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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Citing harsh record evidence calling the issue a "no brainer," 9th Circuit rebukes BLM for failure to consult on grazing regulations

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WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK, 620 F.3d 1187 (9th Cir. Sept. 1, 2010)(Opinion by PAEZ, Circuit Judge).

BACKGROUND. The Bureau of Land Management (BLM) is the federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, 43 U.S.C. Sect. 315 et seq., the BLM has adopted regulations that implement its grazing management responsibilities. See 43 C.F.R. Sect. 4100 et seq...  On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM's grazing regulations (collectively the 2006 Regulations). See 71 Fed.Reg. 39,402. The stated purpose of the proposed amendments was to improve the working relationships with permittees and lessees (i.e. ranchers), to protect the health of rangelands, and to increase the administrative efficiency and effectiveness of the BLM grazing management program. See id. at 39,402, 39,403; see also Proposed Revisions to Grazing Regulations for the Public Lands, Final Impact Statement (Final EIS) at ES-5, 4-38. Among other changes, the proposed amendments decreased public involvement in public lands management, put new limitations on the BLM's enforcement powers, and increased ranchers' ownership rights to improvements and water on public lands.

THE INSTANT LAWSUIT.  Western Watersheds Project and Maughan et al. (collectively Plaintiffs) challenged the new amendments on procedural and substantive grounds. Plaintiffs argued that the BLM violated the National Environmental Policy Act (NEPA) by failing to take the required “hard look” at the environmental effects of the revised regulations; failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) in promulgating the 2006 Regulations...  Shortly after the suit was filed, Public Lands Council and the American Farm Bureau Federation (collectively Intervenors)-two organizations that represent the interests of ranchers in the western states-intervened on behalf of the BLM to defend the proposed amendments. In June 2007, the district court granted summary judgment to Plaintiffs and enjoined enforcement of the proposed regulations. W. Watersheds Project v. Kraayenbrink, 538 F.Supp.2d 1302, 1324 (D.Idaho 2008)...  The BLM and Intervenors separately appealed. In December 2008, the BLM filed a motion to dismiss the agency's appeal, which we granted, and the BLM no longer seeks to challenge the district court's judgment or defend the proposed amendments. Intervenors maintain their appeal. Plaintiffs challenge Intervenors' standing to defend the 2006 Regulations without the BLM as a party to this appeal. Indeed, the BLM filed an amicus brief in support of Plaintiffs' standing challenge. Intervenors counter that not only do they have standing but Plaintiffs lack standing and their claims are not ripe. We conclude that both parties have standing and that Plaintiffs' claims are ripe.

SUMMARY OF HOLDING.  Because we agree with the district court that the BLM violated NEPA and the ESA in adopting the 2006 amendments, we affirm the court's grant of summary judgment to Plaintiffs as to these claims. We also affirm the district court's permanent injunction enjoining the BLM regulations as set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq.  See also ESA blawg summary of prior ruling.

During the era of homesteading, Western public rangelands were often overgrazed because of policies designed to promote the settlement of the West and a lack of understanding of these arid ecosystems. In response to requests from Western ranchers, Congress passed the Taylor Grazing Act of 1934 (named after Rep. Edward Taylor of Colorado), which led to the creation of grazing districts in which grazing use was apportioned and regulated. Today, the BLM administers nearly 18,000 permits held by ranchers who graze livestock on public lands. Caption info and photo from BLM.

ENDANGERED SPECIES ACT EXCERPT: The Supreme Court has called the ESA “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions' of federal agencies.” Id. at 185, 98 S.Ct. 2279.

 The heart of the ESA is section 7(a)(2), 16 U.S.C. Sect. 1536(a)(2). Section 7(a)(2) requires a federal agency to “insure that any action authorized, funded, or carried out” by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. Sect. 1536(a)(2); see Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018 (9th Cir.2009). Section 7(b), a procedural component of the ESA, requires a federal agency to complete formal consultation with FWS if the agency determines that any action on its part “may affect” any listed species or critical habitat. 16 U.S.C. Sect. 1536(a)(2)-(c); 50 C.F.R. Sect. 402.14(a); see Cal. ex rel. Lockyer, 575 F.3d at 1018...  Here, the BLM concluded that the proposed 2006 Regulations would have no effect on endangered or threatened species or their critical habitat and, therefore, did not consult with FWS. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir.1996). The BLM explained in the Final Rule that "none of these eighteen administrative changes will have an effect on listed or proposed species or proposed or designated critical habitat.... Thus ... the BLM has fulfilled its obligations under section 7 of the ESA and has determined that the proposed revisions will have no effect on listed or proposed species or proposed or designated critical habitat." Final Rule, 71 Fed.Reg. 39402.... Plaintiffs argue that the BLM's no effect finding was arbitrary and capricious and, therefore, that the BLM's determination that consultation was not required was not in accordance with law. The minimum threshold for an agency action to trigger consultation with FWS is low, and we conclude that the regulatory amendments here-which affect 160 million acres of public land, home to hundreds of special status species-handily meet that threshold.

 To determine whether the BLM's no effect determination was arbitrary and capricious, we must decide whether the BLM “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). A federal agency “must initiate formal consultation if its proposed action ‘may affect’ listed species or critical habitat,” and “any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement.” 51 Fed.Reg. 19,949; see Defenders of Wildlife, 414 F.3d at 1072. The BLM's decision to forgo consultation with FWS must be reversed if the BLM “entirely failed to consider an important aspect of the problem” or “offered an explanation that runs counter to the evidence before the agency.” The Lands Council, 537 F.3d at 987 (internal citation and quotation marks omitted).

The sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments “may affect” a listed species or its critical habitat. The BLM's grazing regulations affect roughly 160 million acres of public lands, home to hundreds of special status species. Indeed, because of the sheer number of special status species present on those 160 million acres, the BLM lists the names of all the special status species in the West in the Final EIS. Final EIS at Appendix 1. The list includes over 300 special status species…  Not only FWS but also the BLM's own scientists advised the agency that Section 7 consultation was necessary. One scientist ... a BLM wildlife biologist for 30 years, concluded that “we are definitely in a ‘may affect’ situation and should therefore consult.” AR at 68227. The lead representative from the BLM's Fish and Wildlife Program concluded that consultation was a “no brainer,” and a BLM fisheries biologist concluded that “veral of the regulation changes within the proposed action are likely to adversely affect listed species ..., which triggers the need to consult with FWS.” AR 68193.

In sum, there is resounding evidence from agency experts that the eighteen amendments to the BLM's grazing regulations, i.e. the 2006 Regulations, “may affect” listed species and their habitat. The requirement that a federal agency considering action consult with FWS is triggered under the ESA if that proposed action “may affect” listed species. Cal. ex rel. Lockyer, 575 F.3d at 1018. In 1995, the last time the BLM amended its grazing regulations, it consulted with FWS. W. Watersheds, 538 F.Supp.2d at 1306. Nevertheless, here the BLM concluded, without rational basis, that the 2006 Regulations would not affect listed species or their habitat and that the amendments were purely administrative. As evidenced by the expert declarations, the 2006 Regulations are not purely administrative. They alter ownership rights to water on public lands; increase the barriers to public involvement in grazing management; and substantially delay enforcement on failing allotments, in ways that will have a substantive effect on special status species.

“Although our review under the arbitrary and capricious standard is deferential, it does not condone a ‘clear error of judgment.’ ” Blue Mountains Biodiversity Project, 161 F.3d at 1216 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851). Because the BLM failed to consider relevant expert analysis or articulate a rational connection between the facts found and the choice made, we conclude that the BLM's no effect finding and resulting failure to consult were arbitrary and capricious in violation of the BLM's obligations under the ESA. See National Ass'n of Home Builders, 340 F.3d at 841.

CONCLUSION.  The BLM violated both NEPA and the ESA. We affirm the district court's grant of summary judgment in favor of Plaintiffs as to these claims, and we affirm the district court's permanent injunction enjoining the BLM's 2006 Regulations. See Wash. Toxics Coal., 413 F.3d at 1034 (“It is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.”); Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir.2002) (explaining that “effectuating Congress' clear intent in passing the ESA required issuance of an injunction” (citing TVA v. Hill, 437 U.S. 153, 193-95, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978))).