The Bureau of Land Management must look closely at the impact of grazing on greater sage-grouse, U.S. District Judge B. Lynn Winmill ruled Monday, Sept. 29 (Western Watersheds Project v. Jewell, 08-435-BLW, D. Id.).
Western Watersheds Project called the decision a “big win” and said it’s significant for a few reasons.
“Judge Winmill found that the BLM violated the National Environmental Policy Act (NEPA) by failing to properly disclose the cumulative impacts of its decisions and by failing to consider ending grazing on the allotments in any of the alternatives to proposed management,” WWP said in its press release.
“Moreover, Judge Winmill ruled that the BLM must include mandatory terms and conditions to protect sage-grouse, including specific restrictions to address such things as stubble height, stream bank alteration, and utilization. Voluntary measures will not serve.”
The judge also said BLM cannot avoid evaluating grazing permits under the Federal Land Policy and Management Act, notwithstanding the passage of a congressional rider that exempts permit renewals from NEPA review.
“While § 325 [the congressional rider] tolls the BLM’s obligation to proceed with environmental obligations imposed by laws like NEPA, it carves out an exception for FLPMA and requires a continuing obligation to follow that statute,” Winmill wrote.
“BLM is still obliged to consider ongoing environmental degradation and comply with the Fundamentals of Rangeland Health,” said WWP. “This is an important precedent because the BLM has a bad habit of allowing harmful status quo grazing to continue while it defers NEPA analysis.”
Winmill did not halt grazing while BLM “makes the changes dictated by this decision.”
Cumulative impacts – Page 14
“The cumulative impacts analysis in the EA at issue in round two suffers from the same flaws. Once again the sage grouse habitat is degraded – three of the four allotments violated the FRH Standard 8, the Sensitive Species Standard. The cumulative impacts section contains no real discussion of the conditions of sage-grouse in these surrounding allotments.
“This failure is all the more acute because, as will be discussed further below, the BLM is avoiding environmental reviews for many permit renewals. For permits renewed under the 2003 grazing rider, the BLM has taken the position that it need not do any NEPA or FLPMA review. The BLM has now renewed over 150 permits under the rider without any environmental review. The effect of unexamined permit renewals in the area would be critical to determining cumulative impacts.
“The Court recognizes that it must scour the entire EA to determine if the cumulative impact analysis could be enhanced by reading the EA in its entirety and not just focusing on the section labeled “Cumulative Impacts.” See Ctr. for Envtl. Law & Policy v. U.S. BOR, 655 F.3d 1000 (9th Cir. 2011). But the necessary cumulative impacts discussion cannot be found anywhere in the EA.
“For all of these reasons the Court finds that the EA evaluating the four allotments at issue here violated NEPA by failing to contain an adequate cumulative impacts analysis.
NEPA – Failure to Consider Alternatives Including No-Action Alternative – Page 15
“This Court held in its decision on the first round of motions that the failure to consider alternatives to the existing grazing levels, and the failure to evaluate a no-grazing alternative, violates NEPA. WWP v. Salazar, supra.
“In this case, the EA failed to identify reasonable alternatives. The existing grazing levels were contributing to sage grouse habitat degradation and yet the EA evaluated no alternative that would have reduced grazing levels and/or increased restrictions on grazing. The Ninth Circuit has recently struck down a NEPA analysis where each alternative permitted grazing at the same level. WWP v. Abbey, 719 F.3d 1035 (9th Cir. 2013). For the same reason, the EA in this case violated NEPA.”
Grazing rider – page 18
The parties identify 9 permits that were renewed under the terms of the 2003 grazing rider contained in § 325 of Public Law 108-108. All of these permits govern grazing on allotments outside the Jim Sage allotments. The BLM’s Burley Field Office has used the grazing rider to renew grazing permits without doing any NEPA or FLPMA review in 168 of 200 allotments since 2005.
More quotes from decision
Winmill noted that BLM’s 2001 Special Status Species Policy requires that “sensitive” species “be afforded, at a minimum, the same protections as candidate species for listing under the ESA, and makes BLM Field Office managers responsible for implementing the policy.” (page 7)
Greater sage grouse populations have been declining for at least 25 years. The 2004 Conservation Assessment, prepared by the leading scientific experts, concluded that every major metric in sage grouse population abundance has declined over the last 50 years. The declining populations are occurring as sage brush habitat disappears. The leading experts concluded in the Idaho Conservation Plan that “[t]he loss and fragmentation of sage-grouse habitat in some parts of Idaho are of major concern.” See Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts. Id. at p. 4-3.” (page 6)