Western Watersheds Project et al v. Jewell et al
Filing
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MEMORANDUM DECISION and Order Affirming the National Park Service's Final Agency Action. See order for details. Signed by Judge Jill N. Parrish on 11/23/16. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
WESTERN WATERSHEDS PROJECT;
COTTONWOOD ENVIRONMENTAL LAW
CENTER,
Plaintiffs,
v.
S.M.R. JEWELL, in her official capacity as
Secretary of the Interior; NATIONAL PARK
SERVICE,
MEMORANDUM DECISION AND
ORDER AFFIRMING THE NATIONAL
PARK SERVICE’S FINAL AGENCY
ACTION
Case No. 2:14-cv-00731-JNP-BCW
District Judge Jill N. Parrish
Defendants.
Plaintiffs Western Watersheds Project and Cottonwood Environmental Law Center
(collectively “Environmental Plaintiffs”) bring this suit challenging the actions of the National
Park Service (the “Park Service”) in issuing an October 2014 three-year Special Use Permit (the
“Permit”) authorizing cattle grazing on the Hartnet Allotment in Capitol Reef National Park
(“Capitol Reef”). Environmental Plaintiffs allege that the Park Service failed to comply with the
National Environmental Protection Act (“NEPA”) and therefore violated the Administrative
Procedures Act (“APA”). Specifically, Environmental Plaintiffs contend that the Park Service’s
decision to categorically exclude the Permit for the Hartnet Allotment from NEPA analysis was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Environmental Plaintiffs appeal the agency action, asking this court to hold that the Park Service
violated NEPA and requesting the court vacate the categorical exclusion and the Permit. For the
reasons set forth below, the court AFFIRMS the Park Service’s action.
FACTUAL BACKGROUND
Capitol Reef National Park, located in south-central Utah, was established by Congress
on December 18, 1971. At that time, there were 19 cattle grazing allotments within Capitol Reef.
The enabling legislation provided for a 10-year phase-out of cattle grazing in the park. But local
concern about the economic impact of phasing out cattle grazing in Capitol Reef led Congress to
pass legislation in 1982, extending grazing in the park through December 31, 1994. The 1982
legislation also called for the Park Service to contract with the National Academy of Sciences to
study the impact of grazing on Capitol Reef’s resources. In 1988, Congress passed another piece
of legislation that extended cattle grazing privileges to allow permittees who legally used Capitol
Reef lands for livestock grazing when the park was established to continue the practice during
their lifetime and the lifetime of their children who were born on or before establishment of
Capitol Reef. This 1988 law is still in effect today.
The Park Service bought out seventeen of the grazing permits over the past few decades
and now only two grazing allotments remain in Capitol Reef. Among the two remaining
allotments is the Hartnet Allotment. The Hartnet Allotment is comprised of 96,000 acres—about
71,000 of which are in the park. It has been managed by the Park Service since 2010. The
grazing season on the Hartnet Allotment runs from October 15 through May 31 each year for up
to 163 cow/calf pairs. The Park Service authorizes grazing on the Hartnet Allotment by issuing
Special Use Permits.
Three protected plant species found in the Hartnet Allotment are listed as threatened or
imperiled under the Endangered Species Act: the Wright Fishhook cactus (Sclerocactus
wrightiae), the Winkler cactus (Pediocactus winkleri), and the Last Chance Townsendia
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(Townsendia aprica). The Hartnet Allotment area contains “very important habitat for the
maintenance of” each of these three species.
On October 15, 2014, the Park Service issued a three-year Permit for grazing on the
Hartnet Allotment. The three-year permit was considered an “interim permit” because the Park
Service is proceeding with an Environmental Impact Statement (“EIS”)/Management Plan for
long-term management of livestock grazing and trailing in Capitol Reef. The EIS/Management
Plan is scheduled for completion in 2017. When the Park Service issued the three-year Permit, it
categorically excluded the Permit from NEPA analysis. In December 2014, the Park Service
prepared a Biological Assessment pursuant to the Endangered Species Act that analyzed the
impacts of cattle grazing on the three protected plant species through 2017. The U.S. Fish and
Wildlife Service also subsequently completed a Biological Opinion (“BiOp”) similarly analyzing
the impacts of cattle grazing on the three protected plant species.
Environmental Plaintiffs first filed their complaint against the Park Service on April 29,
2014 alleging that the Park Service had violated NEPA and the Endangered Species Act by
failing to analyze the environmental impacts of cattle grazing in Capitol Reef. After the Park
Service issued the Permit in October 2014 and prepared a Biological Assessment pursuant to the
Endangered Species Act that analyzed the impacts of cattle grazing on the three plant species
through 2017, the parties agreed that the Environmental Plaintiffs’ claims under the Endangered
Species Act were moot. Environmental Plainiffs amended their complaint on April 30, 2015,
challenging only the Park Service’s decision to categorically exclude from NEPA analysis the
three-year Permit for grazing on the Hartnet Allotment. On March 16, 2015, the Park Service
published a notice in the Federal Register announcing its intentions to complete the long-term
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EIS/Management Plan. Thus, the only issue before the court is whether the Park Service violated
NEPA by categorically excluding the Permit for the Hartnet Allotment from environmental
analysis while the long-term EIS/Management Plan is prepared.
LEGAL STANDARDS
Although docketed as a Motion for Summary Judgment, this is a review of final agency
action and will be analyzed under the appropriate standard of review for agency action—not
under Fed. R. Civ. P. 56. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579–80
(10th Cir. 1994) (“A district court is not exclusively a trial court. In addition to its nisi prius
functions, it must sometimes act as an appellate court. Reviews of agency action in the district
courts must be processed as appeals. . . . Motions to affirm and motions for summary judgment
are conceptually incompatible with the very nature and purpose of an appeal.”).
The APA allows for judicial review of final agency action. 5 U.S.C. §§ 702, 704. The
APA further outlines the scope of judicial review and states that “[t]he reviewing court
shall . . . hold unlawful and set aside agency action . . . found to be arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). The duty of a court in
reviewing agency action under the “arbitrary or capricious” standard is to ascertain whether the
agency examined the relevant data and articulated a rational connection between the facts found
and the decision made. Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43
(1983); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). “[I]f the agency has
relied on factors which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a difference in
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view or the product of agency expertise,” then the agency action would be arbitrary and
capricious and held to be unlawful. Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43. In engaging in its
review, the court must be thorough, but keep in mind the standard of review is narrow and highly
deferential with the agency’s decision being “entitled to a presumption of regularity.” Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The court looks to “whether the
decision was based on a consideration of the relevant factors and whether there has been a clear
error of judgment.” Id. at 416.
NEPA “mandates that federal agencies . . . assess potential environmental consequences
of a proposed action.” Utah Envt’l Cong. v. Russell, 518 F.3d 817, 820–21 (10th Cir. 2008)
(citations omitted). Although NEPA “dictates the process by which federal agencies must
examine environmental impacts,” it does not substantively limit agency conduct. Id. at 821
(citations omitted). A federal agency can comply with the NEPA process for a proposed action in
one of three ways: (1) prepare an environmental impact statement, (2) prepare an environmental
assessment, or (3) prepare a categorical exclusion. Id. A “categorical exclusion” is available only
for “those actions predetermined not to ‘individually or cumulatively have a significant effect on
the human environment.’ [40 C.F.R.] § 1508.4.” Id. In Guidance Regarding NEPA Regulations,
48 Fed.Reg. 34,263, 34,265 (July 28, 1983), the Council on Environmental Quality (“CEQ”)
expressed concern that federal agencies were applying categorical exclusions too narrowly and
discouraged the practice, stating that “if this approach is applied narrowly it will not provide the
agency with sufficient flexibility to make decisions on a project-by-project basis with full
consideration to the issues and impacts that are unique to a specific project.” Id. The CEQ went
on to encourage agencies “to consider broadly defined criteria which characterize types of
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actions that, based on the agency's experience, do not cause significant environmental effects.”
Id. See also Colorado Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1209–10 (10th Cir.
2006) (citing the Guidance Regarding NEPA Regulations).
Before implementing an action under a categorical exclusion, an agency must determine
that there are no “extraordinary circumstances in which [the] normally excluded action may
have a significant environmental effect.” 43 C.F.R. § 46.205(c) (emphasis added). See also
California v. Norton, 311 F.3d 1162, 1177 (9th Cir. 2002). If “extraordinary circumstances” are
present, further analysis and environmental documents must be prepared and the use of a
categorical exclusion is inappropriate. 43 C.F.R. § 46.205(c)(1). Park Service regulations provide
that “[e]xtraordinary circumstances (see paragraph 46.205(c)) exist for individual actions within
categorical exclusions that may . . . [h]ave significant impacts on species listed” under the
Endangered Species Act. 43 C.F.R. § 46.215(h). The General Management Plan for Capitol Reef
National Park states that “[a]ny impact that may affect listed or National Park Service sensitive
species would be considered significant.” Nat’l Park Serv., Final Environment Impact Statement
General Management Plan Development Concept Plan, 108, available at
http://www.nps.gov/care/learn/management/upload/caregmp.pdf.
ANALYSIS
Environmental Plaintiffs first argue that the Park Service’s conclusion that extraordinary
circumstances do not exist because cattle grazing would not have a significant impact on the
three plant species is contrary to the evidence that was before the agency. To support its
argument, Environmental Plaintiffs focus on two conclusions on which the Park Service based its
decision to categorically exclude the Permit from NEPA analysis: (1) that the “short-term”
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duration of the permit would limit the impact of grazing on the three plant species; and (2) that
mitigation measures would limit the impact of grazing on the three plant species.
When the Park Service issued the Permit under a categorical exclusion, it stated that
while “individual plants may be effected [sic] by trampling[,] plant populations would still occur
in the park and significant impacts would not be expected given the short-term nature (no more
than 3 seasons) of this permit renewal.” The Biological Assessment echoed that conclusion
stating that “[d]espite the fact that livestock grazing has occurred on lands in the Hartnet
Allotment for well over 80 years with impacts on individual Winkler cacti, their populations are
persisting in the park and are expected to be maintained during the three years that the Permits
are issued while the park’s grazing EIS/[M]anagement [P]lan is being completed.” The
Biological Assessment went on to find that given the short-term nature of the Permit in question,
there would not be substantial impacts to the three plant species. But Environmental Plaintiffs
point out that the Biological Assessment also stated that livestock grazing effects “can be shortterm or long-term” and argue that this internal inconsistency renders the ultimate decision to
categorically exclude and issue the Permit arbitrary and capricious. The court disagrees.
Although the Biological Assessment stated that the effects from livestock grazing could
be short-term or long-term, the Park Service’s offered explanation does not run counter to the
evidence before the agency. The Biological Assessment indicated that the evidence supported the
Park Service’s conclusion that although cattle grazing may possibly have a negative effect on the
three plant species in the long term, the impact over the three years of the Permit was not
substantial. Indeed, the Biological Assessment states that the evidence before the Park Service
indicates that populations of the three plant species would persist and be maintained during the
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three years of the Permit while the long-term EIS/Management Plan is being completed. Thus,
the Biological Assessment’s statement that livestock grazing effects could be felt in both the
short and long term is not inconsistent with categorically excluding the short-term Permit. The
Park Service found there would not be a substantial impact to the three plant species in the short
term and the long-term effects are being studied in connection with the forthcoming
EIS/Management Plan. The possibility of substantial impact in the long term does not render the
Park Service’s conclusion that there would be no substantial impact in the short term arbitrary
and capricious.
Environmental Plaintiffs next attack the Park Service’s reliance on mitigation measures
as a factor in determining that the Permit qualified for a categorical exclusion. The categorical
exclusion for the Permit explains that mitigation measures imposed in the Permit will further
reduce the levels of impacts to insignificant. Specific mitigation measures include:
1. Monitor[ing] range conditions before and during the time cattle are present on
the allotment to evaluate the extent of harm, if any to the listed species. If harm is
observed, work with the permit holders to reallocate cattle within the allotment.
2. Voluntarily reduc[ing] the overall [animal unit months] if weather and
precipitation conditions suggest that the range cannot support the fully permitted
number of cattle.
3. Voluntarily reduc[ing] the overall [animal unit months] by working with the
permit holders to remove a portion of the cattle from the allotment on or before
May 1.
Based on these measures and its consideration of the short-term nature of the Permit, the Park
Service concluded that the impacts on the listed species would not be significant.
Environmental Plaintiffs cite to Northern Plains Resource Council v. Surface
Transportation Board, in which the Ninth Circuit held that “mitigation measures . . . are not
alone sufficient to meet the [agency’s] NEPA obligations to determine the projected extent of the
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environmental harm to enumerated resources before a project is approved.” 668 F.3d 1067, 1084
(9th Cir. 2011) (emphasis in original). The Ninth Circuit warned that “[t]he use of mitigation
measures as a proxy for baseline data does not further” the purposes of NEPA. Id. at 1085. But
the mitigation measures in this case were not considered alone, nor were they used as a proxy for
baseline data. Rather, the mitigation measures were an additional factor that strengthened the
conclusion the Park Service had already drawn from the evidence and its experience that there
would not be a significant effect on the three plant species over the three-year term of the Permit.
Environmental Plaintiffs also argue that the Park Service went beyond its own NEPA
policy contained in its handbook that states: “Only minimal mitigation should be part of an
action categorically excluded, and the effectiveness and enforcement of the mitigation must carry
a high degree of certainty.” The handbook further states:
If . . . mitigation is required to avoid the potential for environmental impact, you
should consider an [environmental assessment] or [environmental impact
statement]. Only minimal mitigation should be part of an action categorically
excluded, and the effectiveness and enforcement of the mitigation must carry a
high degree of certainty.
But nothing in the record before the court indicates that the Park Service went beyond what its
NEPA handbook allows in considering mitigation measures. The Park Service concluded that the
short-term nature of the Permit supported its finding that there would not be a substantial effect
on the three plant species. The mitigation measures were considered only insofar as they would
further reduce any impact. The Park Service did not conclude that mitigation was required to
avoid the potential for environmental impact. Nor did the evidence before the Park Service
indicate that mitigation measures would be required to render the effect on the three plant
species insignificant. The categorical exclusion documented and explained that the outlined
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mitigation measures would also reduce the levels of impacts to insignificant. Indeed, the
mitigation measures in the Permit can best be described as minimal and would therefore be
consistent with the Park Service’s NEPA policy handbook. The conclusion that extraordinary
circumstances did not exist because of the short-term nature of the Permit and the included
mitigation measures was supported by the evidence before the Park Service and was not arbitrary
and capricious.
Environmental Plaintiffs next argue that the Park Service’s conclusion that there were no
extraordinary circumstances was arbitrary and capricious because the Park Service was required
to determine whether grazing may “[h]ave highly uncertain and potentially significant
environmental effects or involve unique or unknown environmental risks.” 43 C.F.R. §
46.215(d). Environmental Plaintiffs argue that because the Biological Assessment stated that the
issuance of the Permit “may affect, is likely to adversely affect” each of the three plant species,
the Park Service’s conclusion that cattle grazing does not involve highly uncertain and
potentially significant environmental effects was contrary to the evidence before the agency. But
Environmental Plaintiffs fail to consider other evidence before the Park Service that supports its
conclusion. First, the Biological Assessment also concluded that the Park Service expected the
cacti populations would still occur in the Park and substantial impacts would not occur given the
short-term nature of the Permit. Second, the mitigation measures described in the Biological
Assessment would further reduce any possible impact on the plants. The Park Service has
experience with grazing on the Hartnet Allotment for over 80 years and has performed extensive
surveys documenting the status of the three plant species over that time. This additional
experience is evidence that the Park Service was not encountering any “highly uncertain” effects,
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nor was it dealing with “unique or unknown environmental risks.” In short, the Park Service’s
conclusion that issuing the Permit did not pose “highly uncertain and potentially significant
environmental effects or involve unique or unknown environmental risks” was not contrary to
the evidence before it and was therefore neither arbitrary nor capricious. The Council on
Environmental Quality, as part of its oversight of implementation of NEPA, has encouraged
federal “agencies to consider broadly defined criteria which characterize types of actions that,
based on the agency's experience, do not cause significant environmental effects.” Guidance
Regarding NEPA Regulations, 48 Fed. Reg. 34,263 (July 28, 1983). The Park Service relied not
only on the evidence mentioned above, but also on its experience in arriving at its conclusion to
categorically exclude the Permit.
Environmental Plaintiffs also argue that the Park Service’s conclusion that extraordinary
circumstances do not exist was arbitrary and capricious because its conclusion that grazing
would not contribute to the spread of noxious weeds contradicted the evidence before it. 43
C.F.R. § 46.215(l). Environmental Plaintiffs look to the Environmental Screening Form that asks
whether grazing would contribute to the spread of noxious weeds. Although the Park Service
checked the “no” box in response to that question, the notes to the side of the check box, as well
as the Biological Assessment and categorical exclusion, acknowledge that one effect of cattle
grazing “may” include “the spread of non-native plant species” and “facilitat[ion of] the
introduction of non-native species.” But Environmental Plaintiffs ignore the portion of the record
indicating the presence of non-native plant species in portions of the Hartnet Allotment as well
as in other areas of the Park that are not grazed by cattle. The Park Service acknowledges that
cattle grazing may promote the continued existence or spread of non-native plant species, but
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maintains that the effects of grazing were expected to be negligible or minor as a result of the
short-term nature of the Permit. Given the evidence before the Park Service, the court does not
find that its conclusion regarding the spread of noxious weeds was contrary to the evidence and
the decision to categorically exclude the Permit was therefore not arbitrary and capricious on
these grounds.
Finally, Environmental Plaintiffs argue that the Park Service’s decision to categorically
exclude the Permit violates NEPA because grazing has “the potential for measurable
environmental impact.” The categorical exclusion form states that no conditions contained within
Section 3-6 of the NEPA handbook apply. But Environmental Plaintiffs contend that Section 3-6
of the NEPA handbook requires an environmental assessment or environmental impact statement
“[i]f an action . . . has the potential for measurable environmental impact.” That section of the
handbook also requires an environmental assessment or environmental impact statement “[i]f a
local, state, or federal agency with jurisdiction by law over an affected resource believes the
potential for measurable environmental impact exists for an action that a park initially intends to
categorically exclude from further analysis.” Environmental Plaintiffs rely on language in the
Biological Assessment indicating that cattle grazing is expected to have adverse impacts on the
Winkler cactus. Specifically, the Biological Assessment determined that of the 58 known
locations of the Winkler Pincushion cactus in Capitol Reef, 36% are at “high risk” from cattle
disturbance. Environmental Plaintiffs maintain that this finding in the Biological Assessment
mandated the conclusion that cattle grazing has the potential for measurable environmental
impacts on the three plant species. Environmental Plaintiffs also argue that the record does not
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indicate that the Park Service consulted with the U.S. Fish and Wildlife Service as required by
the NEPA handbook.
The Park Service responds that despite the findings in the Biological Assessment that
there is some potential environmental impact, that impact is not measurable. The Park Service
points to the Biological Assessment conclusion that “some unquantified loss” of cacti and
associated habitat is anticipated. The parties dispute whether there is a difference between the
action having no “measurable” impact as opposed to an “unquantified” impact. If the court were
to adopt the Environmental Plaintiffs’ interpretation of the handbook—i.e., that any impact that
is potentially measurable would require further environmental analysis—it is hard to imagine any
action the Park Service could take without preparing an environmental assessment or
environmental impact statement. Such a result is contrary to the CEQ’s guidance with regard to
NEPA. See Guidance Regarding NEPA Regulations, (stating that the guidance to “consider
broadly defined criteria” in employing categorical exclusions was made in response to
“[c]oncerns . . . expressed that agencies were requiring too much documentation for projects that
were not major federal actions with significant effects”). With the CEQ’s guidance in mind, the
court interprets the handbook requirement to be another way of saying that if the impact may be
substantial, further environmental analysis is required. As explained above, the Park Service’s
conclusion that any impact to the three plant species would not be substantial or significant was
supported by the evidence before it. Furthermore, the Park Service has documented that there
was ongoing informal consultation with the U.S. Fish and Wildlife Service as provided by both
the Endangered Species Act and its handbook, and a final BiOp was issued by the Fish and
Wildlife Service on August 31, 2015. Because the Park Service did in fact conver with U.S. Fish
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and Wildlife Service and reasonably concluded that any impact was immeasurable, its
conclusion that Section 3-6 of its NEPA handbook did not apply was neither arbitrary nor
capricious.
CONCLUSION
The procedures followed by the Park Service in making its decision to categorically
exclude the Permit for cattle grazing on the Hartnet Allotment were in line with NEPA
requirements and its conclusion was not arbitrary and capricious. For the reasons fully outlined
above, the court AFFIRMS the National Park Service’s decision to categorically exclude the
three-year Permit from further NEPA analysis.
Signed November 23, 2016.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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