Western Watersheds Project v. Leaverton et al
Filing
31
OPINION AND ORDER. The Forest Services decision is AFFIRMED. JUDGMENT SHALL ENTER in favor of the defendants and the defendant-intervenors. The defendants and the defendant-intervenors are AWARDED their costs to be taxed by the Clerk of the Court pursuant to FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1. This case is CLOSED. By Judge Robert E. Blackburn on 6/16/2011. (sah, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 09-cv-01604-REB-BNB
WESTERN WATERSHEDS PROJECT,
Plaintiff,
v.
ROBERT J. LEAVERTON, in his official capacity as Forest Supervisor, Pike and San
Isabel National Forests, and
U.S. FOREST SERVICE,
Defendants,
and
COLORADO CATTLEMEN’S ASSOCIATION, a nonprofit corporation, on behalf of its
members, and
BOARD OF COUNTY COMMISSIONERS FOR CHAFFEE COUNTY, COLORADO,
Defendant-Intervenors.
OPINION AND ORDER
Blackburn, J.
The matter before the court is plaintiff's appeal seeking judicial review of the
decision of the United States Forest Service to re-authorize livestock grazing in the Pike
and San Isabel National Forests, while incorporating principles of adaptive management
to improve environmental conditions in the forests. The matter has been fully briefed
(#22, 24-26),1 and defendants have submitted the administrative record to the court
1
“(#22, 24-26)” is an example of the convention I use to identify the docket
number assigned to a specific paper by the court’s case management and electronic
case filing system (CM/ECF) and the specific pages within that document. I use this
1
(#21, 29). After reviewing the briefs and the administrative record, the court AFFIRMS
the decision of the Forest Service.
I. JURISDICTION
The court has jurisdiction over this matter under 28 U.S.C. § 1331 (federal
question), in combination with the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701-706 (review of final agency action).2
II. FACTUAL AND PROCEDURAL BACKGROUND
This matter relates to the decision of the Forest Service to re-issue permits for
livestock grazing, while incorporating “adaptive management” strategies, in
approximately 284,400 acres of the Pike and San Isabel National Forests in Colorado.
(# 22, at 3; # 25, at 8.) Specifically, in September 2008, the Forest Service issued a
Final Environmental Assessment (“EA”) in which it evaluated livestock grazing in
conjunction with “how well ecosystem processes are functioning” in the national forests
at issue. (# 29, at S05935-6095, S05943).3 The EA recognized that, of the 29
benchmark areas,4 “10 are currently meeting the desired [environmental] conditions, 9
convention throughout this order.
2
Plaintiff’s complaint is properly construed as bringing claims under the judicial
review procedures of the APA, alleging violations of the National Forest Management
Act and the National Environmental Policy Act. (See # 1, at 9-12.) See Utah Envtl.
Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008) (“As neither the NFMA nor NEPA
provide a private right of action, we review the Forest Service’s [decision] as a final
agency action under the Administrative Procedure Act (APA).”).
3
The Forest Service had previously issued Draft EAs in February 2007 and July
2008, which included public comment periods. (Id. at S05378-5543, S05592-5751,
S06121-6276.)
4
Benchmark areas “are the small areas where long-term trend studies are
installed and maintained so that the manager can assess the resource impacts from
management.” (Id. at S06004.)
2
are adequately moving toward meeting the desired conditions and 10 are not meeting or
adequately moving toward the desired conditions.” (Id. at S05943.) The EA considered
three alternative courses of action. (Id. at S05965-67.) The first was “No Action,”
whereby livestock grazing would no longer be permitted and existing grazing permits
would be phased out. (Id. at S05965.) The second was “No Change,” whereby grazing
would continue as it had before. (Id. at S05965-66.) The third was the “Proposed
Action,” whereby grazing would continue at the same levels, but under adaptive
management by land managers who would “implement management practices that are
designed to meet [Forest Plan5] standards and guidelines.” (Id. at S05966-67.) The
Forest Service acknowledged that the
need for the proposed action is based on the knowledge that a change in
management needs to occur. This need for change in management is
identified by comparing what currently exists on the landscape in the
[national forests at issue] and to specific descriptions of what should exist
in those different community types across the project area.
(Id. at S05946.) In order to implement the Proposed Action, the Forest Service created
various grazing management options for managers to implement, as part of an Adaptive
Management Toolbox (id. at S05967); various design criteria for managers to focus on
particular areas and wildlife species (id. at S05968-75); and both a short-term and longterm monitoring plan (id. at S05978-82).6
5
Forest plans (“land and resource management plans”) are designed to create
“general, forest-wide planning goals.” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,
737 (10th Cir. 2006). They are created pursuant to 16 U.S.C. § 1604.
6
It should be noted that, during the public comment period, a group of five
environmental organizations – Colorado Wild, Wild Connections, Rocky Mountain
Chapter of Sierra Club, Great Old Broads For Wilderness, and Center For Native
Ecosystems – submitted a letter stating
We commend the Forest Service for proposing intensive adaptive
management in order to achieve desired resource conditions in the project
3
On September 24, 2008, two district rangers issued Findings of No Significant
Impact (“FONSI”), in which they approved the Proposed Action to allow continued
grazing under adaptive management. (Id. at S06277-6302.) The FONSIs concluded
that the Proposed Action “is not a major action that will constitute a significant effect on
the human environment,” therefore, obviating the need to prepare an Environmental
Impact Statement. (Id. at S06287, S06300.) Plaintiff filed an administrative appeal
challenging the FONSIs. (Id. at S06305-6390.) On January 14, 2009, the Forest
Supervisor denied the appeal and upheld the FONSIs. (Id. at S06437-83.)
Plaintiff initiated this action on July 7, 2009, filing a Complaint against the U.S.
Forest Service and the Forest Supervisor under the APA, alleging violations of the
National Forest Management Act (“NFMA”) and the National Environmental Policy Act
(“NEPA”). (# 1.) Defendants filed an Answer on September 8, 2009. (# 9.) On
October 2, 2009, the Colorado Cattlemen’s Association and the Board of County
Commissioners for Chaffee County, Colorado, filed a motion to intervene in the action.
(# 10.) The court granted the motion to intervene on November 16, 2009. (# 19.) On
December 18, 2009, plaintiff filed its Opening Brief. (# 22.) On February 18, 2010,
defendants and defendant-intervenors filed their respective Response Briefs. (# 24,
25.) On March 18, 2010, plaintiff filed a Reply Brief. (# 26.) Defendants filed the
administrative record (# 21), and later filed a supplemented administrative record (# 29).
area. We find the Adaptive Management Tool Box (EA at 28) and the
project’s Design Criteria (id. at 29-35) to be fairly strong. Implementation
of these measures and careful monitoring to determine the need for
specific management will be needed to address problems on all of the
allotments, some of them rather severe.
(Id. at S06421.)
4
The court took the papers under submission without oral argument. (# 30.)
III. STANDARD OF REVIEW
The APA provides that a reviewing court shall set aside agency action if it is, inter
alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). “Our review is highly deferential.” Ecology Ctr., Inc. v.
U.S. Forest Serv., 451 F.3d 1183, 1188 (10th Cir. 2006) (citation and internal quotation
marks omitted). “A presumption of validity attaches to the agency action and the burden
of proof rests with the appellants who challenge such action.” Citizens' Comm. to
Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (citation and
internal quotation marks omitted).
In determining whether the agency acted in an arbitrary and capricious
manner, we must ensure that the agency decision was based on a
consideration of the relevant factors and examine whether there has been
a clear error of judgment. Generally, an agency decision will be
considered arbitrary and capricious if the agency had relied on factors
which Congress had not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.
Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (citations and
internal quotation marks omitted). A reviewing court should engage in a “thorough,
probing, in-depth review.” Wyoming v. United States, 279 F.3d 1214, 1238 (10th Cir.
2002) (citation omitted). However, “[t]he scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). “Deference to the agency is especially strong where the
challenged decisions involve technical or scientific matters within the agency’s area of
5
expertise.” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).
IV. ANALYSIS
A.
NFMA CHALLENGE
Plaintiff first argues that the decision of the Forest Service to implement the
Proposed Action violates NFMA because the decision fails to comply with the Forest
Plan’s requirements of protecting wildlife habitat, soil productivity, water quality, and
archaeological resources. (# 1, at 12; # 22, at 11-21.)
1.
Overview of NFMA
“NFMA establishes a two-step process for forest planning. First, the Forest
Service prepares a forest plan.” Silverton Snowmobile Club v. U.S. Forest Serv.,
433 F.3d 772, 785 (10th Cir. 2006) (citation and internal quotations omitted). See 16
U.S.C. § 1604(a) (providing that the Forest Service shall “develop, maintain, and, as
appropriate, revise land and resource management plans [“forest plans”] for units of the
National Forest System.”). A forest plan is designed to create “general, forest-wide
planning goals.” Bosworth, 443 F.3d at 737. See also Utah Envtl. Cong. v. Russell,
518 F.3d 817, 821 (10th Cir. 2008) (stating that a forest plan consists of “broad
directives for management of a given forest”); Forest Guardians v. Forsgren, 478 F.3d
1149, 1155 (10th Cir. 2007) (stating that a forest plan is “a document that creates a
vision [for the] management of a national forest”). “[E]ach forest plan envisions the
forest will be used for multiple purposes, including ‘outdoor recreation, range, timber,
watershed, wildlife and fish, and wilderness.’ At the same time, the forest plan provides
for ‘diversity of plant and animal communities based on the suitability and capability of
the specific land area.’” Bosworth, 443 F.3d at 737 (quoting 16 U.S.C. § 1604(e)(1),
(g)(3)(B)).
6
“Second, the Forest Service is required to implement the forest plan by approving
or disapproving specific projects. Projects must be consistent with the governing forest
plan . . . .” Silverton Snowmobile Club, 433 F.3d at 785 (citation and internal
quotations omitted). See 16 U.S.C. § 1604(i) (providing that “[r]esource plans and
permits, contracts, and other instruments for the use and occupancy of National Forest
System lands shall be consistent with the land management plans”).
2.
The Forest Plan at Issue
The Forest Plan for the Pike and San Isabel National Forests was approved in
1984. (See # 29, at S01189-1782.) The stated purpose of the Forest Plan is
to provide a management program reflecting a mix of management
activities that allows use and protection of the Forest’s resources, fulfills
legislative requirements, and addresses local, regional, and national
issues. . . . The major purpose of this Forest Plan is to create and
maintain a vigorous and healthy forest. Physical, biological and economic
resources are the basic requirements of a healthy forest environment. . . .
Diversity and permanence are the keys to healthy environments. The
permanence of healthy forest communities is dependent upon the diversity
of plants and animals and their management. The permanence of a
vigorous and healthy society is also dependent upon the diversity of
resources available and upon the options for their use.
(Id. at S01212-13.) The Forest Plan lists goals of the Plan, objectives designed to meet
those goals, management requirements that govern how activities will be implemented,
and monitoring and evaluation requirements to determine the progress toward achieving
the goals, objectives, and management requirements. (Id. at S01192, S01337-1585.)
In terms of the listed goals, the Forest Plan includes goals related to preserving the
natural environment (see, e.g., id. at S01337-39 (“Increase diversity for wildlife and
habitat improvement,” “[i]mprove fish habitat,” “[i]mprove the health and vigor of all
vegetation types,” “[m]aintain or improve water quality,” “[m]aintain air quality,” “[p]rotect
riparian areas and wetlands from degradation,” “[c]onserve water and soil resources”)),
7
as well as goals related to the productive use of the forests and its resources (see, e.g.,
id. (“Provide a broad spectrum of developed and dispersed recreation opportunities,”
“[p]rovide for productive use of range forage,” “[p]rovide for increased production and
productive use of wood fiber,” “[e]ncourage mineral exploration, development and
extraction consistent with management of surface resources,” “[r]ecommend areas on
the Forest that are suitable for oil and gas leasing activities,” “[p]rovide the opportunity
for economic growth of industries and communities dependent upon Forest outputs”)).
3.
Is the Forest Service’s Decision Consistent With the Forest Plan?
The first question at issue is whether the Forest Service decision to implement
the Proposed Action is “consistent with” the Forest Plan. See 16 U.S.C. § 1604(i);
Silverton Snowmobile Club, 433 F.3d at 785. Plaintiff’s argument that the Proposed
Action violates the Forest Plan is premised on its contentions (1) that the Forest Service
has violated the Forest Plan in the past by allowing levels of livestock grazing that have
resulted in environmental degradation of the national forests; and (2) that there are
insufficient guarantees that the Proposed Action will have any different result, given that
the Proposed Action continues to authorize the same levels of grazing. The argument
is not sufficiently persuasive to warrant a finding that the decision of the Forest Service
to implement the Proposed Action was arbitrary and capricious.
As an initial matter, it should be emphasized that the Forest Plan clearly
envisions livestock grazing in the national forests at issue. For example, the Forest
Plan states,
Current permitted grazing use on the Pike and San Isabel National
Forests is approximately 10,400 head of cattle, 84 head of horses, and
5,000 sheep grazed for about 40,000 animal unit months (AUM’s). By the
year 2030, demand is expected to be about 60,000 AUM’s. . . . Many
National Forest areas were severely overgrazed in the past resulting in
8
erosion and reduced productivity. Livestock numbers were reduced and
rehabilitation projects such as reseeding, terracing, check dams and tree
planting were accomplished. Some problem areas still exist, usually as a
result of improper livestock distribution. Efforts are underway, or are
planned, to resolve these problems through development of new water
sources, fencing, improved grazing management systems and in a few
cases, reduced stocking.
(# 29, at S01284-85.) In the same way that the Forest Plan envisions allowing livestock
grazing while taking steps to protect or improve environmental conditions, the Forest
Service’s recent Proposed Action re-authorized grazing permits while creating
management tools and design criteria to protect or improve environmental conditions.
Thus, on this general level, the Forest Plan and the Forest Service’s Proposed Action
appear to be consistent.
On a more specific level, plaintiff argues that the Proposed Action violates the
Forest Plan in various ways:
a.
Wildlife Protection
Plaintiff argues that the Proposed Action violates the Forest Plan’s requirement
that the Forest Service “provide habitat for viable populations of all native vertebrate
species of fish and wildlife.” (# 29, at S01366.)7 In the Final EA, the Forest Service
conceded that the best course for threatened wildlife habitats would be to discontinue
livestock grazing. (See id. at S06015 (“Under Alternative A (No Grazing), the lack of
grazing would allow degraded habitat conditions to improve and recover (where
possible) more fully and at a higher rate than the Action Alternatives [B & C].”).)
However, of course, the Forest Service could not evaluate the goal of wildlife habitat
7
Plaintiff’s topic heading for the relevant section of its Opening Brief, by its very
words, suggests that the Proposed Action is consistent with the Forest Plan: “Design
Criteria for Wildlife [listed in the Proposed Action] are not materially different from
currently existing Forest Plan standards.” (# 22, at 12 (emphasis added).)
9
protection in a vacuum and concluded that
the Proposed Action, through effective and timely monitoring and the
implementation of appropriate adaptive management options that are
implemented using the design criteria could facilitate riparian and other
habitats recovery and improved conditions overtime where possible.
Thus, the Proposed Action would have substantially less impacts
compared to Alternative B, although these impacts would not be
eliminated.
(Id.)
The EA went on to analyze the effects of the three alternative courses of action
on specific endangered and threatened species. (See id. at S06009-42.) For example,
the EA analyzed the effects of the three alternative courses of action on the Mexican
spotted owl (“MSO”). (See id. at S06019-24.) The Forest Service concluded that the
Proposed Action would “not [be] likely to adversely affect” the MSO. (Id. at S06024.)
As part of that analysis, the Forest Service referenced “design criteria that directly or
indirectly reduces/minimizes adverse affects to MSO, their prey, or their habitats.” (Id.)
One such design criteria, Design Criteria No. 56, states, “Mexican Spotted Owl: . . .
Manage livestock grazing in riparian areas to maintain or achieve a preponderance of
mid seral or higher condition to provide cover and forage for prey species where the
potential occurs.” (Id. at S05973.) As plaintiff mentions, this Design Criteria is similar to
directions, standards, and guidelines listed in the Forest Plan. For example, the Forest
Plan lists as a direction to “[m]anage riparian areas to reach the latest seral stage
possible within the stated objectives,” and lists as a standard and guideline to
“[m]aintain all riparian ecosystems in at least an upper mid-seral successional stage.”
(Id. at S01384.)Plan.8 Thus, the Proposed Action appears to be “consistent with” the
8
The Forest Plan does not specifically mention the MSO.
10
Forest Plan as to the MSO. See 16 U.S.C. § 1604(i); Silverton Snowmobile Club, 433
F.3d at 785.
Despite this, plaintiff argues that the history of the Forest Service of failing to
follow Forest Plan requirements shows that the Forest Service will be similarly
ineffective in implementing the management tools and design criteria in the Proposed
Action. (# 22, at 12-14.) This court is not in a position to so presume. In the EA, the
Forest Service acknowledged that “a change in management needs to occur.” (# 29, at
S05946.) In the specific list of what changes need to occur in each area, the Forest
Service repeatedly listed “maintain or improve riparian areas.” (Id. at S05947-57.)
Then, in the Forest Service’s analysis related to the MSO, the Forest Service stated that
continuing livestock grazing at existing levels without utilizing adaptive management
“could result in a continued degraded habitat condition [for the MSO].” (S06021.) The
EA recognized the potential dangers to MSO habitats from unchecked grazing,
concluded that a change in management needs to occur, and selected a course of
conduct that has as one of its goals to manage livestock grazing in riparian areas to
improve conditions for MSO habitats. The court cannot assume that the Forest Service
will fail to achieve this goal. Instead, the court concludes that the Forest Service’s
decision as to the MSO was not arbitrary and capricious. See Friends of the Bow, 124
F.3d at 1215 (“In determining whether the agency acted in an arbitrary and capricious
manner, we must ensure that the agency decision was based on a consideration of the
relevant factors and examine whether there has been a clear error of judgment.”).
Plaintiff makes the same argument as to the Canada lynx and the boreal toad.
(See # 22, at 14-18.) The Proposed Action contains five design criteria for improving
the habitat of the lynx, and six design criteria for improving the habitat of the boreal
11
toad. (# 29, at S05972-73.) As for lynx, the EA concludes that implementation of these
design criteria “would minimize adverse effects of grazing on lynx and their prey. . . .
Livestock grazing within these allotments would be subject to the appropriate design
criteria to achieve desired conditions.” (Id. at S06027.) The EA concluded similarly that
implementation of the design criteria would improve the habitat of the boreal toad. (See
id. at S06033-34.) Plaintiff does not explain how these design criteria are inconsistent
with the Forest Plan, other than to argue that protecting wildlife habitats has long been a
requirement under the Forest Plan, but the Forest Service has failed to meet this
requirement in the past, and there are insufficient guarantees that the Proposed Action
will remedy the situation. (See # 22, at 14-18.) Again, this court may not assume that
the Forest Service will fail to implement the design criteria to improve the habitats of the
lynx and the boreal toad.
Thus, the court concludes that the decision of the Forest Service to implement
the Proposed Action was not arbitrary and capricious in terms of protection of wildlife
habitats.
b.
Protecting Soil Productivity
Plaintiff’s argument regarding protection of soil productivity is the same: “the
Forest Service is already required [by the Forest Plan] to protect [against] long-term soil
loss, and has not done so, but is now giving no reason why it will suddenly begin to do
so.” (# 22, at 19 (emphasis in original).)
The Forest Plan lists as general directives to “[m]aintain soil productivity,
minimize man-caused erosion, and maintain the integrity of associated ecosystems”
and to “[p]revent livestock and wildlife grazing which reduces the percent of plant cover
to less than the amount needed for watershed protection and plant health.” (# 29, at
12
S01406.) These directives appear to be “consistent with” the Proposed Action. 16
U.S.C. § 1604(i); Silverton Snowmobile Club, 433 F.3d at 785. The Forest Service
concluded that, by implementing the Proposed Action, “vegetative cover should be
increased on all upland and riparian areas” “[s]oil retention on sites should be
improved,” and “[p]otential soil erosional losses would be reduced from current levels in
selected riparian and upland areas.” (# 29, at S06081.) The Proposed Action proposed
to achieve these goals by adopting management changes affecting the “timing, intensity
frequency, [and] shortening of seasons” for livestock grazing, as well as by “[l]imiting
grazing to capable areas, placement of salt in upland locations, water improvements,
fencing, and frequent rotation of cattle.” (# 29, at S06080-81, S05967.) The court may
not assume that the Forest Service will fail to implement these measures to improve soil
productivity.
c.
Protecting Water Quality
Plaintiff’s argument regarding protecting water quality is the same:
Water quality is not going to improve with more design criteria that only
reiterate requirements that already exist in the Forest Plan, and it is
certainly not going to improve if the Forest Service pays the same heed to
its design criteria that it has historically paid to its Forest Plan standards.
(# 22, at 20-21.) Here again, plaintiff’s own language concedes that the Proposed
Action, and more specifically the design criteria contained within it, are consistent with
the Forest Plan. Plaintiff’s argument is based entirely on its uncircumstantiated doubt
that the design criteria will be effectively implemented. The court may not find the
decision of the Forest Service to be arbitrary and capricious based on a belief that
13
future management plans will not be effectively implemented.9
d.
Protecting Archaeological Resources
The Forest Plan contains a general directive to “[a]void disturbance of known
cultural resources until evaluated and determined not significant.” (Id. at S01351.) The
EA evaluated the three alternative courses of action on archaeological resources and
concluded that the Proposed Action would have a lesser effect on archaeological sites
than prior grazing practices did because of the possibility of utilizing, inter alia, fewer
grazing days and more rotations of livestock in areas of cultural importance. (Id. at
S06088, S05967.) The court concludes that plaintiff has not shown the Proposed
Action to be inconsistent with the Forest Plan.
B.
NEPA CHALLENGES
Plaintiff argues also that the Forest Service violated NEPA in two ways: first, that
the Forest Service wrongfully failed to issue an Environmental Impact Statement (“EIS”)
pertaining to the Proposed Action; and second, that the Forest Service failed to analyze
a reasonable range of alternatives to its chosen course of action. (# 1, at 9-12; # 22, at
22-28.)
1.
Overview of NEPA
“NEPA requires federal agencies to pause before committing resources to a
project and consider the likely environmental impacts of the preferred course of action
as well as reasonable alternatives.” New Mexico ex rel. Richardson v. Bureau of
9
One of the management techniques envisioned by the EA to improve water
quality is the establishment of new watering sites to draw livestock away from riparian
areas. (See # 29, at S06074-77.) Plaintiff argues that the Proposed Action is not
specific enough regarding how many watering sites will be built, where they will be built,
or how they will function. There is no requirement under NFMA that the Forest Service
detail its plans with that level of specificity.
14
Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). “NEPA dictates the process by which
federal agencies must examine environmental impacts, but does not impose
substantive limits on agency conduct.” Russell, 518 F.3d at 821. “Rather, once
environmental concerns are adequately identified and evaluated by the agency, NEPA
places no further constraint on agency actions.” Friends of the Bow, 124 F.3d at 1213
(citations and internal quotation marks omitted).
In conducting this analysis, the Forest Service must prepare one of
the following: (1) an environmental impact statement, (2) an
environmental assessment, or (3) a categorical exclusion. An
environmental impact statement involves the most rigorous analysis, and
is required if a proposed action will “significantly affect[ ] the quality of the
human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4.
If an agency is uncertain whether the proposed action will
significantly affect the environment, it may prepare a considerably less
detailed environmental assessment. 40 C.F.R. § 1508.9. An
environmental assessment provides “sufficient evidence and analysis” to
determine whether a proposed project will create a significant effect on the
environment. Id. If so, the agency must then develop an environmental
impact statement; if not, the environmental assessment results in a
“Finding of No Significant Impact,” and no further agency action is
required. Id.
Bosworth, 443 F.3d at 736. NEPA does not “require agencies to elevate
environmental concerns over other appropriate considerations; it requires only that the
agency take a ‘hard look’ at the environmental consequences before taking a major
action. In other words, it prohibits uninformed – rather than unwise – agency action.”
Citizens' Comm. to Save Our Canyons, 513 F.3d at 1178 (citation and internal
quotation marks omitted).
2.
Did the Forest Service Wrongfully Fail to Issue an EIS?
In reviewing the decision of the Forest Service to issue a FONSI and not prepare
15
an EIS, the court must determine “whether the agency acted arbitrarily and capriciously
in concluding that the proposed action will not have a significant effect on the human
environment.” Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1274 (10th
Cir. 2004) (citation and internal quotations omitted). It is plaintiff’s burden to show that
the agency’s conclusion “represents a clear error of judgment.” Id.
Plaintiff argues that the Forest Service violated NEPA by failing to issue an EIS
because, given past environmental harms due to grazing and ineffective management,
there is insufficient indication that the Forest Service will improve environmental
conditions through its Proposed Action. Again, this court is not in a position to so
presume. The Forest Service has identified environmental problems within the national
forests at issue, stated that a change in management needs to occur, and specified the
tools managers should use in moving the conditions in those areas toward desired
conditions. Further, the Forest Service has implemented monitoring requirements for
managers in order to ensure that conditions move toward desired conditions.10 See
Greater Yellowstone Coalition, 359 F.3d at 1275 (holding that an EPA decision did
not amount to a clear error in judgment where the EPA concluded that the proposed
10
Regarding the adequacy of monitoring, Plaintiff emphasizes a statement from
the FONSIs that the Proposed Action “[a]pplies adaptive-management practices, using
a minimum of 3 years of monitoring data to determine if permanent significant
adjustments in term permit numbers or seasons are necessary.” (# 29, at S06282,
S06295. See also # 22, at 10, 18, 21, 25, 27, 28.) This statement applies only to
significant and permanent adjustments in livestock numbers or seasons for grazing.
Indeed, the FONSIs continue, “Minor adjustments or annual practice adjustments can
be made immediately . . . .” (# 29, at S06282, S06295 (emphasis added).) Also, this
statement from the FONSIs does not speak to the multitude of other options, other than
changing livestock numbers and seasons, available to managers to improve
environmental conditions. Myopic focus on this one statement from the FONSI fails to
consider the more detailed plan in the EA for “implementation monitoring” (short-term
monitoring) and “effectiveness monitoring” (long-term monitoring). (Id. at S05978-82.)
16
action would not have a significant impact on a particular river and where the EPA
implemented monitoring requirements in case its conclusion was wrong). The Forest
Service did not make a clear error of judgment by conducting an EA and issuing a
FONSI, rather than developing and issuing an EIS.11
3.
Did Plaintiff Waive Any Challenge to the Forest Service’s Alleged
Failure to Analyze a Reasonable Range of Alternatives By Failing to
Raise the Issue During the Course of Administrative Proceedings?
Defendants argue in their Response Brief that plaintiff waived any challenge to
the Forest Service’s alleged failure to analyze a reasonable range of alternatives
because plaintiff failed to advance any specific counter-proposals during the course of
administrative proceedings below. (# 25, at 46-47.) See Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 764-65 (2004). Defendant-intervenors argue that such an
alternative must be proposed by an objecting party during the notice and comment
periods of the EA. (# 24, at 47.) Plaintiff responds by arguing that it effectively raised
the issue below by proposing alternatives in its administrative appeal. (# 26, at 12-13.)
Plaintiff did advance alternative proposals both during the notice and comment
11
This case is different than the more typical case where a new activity is
proposed that could have a more negative effect on the environment than the status
quo. See, e.g., New Mexico ex rel. Richardson, 565 F.3d 683 (involving government’s
decision to open desert grassland to oil and gas development); Greater Yellowstone
Coalition, 359 F.3d 1257 (involving government’s decision to allow construction of a
housing development and golf course in the vicinity of a bald eagle nesting territory);
Friends of the Bow, 124 F.3d 1210 (involving government’s decision to allow a timber
sale from a national forest). Here, grazing represents the status quo, the Forest Service
has recognized that environmental conditions in certain areas are not moving toward
desired conditions, and the Forest Service apparently recognizes that a change in
management needs to occur. The proposal potentially subject to an EIS here was a
new plan to improve environmental conditions, not an approval of a new activity that
would potentially be more harmful to the environment than the status quo.
17
period and in its administrative appeal.12 Under these circumstances, the court
concludes that plaintiff did not waive the argument that the Forest Service failed to
analyze a reasonable range of alternatives.13
4.
Did the Forest Service Fail to Analyze a Reasonable Range of
Alternatives?
The court turns next to the issue of whether the EA failed to analyze a
reasonable range of alternatives. An EA must “include brief discussions . . . of
12
(See, e.g., # 29, at S06124 (“The current NEPA analysis fails to provide a
reasonable range of alternatives . . . .”); id. at S06262 (“This implementation plan
proposes as the first choice more range improvements . . . . The first choice needs to
be a realistic stocking rate [for livestock], season of use, and rotation that will result in a
significant recovery [of the land].”); id. at S06259 (“The only thing that effectively
achieves [keeping livestock distributed throughout suitable rangelands within pasture
areas] is continuous daily herding . . . .”); id. at S06266 (“[T]he proposal to develop more
of the same water developments and pipelines which have failed in the past will not
distribute livestock evenly. The only effective method for distributing livestock evenly is
continuous daily herding which the Forest Service is not implementing.”); (id. at S06351
(“Existing alternatives that were not analyzed in the EA include grazing in the early
growing season, deferred or late season grazing, rest rotation including a number of
pastures, early rotation, spring and fall grazing, spring and summer grazing, and a
variety of other strategies.”).)
13
Contrary to defendant-intervenors’ implication, Department of Transportation
v. Public Citizen did not hold that challenges under NEPA must be raised during the
notice and comment period of the EA, nor did it hold that such challenges are waived if
raised for the first time in an administrative appeal. See 541 U.S. at 764-65. While the
law is not entirely clear on the issue, a Tenth Circuit case has implied that raising an
issue solely in an administrative appeal is sufficient to preserve the issue for judicial
review. See McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1255 (10th Cir. 2010)
(“[B]ecause [Plaintiff-Appellant] has not administratively appealed the terms of the
permit . . ., he is precluded from seeking judicial review of said terms or of the Forest
Service’s basis for imposing them.”). But see Ariz. Pub. Serv. Co. v. U.S. Envtl. Prot.
Agency, 562 F.3d 1116, 1127 (10th Cir. 2009) (“[Petitioner] did not contest the
rationality of the underlying PM limit during the comment period and, therefore, cannot
raise the issue on appeal.”). This is consistent with the multitude of cases stating
generally that an issue is waived if it was not properly raised before the administrative
agency below. See, e.g., Forest Guardians v. U.S. Forest Serv., 2011 WL 1498873
(10th Cir. 2011) (“Claims not properly raised before an agency are waived.”); Forest
Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir. 2007) (same).
18
alternatives [and] of the environmental impacts of the proposed action and alternatives .
. . .” 40 C.F.R. § 1508.9(b).14 See also Davis v. Mineta, 302 F.3d 1104, 1120 (10th
Cir. 2002) (“A properly-drafted EA must include a discussion of appropriate alternatives
to the proposed project.”). “[W]e only consider whether an agency’s decisions regarding
which alternatives to discuss and how extensively to discuss them were arbitrary,
keeping in mind that such decisions are necessarily bound by a rule of reason and
practicality.” Greater Yellowstone Coalition, 359 F.3d at 1277 (citation and internal
quotation marks omitted).
The court concludes that the Forest Service’s selection and analysis of the three
alternatives was not arbitrary and capricious. The EA was conducted because grazing
permits for national forest land were expiring, and NEPA required the Forest Service to
consider the environmental impacts of its decision regarding the permits. (See, e.g., #
29, at S05940.) On one level, the Forest Service was faced with a decision of whether
to re-issue the permits (Alternative B, see id. at S05965-66), or allow the permits to
expire and discontinue livestock grazing (Alternative A, see id. at S05965). Its decision
was necessarily guided by its environmental assessment that, in 10 of the 29
14
On the other hand, an EIS is more detailed. An EIS
should present the environmental impacts of the proposal and the
alternatives in comparative form, thus sharply defining the issues and
providing a clear basis for choice among options by the decisionmaker
and the public. [Agencies shall r]igorously explore and objectively evaluate
all reasonable alternatives, and for alternatives which were eliminated
from detailed study, briefly discuss the reasons for their having been
eliminated [and d]evote substantial treatment to each alternative
considered in detail including the proposed action so that reviewers may
evaluate their comparative merits.
40 C.F.R. § 1502.14.
19
benchmark areas, desired environmental conditions were neither being met nor moving
toward being met. (See id. at S05943.) Given that environmental assessment, if the
Forest Service had only considered the two extremes of re-authorizing the permits or
discontinuing them, plaintiff would have a stronger case that if the Forest Service did not
consider a reasonable range of alternatives. See Davis, 302 F.3d at 1119 (“While it is
true that defendants could reject alternatives that did not meet the purpose and need of
the project, they could not define the project so narrowly that it foreclosed a reasonable
consideration of alternatives.”) (citations omitted).
Here, the Forest Service considered a third alternative – the Proposed Action –
re-authorizing the permits under principles of adaptive management. Adaptive
management allows managers to implement a large number of different measures in
order to change environmental conditions “toward the desired future condition or to
accelerate the rate at which conditions are already moving toward desired.” (# 29, at
S05966.) Those measures include the same type of alternatives plaintiff proposed in
the administrative proceedings below and in this action, such as changing the stocking
rate, limiting grazing to certain seasons, rest rotation, and active herding. (See id. at
S05967.) Given that the Forest Service chose a third alternative that identified the 10
problem areas, identified the environmental problems occurring in those areas, and
specified the tools managers should use in moving the conditions in those areas toward
desired conditions, the Forest Service did not fail to consider a reasonable range of
alternatives.
V. CONCLUSION
For all of these reasons, the decision of the United States Forest Service to reauthorize livestock grazing in the Pike and San Isabel National Forests under principles
20
of adaptive management was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
VI. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Forest Service’s decision is AFFIRMED;
2. That JUDGMENT SHALL ENTER in favor of the defendants and the
defendant-intervenors;
3. That the defendants and the defendant-intervenors are AWARDED their costs
to be taxed by the Clerk of the Court pursuant to FED. R. CIV. P. 54(d)(1) and
D.C.COLO.LCivR 54.1; and
4. That this case is CLOSED.
Dated June 16, 2011, at Denver, Colorado.
BY THE COURT:
21
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