Court enjoins BLM grazing rule; orders ESA consultation (just as FWS previously requested)
Western Watersheds Project v. Kraayenbrink, Nos. CV-05-297 E-BLW, CV-06-275 E-BLW, 2008 WL 651702 (D.Idaho, Feb. 28, 2008)
BACKGROUND: As the Court explained, “The parties seek a ruling on the legality of the BLM's revisions to nationwide grazing regulations. Past BLM regulations imposed restrictions on grazing and increased the opportunities for public input to reverse decades of grazing damage to public lands. Without any showing of improvement, the new BLM regulations loosen restrictions on grazing. They limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM's monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM's authority to sanction ranchers for grazing violations.”
RULING: “According to the federal agency charged with protecting endangered species--the Fish and Wildlife Service--the new regulations "fundamentally change the way BLM lands are managed," and "could have profound impacts on wildlife resources." AR at 68069. After thoroughly reviewing the extensive Administrative Record in this case, the Court finds that this assessment of the Fish and Wildlife Service is accurate. Accordingly, the Court finds that the BLM should have consulted with the Fish and Wildlife Service--as required by the Endangered Species Act (ESA)--before issuing the new regulations. The Court also finds that BLM violated the National Environmental Policy Act (NEPA) by failing to take the required "hard look" at the environmental effects of the regulations. For many of same reasons, the Court also finds that the regulations violate the Federal Land Policy and Management Act (FLPMA).”
The Court therefore granted Plaintiffs' motion for summary judgment, and the BLM regulations set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq., are enjoined in all respects.
ADDITIONAL ESA-RELEVANT EXCERPTS: BLM’s failure to consult with FWS, particularly after FWS identified significant concerns, violated the ESA. The BLM and Forest Service began in 1993 to propose new grazing rules that would become known as the 1995 regulations. A keystone of these reforms was a set of criteria for healthy rangelands that would be applied nation-wide, called the Fundamentals of Rangeland Health (FRH). AR at 68959; 69253; 43 C.F.R. § 4180 et seq. The BLM described the FRH as "critical" to improving rangeland conditions, "especially riparian areas." AR at 69253… It is important to recall here that when the FWS signed-off on the 1995 regulations in its BO (as discussed above), the FWS assumed that the FRH standards would be fully implemented. Now, not only is the FWS not consulted, but the revisions dispense with the FRH standards, using only Standards & Guidelines…
FWS also took issue with the change that took away the BLM's authority to revoke a permit for prohibited acts occurring outside the grazing permit boundary. Id. at 68066. The FWS pointed out that livestock frequently trespass onto National Wildlife Refuge (NWR) lands adjacent to the allotments. Id. Such trespasses could, under the prior system, lead to revocation of the permittee's permit, but no longer. The removal of this deterrent to errant grazing would cause, in the FWS's opinion, "significant adverse effects to fish and wildlife resources the [FWS] is mandated to protect." Id. at 68066. By relaxing its own authority to sanction, the BLM "communicates to permittees that attention to a healthy rangeland ethic ends at their permit boundary." Id. at 68066. With regard to water rights ownership, the FWS observed that "[n]umerous sensitive wildlife and plants species depend upon water ." The FWS expressed concern that the sensitive species' access to water could be adversely affected if the water rights were owned by an entity whose primary interest was in grazing cattle. Id. at 68070.
The BLM argues that the FWS comments are unsigned and labeled "Draft." If this argument is meant to imply that the comments were either half-baked or not intended to be disseminated, neither implication is accurate. The comments are detailed and extensive, contained in 17 pages of thoughtful and well-written analysis. The fax is clearly a finished (and polished) document… Indeed, the subsequent conduct of the parties shows that the fax was official and got the BLM's attention. On October 12, 2005, the BLM met with the FWS to address the very concerns raised in the fax. That sounds like the views expressed in the fax were official, meant to be taken seriously, and considered as such by the BLM…
The BLM is therefore required to consult with the FWS if the action "may affect" a threatened or endangered species. See50 C.F.R. § 402.14(a). As explained above, the phrase "may affect" has been interpreted broadly to mean that "any possible effect, whether beneficial, benign, adverse, or of an undetermined character." See51 Fed.Reg. 19926, 19949 (June 3, 1986). While WWP [Western Watersheds Project] has cited extra-record material supporting a "may affect" finding, the material cited above by the Court is all within the Administrative Record and was before the BLM when it made its decision not to consult. Examining only this Administrative Record material under the broad definition of "may affect," the Court finds that the BLM's failure to consult was arbitrary and capricious.