Laurence ("Laird") J. Lucas (ISB # 4733)
P.O. Box 1342
Boise, ID 83701
(208) 464-1466
(208) 342-8286 (fax)
Judith M. Brawer (MSB # 4308)
William M. Eddie (ISB # 5800
LAND AND WATER FUND OF THE ROCKIES
P.O. Box 1612
Boise, ID 83701
(208) 342-7024
(208) 342-8286 (fax)
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
)
IDAHO CONSERVATION LEAGUE, )
and WESTERN WATERSHEDS ) Case No. ______
PROJECT )
)
Plaintiffs, )
)
vs. )
) COMPLAINT
JEFF S. STEELE, Field Office Manager, )
Pocatello Field Office, BLM; )
and BUREAU OF LAND )
MANAGEMENT, )
)
Defendants. )
______)
NATURE OF ACTION
1. This action seeks judicial relief ordering Defendants Bureau of Land Management et al. ("BLM") to comply with the requirements of the law in their management of livestock grazing on the Pleasantview Allotment on the Malad Resource Area in Southeast Idaho. The Pleasantview allotment is seriously degraded through Defendant's administration of livestock grazing on the allotment.
2. Defendants are violating the Federal Lands Policy And Management Act, 43 U.S.C.A. §1701 et seq. (FLPMA), and its implementing regulations, including the BLM's "Fundamentals of Rangeland Health", 43 C.F.R. Subpart 4180, by authorizing livestock grazing on the Pleasantview allotment at levels which continue to impair riparian areas, native plant communities, water quality, and sensitive species, and even exceed the allotment's carrying capacity as determined by the BLM itself. Due to political pressure and resistance from permittees, BLM has been unable or unwilling to implement the grazing revisions that are necessary to prevent continued violations of law.
3. Defendants are also violating the National Environmental Policy Act, 42 U.S.C. §4321 et seq. (NEPA), by failing to undertake adequate environmental analysis for grazing on the Pleasantview allotment and associated management actions, including the use of herbicides on the allotment. Absent judicial relief, BLM will continue to authorize grazing on the Pleasantview allotment without adequate environmental analysis and public disclosure, and under livestock levels, terms, and conditions which BLM has determined violate FLPMA and the Fundamentals of Rangeland Health.
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 FLPMA and implementing regulations; NEPA; the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"); the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq. ("EAJA"). 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 this judicial district, Defendants reside in this district, and the public lands and resources in question are located in this district.
6. The federal government has waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.
PARTIES
7. Plaintiff IDAHO CONSERVATION LEAGUE ("ICL") is an Idaho non-profit membership conservation organization. ICL and its approximately 2,800 members are dedicated to protecting and conserving Idaho's natural resources, including its water, native plant, bird and wildlife resources. ICL's mission is to protect and restore the clean water, wildlands, and wildlife of Idaho. ICL, as an organization and on behalf of its members, is greatly concerned with protecting natural resources on BLM lands throughout Idaho, including the Pleasantview allotment. ICL, its staff, and its members are active in public education, administration, and legislation of conservation issues in Idaho, including livestock grazing and land management planning for BLM lands, including the Pocatello Field Office and the Pleasantview allotment.
8. 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. Formerly known as "Idaho Watersheds Project," WWP recently changed its name in order to reflect an expanded mission and involvement in the management of public lands throughout the 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 have actively participated in agency proceedings concerning BLM's management of the Pleasantview Allotment area.
9. Plaintiffs' members use and enjoy the waters, public lands, and natural resources of the Pleasantview allotment and Malad Resource Area for many health, recreational, scientific, spiritual, educational, aesthetic, and other purposes. Plaintiffs' members enjoy fishing, hiking, camping, hunting, birdwatching, study, contemplation, photography, and other activities in and around the waters and public lands of the Pleasantview allotment and Malad Resource Area. Plaintiffs and their members also participate in information gathering and dissemination, education and public outreach, commenting upon proposed agency actions, and other activities relating to BLM's management and administration of the Pleasantview allotment and surrounding Malad Resource Area.
10. These interests are directly affected by BLM's failure or refusal to comply with federal laws and regulations in authorizing grazing on the Pleasantview allotment, and by BLM's failure or refusal to manage the area in a manner that will preserve all natural resources and protect all human uses in the area. The interests of Plaintiffs and their members have been and will continue to be injured and harmed by BLM's actions and/or inactions as complained of herein. These actions/inactions include BLM's authorization of continued grazing within the Pleasantview Allotment in violation of FLPMA and its implementing regulations, including the Fundamentals of Rangeland Health. 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.
11. Defendant JEFF STEELE ("Steele") is sued solely in his official capacity as Field Office Manager of the BLM's Pocatello Field Office, in which the Pleasantview allotment is located. Mr. Steele is the BLM official responsible for issuance of the Pleasantview allotment Permit Renewal Environmental Assessment (EA) and June 2001 "Final Decision" approving same, as alleged hereinafter below, and has principal authority for the actions and inactions alleged herein.
12. Defendant BUREAU OF LAND MANAGEMENT ("BLM") is an agency or instrumentality of the United States, and is charged with managing the public lands and resources of the Pleasantview allotment in accordance and compliance with federal laws and regulations.
STATEMENT OF FACTS
13. The Pleasantview allotment consists of 69, 806 acres, of which 59,026 acres are public lands managed by the BLM. The allotment boundary encompasses the Pleasantview Mountains, west of Malad City, Idaho. The topography is mountainous throughout the allotment. The area is steep and rugged with narrow valleys and, like much of the interior west, has limited water sources. Major native vegetation within the allotment includes Douglas fir, aspen, big sagebrush, bluebunch wheatgrass, and juniper. Sage grouse and sharptail grouse - both designated by BLM as "sensitive" species - inhabit the sagebrush habitat throughout the allotment. Three creeks course through the allotment: Wood Canyon, Sheep Creek and the South Fork of Sheep Creek. Dry canyon bottoms, which feature the most productive soils on the Pleasantview allotment, comprise approximately 15 percent of the allotment.
14. Grazing has caused, and continues to cause, significant resource damage on the Pleasantview allotment. In 2000, the BLM made detailed findings of extensive violations of the Idaho Standards for Rangeland Health and Guidelines for Livestock Grazing Management ("Idaho Standards and Guidelines"), adopted pursuant to BLM's Fundamentals of Rangeland Health ("FRH") regulations, 43 C.F.R. § 4180 et seq., across the entire portion of the Pleasantview allotment used by cattle.
15. These findings are summarized in the "Determination for Achieving Standards for Rangeland Health and Conforming with Guidelines for Livestock Grazing Management" ("Determination"), issued by Defendants on September 27, 2000. The Determination is based on the "2000 Pleasantview Allotment Assessment/Evaluation" ("Assessment"), which compiled and analyzed detailed monitoring and evaluation information collected by BLM between 1993 and 1999.
16. The Determination and Assessment conclude that the Pleasantview allotment is violating the FRH Standards for: Riparian Areas and Wetlands (Standard 2), Stream Channel/Floodplain (Standard 3), Native Plant Communities (Standard 4), Water Quality (Standard 7), and Threatened and Endangered Plants and Animals (Standard 8); while the Watersheds Standard (Standard 1) is not being met in the upland canyon bottoms and riparian areas. The Determination and Assessment also determined that the carrying capacity for cattle on the Pleasantview allotment is 19% below current grazing levels.
17. The Determination and Assessment catalogue the broad array of degraded conditions and violations, including:
(a) "stream systems are not vertically stable. Excessive erosion and deposition is evident. Stream channels are straight and have entrenched in most cases. Noxious weeds exist and have the potential for increasing density with continued disturbance";
(b) "noxious weeds occur along roads and in disturbed areas. Aspen stands used by livestock are not regenerating;"
(c) "surface water does not comply with the Idaho Water Quality Standards;"
(d) "It appeared livestock had walked up or down the streambedŠand systematically consumed almost 100 percent of the shoreline vegetation. The mechanical action of the hooves was also quite severe. Remnant riparian species remained only in inaccessible or protected locations. Small woody vegetation such as willows were completely absent;" and
(e) Native plant species are almost nonexistent in the dry canyon bottoms that normally have the most productive soils on the allotment and receive the highest grazing pressure.
18. Whenever BLM makes a determination that ecological conditions on an allotment are not meeting the Standards and Guidelines due to grazing impacts, the FRH regulations expressly require BLM to revise grazing management "as soon as practicable, but not later than the start of the next grazing year" by adopting changes in livestock numbers, seasons of use, or other terms and conditions that "will result in significant progress toward fulfillment of" the Standards and Guidelines. See 43 C.F.R. §§ 4180.1 & 4180.2(c).
19. Soon after issuing the Determination, the Defendants initiated the development of the required grazing management revisions. Pursuant to NEPA, Defendants issued the Pleasantview Allotment Permit Renewal Environmental Assessment ("Pleasantview EA") delineating their proposed changes in grazing management. After public outreach and comment on the Pleasantview EA, Defendants issued a Proposed Decision in April 2001, and a Final Decision in June 2001 ("Final Decision").
20. Regrettably, in issuing the Final Decision, the BLM Defendants allowed political pressures to sway their professional judgment and failed to implement the necessary permit changes previously identified by BLM as necessary. For numerous reasons, the EA and Final Decision do not comply with the Idaho Standards and Guidelines, the Fundamentals of Rangeland Health, FLPMA or NEPA, and will therefore perpetuate the degraded conditions on the Pleasantview allotment.
21. BLM's grazing regulations provide that "authorized livestock grazing shall not exceed the carrying capacity of the allotment." 43 C.F.R. §4130.3-1. In violation of this requirement, the Final Decision authorizes livestock grazing on the Pleasantview allotment at a level over the next several years that exceeds the carrying capacity as determined by the BLM itself.
22. The Final Decision violates the Fundamentals of Rangeland Health because it will not result in the Pleasantview Allotment meeting, or making significant progress towards meeting, several of the Standards and Guidelines. The Final Decision also violates the requirement of the Fundamentals of Rangeland Health that appropriate actions be implemented "not later than the start of the next grazing year". 43 C.F.R. §4180 et seq.; See Idaho Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999). Many of the proposed projects the Defendants rely on to meet the Standards and Guidelines will not be implemented until later years, if at all.
23. All of the proposed range improvements, including those to be implemented next year, are dependent on available funding, yet the BLM admits that "[t]he costs of these projects far exceed the annual funding for range improvements (approximately $50,000 annually) of the Pocatello Field Office." (EA p. 3). The estimated cost of the projects to be constructed in 2002 is $126,000.00 and the estimated cost for the subsequent projects is $162,000.00.
24. Defendants violated NEPA by failing to take a "hard look" at the impacts of the management changes and whether these changes will, in fact, make significant progress towards meeting the Standards and Guidelines.
25. For example, the Pleasantview EA provides no analysis of the environmental impacts or effectiveness of the ribbon fencing. In addition, the EA fails to analyze the direct, indirect, and cumulative impacts of the changes in grazing management to BLM-identified "sensitive" bird species, sage and sharp-tail grouse, known to be present on the Pleasantview Allotment and provides no information on the current presence and condition of these species and their habitat.
26. The BLM justifies its decision to exceed the carrying capacity with changes in livestock distribution and significant range improvements. The BLM does not, however, provide any data supporting its conclusion that the new range improvements and changes in livestock distribution will be successful. Such information is especially important in light of the history of failed range improvements and the numerous limits to distribution caused by the current degraded condition, the electric fencing, water distribution and the steep, mountainous terrain.
27. In fact, BLM fails to reveal the actual extent and condition of existing range development projects on the Pleasantview allotment. Numerous range developments already exist, which BLM does not identify or discuss in the Pleasantview EA.
28. Defendants provide no information on the BLM's planned use of spraying or biologic control of weeds. There is no information of what types of herbicides or biologic controls are to be used, to what extent, and their direct, indirect, and cumulative impacts on native plant, bird and wildlife species.
29. The BLM is also violating NEPA, FLPMA and the Fundamentals of Rangeland Health by tiering to the outdated Malad Hills Management Framework Plan and the Bannock-Oneida Grazing EIS. NEPA requires the BLM to update or supplement outdated management plans and environmental impact studies, including when significant new information or circumstances arise. Neither of these plans has been kept current with new information and evolving management practices.
30. The failure to implement adequate grazing management revisions violates BLM's mandatory duty under the Fundamentals of Rangeland Health Regulations. Grazing management revisions must be implemented so that the Pleasantview allotment meets, or show significant progress toward meeting, the Standards and Guidelines relating to water quality, riparian habitat, watershed conditions, and species habitat not later than the start of the next grazing year. See 43 C.F.R. § 4180 et seq...
31. Defendants' implementation of the chosen grazing management revisions for the Pleasantview Allotment, in violation of the NEPA, FLPMA, the Fundamentals of Rangeland Health and the Idaho Standards and Guidelines, will result in continued livestock grazing mismanagement and ecological degradation of the area, particularly impacting riparian areas, dry upland bottoms, aspen and other native plant communities, and sensitive bird habitat. As a result, Plaintiffs and the public in general will suffer irreparable injury and harm to their interests.
32. Plaintiffs have no adequate remedy at law for the Defendants' violations as alleged herein. Without judicial relief ordering Defendants to comply with the laws by revising grazing management that at least will show significant progress toward meeting the Idaho Standards and Guidelines, Plaintiffs and the public will suffer irreparable harm.
FIRST CLAIM FOR RELIEF:
VIOLATIONS OF NEPA AND APA
33. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
34. NEPA requires all federal agencies to undertake a thorough and public analysis of the environmental consequences of proposed federal actions, including a detailed EIS for all major federal actions which may have a significant impact on the human environment; and site-specific and cumulative analysis of the likely environmental consequences of proposed actions including issuance of grazing permits. Such analysis must include consideration of a reasonable range of alternatives to a proposed action, and means to mitigate adverse impacts.
35. BLM violated NEPA, 42 U.S.C. § 4332 et seq., and federal implementing regulations in multiple respects through issuance of the June 7, 2001 Final Decision and FONSI with respect to the Pleasantview allotment. Such NEPA violations include, but are not limited to:
a. Failure to prepare an Environmental Impact Statement prior to making the Final Decision, which is a major federal action significantly affecting the human environment;
b. Failure to consider the cumulative impacts of the Final Decision in connection with other federal, state, and private actions;
c. Failure to consider an adequate range of alternative actions, including alternatives to the use of herbicides on the project area;
d. Failure to utilize and inform the public of objective science and data underlying the conclusions and assumptions made in the Environmental Analysis;
e. Issuance and implementation of the Final Decision prior to completion of required NEPA environmental studies and processes;
f. Failure to adequately evaluate the environmental consequences of the Final Decision;
g. Failure to evaluate the economic consequences or feasibility of the Final Decision; and
h. Authorizing the implementation of certain activities such as fence installation before issuing the Final Decision.
36. BLM's failure or refusal to undertake lawful and proper environmental review as required by NEPA is arbitrary, capricious, an abuse of discretion, not in accordance with law and/or constitutes agency action unlawfully withheld or unreasonably delayed under the APA, which has caused or threatens serious prejudice and injury to Plaintiffs' rights and interests.
WHEREFORE, Plaintiffs pray for relief as set forth below.
SECOND CLAIM FOR RELIEF:
VIOLATIONS OF FRH REGULATIONS AND THE APA
37. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
38. FLPMA and BLM's implementing grazing regulations require that where, as here, BLM has determined that grazing causes violations of the ecological standards known as the Fundamentals of Rangeland Health, 43 C.F.R. Subpart 4180, BLM must promptly revise grazing management on the affected public lands in a manner that "will result in significant progress toward fulfillment of the standards and significant progress toward conformance with the guidelines." 43 C.F.R. § 4180.2(c).
39. The Final Decision fails to meet this requirement to change grazing management "not later than the start of the next grazing year" in a way that "will result in significant progress toward fulfillment of the standards and significant progress toward conformance with the guidelines." 43 C.F.R. § 4180.2(c); See Idaho Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999). The BLM failed to implement management changes in a timely manner, and the Final Decision perpetuates excessive livestock grazing and will cause continued violations of several of the Fundamentals of Rangeland Health.
40. BLM's failure or refusal to comply with the Fundamentals of Rangeland Health regulations is arbitrary, capricious, an abuse of discretion, not in accordance with law and/or constitutes agency action unlawfully withheld or unreasonably delayed under the APA, which has caused or threatens serious prejudice and injury to Plaintiffs' rights and interests.
WHEREFORE, Plaintiffs pray for relief as set forth below.
THIRD CLAIM FOR RELIEF
VIOLATIONS OF FLPMA, GRAZING REGULATIONS, AND APA