or renewal of individual permits or leases; and, (5) issuance of temporary nonrenewable grazing permits and leases. The public would continue to participate in decisions in which the BLM issues, renews, or modifies a grazing permit for a certain allotment.

Judge Winmill stated the standard rule that agencies must take a “hard look” under NEPA as to why actions are proposed, in this case why public participation should be more limited than in the 1995 regulation. BLM explained that one reason for limiting public participation was to reduce the cost of maintaining a list of “interested publics” that must get “periodic mailings at taxpayer expense” but have not “participated . . . in years.” He observed that BLM did not list the specific costs it incurred in maintaining the list, and concluded “[i]t is impossible to evaluate this claim without knowing the specific costs involved.”

BLM further justified the limitation on public participation by asserting that in-depth public involvement can delay routine management responses. The Judge dismissed this assertion stating “the agency’s management of public input cannot defeat NEPA’s purpose of ‘ensuring that the agency will have . . . detailed information concerning significant environmental impacts, and . . . that the public can . . . contribute to that body of information. . . .’” The Judge also noted that interested publics would not receive proposed TNR permit decisions under the new regulations, even though TNRs have often been used to increase grazing levels.

B. FLPMA

Under this statute, BLM is required to establish procedures to give the public adequate notice and an opportunity to comment upon the formulation of standards and criteria for, and to participate in the preparation and execution of plans and programs for, the management of, the public lands. 43 U.S.C. 1739(e). The Judge stated that “[g]razing permit (or TNR permit) issues are the crucial ‘management’ and ‘execution’ tools of the BLM to carry out its long-range plans.” He ruled that Congress did not give the BLM any discretion to cut the public out of these management and execution issues, thereby finding a facial violation of FLPMA.

2. Fundamentals of Rangeland Health (FRH) and Range Improvement Ownership

The 2006 Rule changed the BLM’s reliance on FRH in four ways. First, it eliminated the need to rely on FRH at all if state-specific Standards and Guidelines are in place. Second, the Rule required monitoring data to support a conclusion that Standards and Guidelines are being violated. Third, the Rule allowed BLM to take 24 months to adopt a new grazing decision and then take an additional year to implement that decision. Finally, the Rule required BLM to phase-in reductions in grazing of more than 10% over five years.

The 2006 Rule allowed shared title of permanent range improvements constructed under cooperative range improvement agreements. Title would be shared in proportion to the permittee’s and Government’s contribution to the on-the-ground project development and construction costs.

A team of experts assembled by BLM to review these and other proposals for new grazing regulations stated that BLM lacked sufficient funding and staffing to perform the monitoring necessary to support the changes to FRH. The experts concluded that the changes to the FRH could have significant and long-term adverse effects on wildlife resources and biological biodiversity in general. BLM published the proposed regulations before the agency completed its review of the report of the expert. BLM did not address in the record these comments of the experts.

The Judge considered these events and concluded BLM failed to take the required “hard look” under NEPA with regard to the environmental impact of the changes to the FRH. He recognized that BLM has broad discretion to resolve conflicts among its own experts. However, “the recitation of that conflict and its resolution must take place in the EIS.”

3. Delay

Judge Winmill next addressed provisions in the regulations that he characterized as raising “the potential for delay in correcting grazing abuses,” including the requirement that any adverse determination made by the agency be supported by monitoring data. He relied on statements by Fish and Wildlife Service officials that monitoring will not be completed in a timely, effective manner because of the lack of funding and staff. These same officials concluded that the new monitoring requirement “would make most of the standards and guidelines unenforceable for the foreseeable future on many, and perhaps most, grazing allotments.”

Based on an evaluation of 7,437 high-priority allotments, BLM argued that grazing adversely affected only 16% of all allotments, so the limitations on monitoring would not have a significant adverse impacts on resources. The Judge countered that 16% of all allotments still amounted to 23 million acres with adverse impacts, and another 83 million acres had not been assessed at all.

The Judge charged that BLM failed to offer any rationale in the EIS that would support delay in taking administrative action for violations of Standards and Guidelines. “NEPA requires the BLM to explain itself so the public and decision-makers can determine if this change in course is acceptable. The FEIS does not contain that explanation and so violates NEPA. For the same reasons, these delaying revisions violate FLPMA.”

4. Endangered Species Act (ESA)

BLM considered the effects of the proposed regulations on threatened and endangered species and determined they had no effect. Judge Winmill cites the ESA regulations for the proposition that the duty to consult applies to the promulgation of regulations. He cited a number of statements from FWS and BLM staff, and statements outside the administrative record, to show the regulations will in fact have an adverse effect on listed species. Not one of the statements relied on by the Judge relates the apprehension of adverse effect to any experience on the ground. Without assessing the merits of the BLM determination, the Judge concluded BLM’s failure to consult was arbitrary and capricious.

Questions about the Decision

Judge Winmill is completely comfortable substituting his judgment for that of the agency. This approach to the case undergirds a number of rulings that would seem to be ripe for reversal as a matter of law. He derides agency assessments of range conditions. He does not seem to attach any value to requiring monitoring to support decision making. Conveniently, the Judge’s views about managing an agency budget and program do not extend to a complete program for managing BLM rangelands. He certainly does not cite any part of the record for the environmental benefits of keeping ranches intact. Nor does he propose how he would reorder numerous BLM range activities within its existing budget to suit his preferences. All he really is sure of is that the BLM grazing regulation is wrong as a matter of law. The feelings Judge Winmill expressed in his decision may not withstand legal scrutiny.

For example, attacking the failure to identify “specific” costs for administering participation would seem to go to the question whether the agency had a rational basis to limit participation under the “arbitrary and capricious” standard of the Administrative Procedure Act. Failure to identify costs may not be a violation of NEPA which is aimed at forcing the disclosure of the environmental consequences of a proposed action. The Judge reaches what is for him the easy conclusion that the limitation on public participation is also a violation of the FLPMA requirement to provide for public participation in the formulation and execution of plans for the administration of the public lands. Nothing in this statute dictates precisely the aspects of administration in which the public must be allowed to participate. Drawing these lines is discretion Congress obviously vested in the Secretary. The 2006 Rule allows the public to participate in the major decisions affecting permit administration, and limits participation in more minor decisions. Some legal uncertainty attends BLM’s decision to limit participation in the issuance of TNR permits.

Judge Winmill made two broad attacks on the changes to the FRH. First, he rules BLM failed to resolve conflicts among experts in the EIS. Nothing in NEPA requires BLM to formulate a draft EIS in conformity with earlier draft materials prepared by agency or departmental staff. The agency prepares a draft proposal, the public comments, and the agency reconciles conflicts in the final document. Nevertheless, the Judge rejected the changes to the FRH, in part because the agency failed to adequately address comments raised in a pre-draft document (the ARC-DEIS).

Second, he asserts the agency failed to offer “any rationale” to support delaying implementation of adverse grazing decisions. Without the rationale, the public cannot decide if the change is “acceptable”. He rejects the agency’s effort to sample allotments to determine the general condition of the range and how many allotments are affected by adverse grazing impacts. However, neither the environmental groups nor the Judge make any showing that the delays will actually impact the resource either positively or negatively. They do not do so, because they cannot. No one knows the impact of the 2006 Rule on resources until it has been implemented.

On balance, the priority of administrative activities reflected in the regulation may allow the agency to focus on the most serious resource problems and improve the agency’s stewardship of its vast land portfolio. In the meantime, it is legally irelevant under NEPA whether the changes in the regulation are “acceptable”. Judge Winmill offered no suggestion how the asserted absence of a rationale to support delay is a violation of FLPMA.

With respect to the ESA, the Judge ignores the agency’s position and record in support of the conclusion that the regulations will have “no effect” on listed species. What he does do is draw on statements in the record he likes to conclude BLM was obligated to consult under the ESA in promulgating the regulations. As a visceral matter, it is hard to understand how any conclusion can be drawn about the impact of the regulations on resources, without the implementation of the regulations. Whether BLM followed its own procedures and developed an adequate record to support this conclusion is an open question.

So What to Do?

The Department is understandably reluctant to cure defects identified in the opinion by starting a NEPA process over from scratch for one or more issues at this late date in the Administration. However, the issues identified above may very well be reversible as a matter of law. Rehabilitation of the agency’s position on the discussed issues would not require opening up a new NEPA process.

The one issue which may require additional process is consultation under the ESA. It is not clear whether BLM complied with the FWS and BLM rules in concluding the regulations would have “no effect” on species. This is a determination the Department will have to make.

Perhaps most troubling about the decision, is the Judge’s easy willingness to substitute his judgment for that of the agency. Many of his rulings will have an effect on agency activity far beyond the grazing regulations, and run afoul of the principles of broad agency discretion recently articulated by the Supreme Court in the Southern Utah Wilderness case. Should the Administration not appeal the decision, it will cede considerable authority to shape agency activities to environmentalists and Judge Winmill, and the judiciary generally.

In particular, does the Secretary really want to have its discretion limited under FLPMA as the Judge has done here? Does the Secretary and/or the Administration really want to allow courts to decide how much pre-EIS material must be addressed in an EIS? Is the Secretary ready to cede to the courts authority for deciding how to prioritize and carry out the Department’s many and often conflicting responsibilities? Is the Secretary or the Administration for that matter prepared to allow wild speculation about future events to limit its options at the present time?

Conclusion

We believe Judge Winmill’s decision poses important obstacles to preserving the Secretary’s discretion regarding grazing and other programs under his jurisdiction. We urge the Department to seek an appeal of the decision to the Ninth Circuit Court of Appeals.