Gallatin Wildlife Association v. United States Forest Service et al

Filing 148

ORDER granting in part 122 Motion for Summary Judgment. Signed by Judge Brian Morris on 6/14/2016. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
GALLATIN WILDLIFE
ASSOCIATION,

CV-15-27-BU-BMM

Plaintiff,
v.
UNITED STATES FOREST
SERVICE; et al.,
Defendants,
and
ORDER

HELLE LIVESTOCK, a partnership;
and REBISH/KONEN LIVESTOCK
LIMITED PARTNERSHIP,
Defendant-Intervenors,
and
MONTANA WOOL GROWERS
ASSOCIATION and the AMERICAN
SHEEP INDUSTRY,
Defendant-Intervenors

I. Procedural Background
Plaintiffs Gallatin Wildlife Association, WildEarth Guardians, Western
Watershed Project, and Yellowstone Buffalo Foundation (“Gallatin”) have
challenged the Revised Forest Plan, Allotment Management Plans, and Annual
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Operating Instructions for the domestic sheep allotments in the Gravelly
Mountains on the Beaverhead-Deerlodge National Forest (“BDNF”). (Doc. 73 at
1.) Gallatin alleges that Federal Defendants United States Forest Service (the
“USFS”) and Leanne Martin, in her official capacity as Regional Forester of the
United State Forest Service, violated the National Environmental Policy Act
(“NEPA”), the National Forest Management Act (“NFMA”), and the
Administrative Procedures Act (“APA”), when they authorized the Revised Forest
Plan, Allotment Management Plans, and Annual Operating Instructions. (Doc. 73
at 3, 11-13.)
The Court granted leave to Helle Livestock and Rebish/Konen Livestock
Limited Partnership (“Permitees”) to intervene as Defendant-Intervenors on June
3, 2015. (Doc. 28.) The Court likewise granted leave to Montana Wool Growers
(“MWG”) to intervene as Defendant-Intervenors on August 31, 2015. (Doc. 68.)
Gallatin moved the Court for a preliminary injunction against the USFS on
June 15, 2015. (Doc. 3.) Gallatin sought an order to enjoin grazing on the
Cottonwood and Fossil-Hellroaring allotments. These allotments constitute two of
the seven allotments subject to this action. The Court denied the motion for
preliminary injunction. (Doc. 43.)
The parties now have filed cross-motions for summary judgment. Gallatin
requests that the Court declare that the Federal Defendants violated NEPA. (Doc.
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115 at 28.) Gallatin requests that the Court grant them “an opportunity to work
together to establish a binding timeline to perform NEPA analyses.” Id. Gallatin
seeks, in the alternative, permanent injunctive relief from domestic sheep grazing
and trailing in BDNF. Federal Defendants contest Gallatin’s claims as meritless.
Federal Defendants ask the Court to grant summary judgment in their favor. (Doc.
123 at 6-7.) The Defendant-Intervenors also have offered arguments as to why
Gallatin’s claims should fail. (Doc. 126 at 6; Doc. 130 at 7-11.)
II. Factual Background
Bighorn sheep, once abundant in North America and Montana, suffered
large population declines in the late 1800s and early 1930s. (USFS 010472; USFS
008339). Die-offs have been attributed to contact with domestic sheep, range
competition from livestock, contraction of diseases, and hunting. Id. The
predecessor of Montana Fish Wildlife and Parks (“MFWP”) began to reintroduce
bighorn sheep in Montana during the 1940s. (USFS 008340.)
MFWP decided to reintroduce bighorn sheep into the Greenhorn Mountains,
south of Alder, Montana, in September 2001 after having performed an
environmental assessment (“EA”). (USFS 008148.) The Greenhorn Mountains
occupy approximately 69,000 acres of which USFS manages about 46,000 acres.
Id. The Bureau of Land Management (“BLM”) manages approximately 23,000

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acres. The Greenhorn Mountains represent a section of the Gravelly Landscape.
(USFS 0000009.)
Federal Defendants have authorized Permitees to graze domestic sheep in
the Gravelly Mountains. (USFS 000063-68; USFS 00389-95.) The MFWP, the
BLM, and the USFS entered into a Memorandum of Understanding (the “MOU”)
with Permitees in 2002. (USFS 008219-24.) The 2002 MOU addressed concerns
that the Permitees had raised about the possible effects that the reintroduction of
bighorn sheep would have on their grazing operations and permits. (USFS
008219.) The 2002 MOU explains that the reintroduction of bighorn sheep would
not cause an adjustment to “the operation or management of the [Permitees’]
domestic sheep grazing operations without the [Permitees’] consent. (USFS
008220.)
The 2002 MOU also explains potential strategies designed to avoid contact
between domestic and bighorn sheep to reduce the risk of disease transmission.
(USFS 008220-21.) For example, the 2002 MOU encourages Permitees to contact
MFWP via a satellite telephone if a bighorn sheep comes within a half of a mile of
a domestic sheep or a domestic sheep allotment. (USFS 008220.) The 2002 MOU
also provides that Permitees may obtain a kill permit from MFWP. Id. The kill
permit would be used to prevent contact between bighorn sheep and domestic
sheep. Id. The parties renewed the MOU in February 2008. (USFS 008256-60.)
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The 2008 MOU allows any of the parties to the agreement to “terminate the
instrument in whole, or in part, at any time before the date of expiration.” (USFS
008259.)
MFWP transported 69 bighorn sheep to the Greenhorn Mountains in 2004.
(USFS 008630.) MFWP set the population objective for bighorn sheep in the
Greenhorn herd at 125. (USFS 008409.) The Greenhorn herd has failed to grow
since the initial transplant. (USFS 008547.) In fact, the Greenhorn herd now
consists of only 31 bighorn sheep as of the last observed count in April 2007.
(USFS 008409; USFS 008548.) The low numbers in the Greenhorn herd creates
uncertainty as to whether the population will become viable and will approach the
population objective set by MFWP. (USFS 008548.)
The USFS issued a Final Environmental Impact Statement (“FEIS”) for the
2009 Revised Beaverhead-Deerlodge Forest Plan in January 2009. (USFS 0048706340.) The USFS issued its Record of Decision that approved the Revised Forest
Plan on January 14, 2009. (USFS 003348-98.) Gallatin submitted one of 55
appeals to the Revised Forest Plan. (USFS 07650.) Gallatin appealed in part based
on the claim that the Revised Forest Plan failed to include measures to provide
habitat for bighorn sheep in their historic range. Gallatin’s appeal also argued that
the Revised Forest Plan failed to consider studies and science that conclude that

5

domestic sheep could harm the long-term viability of bighorn sheep. (USFS
006341-42.)
The reviewing officer rejected the appeals to the Revised Forest Plan. (USFS
007650.) The appeal decision notes that the Revised Forest Plan defers the bighorn
sheep and domestic sheep interaction issues to site-specific decisions. (USFS
007653-54.) The reviewing officer found that the Revised Forest Plan proved
“adequate to provide for the persistence of bighorn sheep.” Id. In light of the public
interest in bighorn sheep management, the reviewing officer directed the Regional
Forester to review the Land Resource Management Plan and other relevant
material to determine whether an amendment to the Revised Forest Plan proved
necessary.
The Regional Forester created a Draft Report to the Chief. (USFS 007802.)
The Draft Report to the Chief concluded that the Revised Forest Plan, which
provided for cooperation with MFWP, and the allotment management plans
(“AMPs”) provided “sufficient direction for overall sheep management.” (USFS
007830.) Gallatin now challenges the Revised Forest Plan and Federal Defendants’
alleged failure to prepare supplemental NEPA analyses for the AMPs. (Doc. 115 at
12-13.)
III. Legal Framework
A. Summary Judgment
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The Court may grant summary judgment when no genuine issue of material
fact exists and the moving party should be entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). Summary judgment proves “particularly applicable to cases
involving judicial review of final agency action.” Forest Serv. Employees for
Envtl. Ethics v. U.S. Forest Serv., 726 F. Supp. 2d 1195, 1207 (D. Mont. 2010)
(citing Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985).
Summary judgment proves appropriate in this case when the issues presented
address the legality of federal defendants’ actions based on the administrative
record and do not require a resolution of factual disputes. Forest Serv. Employees
for Envtl. Ethics, 726 F. Supp at 1207.
B. APA Review
Gallatin’s claims stem from alleged violations of NEPA and NFMA (Docs.
1, 3.) The Court reviews compliance with NEPA, NFMA, and Endangered Species
Act under the judicial process set forth in the Administrative Procedures Act
(“APA”). 5 U.S.C. §§701-706; Native Ecosystems Council v. Dembeck, 304 F.3d
886, 891 (9th Cir. 2002). The decision may be set aside only when the court finds
the agency’s decision “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Oregon Nat. Resources Council Fund v. Goodman,
505 F.3d 884, 889 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). A final agency
decision will be overturned only if the agency committed “clear error in
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judgment.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378
(1989). Additionally, the reviewing court shall compel an agency to act when the
agency has “unlawfully withheld or unreasonably delayed” its decision or action. 5
U.S.C. 706(1).
C. NEPA Background
“NEPA declares a broad national commitment to protecting and promoting
environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 348 (1989). NEPA represents a procedural statute in that it “does not mandate
particular results, but simply prescribes the necessary process.” Robertson, 490
U.S. at 350. NEPA ensures that the agency will consider detailed relevant
information concerning environmental impacts before the agency commits
resources. Id. at 349. Accordingly, federal agencies must take a “hard look” at the
environmental consequences of their actions through the creation of environmental
impact statements (“EISs”) and EAs. Marsh, 490 U.S. at 374; See 40 C.F.R. §§
1501.3, 1501.4, 1508.9, 1508.11. An EIS must provide a “full and fair discussion
of significant environmental impacts” and “inform decisionmakers and the public
of the reasonable alternatives which would avoid or minimize adverse impacts or
enhance the quality of the human environment.” 40 C.F.R. § 1502.1
IV. Discussion

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Gallatin argues that Federal Defendants have violated NEPA. Gallatin
challenges three aspects of the Federal Defendants decision under NEPA: (1) the
USFS’s alleged failure to explain adequately its use of the habitat-as-proxy/coarse
filter methodology; (2) the USFS’s alleged failure to disclose the MOUs in its
NEPA analysis; and (3) the USFS’s alleged failure to supplement the AMPs.
A. Habitat by Proxy/Coarse Filter Methodology
Gallatin argues that the USFS violated NFMA, and, therefore, NEPA, when
it failed to explain the use of the “habitat-as-proxy” or “coarse filter” methodology
employed by its Forest Plan NEPA analysis. A NFMA violation can establish a
violation under NEPA when the violation pertains to a procedural requirement.
Lands Council v. Cottrell, 731 F. Supp. 2d 1074, 1090 (D. Idaho 2010). Gallatin
asserts that the USFS has failed to demonstrate how the use of the methodology
ensures the viability of bighorn sheep habitat.
1. Purpose of the Forest Plan.
The NFMA grants the USFS authority to “promulgate regulations” that “set
out the process for the development and revision of the land management plans.”
16 U.S.C.A. § 1604(g). These regulations should specify procedures that ensure
land management plans comply with NEPA. U.S.C.A. § 1604(g)(3). The forest
plans must “provide for diversity of plant and animal communities based on the

9

suitability and capability of the specific land area in order to meet overall multipleuse objectives” 16 U.S.C.A. § 16(g)(3)(B).
The USFS developed the 2009 Forest Plan in accordance with the 1982
planning rule. 36 C.F.R. Part 219 (2000). The 1982 rule requires the USFS to
manage fish and wildlife habitat to sustain viable populations of existing species in
the planning area. 36 C.F.R. § 219.19 (2000); National Forest System Land and
Resource Management Planning, 47 FR 43026-01. (emphasis added). The 1982
planning rule focuses on the maintenance of sufficient habitat. The 1982 rule
contains no specific provision that requires the USFS to sustain viable populations
of bighorn sheep, or any specific species.
The Court in Western Watershed Project v. Salazar, 766 F. Supp. 2d 1095,
1113 (D. Mont. 2011), determined that the USFS should not be required to add a
specific species— in that case, bison— to the forest. The court determined that
NFMA did not require the USFS to add bison to the forest to provide for animal
diversity. Id. The 1982 planning rule requires only that the USFS manage the
habitat so that it could sustain viable populations of existing species.
The coarse filter approach assumes that the USFS can maintain viability for
species that evolved and became adapted to local habitat conditions by maintaining
historic patterns, size class structure, and acreage of habitat necessary for species
survival. (USFS 003881.) Native Ecosystems Council v. Tidwell, 599 F.3d 926, 933
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(9th Cir. 2010). Gallatin does not appear to challenge the validity of this
assumption.
Gallatin instead seems to take issue with what it perceives as the USFS’s
exclusive focus on the coarse filter approach. Gallatin argues that the USFS should
have applied a fine filter analysis instead of a coarse filter analysis. The Court will
defer to the USFS’s use of the coarse filter method unless the record indicates that
the USFS made a clear error in judgment. Marsh, 490 U.S. at 378.
Gallatin argues that the USFS focused solely on the bighorn habitat when it
applied the coarse filter method, and, in doing so, failed to address several other
impacts “vital to bighorn viability.” (Doc. 115 at 18.) Gallatin asserts that the
USFS’s evaluation failed to consider the bighorn sheep’s proximity to domestic
sheep. This proximity limits the area of suitable bighorn habitat and potentially
exposes bighorns to a greater risk of disease. (USFS 008220-21; USFS 008329.)
Gallatin argues further that the USFS has failed to consider the fact that the
Greenhorn herd consists of 31 bighorn sheep. Gallatin points out that the surviving
bighorn sheep represent a fraction of the population objective of 125 set by
MFWP. (USFS 008409.)
2. Potential for Disease Transmission.
The FEIS appears to have accounted for the threat of disease transmission to
bighorn sheep from livestock grazing. (USFS 005383.) The FEIS acknowledged
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that the USFS considered the threat highest in the Gravelly range where five active
domestic sheep allotments exist. Id. The FEIS further considered that MFWP
monitors local bighorn sheep for possible disease transmission. Id. The Draft EA
discussed plans to administer antibiotics to bighorn sheep to reduce the possibility
of infection and disease. (USFS 008089.) The FEIS also noted that MFWP did not
advocate for reductions in the BDNF sheep-grazing program (USFS 005383.) In
fact, MFWP provided no comments related to changing domestic sheep grazing
during the environmental analysis process. (USFS 005383.)
The Report to the Chief noted that grazing allotments did not appear to be a
spatially limiting factor to the grazing of the bighorn sheep herd in the BDNF.
(USFS 007830.) The USFS determined that its allotment specific management
plans and its plans to coordinate with MFWP provided sufficient direction for the
management of bighorn sheep on BDNF. Id. The USFS concluded that these facts
did not warrant an amendment for bighorn sheep. Id.
The FEIS appears to defer the resolution of bighorn and domestic sheep
conflicts to a determination on an allotment by allotment basis in the AMPs. Id.
The combination for the allotment specific plans and the coordination between
state and federal agencies seems to have led the Regional Forester to determine
that the coarse filter analysis contained in the Revised Forest Plan provided
adequate direction for the management of the forest for bighorn sheep. Id. The
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Revised Forest Plan requires that state and federal agencies coordinate to develop
specific plans based on changing circumstances on the allotments.
Gallatin suggests that the USFS should have used a “fine filter” analysis
instead of a coarse filter analysis. The USFS typically conducts a fine filter
analysis to maintain the diversity and population viability of a species in a given
geographic area that may not be considered fully by the coarse filter. (USFS
004465.) The USFS applies a fine filter analysis to federally-listed species or
species considered “sensitive species” by the Regional Forester. (USFS 004465.)
The USFS also applied a fine filter analysis to species on the BDNF with viability
concerns and species on the BDNF that qualified as high priority state species of
concern. (USFS 004466.)
Species that typically require a fine filter analysis include those that: “(1)
have undergone significant declines in abundance or distribution, (2) are known to
use highly specialized or unique habitat, or (3) are isolated endemics.” (USFS
003503.) The USFS considers multiple factors to determine whether viability
concern exists for the species in the plan area. The USFS applied these factors to
identify several species on the BDNF that required fine filter analyses. Id. The
USFS concluded that the bighorn sheep did not require a fine filter analysis. (USFS
004466.)
3. Deference to Agency’s Choice of Methodology.
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Gallatin argues that the USFS failed to follow its own guidelines when it
determined whether to apply a coarse filter or fine filter analysis. Gallatin points to
a USFS document that states that “[t]he coarse filter approach suggests viable
populations will be maintained when the referenced communities contain almost
all the species with the exception of those . . . with consistently sparse population
densities.” (USFS 010925.) Gallatin contends that that this language should be
interpreted to mean that the USFS should not apply a coarse filter methodology to
habitats that include species with consistently sparse population densities. Even if
the Court adopted Gallatin’s interpretation of the language in USFS’s Consistency
in Land and Resource Management Plans document, however, the USFS
adequately has explained its reasoning for having applied a coarse filter rather than
a fine filter in this instance.
The FEIS describes the habitat-as-proxy, or coarse filter analysis, and the
fine filter analysis. (USFS 004464–69.) The FEIS explains the difference between
the two methods. The FEIS further explains the reasons that the USFS applied the
coarse filter analysis instead of the fine filter analysis. Id. The Regional Forester
did not consider bighorn sheep “sensitive species” at the time that the USFS
performed the Revised Forest Plan’s environmental analysis. Six bighorn sheep
die-offs occurred in 2009 and 2010. (USFS 008296.) The USFS Regional Office
analyzed the bighorn population after the die-offs. These die-offs caused the USFS
14

Regional Office to determine that bighorn sheep should be considered “sensitive”
region wide. (USFS 008298.)
The Court defers to the USFS’s methodology for evaluating viability.
Marsh, 490 U.S. at 378. The Court grants “greater-than-average” deference to the
USFS “as it relates to its choice of technical methodologies.” Idaho Wool Growers
Ass’n v. Vilsack, 816 F.3d 1095, 1108 (9th Cir. 2016). The record indicates that the
USFS provided for bighorn sheep viability in the Forest Plan. The record further
indicates that the USFS considered fully materials relevant to bighorn sheep
viability. The USFS explained the difference between fine filter and course filter
methodologies and its basis for having used the coarse filter method instead of the
fine filter method.
Based on the information before the Court, and the deference owed to the
agency when undertaking technical analysis within its purview, the USFS does not
appear to have acted arbitrarily or capriciously with regard to its use of the coarse
filter methodology. Id. This conclusion recognizes the USFS’s repeated assertion
that its responsibility focuses on bighorn sheep habitat. By implication, MFWP
would manage the bighorn sheep population. This determination fails to end the
inquiry, however, of the adequacy of the entire NEPA analysis. The Court turns
next to the USFS’s failure to disclose the MOUs.
B. MOU Disclosure
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Gallatin next argues that Federal Defendants violated NEPA when they
failed to disclose the MOUs and analyze their potential impacts on bighorn sheep
management in the body of its NEPA analysis. The USFS, the BLM, and the
MFWP entered into the first MOU with Permitees in 2002. The same parties
renewed the MOU in 2008. (USFS 008256.) The 2008 MOU expires January 31,
2018. (USFS 008259.)
The renewed 2008 MOU modified some of the provisions in the 2002 MOU.
For example, the renewed MOU made it clear that the MOU did not prevent
Permitees from engaging in similar activities with other agencies. Id. The renewed
MOU’s terms indicate that the agreement does not create any trust responsibility
enforceable by a party against the United States. Id. The renewed MOU also
removed the provision from the 2002 MOU that allowed the Permitees to transfer
the agreement to subsequent landowners. (USFS 008222.) Most importantly, the
renewed MOU allows any party to the agreement to terminate the MOU in whole,
or in part, at any time before the date of expiration. (USFS 008259.) The 2002
MOU’s termination provision allowed for termination only upon a party having
shown good cause. (USFS 008222.)
The MOUs involve the manager of bighorn sheep habitat in the BDNF—the
USFS, the apparent manager of the bighorn sheep population in the BDNF—the
MFWP, and the Permitees who graze domestic sheep on or near bighorn sheep
16

habitat in the general vicinity of bighorn sheep population in the BDNF. Both the
original 2002 MOU and the renewed 2008 MOU provide assurances to Permitees
that the reintroduction of bighorn sheep by MFWP would not affect their grazing
operations and permits. (USFS 008219; USFS 008257.) The MOUs do not grant
Permitees a kill permit for bighorn sheep. The MOUs explain instead that
Permitees may obtain a kill permit from MFWP. (USFS 008220.) Permitees
apparently would use a kill permit to prevent contact between bighorn and
domestic sheep. (USFS 008220.)
1. The Federal Defendants Acknowledgment of the MOUs.
Gallatin argues that the USFS’s failure to disclose the MOUs precluded the
public from considering the MOUs and their potential impact on bighorn sheep in
the BDNF before the USFS made its decision. The USFS acknowledged the
existence of the MOUs only through responses to public comments documented in
the FEIS. An EIS must contain “a reasonably thorough discussion of the significant
aspects of the probable environmental consequences” of an action. Ctr. for
Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003.)
NEPA documents must concentrate on “truly significant” issues to the action in
question, “rather than amassing needless details.” League of Wilderness Defs. Blue
Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1136 (9th Cir. 2010).
“NEPA only requires agencies to discuss impacts in proportion to their
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significance.” Pacific Coast Fed’n of Fisherman’s Ass’ns v. Blank, 693 F.3d 1084,
1102 (9th Cir. 2012) (citing 40 C.F.R. § 1502.2(b)) (internal quotations omitted).
The existence of the MOUs strike the Court as something more than a
“needless detail.” Allen, 615 F.3d at 1136. Moreover, the USFS’s complete failure
to disclose on its own the existence of the MOUs fail any test of proportionality of
the MOUs’ apparent significance. Federal Defendants argue nevertheless that
Gallatin has mischaracterized the significance of the MOUs. Federal Defendants
describe the 2008 MOU as a “voluntary agreement” that does not constrain the
USFS’s decision-making.
The USFS claims that it possesses authority to modify and cancel grazing
permits if needed. The terms of the grazing permit allows the USFS to suspend or
cancel the agreement for good cause. (USFS 000010.) Specifically, the permit may
be canceled or modified for failure to comply with the terms of the permit, or to
conform to changes in the law, changes in AMPs or other land management plans,
or changes in resource conditions. (USFS 000010.)
The 2008 version of the MOU contemplates that modifications of the MOU
“shall be made by the mutual consent of the parties.” (USFS 008259.) The 2008
MOU’s terms provide that “any of the parties, in writing, may terminate the MOU
in whole, or in part, at any time before the date of expiration.” (USFS 008259.)
Federal Defendants argue that this provision allows the USFS to modify the terms
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of the MOU. (USFS 008259; USFS 000010; USFS 000347.) Federal Defendants
argue that the USFS discussed the MOUs in proportion to their significance. The
record indicates, however, that the parties seemed to place some significance on
the MOUs.
A MFWP staff member noted in meeting minutes from a MFWP
Commission Meeting that the USFS “has stated in a writing the occurrence of
bighorn sheep in the Greenhorns will not be used as a reason to discontinue
domestic allotments in the area.” (USFS 008162.) The MFWP employee
acknowledged that “Montana’s agricultural community is integral to management
of Montana’s fish and wildlife populations.” (USFS 008162.) The MFWP
employee acknowledged that the USFS’s commitment that reintroduction would
not impact the allotments proved important. (USFS 008162.)
Even if the USFS possesses the ability to modify or unilaterally terminate
the 2008 MOU at any time, the agreement represents some commitment on behalf
of the USFS to the Permitees that the bighorn sheep reintroduction would not
impact their allotments. The MOUs provide Permitees with potential strategies to
deal with the reintroduction of bighorn sheep without endangering their domestic
sheep, including the issuance of kill permits.
The Court recognizes that NEPA does not require an agency to amass
needless details. The impacts of this document appear, however, to have a
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significant effect on the bighorn sheep’s environment in the Greenhorn Mountains.
MFWP introduced 69 sheep into the Greenhorn Mountains. MFWP reports that 46
of these sheep have died or have been removed. (USFS 008290.) MFWP has
removed 34 of these sheep due to their proximity to lands controlled by domestic
sheep producers. Id. The MOUs show an apparent commitment by USFS to
prioritize domestic sheep over bighorn sheep in the event the two species become
at risk of contact. The commitment undertaken by the USFS and the BLM pursuant
to the MOUs appear to have some significance in the management of bighorn
sheep habitat in the Greenhorn Mountains.
2. Response to Public Comments.
Federal Defendants argue that they met their burden under NEPA to disclose
the MOUs when they acknowledged the MOUs during the comment process.
Federal Defendants point out that Gallatin must have been aware of the MOUs
during the NEPA process as Gallatin discussed the MOUs in its public comments.
(USFS 000878.) Glenn and Laurie Hockett, on behalf of Gallatin, sent the USFS
an email with attachments that contained comments to the EIS. (USFS 000865.)
In one of these attachments, a Gallatin member commented that the MOUs
placed a higher priority on domestic sheep than bighorn sheep in the area. The
Gallatin member asked how the USFS could justify that priority. (USFS 000878.)
The USFS responded to the comment with a thoughtful non-response that reads in
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its entirety: “[t]his attachment was reviewed in the context of comments within this
letter.” (USFS 002490.) The USFS’s acknowledgement of the MOUs in the
response to the comment failed to address directly the MOUs. MFWP also
addressed the MOUs in its comments to the EIS. (USFS 000844.) The USFS
responded that the comment somehow had been resolved. The USFS failed to
supply, however, any new information to indicate how the issue actually had been
resolved. (USFS 001780.)
It further strains credulity for the USFS to suggest that its admission of the
MOUs’ existence complies with the letter, if not the spirit, of NEPA. The USFS
fails to explain why the public must connect the dots regarding its efforts and
intention to protect bighorn sheep habitat. NEPA serves to inform the public of the
issues that arise from a potential action undertaken by a federal agency. Robertson,
490 U.S. at 350. The USFS failed to meet its obligations under NEPA to inform
the public of the issues that surrounded the reintroduction of bighorn sheep on
federal lands. Id.
General statements, such as the USFS’s acknowledgment of Gallatin and
MFWP’s comments, fail to constitute a hard look absent a justification regarding
why more information could not have been provided. Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998). The USFS’s cursory
treatment of the issues presented by the MOUs raise substantial questions about the
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USFS’s decisions regarding bighorn sheep management in the Revised Forest Plan.
Id. The Court can conceive of no good reason why a federal agency would fail to
disclose agreements between a federal agency, state agency, and private
stakeholders regarding the management of the reintroduction of a species. The
consequences of the MOUs potentially impacts the availability and extent of the
bighorn sheep’s habitat.
3. Harmless Error Analysis.
Federal Defendants argue that even if the Court determines that the USFS
should have disclosed the MOUs in its FEIS, its failure to do so resulted in
harmless error. An EIS should “foster both informed decision-making and
informed public participation.” Churchill County v. Norton, 276 F.3d 1060, 1071
(9th Cir. 2001). The USFS precluded the opportunity for public comment on the
MOUs when it failed to disclose their existence or their possible impact on bighorn
sheep. See Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 527 (9th
Cir. 1994). NEPA remains a process oriented requirement. Id. at 523. It contains
no substantive requirements. Id. As a result, a technical non-disclosures does not
always translate into a NEPA violation. Id. at 527.
NEPA ultimately seeks to prevent the risk of damage to the environment that
results if the agency fails to evaluate properly and thoroughly the environmental
impacts of a proposed project. Id. NEPA’s objective requires that a federal agency
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consider significant aspects of an environmental impact of a proposed action and
inform the public of its consideration. Pit River Tribe v. USFS, 469 F.3d 768, 781
(9th Cir. 2006). The Court will not grant relief when the decision-maker fully
considered the environmental consequences and the decision met NEPA’s goals,
even in light of a procedural violation. Laguna Greenbelt, Inc., 42 F.3d at 527
(citing Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023 (9th Cir.
1980)).
The Revised Forest Plan relies on coordination between MFWP, the BLM,
and the USFS. The USFS has relied on these other agencies to resolve bighorn
sheep and domestic sheep conflicts through allotment specific plans. The USFS’s
analysis deferred management of bighorn and domestic sheep interactions to sitespecific decisions rather than using a more comprehensive approach. (USFS 7654.)
Bighorn sheep exist on lands outside USFS managed land. (USFS 007803.) The
USFS recognizes that this reliance requires the Revised Forest Plan to cooperate
with other agencies and governments to resolve issues between domestic sheep and
bighorn sheep. (USFS 007803.)
The MOUs document the USFS’s attempt to cooperate with other agencies
and stakeholders to resolve environmental consequences that may arise from the
interactions of bighorn and domestic sheep. The MOUs represent an agreement
between a state agency, federal agencies, and Permitees who operate domestic
23

sheep allotments. The MOUs set forth potential strategies to avoid contact between
the domestic sheep and the bighorn sheep. The Court cannot consider this
agreement irrelevant in light of the Revised Forest Plan’s reliance on coordination
between these entities.
The complete non-disclosure of these highly relevant agreements in the body
of the EIS frustrates NEPA’s objective to ensure that the public has the opportunity
to consider whether the USFS has considered environmentally relevant information
in their decision-making process. The USFS’s disclosure of the MOUs and their
impact would have allowed the public to question their application to the USFS’s
management of the allotments. In particular the public could have raised questions
regarding the issuance of kill permits to the Permitees contemplated by the MOUs.
Disclosure of the MOUs also could have allowed the public to seek clarification on
the Agencies’ apparent agreement not to adjust the operation or management of the
allotments without the Permitees’ consent.
A NEPA violation amounts to more than harmless error when it “prevent[s]
a proper, thorough, and public evaluation of the impact of the Project.” Lands
Council v. Powell, 395 F.3d 1019, 1037 n.25 (9th Cir. 2004) (citing Laguna
Greenbelt, Inc., 42 F.3d at 527)). The Court recognizes that NEPA represents a
procedural statute in that it does not mandate substantive results. Oregon Nat.
Desert Ass’n v. Bureau of Land Mgt., 625 F.3d 1092, 1099 (9th Cir. 2010). NEPA
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does mandate, however, a “democratic decisionmaking structure” that proves
“almost certain to affect the agency’s substantive decisions.” Id. The USFS’s
failure to disclose the MOUs hindered the public’s ability to comment on their
impacts, and, in turn, hindered the USFS’s decision-making process. The failure to
disclose the MOUs violated the NEPA’s required procedure.
The USFS’s failure to describe the MOUs as part of the NEPA process
raises concerns that the USFS may have made a unilateral decision to omit other
pertinent information from the NEPA process. For example, the 2008 MOU
provides that it does not obligate the expenditure or reimbursement of any funds to
implement. (USFS 008259.) The 2008 MOU does provide, however, that any
exchange, reimbursement, or contribution of funds would be handled separately.
Id. This provision give rise to the question of whether any such separate
agreements exist.
The 2008 MOU further provides that it may be modified only by “mutual
consent of the parties.” Id. This provision could be interpreted to provide the
Permitees with veto power over any future modification of management of the
allotments. The USFS argues that the 2008 MOU may be terminated at any time to
support its claim that the 2008 MOU should be considered non-binding. The 2008
MOU’s terms allow either party to terminate the agreement in whole or in part for
any reason. (USFS 008259.) The actions the USFS and Permitees have taken under
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the MOUs speak louder than words. The record indicates that the parties to the
MOUs have placed some significance on the agreement.
The MOUs allow domestic sheep producers to obtain kill permits from
MFWP to use in the event a bighorn sheep comes too close to domestic sheep. This
provision seems to favor domestic sheep over bighorn sheep. The MOUs represent
a commitment by the USFS to protect domestic sheep. In light of these facts, the
MOUs represent a significant document despite the USFS’s apparent ability to
terminate at any time. The USFS’s disclosure of the MOUs and their alleged nonbinding nature would have allowed the public to raise questions regarding their
significance.
NEPA’s procedures demand that the public have a full opportunity to
question the USFS and to receive answers from the USFS regarding the meaning
and application of the MOUs. Assurance by the USFS that it has reviewed the
MOUs “in the context” of the public’s inquiry falls well short of the fully informed
decision making contemplated by NEPA. The public has a right to expect better of
its governmental agencies. The Court will enforce the public’s reasonable
expectation here. The USFS fell short of its obligation to take a “hard look” at the
effects of the 2002 and 2008 MOUs. Marsh, 490 U.S. at 374.
C. Supplementation for AMPs

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Gallatin argues that the USFS failed to consider whether sufficient new
information existed that required supplemental NEPA analysis for the AMPs.
Gallatin contends that the USFS violated NEPA a second time when it ultimately
failed to complete such analyses. The agency must evaluate new information to
determine whether the new information requires a supplemental EIS. Friends of
the Clearwater v. Dombeck, 222 F.3d 552, 558 (9th Cir. 2000). An agency should
supplement an EIS when significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action exist. 40 C.F.R. §
1502.9(c).
1. AOIs Establish Final Agency Action.
Amicus Montana Farm Bureau Federation (“MFBF”) asserts that Gallatin’s
supplementation argument lacks merit because no ongoing federal action exists.
MFBF relies on Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004), for this
proposition. Sothern Utah Wilderness Alliance (“SUWA”) alleged in Norton that
the Bureau of Land Management (“BLM”) had failed to act to protect Utah public
lands from environmental damage caused by off-road vehicles. Norton, 542 U.S. at
58-60. SUWA claimed, among other allegations, that BLM had failed to take a
“hard look” at whether NEPA obligated the BLM to undertake supplemental
analyses for areas where off-road vehicle use had increased. Id. at 60.

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The United States Supreme Court considered whether a federal court’s
authority under the APA to “compel agency action unlawfully withheld or
unreasonably delayed” extended to the BLM’s management of public lands under
its own planning documents. Id. at 57. The APA authorizes suit by “a person
suffering legal wrong because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute.” Id. (citing 5. U.S.C. §
702) (internal quotations omitted). The agency action complained of must be a
final agency action where no other statute provides a private right of action.
Norton, 542 U.S. at 61-62. The APA also provides relief for an agencies failure to
complete a required discrete agency action. Id. at 64.
The Supreme Court determined that supplementation proves necessary only
when a major federal action remains to occur. Id. at 73. The Court recognized that
approval of a land use plan qualified as major federal action that requires an EIS.
Id. Once the agency had approved the plan, however, no ongoing major federal
action that could be supplemented exists. Id. The USFS argues that no federal
actions exists here when it already has approved the Revised Forest Plan.
Gallatin argues that its claims prove consistent with Norton based on the
assertion that grazing represents an ongoing activity. Gallatin argues that the
USFS’s issuance of Annual Operating Instructions (“AOIs”) for the AMPs each
year demonstrates that grazing should be considered an ongoing federal activity.
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The USFS authorizes and manages grazing on specified allotments by issuing (1)
grazing permits, (2) AMPs, and (3) AOIs. Oregon Nat. Desert Ass’n v. U.S. Forest
Serv., 465 F.3d 977, 979 (9th Cir. 2006). The grazing permits, AMPs and AOIs
should be consistent with the applicable forest plan. Oregon Nat. Desert Ass’n v.
U.S. Forest Serv., 465 F.3d at 980.
The grazing permit authorizes permitees to use lands under the USFS’s
control for the purpose of livestock production. Id. at 979-80 (citing 36 C.F.R. §
222.1(b)(5)). The AMP specifies a program of action for specific allotments.
Oregon Nat. Desert Ass’n, 465 F.3d at 980. An AOI relates forest plan directives
to specific allotments. The USFS issues AOIs annually to account for changing
circumstances. Id. Gallatin challenges the USFS’s failure to evaluate whether the
site-specific AMPs required supplementation and the USFS’s failure to supplement
the AMPs.
Forest-wide management practices typically do not constitute final agency
actions. Ecology Ctr. v. Castaneda, 574 F.3d 652, 658 (9th Cir. 2009). Challenges
to forest-wide management practices or claims must be made in the context of sitespecific actions. Id. Gallatin must allege a specific connection between the
challenged site-specific action and the general forest-wide management practice.
Id.

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The Complaint challenges the USFS’s failure to supplement allotmentspecific AMPs. AMPs must be consistent with the general applicable forest plan.
Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d at 980. The USFS issues
AOIs for each allotment. The Ninth Circuit has recognized that an AOI qualifies as
a “discrete, site-specific” final agency action. Id. at 990. The issuance of AOIs
demonstrate the USFS’s ongoing supervision over the challenged grazing. The
USFS still maintains a “meaningful opportunity to weigh” the benefits of the
grazing versus the possible detrimental effects grazing may cause on the
environment. Id.
2. Appropriations Act.
Federal Defendants contend that separate federal laws exempt the challenged
grazing allotments from supplemental NEPA analysis. The 1995 Rescissions Act,
Pub. L.104-19 § 504(b), 109 Stat. 194, and the 2004 Appropriations Act, Pub. L.
108-108, § 325, 117 Stat. 1241, 1308, require the USFS to reissue grazing permits
on the same terms and conditions as the original permits. Great Old Broads For
Wilderness v. Kempthorne, 452 F. Supp. 2d 71, 76-77, 81-82 (D.D.C. 2006). The
1995 Rescissions Act and the 2004 Appropriations Act further exempt grazing
allotments whose permits the USFS shall renew between fiscal years 2004 and
2008 from NEPA requirements until ordered by the Secretary of Agriculture.

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Kempthorne, 452 F. Supp. 2d at 77, 81-82; W. Watersheds Project v. Bureau of
Land Mgmt., 629 F. Supp. 2d 951, 970-71 (D. Ariz. 2009).
The court in Kempthorne determined that “Congress amended ‘all applicable
laws’ to require reissuance of expired, transferred or waived grazing permits prior
to the completion of otherwise required action.” Kempthorne, 452 F. Supp. 2d at
81. The court in Kempthorne interpreted the federal riders to toll NEPA
requirements as they pertain to managing grazing allotments generally. Id. at 8182. These riders exempt qualifying allotments from supplemental NEPA analysis
until the Secretary of Agriculture orders the analysis. The Secretary of Agriculture
possesses authority to determine the priority and timing for completing NEPA
analyses. Id. at 81; Pub. L. No. 108-108 § 325, 117 Stat. at 1308.
Gallatin argues that this NEPA exemption should be limited only to those
analyses prepared as a matter of course when renewing grazing permits. Gallatin
asserts that the text of the Appropriations Act mentions only analyses for permit
renewals and does not address supplemental NEPA analyses. Gallatin argues that
Congress’s enactment of the Appropriations Act attempted to remedy a large
number of grazing permits expiring over a short period of time.
“Section 325 of Public Law 108–108 provides in pertinent part that a
grazing permit which expires during 2004-2008 ‘shall be renewed’ and the terms
and conditions contained in the expired permit ‘shall continue in effect under the
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renewed permit’ until the Forest Service ‘completes processing of such permit . . .
in compliance with all applicable laws and regulations.’” Oregon Nat. Desert Ass’n
v. Sabo, 854 F. Supp. 2d 889, 922 (D. Or. 2012). The legislation resulted from a
congressional concern that performing NEPA analyses for a large number of
expiring grazing permits would strain the USFS’s resources. Wildearth Guardians
v. U.S. Forest Serv., 668 F. Supp. 2d 1314, 1322 (D.N.M. 2009).
The court in Sabo addressed Public Law 108–108’s application to grazing
permits. Sabo, 854 F. Supp. 2d at 922. Sabo interpreted Public Law 108–108 to
limit the NEPA exemption only to permits for grazing renewals, or the AOI. Id. at
922-923. The court declined to interpret Public Law 108–108 as barring plaintiff’s
claim when the claim did not relate to a renewal of a grazing permit. Id. at 922-23.
The court allowed the plaintiffs to proceed with claims that challenge the adequacy
of the environmental review for an AMP.
The USFS attempts to distinguish Sabo. The USFS argues that the court in
Sabo determined that supplementation proved necessary despite the Appropriations
Act rider due to plaintiffs having shown that continued cattle grazing would cause
potentially irreversible harm to sensitive plant and animal species and their habitat.
The USFS argues that bighorn sheep do not exist on the allotments at issue here.
As a result, the USFS argues that Gallatin has not shown that domestic sheep
grazing may cause potentially irreversible harm to bighorn sheep or their habitat.
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Sabo did not premise its interpretation that Public Law 108–108 to the facts
of the case. Id. at 922. The Court agrees with Sabo’s interpretation of Public Law
108–108 that it imposes no bar to a challenge to the potential need for
supplemental environmental review for AMP. The 1995 Rescissions Act and the
2004 Appropriations Act do not bar Gallatin’s supplementation claim.
3. New Information.
An agency must remain alert to new information that may alter the results of
its original environmental analysis and “continue to take a hard look at the
environmental effects of its planned action, even after a proposal has received
initial approval.” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th
Cir. 2000). Gallatin argues that the USFS has failed even to consider and evaluate
the need for a supplemental EIS in light of alleged new information.
Gallatin suggests that five new pieces of information warrant a supplemental
analysis: (1) the reintroduction of bighorn sheep; (2) the 2011 listing of bighorn
sheep as a sensitive species; (3) the existence of the MOUs; (4) updated
information regarding disease transmission between domestic sheep and bighorn
sheep; and (5) the consideration by MFWP that bighorn sheep could be
reintroduced to closed allotments. “When new information comes to light the
agency must consider it, evaluate it, and make a reasoned determination whether it
is of such significance as to require [a supplemental EIS].” Id.
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The USFS contends that it considered this new information in its draft
Report to the Chief. (USFS 007796-7896.) The USFS drafted the Report to the
Chief in reaction to the Regional Forester’s direction to determine whether the
Revised Forest Plan should be amended to provide a more comprehensive analysis
of bighorn sheep and domestic sheep interactions. (USFS 007802.) The document
addresses a possible deficiency in the Revised Forest Plan. Gallatin has challenged
the USFS’s failure to supplement seven AMPs. (Doc. 1 at 7.) The draft Report to
the Chief fails to address whether new information warrants supplementation to the
AMPs. The USFS last performed NEPA analyses for these AMPS at various times
between 1979 to 2000.
New developments have occurred since 2000, and certainly since 1979, that
would require the USFS to evaluate whether it should be required to supplement
the NEPA analyses for these allotments. The USFS knew of the reintroduction of
bighorn sheep to the area. The USFS knew that the USFS Regional Office had
designated bighorn sheep a sensitive species region wide in 2011. The USFS knew
that it had entered into an original MOU in 2002 and a renewed MOU in 2008. The
USFS also knew of information regarding disease transmission. The record fails to
establish whether the USFS timely considered the need for NEPA supplementation
for the AMPs in light of this information. The USFS’s “failure to evaluate the need

34

to supplement the original EIS in light of that new information violated NEPA.”
Dombeck, 222 F.3d at 557.
V. Conclusion
In light of the deference afforded the USFS methodology for evaluating
viability required under Vilsack, the Court concludes that the USFS’s bighorn
sheep viability analysis for the Revised Forest Plan proves sound and complies
with NEPA. The USFS violated its obligations under NEPA, however, when it
failed to disclose the existence of the 2002 MOU and the 2008 MOU in its EIS for
the Revised Forest Plan. This information constituted more than “needless detail”
that warranted disclosure. Finally the USFS violated NEPA when it failed to
demonstrate that it had evaluated new information to determine whether it should
perform supplemental NEPA analyses for the AMPs.
Gallatin has sought to enjoin domestic sheep grazing on Forest Service
allotments. A Court considering injunctive relief must balance the hardships
between the plaintiff and defendant and consider the public’s interest. This test
applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010). As noted by the
Court in its July 10, 2015, Order and its July 27, 2015, Memorandum in Support of
its Order, the balance of the equities and the public interest raise difficult issues.
The seeming incompatibility of bighorn sheep and domestic sheep raise problems
35

for all parties involved. The deficiencies identified in the USFS’s Revised Forest
Plan and AMPs involve the inaction or failures of the USFS. The Court hesitates to
fashion a remedy for these failures that falls entirely on the Permitees who appear
to have acted in compliance with the conditions of their grazing permits. The Court
recognizes, however, that these deficiencies must be remedied.
The Court declines to enjoin further domestic sheep grazing at this juncture.
The Court instead will allow Federal Defendants to attempt to remedy the
deficiencies identified herein on an expedited basis. Domestic Sheep have grazed
on the Gravelly Landscape since the 1860s. (Doc. 31 at 2.) MFWP decided to
introduce bighorn sheep to the Gravelly Landscape in September 2001 (USFS
008148.) Gallatin contends that the presence of domestic sheep grazing prevents
the bighorn sheep herd from growing to a viable size, and, therefore, causes
irreparable harm. Gallatin also contends that domestic sheep grazing harms their
members’ aesthetic and recreational interests in the area. Gallatin contends that
enjoining domestic sheep grazing will allow the bighorn sheep herd to grow.
The Court deems it appropriate at this stage to defer a decision on whether to
enjoin domestic sheep grazing until the USFS has resolved the deficiencies in its
analysis. The USFS will need to consider the appropriateness and scope of future
domestic grazing based upon a full and open environmental review process. This
full and open environmental review process must include the discussion of the
36

2002 and 2008 MOUs. This full and open environmental review process also must
consider whether sufficient new information has emerged that requires the
environmental review for the AMPs to be updated. The USFS must decide at the
end of this process how to address the conflict between domestic sheep grazing and
the reintroduction of bighorn sheep in the Gravelly Landscape. Accordingly, IT IS
ORDERED that:
1. The Federal Defendants’ motion for summary judgment regarding its use of
the coarse filter or habitat by proxy methodology is GRANTED in part.
(Doc. 122).
2. The Federal Defendants shall issue a supplemental EIS for the 2009 Revised
Forest Plan that evaluates the potential environmental consequences of the
2000 MOU and the 2008 MOU. The Federal Defendants shall provide to the
Court within 30 days a schedule of the proposed supplemental EIS.
3. The Federal Defendants shall conduct a review of the five issues raised by
Gallatin, and any other pertinent new information, to determine whether any,
or all, of this new information warrants supplementation of the original EIS
prepared for the AMPs at issue here. The Federal Defendants shall provide
to the Court within 30 days a schedule for the completion of this review.

37

DATED this 14th day of June, 2016.

38