Joro Walker (USB # 6676)
LAND AND WATER FUND OF THE ROCKIES
1473 South 1100 East, Suite F
Salt Lake City, Utah 84105
Telephone: (801) 487-9911
Fax: (801) 486-4233
Laurence (“Laird”) J. Lucas (ISB # 4733)
P.O. Box 1342
Boise, Idaho 83701
Telephone: (208) 424-1466
Fax: (208) 342-8286
Attorneys for Plaintiff Western Watersheds Project
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
WESTERN WATERSHEDS PROJECT,
)
)
Plaintiff,
)
)
v.
)
)
GLENN A. CARPENTER, BLM Salt Lake Field
)
Office Manager, and BUREAU OF LAND
)
MANAGEMENT,
)
)
Defendants.
)
__________________________________________)
No. 2:02 CV 0352 PGC
OPENING BRIEF IN SUPPORT
OF PLAINTIFF’S MOTION FOR
JUDICIAL REVIEW AND
REMAND BASED ON
FIRST CLAIM FOR RELIEF
RE: NEPA VIOLATIONS
Magistrate Judge Samuel Alba
TABLE OF CONTENTS
INTRODUCTION……………………...…………………………………………………………1
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE………………………. 3
The 2001 Permits………………………...………………………………………………..3
Plaintiff’s Involvement and Standing……………………………………………………...4
The Northern Utah Landscape And Resources Affected By The 2001 Permits…………. 5
Adverse
Environmental
Grazing………………………………………8
Effects
of
Livestock
Grazing Impacts On The Northern Utah Allotments…………………………………… 11
Lack of Current Data And Analysis In Most Of The 2001 EAs…………………………12
BLM
Data
Acknowledging
Impacts…………………………………...15
Grazing’s
Adverse
Lack of Consideration of Alternatives……………………………………………………..
22
ARGUMENT…………………………………………………………………………………….24
I.
STANDARDS OF REVIEW…………………………………………………….24
II.
NEPA’S REQUIREMENTS……………………………………………………..26
III.
BLM VIOLATED NEPA BY FAILING TO TAKE A “HARD LOOK”
AT THE ENVIRONMENTAL EFFECTS OF THE 2001
GRAZING PERMITS AND FAILING TO PREPARE AN EIS………………….29
A.
BLM Has Ignored Direct and Cumulative Impacts Of The
2001 Permits, Which Should Be Evaluated Through An EIS…………...29
B.
Caselaw Underscores The Significant Environmental Impacts
Of Grazing………………………………………………………………. 31
C.
At A Minimum,”Uncertainty” And ‘Controversy” Required An
EIS……...33
IV.
BLM HAS IMPROPERLY SEGMENTED ITS ANALYSIS…………………...35
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- i
V.
BLM FAILED TO CONSIDER A REASONABLE RANGE OF
ALTERNATIVES…………………………………………………………
………36
CONCLUSION…………………………………………………………………………………..38
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- ii
INTRODUCTION
Plaintiff Western Watersheds Project (WWP) seeks judicial review and entry of judgment
on its First Claim for Relief under the National Environmental Policy Act (NEPA), 42 U.S.C. §
4332, thus reversing and remanding the 2001 grazing permits at issue in this case.
The central question presented here is whether defendant Bureau of Land Management
(BLM) violated NEPA in summer 2001, when it issued permits authorizing livestock grazing
across 1.5 million acres of northern Utah public lands, without preparing any Environmental Impact
Statement (EIS) or otherwise taking a “hard look” at environmental effects of the grazing and
reasonable alternatives. Rather than prepare any EIS, BLM instead relied on perfunctory
Environmental Assessments (EAs) and Findings of No Significant Impacts (FONSIs) for subgroupings of the allotments, to conclude that the permitted livestock grazing will not cause any
significant environmental effects.
In doing so, BLM failed even to assess current resource conditions on most of the
allotments; and it ignored a wealth of data and science in the record showing that the grazing has
caused, and will continue to cause, significant environmental harms of many kinds. As explained
in detail below, the 2001 permits authorize grazing across public lands with common natural
resource features that offer important habitat for many wildlife, fish, and bird species, and which
are adversely impacted by grazing in many ways. In particular, cattle congregate around streams
and wet areas in the hot arid conditions of northern Utah, where they trample stream banks, remove
shady cover, and their wastes foul streams, thus degrading water quality as well as riparian and
fisheries habitat. Likewise, in uplands areas, livestock grazing removes native grasses and other
vegetation, destroying wildlife habitat, and causing soil erosion from loss of ground cover and
livestock trampling.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 1
All of these impacts were documented to be occurring on large portions of the northern
Utah allotments by independent scientists, as well as by BLM staff in the areas where the agency
bothered to look at the current conditions of the allotments. Yet BLM’s decision-makers have
ignored this data and science in asserting that grazing under the 2001 permits will have “no
significant impact” to the environment, and thus avoided analyzing and disclosing to the public the
direct and cumulative environmental impacts of the proposed grazing through a full EIS.
As the U.S. Court of Appeals for the Tenth Circuit has repeatedly held, an agency’s failure
to take a “hard look” at the likely environmental impacts of a proposed action violates NEPA,
requiring that the challenged decision be reversed and remanded. See Davis v. Mineta, 302 F.3d
1104 (10th Cir. 2002); Utahns for Better Transportation v. U.S. DOT, 305 F.3d 1152 (10th Cir.
2002); Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002) (all
reversing for NEPA violations). Those holdings are directly applicable here, where BLM has
avoided any meaningful assessment and analysis of the environmental impacts that livestock
grazing has caused, and will continue to cause, to the public lands and resources of northern Utah.
In short, the record before the Court demonstrates that the 2001 permits will have
significant environmental effects which BLM has not studied through any EIS; and that BLM was
arbitrary and capricious in issuing the northern Utah grazing permits based on the inadequate 2001
EAs and FONSIs. Accordingly, judgment should be entered for WWP on its First Claim for Relief;
and the 2001 permits reversed and remanded with instructions that BLM comply fully with NEPA.1
1
In addition to reversal and remand, WWP may seek other interim relief to protect the affected
public lands and resources from irreparable harm during the period while BLM complies with
NEPA upon remand. The U.S. Court of Appeals for the Ninth Circuit has recently upheld entry
of such interim relief over BLM’s violations of NEPA in managing grazing on the 1.8 million
acre Owyhee Resource Area of southern Idaho. See Idaho Watersheds Project v. Hahn, 307 F. 3d
815 (9th Cir. 2002) (affirming interim relief setting standards to protect riparian areas and
streams from adverse grazing impacts while BLM conducts NEPA analysis).
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 2
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE
Pursuant to District of Utah Local Rules 7-1 and 56-1, WWP is submitting the following
statement of material facts not in genuine dispute relevant to this motion.2
The 2001 Permits
1.
At issue in this case are at least 77 grazing allotments totaling nearly 1.5 million
acres of public lands located across northern Utah, in Tooele, Rich, and Box Elder counties.
These allotments are all managed by the BLM’s Salt Lake Field Office, under the direction of
Defendant Glen Carpenter. As the authorized BLM officer, Mr. Carpenter issued at least 149
new term grazing permits for these northern Utah allotments in August and September 2001. See
Fed. Defs’ Answer, ¶¶ 2, 15, 44-47, 66-68 (admitting these facts); Declaration of Paul Mitchell,
filed herewith, Figure 1 (map illustrating locations of the allotments).3
2.
BLM concedes it performed no Environmental Impact Statement (EIS) under
NEPA before issuing the 2001 permits. Instead BLM relied on at least fourteen separate
Environmental Assessments (EAs) and Findings of No Significant Impact (FONSIs) for different
2
Because BLM has not yet filed an Administrative Record for this case, WWP is submitting
necessary record materials for this motion through the accompanying Declaration of Dr. John
Carter. In addition, the accompanying Declaration of Paul Mitchell provides the Court with a
series of maps illustrating the locations of the allotments in question and some of their common
resource values.
The allotments and permits are itemized in Plaintiff’s Complaint, which BLM has admitted.
See Complaint & Fed Defs’ Answer, ¶¶ 45-47. After the Complaint was filed and answered,
however, Plaintiff learned that BLM’s Salt Lake Field Office issued several additional northern
Utah EAs and permits in 2001, including EA numbers UT-020-2001-107, UT-020-00-84, UT020-2001-67, UT-020-2001-116 and UT-020-2001-135. Further, BLM may recently have
purported to “withdraw” one or more of the EAs identified in the Complaint, but has not
referenced that in its Answer. Plaintiff can amend the complaint as necessary to address these
facts; but does not believe they materially affect the analysis of BLM’s NEPA violations as set
forth in this brief.
3
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 3
groupings of the allotments, all approved by Mr. Carpenter in August and September 2001, to
conclude that grazing under the permits would have “no significant impact” on the environment.
See Fed. Defs’ Answer, ¶ 3 (“federal defendants admit that in August-September, 2001,
defendant Carpenter approved 149 grazing permits for 77 allotments in Tooele, Rich and Box
Elder counties based on 14 Environmental Assessments (EAs) issued by the BLM’s Salt Lake
Field Office”); see also id., ¶¶ 15, 35, 44 & 66-68 (similar admissions and admitting no EIS);
Carter Decl., Exhs. 7-25 (copies of EAs and FONSIs).4
Plaintiff’s Involvement and Standing
3.
Plaintiff WWP is a regional nonprofit conservation group, with members in Utah
and other states who use and enjoy the public lands and resources in and around the allotments at
issue. WWP’s Utah office is directed by Dr. John Carter, a Ph.D. ecologist and engineer with
extensive experience monitoring resource conditions and recreating in and around the northern
Utah allotments in question. See Carter Decl., ¶¶ 1-21 & Exh. 1.5
4.
On behalf of WWP, and in accordance with BLM grazing regulations, Dr. Carter
submitted protests to BLM over the proposed issuance of the northern Utah grazing permits in
spring/summer 2001. He also submitted extensive scientific citations, and detailed monitoring
reports (prepared by Dr. Carter and other experts) concerning the severely degraded resource
conditions on many of the allotments due to livestock grazing. See Complaint, ¶¶ 50-53 and Fed
Defs’ Answer, ¶¶ 50-53; Carter Decl., ¶¶ 49-55 & Exhs. 2, 26-29.
4
As noted, BLM and Defendant Carpenter issued additional EAs and permits in summer 2001,
which only further illustrates how BLM has “segmented” its analysis of the 2001 permits in
avoiding any EIS to address these related permit approvals.
Dr. Carter’s accompanying declaration thus amply establishes Plaintiff’s Article III standing to
bring this action.
5
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 4
5.
Also in accordance with BLM regulations, Dr. Carter filed administrative appeals
for WWP after the 2001 permits were issued, and submitted Petitions for Stay to the Interior
Board of Land Appeals (IBLA) in the fall of 2001; but the stay petitions were denied by the
IBLA, and thereafter Dr. Carter dismissed the administrative appeals. See Complaint, ¶ 60 &
Fed. Defs’ Answer, ¶ 60; Carter Decl., ¶ 56. Plaintiff has thus fully exhausted any required
administrative remedies before bringing this case, in conformance with the APA. See Idaho
Watersheds Project v. Hahn, 307 F. 3d 815, 824-29 (9th Cir. 2002) (addressing APA exhaustion
requirement and BLM grazing appeals regulations).
The Northern Utah Landscape And Resources Affected By The 2001 Permits
6.
The northern Utah landscape in which the allotments at issue are located is very
arid. The public lands of the allotments are all located at approximately the same elevation
range, and receive on average below 20 inches of precipitation a year. See Carter Decl., ¶¶ 20-21
& Exhs. 7-20 (EAs generally describing allotment locations and features) & Exhs. 2, 27-29
(reports and protests, also describing allotment resources and science); Mitchell Decl., Figures 23 (maps showing allotment topography and average precipitation levels).
7.
Due to the low precipitation, the vegetation historically found on these allotments
is classified as “xeric,” i.e., desert-like vegetation typified by drought-resistant plants such as
sagebrush, salt shrub, bitterbrush, and native grasses. The allotments also feature soils that are
prone to erosion from soil disturbance and vegetation removal. See Carter Decl., ¶¶ 20-21, 40-41
& Exhs. 2, 7-20, 27-29; Mitchell Decl., Figure 4 (map showing xeric vegetation).
8.
Streams, springs, and riparian areas (the vegetation around wet areas) occupy a
tiny fraction of the surface area of this part of northern Utah, i.e., typically less than one percent
(1%), but are critical from a biological perspective, given the arid environment. Riparian areas
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 5
historically featured as much as 80-90% of the species diversity and numbers in these
ecosystems, because they offered habitat for a wide variety of mammals, birds, amphibians,
insects, fish and other species; and also provided corridors of habitat for migrating wildlife. See
Complaint, ¶ 38 & Fed Defs’ Answer, ¶ 38 (“The federal defendants admit that riparian areas are
important from a biological perspective as a source of water for animals and plant species. The
federal defendants further admit that riparian areas historically featured as much as 80-90% of
the species diversity and numbers in desert and semi-desert habitats”). See also Carter Decl., ¶¶
20-46 & Exhs. 2, 27-29 (addressing importance of riparian areas); id., Exh. 11 (EA 70) at 5
(example of BLM EA acknowledging importance of riparian areas).6
9.
The northern Utah allotments provide habitat for a large array of wildlife species
present across much of the landscape. These include many “sensitive” or declining species, such
as sage grouse; big game mammals, such as deer and elk; raptors and migratory birds; numerous
fish species; and others. See Mitchell Decl., Figures 4-7 (maps showing habitat for sage grouse,
mule deer and antelope); Carter Decl., ¶¶ 22-46 and Exhs. 2, 7-20, 26-29 (reports, EAs, and
WWP comments addressing wildlife values of the allotments); see also ¶¶ 10-14 & 37-58, infra
(many specific page citations to EAs).
10.
For example, BLM’s own studies acknowledge that Box Elder and Rich counties
shelter the largest Utah populations of sage grouse, a special status species. Carter Decl., Exh. 13
(EA 112) at 14; Exh. 9 (EA 12) at 5; Exh. 8 (EA 37) at 5; Exh. 7 (EA 38) at 5; Exh. 11 (EA 70)
at 5. Indeed, the Utah Sage Grouse Conservation Plan identified Box Elder county as having
6
This brief will cite specific EAs according to the last two digits of the numbers assigned them
by BLM, as well as their respective Exhibit numbers in the accompanying Carter Declaration.
Thus, EA 70, cited above, refers to EA # UT-020-01-70, which is attached as Exhibit 11 to the
Carter Declaration; and this citation is to page 5 of that EA.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 6
particularly important sage grouse habitat. Carter Decl., Exh. 13 (EA 112) at 14.
11.
But the population of sage grouse has sharply declined throughout the western
United States, including Utah. Carter Decl., ¶¶ 37-38 & Exh. 13 (EA 112) at 14; Exh. 9 (EA 12)
at 5; Exh. 8 (EA 37) at 5; Exh. 7 (EA 38) at 5; Exh. 11 (EA 70) at 5. Scientists have estimated
that, in Utah, sage grouse occupy only 50% of the habitat they once did, and that the population
of the bird is only half of what it was in 1850. Id. Livestock grazing has been identified by
independent and agency scientists alike as one of the key factors causing the decline in sage
grouse, due to grazing degradation of sage grouse habitat for breeding, rearing, and sheltering
from predators. Carter Decl., ¶¶ 37-38 & Exhs. 2, 4, 26-29. Notably, BLM has acknowledged
in a recent study, not referenced in any of the 2001 EAs, that sage grouse have abandoned much
of their previously occupied habitat in Rich county, and that none of the sage grouse sites which
BLM has recently studied met standards for diversity and quantity of forbs for use by sage
grouse. Carter Decl., ¶ 38 & Exh. 4 (copy of BLM 2001 proposal to “treat” sage grouse habitat in
Rich county).
12.
Likewise, Utah’s Department of Wildlife Resources has identified crucial mule
deer habitat throughout Tooele, Box Elder and Rich counties. See Carter Decl., Exh. 13 (EA
112) at 14; Exh. 8 (EA 37) at 5; Exh. 9 (EA 12) at 5; Exh. 11 (EA 70) at 5; Exh. 14 (EA 92) at
Figure 6 (map); see also Mitchell Decl., Figure 6 (another map illustrating mule deer habitat).
13.
Crucial pronghorn antelope habitat is located in many of the allotments across all
three counties as well. Carter Decl., Exh. 10 (EA 72) at 5; Exh. 12 (EA 73) at 8; Exh. 11 (EA
70) at 5; Exh. 18 (EA 14) at 7; see also Mitchell Decl., Figure 5 (map illustrating pronghorn
habitat).
14.
Further, wild horses roam the areas encompassed by the Tooele county allotments.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 7
Carter Decl., Exh. 14 (EA 92) at 1. Tooele county also serves as bald eagle winter range, a
migration route for whooping cranes, and is historic range for the listed black-footed ferret. Id. at
3.
15.
Bonneville cutthroat, the Utah state fish and a conservation species, inhabits the
streams encompassed by the Rich county allotments. Carter Decl., Exh. 7 (EA 38) at 5; Exh. 8
(EA 37) at 5; Exh. 9 (EA 12) at 5. In response to the imperiled status of the fish, state and
federal agencies developed and signed a Conservation Agreement in 1997 intended to implement
conservation measures to proactively conserve and protect the Bonneville cutthroat. Under this
agreement, federal agencies, such as the BLM, are required to ensure that their actions and
decisions do not compromise any ongoing or planned conservation activities and do not increase
threats to Bonneville cutthroat trout. See Carter Decl., Exh. 27 (WWP protest), at 18.
16.
Important plant communities also exist within the allotment boundaries. For
example, “vegetation, including Special Status Plant Species typical of the Desert Flat, semi-arid
loam and semi-arid stony loams occupy the lower elevations” of the Stansbury Island and
Grantsville area allotments. Carter Decl., Exh. 17 (EA 86) at 11.
17.
The Utah State Preservation Office has also found invaluable cultural resources in
many of the BLM allotments. See Carter Decl., Exh.10 (EA 72) at 6; Exh.11 (EA 70) at 3; Exh.
16 (EA 108) at 6; Exh. 20 (EA 82) at 5; Exh.17 (EA 86) at 7; Exh.15 (EA 102) at 7; Exh.18 (EA
14) at 4-5; Exh.14 (EA 92) at 6.
Adverse Environmental Effects of Livestock Grazing
18.
A large body of scientific literature and studies (prepared by independent as well as
agency scientists) demonstrates that there are many adverse environmental impacts from livestock
grazing upon the public lands and resources of the arid American West, including northern Utah.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 8
These adverse impacts are readily observable, and well documented and described in the scientific
literature, much of which Dr. Carter cited and supplied to BLM in the context of the 2001 permit
process. See Carter Decl., ¶¶ 20-46 (discussing facts, scientific literature, and grazing impacts) &
Exhs. 2-3, 26-29 (protests and reports submitted to BLM); Fed. Defs’ Answer, ¶ 51-53 (admitting
submission of reports and citations).
19.
For example, it is well established in northern Utah and other parts of the arid
American West that livestock grazing may remove ground-covering vegetation and biological
crusts that are important in stabilizing the soil, promoting water infiltration into the ground to
recharge ground water, and cycling nutrients to promote plant growth, including trees. See Carter
Decl., ¶¶ 23-28 (discussing effects and citing studies), & Exhs. 26-28 (WWP protests to BLM for
2001 permits, also discussing these effects and citing studies).
20.
Under grazing by livestock, as many studies have shown, overall productivity and
diversity of the land has declined, while native species of perennial grasses and flowers have been
replaced by weeds or annual grasses (such as cheatgrass). Id. This has resulted in destabilizing the
soils so that in areas that are grazed and trampled by livestock, the soil lacks a developed horizon
with root structure to hold the soil. The eroded soil moves into waterways where the silt covers the
rocky substrates that trout and aquatic species depend upon. Habitats are reduced in fitness
(structure and function) for native wildlife species, and their populations suffer. Id.
21.
Livestock grazing has also been documented to have particularly severe adverse
effects upon water quality, and riparian or stream habitats. See Carter Decl., ¶¶ 20-21, 24-29
(discussing these effects and scientific literature) & Exhs. 2-3, 26-29 (article, reports, and protests
submitted to BLM during 2001 permit process, addressing these points). Livestock presence and
grazing cause the removal of soil-protecting vegetation and shady cover, soil compaction, and direct
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 9
trampling of stream banks, which all result in the alteration and loss of stream flows, increased
water temperatures, and loss of in-stream habitat provided by overhanging banks, trees, shrubs and
grasses. Id. Dissolved oxygen is lost due to sedimentation from erosion, which seals rocky stream
substrates with sediment; and due to increases in nutrients and organic matter from animal waste
that pollutes the water and causes algae blooms. Id. These factors deplete the oxygen by limiting
water circulation through these substrates and through respiration and decomposition. Id.
22.
Livestock waste also contains large numbers of human pathogens, including E coli.
Id. Results of studies show that when cattle are present, fecal coliform levels rise and they are
carried downstream for large distances. Id. Livestock create a reservoir of these and their
associated pathogenic organisms in the soil and stream sediments that reside there for long periods.
These can cause exceedances of water quality standards even months after the livestock are
removed. Id.
23.
Livestock grazing further affects wildlife and wildlife habitat by altering and
simplifying the structure, productivity, and functions of the plant community. Studies have
documented the loss of biodiversity and lowering of population densities of wildlife populations
caused by competition with livestock for food and cover. See Carter Decl., ¶¶ 30-46 (discussing
these effects and citing literature) & Exhs. 3, 26-29 (WWP submissions to BLM addressing these
points).
24.
For instance, studies have pointed out that heavy livestock grazing of mule deer
winter range has resulted in reduction or near elimination of perennial grasses and forbs. See Carter
Decl., ¶¶ 30-36 (discussing these effects and citing studies). This lack of perennial grasses and
forbs creates a forage deficiency in early spring and summer when deer rely on the new growth.
Hiding cover for fawns also may decrease more rapidly when cattle are present. During fawn
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 10
rearing, the combination of inadequate forage on overgrazed spring range coupled with poor winter
range is responsible for heavy fawn mortality. The depletion of herbaceous species, especially
perennial forbs on summer range by livestock, limits reproduction in does. Id.
25.
Other studies have shown that sage grouse, which have declined significantly
across their historic range, are adversely impacted by livestock grazing through removal of the
herbaceous understory in sagebrush habitats. Carter Decl., ¶¶ 37-38 & Exhs. 3-4, 26-29. The
studies also note that nests and brood-rearing areas are typically in close proximity to water
sources, the same areas preferred by cattle; and reveal that the concentration of cattle near water
results in heavy trampling and removal of the vegetation needed for cover and food for both
nesting and brood-rearing by sage grouse, thus reducing survival and reproduction rates. Id.;
Carter Decl., Exh.14 (EA 92) at 20 (BLM stating that livestock use of riparian areas would
adversely impact sage grouse chicks and other species that rely on these areas for brooding and
rearing).
Grazing Impacts On The Northern Utah Allotments
26.
In addition to presenting BLM with scientific literature and analysis describing
these kinds of adverse harm from livestock grazing, WWP (through Dr. Carter) also submitted to
BLM, for consideration during the 2001 permit process, monitoring data and analysis
documenting that such impacts are currently occurring on many of the northern Utah allotments.
See Carter Decl., ¶¶ 30-31, 51-55 (describing reports and findings) & Exhs. 3, 29 (copies of
reports submitted to BLM); Fed. Defs’ Answer, ¶¶ 51-52 (admitting submission of reports).
27.
For example, Dr. Carter and a colleague conducted monitoring and evaluation of
upland and riparian conditions on many of the Rich county allotments, which they presented to
BLM in a report entitled “An Assessment of Upland and Riparian Condition for Rich County,
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 11
Utah BLM Lands.” See Carter Decl., ¶¶ 30-31, 51-53 & Exh. 3 (copy of report). This report
included detailed monitoring and evaluation data and results, as well as photographs and
scientific citations, documenting that watersheds in a large portion of the allotments covered by
the 2001 EAs in Rich county are denuded and eroding; riparian areas are trampled and lack
riparian vegetation; streams are heavily impacted with silt from watershed and bank erosion; the
allotments are grossly overstocked with livestock that are poorly managed; vegetation production
has been reduced below potential; and other adverse resource harms are occurring. Id.
28.
Similarly, WWP (through Dr. Carter) submitted a second report, prepared by
consultant Red Willow Research, evaluating resource conditions in a number of allotments in
Box Elder county, entitled: “An Evaluation of Riparian and Upland Conditions: Grouse Creek
BLM Allotments.” Carter Decl., ¶ 54-55 & Exh. 29 (copy of report). That report documented
that soils have suffered from vegetation and crust removal, and are eroding; noxious weeds have
proliferated; riparian areas are degraded; and habitat and wildlife values have been severely
impacted as a result of excessive stocking and poor management of livestock. Id.
Lack of Current Data And Analysis In Most Of The 2001 EAs
29.
In contrast to the scientific literature and detailed monitoring information provided
by WWP to BLM, most of the 2001 EAs for northern Utah are only a few pages long, and contain
(at best) only brief discussions of the relevant resources of the subject allotments, without detailed
discussion of the relevant scientific studies and findings. See Carter Decl., Exhs. 7-20 (copies of
EAs). The FONSIs have no scientific analysis at all, but are simply conclusory statements that
BLM determined no significant impacts would result from issuance of the 2001 permits. See Carter
Decl., Exhs. 21-25 (examples of FONSIs).
30.
Further, BLM issued the EAs and FONSIs with little or no current data of its own
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 12
about existing resource conditions and livestock impacts on many (if not most) of the allotments
covered by the 2001 permits. Carter Decl., Exhs. 7-25. BLM admits this fact. See e.g., Carter
Decl., Exh. 17 (EA 86) at 8 (BLM “has little information on these allotments”); see also citations
below.
31.
For example, BLM states with respect to several Tooele county allotments that:
“Vegetation monitoring on these allotments has been erratic due to the shifting time and budget
priorities. . . . With the spotty data it is not possible to come to any interpretation as to the
allotments [sic] condition.” Carter Decl., Exh. 16 (EA 108) at 9. In another Tooele County EA,
BLM states that “[t]rend studies have not been monitored consistently due to staffing shortages and
do not provide useful data for determining current allotment trends.” Carter Decl., Exh. 20 (EA 82)
at 9.7
32.
Likewise, with respect to the Box Elder county allotments, BLM conducted no
resource evaluations of current conditions for the uplands of the eight allotments, totaling 246,221
acres, that were subject to EA 72. See Carter Decl., Exh. 10 (EA 72) at 3. For two of these
allotments, BLM has failed to collect data of any sort since 1982. Id. at 11. Similarly, for the nine
Box Elder county allotments reviewed in EA 73, totaling about 320,000 acres, BLM has no current
“Standards and Guidelines Assessments” of the uplands. Carter Decl., Exh. 12 (EA 73) at 2. For
the seven EA 70 allotments, in Box Elder county, the BLM collected no current resource data for
uplands. Carter Decl., Exh. 11 (EA 70) at 2 & 4.
7
Despite the lack of current data, BLM proposed to authorize grazing by large numbers of
livestock over vast acreage of the Tooele county allotments alone, as follows: 6125 sheep and
457 cows on 130,200 acres on seven allotments under EA 108 (EA 108 at 7-8); 8129 sheep and
1612 on 220,500 acres on the three allotments of EA 82 (EA 82 at 6); 2435 sheep and 132 cows
on 23,500 acres on the two allotments of EA 102 (EA 102 at 9); 922 cows on 32,600 acres on the
three allotments of EA 14 (EA 14 at 6); and 340 sheep and 476 cows on 22,000 acres of the six
allotments of EA 86 (EA 86 at 9). See Carter Decl., Exhs. 15-20.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 13
33.
The story is the same for most of the Rich county allotments as well. BLM
concedes that it did not conduct upland assessments on six of the ten allotments it analyzed in the
Rich county EAs. Carter Decl., Exh. 7 (EA 38) at 12; Exh. 8 (EA 37) at 13; and Exh. 9 (EA 12) at
12-13.
34.
In the significant majority of cases, BLM also failed to conduct assessments to
determine if the riparian areas in the Box Elder and Tooele county allotments were complying with
the “Fundamentals of Rangeland Health” regulations, 43 C.F.R. Part 4180. For example, the
agency failed to conduct riparian health assessments on 28 of the 30 allotments in Tooele county.
Carter Decl., Exh. 16 (EA 108) at 7-8; Exh. 20 (EA 82) at 6; Exh. 15 (EA 102) at 9; Exh. 18 (EA
14) at 6; Exh. 17 (EA 86) at 9. BLM did not conduct riparian health assessments on 17 allotments
in Box Elder county. Carter Decl., Exh. 10 (EA 72) at 3; Exh. 12 (EA 73) at 2. For the seven EA
70 allotments, also in Box Elder county, BLM relied upon riparian assessments conducted from
1991 to 1995. Carter Decl., Exh. 11 (EA 70) at 2 & 4.
35.
Although crucial deer and sage grouse habitat occur throughout the Rich county
allotments, and BLM previously determined that this habitat was in fair to poor condition, it
concluded without explanation or reference to data that the permit renewals had “no adverse affect
[sic]” on wildlife, and therefore that it need not consider the impacts of grazing on wildlife further
in the EA. See, e.g., Carter Decl., Exh. 9 (EA 12) at 5; Exh. 8 (EA 37) at 5. In most of the Tooele
county EAs, BLM refused even to describe wildlife and wildlife habitat, and instead referred to
the 1984 Pony Express Land Use Plan for analysis. Carter Decl., Exh. 16 (EA 108) at 5; Exh. 20
(EA 82) at 3; Exh. 17 (EA 86) at 6; EA 102 at 6; EA 14 at 3. BLM thus conducted no analysis of
livestock grazing, or alternative management schemes on wildlife. Id.
36.
BLM also provided no water quality monitoring data to demonstrate compliance
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 14
with Utah water quality standards. Instead of monitoring water quality or addressing the water
quality information provided by WWP, many of the 2001 EAs simply asserted that since
allotment streams are not identified on Utah’s 2002 § 303d listing of water quality limited stream
segments, no water quality impairment exists – without acknowledging that the State of Utah
itself had not monitored the streams either. See, e.g., Carter Decl., Exh. 7 (EA 38) at 12; Exh. 8
(EA 37) at 13; Exh. 13 (EA 112) at 4 & 13; Exh. 16 (EA 108) at 3; Exh. 19 (EA 50) at 3.
BLM Data Acknowledging Grazing’s Adverse Impacts
37.
Despite BLM’s failure to assess current resource conditions on most of the
allotments subject to the 2001 permits, the Administrative Record nevertheless contains numerous
acknowledgements by BLM that a wide variety of adverse impacts have been previously found, or
are likely, as a result of livestock grazing on the northern Utah allotments – impacts which mirror
those described by Dr. Carter and the scientific literature he cited to BLM. See generally, Carter
Decl., Exhs. 4, 7-20 & 26-28; see also specific citations in ¶¶ 38-58, infra.
38.
BLM’s recognition of adverse livestock impacts on the northern Utah allotments
stretches back for decades. For example, with respect to Rich county allotments, BLM determined
in the 1980 Randolph Management Framework Plan (the current BLM land use plan for these
allotments) that water quality was impaired as a direct result of livestock grazing. See Carter Decl.,
Exh. 27 at pp. 7-8 (quoting Randolp RMP). Indeed, the 1980 Randolph MFP acknowledged that
“[s]treams and aquatic-riparian habitats have been identified . . . as areas of critical environmental
concern, crucial habitat, and conflict areas with livestock grazing. Habitat and fisheries currently
exist in poor condition in all streams.” Id. (emphasis added). The Randolph MFP further stated:
“Water quality is being adversely affected by livestock-induced soil erosion and elevated
bacterial counts.” Id. (emphasis added).
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 15
39.
Similarly, in the 1986 Box Elder Resource Management Plan (the current BLM land
use plan for the Box Elder county allotments), BLM noted that 124 out of 208 springs and all 16
perennial streams in the resource area were in danger of being dewatered and lost due to livestock
grazing and trampling. Carter Decl., Exh. 28 at pp. 6-10.
40.
In a recent study from Nevada, BLM likewise found severe water quality
degradation from livestock grazing on the Carico Lake allotment, again demonstrating its
recognition of how grazing can adversely impact streams and water quality. Carter Decl., ¶ 28.
41.
The 2001 EAs for the northern Utah allotments are also replete with
acknowledgements by BLM that livestock grazing is causing, or at least may cause, significant
adverse environmental effects of many kinds. These include the following examples described in
¶¶ 42-57:
42.
In the Box Elder county EAs, BLM conducted riparian assessments on 15 of the 30
allotments. The BLM determined that, of the 32 riparian sites it assessed, 18 were functioning at
risk and six (6) were non-functioning. See Carter Decl., Exh. 13 (EA 112) at 13; Exh. 11 (EA 70)
at 14. Only eight (8) sites were properly functioning. Id. BLM further determined that biotic
integrity was “at risk” or not functioning at 24 sites. Carter Decl., Exh. 13 (EA 112) at 13. This
finding is particularly important given that Box Elder county, including the allotments addressed in
EA 112, provide important habitat for sage grouse. Id. at 14.
43.
In Rich county, BLM assessed the uplands of 10 allotments and the riparian areas of
15 allotments for compliance with the “Fundamentals of Rangeland Health” regulations (these
establish ecological standards which grazing on BLM lands must meet, see 43 C.F.R. Part 4180).
BLM findings included the following:
(A) EA 38 analyzed 16 upland sites on four allotments. Carter Decl., Exh. 7 (EA 38) at 12.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 16
Four sites were found to be at risk for soil instability, three at risk for improperly functioning
watersheds, and five at risk for lacking biological integrity. Id. at 12. Of the nine riparian sites
assessed, four were functioning at risk with a downward or static trend; and two were functioning at
risk with an upward trend. Id.
(B) In EA 37, BLM assessed six allotments, using a total of 21 upland sites. Three sites
were found to at risk for soil instability, three at risk for improperly functioning watersheds, and 14
at risk for lacking biological integrity. Carter Decl., Exh. 8 (EA 37) at 13. Of the four riparian
sites assessed, two were non-functional, and one was functioning at risk. Id.
(C) In EA 12, BLM only assessed the condition of the riparian areas on three allotments,
using nine sites. Carter Decl., Exh. 9 (EA 12) at 21. Each of these nine sites was functioning at
risk. Id. Four other sites were left unassessed. Id.
44.
On the five allotments in Tooele County where the BLM recently conducted
assessments for compliance with the “Fundamentals of Rangeland Health,” it determined that
significant portions of uplands of the allotments were not meeting the relevant standards. See
Carter Decl., Exh. 19 (EA 50) at 4-5; Exh. 14 (EA 92) at 5. According to the EAs:
(A) BLM conducted assessments for only three riparian areas in Tooele County. Of these,
one was “functioning at risk with an upward trend,” and another was not functioning at all. Carter
Decl., Exh. 19 (EA 50) at 4.
(B) On the Silver Island Allotment, BLM found an average of 35% of soils and 50% of the
vegetative community were not meeting the Fundamentals of Rangeland Health ecological
standards. Id. at 5. BLM also determined that under the proposed action, of maintaining “status
quo” grazing, the effects of livestock use “would be similar to those presently occurring,” in that
soil compaction, increased channelization of runoff, and 40-60% utilization of vegetation near
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 17
water sources would continue. Id. at 13.
(C) Similarly, BLM found that significant portions of the three Onaqui allotments were not
meeting the Fundamentals of Rangeland Health standards, including that none of the vegetative
community of the East Onaqui Resource Conservation Area was meeting the relevant standards.
Carter Decl., Exh. 14 (EA 92) at 5. Again, the agency also determined that under the proposed
action, the effects of livestock grazing on soils and vegetation “would be similar to those presently
occurring.” Id. at 19.
45.
In its Rich county assessments, BLM’s data shows that, on the average, grass
coverage in the relevant allotments is just 52% of potential. This finding corresponds with the
BLM’s determinations that deer and sage grouse habitat within these areas is in fair to poor
condition; and that the biological integrity at 19 assessed sites is at risk and not in compliance with
the BLM’s “Fundamentals of Rangeland Health” ecological standards and requirements. Carter
Decl., Exhs. 7-9 (EAs 37, 38 & 12).
46.
Likewise, BLM found with regard to various Box Elder allotments that areas “have
been invaded” by exotic weeds such as “cheatgrass and haloeton.” See Carter Decl., Exh. 10 (EA
72) at 11. This invasion increases fire risk in these areas. Id. Moreover, in “cheatgrass areas,”
native shrubs such as salt desert shrub and sagebrush, vital to sage grouse and other wildlife, are
absent. Id; see also Carter Decl., Exh. 12 (EA 73) at 8 (noting cheatgrass invasion below 5000
feet).
47.
Similarly, in assessing the eight allotments in EA 112, BLM determined that five
allotments exhibited a downward trend, and four experienced heavy utilization. Carter Decl., Exh.
13 (EA 112) at 12. In reviewing a set of seven Box Elder County allotments where it had no
current upland assessment data, the BLM determined on the basis of the information it did have that
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 18
utilization was moderate to heavy in two allotments, and that the trend on each is static. Carter
Decl., Exh. 11 (EA 70) at 11. At the same time, BLM disclosed that 2,200 acres of the area are in
poor ecological condition, and 32,900 acres in fair condition. Id. at 13.
48.
BLM also noted that “[p]erhaps [its] greatest management challenge . . . from a
biological integrity perspective, is the maintenance and recovery of the remnants of native salt
desert shrub communities and the remaining low shrub vegetation.” Carter Decl., Exh. 11 (EA 70)
at 16. To recover this native ecosystem would require an end to the invasion of cheatgrass, a
condition that will persist under current grazing regimes. Id. BLM identified the spread of weeds,
especially cheatgrass, as a serious threat to native ecosystems in many other allotments. See, e.g.,
Carter Decl. Exh. 20 (EA 82) at 2; Exh. 17 (EA 86) at 6 (“Areas in allotments are at risk due to
areas use by cattle, recreation activity and equipment”).
49.
In assessing seven Tooele county allotments, BLM determined that under the
preferred alternative (which would perpetuate previous grazing management practices), “[f]ire
activity and livestock use would continue to have an affect on vegetation.” Carter Decl., Exh. 16
(EA 108) at 10; Exh. 17 (EA 86) at 12. Elsewhere in Tooele county, BLM determined that “[t]he
salt desert shrub component and the sagebrush type are largely absent where cheatgrass is present.”
Carter Decl., Exh. 19 (EA 50) at 10.
50.
In the three Rich county EAs, BLM noted that forage and cover for sage grouse
habitat, which occurs through out the analysis area, is “poor” due to “overutilization and a low
sagebrush/grass/forb density for sage grouse.” Carter Decl., Exh. 9 (EA 12) at 5. At the same time,
the EA noted that the 1982 Randolph Habitat Management Plan found that, with regard to wildlife
habitat, “the area was in poor condition, lacking preferred species and thermal cover for critical deer
winter range.” Id.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 19
51.
In EA 37, BLM also determined that sage grouse habitat occurs throughout the
relevant allotments; and that the “nine breeding and nesting complexes . . . within the area . . . were
found in poor to fair condition due to low sagebrush/grass/forb densities and overutilization.”
Carter Decl., Exh. 8 (EA 37) at 5. Similarly, in EA 38, the BLM determined sage grouse habitat
also exhibited a low grass/forb density. Carter Decl., Exh. 7 (EA 38) at 5.
52.
In Box Elder county EA 112, BLM stated that the area encompassed by its
analysis “includes habitat that is crucial mule deer winter range” and that sage grouse is “known
to occur throughout the area.” Carter Decl., Exh. 13 (EA 112) at 6.
53.
BLM also acknowledged that the Tooele county allotments contain “critical
supplies of forage and cover for wintering mule deer.” Carter Decl., Exh. 20 (EA 82) at 7. Bald
eagle and golden eagle seasonal habitat also occurs in Tooele county allotments. Id. The Puddle
Valley Habitat Management Plan was developed to increase the antelope herd in that area of
Tooele county to 150 animals. Id. at 4.
54.
BLM further determined that livestock use on the eastern slope of the Pilot
Mountains throughout the winter “may impact Pronghorn antelope” because of competition for
forage and water sources. Carter Decl., Exh. 19 (EA 50) at 14.
55.
BLM also acknowledged that livestock use of riparian areas would adversely
impact sage grouse chicks and other species that rely on these areas for brooding and rearing.
Carter Decl., Exh. 14 (EA 92) at 20.
56.
In assessing seven Tooele county allotments, BLM determined that under the
preferred alternative (i.e., to perpetuate prior grazing management practices), “[a]ccelerated soil
loss may continue . . . due to continued fire and loss of plant cover.” Carter Decl., Exh. 16 (EA
108) at 10 (Rush Valley allotments); Exh. 17 (EA 86) at 12 (same for North Tooele county
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 20
allotments). In the Lost Creek area, the BLM determined that “[a] lack of permanent vegetative
cover, such as that found within cheatgrass areas and juniper encroachment areas results in an
increased erosion potential throughout much of the analyzed area.” Carter Decl., Exh. 18 (EA 14)
at 7.
57.
BLM also acknowledged that livestock grazing has “the potential for impact” on
the high concentrations of invaluable cultural resources found on many of the relevant Box Elder
and Tooele allotments. See Carter Decl., Exh. 10 (EA 72) at 6; Exh.11 (EA 70) at 3; Exh. 16 (EA
108) at 6; Exh. 17 (EA 86) at 7; Exh. 15 (EA 102) at 7; Exh. 18 (EA 14) at 4-5; Exh. 19 (EA 50)
at 6. For example, in one instance, agency admitted that “cultural and historic artifacts may be
affected in some manner” by livestock use, and that “these impacts, at some unknown level,
would continue to occur” under the proposed grazing management scheme. Carter Decl., Exh.
19 (EA 50) at 14.
58.
Finally, throughout the 2001 EAs, BLM refers to other resource uses that, together
with livestock grazing, cumulatively impact wildlife, soils, water quality, cultural resources,
vegetation, and other public land resources. Chief among these is off-road vehicle (OHV) use,
which, as the BLM documents, is severe in places. See, e.g., Carter Decl., Exh. 20 (EA 82) at 3
(“Horseshoe Knolls, within the Salt Mountain Allotment[,] is a popular OHV area and contains
areas which are highly erodible”); Exh. 7 (EA 38) at 5 (motorized and non-motorized use “has
contributed to the spread of weeds and livestock conflicts”); Exh. 8 (EA 37) at 5 (same); Exh. 9
(EA 12) (sportspeople “are concerned with ATV/OHV use in the area . . . and the affects [sic] on
wintering mule deer”); Exh. 13 (EA 112) (“recreation use has contributed to the spread of weed and
livestock conflicts”); Exh. 10 (EA 72) at 5 (OHV use); Exh. 12 (EA 73) (“recreation use levels are
moderate, but increasing”); Exh. (11) EA 70 at 4 (“recreation use with the analysis area has
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 21
contributed to the spread of weeds. The majority of the analysis area has been designated as open
to OHV use”); EA 102 (“Soil losses occur on Mercur Canyon and Pole Canyon allotments due to
uncontrolled off road vehicle use. OHV trails crisscross the allotments in the Five Mile Pass area”);
Exh. 18 (EA 14) at 9 (“OHV use in the West Desert is becoming more popular and the increase use
could exacerbate erosional processes and degrade rangeland health”).
Lack of Consideration of Alternatives
59.
In the 2001 EAs, BLM further failed to consider a reasonable range of alternatives
to the proposed grazing authorizations. Many of the EAs simply reject a no grazing alternative, and
fail to address any other meaningful alternative other than “status quo” management, as the
following discussion illustrates:
A.
For example, in EA 108, which analyzed permit renewals affecting 130,000 acres
grazed by 6500 cattle and sheep, BLM mentioned only two alternatives – the proposed action,
“which is also the status quo or no action” alternative; and a “no grazing alternative.” Carter Decl.,
Exh. 16 (EA 108) at 7. However, because it determined that the “no grazing alternative” did not
comply with the land use plan, BLM summarily rejected it, and did not discuss the impacts this
alternative would have on the environment. Id. at 8 (“[t]he no grazing alternative will not be
discussed further”). No alternative between “no grazing” and “status quo” grazing was examined.
Id. Thus, BLM here only considered one “alternative,” namely perpetuation of prior grazing levels
and practices.
B.
BLM took this same approach in EA 82, analyzing only the status quo management
practices regulating 9,700 animals on 263,000 acres, Carter Decl., Exh. 20 (EA 82) at 5 (“proposed
action is the status quo alternative”); in EA 86, covering 22,000 acres and 816 animals, Carter
Decl., Exh. 17 (EA 86) at 8 (proposed action is the “status quo alternative”); in EA 102, for 41,000
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 22
acres and 2,700 cattle and sheep, Carter Decl., Exh. 15 (EA 102) at 11 (the no action alternative “is
the same action as the proposed action”); and in EA 14, addressing 43,000 acres and 922 animals.
Carter Decl., Exh. 18 (EA 14) at 5 (same).
C.
In other EAs, BLM only considered the environmental impacts of the status quo and
one other purported alternative, the proposed action, yet this “alternative” was essentially identical
to the status quo, because it simply approved changes from prior permits that had been
implemented. For example, in EA 72, the only alternative to the status quo that the BLM
considered in its NEPA analysis was one in which “[l]ivestock numbers and season of use would
continued as currently permitted on the allotments.” Carter Decl., Exh. 10 (EA 72) at 9.
D.
In EA 73, the proposed action closely mimics the status quo as well. Carter Decl.,
Exh. 12 (EA 73) at 5-6. As the BLM states, the proposed action differs from the status quo in only
two ways. First, the proposed action would change use on one allotment from 1,064 AUMs of
cattle use and 922 AUMs of sheep use to 2,395 AUMs of sheep use. Id. at 5. Importantly, BLM
concedes “[t]his change has been in effect since 1980.” Id. The only other difference between the
only two alternatives the BLM considered is that the proposed alternative would add 482 AUMs,
673 AUMs, and 244 AUMs to three allotment permits – an action that was approved in a previous
EA, but which BLM failed to incorporate into the permits. Id.
E.
Similarly, in EA 92, BLM analyzed only two alternatives – the status quo and the
proposed alternative, which would fully implement “existing” Allotment Management Plans
(AMPs). Carter Decl., Exh. 14 (EA 92) at 8, 11. The only difference between the two
“alternatives” is that the proposed alternative would implement the “existing” pasture rotation
systems for the various allotments, approved but not fully implemented by BLM. Id. The two
alternatives provide for the same seasons of use and the same number of livestock. Id., at 9-11.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 23
F.
In EA 37, the proposed action is identical to the status quo for five permits. Carter
Decl., Exh. 8 (EA 37) at 14. For the five other permits, various conversions “would be retained,”
id. at 14-15 (for permits 432083 & 432200, conversions “would be retained”), or changes made to
conform with an existing AMP, id. (for permits 432086, 432185, & 432201, changes made to
conform to 1981 AMP).
G.
Finally, BLM considered two alternatives in EA 50, the proposed action and an
alternative – the “status quo” – but that alternative would admittedly violate the Fundamentals of
Rangeland Health regulations, 43 C.F.R. § 4180 et seq., by continuing violation of ecological
standards. See Carter Decl., Exh. 19 (EA 50) at 14 (“Under this alternative, no immediate
actions would be taken to address non-attainment of standards”). The proposed action does not
include reduction in grazing levels; and actually increases grazing levels on the basis of “active
AUMs previously not recorded as active preference.” Id.
Given these facts, as explained below, BLM has violated NEPA and acted in an arbitrary
and capricious fashion when it issued the 2001 permits without any meaningful analysis of the
adverse impacts of livestock grazing upon the public lands and resources of the northern Utah
allotments, and without any genuine consideration of alternatives to maintaining “status quo”
livestock levels and management practices that are continuing to cause serious environmental
harms. Accordingly, the 2001 permits and EAs/FONSIs must be reversed and remanded for
violation of NEPA.
ARGUMENT
I.
STANDARDS OF REVIEW
The APA authorizes judicial review over Plaintiff’s First Claim for Relief that BLM has
violated NEPA. See 5 U.S.C. § 706(2)(A) (establishing standards for judicial review of agency
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 24
action); Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (reviewing NEPA claims under
APA, and reversing EA/FONSI for failure to prepare EIS); Village of Los Ranchos de
Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir. 1992) (en banc) (holding that APA “arbitrary
and capricious” standard applies to NEPA challenges “where the issue is whether the project will
have a significant environmental impact”).
“The APA empowers a reviewing court to hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” Utahns for Better Transportation v. U.S. Department of
Transportation, 305 F.3d 305 F.3d 1152, 1164 (10th Cir. 2002) (reversing and remanding for
inadequate NEPA review). The duty of a reviewing court under this standard is “to ascertain
whether the agency examined the relevant data and articulated a rational connection between the
facts found and the decision made.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574
(10th Cir. 1994), citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43
(1983). In assessing whether agency action is arbitrary, capricious, or contrary to law under the
APA, the reviewing court will engage in a “substantial inquiry” characterized by “a thorough,
probing, in-depth review.” Olenhouse, 42 F.2d at 1574, quoting Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 415 (1971).
The Tenth Circuit has also recently explained that, in the context of NEPA challenges such
as those raised here, “[w]hen we review an EA/FONSI to determine whether an EIS should have
been prepared, we must determine whether the agency acted arbitrarily and capriciously in
concluding that the proposed action ‘will not have a significant effect on the human
environment.’ Thus, our review of an EA/FONSI has a substantive component as well as a
component of determining whether the agency followed procedural prerequisites. If the plaintiffs
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 25
can demonstrate substantively that the [agency’s] conclusion of non-significant effect represents
a ‘clear error of judgment,’ then that conclusion must be reversed.” Davis, 302 F.3d at 1112,
citing Utah Shared Access, 288 F.3d at 1213.
II.
NEPA’S REQUIREMENTS
The National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., is the “basic
national charter for protection of the environment,” and its primary purposes are to insure fully
informed decision-making and to provide for public participation in environmental analyses and
decision-making. The Council on Environmental Quality (CEQ) has promulgated regulations
implementing NEPA that are binding on all federal agencies. See 40 C.F.R. §§ 1500 et seq.
NEPA’s “sweeping” commitment is to “prevent or eliminate damage to the environment
and biosphere by focusing government and public attention on the environmental effects of the
proposed agency action.” Marsh v. ONRC, 490 U.S. 360, 371 (1989). NEPA thus commands that
federal agencies take a “hard look” at the environmental consequences of their proposed actions.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Colorado Environmental
Coalition v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999).
To take this “hard look,” NEPA establishes the core requirement that federal agencies must
prepare an Environmental Impact Statement (EIS) prior to undertaking any major federal action that
may have significant environmental effects. 42 U.S.C. § 4332(2)(C); Utahns for Better
Transportation, 305 F.3d at 1162. In addition, the “hard look” requires federal agencies to consider
a full range of reasonable alternatives to the proposed action. See 42 U.S.C. § 4332(2)(c)(iii); 40
C.F.R. § 1502.14; Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988), cert. denied, 489
U.S. 1066 (1988).
NEPA requires the preparation of an EIS where either the individual or cumulative impacts
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 26
of a project may be significant. See 40 C.F.R. §§ 1508.7; 1508.25(a)(2); 1508.27; Davis v. Mineta,
302 F.3d at 1125-26. A “[c]umulative impact is the impact on the environment which results from
the incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency . . . or person undertakes such actions.” 40 C.F.R. §
1508.7. Importantly, “[c]umulative impacts can result from individually minor but collectively
significant actions taking place over a period of time.” Id.; see also 40 C.F.R. § 1508.27(b)(7)
(determination of significance requires consideration of, inter alia, “[w]hether the action is related
to other actions with individually insignificant but cumulatively significant impacts”); see also
Sierra Club v. Penfold, 857 F.2d 1303, 1307 (9th Cir. 1988) (“If, when these cumulative or
synergistic impacts are analyzed, there are ‘substantial questions’ as to whether the impacts may be
collectively significant, an Environmental Impact Statement (EIS) must be prepared”).
In addition, the NEPA regulations caution that an agency cannot avoid preparing an EIS
through “segmentation” of its proposed actions – i.e., by “breaking” an action “down into small
component parts.” 40 C.F.R. § 1508.27(b)(7). Similarly, an agency “should” treat cumulative
actions, “which when viewed with other proposed agency actions have cumulatively significant
impacts,” in a single EIS. 40 C.F.R. § 1508.25(a)(2). An agency should also consider “[s]imilar
actions,” such as those with “common timing or geography” in a single EIS, particularly when
doing so is the “best way to assess adequately the combined impacts of similar actions or
reasonable alternatives to such actions.” 40 C.F.R. § 1508.25(a)(3). Federal agencies also must
prepare an EIS when a proposed action is controversial, scientifically uncertain, or “substantial
questions” exist over whether the action may have significant environmental effects. 40 C.F.R. §
1508.27(b)(4) & (5).
Where an agency is unsure whether the impacts of a proposed action may be “significant,”
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 27
the agency can first prepare an environmental assessment (EA) to determine whether an EIS is
necessary. 40 C.F.R. § 1501.4(b) & 1508.9; Davis v. Mineta, 302 F.3d at 1111. An EA is a
“concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a finding of no significant
impact.” 40 C.F.R. § 1508.9(a), quoted in Davis, 302 F. 3d at n. 3. Only if an EA shows that the
action will not significantly affect the environment may the agency avoid an EIS, by issuing a
Finding of No Significant Impact (FONSI). Davis, 302 F.3d at 1111-12; National Audubon Soc’y
v. Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (“It is only when the proposed action ‘will not have a
significant effect on the environment’ . . . that an EIS is not required”); National Parks &
Conservation Association v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (“if the EA establishes that
the agency’s action may have a significant effect upon the . . . environment, an EIS must be
prepared”). Otherwise, if the agency cannot rule out significant environmental impacts occurring as
a result of the project, it must complete an EIS. Id.
An agency “cannot avoid its statutory responsibilities under NEPA by merely asserting that
an activity it wishes to pursue will have an insignificant effect on the environment.” Steamboaters
v. FERC, 759 F.2d 1393 (9th Cir. 1985). If an agency decides an EIS in not necessary, “it must
supply a ‘convincing statement of reasons’ to explain why a project’s impacts are insignificant.”
Blue Mountains, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th
Cir. 1988)). Said another way, “[w]hen the determination that a significant impact will or will not
result from the proposed action is a close call, an EIS should be prepared.” National Audubon
Soc’y, 132 F.3d at 13; accord Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973); 40
C.F.R. §§ 1508.27(b)(4), (8) & (9).
In order to prevail on a claim that an agency is required to prepare an EIS, rather than rely
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 28
on an EA and FONSI, “a plaintiff need not show that significant effects will in fact occur” –
instead, it is enough for the plaintiff to raise “substantial questions whether a project may have a
significant impact.” Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998), cert. denied Malheur Lumber Co. v. Blue Mountain Biodiversity Project, 527 U.S. 1003
(1999) (citing Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)).
III.
BLM VIOLATED NEPA BY FAILING TO TAKE A “HARD LOOK” AT
ENVIRONMENTAL EFFECTS OF THE 2001 GRAZING PERMITS, AND
FAILING TO PREPARE AN EIS
These NEPA requirements are applicable here, first, because BLM has failed to take the
required “hard look” at environmental impacts of livestock grazing under the 2001 permits. Very
similar to the agency actions reversed by the Tenth Circuit in Davis v. Mineta, 302 F.3d 1104 (10th
Cir. 2002), and Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1229 (10th Cir.
2002), here BLM has sought to avoid preparing an EIS by instead relying on deficient EAs/FONSIs
that fail to address the many adverse ecological impacts – both direct and cumulative – that
livestock grazing will continue to have under the “status quo” management authorized by the 2001
permits. Accordingly, the Court should hold that BLM was arbitrary and capricious in relying on
the EAs/FONSIs, and in failing to prepare an EIS before issuing the northern Utah permits.
A.
BLM Has Ignored Direct and Cumulative Impacts Of The 2001
Permits, Which Should Be Evaluated Through An EIS.
Again, NEPA requires the preparation of an EIS where either the individual or cumulative
impacts of a project may be significant. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1508.7,
1508.25(a)(2) & 1508.27; Davis v. Mineta, 302 F.3d at 1125-26. An agency cannot avoid studying
direct and cumulative impacts by relying on an EA/FONSI that fail to assess the likely occurrence
of such impacts. Id.
Here, as discussed at length in the Statement of Facts above, the record reveals beyond any
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 29
reasonable dispute that there will be both individual and cumulative adverse impacts from livestock
grazing under the 2001 permits, which BLM has failed to address in any meaningful way in its
EAs/FONSIs, and for which preparation of an EIS is required under NEPA. The 2001 permits
authorize livestock grazing by 74,300 cattle and sheep upon nearly 1.5 million acres of sensitive
public lands for the next ten or more years; and this level of grazing, both through the individual
permits and on a cumulative basis across the landscape, will have extensive direct and cumulative
environmental effects upon soils, vegetation, water quality, riparian areas, wildlife habitat, and
many wildlife species present in the affected area. See Statement of Facts, supra, ¶¶ 6-28, 37-58.
As a matter of law, given the record before the Court, BLM cannot shield itself by relying
on the 2001 EAs/FONSIs to assert that there will be no significant direct or cumulative effects from
the grazing. The agency previously acknowledged, in the Randolph and Box Elder land use plans
of the 1980s, that livestock grazing has caused adverse impacts to water quality, riparian habitat,
soils, and other resources of the area. Statement of Facts, ¶¶ 38-39. The scientific literature and
monitoring reports submitted by WWP to BLM during the 2001 permit process further demonstrate
that livestock grazing has caused, and will continue cause, direct and cumulative adverse impacts
upon soils, vegetation, riparian areas and streams, water quality, habitat values, and wildlife
populations of the affected areas in many different ways. Id., ¶¶ 18-28. And where BLM has
undertaken resource assessments of various allotments in recent years, its staff likewise found many
adverse impacts on streams, vegetation, and other values, including violations on specific
allotments of the Fundamentals of Rangeland Health standards and guidelines. Id., ¶¶ 40-58.8
In short, the record before the Court shows unmistakably that streams and springs of the
8
Moreover, OHV and other uses are having cumulative impacts with grazing upon resources such
as wildlife habitat, soils and vegetation, as BLM has acknowledged. Statement of Facts, ¶ 58.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 30
northern Utah allotments are ailing. Upland wildlife habitat is in poor condition. Soil loss is
occurring, jeopardizing water quality and fisheries. Exotic weeds are invading native plant
communities. Vegetation is being overutilized. And cultural resources are vulnerable wherever
cattle congregate. Statement of Facts, ¶¶ 6-28, 37-58. Livestock grazing on the 1.5 million acres of
public lands at issue here thus will have significant direct as well as indirect and cumulative
environmental impacts, according to the agency’s own studies and data, as well as independent
science and data – even if BLM was unwilling to acknowledge those impacts when defendant
Carpenter approved the EAs/FONSIs.
BLM’s disregard of the well-documented environmental impacts of grazing to avoid
preparing an EIS here thus constitutes classic arbitrary and capricious agency action that must be
reversed for violating NEPA, just as the Tenth Circuit did in Davis v. Mineta and Middle Rio
Grande Conservancy Dist. v. Norton, supra.
B.
Caselaw Underscores The Significant Environmental Impacts Of Grazing
BLM’s failure to prepare any EIS here also flouts three decades of NEPA caselaw. Given
the well-established scientific and agency data showing environmental impacts of grazing upon
public lands in the arid West, the courts have repeatedly recognized that these impacts require
evaluation under NEPA through preparation of EIS. See, e.g., NRDC v. Morton, 388 F. Supp.
829 (D.D.C. 1974), aff'd per curiam, 527 F.2d 1386 (D.C. Cir. 1976); NRDC v. Hodel, 624 F.
Supp. 1045 (D. Nev. 1985), aff'd 819 F.2d 927 (9th Cir. 1987); NRDC v. Hodel, 618 F. Supp.
848, 872-73 (E.D. Cal. 1985) (all affirming BLM duties to prepare EISs to evalute grazing
impacts); Idaho Watersheds Project v. Hahn, 307 F. 3d 815 (9th Cir. 2002) (affirming interim
injunctive relief where BLM found to violate NEPA in issuing grazing permits).
For example, in the landmark case of NRDC v. Morton, the D.C. Circuit upheld the
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 31
district court's determination that BLM's issuance and renewal of grazing permits constitutes a
"major federal action significantly affecting the quality of the human environment" within the
meaning of NEPA. The Morton court emphasized the need for site-specific information in a
NEPA analysis to inform BLM officials in setting the terms and conditions of grazing permits;
and it required BLM to prepare EISs "which discuss in detail the environmental effects of the
proposed livestock grazing, and alternatives thereto, in specific areas of the public lands which
are or will be licensed for such use." 388 F. Supp. at 838-41, aff'd 527 F.2d 1386.
The Interior Board of Land Appeals (IBLA), BLM's highest administrative appeals
tribunal, has itself followed Morton in holding that BLM grazing authorizations on even
individual allotments must comply with NEPA, through site-specific analysis of the impacts of
proposed grazing, evaluation of alternatives, and other NEPA requirements. See National
Wildlife Federation v. BLM, 140 IBLA 85 (1997). There, environmentalists challenged BLM's
failure to perform NEPA analysis in issuing grazing permits on the Comb Wash allotment of the
BLM’s San Juan Resource Area in southern Utah. The IBLA agreed, stating: "The need for a
detailed analysis of the site-specific resources and impacts of grazing on those resources is
explicitly set forth in the case of [Morton, supra]."
Most recently, in a closely analogous case, the U.S. Court of Appeals for the Ninth
Circuit recognized the high value of streams and riparian areas in the arid west, and their
vulnerability to livestock grazing damage, which BLM must adequately study under NEPA. See
Idaho Watersheds Project v. Hahn, 307 F. 3d 815 (9th Cir. 2002) (upholding injunctive relief
imposed for BLM’s failure to perform adequate NEPA review of 68 permits covering 1 million
acres of BLM lands). The court emphasized that: “Water is life, and the health of the Owyhee
depends on the health of its streams. Unfortunately, cattle grazing now threatens the life of the
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 32
Owyhee.” Id., 307 F.3d at 821. The court quoted with approval the district court’s findings
about livestock impacts to streams and riparian areas, as follows:
These livestock. . . tend to congregate near water. Riparian areas – lands adjacent to
streams that support a thicker growth of vegetation – are crucial to the wildlife and fish of
the [area]. Fish thrive in streams near healthy riparian areas because vegetation stabilizes
the stream banks, keeping sediment out of the water and providing shade that cools the
water. Although these riparian areas constitute only 1% of the [Owyhee area] acreage,
wildlife congregate there in much greater concentrations than in any other habitat in the
[area].
When riparian vegetation is overgrazed, lush stream banks turn to bare dirt. Trampled by
livestock, the dirt banks crumble into nearby waterways. Water quality deteriorates and
water temperatures rise, creating adverse conditions for fish. The stream bank erosion
prevents plant growth, ensuring further erosion, and destroying wildlife habitat. In this way,
overgrazing ruins not only the habitat benefits of riparian areas, but also the grazing benefits
of the ORA.
307 F.3d at 821.
The situation presented in this case is little different. BLM’s prior studies, and the extensive
scientific literature and data presented by WWP, all confirm that livestock grazing on the northern
Utah allotments can and has caused severe resource degradation. Statement of Facts, ¶¶ 6-26, 3758. BLM has violated NEPA by failing to fully study those impacts through an EIS, and instead
pronouncing summarily (through the inadequate EAs/FONSIs) that grazing will have no significant
impact. Accordingly, the 2001 permits, and the EAs/FONSIs on which they are based, must be
reversed and remanded.
C.
At A Minimum, “Uncertainty” And ‘Controversy” Required An EIS
At a minimum, WWP has demonstrated that an EIS was required here to fully ascertain
the possible environmental impacts of livestock grazing under the 2001 permits.
In determining whether an EIS is required because a proposed action may have
“significant” effects, the NEPA regulations list several factors an agency must consider,
including the degree to which the effects on the environment are “uncertain” or “likely to be
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 33
highly controversial.” 40 C.F.R. § 1508.27(b). The presence of any of the “significance” factors
listed in 40 C.F.R. § 1508.27 raise a substantial question regarding the impacts of the project,
thus warranting preparation of an EIS. See National Parks & Conservation Asso., 241 F.3d at
731 (“[e]ither of these [significance] factors may be sufficient to require preparation of an EIS in
appropriate circumstances”) (citing Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1193-94
(9th Cir. 1988); Blue Mountains, 161 F.3d at 1212-14).
“Controversy in the NEPA context does not necessarily denote public opposition to a
proposed action, but a substantial dispute as to the size, nature, or effect of the action.” Middle
Rio Grande Conservancy Dist. v. Norton, 294 F.3d at 1229 (citing Wetlands Action Network v.
U.S. Army Corps of Engineers, 222 F.3d 1105, 1122 (9th Cir. 2000)). “A substantial dispute
exists when evidence, raised prior to the preparation of an EIS or FONSI, casts serious doubt
upon the reasonableness of an agency’s conclusions.” National Parks & Conservation, 241 F. 3d
at 736 (internal citation omitted). When doubt is cast on the agency’s conclusions, the burden
shifts to the agency to provide a “well-reasoned explanation” why the responses disputing the EA
have not created a public controversy sufficient to require an EIS. Id. (quoting LaFlamme v.
FERC, 852 F.2d 389, 401 (9th Cir. 1988)).
Here, BLM’s own EAs and the other Administrative Record materials before the Court
demonstrate that the “uncertainty” and “controversy” factors are squarely presented, mandating
preparation of an EIS. As noted above, BLM repeatedly acknowledged in its 2001 EAs that it
lacked current monitoring data or resource information about conditions of soils, vegetation,
water quality, and other resources in order to determine the effects of livestock grazing – yet it
still proposed to simply extend “status quo” grazing levels and practices for the vast majority of
the 2001 permits. Statement of Facts, supra, ¶¶ 29-36 & 59. BLM thus effectively concedes
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 34
that, from its viewpoint, there is great uncertainty about what the specific adverse impacts of
grazing may be on the northern Utah allotments.
Preparation of an EIS is also mandated where uncertainty may be resolved by further
collection of data, see Blue Mountains, 161 F.3d at 1213-14 (lack of supporting data and cursory
treatment of environmental effects in EA does not support refusal to produce EIS), or where the
collection of such data may prevent “speculation on potential . . . effects. The purpose of an EIS
is to obviate the need for speculation by insuring that available data are gathered and analyzed
prior to the implmentation of the proposed action.” Sierra Club, 843 F.2d at 1195.
Again, the BLM has failed to collect the data necessary to resolve the uncertainty that
surrounds the potential significant impact of livestock grazing on the vegetation and soils of the
lands encompassed by the 2001 EAs. As a result, an EIS is mandated. National Parks &
Conservation Asso., 241 F.3d at 732 (EIS mandated where uncertainty may be resolved by
further collection of data or where collection of data may prevent speculation).
IV.
BLM HAS IMPROPERLY SEGMENTED ITS ANALYSIS
Reversal and remand is also required here, because procedurally BLM has violated NEPA
by not analyzing the related 2001 permits in a single EIS; and instead has improperly
“segmented” its analysis into the fourteen (or more) separate EAs, thereby ignoring the
overlapping or interrelated impacts of its permit actions.
As noted in Section II above, NEPA requires that federal agencies evaluate in a single EIS
the environmental impacts of proposed actions that are “similar,” meaning they have “common
timing or geography,” or when they may have cumulatively significant impacts. 40 C.F.R. §
1508.25(a)(2)-(a)(3) & § 1508.27(b)(7). Courts have frequently reversed when agencies have
sought to avoid analyzing similar actions or their cumulatively significant impacts by “segmenting”
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 35
the proposed actions into small pieces for analysis. See, e.g., See Thomas v. Peterson, 753 F.2d
754 (9th Cir. 1985) (reversing for failing to analyze impacts of related road and logging projects
together); Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1160-61 (9th Cir. 1997)
(reversing because agency failed “both to catalogue adequately past projects in the area, and to
provide useful analysis of the cumulative impact of past, present and future projects and the
[proposed project]”); Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir. 1988) (when
projects have a potential for cumulative harm, an “assessment of connected actions is necessary
even if the impact of the proposed action is not significant”).
Here, BLM has violated NEPA by doing exactly that – it has divided its analysis of the
2001 permits into over fourteen different EAs/FONSIs, in order to conclude that the permitted
grazing will have no significant impact on the environment, and hence no EIS is required. This
is despite the fact that all the permits were assessed and issued by the BLM’s Salt Lake Field
office in exactly the same timeframe, i.e., summer 2001, and the permits together authorize
grazing across 1.5 million acres of public lands all managed by the Salt Lake Field office in
northern Utah sharing many overlapping resource, habitat and wildlife values. Yet nowhere has
BLM ever recognized these facts – or the cumulative impacts that grazing across these allotments
will have for habitat and wildlife conditions.
In other words, the 2001 permits are “similar actions” that have “common timing and
geography” and “cumulatively significant impacts” under the NEPA regulations, demonstrating
that a single EIS was required. By ignoring the fact that these actions are similar and have
overlapping impacts, BLM has acted in an arbitrary and capricious manner. Accordingly, by
segmenting the 2001 permits into sub-groupings of allotments for analysis through EAs/FONSIs,
BLM has violated NEPA here; and the 2001 permits again must be reversed and remanded.
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 36
V.
BLM FAILED TO CONSIDER A REASONABLE RANGE OF
ALTERNATIVES
Additionally, the 2001 permits must be reversed and remanded because BLM has violated
another of NEPA’s core requirements – the command that agencies examine a reasonable range of
alternatives to their proposed actions. 42 U.S.C. § 4322(2)(E); 40 C.F.R. § 1508.9. The
consideration of alternatives lies at the “heart” of NEPA’s requirements. See 40 C.F.R. § 1502.14.
The range of alternatives should "sharply [define] the issues and [provide] a clear basis for choice
among options by the decisionmaker and the public." Id. A “viable but unexamined alternative
renders [the environmental analysis] inadequate.” Muckleshoot Indian Tribe v. USFS, 177 F.3d
800, 814 (9th Cir. 1999); quoting Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057
(9th Cir. 1985). See also California v. Block, 690 F.2d 753, 765-69 (9th Cir. 1982) ("consideration
of alternatives which lead to the same results is not sufficient under NEPA”).
Even where an EA is prepared rather than an EIS, a “properly-drafted EA must include a
discussion of appropriate alternatives to the proposed project.” Davis v. Mineta, 302 F.3d at 1120.
In Davis, the Tenth Circuit rejected an EA that analyzed only two alternatives – the proposed
project (a highway interchange and bridge), and the “no action alternative.” Id. The court reiterated
that even in the context of an EA, while the agency need not consider alternatives that are “remote,
speculative, impractical or ineffective,” id. at 1121, it still must “study, develop and discuss
appropriate alternatives” to the proposed project. Id. at 1120, citing 42 U.S.C. § 4332(2)(E) & 40
C.F.R. § 1508.9(b).
As in Davis, the 2001 EAs here similarly fail to give serious consideration to
“appropriate” alternatives to the proposed action. As discussed in the Statement of Facts above,
in five of the EAs BLM did not consider any alternative to the proposed action of continuing
existing grazing practices without any alteration at all. This is because, in these EAs, the
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 37
proposed action was “also the status quo or no action.” See Statement of Facts, supra, ¶ 59.
For other EAs, the agency briefly mentioned but then immediately dismissed a “no grazing
alternative,” without any consideration. Id. For the other EAs, BLM considered the
environmental impacts of the status quo and one other so-called alternative – the proposed action,
which was essentially identical to the status quo. Id. Thus, BLM has again effectively considered
only a single alternative in these EAs.
Even where BLM purported to consider any alternative to just maintaining “status quo”
grazing, it failed to address any real alternatives at all. Never did BLM consider a reduction of
livestock numbers (or AUMs) for the vast majority of the allotments. Never did BLM consider
excluding livestock from sensitive, or unsuitable, areas of the allotments. Only rarely, and in minor
ways, do the proposed actions include a change in the season of use for the allotments. Id.
In short, by failing to consider a meaningful range of alternatives to the proposed action –
i.e., alternatives that actually contemplate a variety of management responses to improve the
currently degraded resource conditions – BLM has again failed its NEPA obligations to “study,
develop and discuss appropriate alternatives” to the proposed project; and hence again the 2001
permits must be reversed and remanded. Davis v. Mineta, 302 F.3d at 1120.
CONCLUSION
For the foregoing reasons, WWP respectfully prays that the Court enter judgment in its
favor on its First Claim for Relief, and reverse and remand the 2001 permits and supporting
EAs/FONSIs for violating NEPA. Plaintiff further reserves the right to seek additional interim
relief during the period of remand.
DATED this ___ day of April, 2003.
Respectfully submitted,
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 38
__________________________________
Joro Walker
Laird J. Lucas
Attorneys for WWP
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 39