Western Watersheds Project et al v. Schneider et al
MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED, that the motion for preliminary injunction (docket no. 124 ) is GRANTED. The BLM is enjoined from implementing the 2019 BLM Sage-Grouse Plan Amendments for Idaho, Wyoming, Colorado, Utah, Nevada/ Northeastern California, and Oregon, until such time as the Court can adjudicate the claims on the merits. IT IS FURTHER ORDERED, that the plaintiffs motion to supplement with the declaration of Dr. Braun (docket no. 182 ) and intervenors motion to supplement with the declaration of Uriarte (docket no. 183 ) are GRANTED. 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 (jd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
WILDEARTH GUARDIANS, CENTER
FOR BIOLOGICAL DIVERSITY, and
PRAIRIE HILLS AUDUBON SOCIETY,
Case No. 1:16-CV-83-BLW
JANICE SCHNEIDER, Assistant
Secretary of Interior; BUREAU OF LAND
MANAGEMENT; and U.S. FOREST
The Court has before it the plaintiffs’ motion for preliminary injunction to
enjoin the Federal Defendants from implementing the 2019 BLM Sage-Grouse
Plan Amendments. The Court heard oral argument on the injunction motion and
took it under advisement. For the reasons explained below, the Court will grant
The original complaint in this case was brought by four different
environmental groups challenging fifteen Environmental Impact Statements (EISs)
issued in 2015 that govern land covering ten western states. The gist of plaintiffs’
Memorandum Decision & Order – page 1
lawsuit was that the BLM and Forest Service artificially minimized the harms to
sage grouse by segmenting their analysis into 15 sub-regions without conducting
any range-wide evaluation – the agencies looked at the trees without looking at the
forest, so to speak. The plaintiffs brought their claims under the National
Environmental Policy Act (NEPA), the Federal Land Policy and Management Act
(FLPMA), and the National Forest Management Act (NFMA).
Early in the case, the BLM filed a motion to sever and transfer arguing that,
for example, the challenge to the Utah Plan should be transferred to Utah and the
challenge to the Nevada Plan should be transferred to Nevada. The Court denied
the motion, reasoning that “plaintiffs made overarching claims that applied to each
EIS and RMP and required a range-wide evaluation that extended beyond the
boundaries of any particular court.” See Memorandum Decision (Dkt. No. 86).
As this litigation was underway, the Trump Administration came into office
and began a process to review and revise the 2015 Sage-Grouse Plans. This
litigation was put on hold pending that review. In 2017 that review was
completed, and as a result, WWP alleges, Interior Secretary Ryan Zinke directed
agencies to relax restrictions on oil and gas development in sage grouse habitat.
The BLM responded by issuing amendments to the Sage Grouse Plans (referred to
as the 2019 Plan Amendments). Plaintiffs supplemented their complaint to
challenge the BLM’s 2019 Amendments, alleging that the agency – acting at the
Memorandum Decision & Order – page 2
direction of the Trump Administration – again made common errors across
numerous Plans, including (1) failing to take a range-wide analysis, (2) failing to
evaluate climate change impacts, and (3) generally removing protections for the
sage grouse that were unjustified by science or conditions on the ground.
The Utah and Wyoming intervenors responded by filing a motion to transfer,
arguing that the circumstances have changed since the Court denied the BLM’s
motion discussed above. 1 The intervenors argued that the interests of justice and
the interests of local concerns justified transferring, for example, the Utah Plan
challenges to Utah and the Wyoming Plan challenges to Wyoming. The
intervenors argued that the challenges in this case are Plan-specific and will be
unique to each State.
The Court disagreed and denied their motions. See Memorandum Decision
(Dkt. No. 181). The Court reasoned that their motions ignored the allegations of
plaintiffs’ complaint. Plaintiffs allege that the challenged Plans suffer from
common failings that did not result entirely from errors of local Field Offices but
rather were heavily influenced by directions from the Trump Administration and
the Interior Secretary. Transferring these cases to various States would require
plaintiffs to make duplicative arguments and courts to render duplicative – and
The Idaho intervenors joined in the motions, arguing that the Court can more effectively focus
on issues unique to Idaho if the other matters are severed and transferred to their respective States.
Memorandum Decision & Order – page 3
perhaps conflicting – decisions. The Court did not agree with intervenors that
circumstances have changed since the Court denied the Government’s earlier
motion to sever and transfer.
The Government filed a motion to dismiss or transfer, arguing that this Court
was not the proper venue for resolving plaintiffs’ challenges to the 2019 Plan
Amendments. The Court disagreed, finding that venue was proper under 28 U.S.C.
The plaintiffs now seek to enjoin the BLM from implementing the 2019 Plan
Amendments. The Court will resolve this challenge after reviewing the facts set
forth in the record.
Sage Grouse Decline
This Court has written extensively on the decline of sage grouse populations
and habitat. Despite these declines the Fish and Wildlife Service (FWS) in 2005
determined that a listing under the Endangered Species Act (ESA) was “not
warranted.” The Court reversed that decision, finding that it ignored declines in
population and habitat, and was not based on the best science as required. See
WWP v. FWS, 535 F. Supp.2d 1173 (D. Idaho 2007). The Court remanded the
case to the FWS for further consideration.
Memorandum Decision & Order – page 4
On remand, the FWS issued a new finding in 2010 that the ESA listing was
“warranted-but-precluded.” See 75 Fed. Reg. 13910 (March 5, 2010). That
finding stressed the inadequacy of federal land use plans to protect sage-grouse,
particularly from energy development impacts. Id. at 13,942. The FWS’s
determination prompted the BLM and Forest Service, along with several States, to
consider protections for the sage grouse to avoid a future ESA listing.
National Greater Sage Grouse Planning Strategy
The BLM and Forest Service launched their National Greater Sage-Grouse
Planning Strategy in 2011 to amend federal land use plans with sage-grouse
conservation measures to avoid ESA listing. To guide that Strategy, a National
Technical Team of sage-grouse experts was convened and released their “Report
on National Greater Sage-grouse Conservation Measures” (NTT Report) in
December 2011. This Court found – after an evidentiary hearing and testimony
from sage grouse expert Dr. Clait Braun – that the NTT Report “contains the best
available science concerning the sage-grouse.” See WWP v. Salazar, 2012 WL
5880658, at *2 (D. Id. Nov. 20, 2012).
The NTT Report emphasized the protection of priority sage grouse habitats
and the need for buffers around sage grouse leks. The NTT report stated that the
“overall objective is to protect priority sage-grouse habitats from anthropogenic
disturbances that will reduce distribution or abundance of sage grouse.” See NTT
Memorandum Decision & Order – page 5
Report, at 7. It identified priority sage-grouse habitats as “breeding, late broodrearing, winter concentration areas, and where known, migration or connectivity
corridors.” Id. The NTT Report recommended closing these priority sage-grouse
habitat areas to oil and gas or other mineral leasing, concluding that “[t]here is
strong evidence . . . that surface-disturbing energy or mineral development within
priority sage-grouse habitats is not consistent with the goal to maintain or increase
populations or distribution.” Id. at 19.
With regard to lek buffers, the NTT Report found that BLM’s existing 0.25
mile “No Surface Occupancy” (NSO) buffers around sage-grouse leks and 0.6 mile
seasonal timing buffers were inadequate to protect sage-grouse, stating that
“protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer”
and even that “would not be large enough to offset all the impacts” of energy
development. Id. at 21.
In March 2013, FWS released its own report entitled the “Conservation
Objectives Team Report” (COT Report) that identified “Priority Areas for
Conservation” (PACs) as “key habitats necessary for sage-grouse conservation.”
See COT Report (WO AR 1492), at 13. The COT Report emphasized that
“[m]aintenance of the integrity of PACs . . . is the essential foundation for sagegrouse conservation,” but recognized that “habitats outside of PACs may also be
essential,” including to provide connectivity between PACs. Id. at 13, 36. In
Memorandum Decision & Order – page 6
October 2014, FWS identified a sub-category of the PACs as sage-grouse
“stronghold” areas, which were the basis for the “Sagebrush Focal Areas” (SFAs)
designated in the 2015 Plans for highest protection from energy development and
other surface disturbance. See WO AR 1490.
In 2015, the BLM and Forest Service adopted Sage-Grouse Plans that
covered ten States, revised 98 federal land use plans, and incorporated many of the
NTT and COT Reports’ recommendations, such as restrictions to prevent or
minimize surface disturbances in priority habitats, and requirements of
compensatory mitigation for unavoidable adverse impacts to sage-grouse habitats.
See, e.g., BLM Great Basin ROD, at S-1 to S-2 and 1-1 to 1-41.2 As called for in
the NTT and COT Reports, the 2015 Plans established new sage-grouse priority
habitat designations with heightened management protections across some 67
million acres of federal land, including “Priority Habitat Management Areas”
(PHMAs) – of which SFAs are a subset – and “General Habitat Management
Areas” (GHMAs), along with other priority habitats in certain states (including
“Important Habitat Management Areas,” or IHMAs, in Idaho). Id. PHMAs are
“lands identified as having the highest value to maintaining sustainable GRSG
populations,” and “largely coincide with areas identified as PACs in the COT
Report.” See Great Basin ROD at 1-15. GHMAs are “GRSG habitat that is
Memorandum Decision & Order – page 7
occupied seasonally or year-round . . . where special management would apply to
sustain GRSG populations.” Id.
2015 FWS Finding
The protections for sage grouse contained in the 2015 Plans of the BLM and
Forest Service convinced the FWS to revise its 2010 finding that an ESA listing
was “warranted but precluded” to a finding that listing was “not warranted.” The
FWS explained this change as follows:
Since 2010, there have been several major changes in the regulatory
mechanisms that minimize impacts to sage-grouse and their habitats.
Foremost among these are the adoption of new Federal Plans
specifically tailored to conserving sage-grouse over more than half of
its occupied range. These Federal Plans now include substantial
provisions for addressing activities that occur in sage-grouse habitats
and affect the species, including those threats identified in 2010 as
having inadequate regulatory measures. Aside from addressing
specific activities, the Federal Plans include provisions for
monitoring, adaptive management, mitigation, and limitations on
anthropogenic disturbance to reduce impacts authorized in sagegrouse habitats. The Federal Plans are the foundation of land-use
management on BLM and USFS managed lands. We are confident
that these Federal Plans will be implemented and that the new
changes, which are based on the scientific literature, will effectively
reduce and minimize impacts to the species and its habitat.
See 80 Fed. Reg. at 59,887. The FWS was particularly impressed that the 2015
Plans followed the “COT Report and NTT guidance [by] restricting impacts in the
most important habitat [thereby] . . . ensur[ing] that high-quality sage grouse lands
with substantial populations are minimally disturbed and sage grouse within this
habitat remain protected.” Id. at 80 Fed. Reg. 59,882.
Memorandum Decision & Order – page 8
The FWS also relied on provisions in the 2015 Plans ensuring that
unavoidable adverse impacts from energy development and other BLM-approved
actions would be offset by off-site mitigation to provide a net gain to the species:
“Requiring mitigation for residual impacts provides additional certainty that, while
impacts will continue at reduced levels on Federal lands, those impacts will be
offset to a net conservation gain standard”. See 80 Fed. Reg. at 59,881.
2019 Plan Amendments
In 2017, then-Interior Secretary Zinke directed that a “Sage-Grouse Review
Team” be assembled to review the 2015 Sage-Grouse Plans and recommend
modifications to “enhance State involvement” and align the BLM’s actions with
State plans concerning the sage grouse. Following the report of that Team
recommending numerous modifications to the 2015 Plans, the BLM released six
Draft Environmental Impact Statements (Draft EISs) and draft proposed plan
amendments to revise the 2015 Plans in Idaho, Wyoming, Colorado, Utah,
Nevada/Northeastern California, and Oregon, and allowed a 90-day public
comment period. See 83 Fed. Reg. 19,800-11 (May 4, 2018).
The BLM received comments from, among others, the Environmental
Protection Agency (EPA). See Anderson Declaration Exhibit B (Dkt. No. 124-2).
The EPA commented that the Draft EIS for the 2019 Plan Amendments for Idaho
reduced lek buffers, representing a “major change.” Id. at p. 2. Finding no
Memorandum Decision & Order – page 9
scientific support for this change in the Draft EIS, the agency recommended that
the “Final EIS summarize the scientific information used to develop the
[provisions] to reduce lek buffers . . . .” Id. at p. 31.
In commenting on the 2019 Plan Amendments for Utah, the EPA noted the
importance of habitat connectivity given the multi-state range of the sage grouse
and the need for the protection of priority habitat. The EPA was concerned that
the Draft EIS eliminated SFAs and GHMAs, “in addition to diminishing the
protections that were established for PHMAs.” Id. at p. 42. The SFAs, GHMAs
and PHMAs “straddle the borders of Nevada, Idaho, Wyoming and Colorado” but
“the Draft EIS does not assess how these proposed amendments in Utah may
impact populations in nearby States.” Id. The EPA recommended that “[g]iven
sage-grouse populations cross state boundaries and because there are seven BLM
state offices revising their plans, we recommend the Final EIS include a
cumulative, cross-boundary effects analysis to assess the combined effects to
greater sage-grouse populations and habitats associated with the revisions.” Id.
The EPA expressed the same concerns with the 2019 Plan Amendments for
Wyoming. Id. at pp. 36-37.
The BLM did not address the EPA’s comments, and instead issued Final
EISs in December of 2018, and then Records of Decisions (RODs) in March of
2019, to amend its 2015 Sage-Grouse Plans in Idaho and the six other states. The
Memorandum Decision & Order – page 10
BLM announced that the 2019 BLM RODs were “effectively immediately.” See
84 Fed. Reg. 10,322–10,330 (Mar. 20, 2019).
Changes in 2019 Plan Amendments
The stated purpose of the 2019 Plan Amendments was to enhance
cooperation between the BLM and the States by modifying the BLM’s protections
for sage grouse to better align with plans developed by the States. While this is a
purpose well-within the agency’s discretion, the effect on the ground was to
substantially reduce protections for sage grouse without any explanation that the
reductions were justified by, say, changes in habitat, improvement in population
numbers, or revisions to the best science contained in the NTT and CTO Reports.
One example of these reductions is that the 2019 BLM Plan Amendments
eliminated SFAs in all states but Oregon, downgrading SFAs to the less protective
PHMA designation. In Idaho, 3,961,824 acres of SFAs were eliminated by the
2019 Plan Amendments. The Final EISs stated that removing the SFA
designations “would have no measurable effect on the conservation of Greater
Sage-Grouse,” but failed to identify any changes on the ground – or in the science
– since the COT Report that had explained the need for the SFAs and designated
those areas for the highest protection from energy development and other surface
Memorandum Decision & Order – page 11
The 2019 BLM Plan Amendments eliminated both the “compensatory
mitigation” requirement and related “net conservation gain” standard. As
discussed above, these features were crucial to the FWS finding in 2015 that an
ESA listing for the sage grouse was not warranted. See 80 Fed. Reg. at 59,882
(“Requiring mitigation for residual impacts provides additional certainty that,
while impacts will continue at reduced levels on Federal lands, those impacts will
be offset to a net conservation gain standard”).
The 2019 Amendments included significant changes to mandatory buffers
around sage-grouse leks in designated habitat areas. See App. A at 2. In Idaho and
Nevada/California, the BLM reduced existing lek buffers by several miles. Id.
Colorado removed the prohibition on oil and gas leasing within 1 mile of active
sage-grouse leks, opening up approximately 224,000 acres of previously-protected
habitat. Id. The application of buffers around lek sites was changed from
mandatory to discretionary in Colorado, Utah, and Nevada/California, and the
plans in Idaho and Wyoming now allow BLM officers to exempt projects from
buffers in more circumstances. Id.
The 2019 Amendments included a series of measures undermining the 2015
Plans’ mechanisms of “hard and soft triggers” requiring BLM to take corrective
action when monitoring data shows that sage-grouse populations or habitats fall
Memorandum Decision & Order – page 12
below specified thresholds. See App. A at 4. In Nevada/NE California, for
example, BLM replaced “hard” triggers requiring management changes with
“warnings” and will now apply triggers only at the lek cluster scale, which could
allow individual leks to blink out without corrective management action. Id. The
Utah ROD similarly undermined the certainty that concrete steps will be taken
once adaptive management “triggers” are met, by lengthening time-frames for
management response and introducing qualifications on when corrective strategies
must be implemented. Id. The Final EISs claimed that these changes will be
“beneficial” for sage-grouse or failed to evaluate them at all. Id.
Injunctive relief is an “extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, 555
U.S. 7, 22 (2008). Plaintiffs must show that: (1) they are likely to succeed on the
merits; (2) they are likely to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in their favor; and (4) that an injunction is in
the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere
“possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in
some circumstances, to justify a preliminary injunction).
Memorandum Decision & Order – page 13
The purpose of NEPA is twofold: “(1) to ensure that agencies carefully
consider information about significant environmental impacts and (2) to guarantee
relevant information is available to the public.” N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011). “In order to accomplish
this, NEPA imposes procedural requirements designed to force agencies to take a
‘hard look’ at environmental consequences.” Lands Council v. Powell, 395 F.3d
1019, 1027 (9th Cir. 2005).
Administrative Procedures Act
NEPA does not provide a separate standard of review. Thus, NEPA claims
are reviewed under the standards of the Administrative Procedures Act (APA). See
San Luis v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the APA, “an
agency action must be upheld on review unless it is ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.’ ” Jewell, 747 F.3d at 601
(quoting 5 U.S.C. § 706(2)(A)). A reviewing court “must consider whether the
decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment.” Id. The reviewing court’s inquiry must be
“thorough,” but “the standard of review is highly deferential; the agency’s decision
is entitled to a presumption of regularity, and [the court] may not substitute [its]
judgment for that of the agency.” Id.
Memorandum Decision & Order – page 14
Although a court's review is deferential, the court “must engage in a careful,
searching review to ensure that the agency has made a rational analysis and
decision on the record before it.” Nat'l Wildlife Fed. v. Nat'l Marine Fisheries
Serv., 524 F.3d 917, 927 (9th Cir. 2007). “[T]he agency must examine the relevant
data and articulate a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The
reasoned-decision making requirement, the Supreme Court has often observed,
includes a duty to explain any “departure from prior norms.” Atchison, Topeka &
Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); see also Int'l
Union, UAW v. NLRB, 802 F.2d 969, 973-74 (7th Cir. 1986) (“[A]n administrative
agency is not allowed to change direction without some explanation of what it is
doing and why.”).
The plaintiffs ask the Court to consider the Declaration of Dr. Clait
Braun (Dkt. No. 124-3) although it is not part of the administrative record. The
Court may properly consider material outside the administrative record like Dr.
Braun’s Declaration to determine whether BLM failed to consider important
factors in its NEPA analysis. See Ctr. for Biol. Diversity v. BLM, 698 F.3d 1101,
Memorandum Decision & Order – page 15
1123 n. 14 (9th Cir. 2012). Considering extra-record evidence is warranted “where
the plaintiff alleges ‘that an EIS has neglected to mention a serious environmental
consequence, failed adequately to discuss some reasonable alternative, or
otherwise swept stubborn problems or serious criticism under the rug.’” Nat’l
Audubon Soc. v. U.S. Forest Serv., 46 F.3d 1437, 1447 (9th Cir. 1993); see also
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980) (“It will often be
impossible, especially when highly technical matters are involved, for the court to
determine whether the agency took into consideration all relevant factors unless it
looks outside the record to determine what matters the agency should have
considered but did not”). The burden is on plaintiffs to satisfy this standard. Id.
The Court finds that plaintiffs have satisfied that burden here. There is a
serious issue in this case whether the BLM neglected to evaluate a serious
environmental consequence or failed to consider an important factor – that is,
whether the BLM based its reductions on protections for the sage grouse on
something other than merely a desire to adopt State plans.
For example, did the BLM fail to consider the science on sage grouse? Dr.
Braun’s Declaration directly addresses that issue. As discussed, the Court has
previously found Dr. Braun to be a leading expert on sage grouse after hearing his
testimony during an evidentiary hearing. In his Declaration filed in this case, Dr.
Braun states that “subsequent scientific research and studies” confirm his earlier
Memorandum Decision & Order – page 16
opinion that the NTT Report was the “gold standard” for management
recommendations to protect sage grouse populations and habitat. Id. at ¶ 3. While
he found the 2015 Plans largely follow the NTT Report recommendations, he finds
that the “2019 Plan Amendments eliminate or substantially weaken important
aspects of the 2015 Plans in contradiction of the best available science, and would
allow BLM to approve extensive new oil and gas and other energy and industrial
developments, as well as unscientific and damaging livestock grazing and
vegetation management projects . . . .” Id. at ¶ 5. He also finds that in the years
since the 2015 Plans, sage grouse habitats have “suffered extensive losses and
fragmentation” due to wildfire and oil and gas development. Id. at ¶ 31. After
reviewing the Final EISs for the 2019 Plan Amendments, he concludes that the
“BLM seems to have wholly avoided addressing these recent trends, and
completely failed to evaluate what they reveal for the future of sage-grouse . . . .”
Id. at ¶ 32. He concludes further that “BLM essentially ignored analyzing either
current habitat conditions and fragmentation, or how plan changes may impact
sage-grouse habitats. The failure of BLM to undertake such analysis in the 2019
Plan Amendments is wholly inconsistent with standard practices and the best
available science.” Id. at ¶ 45.
Here, Dr. Braun’s Declaration shows that the BLM wholly failed to consider
a serious environmental consequence. The same analysis applies to the
Memorandum Decision & Order – page 17
Declarations of Dr. Amy Haak (who compiled data relied upon by Dr. Braun in
reaching his conclusion that habitat has suffered extensive losses and
fragmentation due to wildfire and oil and gas development) and Dr. John Connelly
(a sage grouse expert who reviewed the 2019 Plan Amendments for Idaho and
Wyoming). Both Dr. Haak and Dr. Connelly reach the same conclusion as Dr.
Braun that the BLM failed to consider serious environmental consequences in the
adoption of the 2019 Plan Amendments.
The Government objects that plaintiffs failed to file a motion to supplement
the administrative record and simply filed these Declarations with their motion for
summary judgment. This tactic, defendants argue, “effectively shift[s] the burden
to Federal Defendant to explain why the materials should not be considered.” See
Government Brief (Dkt. No. 43) at p. 3. But the Court is not shifting that burden –
the burden remains on plaintiffs to show that the admission of the Declarations “is
necessary to determine whether the agency has considered all relevant factors.”
Powell, 395 F.3d at 1030. The Court finds that plaintiffs have carried that burden
with respect to the Declarations of Drs. Braun, Haak, and Connelly. 2
Plaintiffs have moved to file a supplemental Declaration of Dr. Braun updating his discussion of
sage grouse conditions while Intervenors have move to file a Declaration of Joshua Uriarte, discussing
why the data in Dr. Braun’s supplemental Declaration might be misleading. The Court will allow both
Declarations to be filed and finds both helpful but neither determinative.
Memorandum Decision & Order – page 18
In addition, the Declarations are appropriate to establish that irreparable
harm will result if the 2019 Plan Amendments are not enjoined. See Idaho
Watersheds Project v. Hahn, 307 F.3d 815, 833–34 (9th Cir. 2002) (reviewing
extra-record declaration when considering injunction); Nat’l Wildlife Fed’n v.
Nat’l Marine Fisheries Serv., 422 F.3d 782, 797 (9th Cir. 2005) (affirming
preliminary injunction based upon extra-record expert declarations). The Court
will therefore consider those three Declarations.
The Court will now turn to a discussion of each element required for
Likelihood of Success – Failure to Consider Reasonable Alternatives
In addition to evaluating the proposed agency action, every EIS must
‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to that
action. See 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed
action is “the heart of the environmental impact statement.” Ctr. for Biological
Diversity v. U.S., 623 F.3d 633, 642 (9th Cir. 2010).
In this case, the Final EISs identified the purpose and need of the 2019 BLM
Plan Amendments as follows: (1) to enhance cooperation and coordination with the
states, (2) to align with Dept. of Interior and BLM policy directives issued since
2015, and (3) to incorporate measures to better align with state conservation plans.
See, e.g., ID Final EIS at ES-2. To achieve these purposes, each Draft EIS
Memorandum Decision & Order – page 19
identified two alternatives: (1) the “No Action” alternative (i.e., keeping the 2015
Plans intact), and (2) BLM’s preferred “Management Alignment Alternative,” (i.e.,
proposed modifications for each state). See, e.g., Idaho DEIS at ES-5. The Final
EISs modified the “Management Alignment Alternative” slightly, to arrive at the
Proposed Plan Amendments approved in the RODs.
However, the “No Action” alternative was not in fact an alternative but was
included only for comparison purposes because the BLM had decided that it would
not meet the three purposes and needs listed above. See, e.g., ID ROD at 1-9. The
Final EISs thus only considered BLM’s preferred outcome.
In order to be adequate, an environmental impact statement must consider
“not every possible alternative, but every reasonable alternative.” Protect Our
Communities Foundation v. LaCounte, 2019 WL 4582841 (9th Cir. Sept. 23, 2019).
The stated goals of a project necessarily dictate the range of “reasonable”
alternatives. Id. An agency need not consider alternatives that are “unlikely to be
implemented or those inconsistent with its basic policy objectives.” Id.
Here, the BLM’s stated goals – set forth above – generally seek to align its
actions with the State’s plans but do not mention sage grouse protections.
Nevertheless, the BLM defends the EISs as continuing to protect the sage grouse,
and so the Court will assume that is a key goal. But given that goal, the weakening
Memorandum Decision & Order – page 20
of protections without justification does not make “reasonable” the single
In Protect our Communities (POC), decided just last month, the Ninth
Circuit reaffirmed its holding in Muckleshoot Indian Tribe v. U.S., 177 F.3d 800,
813 (9th Cir. 1999) (per curiam). In Muckleshoot, the Circuit held that an
alternatives analysis was deficient because it “considered only a no action
alternative along with two virtually identical alternatives.” Id. at 813. The Circuit
distinguished Muckleshoot in POC because the EIS in POC combined an analysis
of two projects – labeled Phase I and Phase II – and an alternative to the preferred
alternative was considered for the project as a whole even though no alternatives
were considered for Phase II itself. The POC decision states that “if Phase II
constituted the entire project, . . . Muckleshoot would require us to conclude that
the alternatives analysis was deficient.” Id. at *6.
This case is closer to Muckleshoot than POC. Each EIS is a separate NEPA
document and none of the EISs considered any alternative other than the
Management Alignment Alternative. Common sense and this record demonstrate
that mid-range alternatives were available that would contain more protections for
sage grouse than this single proposal. The Court therefore finds that plaintiffs are
likely to succeed on their claim that the BLM failed to consider reasonable
alternatives in violation of NEPA.
Memorandum Decision & Order – page 21
Likelihood of Success – Failure to Take a “Hard Look”
In WWP v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), the Ninth Circuit
held that the BLM failed to take a hard look at the environmental consequences of
regulatory changes when it ignored comments of the FWS and EPA, among others,
expressing concerns about those changes. The Circuit found that the BLM gave
“short shrift” to the concerns of the FWS and EPA and “neither responded to their
considered comments objectively and in good faith nor made responsive changes
to the proposed regulations.” Id. at 493. The Circuit went on to hold that “[w]hen
an agency, such as the BLM, . . . offers no meaningful response to serious and
considered comments by experts, that agency renders the procedural requirement
meaningless and the EIS an exercise in form over substance.” Id. at 492-93.
In the present case, as explained above, the EPA expressed several concerns
about the proposed 2019 Plan Amendments. Those Amendments weakened many
of the protections that the FWS relied upon in finding that an ESA listing was not
warranted. The weakening of protections is contrary to the science contained in
the NTT and COT Reports.
Certainly, the BLM is entitled to align its actions with the State plans, but
when the BLM substantially reduces protections for sage grouse contrary to the
best science and the concerns of other agencies, there must be some analysis and
justification – a hard look – in the NEPA documents. It is likely that plaintiffs will
Memorandum Decision & Order – page 22
prevail on their claim that this hard look was not done with respect to all six EISs
challenged here, just as it was missing in Kraayenbrink.
Likelihood of Success – Failure to Consider Cumulative Impacts
The EPA expressed concerns about the lack of a substantive cumulative
impact analysis, as discussed above. Part of that concern was due to the manner in
which the BLM divided up the analysis among six separate EISs each focusing on
a single State.
Under NEPA, courts must give deference “to an agency’s determination of
the scope of its cumulative effects review.” Selkirk Conservation Alliance v.
Forsgren, 336 F.3d 944, 959 (9th Cir. 2003). The geographical scope is not
necessarily limited to the project’s geographical boundaries or to state borders. Id.
“Agencies are not obligated to explain why they exclude every possible area that
might be included in the cumulative effects area. Instead, they must justify on the
record the chosen level of analysis.” Id.
Here, the six EISs at issue are State specific despite clear evidence in the
record that the sage grouse range covers multiple states and that a key factor –
connectivity of habitat – requires a large-scale analysis that transcends the
boundaries of any single State. The BLM is in a unique position, as compared to
each individual State, to conduct an analysis that evaluates the cumulative impacts
of each State plan – and the BLM’s own actions – over the entire range of the sage
Memorandum Decision & Order – page 23
grouse. While courts must give deference to an agency’s scope decision, the
BLM’s focus on individual States required a robust cumulative impacts analysis
given the range of the sage grouse. Because that is lacking, the plaintiffs are likely
to succeed in their claim that the BLM’s EISs do not contain a sufficient
cumulative impacts analysis under NEPA and, most importantly, do not contain
any justification for that failure.
Likelihood of Success – Elimination of Compensatory Mitigation
As discussed above, the FWS relied on the mandatory compensatory
mitigation provisions of the 2015 Plans to make its finding that an ESA listing was
not warranted. The Draft EISs for the 2019 Plans assumed that the mandatory
compensatory mitigation provisions of the 2015 Plans would remain in effect, see
e.g., Idaho Draft EIS at 4-15, but stated that the BLM was still evaluating whether
to maintain those provisions. Id. at 2-4.
The Final EISs were the first time the BLM announced it was removing the
mandatory compensatory mitigation, and the public was never given notice or an
opportunity to comment on those actions before they were taken. BLM’s
elimination of mandatory compensatory mitigation through the Final EISs appears
to constitute both a “substantial changes” to its proposed action and “significant
new circumstances” under 40 C.F.R. § 1502.9(c), requiring that BLM have issued
a supplemental draft EIS for public review and comment before finalizing these
Memorandum Decision & Order – page 24
changes. Failing to do so “insulate[d] [the agency’s] decision-making process
from public scrutiny. Such a result renders NEPA’s procedures meaningless.”
California v. Block, 690 F.2d 753, 771 (9th Cir. 1982).
For these reasons, the plaintiffs are likely to succeed on this claim.
Conclusion on Likelihood of Success on the Merits
The BLM had a duty to explain any “departure from prior norms.” Atchison,
Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); see
also Int'l Union, UAW v. NLRB, 802 F.2d 969, 973-74 (7th Cir. 1986) (“[A]n
administrative agency is not allowed to change direction without some explanation
of what it is doing and why.”). To summarize the discussion above, the plaintiffs
will likely succeed in showing that (1) the 2019 Plan Amendments contained
substantial reductions in protections for the sage grouse (compared to the 2015
Plans) without justification; (2) The EISs failed to comply with NEPA’s
requirement that reasonable alternatives be considered; (3) The EISs failed to
contain a sufficient cumulative impacts analysis as required by NEPA; (4) The
EISs failed to take the required “hard look” at the environmental consequences of
the 2019 Plan Amendments; and (5) Supplemental Draft EISs should have been
issued as required by NEPA when the BLM decided to eliminate mandatory
Memorandum Decision & Order – page 25
As discussed above, the BLM has ordered that the 2019 Plan Amendments
be effective immediately. That means that all BLM approvals of discretionary
actions affecting sage-grouse habitats must now follow the 2019 Plan
Amendments. See 43 U.S.C. § 1732(a); 43 C.F.R. § 1610.5-3(a). Under these
weakened protections, the BLM will be approving oil and gas leases; drilling
permits; rights-of-way for roads, pipelines, and powerlines; coal and phosphate
mining approvals; and livestock grazing permit renewals. See Saul Declaration
(Dkt. No. 124-16) . ¶¶ 22–31; Anderson Declaration (Dkt. No. 124-2). ¶¶ 26–59.
It is likely that these actions will cause further declines of the sage grouse under
the weakened protections of the 2019 Plan Amendments.
Defendants argue that such actions are not imminent, but the Court
disagrees. The record shows that the 2019 Plan Amendments were designed to
open up more land to oil, gas, and mineral extraction as soon as possible. That was
the expressed intent of the Trump Administration and then-Secretary Ryan Zinke.
There is no indication that current Secretary David Bernhardt is proceeding at any
Numerous site-specific applications of the 2019 Plan Amendments that are
upcoming (or have already occurred) include oil and gas well drilling and
associated road and pipeline construction in Wyoming; coal mining projects in
Utah; gold and other surface mining projects in Nevada; and large phosphate
Memorandum Decision & Order – page 26
mining projects in Idaho. See Saul Declaration, supra, at ¶¶ 22–31; Anderson
Declaration, supra, at ¶¶ 53–58.
Given these circumstances, the Court finds that plaintiffs are likely to suffer
irreparable harm in the absence of injunctive relief.
Balance of Hardships & Public Interest
Plaintiffs do not seek injunctive relief preventing BLM from approving any
new oil and gas well or lease, grazing permit, or other discretionary authorization
for use of public lands. Plaintiffs only ask the Court to enjoin BLM from
approving such uses based on the 2019 Plan Amendments. Under the requested
injunction, BLM may continue applying the 2015 Plans to upcoming permits,
licenses and other approvals; and plaintiffs reserve the right to challenge such
actions as may be appropriate. But this Court is not asked to enjoin them now.
These circumstances tip the balance of hardships toward plaintiffs – the sage
grouse will suffer more hardships from the 2019 Plan Amendments than the
defendants will suffer from reverting to the provisions of the 2015 Plans.
With regard to the public interest, the Ninth Circuit has recognized “the
well-established public interest in preserving nature and avoiding irreparable
environmental injury.” Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir.
2008), overruled on other grounds by Winter v. NRDC, 555 U.S. 7 (2008)). And
“[s]uspending a project until [environmental analysis] has occurred . . . comports
Memorandum Decision & Order – page 27
with the public interest,” because “the public interest requires careful consideration
of environmental impacts before major federal projects may go forward.” S. Fork
Band Council of W. Shoshone of Nev. v. U.S. Dept. of Interior, 588 F.3d 718, 728
(9th Cir. 2009).
The plaintiffs have satisfied all the elements for injunctive relief, and the
Court will therefore grant their motion for a preliminary injunction. The BLM is
enjoined from implementing the 2019 BLM Sage-Grouse Plan Amendments for
Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon,
until such time as the Court can adjudicate the claims on the merits. The 2015
Plans remain in effect during this time.
Because plaintiffs are non-profit environmental groups seeking to advance
the public interest in this litigation the Court will waive the injunction bond
requirement under Rule 65(c). See Barahona-Gomez v. Reno, 167 F.3d 1228, 1237
(9th Cir. 1999)
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for
preliminary injunction (docket no. 124) is GRANTED. The BLM is enjoined from
implementing the 2019 BLM Sage-Grouse Plan Amendments for Idaho, Wyoming,
Memorandum Decision & Order – page 28
Colorado, Utah, Nevada/Northeastern California, and Oregon, until such time as
the Court can adjudicate the claims on the merits. The 2015 Plans remain in effect
during this time.
IT IS FURTHER ORDERED, that the plaintiffs’ motion to supplement with
the declaration of Dr. Braun (docket no. 182) and intervenor’s motion to
supplement with the declaration of Uriarte (docket no. 183) are GRANTED.
DATED: October 16, 2019
B. Lynn Winmill
U.S. District Court Judge
Memorandum Decision & Order – page 29
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