Western Watersheds v. Bennett, et al

Filing 505

MEMORANDUM DECISION AND ORDER granting in part and denying in part 431 Motion to Set Aside Judgment; finding as moot 434 Motion to Expedite; finding as moot 440 Motion to Expedite; finding as moot 459 Motion to Strike ; granting in part and d enying in part 490 Motion to Strike ; finding as moot 491 Motion re 490 Motion to Strike. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT
Case No. CV 04-181-S-BLW

Plaintiff,
v.

MEMORANDUM DECISION
AND ORDER

STEVEN ELLIS, Director, Idaho State
Office, Bureau of Land Management; RICK
VANDERVOET, Jarbidge Field Manager,
BLM; BUREAU OF LAND MANAGEMENT,
an agency of the United
States,
Defendants.

INTRODUCTION
The Court has before it a motion to set aside judgment filed by the
ranchers/intervenors. The Court held an evidentiary hearing and took the motion under
advisement, allowing counsel additional time to file briefing. Those briefs were received
on June 27, 2011, and the matter is now at issue. For the reasons explained below, the
Court will grant the motion in part, and modify its prior total ban on grazing to allow for
grazing under certain conditions.
LITIGATION BACKGROUND
In 2005, the Court enjoined grazing on 28 allotments in the Jarbidge Resource
Area (JRA). The ranchers/intervenors who graze these allotments now seek to modify

Memorandum Decision & Order - 1

that injunction on the ground that a total ban is no longer equitable. The Court’s
injunction banning grazing was based in large part on the failure of all 28 allotments to
meet the Fundamentals of Rangeland Health (FRH) standards. The BLM had determined
that livestock grazing was a “significant cause” of the failure to meet FRH standards. The
Court’s ban on grazing was to last until the BLM had completed an EIS on the 28
allotments.
After the Court issued its injunction in 2005, the parties entered into extensive
negotiations. They eventually signed a Stipulated Settlement Agreement (SSA). In the
SSA, the parties agreed that grazing could continue on the 28 allotments governed by
Interim Grazing Management Plans (IGMPs). The intent behind the IGMPs was to place
conditions on grazing to improve conditions. In addition, the SSA provided that the BLM
would conduct monitoring and inventory assessment to assure compliance with the
IGMPs. The Court approved the SSA.
In the SSA, the BLM agreed to prepare a revised JRA Resource Management Plan
and supporting EIS, and then conduct site-specific NEPA reviews and issue ten-year
grazing permits for all JRA allotments (not just the 28 allotments governed by the SSA
terms). The Court administratively terminated the case as the BLM continued to work on
the new JRA RMP and EIS.
In July of 2007, one of the largest wildfires in our Nation’s history burned over
400,000 acres in the JRA, destroying 70% of sage grouse habitat. The fire prompted
WWP to file a motion to reopen this case to (1) strike down the SSA and enjoin grazing
Memorandum Decision & Order - 2

once again on those 28 allotments, and (2) to enjoin all grazing on an additional 36
allotments. The Court refused to strike the SSA and so it continued to govern the 28
allotments. With regard to the additional 36 allotments, a trial was set to determine
whether it was necessary to enjoin grazing on those allotments.
Following that trial, in February of 2009, the Court refused to enjoin grazing on
the 36 non-SSA allotments. Relying on a team of experts, the BLM had closed many
areas to grazing and immediately started rehabilitation projects in other areas. These
actions, the Court found, showed that a fully engaged BLM was doing all it could in a
crisis situation.
By the end of the grazing season in 2010, the IGMPs expired by their own terms.
The parties were not able to reach agreement on an extension, and the Court denied a
motion to impose the terms on the parties, holding that the issue must be raised by a
motion under Rule 60(b). The injunction banning all grazing on the 28 allotments came
back into place as the IGMPs expired. See Memorandum Decision (Dkt. 430)
The ranchers/intervenors responded by filing a motion to modify the injunction
under Rule 60(b)(5). The Court held a day-long evidentiary hearing on June 15, 2011,
and took the motion under advisement.
LEGAL STANDARD
Rule 60(b)(5) authorizes this Court to “relieve a party or its legal representative
from a final judgment, order, or proceeding [when] applying it prospectively is no longer
equitable.” To modify the Court’s injunction, Simplot bears the burden of showing that a
Memorandum Decision & Order - 3

“significant change in circumstances warrants revision.” Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367 383 (1992). This is done by “showing either a significant
change . . . in factual conditions or in law.” Id. at 384.
This standard has been described as “flexible.” Jeff D. v. Kempthorne, 365 F.3d
844, 854 (9th Cir. 2004). A “flexible approach allows courts to ensure that ‘responsibility
for discharging the State’s obligations is returned promptly to the State and its officials
when the circumstances warrant.’” Horne v. Flores, 129 S.Ct. 2579, 2593 (2009)
(quoting Frew v. Hawkins, 540 U.S. 431, 442 (2004)).
A judgment may be modified when changed circumstances make compliance with
the old decree “more onerous, unworkable, or detrimental to the public interest.” U.S. v.
Asarco, Inc., 430 F.3d 972, 979 (9th Cir. 2005). But the mere inconvenience of “liv[ing]
within the terms” of a judgment is an insufficient demonstration of changed
circumstances. Rufo, 502 U.S. at 383.
Once a court has determined that changed circumstances warrant a modification,
“the focus should be on whether the proposed modification is tailored to resolve the
problems created by the change in circumstances.” Id. at 391. “A court should do no
more, for a . . . final judgment [should] be reopened only to the extent that equity
requires.” Id. However, “once a party carries this burden, a court abuses its discretion
‘when it refuses to modify an injunction . . . in light of such changes.’” Horne v. Flores,
129 S.Ct. 2579, 2593 (2009) (quoting Agostini v. Felton, 521 U.S. 203, 215 (1997)) (other
internal citations omitted).
Memorandum Decision & Order - 4

ANALYSIS
Conditions in the JRA for the sage grouse, a candidate species under the
Endangered Species Act, have not improved since 2005. Their habitat has been destroyed
by wildfire and their numbers are dropping. Richard Vander Voet, the BLM’s Jarbidge
Field Office Manager, noted that the population counts are “discouraging.” See Vander
Voet Declaration (Dkt. 423) at ¶ 71, p. 27. Dr. Clint Braun, a recognized expert on the
sage grouse, testified at the hearing that there has been a “drastic decrease” in the sage
grouse population and that the population is “collapsing.” Dr. Braun testified that nesting
cover – that is, sagebrush cover that hides sage grouse as they lay their eggs – was very
poor generally. In his many years of experience, he had never seen so many “depredated”
eggs – that is, eggs that had been damaged or destroyed by predators.
Whether the decline of sage grouse numbers is described as “drastic” or
“discouraging,” the experts on both sides agree that the decline is due largely to the
destruction of habitat by wildfire. But opinions diverge on the effect of a total ban on
grazing in the area. Dr. Braun emphasized the need to protect the relatively small islands
of remaining sage steppe habitat, and to increase nesting cover and forbs. The best way
to do that, he believed, was by banning grazing.
Vander Voet, however, testified that the total ban on grazing was hampering his
ability to manage the main risk to sage grouse – fire. He testified that managed grazing
could reduce the fuel load and at least slow down wildfires. He also testified that the ban
makes its difficult to plan multi-year grazing rotations between pastures. There is a
Memorandum Decision & Order - 5

patchwork of private and state land holdings within these allotments – and just outside
their boundaries – that are not subject to the injunction. The ban on BLM land prevents
Vander Voet from using grazing rotation among pastures as a tool to reduce grazing’s
impact, and also makes it difficult for him to work with state and private land managers
on joint conservation projects.
The gist of Vander Voet’s testimony was that the injunction is interfering with the
BLM’s energetic management of the 17 allotments. That was not the case when the
injunction was put into place in 2005. At that time, the Court confronted allotments that
had been ravaged by grazing that was not subject to vigorous control. Today, the
situation is much different.
The BLM is engaged in both monitoring and inventory activity – that is, the
agency is taking inventory of the resources in these allotments and also monitoring trends
in key indicators. See Vander Voet Third Declaration (Dkt. 423) at ¶¶ 12, 29. Vander
Voet discusses vegetation conditions on the 17 allotments on a “pretty much daily” basis
“at this time of year” with the BLM’s staff, including “botanists, fish biologists, and
riparian aquatic people” among others. See Transcript (Dkt. 498) at pp. 18-19. With
regard to the sage grouse, Vander Voet testified that his staff “have conducted sagegrouse habitat assessments throughout the [Jarbidge] Field Office during the last two
years.” See Vander Voet Third Declaration at ¶ 35, p. 13. As part of its monitoring
activities, the BLM has been monitoring compliance with the IGMP conditions. In the
SSA allotments, with respect to grazing after August 1 and before December 1,
Memorandum Decision & Order - 6

“monitoring data at key sites in sagebrush pastures consistently show that average grazing
utilization levels are less than 30%.” See Vander Voet Third Declaration at ¶ 18, p. 6.
That usage level leaves adequate herbaceous heights for the next grazing season
according to the testimony of Dr. Braun in an earlier hearing. See Memorandum Decision
(Dkt. 201) at p. 10.
The Court has discussed in past decisions the BLM’s fire rehabilitation plan.
Vander Voet testified that the plan was working and that “we’re very pleased with both
the natural recovery as well as how the landscape treatments have come in, particularly
the seedings.” See Transcript at p. 20. The rehabilitation plans for the 2010 fires
“include multiple actions specifically aimed at protecting and restoring sage-grouse and
slickspot peppergrass habitat.” See Vander Voet Third Declaration, supra at ¶ 89, p. 34.
With regard to the slickspot peppergrass, a listed species under the ESA, “the
Jarbidge Field Office has performed over 25,000 acres of Slickspot peppergrass habitat
inventory” over the past 5 years. Id. at ¶ 36, p. 13. The BLM has also imposed
Management Guidelines on the only allotment that contains slickspot peppergrass – the
Juniper Butte allotment – that are designed to protect that listed species of plant. Those
Guidelines ban grazing from February 1 to March 31, which is the most probable time for
saturated soils where cattle trampling could destroy slickspot. Id. at ¶ 20, p. 7. Wet soils
are also likely in the period between April 1 and June 1, and the Management Guidelines
require no more than 20% utilization, and the use of rotation grazing management to limit
“livestock hoof impact.” Id. In addition, in 2006, the BLM stopped its practice of issuing
Memorandum Decision & Order - 7

crossing permits allowing cattle to trail through slickspot habitat in the Juniper Butte
allotment. Id. at ¶ 23, pp. 8-9. Perhaps most importantly, Vander Voet testified that
“[m]onitoring results over the past five years confirm that BLM and the permittee have
complied with the SSA in the Juniper Butte allotment. Id. at ¶ 21, p. 8.
This evidence leads to two conclusions. First, the BLM is committed to protecting
the habitat of the listed species in the JRA to a degree not apparent to the Court when it
issued the injunction in 2005. Second, a total ban on grazing would interfere with the
BLM’s ability to use the best science to manage grazing.
At the same time, the sage grouse numbers are declining and their habitat is
disappearing. Grazing is clearly an important cause of this decline. While fire has leapt
to the top of the list of the causes of the decline, that just makes the remaining habitat all
the more critical and in need of protection, as Dr. Braun testified. Grazing could hasten
the destruction of these islands of habitat.
This testimony establishes that the threat posed by grazing to listed species – an
irreparable harm – remains sufficiently likely that some injunctive relief is necessary. See
Winter v. NRDC, 129 S.Ct. 365 (2008). However, the Court is convinced, especially after
hearing the testimony of Vander Voet, that the BLM’s commitment to rigorous
management of grazing, along with its monitoring and inventorying activity, will improve
conditions. A total ban on grazing will interfere with the BLM’s efforts, by contributing
to a buildup of fuel, preventing pasture rotations, and hampering joint conservation
efforts.
Memorandum Decision & Order - 8

Given the continuing threats to listed species caused by grazing, a complete lifting
of the injunction is not warranted. But the significant changed circumstances – that is, the
vigorous management by the BLM – makes a total ban inequitable, and warrants a
modification of the injunction. There comes a time when a significant change of
circumstances warrants, under Rule 60(b)(5), returning to the agency the “responsibility
for discharging [the agency’s] obligations . . . .” Horne, 129 S.Ct. at 2595. That time has
arrived.
Once a court has determined that changed circumstances warrant a modification,
“the focus should be on whether the proposed modification is tailored to resolve the
problems created by the change in circumstances.” Rufo, 502 U.S. at 391. “A court
should do no more, for a . . . final judgment [should] be reopened only to the extent that
equity requires.” Id.
The Proposed Order submitted by the permittees and the BLM would have the
Court order the BLM to, among other things, (1) implement the IGMPs for each permittee
until the BLM issues the final Record of Decision on the new RMP, (2) ensure that all
wildlife goals and watershed needs are satisfied prior to allowing increases in livestock
use within the 17 allotments, (3) impose as part of the IGMPs a grazing ban from March 1
to June 1 (the sage grouse breeding and nesting period) on certain allotments every other
year, (4) impose on the IGMPs for certain allotments grass residual stubble height
restrictions, (5) allowing permittees to do riparian monitoring when the BLM cannot do
so; (6) consult with WPP and the Idaho Department of Fish and Game before issuing
Memorandum Decision & Order - 9

Annual Grazing Plans, and (7) provide annual reports to the Court as to the
implementation of the IGMPs. See Proposed Order (Dkt. 431-1).
The Court finds that the proposed order generally – but not entirely – meets the
test of Rufo that it be tailored to do no more than equity requires. The Court is troubled
by a few of the provisions that require more scrutiny.
Riparian Monitoring
One provision of the proposal assigns riparian monitoring to the permittees
“should the BLM be unable or unwilling to complete such monitoring.” Id. at p. 3. The
Court disagrees with this provision. It is critical that a disinterested party conduct all
monitoring and inventory activity. The Court’s overall decision here relies heavily on the
finding that the BLM is not a captive agency doing the bidding of the permit holders.
Allowing the regulated party to monitor its own conduct would reduce the strength of that
assumption and could lead to a different result. Accordingly, the Court will not permit
riparian monitoring to be farmed out to the permit holders. If the BLM becomes unable
to conduct its monitoring and inventory activities due to budget constraints – a real
possibility in this political climate – the Court would need to revisit this decision.
Spring & Winter Grazing
WWP also alleges that the BLM is allowing grazing during critical times while
sage grouse are mating and nesting in contravention of the recommendations of Dr.
Braun. In the Court’s earlier Findings of Fact and Conclusions of Law, the Court relied
on Dr. Braun to make the following finding:
Memorandum Decision & Order - 10

To avoid conflicting with sage grouse mating, nesting and brood rearing,
grazing should be limited around leks and nests to (1) periods between June
20 and August 1 (so that grazing is not occurring during the mating and
nesting seasons discussed above) and between November 15 and March 1
(when plant growth has ceased for the year).
See Findings of Fact and Conclusions of Law (Dkt. 363) at ¶ 245, p. 52. These standards,
WWP argues, are being violated, and to support this argument, WWP filed the
Declaration of Kenneth Cole, who prepared charts from BLM documents showing the
times and locations of grazing on the 17 allotments for each year since 2006. See Second
Declaration of Cole (Dkt. 481).1 For example, one chart shows that on the Crawfish
allotment, the permit holder grazed cattle in the North pasture during the spring in 2006,
2007, and 2010. See Exhibit 2 (Dkt. 481-2) at p. 1. The grazing in 2006 and 2007 was
roughly from May through June, while the grazing in 2010 included April, May and a
little more than half of June. Id. These months – April, May and early June – are
typically times when sage grouse are nesting and should not be disturbed by grazing,
according to Dr. Braun. But the North pasture of the Crawfish allotment has only a small
amount of Key Sage Grouse Habitat (KSGH), see Exhibit 2020, and much of it appears to
be contained in a parcel of State property within the allotment boundaries. See Exhibit
2019. The vast majority of the allotment has no KSGH, and there is no testimony that
sage grouse nesting is taking place there.

1

The defendants have moved to strike this, and other submissions or in the alternative to
be allowed to file rebuttal material. The Court will deny the motion to strike and grant the right
to file rebuttal material that is attached to the motion.
Memorandum Decision & Order - 11

An allotment with a much greater amount of KSGH is the Cedar Creek allotment.
Within that allotment, on the Monument Springs pasture, the permit holder grazed cattle
from mid-July through mid-to-late October in 2007, 2009, and 2010. This grazing is not
occurring during mating or nesting season, which is proper given the large concentration
of KSGH in that allotment and that particular pasture. See Exhibit 2013 (showing the
Monument Springs pasture to be almost completely filled with KSGH). The grazing is
occurring during the time of plant growth, which could be a problem. However, there is
testimony from Vander Voet that the BLM is monitoring vegetation in these allotments
on a regular basis and adjusting the grazing restrictions to what they see on the ground.
He testified that the permit holders were following the restrictions set forth by the BLM.
There has, however, been grazing during the nesting season in the Lake pasture of
the Coonskin allotment. Exhibit 2, supra, at p. 2. About half the area of that pasture
contains KSGH. See Exhibit 2018. The grazing that took place on the Lake pasture in
2010 was from April 11th through June 16, a period that includes about two weeks of the
sensitive nesting season. Exhibit 2, supra at p. 2. The two years prior – in 2008 and 2009
– the pasture was rested, and in 2007, the grazing took place after the standard nesting
season. But in 2006, there were about two weeks of grazing during the standard nesting
season. Id.
These three examples are representative of the rest of information provided by
Cole’s charts. The Court is concerned about the pattern of grazing during sensitive times
for the sage grouse on pastures containing large amounts of KSGH. In answer to this, the
Memorandum Decision & Order - 12

BLM points to Vander Voet’s testimony that (1) the BLM is regularly monitoring the
grazing and vegetation levels, and (2) the permit holders are following all BLM
restrictions. As another answer, the permittees point to the condition contained in their
proposed modified injunction that a grazing ban be imposed on certain allotments, every
other year, from March 1 to June 1.
The Court finds both answers insufficient. The threats to sage grouse habitat are
simply too severe to allow wide-spread grazing during sensitive times on allotments filled
with precious KSGH. The allotments that contain high amounts of KSGH include (1)
Antelope Springs, see Exhibit 2003; (2) Brackett Bench, see Exhibit 2008; (3) Cedar
Creek, see Exhibit 2013; (4) Juniper Butte, see Exhibit 2031; (5) Pigtail Butte, see Exhibit
2038; (6) Seventy-One Desert, see Exhibit 2040; and (7) Three Creek #8, see Exhibit
2042.2
The permittees proposed order calling for a ban on grazing during the mating and
nesting season every other year in certain allotments does not sufficiently protect the sage
grouse during this sensitive time. Mating and nesting may take place in certain pastures
in successive years, and so granting the BLM authority to ban grazing only “every other
year” would allow grazing to interfere with mating and nesting at certain times.
Instead, the Court’s injunction will grant full authority to the BLM to ban or
restrict grazing without limitation, consistent with law. Moreover, the Court will direct

2

Obviously, this may change over time, and the BLM’s monitoring will be important in tracking
these changes.
Memorandum Decision & Order - 13

the BLM to give extra scrutiny to grazing restrictions and outright bans for certain
pastures containing key sage grouse habitat during the periods between June 20 and
August 1 (mating and nesting season), and between November 15 and March 1 (when
plant growth has ceased for the year). The Court is confident the BLM is already taking
this step, but will make the BLM’s authority to do so explicit in this injunction.
Conclusion
The Court will therefore grant in part the motion to set aside the total ban on
grazing in the 17 allotments at issue. The Court will keep the injunction in place, but lift
the total ban on grazing, and require that grazing follow certain conditions set out in more
detail below.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to set aside
judgment (docket no. 431) is GRANTED IN PART AND DENIED IN PART. It is
granted to the extent it modifies the total ban on grazing to the extent set forth below. It
is denied in all other respects.
IT IS FURTHER ORDERED, that all grazing is enjoined on the following
allotments in the Jarbidge Field Office (Bruneau Hill, Flat Top, Echo 5, Clover Crossing,
71-Desert, Blackrock Pocket, Juniper Butte, Crawfish, Three Creek #8, Coonskin, Noh
Field, E. Juniper Draw, Pigtail Butte, Cedar Creek, Antelope Springs, Brackett Bench,
and N. Fork Field) that does not comply with the following terms and conditions.
Memorandum Decision & Order - 14

(1)

IGMPs: The BLM shall prepare for each permit holder an Interim Grazing
Management Plan (IGMP) to govern grazing on these allotments. Those IGMPs
shall be designed to
(a)

maintain or enhance existing and potential populations of the
sensitive species, and

(b)

to ensure that wildlife goals and watershed needs will be satisfied
prior to allowing increases in livestock use.

(3)

BLM’s Authority to Ban or Restrict Grazing: The BLM is granted full authority
to ban or restrict grazing without limitation, consistent with law. The BLM shall
give extra scrutiny to grazing restrictions and outright bans for certain pastures
containing key sage grouse habitat during the periods between June 20 and August
1 (mating and nesting season), and between November 15 and March 1 (when
plant growth has ceased for the year).

(4)

Stubble Height: As a minimum standard, each permit holder shall conform to the
grass residual stubble heights at sage grouse nest-initiation time as identified by
Hausleitner et al. (2005) in any pasture that is subject to Management Guideline 1
within the 71 Desert, Pigtail Butte, Cedar Creek, Brackett Bench, Juniper Butte,
and Clover Crossing Allotments. The BLM may impose stricter standards on more
allotments in its discretion.

(5)

Biological Opinion: Permit Holder Brackett Ranches Limited Partnership shall
conform to the Biological Opinion on the Effects of Bureau of Land Management

Memorandum Decision & Order - 15

Ongoing Livestock Grazing Actions in Idaho on the Slickspot Peppergrass
(Lepidium papilliferum) dated January 25, 2010, issued by the U.S. Fish and
Wildfire Service.
(6)

Burned Areas; The BLM shall implement the 2010 Full Force and Effect
Decisions (FFE Decision) and associated Emergency Stabilization and Burn Area
Rehabilitation Plans (ESBAR Plan). Grazing shall be closed on those burned
portions of the allotments until the prescribed objectives are met, as prescribed by
the Full Force and Effect Decisions issued by the BLM.

(7)

Consultation: BLM shall consult, cooperate, and coordinate with interested
publics, including but not limited to Western Watersheds Projects and Idaho
Department of Fish and Game, a draft of the Annual Grazing Plans.

(8)

Report to Court: BLM, in consultation with the Permittee, shall provide annual
reports to the Court as to the implementation of the IGMPs, as modified herein,
after the end of each grazing year, i.e. around March 30th.

(9)

Expiration Date: The terms of this modified Judgment shall expire on the date the
BLM issues its final grazing permit renewal decision to each of the Permittees,
which means that the actual expiration date may vary for each Permittee.
IT IS FURTHER ORDERED, that the motion to strike (docket no. 490) is

GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks to
have filed the rebuttal material attached to the motion. It is denied in all other respects.
IT IS FURTHER ORDERED, that the following motions are DEEMED MOOT
Memorandum Decision & Order - 16

(docket nos. 434, 440, 459 & 491).

DATED: July 22, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 17