Jun 092015
 

WOTUS rule also targeted

The House Appropriations Committee's proposed spending bill for the Department of the Interior would remove gray wolves in Wyoming and the Great Lakes from the list of threatened and endangered species.

The bill also would delay for a year any decision on listing of the greater sage-grouse by prohibiting the spending of any money on a proposal for the bird. Presumably, however, the Fish and Wildlife Service could continue to work on the matter.

The committee issued a press release this morning. The full text of the bill is here.

The Center for Biological Diversity was quick to criticize the bill. Brett Hartl, CBD's endangered species policy director, called it "another cynical attack on science and the Endangered Species Act that will result in wolves being mindlessly slaughtered in the few places where they have begun to recover."

Here is the text of some riders in the bill:

SAGE-GROUSE

SEC. 117. None of the funds made available by this or any other Act may be used by the Secretary of the Interior to write or issue pursuant to section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533)—

(1) a proposed rule for greater sage-grouse (Centrocercus urophasianus);

(2) a proposed rule for the Columbia basin distinct population segment of greater sage-grouse.

IVORY

SEC. 120. None of the funds made available by this or any other Act may be used to draft, prepare, implement, or enforce any new or revised regulation or order that—

(1) prohibits or restricts, within the United States, the possession, sale, delivery, receipt, shipment, or transportation of ivory that has been lawfully imported into the United States;

(2) changes any means of determining, including any applicable presumptions concerning, when ivory has been lawfully imported; or

(3) prohibits or restricts the importation of ivory that was lawfully importable into the United States as of February 1, 2014.

REISSUANCE OF FINAL RULES [GRAY WOLF]

SEC. 121. Before the end of the 60-day period beginning on the date of the enactment of this Act, the Secretary of the Interior shall reissue the final rule published on December 28, 2011 (76 Fed. Reg. 81666 et seq.) and the final rule published on September 10, 2012 (77 Fed. Reg. 55530 et seq.), without regard to any other provision of statute or regulation that applies to issuance of such rules. Such reissuances (including this section) shall not be subject to judicial review.

NORTHERN LONG-EARED BAT

SEC. 122. Before the end of the 60-day period beginning on the date of the enactment of this Act, the Secretary of the Interior shall amend the interim rule pertaining to the northern long-eared bat published by the Department of the Interior in the Federal Register on April 2, 2015 (80 Fed. Reg. 17974 et seq.), only in such a way that—

(1) take incidental to any activity conducted in accordance with the habitat conservation measures identified at pages 18024 to 18205 of volume 80 of the Federal Register (April 2, 2015), as applicable, is not prohibited; and

(2) the public comment period for such interim rule is reopened for not less than 90 days.

WATERS OF THE UNITED STATES

SEC. 422. None of the funds made available in this Act or any other Act for any fiscal year may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.), including the provisions of the rules dated November 13, 1986, and August 25, 1993, relating to said jurisdiction, and the guidance documents dated January 15, 2003, and December 2, 2008, relating to said jurisdiction.

STREAM BUFFER

SEC. 423. None of the funds made available by this Act may be used to develop, carry out, or implement

(1) any guidance, policy, or directive to reinterpret or change the historic interpretation of 30 C.F.R. 816.57, which was promulgated on June 30, 1983 by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior (48 Fed. Reg. 30312); or (2) proposed regulations or supporting materials described in the Federal Register notice published on June 18, 2010 (75 Fed. Reg. 34667) by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior.

LIMITATION ON USE OF FUNDS FOR NATIONAL OCEAN POLICY

SEC. 425. None of the funds made available by this Act may be used to further implementation of the coastal and marine spatial planning and ecosystem-based management components of the National Ocean Policy developed under Executive Order 13547.

DEFINITION OF FILL MATERIAL

SEC. 429. None of the funds made available in this Act or any other Act may be used by the Environmental Protection Agency to develop, adopt, implement, administer, or enforce any change to the regulations in effect on October 1, 2012, pertaining to the definitions of the terms ‘‘fill material’’ or ‘‘discharge of fill material’’ for the purposes of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

CHESAPEAKE BAY INITIATIVE

SEC. 431. Section 502(c) of the Chesapeake Bay Initiative Act of 1998 (Public Law 105–312; 16 U.S.C. 461 note) is amended by striking ‘‘2015’’ and inserting ‘‘2017.’’

EXTENSION OF GRAZING PERMITS

SEC. 432. The terms and conditions of section 325 of Public Law 108–108 (117 Stat. 1307), regarding grazing permits issued by the Forest Service on any lands not subject to administration under section 402 of the Federal Lands Policy and Management Act (43 U.S.C. 1752), shall remain in effect for fiscal year 2016.

AVAILABILITY OF VACANT GRAZING ALLOTMENTS

SEC. 433. The Secretary of the Interior, with respect to public lands administered by the Bureau of Land Management, and the Secretary of Agriculture, with respect to the National Forest System lands, shall make vacant grazing allotments available to a holder of a grazing permit or lease issued by either Secretary if the lands covered by the permit or lease or other grazing lands used by the holder of the permit or lease are unusable because of drought or wildfire, as determined by the Secretary concerned. The terms and conditions contained in a permit or lease made available pursuant to this section shall be the same as the terms and conditions of the most recent permit or lease that was applicable to the vacant grazing allotment made available. Section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) shall not apply with respect to any Federal agency action under this section.

PROTECTION OF WATER RIGHTS

SEC. 434. None of the funds made available in this or any other Act may be used to condition the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement on the transfer of any water right, including sole and joint ownership, directly to the United States, or any impairment of title, in whole or in part, granted or otherwise recognized under State law, by Federal or State adjudication, decree, or other judgment, or pursuant to any interstate water compact. Additionally, none of the funds made available in this or any other Act may be used to require any water user to apply for or acquire a water right in the name of the United States under State law as a condition of the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement.

Mar 022015
 

Background from WWP

The Bureau of Land Management must go back and try to explain its decision to allow grazing on the Sonoran Desert National Monument, a federal judge has ruled (Western Watersheds Project v. BLM, 13-1028-PHX-PGR, D. Ariz.).

"The BLM has been ordered to file a supplemental report providing the reasoned explanations for its decision or to adopt different decisions by April 24, 2015," said Western Watersheds Project in a news release.

Sierra Club sued BLM with WWP.

“It is clear that the continued livestock grazing in the Sonoran Desert National Monument is unsustainable --  the science supports that,” said Sandy Bahr, Chapter Director for the Grand Canyon (Arizona) Chapter of Sierra Club. “The court recognized that BLM was not meeting its requirements to justify grazing on lands where it is clearly inappropriate and where it causes harm to the things the monument was established to protect, including desert bighorn sheep, pronghorn, desert tortoise, and mule deer."

According to U.S. District Judge Paul Rosenblatt's order (excerpts follow):

"In sum, BLM did not provide an adequate explanation in the record to support its setting of, and/or adustments to, the objectives for the limy fan, sandy wash, limy upland deep, and granitic hills ecological sites. BLM’s setting of these plant community objectives was therefore arbitrary and capricious."

"The Court will therefore grant summary judgment in favor of WWP to the extent it seeks remand to the BLM, but will deny summary judgment, without prejudice to renewal, to the extent WWP seeks to vacate BLM’s decision. The Court will deny BLM’s motion for summary judgment without prejudice to renewal. The Court will remand to BLM to provide it with the opportunity to either articulate reasoned explanations and responses, or adopt different decisions with reasoned explanations that support them."

"For all of the reasons stated above, the Court concludes that BLM has failed to adequately explain some of its decisions that led to the [Land Health Evaluation] and compatibility determinations, and failed to address significant concerns raised in a peer  reviewer’s comments. The LHE is therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)."

"However, it appears that BLM may be able to readily cure the defects in its decision-making process if given an opportunity to do so. Accordingly, the Court finds that this is one of those “rare circumstances” in which remand without vacatur is appropriate."

Apr 252012
 

The Ninth Circuit has invalidated $183,160 in attorney fees that had been awarded to Western Watersheds Project for work the group did in the Interior Board of Land Appeals, prior to filing a lawsuit in federal court in Idaho (Western Watersheds Project v. U.S. Dep't of the Interior, 10-35836).

In its ruling today (Wednesday, April 25), the appeals court said U.S. District Court Judge B. Lynn Winmill had relied incorrectly on a 1989 Supreme Court decision that dealt with "a very unusual type of social security case" (Sullivan v. Hudson, 490 U.S. 877, 1989). In that decision, the court found that fees could be awarded for administrative proceedings under § 2412(d)(1)(A) if the administrative proceedings were “intimately tied to the resolution of the judicial action,” and “necessary to the attainment of the results Congress sought to promote by providing for fees.”

Relying upon this language, the district court here awarded fees incurred in the administrative proceedings. It reasoned that the administrative proceedings were “intimately tied” to its resolution of the district court action because the court was called upon to review the administrative proceedings and relied upon the record compiled by WWP before the ALJ. It concluded that WWP should be compensated for that work as well as the work done in district court. Under its reasoning, fees would be recoverable for most administrative  proceedings in which the district court relies on the administrative record.

But Hudson is a different type of case, the Ninth Circuit said. And, it added, the Supreme Court has subsequently clarified and narrowed the exception to the general rule prohibiting the award of fees for administrative proceedings.

The Court, within two years after Hudson, emphasized that because [the Equal Access to Justice Act] is a partial waiver of sovereign immunity it “must be strictly construed in favor of the United States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). Following this principle, the Court has stated consistently that fees for administrative proceedings can only be awarded under § 2412(d)(1)(A) if the district court ordered the further proceedings, and the district court action remained pending until the conclusion of the administrative proceedings. See Melkonyan v. Sullivan, 501 U.S. 89, 96-97 (1991).

The court said its own decisions have narrowly construed Hudson, and that Congress "has spoken directly to the subject of fees for administrative grazing-permit proceedings and has
rejected them. Section 504(a) allows administrative fee awards to prevailing parties in administrative proceedings that involve 'adversary adjudications,' but goes on to exclude
licensing proceedings."

More links coming...