Judith M. Brawer (ISB # 6582)

P.O. Box 1612

Boise, ID 83701

(208) 342-7024

(208) 342-8286 (fax)

Laurence (“Laird”) J. Lucas (ISB # 4733)

P.O. Box 1342

Boise, ID 83701

(208) 424-1466

Attorneys for Plaintiffs Western Watersheds Project

And Committee for the High Desert

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT, and)

COMMITTEE FOR THE HIGH DESERT) Case No. ______

)

Plaintiff, )

)

vs.) Complaint

)

U.S. FOREST SERVICE, and GEORGE )

MATEJKO, Forest Supervisor, Salmon-)

Challis National Forests,)

)

Defendants.)

______)

INTRODUCTION

1.This action seeks judicial relief over the Forest Service’s widespread violations of law in management of livestock grazing on the Salmon-Challis National Forest in Central Idaho. Many ecologically important and sensitive areas of the Forest are seriously degraded through Defendant’s administration of livestock grazing, yet the Forest Service has never even studied the environmental effects of grazing on most Salmon-Challis allotments; and the public is being excluded from resource management decisions.

2.Specifically, the Forest Service is violating the 1995 Rescissions Act[1] (“Rescissions Act”), by failing to adhere to mandatory schedules for completing environmental analyses for livestock grazing allotments throughout the Salmon-Challis National Forest. Defendants are also violating the National Environmental Policy Act, 42 U.S.C. §4321 et seq. (“NEPA”) and its implementing regulations, 40 C.F.R. §1500 et seq., by issuing grazing permits and making important grazing management decisions on allotments throughout the Forest without compliance with NEPA’s environmental analysis or public participation requirements; and by failing to revise their outdated Allotment Management Plans (“AMPs”). In addition, Defendants are violating the National Forest Management Act, 16 U.S.C. §1600 et seq., (“NFMA”) by authorizing livestock grazing on the Salmon-Challis National Forests in violation of Forest Plan standards and grazing permit requirements.

3.Plaintiff thus seeks declaratory and/or injunctive relief, as prayed for below, in order to correct these violations of law while protecting important ecological values from adverse grazing effects.

JURISDICTION AND VENUE

4.Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action arises under the laws of the United States, including the Rescissions Act, NEPA, NFMA, the Equal Access to Justice Act, the Declaratory Relief Act, 28 U.S.C. §§ 2201-2202, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”). An actual, justiciable controversy now exists between Plaintiffs and Defendants, and the requested relief is therefore proper under 28 U.S.C. §§ 2201-2202 and 5 U.S.C. § 701-06.

5.Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because all or a substantial part of the events or omissions giving rise to the claims herein occurred within Lemhi and Custer counties within this judicial district, Defendants reside or do business in said counties within this district, and the public lands and resources in question are located in said counties within this district.

6. The federal government has waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.

PARTIES

7.Plaintiff WESTERN WATERSHEDS PROJECT (“WWP”) is an Idaho non-profit membership organization dedicated to protecting and conserving the public lands and natural resources of watersheds in the American West. WWP has over 1200 members, including many members who live in Idaho. WWP, as an organization and on behalf of its members, is active in seeking to protect and improve the riparian areas, water quality, fisheries, wildlife, and other natural resources and ecological values of western watersheds. WWP and its members actively participate in agency proceedings concerning the Salmon-Challis National Forest and the Forest Service’s management of livestock grazing throughout the Forest, as well as other parts of the Upper Salmon basin and central Idaho.

8.Indeed, WWP has a Central Idaho Project, based at the Greenfire Preserve on the East Fork Salmon River (just outside Challis, Idaho), through which WWP is actively engaged in land restoration, public education and outreach, and advocacy efforts addressing both (a) the adverse effects of livestock grazing upon the public lands and waters, and associated natural resource values of the area; and (b) how grazing exclusion or better management can result in improvement of areas degraded by past livestock grazing.

9.Further, through its Greenfire Preserve, which includes “base property” for Forest Service grazing permits, WWP has proprietary and economic interests in the proper management and administration of livestock grazing on the Salmon-Challis National Forest; and in the equal application of all relevant laws and policies.

10.Plaintiff COMMITTEE FOR THE HIGH DESERT (“CHD”) is a non-profit membership organization located in Boise, Idaho, having about 200 members, which is dedicated to the protection, restoration, and wise use and enjoyment of public lands and high desert resources. Formerly called the “Committee for Idaho’s High Desert,” CHD recently changed its name to reflect its broader mission. As an organization and on behalf of its members, CHD is concerned with and active in seeking to protect and improve the riparian areas, forests, water quality, fisheries, wildlife, and other natural resources and ecological values of the sage-steppe ecosystem of Idaho, Oregon and Nevada, including the Salmon-Challis National Forest and other parts of the Upper Salmon basin. CHD and its staff and members actively participate in agency proceedings concerning the Salmon-Challis National Forest and the Forest Service’s management of livestock grazing throughout the Forest.

11.Plaintiffs’ staff, members, and supporters use and enjoy the waters, public lands, and natural resources of the Salmon-Challis National Forest for many health, recreational, scientific, spiritual, educational, aesthetic, and other purposes. They enjoy fishing, hiking, camping, hunting, birdwatching, study, contemplation, photography, and other activities in and around the waters and public lands of the Forest. WWP, CHD, and their staff and members also participate in information gathering and dissemination, education and public outreach, commenting upon proposed agency actions, litigation, and other activities relating to the Forest Service’s management and administration of the Salmon-Challis National Forest.

12.These interests are directly affected by Defendants’ failure or refusal to comply with federal laws and regulations in authorizing grazing on the Salmon-Challis National Forest, and by the Forest Services’ failure or refusal to allow WWP, CHD, their staff and members to participate in grazing management decisions. The interests of Plaintiffs, their staff, and members have been and will continue to be injured and harmed by Defendants’ actions and/or inactions as complained of herein. These actions/inactions include the authorization of continued grazing on allotments throughout the Forest in violation of the Rescissions Act, NEPA and NFMA. Unless the relief prayed for herein is granted, Plaintiffs and their members will continue to suffer on-going and irreparable harm and injury to their interests.

13.Defendant GEORGE MATEJKO is sued solely in his official capacity as Forest Supervisor of the Salmon-Challis National Forest. Mr. Matejko is the Forest Service official responsible for the authorization of and issuance of permits and other resource management decisions for livestock grazing on the Forest.

14. Defendant UNITED STATES FOREST SERVICE (USFS) is an agency or instrumentality of the United States, and is charged with managing the federal lands and resources of the Salmon-Challis National Forest in accordance and compliance with federal laws and regulations.

STATEMENT OF FACTS

15.The Salmon-Challis National Forest occupies 4.3 million acres in east/central Idaho, largely in Custer and Lemhi counties. Previously two separate Forests, the Salmon and Challis National Forests were combined in 1994-1995 and are now administratively managed together by the U.S. Forest Service. The Salmon-Challis National Forest has administrative offices in Challis, Clayton, and Salmon, Idaho, where Defendant Matejko also resides.

16. The Forest encompasses much of the Upper Salmon River basin, with many spectacular mountain ranges, and major watersheds including the Lemhi, Pahsimeroi, Little Lost, Panther Creek, and East Fork Salmon Rivers. These watersheds contain some of the most important remaining native wildlife and fisheries habitat, and outdoor recreational opportunities, in Idaho.

17.Within these watersheds there are approximately 92 grazing allotments administered by Forest Service on the Salmon-Challis National Forest. Grazing on these allotments has caused, and continues to cause, substantial ecological damage to the uplands, riparian and wetland areas, rivers, and streams throughout the Forests.

18.Grazing management on the Salmon-Challis National Forest theoretically occurs at two levels, according to Forest Service regulations and policies. First, at a general (or landscape) level, the Salmon and Challis Forest Plans establish grazing management requirements and procedures applicable across the Forest, including designating grazing allotments. Because the two Forest Plans were finalized in 1987, before the two Forests were combined, the Salmon-Challis National Forest is governed by both the Salmon and Challis Forest Plans.

19.At the second level, site-specific grazing decisions are made for the grazing allotments through a mixture of Allotment Management Plans (AMPs), grazing permits (usually issued for 10-year terms), and “Annual Operating Instructions” (AOIs), which are issued every year for all grazing allotments. (Prior to 2000, these were called Annual Operating Plans, or AOPs).

20.Pursuant to NFMA and regulations governing administration of the National Forest System, livestock grazing on National Forest lands is allowed only where authorized by a permit. See 36 C.F.R. § 222.3(a). The Forest Service issues livestock grazing permits for individual allotments, which are areas within the National Forest System that are designated as available for livestock grazing. See 36 C.F.R. §§ 222.1(b)(1) & (5), 222.3(a). Livestock grazing permits do not convey any right, title, or interest in federal lands or resources, but rather convey a privilege to use particular areas of the National Forests for livestock grazing. See 36 C.F.R. § 222.3(b).

21.In the Western states, including Idaho, the Forest Service generally issues livestock grazing permits for a term of 10 years. See 36 C.F.R. § 222.3(b)(1). These permits are tiered to the AMPs, which purportedly address broad management determinations such as levels of livestock grazing and where the lands are suitable for grazing, the management systems, such as grazing rotation, and other details. Permits typically authorize specific times or seasons of use, specify the kind and number of livestock permitted, and detail the permitee’s responsibility for range “improvements.”

22.AOIs (or AOPs) are supposed to be consistent with both the AMPs and permits, and provide specific times for turnout in each year, levels of forage use and other details. In fact, the Defendants on the Salmon-Challis National Forest (as with other National Forests in Idaho and other parts of the region) often use the AOIs to make additional changes, limitations or conditions to grazing management. Such alterations to an allotment’s grazing system should be done through revision of or amendment to the AMP or permits with NEPA analysis, but this has not happened.

The Rescissions Act

23.In 1995, in an effort to provide the Forest Service relief from a large backlog of expiring grazing permits for which NEPA analysis was required, Congress included in the so-called “Rescissions Act” a provision which authorized the Forest Service to renew certain expiring permits without the NEPA environmental analysis and public review. However, the Rescissions Act further required each Forest to “establish and adhere to a schedule” for full NEPA compliance of all allotments “for which NEPA analysis is needed.” Pub. L. No. 104-19, 109 Stat. 194 (1995).

24.In accordance with the Rescissions Act, in 1995 the Forest Service adopted two schedules for NEPA compliance for the Salmon and Challis National Forests, respectively. Pursuant to these 1995 schedules, 26 grazing allotments on the Challis Forest, and 34 allotments on Salmon Forest, were to have had NEPA analysis completed by the 2002 grazing season and new grazing permits issued. Combined, this makes a total of 60 grazing allotments that were scheduled for full compliance with NEPA by now under the Rescissions Act.

25.Defendants have failed to comply this express statutory requirement, having completed only a small handful of the 60 scheduled environmental analyses. Specifically, the Forest Service to date has failed to complete required NEPA analysis under the Rescissions Act schedules for the following allotments on the Salmon-Challis National Forest (with the dates in parentheses for when the analysis was due): Coiner (1996), Camas Creek (1996), Forney (1996), Cabin Creek (1997), Deer-Iron Creek (1997), Williams-Napias (1998), S. Fork Williams (1998), Carmen Creek (1997), South Hayden (1996), Baldy Mountain (1996), Upper Hayden (1996), Little 8 Mile (1997), North Hayden (1997), Hawley Creek (1998), HES 659 (1998), Nez Perce (1998), Lake Creek (1999), Clear-Panther (2000), Burns Basin (2000), Fourth of July Creek (2000), Deer Park (1999), Agency Creek (1999), Sandy Creek (2000), Powderhorn (2000), Timber Creek (2001), Swan Basin (2001), Peterson Creek (2002), Gilmore (2002), Cove Creek (2002), Tex Creek (2002), Morgan Creek – Prairie Basin (1997), Flat Iron (1997), Pine Creek (1996), East Pass Creek (1996), Squaw Creek (1998), Herd Creek (1998), Wildhorse (1997), Pass Creek (1997), Boone Creek (1997), Copper Basin (1997), Hurst Canyon (1997), Fish Creek (1998), Trail Creek (1998), Sawmill Canyon (1998), Stoddard Canyon (1998), Dry Fork (1998), Cow Creek (1999), Sulpher Creek (1999), Rock Springs (2001), Capehorn (1999), Bulltrout (1999), Marco Creek (2000), Alder Creek (2001) and Marsh Canyon (2001).

26.Defendants are thus violating the Rescissions Act by failing to “adhere to” their own schedules for full NEPA compliance, and Plaintiffs are informed and believe that they are not going to cure this backlog any time soon.

27.In fact, Defendants attempted to further postpone NEPA compliance by revising their initial Rescissions Act schedules. In 1997, the Salmon-Challis National Forest amended the 1995 schedules, delaying the NEPA compliance dates for virtually all of the allotments. The Rescissions Act does not provide the Forest Service such discretion to revise their initial schedules. SeeWestern Watersheds Project v. Sawtooth National Forest, Civ. No. 01-0389-E-BLW (D. Idaho, June 13, 2002) citingGreater Yellowstone Coalition v. Bosworth, 2002 WL 981147 (D.D.C. May 13, 2002).

28.However, even if the 1997 revised schedules are valid, the Defendants are still violating the Rescissions Act because they have failed to adhere to those schedules. To date, Defendants have failed to perform NEPA reviews for the following allotments on the Salmon-Challis National Forest, as required under the amended Rescissions Act schedules (with revised dates in parentheses for when analysis was due): South Hayden (1998), Forney (1999), Carmen Creek (1999), Little 8 Mile (1999), Hawley Creek (1999), Hes 659 (1999), Coiner (2000), Camas Creek (2000), Powderhorn (2000), Cabin Creek (2001), Deer-Iron Creek (2001), Baldy Mountain (2001), Upper Hayden (2001), North Hayden (2001). In the revised schedules, the Forest Service delayed NEPA analysis on the remaining allotments from the 1995 schedules for 2003 and beyond, which (as alleged above) is not allowed under the plain language of the statute.

The National Environmental Policy Act

29.NEPA is our basic national charter for protection of the environment. 43 U.S.C. § 4321 et seq; 40 C.F.R. §1500.1(a). Compliance with NEPA ensures that the Forest Service will carefully consider the environmental impacts of its actions and that this information will be made available to the public, before such actions occur. See 40 C.F.R. § 1501.2.

30.While a grazing permit authorizes livestock grazing on a particular allotment, under Forest Service regulations and policies, the AMP is the primary document that guides implementation of the Forest Plan direction for grazing, and is a site-specific decision that requires NEPA compliance. AMPs establish the specific management prescriptions for each allotment, and integrate resource objectives, standards, guidelines, and management requirements for soil and water for watershed protection, wildlife and fisheries, recreation, and other resources within the allotment. See 36 C.F.R. §222.1(b)(2), 222.2(b); FSM 2212 (1998).

31.Defendants are badly out of compliance with NEPA and Forest Plan requirements for adopting and updating grazing AMPs on the Salmon-Challis National Forest. Most of the AMPs (if there is one at all) are decades old, have never been updated, and typically have no NEPA analysis at all – or if there is any NEPA analysis, it is a cursory “Environmental Analysis” (or “EA”) rather than a full Environmental Impact Statement (or “EIS”). Examples include, but are not limited to: the 1947 Hurst Canyon allotment AMP (no NEPA); 1964 Nez Perce allotment AMP (no NEPA); 1966 Williams Basin-Napias Creek allotment AMP (no NEPA); 1966 Baldy Mountain allotment AMP (no NEPA); 1966 Little Eightmile allotment AMP (no NEPA); 1966 Timber Creek AMP (no NEPA); 1967 Squaw Creek allotment AMP (no NEPA, amended in 1972 with no NEPA); 1967 South Fork Williams Creek allotment AMP (no NEPA, amended in 1988 with no NEPA); 1968 Marsh Canyon allotment AMP (no NEPA); 1969 Lake Creek allotment AMP (no NEPA); 1969 Forney allotment AMP (no NEPA); 1969 Deer-Iron Creek allotment AMP (no NEPA); 1970 Wildhorse Allotment AMP (no NEPA); 1972 Morgan Creek AMP (1972 EA) ; 1973 Cape Horn allotment AMP (amended in 1987 with an EA); 1975 Herd Creek allotment AMP (1975 EA); 1975 Pine Creek allotment AMP (undated EA); 1975 Burns Basin allotment (EA Report); 1976 Sulphur Creek allotment AMP (no NEPA); 1976 Diamond-Moose allotment AMP (EA Report); 1976 Withington Creek allotment AMP (no NEPA); 1977 Haynes Creek allotment AMP (no NEPA); 1977 Twelvemile allotment AMP (1977 EA Report, amended in 1988 with no NEPA); 1977 Upper Hayden allotment AMP (NEPA unknown, updated in 1985 with a two page categorical exclusion, and updated again in 1992, NEPA unknown); 1977 Leadbelt allotment AMP (NEPA unknown); 1978 Alder Creek allotment AMP (1978 EA); 1978 Carmen Creek allotment AMP (1978 EA); 1979 Peterson Creek allotment AMP (1979 EA); 1979 Eddy Creek allotment AMP (EA Report, amended in 1996 with no NEPA); 1980 Antelope allotment AMP (1980 EA); 1980 Briggs Canyon AMP (1980 EA); 1980 Lime Creek allotment AMP (1980 EA, note that the EA was conducted after the AMP was issued); 1980 Cherry Creek allotment AMP (1980 EA Report); 1980 Challis Creek allotment AMP (1980 EA, amended in 1996 with no NEPA); 1981 Cedarville-Jumpoff allotment Draft AMP (NEPA unknown); 1981 Arco Pass allotment AMP (1982 EA, note that the EA was conducted after the AMP was issued); 1982 Sage Creek allotment AMP (1982 EA); 1982 Cove Creek allotment AMP (1981 EA); 1982 Hawley Creek allotment AMP (1982 EA); 1982 South Hayden allotment AMP (1980 EA); 1983 Bell Mountain allotment AMP (NEPA unknown, amended in 1997 with no NEPA); 1983 Deer Park allotment AMP (1982 EA); 1984 North Basin allotment AMP (1981 EA, 1984 Addendum with no NEPA); 1984 Middle Fork allotment AMP (undated EA); 1984 Gilmore allotment AMP (1984 EA); 1985 Powderhorn allotment AMP (1984 EA); 1985 Swan Basin allotment AMP (1985 EA); 1985 Tex Creek allotment AMP (1985 EA); 1985 Cow Creek allotment AMP (no NEPA); 1986 Lower Cedar Creek allotment AMP (EA Report); 1988 Spring Gulch allotment AMP (1988 EA); 1989 Agency Creek allotment AMP (categorical exclusion); 1989 Little Morgan Creek allotment AMP (1988 EA); 1991 Lee Creek allotment AMP (1991 EA); 1992 Warm Springs/Pattee Creek Coordinated Resource Management Plan (1992 EA); 1993 Copper Basin AMP (categorical exclusion); 1993 Boone Mountain allotment AMP (1993 categorical exclusion amends 1978 AMP);