PLC will defend grazing regsWritten by Jennifer Womack
“We’re going to appeal with or without the federal government,” said PLC Executive Director Jeff Eisenberg during the early February National Cattlemen’s Beef Association convention in Reno, Nev. “Our lawyers say the law is on our side.”
“PLC intervened on the side of the BLM,” said Best, Best & Krieger attorney Rod Wallston. “That means that the PLC, which represents the cattle industry, is a full party to this litigation.”
At the heart of the lawsuit are six proposed changes that were part of a larger 2006 effort to amend BLM grazing regulations. Idaho-based Western Watersheds Project in the courtroom of Judge Winmill challenged the changes. Largely rolling back amendments made when Bruce Babbitt was Secretary of Interior, the changes would allow grazing permit holders partial ownership of range improvements and keep environmental groups from holding BLM hostage in its decision making efforts. Among other things, the changes would also require that BLM phase in grazing reductions larger than 10 percent over the course of five years.
Winmill, an Idaho-based judge whose courtroom is often sought by environmental groups, in his initial opinion said BLM violated the National Environmental Policy Act (NEPA), the Federal Land Management Policy Act (FLMPA) and the Endangered Species Act when it released the regulations. On each of these points Wallston said “the judge got it wrong.”
In the case of NEPA Wallston pointed out that rulings are limited to whether or not the policy was followed, not whether or not the decision was right. “It can only look at the documents and see whether the agency properly assessed the environmental effects,” said Wallston noting that the judge’s arguments may have missed that mark.
Wallston also noted shortcomings in the ruling as it relates to FLPMA and the ESA. Winmill was critical of the BLM for not consulting with the U.S. Fish and Wildlife Service regarding endangered species, but Wallston argued the changes have no effect on such species.
Wallston said PLC is now waiting on Judge Winmill to issue his final decision, which was released in preliminary form on June 8 of last year. “The Department has not decided whether to appeal,” explained Wallston, but noted that there’s been an indication they won’t take the case forward. They could, however, be brought back in at the request of the courts as the case moves forward.
As the lawsuit moves to the 9th Circuit Court of Appeals, Wallston said it’s the most amiable court of its kind in the land when it comes to environmental plaintiffs. Looking beyond to a potential case before the U.S. Supreme Court, he stated his belief that PLC has a strong case. “They’re very congenial to the argument that federal courts should defer to what the agency has done,” said Wallston. “The odds are good that if we can get to the Supreme Court that justice will ultimately prevail.”