Loper: Grazing decision has potential for far-reaching impacts

When Judge B. Lynn Winmill released his decision on a case involving grazing allotments across Idaho on Sept. 29, Wyoming public lands grazing organizations immediately took notice. 

“Western Watersheds Project appealed some Idaho grazing allotments on a variety of subjects, including whether or not BLM had done assessments using cumulative impact analysis and whether or not the BLM could continue to use the very important ‘permit renewal rider’ to renew grazing permits,” said Dick Loper, grazing consultant for the Wyoming State Grazing Board, noting that the suit could have implications for Wyoming grazers.

Case summary

The lawsuit at hand, Western Watersheds Project (WWP) versus S.M.R. Jewell, secretary of the Department of the Interior, was presented to Winmill for summary judgment. 

J.R. Simplot Co., the Public Lands Council (PLC), Idaho Cattle Association and the National Cattlemen’s Beef Association joined the lawsuit as intervenors for the Defendant. 

“In this lawsuit, WWP has challenged some 600 BLM decisions that allegedly failed to protect sage grouse…” Winmill wrote in the decision summary. “In the first round of litigation, the Court found insufficient the environmental reviews governing grazing permits on five allotments.”

The original case included both Idaho and Nevada BLM grazing allotments, and the cases were severed. Then, parties agreed to use a “staggered” approach to judgment. 

In the first round of decisions, Winmill noted that the five permits in question violated the National Environmental Policy Act (NEPA) because of insufficient cumulative impacts analysis and the Federal Land Policy and Management Act (FLPMA) because the permits were not consistent with Range Management Plans held by BLM. 

Additionally, the decisions violated Fundamentals of Rangeland Health regulations because BLM moved grazing restrictions from mandatory to discretionary.

Second round decisions

Winmill wrote in his Sept. 29 decision, “In this second round, WWP is making many of the same claims against permit renewals for four allotments.”

In the decision, Winmill ruled that the 2001 Congressional rider does not exempt BLM from fully complying with the requirements of the FLPMA. 

Winmill’s decision also noted that NEPA requires BLM to consider alternatives, including a no-grazing alternative. He noted that the Environmental Analysis (EA) failed to identify reasonable alternatives and evaluated no alternative reducing grazing or increasing grazing restrictions.

Regarding the Fundamental of Rangeland Health regulations, Winmill came to the same result as in the first round of decision-making.

As his final finding in the second round, Winmill declined to address the FLPMA issue because BLM is reviewing Range Management Plans in the area.

Cumulative impacts

In particular, Winmill said, “WWP claims that the EA is deficient for failing to adequately analyze cumulative impacts. An EA ‘must fully address cumulative environmental effects or cumulative impacts.’”

Winmill continued that he found the EAs in question failed to discuss existing conditions of sage grouse habitat in populations in surrounding areas. Additionally, he found flaw in the cumulative impact analysis because sage grouse habitat was degraded. 

Winmill went so far as defining the cause of habitat degradation as a result of livestock grazing. 

“For all 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,” he said.

Loper comments, “The cumulative impact issue is a sleeping dog. Winmill ruled that BLM is deficient in cumulative impact, and I think that case will be made by WWP in every BLM grazing document they appeal.” 

Adequate cumulative impact is going to have to be addressed by BLM in every decision in the future, Loper added. 

In reaching these conclusions, Winmill wrote, “The Court will merely remand the matter to the BLM and will not halt grazing in the interim as the BLM makes the changes dictated by this decision.”

Winmill remanded the EA, Finding of No Significant Impact (FONSI) and Final Grazing Decisions back to BLM for further action consistent with his decision.

Industry assessment

“Winmill is trying to legally separate the section of the rider language that says BLM can renew a grazing permit under the current terms and conditions without having to do NEPA until such time they can fully process the permit,” Loper explained, noting that it would be extremely time consuming to add a FLPMA process to the definition of what is or is not a fully processed permit. 

Loper also commented that the language in the permit renewal regulations on exempting BLM from other federal rules and regulations, such as FLPMA, has been viewed as problematic since 2006. Winmill’s ruling confirms his assertion.

On reviewing Winmill’s decision, Dustin Van Liew, executive director of PLC, commented, “The order is directly counter to the very purpose for which Congress has supported the grazing rider for more than a decade – to allow the grazing industry to carry on while the agencies work through a regulatory backlog that is no fault of ranchers.”

Implications

While the decision is only applicable to those Idaho grazing allotments that were contested, Loper noted, “Whatever decision comes out is only applied to that area jurisdiction. However, BLM has shown a tendency to apply federal court decisions BLM-wide.”

“We are concerned about the Ninth Circuit ruling, and the potential is that BLM will accept the ruling and apply it range-wide,” he added.

To exacerbate the anticipated effects, a letter sent from Western Watersheds Project’s lawyer and Advocates for the West Senior Attorney Todd Tucci on Oct. 22 urged Secretary of the Interior Sally Jewell to adopt the ruling as a directive and enforce it across BLM. 

“That is our number one concern – that BLM will, in fact, make sure that portion of the ruling is applied range-wide,” Loper commented. 

Currently, the decision is within the window for appeal. 

In the Oct. 2014 edition of the Public Lands Council’s newsletter, Van Liew commented, “As interveners in the case, PLC, along with NCBA and the Idaho Cattle Association, are planning to file a notice of appeal in order to retain our options on the legal front.”

Van Liew also added that PLC is actively working wit Congress to ensure the rider cannot be misinterpreted going forward. 

“There is no doubt that this ruling will have impacts on the West,” Loper said. “We need to pay a lot of attention to what was said here.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.