Western Watersheds Project v. Bureau of Land Management

Filing 265

MEMORANDUM DECISION AND ORDER The motion for summary judgment filed by plaintiff (docket 227 ) is GRANTED. The motions for summary judgment filed bydefendants and intervenors (docket nos. 241 , 246 & 248 ) are DENIED. the EA, FONSI, and Final G razing Decisions concerning the Jim Sage allotment, Cassia Creek allotment, Chokecherry allotment, and Almo Womack allotment are hereby REMANDED to the BLM for further action consistent with this decision. 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 (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
Plaintiff,

Case No. 4:08-CV-435-BLW

v.

MEMORANDUM DECISION
AND ORDER

S.M.R. JEWELL, Secretary, Dept. Of Interior,
et al.,
Defendants.
J.R. SIMPLOT CO., et al.,
Intervenor-Defendants,
PUBLIC LANDS COUNCIL, NATIONAL
CATTLEMEN’S BEEF ASSOCIATION,
IDAHO CATTLE ASSOCIATION,
Intervenor-Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument, and took the motions under advisement. For the reasons expressed below,
the Court will grant WWP’s motion and deny those of the defendants and intervenors.
SUMMARY
In this lawsuit, WWP has challenged some 600 BLM decisions that allegedly
failed to protect sage grouse, a species that is in such decline that the BLM designed it as
a “sensitive” species, to be treated as if it was a candidate species under the Endangered

Species Act. To make the litigation manageable, the parties agreed to file a series of
summary judgment motions concerning specific allotments that were representative of
many others.
In the first round of litigation, the Court found insufficient the environmental
reviews governing grazing permits on five allotments. In this second round, the Court
finds that reviews of four other allotments were similarly insufficient.
STANDARD OF REVIEW
The Court’s review of these four permit renewals by the BLM is governed by the
Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Under the APA, the
reviewing court must set aside the agency’s decision if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A
decision is arbitrary and capricious if the agency has 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. O'Keeffe’s, Inc. v. U.S. Consumer Product Safety Comm’n,
92 F.3d 940, 942 (9th Cir.1996). An agency action is also arbitrary and capricious if the
agency fails to articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made. Id. Finally, an agency must set
forth clearly the grounds on which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of
Trade, 412 U.S. 800, 807 (1973).

“Review under the arbitrary and capricious standard is narrow, and the reviewing
court may not substitute its judgment for that of the agency.” O'Keeffe’s, 92 F.3d at 942
(citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989)). Courts
“must be at [their] most deferential when reviewing scientific judgments and technical
analyses within the agency’s expertise.” Lands Council v. McNair, 629 F.3d 1070, 1074
(9th Cir. 2010). Courts “are not to act as a panel of scientists, instructing the agency,
choosing among scientific studies, and ordering the agency to explain every possible
scientific uncertainty.” Id. at 1074 (citation omitted). “‘When specialists express
conflicting views, an agency must have discretion to rely on the reasonable opinions of
its own qualified experts even if, as an original matter, a court might find contrary views
more persuasive.’” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en
banc) (quoting Marsh, 490 U.S. at 378). With this in mind, the reviewing court must still
undertake a “thorough, probing, in-depth review” of the agency’s decision. Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971).
LITIGATION BACKGROUND
In its original complaint, WWP challenged about 600 separate decisions of the
BLM concerning some 40 million acres spread out over two states, Idaho and Nevada.
WWP’s basic claim is that each decision fails to protect the sage grouse, a BLMdesignated sensitive species.
The BLM filed a motion to dismiss that the Court granted in part, finding that the
challenges to the decisions of the BLM’s Nevada District Offices should be severed and
transferred to the District of Nevada. The Court denied the motion in all other respects.

Thereafter, the parties agreed to, and the Court approved, the use of a “staggered”
approach to summary judgment. In the first round of summary judgments, WWP would
challenge the BLM’s renewal of grazing permits on certain allotments in the Owyhee and
Bruneau Field Offices, and then, after receiving a decision on those, would start a second
round by challenging another set of decisions. The Court has resolved the permit
challenges made in the first round, see WWP v. Salazar, 843 F.Supp.2d 1105 (D. Idaho
2012), and is now resolving those made in the second round.
In this first round, WWP challenged BLM decisions to renew grazing permits on
five allotments: (1) Rockville; (2) Silver City, (3) Diamond Basin; (4) Battle Creek; and
(5) East Castle Creek. The latter two allotments are in the Bruneau Field Office; the
former three are in the Owyhee Field Office. The Court granted summary judgment to
WWP, holding that the five permits renewals (1) violated NEPA because the BLM failed
to conduct a sufficient cumulative impacts analysis; (2) violated FLPMA because the
grazing allowed by the permits was not consistent with the Range Management Plans
governing the relevant Field Office; and (3) violated the Fundamentals of Rangeland
Health regulations because the BLM moved certain grazing restrictions out of the
mandatory Terms and Conditions category and made them discretionary. Id.
In this second round, WWP is making many of the same claims against permit
renewals for four allotments within the Burley Field Office: Jim Sage, Cassia Creek,
Chokecherry, and Almo-Womack. WWP claims that the permit renewals on these four
allotments (1) violated NEPA because the BLM failed to conduct a sufficient cumulative
impacts analysis, and failed to consider alternative grazing levels, including a no-grazing

alternative.; (2) violated FLPMA because the grazing allowed by the permits was not
consistent with the Cassia Resource Management Plan (Cassia RMP); and (3) violated
the Fundamentals of Rangeland Health regulations because the BLM moved certain
grazing restrictions out of the mandatory Terms and Conditions category and made them
discretionary.
In addition, both sides seek summary judgment concerning nine other allotments
that were renewed without any environmental review pursuant to the 2003 grazing rider.
Both sides ask the Court to resolve whether the BLM properly applied the rider.
Before resolving those legal claims, the Court will first examine basic facts about
the sage grouse and then turn to a review of the condition of each allotment and the
BLM’s decision to renew grazing on each allotment.
FACTUAL BACKGROUND
Sage Grouse Characteristics
The Court described in detail the overall status of the sage grouse in its earlier
decision and will not repeat that entire discussion here. In summary, sage grouse inhabit
the sage steppe ecosystem found in ten western states, including Idaho. They are
sagebrush obligates, and rely on sagebrush all year to provide roosting, cover and food.
They typically inhabit large, interconnected expanses of sagebrush habitat, and thus are
characterized as a landscape-scale species. While some populations are resident, others
have been recorded traveling distances up to 100 miles. Sage grouse in Idaho moved as
far as 50 miles from breeding and nesting sites to summer ranges, although migration

may be much shorter depending on the distance between ranges. On an annual basis
migratory sage-grouse populations may occupy an area that exceeds 1,042 square miles.
During the winter months, sage grouse depend almost exclusively on sagebrush
for food. As winter turns to spring, in early March, sage grouse move to breeding areas
known as leks. In Idaho, the lek season runs from about March 15 to May 1. In
establishing leks, sage grouse prefer sites with extensive cover of low grasses, surrounded
by taller sagebrush.
After mating, the female moves away from the lek to establish a nest. The nesting
season in Idaho lasts from about April 1 to June 15. This nesting season is critical
because the sage grouse has one of the lowest reproductive rates of any North American
game bird, and its populations are not able to recover from low numbers as quickly as
many other upland game bird species.
Greater sage grouse populations have been declining for at least 25 years. The
2004 Conservation Assessment, prepared by the leading scientific experts, concluded that
every major metric in sage grouse population abundance has declined over the last 50
years. The declining populations are occurring as sage brush habitat disappears. The
leading experts concluded in the Idaho Conservation Plan that “[t]he loss and
fragmentation of sage-grouse habitat in some parts of Idaho are of major concern.” See
Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in
Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts.
Id. at p. 4-3.

To protect sage-grouse from further habitat and population losses, the BLM
adopted in November of 2004, a National Sage-Grouse Habitat Conservation Strategy to
give management direction and guidelines to BLM Field Office staff. The BLM has also
designated greater sage-grouse a “sensitive” species across its range, pursuant to BLM's
2001 Special Status Species Policy. That Policy requires that “sensitive” species be
afforded, at a minimum, the same protections as candidate species for listing under the
ESA, and makes BLM Field Office managers responsible for implementing the Policy.
Burley Field Office
The Burley Field Office is located in south-central Idaho, largely in Cassia
County. The area is bordered on the north by the Snake River and on the south by
Nevada and Utah. To both the east and the west, the Field Office is bordered in part by
portions of the Sawtooth National Forest. It covers about 1.6 million acres of land. The
Bruneau and Owyhee Field Offices – discussed in the Court’s decision on the first round
of motions – lie to the west of the Burley Field Office separated by the Jarbridge Field
Office.
The Burley Field Office contains large tracts of sage grouse habitat that support
part of the Great Basin core population of sage grouse, one of the five largest remaining
core populations across the entire range of this species. The management of the Burley
Field Office is governed by the Cassia RMP. It was adopted in 1985, and concluded that
70% of the public lands were in fair to poor condition. SAR 7101. The trend was also
poor – 81% of the land was in a static or downward trend. SAR 7101-2. Livestock
grazing was damaging riparian areas and food sources for the sage grouse. The Cassia

RMP concluded that the “[e]ffects on sage grouse deserve special attention since this
species would be affected the most. Livestock grazing would not allow sage grouse
habitat and populations to improve. A rapid removal of forbs by livestock on spring and
summer ranges would have an adverse impact on juvenile sage grouse, especially those
areas where forbs are scarce.” SAR 7112.
The lands governed by the Cassia RMP were divided into various Management
Areas. All four allotments at issue here are within Management Area 10 (MA 10). Each
allotment in MA 10 received an “I” classification, meaning that the allotments were in
unsatisfactory condition or had significant resource conflicts with good potential for
improvement. SAR 6927, 6945.
To improve the condition of the land, the initial draft of the Cassia RMP proposed
various alternatives; the final draft selected “Alternative C.” While this alternative
planned to increase grazing 7%, it also planned to impose mandatory terms and
conditions that would eventually result in 90% of the land categorized as being in an
increasing trend, and that would apply to each allotment in MA 10. SAR 7104, 7198.
Those mandatory terms and conditions included the following: (1) “Streams and
wetlands will be managed to restore, protect, and enhance the quality and quantity of the
aquatic habitat on public lands,” SAR 7025; (2) “Rangeland management grazing systems
will be implemented to protect or improve riparian/wetland areas,” id; (3) BLM will
“[t]ake necessary measures to eliminate conflict or land uses that will jeopardize
threatened, endangered, or sensitive species,” SAR 7026; (4) “Where conflicts between

wildlife and other land uses occur, conflicts will be resolved in favor of wildlife,” id.; and
(5) “Public lands will be managed to maintain or improve wildlife habitat,” SAR 7033.
Jim Sage Allotment
The Jim Sage allotment contains 66,417 acres. The sage grouse use areas within
this allotment during the winter, and for breeding and late brood-rearing habitat. Large
areas within the eastern and central portions of this allotment are considered key sage
grouse habitat by the Idaho Department of Fish and Game (IDFG). There are 15
livestock permittees authorized to graze within the allotment, and the average actual use
totals 3,517 AUMs. See SAR 7-8, 771, 779.
In 2003, the BLM issued an evaluation of this allotment under the Fundamentals
of Rangeland Health (FRH). The BLM concluded that the allotment was in violation of 6
of the 7 applicable FRH standards, including those for riparian areas, stream channels,
native plant communities, seedings, water quality, and wildlife habitat for sensitive
species. SAR 765-770. The Idaho Department of Environmental Quality (“DEQ”)
reached the same conclusion: “After visiting several springs, creeks, and canyons in the
Jim Sage Allotment we agree with the BLM that grazing practices have played a large
rol[e] in their degradation. Stream banks were trampled and bare of vegetation, riparian
plants were either absent or heavily grazed and stream channels in many areas were
severely entrenched.” SAR 3286.
Cassia Creek Allotment
The Cassia Creek allotment is located just north of the Jim Sage allotment but is
much smaller, containing only 3,615 acres. According to the IDFG, nearly two-thirds of

the allotment contains key sage grouse habitat and the remainder has high potential for
restoration. The allotment contains one lek. SAR 727.
The allotment is grazed between May 1 and June 15, and the actual use permitted
is 697 AUMs. The average actual use if about 413 AUMs. See SOF (Dkt. No. 227-1) at
¶ 61. In 2003, the BLM’s FRH evaluation determined that the applicable standards on
this allotment were Standards 1 (watersheds), 5 (seedings) and 8 (Sensitive Species). The
BLM found that Standards 1 and 8 were being met, but that excessive livestock grazing
was causing violations of Standard 5. SAR 720-24.
Chokecherry Allotment
The Chokecherry allotment is the smallest of the four at issue, containing only
1.057 acres. Sage grouse do occupy the allotment. SAR 750. Two permittees are
allowed a total of 307 AUMs by 90 head of cows annually. SAR 1932-33.
In 2003, the BLM’s FRH determination showed that four of the six applicable
standards were not being met: Riparian Areas and Wetlands Case (Standard 2), Stream
Channel/Floodplains (Standard 3), Water Quality (Standard 7), and Threatened and
Endangered Species (Standard 8). SAR 744-48. Current livestock grazing caused three
of these violations, with heavy utilization, bare ground, bank trampling, and lack of
native vegetation as significant factors. Id.
Almo Womack Allotment
The Almo Womack allotment is just west of the Jim Sage allotment. It contains
4,194 acres. While there are no leks found on the allotment, sage grouse have been
spotted there. SAR 709-710. Large areas within this allotment are considered key sage

grouse habitat by the IDFG. See Cole Declaration at Exh. 4. In 2002, the BLM
conducted a FRH determination on this allotment. The BLM found that the allotment
was violating Standard 8, relating to Sensitive Species, but also found that current
livestock grazing was not a cause. SAR 705.
2006 Environmental Assessment
In 2008, the BLM issued its final Environmental Assessment (EA) on the four
allotments at issue here. The BLM also issued Findings of No Significant Impact
(FONSI) and final grazing decisions for the four allotments. SAR 1-86 (EA), SAR 89-648
(final grazing decisions and FONSI). WWP claims in this lawsuit that the EA, and
associated decisions, violate NEPA.
The EA examined three alternatives – the proposed action and alternatives 1 and 2.
Ultimately the EA selected alternative 2. The BLM did not consider any alternative that
reduced grazing levels. In fact, each of the alternatives was nearly identical to one
another and to the current levels and seasons of use. Id. at 7-17 (describing Proposed
Action, Alt. 1 and Alt. 2).
For example, under Alternative 2, “permitted AUMs . . . would remain the same as
described in the proposed action [alternative].” Id. at 14. Permitted AUMs in the
proposed action alternative “reflect what is currently allocated and will not change.” Id.
at 8, Table 3. And, under Alternative 1, “[p]ermits would be issued at the current AUM
level.” Id. at 13. Thus, all three alternatives proposed identical AUM levels.
Moreover, the grazing season-of-use was essentially the same for each alternative.
For example, the proposed action alternative proposed an identical season-of-use as under

the prior grazing scheme for 17 of 20 permittees allowed to graze these allotments, and
only minor adjustments for the remaining three permittees. SAR 7 at Table 3. Under
Alternative 1, BLM proposed to continue “current season of use for each allotment as
described in the proposed action (see Table 3).” Id. at 13. And, Alternative 2 similarly
proposes that “management in these areas would continue as described in the proposed
action alternative.” Id. at 15.
The BLM did not consider a “no grazing alternative” because, according to BLM,
its implementation would not meet the underlying purpose and need for the action to
renew/modify grazing permits authorizing livestock grazing. SAR 18.
ANALYSIS
NEPA – Cumulative Impacts Analysis
WWP claims that the EA is deficient for failing to adequately analyze
cumulative impacts. An EA must “fully address cumulative environmental effects or
cumulative impacts.” Te-Moak Tribe of Western Shoshone of Nev. v. U.S. Dep't of the
Interior, 608 F.3d 592, 602 (9th Cir.2010). A cumulative impact is “the impact on the
environment which results from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions . . . [and] can result from
individually minor but collectively significant actions taking place over a period of time.”
40 C.F.R. § 1508.7. An EA must include “a sufficiently detailed catalogue of past,
present, and future projects, and provide adequate analysis about how these projects, and
differences between the projects” might impact the environment. Te-Moak Tribe, 608
F.3d at 603.

These requirements are not satisfied by general statements about possible effects
or risks; the agency must take a “hard look” at cumulative impacts or explain why it
cannot. Id. “[S]ome quantified or detailed information is required. Without such
information, neither the courts nor the public . . . can be assured that the [agency]
provided the hard look that it is required to provide.” Id.
An agency ordinarily has the discretion to determine the physical scope of its
cumulative impacts analysis, but its choice must be reasoned and not arbitrary. Kleppe v.
Sierra Club, 427 U.S. 390, 413-14 (1976); Idaho Sporting Congress v. Rittenhouse, 305
F.3d 957, 973-74 (9th Cir. 2002). The agency must articulate a rational explanation
justifying its chosen cumulative impact analysis area. Native Ecosystems Council v.
Dombeck, 304 F.3d 886, 895-97 (9th Cir. 2002).
In WWP v Rosenkrance, 2011 WL39651 (D.Id. 2011), Judge Lodge reviewed a
BLM EA that authorized grazing on an allotment that was home to a BLM sensitive
species, the bull trout. The EA failed to consider the cumulative impacts of grazing
permits issued on adjoining allotments. Judge Lodge held that the EA “offers no real
analysis about cumulative impacts.” Id. at *13. He concluded that the “EA simply does
not show the big picture.” Id.
In assessing the EAs in round one, the Court found Rosenkrance applicable to the
cumulative impact analysis in those EAs. WWP v Salazar, supra, at 1127. The Court
found that for those EAs, the cumulative impacts analysis was similar to that evaluated in
Rosenkrance – they failed to discuss the existing conditions of sage grouse habitat and
populations in the surrounding areas. This failure was particularly troubling because

each of the five allotments at issue failed to meet Standard 8, the endangered species
standard, in large part because the sage grouse habitat was substantially degraded. The
cause – in three of the allotments and a portion of a fourth – was livestock grazing.
The cumulative impacts analysis in the EA at issue in round two suffers from the
same flaws. Once again the sage grouse habitat is degraded – three of the four allotments
violated the FRH Standard 8, the Sensitive Species Standard. The cumulative impacts
section contains no real discussion of the conditions of sage-grouse in these surrounding
allotments.
This failure is all the more acute because, as will be discussed further below, the
BLM is avoiding environmental reviews for many permit renewals. For permits renewed
under the 2003 grazing rider, the BLM has taken the position that it need not do any
NEPA or FLPMA review. The BLM has now renewed over 150 permits under the rider
without any environmental review. The effect of unexamined permit renewals in the area
would be critical to determining cumulative impacts.
The Court recognizes that it must scour the entire EA to determine if the
cumulative impact analysis could be enhanced by reading the EA in its entirety and not
just focusing on the section labeled “Cumulative Impacts.” See Ctr. for Envtl. Law &
Policy v. U.S. BOR, 655 F.3d 1000 (9th Cir. 2011). But the necessary cumulative impacts
discussion cannot be found anywhere in the EA.
For all of these reasons the Court finds that the EA evaluating the four allotments
at issue here violated NEPA by failing to contain an adequate cumulative impacts
analysis.

NEPA – Failure to Consider Alternatives Including No-Action Alternative
As discussed above, the EA evaluated three alternatives, each of which proposed
essentially the same AUMs and season of use. Moreover, a no-grazing alternative was
not evaluated. This Court held in its decision on the first round of motions that the failure
to consider alternatives to the existing grazing levels, and the failure to evaluate a nograzing alternative, violates NEPA. WWP v. Salazar, supra. “[T]he alternatives analysis
is naturally the heart of the environmental [review].” Oregon Natural Desert Ass'n v.
BLM, 625 F.3d 1092, 1099 (9th Cir.2010). The EA must “rigorously explore and
objectively evaluate all reasonable alternatives,” and the “existence of a viable but
unexamined alternative renders an environmental impact statement inadequate.” Id.
In this case, the EA failed to identify reasonable alternatives. The existing grazing
levels were contributing to sage grouse habitat degradation and yet the EA evaluated no
alternative that would have reduced grazing levels and/or increased restrictions on
grazing. The Ninth Circuit has recently struck down a NEPA analysis where each
alternative permitted grazing at the same level. WWP v. Abbey, 719 F.3d 1035 (9th Cir.
2013). For the same reason, the EA in this case violated NEPA.
Fundamentals of Rangeland Health
In 1997, the BLM adopted the Idaho Standards and Guidelines under the FRH
regulations. The Standards set forth criteria to evaluate the environmental health in six
areas: (1) watersheds; (2) riparian areas and wetlands, (3) stream channel/floodplain; (4)
native plant communities; (5) seedings; (6) exotic plant communities other than seedings;
(7) water quality; and (8) threatened and endangered plants and animals (and sensitive

species). For example, the water quality standard is satisfied if the surface and ground
water on the allotment comply with the Idaho Water Quality Standards. As another
example, the sensitive species standard is satisfied if the allotment contains habitat
suitable to maintain a viable population of sensitive species.
If an assessment reveals that the Standards are not satisfied, and the BLM makes a
final decision to take action to cure the violations, the BLM must “implement the
appropriate action as soon as practicable, but not later than the start of the next grazing
year.” See 43 C.F.R. § 4180.2(c)(2). The “appropriate action” is defined as action “that
will result in significant progress toward fulfillment of the Standards and significant
progress toward conformance with the Guidelines.” Id. at § 4180.2(c)(3). While the
BLM's regulations did not define “significant progress,” the Idaho Standards and
Guidelines define it as “[m]easurable and/or observable ... changes in the indicators that
demonstrate improved rangeland health.” WWP v. U.S. Dept. of Interior, 2009 WL
5218020 (D.Id.2009) at *7. The FRH regulations require that permits include mandatory
Terms and Conditions “that ensure compliance with subpart 4180 [the subpart that sets
forth the BLM's duty to take action that would result in significant progress by the next
grazing season].” See 43 C.F.R. § 4130.3–1.
The FRH regulations are time-sensitive and compulsory. In round one, the Court
held that specific restrictions based on such things as stubble height, steam bank
alteration, riparian browsing, and utilization of certain plants and grasses had to be
contained as mandatory terms and conditions within every permit under the FRH

regulations. WWP v. Salazar, supra at 1128-30.1 In that case, the BLM had made those
criteria discretionary rather than mandatory, and the Court held that this violated the FRH
regulations. Id. at 1130.
The grazing permits for the four allotments at issue here contain the same
provisions. The criteria that must be mandatory are instead voluntary and discretionary.
Thus, the Court finds that the final grazing decisions at issue for the four allotments
violate the FRH regulations for the same reasons found in WWP v Salazar, supra.
FLPMA
WWP argues that the BLM’s management of grazing in the four allotments is not
consistent with the Cassia RMP and thus violates FLPMA. To resolve this issue, the
Court must examine the details of the grazing permits and evaluate whether they abide
with the Cassia RMP, given the conditions on each allotment. This analysis may change,
however, once the BLM has modified the permits as required by the Court’s decision
above. Additional terms and conditions will become mandatory and a new cumulative
impacts analysis may result in modifications of each permit. Because the circumstances
could change so substantially, the Court would basically be rendered an advisory opinion
by ruling on the FLPMA issue at this time. For that reason, the Court declines to address
the FLPMA issue, but will allow the issue to be raised again if the modified permits fail
to abide by the Cassia RMP.
1

The Court gives these criteria merely as examples of the type of measurable criteria compelled
by the FRH regulations. The Court defers to the BLM as to the measurable criteria it ultimately decides
to place in the grazing permits.

Cessation of Grazing
In round one, the Court remanded the environmental reviews to the BLM but
refused to halt the grazing. The Court found that the “BLM can remedy the flaws
identified in the Court’s opinion without a total cessation of grazing.” WWP v. Salazar,
2012 WL 4470952 at *3 (D.Id. 2012). The same result is warranted here. The Court will
merely remand the matter to the BLM and will not halt grazing in the interim as the BLM
makes the changes dictated by this decision.
Grazing Rider
The parties identify 9 permits that were renewed under the terms of the 2003
grazing rider contained in § 325 of Public Law 108-108. All of these permits govern
grazing on allotments outside the Jim Sage allotments. The BLM’s Burley Field Office
has used the grazing rider to renew grazing permits without doing any NEPA or FLPMA
review in 168 of 200 allotments since 2005.
The BLM argues that § 325 tolls the BLM’s deadline to comply with all applicable
laws, including NEPA and FLPMA to allow the BLM to catch up on a massive backlog
of environmental reviews. In previous cases before this Court, the BLM has argued that
§ 325 completely absolved the BLM from following NEPA and FLPMA in renewing
permits. See WWP v. Bennett, 2008 WL 2003114 (D. Id. 2008). The Court rejected the
argument, holding that § 325 expressly required that renewals be consistent with
FLPMA. Id.

In this case, the BLM presents a new argument, that § 325 merely tolls the time for
NEPA and FLPMA review, allowing that review to come after the permit is renewed.
This new argument warrants a new look at § 325, which reads as follows:
SEC. 325. A grazing permit or lease issued by the Secretary of the Interior .
. . that expires, is transferred, or waived during fiscal years 2004-2008 shall
be renewed under section 402 of the Federal Land Policy and Management
Act of 1976, as amended (43 U.S.C. 1752) . . . The terms and conditions
contained in the expired, transferred, or waived permit or lease shall
continue in effect under the renewed permit or lease until such time as the
Secretary of the Interior . . . completes processing of such permit or lease in
compliance with all applicable laws and regulations, at which time such
permit or lease may be canceled, suspended or modified, in whole or in
part, to meet the requirements of such applicable laws and regulations.
Nothing in this section shall be deemed to alter the statutory authority of
the Secretary of the Interior or the Secretary of Agriculture . . . . Provided
further, That notwithstanding section 504 of the Rescissions Act (109 Stat.
212), the Secretaries in their sole discretion determine the priority and
timing for completing required environmental analysis of grazing
allotments based on the environmental significance of the allotments and
funding available to the Secretaries for this purpose. . . .
In its prior decision, this Court focused on the phrase that expiring permits “shall
be renewed under section 402 of the Federal Land Policy and Management Act of 1976,
as amended (43 U.S.C. 1752) . . . .” That statute, the Court noted, stated that permit
issuance be “consistent with the governing law.” See 43 U.S.C. § 1752(a). Thus, the
language in § 325 – when read together with the quoted statutory language – means that
the renewals must be consistent with FLPMA. Bennett, supra, at *7.
The BLM, changing its argument from waiver to tolling, now focuses the Court’s
attention on that part of § 325 stating that “[t]he terms and conditions contained in the
expired, transferred, or waived permit or lease shall continue in effect under the renewed
permit or lease until such time as the Secretary of the Interior . . . completes processing of

such permit or lease in compliance with all applicable laws and regulations . . . .” Other
courts have interpreted that language to have a tolling effect on the BLM’s duty under
NEPA: “In essence, Section 325 changes the relevant environmental analysis that applies
to grazing permits from a condition precedent into a potential condition subsequent; the
analysis still has to occur, but for the time being, not prior to renewal of the permits.”
WWP v. BLM, 629 F.Supp.2d 951, 970 (D. Ariz. 2009); see also Great Old Broads for
Wilderness v. Kempthorne, 452 F.Supp.2d 71, 81 (D.D.C. 2006)(holding that § 325
“require[s] reissuance of expired . . . grazing permits prior to the completion of otherwise
required actions”).
While holding that NEPA claims, among others, were tolled, neither case
discussed the language cited by this Court concerning FLPMA. While the Court finds
persuasive the holdings of these two cases for obligations other than FLPMA – such as
NEPA – the Court cannot find that their reasoning extends to FLPMA. The rider
expressly carves out an exception for FLPMA, as this Court held in Bennett, and the two
cases cited above never address the FLPMA language in § 325. While this analysis
might appear at first glance to create a conflict between Bennett and the two cases, they
are actually easily reconciled: While § 325 tolls the BLM’s obligation to proceed with
environmental obligations imposed by laws like NEPA, it carves out an exception for
FLPMA and requires a continuing obligation to follow that statute. This reading
recognizes the rule of statutory interpretation that effect must be given, if possible, to
every word, clause and sentence of a statute. U.S. v. Wenner, 351 U.S. 969, 975 (9th Cir.
2003).

This is the interpretation urged by WWP, and so the Court will grant its motion for
summary judgment on this issue. The Court will deny the motions filed by defendants
and intervenors on this issue.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment filed by plaintiff (docket no. 227) is GRANTED.
IT IS FURTHER ORDERED, that the motions for summary judgment filed by
defendants and intervenors (docket nos. 241, 246 & 248) are DENIED.
IT IS FURTHER ORDERED, that the EA, FONSI, and Final Grazing Decisions
concerning the Jim Sage allotment, Cassia Creek allotment, Chokecherry allotment, and
Almo Womack allotment are hereby REMANDED to the BLM for further action
consistent with this decision.

DATED: September 29, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court