Western Watersheds Project v. Lueders et al

Filing 72

ORDER denying 45 plaintiff's motion for summary judgment and granting 54 defendant's motion for summary judgment. Judgment shall be entered in favor of the defendants and against plaintiff. Signed by Judge Howard D. McKibben on 8/13/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WESTERN WATERSHEDS PROJECT,

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Plaintiff,

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vs.

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AMY LUEDERS, BLM Nevada State
Director, BUREAU OF LAND
MANAGEMENT, an agency of the
United States, and U.S.
Department of Interior, an agency
of the United States,

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3:14-cv-00134-HDM-VPC
ORDER

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Defendants.
_________________________________

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Before the court are plaintiff Western Watersheds Project

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(“plaintiff”)and defendant U.S. Bureau of Land Management’s (“BLM”)

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cross-motions for summary judgment (## 45, 54). Plaintiff and

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defendant have each submitted responses and replies. A hearing was

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held on the motions on July 8, 2015, and the case has been

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submitted.

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Factual Background

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On November 5, 2012, BLM approved the Cave Valley and Lake

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Valley Watershed Restoration Plan Environmental Assessment (“EA”),

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which is the subject of this action, to “address the risk of

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catastrophic wildfire and improve wildlife habitat.” #54 at 1:3-4.
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One of the stated goals of the EA is to reduce fire risk by

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removing vegetation that serves as fuel loads for fires.

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Additionally, treatments sanctioned by the plan are intended to

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improve habitat for greater sage-grouse by removing trees where

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they are encroaching on sagebrush habitat, removing noxious weeds,

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and thinning overgrown sagebrush. Id. at 1:6-7. The EA also

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includes rangeland improvements that are designed to better

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distribute livestock and improve rangeland health. Id. at 8-9.

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The Cave Valley and Lake Valley watersheds are located south

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of Ely in eastern Nevada and cover roughly 583,832 acres. AR 7495.

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The primary vegetation types in the watersheds are sagebrush

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communities and stands of pinyon pine and juniper. Id. From 2005 to

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2010, BLM specialists conducted an assessment of the conditions

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within the watersheds. AR 7498. BLM’s analysis indicated that much

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of the areas in the two watersheds were in conditions of moderate

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to high departure from natural conditions according to the fire

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regime classification scale. AR 7498-99. The analysis concluded the

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departure resulted from a combination of drought, fire suppression

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efforts, and historic livestock overgrazing.

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The stated objectives of BLM’s planned vegetation treatments

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are to 1) move areas towards FRCC 1 (reduce fire risk); 2) improve

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habitat for wildlife, especially sage grouse and big game species;

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and 3) achieve better distribution for livestock and wildlife, and

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improve overall rangeland health. AR 7498. BLM plans to accomplish

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these objectives by removing and thinning trees and decaying or

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overgrown sagebrush through a variety of treatment methods,

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including hand cutting, mechanical methods (e.g., chaining, Dixie

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harrow, roller chopper, and moving), chemicals (i.e., herbicides),
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and prescribed fire. AR 7517-23. Seeding will also be utilized in

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areas where the interdisciplinary team determines that existing

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understory of vegetation is not sufficiently abundant or diverse.

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AR 7524. The proposed rangeland improvements include repairing or

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replacing the existing water infrastructure and reconstructing

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fences that are in need of repair. AR 7501.

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The project will impact the habitat of a number of species,

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including the greater sage-grouse. There are 15 active leks (mating

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grounds) and one lek of unknown status within the Cave and Lake

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Valley Watersheds, according to 2011 Nevada Department of Wildlife

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survey data. AR 7572. The greater sage-grouse is a BLM Sensitive

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Species that has been determined to be warranted for listing under

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the Endangered Species Act (“ESA”), but which is precluded by other

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species of higher priority. AR 7571 (citing Federal Register/Vol.

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75, No. 55/Tuesday, March 23, 2010).

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Priority and general sage grouse habitat has been identified

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by the BLM in coordination with the Nevada Department of Wildlife.

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Priority habitat comprises areas that have been identified as

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having the highest conservation value to maintaining a sustainable

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sage grouse population, which includes breeding, late brood-

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rearing, and winter concentration areas. Id. General habitat

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comprises areas of occupied seasonal and year-round habitat outside

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the priority habitat. Id. BLM contends the location and status of

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known sage grouse leks and priority habitat were used to guide the

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development of the proposed action, alternatives, and mitigation

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measures of the EA. Id.

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Procedural Background

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In August 2008, BLM issued a Cave Valley Watersheds Evaluation
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Report, which documented the poor conditions of the uplands,

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riparian areas, and wildlife habitat throughout the Cave Valley

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Watershed. BLM documented similar conditions within the Lake Valley

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watershed, in its Lake Valley Watersheds Evaluation Report. BLM

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concluded the standards for soils, uplands and riparian areas, and

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wildlife habitat were not being met. BLM pointed to the lack of

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diverse, native herbaceous grasses and forbs, and the prevalence of

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cheatgrass, among other factors.

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On April 1, 2011, BLM issued a public scoping notice alerting

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the public to BLM’s completion of its Cave Valley and Lake Valley

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analysis and evaluation, and concluding that “actions need to be

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taken to enhance the health of various aspects of the watersheds .

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. . .” A preliminary environmental assessment was released on

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February 17, 2012 and comments were accepted through March 23,

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2012. See Preliminary EA; Proposed Decision at 2-3. The BLM

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received a number of comments on the preliminary EA from interested

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parties, and as a result of that public input the BLM reevaluated

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treatments in the wilderness and removed four of the seven

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treatment units in the wilderness. AR 7506.

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BLM issued its final Cave Valley and Lake Valley Watersheds

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Restoration Plan Environmental Assessment on November 5, 2012. On

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December 26, 2012, plaintiff filed an appeal and petition for stay

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with the Department of the Interior, requesting the EA be set

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aside, and BLM be required to prepare an Environmental Impact

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Statement. On February 14, 2013, the U.S. Department of the

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Interior denied plaintiff’s petition for stay. In June 2013,

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plaintiff filed a notice of dismissal regarding its appeal with the

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Department of the Interior and filed a formal complaint in federal
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court, alleging the BLM violated the National Environmental Policy

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Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”),

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and the Administrative Procedures Act (“APA”). See AR 10465; #1.

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The court now considers the parties’ cross motions for summary

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judgment.1

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Legal Standard

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The APA, 5 U.S.C. §§ 701-706, governs the court’s agency

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review under NEPA and FLPMA. See ONRC Action v. U.S. Bureau of Land

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Mgmt., 150 F.3d 1132, 1135 (9th Cir. 1998). The court must

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determine if the agency action in question was “arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance

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with law,” or “without observance of procedure required by law.” 5

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U.S.C. §§ 706(2)(A), (D)(2006). This standard requires the court to

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ensure that the agency has taken the requisite “hard look” at the

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environmental consequences of its proposed action, the agency’s

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decision is based on a reasoned evaluation of all the relevant

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factors, and the agency has sufficiently explained why the

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project’s impacts are insignificant. National Parks & Conservation

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Assoc. v. Babbit, 241 F.3d 722, 730 (9th Cir. 2001) (abrogated on

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other grounds by Winter v. Natural Res. Def. Council, Inc., 555

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U.S. 7, 20, 129 S.Ct.365, 172 L.Ed.2d 249 (2008)).

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This is a highly deferential standard and the court must defer

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to an agency’s decision that is “fully informed and well-

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considered.” Blue Mountains Biodiversity Project v. Blackwood, 161

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F.3d 1208, 1211 (9th Cir. 1998) (internal citation omitted). The

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Plaintiff entitled their motion “Plaintiff’s Motion for Partial Summary
Judgment.” #45. The plaintiff concedes the motion is properly construed
as a motion for summary judgment on all issues raised by plaintiff.

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court must be careful not to substitute its own judgment for that

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of agency experts. See Greenpeace Action v. Franklin, 14 F.3d 1324,

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1332 (9th Cir. 1993); Marsh v. Oregon Natural Resources Council,

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490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The APA

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“does not allow the court to overturn an agency decision because it

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disagrees with the decision or with the agency’s conclusions about

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environmental impacts.” River Runners for Wilderness v. Martin, 593

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F.3d 1064, 1070 (9th Cir. 2010) (citation omitted). However, the

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court need not forgive a clear error of judgment. Marsh, 490 U.S.

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at 378.
An agency decision is arbitrary and capricious where it

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“relied on factors Congress did not intend it to consider, entirely

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failed to consider an important aspect of the problem, or offered

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an explanation that runs counter to the evidence before the agency

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[at the time of its decision] or is so implausible that it could

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not be ascribed to a difference in view or the product of agency

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expertise.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.

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2008) (en banc) (quotations omitted) (overruled on other grounds by

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129

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S.Ct.365, 172 L.Ed.2d 249 (2008)). Plaintiffs have the burden of

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showing that any decision or action by the agency was arbitrary and

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capricious. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct.

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2718, 49 L.Ed.2d 576 (1976).

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Summary judgment is appropriate if there are no genuine issues

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of material fact and the moving party is entitled to judgment as a

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matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

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Catrett, 477 U.S. 317, 325 (1986). In APA actions, however, the

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court’s review is based on the agency’s administrative record. See
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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-84 (1990). The

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court’s role is to determine whether the agency’s record supports

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the agency’s decision as a matter of law under the APA’s arbitrary

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and capricious standard of review. See Nw. Motorcycle Ass’n v. U.S.

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Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (“[T]his case

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involves review of a final agency determination under the [APA];

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therefore, resolution of this matter does not require fact finding

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on behalf of this court. Rather, the court’s review is limited to

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the administrative record . . . .”); see also Occidental Eng’g Co.

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v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

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Plaintiff’s Motion

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Plaintiff contends the vegetation project BLM outlines for the

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Cave and Lake Valley watersheds violates NEPA because it fails to

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adequately examine how its cumulative impact, along with that of

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past, present, and reasonably foreseeable future actions, affects

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the greater sage-grouse. Additionally, plaintiff contends BLM’s

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proposed rangeland improvements violate NEPA because BLM failed to

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take a hard look at the ecological consequences of executing the

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plan.

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Plaintiff asserts BLM’s EA and mitigated finding of no

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significant impact (“FONSI”) are inadequate, and BLM instead should

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have prepared a full environmental impact statement (“EIS”). NEPA

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requires federal agencies “to the fullest extent possible” to

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prepare an EIS for “every . . . major Federal actio[n]

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significantly affecting the quality of the human environment.” 42

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U.S.C. § 4332(2)(C)(2000 ed.). A full EIS contains a statement by

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the responsible official on (i) the environmental impact of the

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proposed action; (ii) any adverse environmental effects which
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cannot be avoided should the proposal be implemented; (iii)

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alternatives to the proposed action; (iv) the relationship between

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local short-term uses of man’s environment and the maintenance and

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enhancement of long-term productivity, and (v) any irreversible and

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irretrievable commitments of resources which would be involved in

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the proposed action should it be implemented. Id.

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An agency may prepare an EA “to decide whether the

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environmental impact of a proposed action is significant enough to

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warrant preparation of an EIS . . . . An EA is a ‘concise public

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document that briefly provide[s] sufficient evidence and analysis

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for determining whether to prepare an EIS or a finding of no

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significant impact.’ (FONSI).” Blue Mountains Biodiversity Project,

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161 F.3d at 1212 (quoting 40 C.F.R. § 1508.9). EAs may “tier” to

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other NEPA documents, but tiering does not eliminate the EIS

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requirement when a proposed project significantly affects the

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environment. 40 C.F.R. §§ 1502.20, 1508.28. If an agency decides

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not to prepare an EIS, it must provide a detailed statement of

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reasons explaining why the proposed project’s impacts are

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insignificant.” Blue Mountain Biodiversity Project, 161 F.3d at

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1212.

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“An EIS must be prepared if ‘substantial questions are raised

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as to whether a project . . . may cause significant degradation of

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some human environmental factor.’” Id. (Internal citations

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omitted). Plaintiff need not show that significant effects will

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occur, it is enough to raise “substantial questions” whether a

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project may have a significant effect on the environment. Id.

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An agency’s decision to forego issuing an EIS may be justified
by the adoption of mitigation measures to offset potential
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environmental impacts. Babbitt, 241 F.3d at 733-34 (citations

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omitted). If, pursuant to the EA, an agency determines that an EIS

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is not required under applicable regulations, it must issue a

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FONSI, “which briefly presents the reasons why the proposed agency

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action will not have a significant impact on the human

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environment.” Department of Transp. v. Public Citizen, 541 U.S.

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752, 757-58, 124 S.Ct. 2204 (2004). The issue for the court to

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consider is whether the mitigation measures form such an adequate

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buffer against the purported negative effects that the impact is

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too minor to warrant an impact statement. Greenpeace Action v.

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Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992).

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The EA

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BLM’s final EA tiers to the cumulative impacts analysis in the

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Ely Proposed Resource Management Plan (“RMP”)/Final Environmental

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Impact Statement (“FEIS”), as well as the Programmatic

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Environmental Impact Statement on Vegetation Treatments Using

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Herbicides on Bureau of Land Management Lands in 17 Western States

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(“Vegetation PEIS”), and the Ely District Integrated Weed

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Management Plan & Environmental Assessment (“Ely Weed Plan”). See

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AR 7503. These documents have been subject to NEPA review: the Ely

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RMP/FEIS and Vegetation PEIS were issued by BLM in 2007; the Weeds

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EA was issued in 2010. Id. In addition to tiering to these plans,

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the EA directly discusses past, present, and future actions within

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the watershed and surrounding area. AR 7620-23. Concerning greater

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sage-grouse specifically, the EA notes and incorporates two

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instructional memorandums issued by the Washington Office of the

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BLM and providing direction for the management and protection of

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sage grouse habitat. AR 7571.
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“Tiering, or avoiding detailed discussion by referring to

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another document containing the required discussion, is expressly

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permitted” and encouraged under NEPA, so long as the tiered-to

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document has been subject to NEPA review. Kern v. U.S. Bureau of

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Land Mgmt., 284 F.3d 1062, 1073 (9th Cir. 2002); 40 C.F.R.

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§ 1502.20. Tiered analyses are viewed as a whole to determine

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whether they address all the impacts. S. Or. Citizens Against Toxic

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Sprays, Inc. v. Clark, 720 F.2d 1475, 1480 (9th Cir. 1983). Only

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where neither the general nor the site-specific documents address

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significant issues is environmental review rejected. Te-Moak Tribe

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v. U.S. Dep’t of the Interior, 608 F.3d 592, 602-7 (9th Cir. 2010).

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A) Ely RMP and FEIS

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The Ely RMP and FEIS, issued November 2007, covers the Ely

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District. The Ely Field Office manages approximately 11.5 million

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acres of public lands out of the approximately 13.9 million acres

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within the boundaries of the planning area. AR 2907. The RMP and

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FEIS explain that the vegetation types within the Ely District have

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been changing, with pinyon and juniper trees taking over areas that

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were previously occupied by a more healthy mix of vegetation.2 AR

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3018. As a result, many sagebrush communities have lost the grasses

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and forbs that used to form the understory, making it more likely

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that a catastrophic wildfire could occur. Id. Section 4.28 of the

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FEIS discusses potential cumulative impacts of BLM’s Proposed Plan

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when combined with past, present, and future activities within the

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planning area. AR 3991. This discussion includes a reference to

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“Conservation plans for greater sage-grouse,” to include “active

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The Cave and Lake Valley Watersheds exist entirely within the Ely
District. AR 7495.

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management techniques to improve habitat for greater sage-grouse .

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. . .” AR 4007.

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The FEIS also contains a section devoted to special status

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species and discusses Greater sage-grouse and their presence within

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the Ely Field Office. AR 3400-01. BLM identified 293 leks within

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the area of the Ely Plan and also identified seasonal habitat and

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winter habitat for greater sage-grouse. AR 3401; AR 5678 (map

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showing greater sage-grouse leks, summer range, winter range, and

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nesting range). BLM also analyzed the impacts of its proposed

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actions on greater sage-grouse. See AR 3680 (“On a landscape level,

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restoration activities to achieve appropriate ranges of vegetation

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conditions would reduce habitat degradation and fragmentation, and

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promote ecological health and resiliency.”).

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However, “the interrelated projects either have produced or

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[will] continue to result in direct mortality, displacement of

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individuals, habitat loss or alteration, habitat fragmentation, and

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possible population reductions of some special status species.” AR

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4033. The Ely FEIS thereby noted impacts requiring site-specific

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analysis and mitigation.

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B) Vegetation PEIS

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In response to the growing threat of wildfire and invasive

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vegetation and noxious weeds, the President and Congress directed

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the United States Department of the Interior and BLM to take more

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aggressive actions to reduce catastrophic wildfire risk on public

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lands. AR 2162. The result was the Vegetation PEIS. The Vegetation

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PEIS describes an integrated pest management program that applies

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to approximately 6 millions acres annually of public lands in 17

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western U.S. states. AR 2139.
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The scope of BLM programs focused on managing vegetation and

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reducing the amount of hazardous fuel levels increased as a result

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of the Vegetation PEIS. AR 2163. Additionally, the use of

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herbicides such as Tebuthiuron were approved for use on public

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lands in the State of Nevada. AR 2194.

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C) Ely Weed Plan

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In July 2010, BLM issued the Ely Weed Plan. AR 6363. The plan

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addresses the introduction and spread of noxious weeds and invasive

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species. AR 6366. BLM completed a survey in 2008 to assess the

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types and locations of weeds within the Ely District. AR 6367-71.

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To control the introduction and spread of weeds, BLM developed an

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Integrated Weed Management Plan, which involves education,

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prevention, and treatment of weeds using various methods, including

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manual removal, mechanical methods, prescribed burns, and

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herbicides. AR 6372-79.

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D) Cumulative Impact Analysis

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Plaintiff outlines a number of problems it perceives with the

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cumulative effects analysis provided by BLM in its EA. Although BLM

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“identif[ied] an appropriately broad cumulative effects study area

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. . . .” plaintiff asserts BLM failed to provide an examination of

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the cumulative impacts of its plan combined with past, present, and

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reasonably foreseeable future actions. #45 at 13. Plaintiff

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contends 1) previous plans have reduced sage-grouse habitat to

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dust; 2) BLM never discussed the efficacy of prior projects; 3) the

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FONSI provides conclusory assertions and no analysis; and 4) BLM

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fails to consider recent wildfires and other fires in and around

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the project area. Id. at 13-19.

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Consideration of cumulative impacts requires some detailed
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information resulting in a useful analysis. Klamath-Siskiyou

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Wildlands Center v. Bureau of Land Mng’t, 387 F.3d 989, 993 (9th

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Cir. 2004) (citation omitted). “General statements about possible

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effects and some risk do not constitute a hard look absent a

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justification regarding why more definitive information could not

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be provided.” Id. “An agency may, however, characterize the

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cumulative impacts of past actions in the aggregate without

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enumerating every past project that has affected the area”. Ctr.

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for Envtl. Law and Policy, 655 F.3d 1000, 1007 (9th Cir. 2011).

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1) Past Projects Must be Viewed in Light of Their Objectives

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To demonstrate past projects have been ineffective, Plaintiff

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points to the condition of Lincoln County Sage-Grouse Habitat

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Restoration Plan two years after completion. After the ground

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treatment, the vegetation in the area had been reduced to dust.

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This plan, however, must be viewed in context of its listed

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objectives, which contemplated at least 5-10 years for the habitat

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to be improved. Indeed, this analysis is consistent with language

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throughout the EA and the tiered documents: the initial impact of

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the restoration plans is deleterious to the environment inasmuch as

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that special status species can be negatively impacted and

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vegetation requires time to regrow, either naturally or through

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seeding. See AR 7595. BLM contends it mitigates this impact,

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however, through timing and geographic restrictions, as well as

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adaptive management listed in the EA. See AR 7511 (“Given the

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longer time scale of this project and the need to be flexible in

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how treatments are applied in given areas, adaptive management

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would be used for implementation of the Cave Valley and Lake Valley

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Watershed Restoration Project.”); AR 7511-17 (describing treatment
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design restrictions crafted to minimize impacts); AR 2212-17

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(describing detailed standard operating procedures to avoid harm to

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the environment); AR 6437-41 (describing weed prevention measures

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to minimize impacts).

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2) The Discussion of Cumulative Impacts and Mitigation Methods

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is Sufficient

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Plaintiff contends BLM has failed to adequately demonstrate

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the efficacy of its mitigation measures, and that the discussion of

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cumulative impacts is conclusory. The court need not determine that

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BLM has created a flawless plan. Indeed, “[w]hen specialists

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express conflicting views, an agency must have discretion to rely

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on the reasonable opinions of its own qualified experts . . . .”

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See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

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The EA lists alternative treatment methods (including taking

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no action) and determined the proposed plan has the best likelihood

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of meeting the stated environmental objectives, including

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protecting Greater sage-grouse and restoring their habitat. The

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discussion of cumulative impacts includes the tiered analysis from

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the previous plans, as well as site-specific analysis.

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Section 4.28 of the Ely RMP/FEIS has an extensive discussion

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of the potential cumulative impacts of the plan when combined with

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past, present, and future activities within the planning area. AR

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3991. The Ely FEIS lists and considers the impact of mining

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projects, grazing, wildfire, the expansion of pinyon and juniper

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stands, and the spread of invasive species and noxious weeds. AR

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3993-97, AR 4005-12. The Ely FEIS lists and describes the projects

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before discussing their collective impacts on air resources, water

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resources, soil resources, vegetation resources, fish and wildlife,
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special status species, wild horses, cultural resources, visual

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resources, renewable energy, recreation, livestock grazing, geology

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and mineral extraction, fire management, noxious and invasive weed

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management, and special designations. See AR 3993-4073.

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The analysis provided within the Ely FEIS is not conclusory,

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as each separate impact is considered in context of the proposed

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plan, the influence of interrelated projects, the expected

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cumulative impacts, and the variation between the impacts caused as

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a result of the proposed plan versus various alternatives (such as

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no action). Id. Concerning vegetation specifically, the FEIS states

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“[m]ost of the interrelated projects have produced or would result

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in the removal of native vegetation and potential spread of

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invasive species, either through physical disturbance or alteration

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of vegetation communities.” AR 4023. Concerning sage-grouse

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specifically, the Ely FEIS states “local greater sage-grouse

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populations may be reduced in numbers because of development in and

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around breeding habitat (i.e., leks) regardless of the habitat

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improvement that may occur elsewhere.”3 AR 4033. Concerning fire

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management specifically, the FEIS states that prescribed fire could

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create greater short term risk of uncontrolled fire, but in the

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long term the treatments “would reduce the current fuel loading of

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these areas and the associated risks of larger fires.” AR 4058.

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Additionally, the treatments could result in short-term reductions

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in wildlife habitat, but “the long-term effects would be more

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BLM did not shy away from negative analysis. The Ely FEIS was produced
before the BLM issued instructional memoranda detailing steps to
protect the greater sage-grouse. As discussed infra, BLM integrated the
protective strategies into the Cave and Lake Valley EA to mitigate the
impacts of the treatment plan.

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forage and habitat.” Id.
The EA also tiers to the Vegetation PEIS, which contains a

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discussion of the cumulative impacts of chemical and other

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treatments such as mechanical treatments and prescribed fire. AR

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2519-65. The discussion explains the treatments would “improve the

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mix of habitats so that vegetation would be more resilient to

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disturbance and sustainable over the long term.” AR 2534. The

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Vegetation PEIS considers the possibility of weed populations

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developing resistance to particular herbicides over time and

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includes the mitigation strategy BLM has devised to reduce that

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risk. AR 2535. (Describing how the BLM would 1) rotate herbicides,

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2) apply these herbicides with the understanding that they can lead

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to weed resistance if used yearly for several consecutive years, 3)

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use mechanical and biological management options to eliminate weed

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escapes that may represent the resistant population, 4) use passive

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methods of weed control to reduce or eliminate factors leading to

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the spread of weeds, and 5) keep accurate records of herbicide

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application.)

19

The Vegetation PEIS also discusses how downy brome

20

(cheatgrass) and other annual grasses have replaced sagebrush and

21

other native vegetation and thus created poorer habitat for sage

22

grouse and other wildlife species. AR 2431. Vegetation treatments

23

improve this habitat by “creating openings in dense and crowded

24

sagebrush and rabbitbrush stands, removing invasive species, and

25

promoting production of perennial grasses and forbs.” Id. (citing

26

Paige and Ritter 1999, USDI BLM 1999, Sage Grouse Conservation

27

Planning Team 2001). Further, “[t]reatments can improve habitat

28

structure, complexity, and layering to the benefit of species that
16

1

rely on a diversity of plant types and cover to meet their daily

2

needs.” AR 2432.

3

The BLM analyzed scientific literature regarding the potential

4

benefits and detrimental effects of using herbicide treatments on

5

sage grouse. Id. The control of sagebrush with tebuthiuron can

6

improve habitat for sage grouse, but can also deplete sage grouse

7

nesting and brood-rearing habitat. Id. The Vegetation PEIS cites a

8

2006 study that found tebuthiuron treatment of sagebrush reduced

9

the canopy and increased production of forbs and that sage grouse

10

preferred the treated areas. Id. (citing Dahlgren et al. 2006); see

11

also AR 340 (Connelly et al. 2000) (“[A]pplication of herbicides in

12

early spring to reduce sagebrush cover may enhance some brood-

13

rearing habitats by increasing the amount of herbaceous plants used

14

for food (Autenrieth 1981)”).

15

Thus, the BLM tiered to documents previously subject to NEPA-

16

review that analyzed the cumulative impacts of treatment and the

17

effects of past, present, and reasonably foreseeable future

18

actions. Tiering of this sort is permitted by Ninth Circuit law. 40

19

C.F.R. § 1502.20. The Ely RMP/FEIS and Vegetation PEIS are much

20

larger in scope, and in fact wholly inclusive of, the Cave and Lake

21

Valley Watershed EA. The analysis of cumulative impacts within the

22

larger plans is relevant because the Cave and Lake Valley

23

Watersheds represent two of sixty-one total watershed management

24

units on the Ely District. AR 7495. The discussion of cumulative

25

impacts must consider the EA in perspective with the larger,

26

comprehensive resource management plan.

27
28

The court must determine whether the EA, combined with the
tiered programmatic EIS, provides the information reasonably
17

1

necessary to enable the decision-maker to consider the

2

environmental factors and to make a reasoned decision. Oregon

3

Environmental Council v. Kunzman, 714 F.2d 901, 904 (9th Cir.

4

1983). As discussed above, the tiered-to BLM documents cited

5

independent research and weighed the pros and cons of treatment

6

before concluding the proposed plans were advantageous.

7

BLM did not, however, simply tier to these previous plans. The

8

EA also discusses past, present, and reasonably foreseeable future

9

actions in the Cave Lake Valley EA, and implemented specific

10

mitigation methods to be utilized. See AR 7563-7623 (establishing

11

an environmental baseline for the watersheds and discussing the

12

expected impact of the treatment plan on vegetation, special status

13

plant and animal species, soil resources, etc.).

14

The EA mentions several current and future plans specifically

15

in outlining contributors to cumulative impacts. A watershed

16

restoration plan for the South Steptoe Watershed north of the

17

project area was recently approved, and several fuel treatment

18

projects have already been conducted. AR 7621. There have been

19

67,588 acres of wildfire within the cumulative effects study area.

20

Id. Present actions include wildfire management, and reasonably

21

foreseeable future actions include additional watershed treatment

22

plans such as the South Spring Valley and Hamblin Valley

23

watersheds. Id. With regard to fuels and fire management, past

24

projects “have been relatively small in size and, while beneficial

25

in accomplishing the objective for the specific treatment . . .

26

they are not substantial enough to contribute to a reduction in

27

departure within the overall watershed.” AR 7622.

28

BLM is not required to individually analyze every project that
18

1

might contribute to cumulative impacts. An agency may “characterize

2

the cumulative effects of past actions in the aggregate without

3

enumerating every past project that has affected an area.” Ctr. For

4

Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000,

5

1007 (9th Cir. 2011) (citation omitted). Plaintiff contends BLM’s

6

EA is deficient because it contains no analysis concerning the

7

cumulative impact of two other plans: the Lincoln County Sage

8

Grouse Habitat Restoration Plan and the South Spring Valley

9

Sagebrush Habitat Restoration Project. The court is not persuaded.

10

BLM’s analysis of impacts considers those impacts in the aggregate.

11

Additionally, a failure to consider projects significantly smaller

12

in size and scope is an insufficient ground upon which to

13

invalidate the EA.4 See Bering Strait Citizens for Responsible Res.

14

Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 954-55 (9th Cir.

15

2008) (“[The plaintiff] has pointed to no past, present, or

16

reasonably foreseeable future projects comparable in environmental

17

impact to the Rock Creek Mine Project.”).

18

Plaintiff misconstrues the analysis and comprehensive

19

structure of BLM’s EA. BLM designed the project with treatment

20

restrictions within its design to avoid significant impacts.

21

Viewing the EA in light of the tiered previous NEPA documents, the

22

BLM’s memoranda detailing steps to be taken to better protect the

23

greater sage-grouse, and the express language of the assessment,

24

the court finds plaintiff has failed to demonstrate unmitigated

25

cumulative impacts. Plaintiff asserts BLM intends to treat

26
27
28

4

The Lincoln County project is roughly 9,500 acres. The South Spring
Valley project is roughly 3,100 acres. The Cave Lake Valley project
covers an area of nearly 600,000 acres and involves treatments covering
roughly 120,000 acres.

19

1

sagebrush areas and destroy irreplaceable greater sage grouse

2

habitat. A review of the EA demonstrates treatment of sagebrush

3

areas will be extremely limited, and subject to exacting

4

restrictions to protect the greater sage grouse.

5

As indicated in the EA and described at the hearing, there are

6

15 treatment units designated for sagebrush restoration, totaling

7

145,682 acres. AR 7542; see also AR 7541. In 12 of the 15 sagebrush

8

treatment units (S.1-S.12), BLM is planning only to remove pinyon

9

and juniper and is not planning to treat sagebrush directly. See AR

10

7638-71. In the three remaining units, BLM is planning to treat

11

sagebrush directly, primarily through mechanical methods. See AR

12

7673-7680. Tebuthiuron will only be used to treat sagebrush in part

13

of one unit (S.13). The total acreages of sagebrush that could

14

potentially be treated for those three units are 10,105, 3,537, and

15

14,463, respectively. AR 7673, 7676, 7679. The number of acres

16

treated is likely to be lower because BLM plans to treat only 60-

17

75% of the area designated for potential treatment in the

18

Restoration Plan. AR 7542. Treatment will be further restricted to

19

protect greater sage grouse habitat by the timing and design

20

restrictions enumerated on AR 7512.5

21

E) Hard Look and FONSI

22

In determining whether an action will have significant

23

impacts, an agency must take a “hard look” at the impacts of the

24

project based on the significance factors in the Council on

25

Environmental Quality’s (“CEQ”) regulations. Native Ecosystems

26

Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005).

27
28

5

These restrictions are described in detail. See infra pp. 22-23.

20

1

Significance is determined based on the context and intensity of

2

the proposed action. Id. (citing 40 C.F.R. § 1508.27). Context

3

means the “significance of an action must be analyzed in several

4

contexts such as society as a whole . . . , the affected region,

5

the affected interests, and the locality.” 40 C.F.R. § 1508.27(a).

6

Intensity concerns the “severity of impact,” which includes

7

consideration of inter alia, the unique characteristics of the

8

geographic area and the degree to which the possible effects on the

9

environment are highly uncertain or involve unique or unknown

10
11

risks. Id. At § 1508.27(b).
An agency may make a finding of no significance if it proposes

12

an action that would have significant impacts but also proposes

13

mitigation to reduce or offset the effects of the action to below a

14

significant level. See, e.g., Wetlands Action Network v. U.S. Army

15

Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir. 2000) (“In

16

evaluating the sufficiency of mitigation measures, we focus on

17

whether the mitigation measures constitute an adequate buffer

18

against the negative impacts that result from the authorized

19

activity to render such impacts so minor as to not warrant an

20

EIS.”) (abrogated on other grounds by Wilderness Society v. United

21

States Forest Service, 630 F.3d 1173 (9th Cir. 2010)). In such

22

circumstances, the agency must make a finding “that the mitigation

23

measures would render any environmental impact resulting from the

24

[action] insignificant.” Wetlands Action Network, 222 F.3d at 1122.

25

BLM’s NEPA Handbook refers to such a finding as a “mitigated

26

FONSI.” AR 4448.

27
28

Alternatively, an agency may incorporate mitigation into the
project design so that significant impacts are avoided, rather than
21

1

mitigated after the project is developed. See Envtl. Prot. Info.

2

Ctr., 451 F.3d at 1015. In such situations, the agency need not

3

separately evaluate whether mitigation adopted after the fact would

4

reduce impacts to a level of non-significance. See id.

5

The Ninth Circuit has expressed concern where an EA has failed

6

to explain the nature of unmitigated impacts. See Te-Moak Tribe,

7

608 F.3d at 605. BLM acknowledged in the Ely RMP/FEIS and the EA

8

that the initial impact of the plan may be negative as vegetation

9

is treated because time will be required for it to regrow. In order

10

to address these concerns, the EA integrates timing and treatment

11

design restrictions. AR 7511-7531. These restrictions include

12

measures to mitigate the impact on greater sage grouse habitat:

13

treatments are not allowed within four miles of active leks from

14

March 1 - July 15 during breeding, nesting, and early brood rearing

15

seasons.6 AR 7512. The EA also states sagebrush treatments should

16

be minimized in areas that consist of pygmy rabbit or winter sage

17

grouse habitat. Id. Additionally, “in each watershed, do not treat

18

more than 20% of sage grouse breeding habitat within a 30-year

19

period, which is the approximate time for a sagebrush stand to

20

recover. Additional treatments should be deferred until the treated

21

area provides suitable habitat (15%-25% sagebrush cover and greater

22

than 10% herbaceous cover) (Connelly et al. 2000).” Id.

23

Prescribed fire is also subject to timing and treatment design

24

restrictions pursuant to the EA. See AR 7512, 7522. Fire will not

25

be used to treat sagebrush in less than 12-inch precipitation

26

zones. AR 7512. Additionally, prescribed fire timing and severity

27
28

6

This restriction comports with the guidelines listed in the
memoranda concerning the protection of sage grouse. AR 7874.

22

BLM

1

will be limited to minimize impact to certain types of vegetation.

2

AR 7522. These mitigation measures were designed to reduce the

3

threats of increased soil and water erosion due to a lack of

4

understory immediately post-fire, and reduce the risk of cheatgrass

5

and other non-native grasses proliferating in the burned areas. AR

6

7592; see also 7522 (“Given the presence of a healthy and diverse

7

understory of native perennial species and a lack of non-native

8

invasive plant species, it is less likely that invasive plants

9

would establish in these areas.”).

10

The EA contains timing and treatment design restrictions on

11

the use of Tebuthiuron. Tebuthiuron will be administered in pellet

12

form to avoid impact to air quality. AR 7591. Additionally,

13

Tebuthiuron will be administered during calm weather conditions to

14

prevent herbicide drift. AR 7757. Impact to riparian areas will be

15

avoided by the creation of a buffer zone of non-treatment near

16

those riparian areas. AR 7594. Use of Tebuthiuron will also be

17

limited to areas “with desirable understory,” and where “pinyon

18

pine and juniper have established on sagebrush ecological sites,”

19

while avoiding areas that “have surface water or an elevated

20

groundwater level” and “stands of mountain mahogany.” AR 7522; see

21

also AR 6482.

22

Plaintiff contends the EA provides no analysis of the

23

effectiveness of these mitigation measures, and, further, that BLM

24

does not intend to adhere to the very mitigation measures it

25

mentions in the EA. #45-2 at 22-31. Plaintiff’s first contention is

26

refuted by the analysis and citations in the record. The Ely FEIS

27

and Vegetation PEIS are replete with citations to independent

28

studies and analysis on the use of prescribed fire and herbicides
23

1

in habitats such as the Cave and Lake Valley watersheds. See, e.g.,

2

AR 2433, 75 Fed. Reg. at 13,940 (“Mechanical treatments, if

3

carefully designed an executed, can be beneficial to sage-grouse by

4

improving herbaceous cover, forb production, and sagebrush

5

resprouting (Braun 1998, p. 147)). The Fish and Wildlife Service

6

has stated that while the long-term efficacy of these treatments on

7

sage-grouse productivity has not been scientifically demonstrated,

8

some action is necessary because current treatments “are not likely

9

keeping pace with the current rate of pinyon-juniper encroachment,

10

at least in parts of the range.” 75 Fed. Reg. at 13,938.

11

Additionally, the BLM memoranda used by BLM to create design and

12

treatment restrictions tailored to protect sage grouse is also

13

supported by independent analysis. AR 7874.

14

Plaintiff’s assertion that BLM does not intend to abide by the

15

mitigation measures outlined in the EA is similarly contradicted by

16

the administrative record and the pleadings before the court. In

17

the EA, its motions before this court, and the hearing before the

18

court, the BLM has represented that the restrictions and mitigation

19

measures outlined in the EA will be followed in order to ensure the

20

health of the region and to control the impact of the treatment.

21

Plaintiff relies on maps within the EA to support its

22

assertion that BLM intends to violate its own mitigating measures.

23

BLM contends those maps are general maps “showing where the project

24

will be and [are] not small enough scale to show” the areas to be

25

excluded pursuant to the restrictions. #54-1 at 25:6-7.

26

Additionally, where the EA indicates treatment will take place in

27

contravention of the restrictions, “BLM will follow its treatment

28

restrictions for prescribed fire and avoid such areas” when
24

1

planning individual treatments. Id. At 27:5-7. The court finds that

2

with the mitigation measures in place, the EA provides a

3

comprehensive and calculated analysis adequately addressing

4

plaintiff’s contentions.

5

Viewing the record in its entirety, the court concludes the EA

6

reflects that the BLM has taken the adequate hard look at the

7

environmental consequences of the proposed action. The EA has been

8

through an extensive vetting process, resulting in a number of

9

revisions to create a plan that addresses the current problems

10

facing the Cave and Lake Valley Watersheds.7

11

Rangeland Improvements

12

Plaintiff asserts BLM additionally violated NEPA in approving

13

a series of range projects without taking the requisite “hard look”

14

at potential ecological consequences. The court finds BLM has

15

sufficiently analyzed the impacts of the rangeland improvements in

16

the EA.

17

The rangeland improvements are designed to repair aging

18

infrastructure and will occur primarily in areas where structures

19

already exist. See AR 7501. The existing structures were

20

constructed in the 1950's and 1960's and need to be updated to

21

serve the purpose of improving livestock and wildlife distribution

22

across the watersheds to support overall rangeland health. Id.

23

BLM has integrated restrictions to mitigate the impact of the

24

rangeland improvements. Indeed, Section 2.3.1.7 employs grazing

25

restrictions to block livestock usage of seeded areas. AR 7515.

26
27
28

7

The court notes plaintiff did not submit comments on the Preliminary
EA after it was released, attend either of two public meetings, or
attend the site visit conducted in April 2012. AR 6723; AR 7000-01; AR
8195.

25

1

Section 2.3.6.1 provides that fences will be required to comply

2

with BLM wildlife specifications, including marking or moving

3

fences in sage grouse habitat to minimize mortality from predation

4

and collisions. AR 7531. Section 2.3.6.3 states big game animal

5

jumps will be installed in existing and newly constructed fences,

6

where needed. AR 7535. The rangeland improvements thus support the

7

comprehensive mitigation set forth in the EA.

8

The FLPMA Claim

9

Plaintiff’s complaint contained a claim alleging BLM’s

10

approval of the Restoration Plan violated the Federal Land Policy

11

and Management Act. See Compl. ¶¶124-28. Under the APA, the claim

12

should be resolved on cross-motions for summary judgment based on a

13

review of the administrative record. See Nw. Motorcycle Ass’n., 18

14

F.3d at 1472. Plaintiff did not brief the FLPMA claim in its motion

15

for summary judgment, nor did it address the absence of the claim

16

in its respective response and reply, despite BLM’s recognition of

17

the claim, its note concerning plaintiff’s failure to brief the

18

issue, and argument in favor of summary judgment on this issue in

19

its own motion for summary judgment. Consequently, the claim is

20

deemed abandoned and BLM is entitled to summary judgment on this

21

claim.

22

Conclusion

23

Therefore on the basis of the foregoing, the court concludes

24

that the action of the BLM in adopting the Cave Valley and Lake

25

Valley Watershed Restoration Plan Environmental Assessment was not

26

arbitrary and capricious or an abuse of discretion. Further, the

27

court concludes that the action of the BLM complied with NEPA and

28

FLPMA. Accordingly, and based on the foregoing, defendant U.S.
26

1

Bureau of Land Management’s motion for summary judgment (#54) is

2

GRANTED. Plaintiff Western Watershed Project’s motion for summary

3

judgment (#45) is DENIED. Judgment shall be entered in favor of the

4

defendants and against the plaintiff.

5

IT IS SO ORDERED.

6

DATED: This 13th day of August, 2015.

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8

____________________________
UNITED STATES DISTRICT JUDGE

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