Western Watersheds Project v. Kempthorne et al

Filing 231

MEMORANDUM DECISION AND ORDER granting in part and denying in part 151 Motion for Permanent Injunction. 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 (krb)

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

Case No. 4:08-CV-516-BLW

v.

MEMORANDUM DECISION
AND ORDER

KEN SALAZAR, Secretary,
DEPARTMENT OF THE INTERIOR,
Defendants.

INTRODUCTION
The Court has before it a motion for remedies filed by WWP. The Court held an
evidentiary hearing and requested further briefing. That briefing has been received and
the motion is at issue. For the reasons set forth below, the Court will (1) remand all
issues concerning the Craters of the Moon Resource Management Plan (RMP) and the
Pinedale RMP to the BLM, without vacatur, for the purpose of revising both RMPs; (2)
deny WWP’s request to impose interim measures to manage grazing and drilling during
the time the RMPs are being revised; (3) order the BLM to complete the new Craters
RMP by the end of 2014, and to complete the Pinedale RMP by the end of 2016.
LITIGATION BACKGROUND
In its complaint, plaintiff WWP challenges sixteen separate BLM RMPs and the
Environmental Impact Statement (EIS) associated with each RMP. These RMPs and
EISs were prepared by separate BLM offices in six different states: (1) Idaho; (2)
Memorandum Decision & Order – page 1

Montana; (3) Utah; (4) California; (5) Wyoming; and (6) Nevada. The lands associated
with the sixteen RMPs comprise the range of the sage grouse, and WWP alleges that each
of the challenged RMPs, and their associated EISs, fail to adequately consider the
environmental impacts of grazing and energy development on the sage grouse.
WWP’s claims are brought pursuant to the Administrative Procedure Act (APA), 5
U.S.C. §§ 701-706, for alleged violations of the National Environmental Policy Act
(NEPA), 42 U.S.C. §§ 4321-4370h, and the Federal Land Policy and Management Act
(FLPMA), 43 U.S.C. §§ 1700-1787. To streamline the case, WWP and the BLM
proposed, and the Court subsequently approved, a case management plan under which the
parties would brief initial summary judgment motions concerning two “test case” RMPs –
the Craters of the Moon RMP and the Pinedale RMP.
Those motions were filed, and the Court issued its decision on September 28,
2011. See Memorandum Decision (docket no. 131). With regard to Craters, the Court
found that although grazing was deemed by the agency to be a major contributing factor
to the decline of sage grouse habitat, the RMP/EIS failed to adequately address the best
science and the agency’s own policies designed to protect that habitat. Moreover, the
RMP/EIS failed to discuss alternatives to the status quo regarding grazing. More
specifically, the Court found that the Craters EIS violated NEPA and FLPMA by failing
to adequately address the Nature Conservancy Report, the WAFWA Conservation
Assessment, and the BLM’s own Special Status Species Policy (“Policy”) and National
Sage-grouse Habitat Conservation Strategy (“Strategy”). The BLM also failed to
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consider a no-grazing alternative or any alternative that would have reduced grazing
levels.
With regard to the Pinedale RMP/EIS, the Court found that it failed to (1) identify
how or where energy and grazing impacts to sage-grouse would occur; (2) map
sage-grouse winter use areas; (3) adequately discuss the failure of one third of allotment
acres to meet rangeland health standards due to grazing; (4) address the conclusions of
Dr. Braun regarding cumulative impacts to sage-grouse ; (5) analyze the cumulative
impacts due to energy development, including energy development in adjoining field
offices such as the Kemmerer Field Office; and (6) address the Wyoming Basin
Eco-Regional Assessment and the WAFWA Conservation Assessment. In addition, the
Court held that BLM violated FLPMA by disregarding its own Policy and Strategy.
Following that decision, the parties briefed the remedy issues, and the Court held a
three-day evidentiary hearing on remedies. The Court ordered further briefing that has
now been received.
WWP seeks three forms of relief. It asks first for the Court to remand this case to
the BLM, without vacating the RMPs for Craters and Pinedale, to correct the deficiencies
in those RMPs. All parties agree to this, and the Court will so order.
WWP asks next for the Court to impose certain procedures and a timeline on the
BLM during the remand. The BLM has proposed a timeline that WWP finds acceptable.
The BLM proposes that the remand for the Pinedale RMP be completed by the end of
2014. See Green Declaration (Dkt. No. 167-5) at ¶ 13. For Craters of the Moon, the
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BLM wants 4.5 years to complete the remand process because it proposes a “two-step”
process, whereby it will first complete a sub-regional EIS and RMP amendment process
as part of its National Planning Strategy, and then complete a Craters of the
Moon-specific EIS and RMP amendment process. The BLM agrees that the Court can
impose this time line, and the Court will so order.
The BLM also proposes to use procedures on remand that are largely agreeable to
WWP. Those procedures were set forth in the Declaration of Brent Ralston, who is the
Planning and Environmental Coordinator for the BLM’s Idaho State Office, and in the
testimony and Declaration of Buddy Green, the Deputy State Director, Resource Policy &
Management, for the BLM’s Wyoming State Office. See Ralston Declaration (Dkt. No.
167-9) at ¶¶ 8-22; Green Declaration (Dkt. No. 167-5) at ¶¶ 7-18. WWP agrees with
these procedures as far as they go, but demands that the BLM do more, as will be
discussed further below. With regard to the procedures discussed by both Ralston and
Green, the Court does not have the record before it that would allow the Court to micromanage the BLM’s drafting of the new RMPs by imposing each of these procedures on
the BLM. However, the Court will put the parties on notice that the decision it reaches
here on other issues relies in large part on the BLM’s representation that it will carry out
the procedures presented in the two Declarations cited above.
One specific concern of both parties concerning the remand is the use BLM will
make of the National Technical Team Report (NTT Report) in revising the RMPs. The
NTT Report was the BLM’s response to the Fish and Wildlife Service’s “warranted but
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precluded” listing determination. In that determination the FWS concluded that the
BLM’s “existing regulatory mechanisms” were inadequate to protect the sage grouse.
See 75 Fed. Reg. 13910-01 at 13982 (March 23, 2010). The BLM’s RMPs were one of
those “existing regulatory mechanisms.” Id. at 13975-76.
To counter that criticism, the BLM assembled the National Technical Team, a
group of scientists, to serve “as an independent, technical and science-based team to
ensure the best information related to greater sage-grouse management is fully reviewed,
evaluated and provided to the BLM for consideration in the land use planning process.”
See NTT Report (Dkt. No. 167-6) at p. 2. The Team issued its Report on December 21,
2011, and the testimony at the evidentiary hearing established that it contains the best
available science concerning the sage grouse.
The BLM will consider the NTT Report in revising the RMPs. The BLM
announced its policy in a memorandum to its Field Offices, issued just a week after the
NTT Report, stating that the NTT Report’s “conservation measures must be considered
and incorporated into at least one alternative in the land use planning process.” See BLM
IM-2012-044 (Dkt. No. 167-7) at p. 2. While it will consider the NTT Report, the BLM
will not commit to adopting any of its recommendations, and will not use the NTT Report
to govern management of these two Field Offices in the interim period while the RMPs
are being revised.
This interim period – two years in Pinedale and 4.5 years in Craters – is now the
focus of the dispute between the parties. WWP has proposed management measures that
Memorandum Decision & Order – page 5

restrict grazing and drilling during this interim period, while the BLM and intervenors
object to those measures. The evidentiary hearing focused entirely on this issue.
WWP’s interim measures would: (1) exclude livestock grazing in sage-grouse
nesting and brood-rearing habitats from March 1 until after June 20, and remove livestock
by August 1 of each year; (2) leave at least 70 percent of the herbaceous production each
year to form residual cover to benefit sage-grouse nesting the following spring; (3)
prohibit twice-over grazing systems in sage-grouse habitats; (4) prohibit the BLM from
allowing conversion of current “unavailable” or “traditional leasing” areas into
“intensively developed” areas for oil and gas leasing and development; (5) prohibit BLM
from issuing or renewing mineral leases within sage-grouse habitat; (6) prohibit surface
disturbance and noise within 3.3 miles of occupied leks or in identified sage-grouse
winter habitat; (7) prohibit more than 1 percent new surface disturbance per square mile;
and (8) prevent wind farms within 5 miles of occupied leks.
There is no dispute that each of WWP’s interim measures would benefit sage
grouse. The leading expert on sage grouse, Dr. Clint Braun, explained how these
measures would restore sage grouse habitat, and protect leks and nests, by reducing the
negative impacts of energy development and early spring grazing. WWP’s interim
measures also find strong support in the NTT Report recommendations. WWP asserts
that its measures are the best way to protect the sage grouse from irreparable harm
The BLM responds by describing its own interim measures, but does not assert
their superiority. The BLM argues that Court must determine not the broad issue as to
Memorandum Decision & Order – page 6

which measures are best but the narrow issue as to whether irreparable harm will result if
WWP’s measures are not adopted.
These competing arguments define the threshold question this Court must answer:
What is the legal standard governing the Court’s review of WWP’s proposed interim
measures?
LEGAL STANDARD
To be entitled to an injunction as a remedy for a NEPA and FLPMA violation,
WWP must show (1) that it has suffered an irreparable injury; (2) that remedies available
at law, such as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships, a remedy in equity is warranted; and (4) that the
public interest would not be dis-served by injunctive relief. Monsanto Co. v. Geertson
Seed Farms, 130 S.Ct. 2743, 2756 (2010).
WWP is seeking a mandatory injunction requiring the BLM to take affirmative
actions to manage grazing and drilling. In general, mandatory injunctions are
“particularly disfavored” and not granted “unless extreme or very serious damage will
result.” Park Village Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d
1150, 1160 (9th Cir. 2011). Moreover, injunctive relief “must be tailored to remedy the
specific harm alleged.” Id. A district court abuses its discretion by issuing an
“overbroad” injunction. McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012).
The specific harm alleged here was that the RMPs were deficient. To remedy
those deficiencies, the Court will order, and the BLM is already proceeding with, a
Memorandum Decision & Order – page 7

revision of the RMPs. The additional remedy sought by WWP – detailed interim
measures governing drilling and grazing on each allotment within the two Field Offices –
will not cure the RMP deficiencies. Instead, WWP’s interim measures are designed to
remedy alleged deficiencies in BLM’s management of grazing and drilling permits at the
allotment level. However, those alleged management deficiencies – unlike the
deficiencies in the RMPs – have never been evaluated by the Court. For example, WWP
wants to restrict spring or twice-over grazing in all the allotments in the Pinedale Field
Office. Yet the Court has never been asked to conduct an evaluation of each allotment in
Pinedale to determine the condition of habitat and the need for such measures. What little
information the Court has concerning specific allotments in Pinedale shows that some
allotments are meeting rangeland health standards while others are not. See Exhibit 2016.
WWP seeks to impose its restrictions even on allotments meeting rangeland health
standards, but the Court has no information on those allotments to justify such measures.
Under these circumstances, a remedy that goes beyond fixing the deficient RMPs
to impose grazing restrictions on all allotments would not be “tailored to remedy the
specific harm alleged.” Park Village, 636 F.3d at 1160. To impose specific grazing and
drilling restrictions at the allotment level – without ever having evaluated those
allotments – would be to issue an “overbroad” injunction. McCormack, 694 F.3d at 1019.
There remains, however, the stark fact, as found by the FWS, that sage grouse
populations are in a precarious decline. It was the BLM’s own deficient preparation of
the RMPs that has caused this interim period to exist. If during this interim period, the
Memorandum Decision & Order – page 8

only thing standing between sage grouse and irreparable harm is WWP’s proposed
interim measures, an injunction may be warranted.
Under this analysis, however, the injunction does not issue simply because WWP’s
proposals are better for the sage grouse than the BLM’s proposals. The injunction only
issues if during the interim period – two years in Pinedale and about five years in Craters
– sage grouse would suffer irreparable harm if WWP’s proposals are not adopted. That is
the standard the Court will apply in the following analysis of each Field Office.
ANALYSIS
Pinedale
The central problem in Pinedale, identified in the Court’s earlier decision, is
fragmentation and destruction of sage grouse habitat caused by drilling and grazing. See
WWP v Salazar, supra at *4-7. WWP’s interim measures were designed to reduce the
impacts of drilling and grazing. For example, one of those measures would prohibit
drilling – with its associated noise and surface disturbances – within 3.3 miles of
occupied leks or in identified sage-grouse winter habitat. Another would prohibit more
than 1 percent new surface disturbance per square mile. These measures were supported
by the testimony of Dr. Braun and by the findings in the NTT Report.
To determine whether irreparable harm would occur if these measures were not
adopted, the Court must evaluate the BLM’s plans for the interim period. The BLM has
its own set of interim measures adopted from Wyoming’s Core Area Strategy (CAS). To
draft its CAS, Wyoming put together a team including the BLM, the FWS, the Wyoming
Memorandum Decision & Order – page 9

Department of Game and Fish, and representatives from drillers, ranchers, and
conservation organizations. The team’s purpose was to avoid a listing for the sage grouse
under the Endangered Species Act (ESA). The CAS identifies priority habitat areas
(referred to as “Core Areas”) that include breeding, brood rearing and other seasonal sage
grouse habitats. Given that one of the main threats to sage grouse is the loss or
fragmentation of their habitat, the CAS protects Core Areas by restricting or prohibiting
activities that destroy or fragment habitat. In July of 2010, the Wyoming legislature
adopted a joint resolution endorsing the CAS.
Shortly thereafter, the BLM adopted Wyoming’s CAS and will apply it until the
new Pinedale RMP is completed in 2014. See Transcript (Vol. II) at p. 507. The CAS
measures are less protective of the sage grouse than WWP’s proposals. For example,
they would allow up to 5% new surface disturbance per square mile while WWP seeks no
more than 1%. They would also allow drilling in Core Areas outside of the spring season
within six-tenths of a mile while WWP’s buffer zone would be 3.3 miles. But the BLM
buffer zone is enlarged during the critical spring season. At that time – March 15 to June
30 – the BLM buffer zone would prohibit drilling altogether in Core Areas to protect
nesting and early brood-rearing habitats. See BLM Instruction Memorandum (Dkt. No.
167-1) at p. 5. Outside of the Core Areas, during this spring season, there must be a
buffer zone of 2 miles around leks. Id.
Comparing the location of Core Areas with drilling sites, it appears at first glance
that the Core Areas were selected to avoid any interference with drilling. This was true in
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some instances. For example, sites already under intensive drilling – the Jonah Field and
the Pinedale Anticline – were excluded from Core Areas. Tom Christensen, the Sage
Grouse Coordinator at the Wyoming Department of Game and Fish and a participant in
the formation of the CAS, was asked why one area was not included in a larger Core
Area, and he responded, “Because of the development already in the area . . . .”
Transcript (Vol. III) at p. 600. Christensen conceded that the Core Areas in the northeast
part of Wyoming, not including Pinedale, “came after much of the development had
occurred [and so] the proportion of birds protected in there is not the same as in the rest of
the state.” Transcript (Vol. III) at p. 595. But in the Pinedale area, Core Areas “are much
more based on the biology of the bird. Many of the spaces in between the Core Areas are
actually defined by natural barriers and areas of non-habitat.” Id.
Christensen went on to describe how the CAS team identified Core Areas by
taking into account (1) winter and summer habitats, (2) connectivity between
subpopulations, (3) the most recent data on lek locations, and (4) the need for 4 mile
buffer zones around leks. See Transcript (Vol. 3) at pp. 597-99. Thus, while existing
drilling sites affected the selection of Core Areas, on-the-ground data about sage grouse
leks played a key role. In the end, about 83% of Wyoming’s sage grouse population is
protected by the CAS. Id. at p. 585. Thus, it appears that Wyoming has made an effort to
protect the birds in their natural habitats and not just on land ignored by drillers. The
FWS, a participant in the CAS’s formation, concluded that if the CAS was fully
implemented in Core Areas, it “would provide adequate protection for sage-grouse and
Memorandum Decision & Order – page 11

their habitat in that State.” See 75 Fed.Reg. 13975.
Dr. Braun did testify that irreparable damage to the sage grouse could occur in the
next two years if two proposed drilling projects – the LaBarge and Lance Projects –
became operational, and if a major stochastic event occurs, like a wildfire. See Transcript
(Vol. 1) at pp. 139-41. Given the general rush to drill in this area, it is certainly likely that
the two projects will eventually be approved in some form. Yet both projects are far from
operational. Testimony at the evidentiary hearing established that neither has been
approved by the BLM, and both are undergoing NEPA review. Both projects must be
subjected to public review, and then the BLM must take a “hard look” at the
environmental impacts in an EIS before either project goes on line. The Supreme Court
has held that it is improper to enjoin proposed agency action that will be subject to a
NEPA review that could be challenged in court at that time. Monsanto Co. v. Geertson
Seed Farms, 130 S.Ct. 2743, 2760 (2010). Moreover, while it is impossible to predict an
approval date, it would most likely be at the far end of the two-year period if it comes
within that period at all. Even this is highly speculative, however, and injunctive relief
cannot be based on speculative consequences. Stormans, Inc., v. Selecky, 586 F.3d 1109,
1139 (9th Cir. 2009).
The issue is not whether the LaBarge and Lance Projects are good for sage grouse.
That issue is not before the Court. The issue is whether the Projects will become
operational in the 2-year interim period and have an impact in that period. Because that is
speculative, and because WWP retains the right to challenge the Projects at that time, the
Memorandum Decision & Order – page 12

proposed Projects carry little weight in the analysis.
In summary, the CAS imposes new protections for the birds from drilling. There
are, however, far fewer new protections in the CAS from the impacts of livestock grazing.
The term “surface disturbance” in the CAS excludes livestock grazing impacts. And
Buddy Green, the BLM’s Deputy State Director in Wyoming, testified that unless there is
a drought, existing grazing practices are not addressed in the CAS. See Transcript (Vol.
II) at pp. 508-10. During a declared drought, the CAS would allow the BLM to adjust
season of use and stocking rates. Id. at p. 509. But there is no declared drought currently
in Pinedale and no efforts underway to adjust seasons of use or stocking rates based upon
a drought declaration. Id. at pp. 509-10.
Adhering to the status quo does little for the sage grouse. There has never been a
grazing EIS for the Pinedale allotments. The most recent allotment management plan was
completed more than 40 years ago. See Exhibit 1128; Transcript (Vol. II) at pp. 523-26.
The Court’s earlier decision noted that about a third of the allotment acres in Pinedale did
not meet the rangeland health standards. WWP v Salazar, 2011 WL 4526746 (D.Id.
September 28, 2011) at *6. Dr. Braun testified as to the adverse impacts of spring
grazing, and the BLM’s own analysis concluded that “much of the rangeland throughout
the Pinedale Field Office is continuously spring grazed.” See Transcript (Vol. II) at p.
492.
At the same time, however, the allotment acres that fail to meet rangeland
standards generally fall outside the Core Areas of sage grouse habitat. See Exhibit 2016.
Memorandum Decision & Order – page 13

Of those Core Area acres, about 82% are within allotments that have been assessed for
rangeland health. Id. And of those assessed acres, about 76% met rangeland standards.
Id. Allotments that did not meet rangeland health standards attributed to livestock
grazing made up 24% of the Core Area that was assessed. Id.
With regard to winter habitat, 86% of sage grouse winter concentration area is
within grazing allotments that have been assessed for rangeland health. Id. Allotments
that met rangeland health standards made up 83% of winter concentration area that was
assessed. Id. Allotments that did not meet rangeland health standards attributed to
livestock grazing made up 17% of the winter concentration area that was assessed. Id.
At the evidentiary hearing, WWP showed that two allotments – the North and
South LaBarge allotments – failed to meet rangeland health standards yet the BLM had
made no changes to their allotment management plans. The BLM countered with
evidence that it had worked with permit holders to decrease the forage consumed by
livestock on both allotments. While the BLM’s 2010 monitoring showed moderate to
heavy utilization of forage (on western pastures) on both allotments, the 2011 monitoring
showed predominately light to moderate utilization (on the same pastures). See
Transcript (Vol. II) at pp. 459-64. This shows that the BLM’s efforts got some results,
but the fact remains that the BLM has done no evaluation of the allotments to determine if
the decreased utilization has resulted in overall better habitat or has cured the rangeland
health violations.
Reviewing the BLM’s efforts in Pinedale, the Court finds real efforts to mitigate
Memorandum Decision & Order – page 14

the effects of drilling. The CAS is a serious and coordinated effort by stake holders in
Wyoming to counter the effects of drilling. It has been in place now only about 4 years,
see Transcript (Vol. III) at p. 608, and so its full effects remain to be felt on the ground,
but it is a clear break from the past.
The Court cannot find the same effort devoted to mitigating the impacts of
livestock grazing. Nevertheless, as discussed above, the Court is not sitting to determine
what is best for the sage grouse; instead, the Court must determine whether during the
next 2 years the sage grouse will suffer irreparable harm if WWP’s interim measures are
not imposed.
This distinction is important. For example, Dr. Braun testified in support of
WWP’s proposed interim measures that would stop spring and twice-over grazing and
leave 70% of herbaceous production each year to form cover for the next year. There is
no dispute that these measures would provide substantial benefit to sage grouse. But
given the legal standard defining this Court’s role, the Court must determine what effect
these measures would have in the next two years. And on that point, Dr. Braun testified
that even if WWP’s grazing restrictions were imposed, he did not “expect much in two or
three years in terms of vegetation composition” in Pinedale. See Transcript (Vol. I) at p.
210. The issue thus becomes whether the BLM’s grazing management over the next two
years would be so much worse that it would cause irreparable harm to the sage grouse.
Despite its past hands-off management style, the BLM is now taking a more
activist role. Buddy Green, the Deputy State Director for the BLM in Wyoming, testified
Memorandum Decision & Order – page 15

that the BLM was monitoring two allotments that failed to meet rangeland health
standards and explained the BLM’s efforts to work with permit holders to improve
conditions there. Much of the prime habitat for the sage grouse in Pinedale lies in Core
Areas that are marked for increased protection. And much of that prime habitat, as
discussed above, lies in areas that are meeting rangeland health standards. Thomas
Christensen, the Sage Grouse Coordinator for Wyoming’s Department of Game and Fish,
who has studied Wyoming’s sage grouse since 1987, testified that since 1995, when the
sage grouse numbers in Pinedale were at their all-time low, “there has been a general
increase.” See Transcript (Vol. III) at p. 591. He also testified that there are “good
numbers of leks in the Pinedale area [and] . . . the density is high there,” and that over the
next two to three years “there is not going to be a significant change to the sage grouse
population in the Pinedale area.” Id. at p. 614.
For all of these reasons, the Court cannot find that WWP’s interim measures are
necessary to prevent irreparable harm in Pinedale during the next five years. The Court
will accordingly deny WWP’s request for injunctive relief in the Pinedale Field Office.1

1

WWP’s original motion asks the Court to order the BLM to use the Habitat Assessment
Framework (HAF) in Pinedale. See Motion for Remedies (Dkt. No. 151) at p. 2. Buddy Green,
Pinedale’s grazing manager, testified that the HAF is being used at the allotment level but not at
the planning level due to the large size – 1.6 million acres – of the Field Office. See Transcript
(Vol. II) at p. 449. The BLM will use the Seasonal Habitat Model developed by the U.S
Geological Survey, id. at 497, and use data provided by the Wyoming Department of Game and
Fish. See Keefe Declaration (Dkt. No. 167-10) at ¶ 11. Green testified that this will be sufficient
for planning purposes, and the Court cannot find otherwise on this record. Id. at p. 507.
Memorandum Decision & Order – page 16

Craters of the Moon
As discussed above, the revised Craters RMP and associated allotment
management plans based on that RMP should be completed within the next 5 years.
Thus, the issue here is whether, during this 5-year interim period, sage grouse in Craters
would suffer irreparable harm if WWP’s interim protections are not adopted.
In its post-hearing briefing, WWP observed that “the BLM’s management of
grazing in the Craters of the Moon has apparently started to reflect these
recommendations [made by Dr. Braun]. See WWP Post-Hearing Brief (Dkt. No. 224) at
p. 25. Indeed, the BLM is following recommendations made in a Nature Conservancy
study (by Jurs and Sands) that Dr. Braun relied upon. See Dr. Braun Declaration (Dkt.
No. 151-2) at ¶ 39. David Patten, the BLM’s Rangeland Management Specialist
responsible for grazing management on Craters, testified that he was following the
study’s recommendations to encourage non-use, adopt a rest rotation system, and reduce
cattle movement across the allotment. See Transcript (Vol. I). at p. 280-282.
These management measures have had effects on the ground. During the years
2008 to 2011, average utilization levels on Craters’ allotments as a whole were wellwithin the recommendations of Dr. Braun and other experts, while stubble heights were
not far from recommended levels. See Exhibit 2023 (showing utilization levels below
25% each year, and stubble heights of 17.7, 17.5, 15.6, and 13.3 cm); Dr. Braun
Declaration (Dkt. No. 151-2) at ¶ 33 (recommending utilization rates of 25% to 30%);
Connelly Guidelines Exhibit 1008 (recommending stubble heights of at least 18 cm). In
Memorandum Decision & Order – page 17

the most critical allotment – Laidlaw Park – actual use is about 20% of permitted use due
to the BLM’s efforts to get permit holders to reduce their grazing to improve sage grouse
habitat. Six of the seven pastures in the allotment are on a rest-rotation grazing system so
that two pastures are rested every year. See Transcript (Vol. II) at p. 255.
The effect of this grazing management was observed by Thomas Rinkes, the Idaho
Wildlife Lead for the BLM, who has studied sage grouse for decades. He was a member
of the NTT, a co-author of the Habitat Assessment Framework that WWP proposes be
used in this case, and a co-author with Dr. Braun of sage grouse studies. After
conducting a three-day field tour of Craters, he concluded that the rest-rotation system led
to a “positive response of herbaceous vegetation.” Id. at 407. He observed on his tour
that plant growth provided sufficient cover to protect sage grouse in their nesting and
brood-rearing habitat so that no irreparable harm would come from not adopting WWP’s
interim measures. Id. at 373-74.
While Rinkes found poor areas in his tour, he did not believe removing livestock
from those areas for the next 10 years would return them to good condition because
“many of these habitats are really almost a semidesert. They receive very little
precipitation, and the response of the vegetation takes many years.” Id. at p. 367. He
testified that other areas have good cover and forage for sage grouse, and that WWP’s
proposed interim measures would impose a “one-size-fits-all approach” that is “probably
not appropriate” for Craters. Id. at p. 375. In his opinion, there would be no irreparable
harm if WWP’s interim measures were not adopted.
Memorandum Decision & Order – page 18

Importantly, he testified that his opinion as to the good condition of Laidlaw Park
would have to change if livestock use became heavier. Id. at pp. 409-10. However, the
grazing manager, David Patten, testified that in the next few years, the BLM does not
anticipate changing any of its efforts to reduce use or improve conditions in Laidlaw
Park. See Transcript (Vol. II) at pp. 281-82.
WWP asks the Court to impose a requirement on all allotments in Craters that
would “enjoin BLM from allowing grazing increases above current levels . . . .” See
WWP Post-Hearing Brief (Dkt. No. 224) at p. 26. Patten’s testimony, however, indicates
that the BLM is not going to be increasing grazing levels and is actually working to
reduce levels. Under these circumstances, the Court refuses to issue a blanket restriction
on all allotments when the testimony has shown that conditions vary considerably and the
Court lacks specific evidence of allotment-by-allotment conditions.
For all of these reasons, the Court cannot find that WWP’s interim measures are
necessary to prevent irreparable harm in Craters during the next five years. The Court
will accordingly deny WWP’s request for injunctive relief in the Craters of the Moon
Field Office.2
Conclusion
In this decision, the Court is not determining what is best for the sage grouse. The
2

WWP’s original motion asks the Court to order the BLM to use the Habitat Assessment
Framework (HAF) in Craters. See Motion for Remedies (Dkt. No. 151) at p. 2. The evidence
shows that the HAF is being used in Craters and so there is no reason to order that it be used.
See Wright Declaration (Dkt. No. 167-11) at ¶ 6 (statement by Gary Wright, BLM Wildlife
Biologist, that “[t]he BLM . . . now uses the [HAF] methodology . . . ”).
Memorandum Decision & Order – page 19

Court is also not approving any particular program such as the Core Area Strategy. The
allotment-by-allotment management of grazing and drilling in the two Field Offices is not
the subject of the Court’s review in this decision. Instead, the Court’s review is limited to
determining if irreparable harm will occur to the sage grouse if WWP’s proposed
management measures are not implemented during the time the RMPs are being revised.
After analyzing the issues under that narrow scope of review, the Court finds that
WWP’s motion should be granted in part and denied in part. The Court will grant the
motion to the extent it seeks (1) to remand all issues concerning the Craters of the Moon
RMP and the Pinedale RMP to the BLM, without vacatur, for the purpose of revising
both RMPs; and (2) to order the BLM to complete the new Craters RMP by the end of
2014, and complete the Pinedale RMP by the end of 2016. While the Court will not order
the BLM to comply with the procedures set forth in the Ralston and Green Declarations
cited above, it is relying on those procedures being carried out in making the rulings in
this decision. WWP’s motion will be denied to the extent it seeks to impose interim
measures to manage grazing and drilling during the time the RMPs are being revised.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that WWP’s motion for
remedies on test case RMPs (docket no. 151) is GRANTED IN PART AND DENIED IN
PART. It is granted to the extent it seeks (1) to remand all issues concerning the Craters
of the Moon RMP and the Pinedale RMP to the BLM, without vacatur, for the purpose of
Memorandum Decision & Order – page 20

revising both RMPs; and (2) to order the BLM to complete the new Craters RMP by the
end of 2014, and complete the Pinedale RMP by the end of 2016. It is denied in all other
respects.

DATED: November 20, 2012

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

Memorandum Decision & Order – page 21