Joro Walker (USB # 6676)
LAND AND WATER FUND OF THE ROCKIES
1473 South 1100 East, Suite F
Salt Lake City, Utah 84105
Telephone: (801) 487-9911
Fax: (801) 486-4233
Laurence (“Laird”) J. Lucas (ISB # 4733)
P.O. Box 1342
Boise, Idaho83701
Telephone: (208) 424-1466
Fax: (208) 342-8286
Attorneys for Plaintiff Western Watersheds Project
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
WESTERN WATERSHEDS PROJECT,)
)No. 2:02 CV 0352 PGC
Plaintiff, )
)OPENING BRIEF IN SUPPORT
v.)OF PLAINTIFF’S MOTION FOR
) JUDICIAL REVIEW AND
GLENN A. CARPENTER, BLM Salt Lake Field) REMAND BASED ON
Office Manager, and BUREAU OF LAND )FIRST CLAIM FOR RELIEF
MANAGEMENT,) RE: NEPA VIOLATIONS )
Defendants.)Magistrate Judge Samuel Alba
______)
TABLE OF CONTENTS
INTRODUCTION……………………...…………………………………………………………1
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE………………………. 3
The 2001 Permits………………………...………………………………………………..3
Plaintiff’s Involvement and Standing……………………………………………………...4
The Northern Utah Landscape And Resources Affected By The 2001 Permits…………. 5
Adverse Environmental Effects of Livestock Grazing………………………………………8
Grazing Impacts On The Northern Utah Allotments…………………………………… 11
Lack of Current Data And Analysis In Most Of The 2001 EAs…………………………12
BLM Data Acknowledging Grazing’s Adverse Impacts…………………………………...15
Lack of Consideration of Alternatives…………………………………………………….. 22
ARGUMENT…………………………………………………………………………………….24
I.STANDARDS OF REVIEW…………………………………………………….24
II.NEPA’S REQUIREMENTS……………………………………………………..26
III.BLM VIOLATED NEPA BY FAILING TO TAKE A “HARD LOOK”
AT THE ENVIRONMENTAL EFFECTS OF THE 2001
GRAZING PERMITS AND FAILING TO PREPARE AN EIS………………….29
A.BLM Has Ignored Direct and Cumulative Impacts Of The
2001 Permits, Which Should Be Evaluated Through An EIS…………...29
B.Caselaw Underscores The Significant Environmental Impacts
Of Grazing………………………………………………………………. 31
C.At A Minimum,”Uncertainty” And ‘Controversy” Required An EIS……...33
IV.BLM HAS IMPROPERLY SEGMENTED ITS ANALYSIS…………………...35
V.BLM FAILED TO CONSIDER A REASONABLE RANGE OF
ALTERNATIVES…………………………………………………………………36
CONCLUSION…………………………………………………………………………………..38
OPENING BRIEF ON MOTION FOR REVIEW AND REMAND ON FIRST CAUSE OF ACTION -- 1
INTRODUCTION
Plaintiff Western Watersheds Project(WWP) seeks judicial review and entry of judgment on its First Claim for Relief under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, thus reversing and remanding the 2001 grazing permits at issue in this case.
The central question presented here is whether defendant Bureau of Land Management (BLM) violated NEPA in summer 2001, when it issued permits authorizing livestock grazing across 1.5 million acres of northern Utah public lands, without preparing any Environmental Impact Statement (EIS) or otherwise taking a “hard look” at environmental effects of the grazing and reasonable alternatives. Rather than prepare any EIS, BLM instead relied on perfunctory Environmental Assessments (EAs) and Findings of No Significant Impacts (FONSIs) for sub-groupings of the allotments, to conclude that the permitted livestock grazing will not cause any significant environmental effects.
In doing so, BLM failed even to assess current resource conditions on most of the allotments; and it ignored a wealth of data and science in the record showing that the grazing has caused, and will continue to cause, significant environmental harms of many kinds. As explained in detail below, the 2001 permits authorize grazing across public lands with common natural resource features that offer important habitat for many wildlife, fish, and bird species, and which are adversely impacted by grazing in many ways. In particular, cattle congregate around streams and wet areas in the hot arid conditions of northern Utah, where they trample stream banks, remove shady cover, and their wastes foul streams, thus degrading water quality as well as riparian and fisheries habitat. Likewise, in uplands areas, livestock grazing removes native grasses and other vegetation, destroying wildlife habitat, and causing soil erosion from loss of ground cover and livestock trampling.
All of these impacts were documented to be occurring on large portions of the northern Utah allotments by independent scientists, as well as by BLM staff in the areas where the agency bothered to look at the current conditions of the allotments. Yet BLM’s decision-makers have ignored this data and science in asserting that grazing under the 2001 permits will have “no significant impact” to the environment, and thus avoided analyzing and disclosing to the public the direct and cumulative environmental impacts of the proposed grazing through a full EIS.
As the U.S. Court of Appeals for the Tenth Circuit has repeatedly held, an agency’s failure to take a “hard look” at the likely environmental impacts of a proposed action violates NEPA, requiring that the challenged decision be reversed and remanded. SeeDavis v. Mineta, 302 F.3d 1104 (10th Cir. 2002);Utahns for Better Transportation v. U.S. DOT,305 F.3d 1152 (10th Cir. 2002); Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002) (all reversing for NEPA violations). Those holdings are directly applicable here, where BLM has avoided any meaningful assessment and analysis of the environmental impacts that livestock grazing has caused, and will continue to cause, to the public lands and resources of northern Utah.
In short, the record before the Court demonstrates that the 2001 permits will have significant environmental effects which BLM has not studied through any EIS; and that BLM was arbitrary and capricious in issuing the northern Utah grazing permits based on the inadequate 2001 EAs and FONSIs. Accordingly, judgment should be entered for WWP on its First Claim for Relief; and the 2001 permits reversed and remanded with instructions that BLM comply fully with NEPA.[1]
STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE
Pursuant to District of Utah Local Rules 7-1 and 56-1, WWP is submitting the following statement of material facts not in genuine dispute relevant to this motion.[2]
The 2001 Permits
1.At issue in this case are at least 77 grazing allotments totaling nearly 1.5 million acres of public lands located across northern Utah, in Tooele, Rich, and Box Elder counties. These allotments are all managed by the BLM’s Salt Lake Field Office, under the direction of Defendant Glen Carpenter. As the authorized BLM officer, Mr. Carpenter issued at least 149 new term grazing permits for these northern Utah allotments in August and September 2001. See Fed. Defs’ Answer, ¶¶ 2, 15, 44-47, 66-68 (admitting these facts); Declaration of Paul Mitchell, filed herewith, Figure 1 (map illustrating locations of the allotments).[3]
2.BLM concedes it performed no Environmental Impact Statement (EIS) under NEPA before issuing the 2001 permits. Instead BLM relied on at least fourteen separate Environmental Assessments (EAs) and Findings of No Significant Impact (FONSIs) for different groupings of the allotments, all approved by Mr. Carpenter in August and September 2001, to conclude that grazing under the permits would have “no significant impact” on the environment. See Fed. Defs’ Answer, ¶ 3 (“federal defendants admit that in August-September, 2001, defendant Carpenter approved 149 grazing permits for 77 allotments in Tooele, Rich and Box Elder counties based on 14 Environmental Assessments (EAs) issued by the BLM’s Salt Lake Field Office”); seealsoid., ¶¶ 15, 35, 44 & 66-68 (similar admissions and admitting no EIS); Carter Decl., Exhs. 7-25 (copies of EAs and FONSIs).[4]
Plaintiff’s Involvement and Standing
3.Plaintiff WWP is a regional nonprofit conservation group, with members in Utah and other states who use and enjoy the public lands and resources in and around the allotments at issue. WWP’s Utah office is directed by Dr. John Carter, a Ph.D. ecologist and engineer with extensive experience monitoring resource conditions and recreating in and around the northern Utah allotments in question. See Carter Decl., ¶¶ 1-21 & Exh. 1.[5]
4.On behalf of WWP, and in accordance with BLM grazing regulations, Dr. Carter submitted protests to BLM over the proposed issuance of the northern Utah grazing permits in spring/summer 2001. He also submitted extensive scientific citations, and detailed monitoring reports (prepared by Dr. Carter and other experts) concerning the severely degraded resource conditions on many of the allotments due to livestock grazing. See Complaint, ¶¶ 50-53 and Fed Defs’ Answer, ¶¶ 50-53; Carter Decl., ¶¶ 49-55 & Exhs. 2, 26-29.
5.Also in accordance with BLM regulations, Dr. Carter filed administrative appeals for WWP after the 2001 permits were issued, and submitted Petitions for Stay to the Interior Board of Land Appeals (IBLA) in the fall of 2001; but the stay petitions were denied by the IBLA, and thereafter Dr. Carter dismissed the administrative appeals. See Complaint, ¶ 60 & Fed. Defs’ Answer, ¶ 60; Carter Decl., ¶ 56. Plaintiff has thus fully exhausted any required administrative remedies before bringing this case, in conformance with the APA. SeeIdaho Watersheds Project v. Hahn, 307 F. 3d 815, 824-29 (9th Cir. 2002) (addressing APA exhaustion requirement and BLM grazing appeals regulations).
The Northern Utah Landscape And Resources Affected By The 2001 Permits
6.The northern Utah landscape in which the allotments at issue are located is very arid. The public lands of the allotments are all located at approximately the same elevation range, and receive on average below 20 inches of precipitation a year. See Carter Decl., ¶¶ 20-21 & Exhs. 7-20 (EAs generally describing allotment locations and features) & Exhs. 2, 27-29 (reports and protests, also describing allotment resources and science); Mitchell Decl., Figures 2-3 (maps showing allotment topography and average precipitation levels).
7.Due to the low precipitation, the vegetation historically found on these allotments is classified as “xeric,” i.e., desert-like vegetation typified by drought-resistant plants such as sagebrush, salt shrub, bitterbrush, and native grasses. The allotments also feature soils that are prone to erosion from soil disturbance and vegetation removal. See Carter Decl., ¶¶ 20-21, 40-41 & Exhs. 2, 7-20, 27-29; Mitchell Decl., Figure 4 (map showing xeric vegetation).
8.Streams, springs, and riparian areas (the vegetation around wet areas) occupy a tiny fraction of the surface area of this part of northern Utah, i.e., typically less than one percent (1%), but are critical from a biological perspective, given the arid environment. Riparian areas historically featured as much as 80-90% of the species diversity and numbers in these ecosystems, because they offered habitat for a wide variety of mammals, birds, amphibians, insects, fish and other species; and also provided corridors of habitat for migrating wildlife. See Complaint, ¶ 38 & Fed Defs’ Answer, ¶ 38 (“The federal defendants admit that riparian areas are important from a biological perspective as a source of water for animals and plant species. The federal defendants further admit that riparian areas historically featured as much as 80-90% of the species diversity and numbers in desert and semi-desert habitats”). Seealso Carter Decl., ¶¶ 20-46 & Exhs. 2, 27-29 (addressing importance of riparian areas); id., Exh. 11 (EA 70) at 5 (example of BLM EA acknowledging importance of riparian areas).[6]
9.The northern Utah allotments provide habitat for a large array of wildlife species present across much of the landscape. These include many “sensitive” or declining species, such as sage grouse; big game mammals, such as deer and elk; raptors and migratory birds; numerous fish species; and others. See Mitchell Decl., Figures 4-7 (maps showing habitat for sage grouse, mule deer and antelope); Carter Decl., ¶¶ 22-46 and Exhs. 2, 7-20, 26-29 (reports, EAs, and WWP comments addressing wildlife values of the allotments); seealso ¶¶ 10-14 & 37-58, infra (many specific page citations to EAs).
10.For example, BLM’s own studies acknowledge that Box Elder and Rich counties shelter the largest Utah populations of sage grouse, a special status species. Carter Decl., Exh. 13 (EA 112) at 14; Exh. 9 (EA 12) at 5; Exh. 8 (EA 37) at 5; Exh. 7 (EA 38) at 5; Exh. 11 (EA 70) at 5. Indeed, the Utah Sage Grouse Conservation Plan identified Box Elder county as having particularly important sage grouse habitat. Carter Decl., Exh. 13 (EA 112) at 14.
11.But the population of sage grouse has sharply declined throughout the western United States, including Utah. Carter Decl., ¶¶ 37-38 & Exh. 13 (EA 112) at 14; Exh. 9 (EA 12) at 5; Exh. 8 (EA 37) at 5; Exh. 7 (EA 38) at 5; Exh. 11 (EA 70) at 5. Scientists have estimated that, in Utah, sage grouse occupy only 50% of the habitat they once did, and that the population of the bird is only half of what it was in 1850. Id. Livestock grazing has been identified by independent and agency scientists alike as one of the key factors causing the decline in sage grouse, due to grazing degradation of sage grouse habitat for breeding, rearing, and sheltering from predators. Carter Decl., ¶¶ 37-38 & Exhs. 2, 4, 26-29. Notably, BLM has acknowledged in a recent study, not referenced in any of the 2001 EAs, that sage grouse have abandoned much of their previously occupied habitat in Rich county, and that none of the sage grouse sites which BLM has recently studied met standards for diversity and quantity of forbs for use by sage grouse. Carter Decl., ¶ 38 & Exh. 4 (copy of BLM 2001 proposal to “treat” sage grouse habitat in Rich county).
12.Likewise, Utah’s Department of Wildlife Resources has identified crucial mule deer habitat throughout Tooele, Box Elder and Rich counties. See Carter Decl., Exh. 13 (EA 112) at 14; Exh. 8 (EA 37) at 5; Exh. 9 (EA 12) at 5; Exh. 11 (EA 70) at 5; Exh. 14 (EA 92) at Figure 6 (map); seealso Mitchell Decl., Figure 6 (another map illustrating mule deer habitat).
13.Crucial pronghorn antelope habitat is located in many of the allotments across all three counties as well. Carter Decl., Exh. 10 (EA 72) at 5; Exh. 12 (EA 73) at 8; Exh. 11 (EA 70) at 5; Exh. 18 (EA 14) at 7; seealso Mitchell Decl., Figure 5 (map illustrating pronghorn habitat).
14.Further, wild horses roam the areas encompassed by the Tooele county allotments. Carter Decl., Exh. 14 (EA 92) at 1. Tooele county also serves as bald eagle winter range, a migration route for whooping cranes, and is historic range for the listed black-footed ferret. Id. at 3.
15.Bonneville cutthroat, the Utah state fish and a conservation species, inhabits the streams encompassed by the Rich county allotments. Carter Decl., Exh. 7 (EA 38) at 5; Exh. 8 (EA 37) at 5; Exh. 9 (EA 12) at 5. In response to the imperiled status of the fish, state and federal agencies developed and signed a Conservation Agreement in 1997 intended to implement conservation measures to proactively conserve and protect the Bonneville cutthroat. Under this agreement, federal agencies, such as the BLM, are required to ensure that their actions and decisions do not compromise any ongoing or planned conservation activities and do not increase threats to Bonneville cutthroat trout. See Carter Decl., Exh. 27 (WWP protest), at 18.
16.Important plant communities also exist within the allotment boundaries. For example, “vegetation, including Special Status Plant Species typical of the Desert Flat, semi-arid loam and semi-arid stony loams occupy the lower elevations” of the StansburyIsland and Grantsville area allotments. Carter Decl., Exh. 17 (EA 86) at 11.
17.The Utah State Preservation Office has also found invaluable cultural resources in many of the BLM allotments. See Carter Decl., Exh.10 (EA 72) at 6; Exh.11 (EA 70) at 3; Exh. 16 (EA 108) at 6; Exh. 20 (EA 82) at 5; Exh.17 (EA 86) at 7; Exh.15 (EA 102) at 7; Exh.18 (EA 14) at 4-5; Exh.14 (EA 92) at 6.
Adverse Environmental Effects of Livestock Grazing
18.A large body of scientific literature and studies (prepared by independent as well as agency scientists) demonstrates that there are many adverse environmental impacts from livestock grazing upon the public lands and resources of the arid American West, including northern Utah. These adverse impacts are readily observable, and well documented and described in the scientific literature, much of which Dr. Carter cited and supplied to BLM in the context of the 2001 permit process. See Carter Decl., ¶¶ 20-46 (discussing facts, scientific literature, and grazing impacts) & Exhs. 2-3, 26-29 (protests and reports submitted to BLM); Fed. Defs’ Answer, ¶ 51-53 (admitting submission of reports and citations).
19.For example, it is well established in northern Utah and other parts of the arid American West that livestock grazing may remove ground-covering vegetation and biological crusts that are important in stabilizing the soil, promoting water infiltration into the ground to recharge ground water, and cycling nutrients to promote plant growth, including trees. See Carter Decl., ¶¶ 23-28 (discussing effects and citing studies), & Exhs. 26-28 (WWP protests to BLM for 2001 permits, also discussing these effects and citing studies).
20.Under grazing by livestock, as many studies have shown, overall productivity and diversity of the land has declined, while native species of perennial grasses and flowers have been replaced by weeds or annual grasses (such as cheatgrass). Id. This has resulted in destabilizing the soils so that in areas that are grazed and trampled by livestock, the soil lacks a developed horizon with rootstructure to hold the soil. The eroded soil moves into waterways where the silt covers the rocky substratesthat trout and aquatic species depend upon. Habitats are reduced in fitness (structure and function) for native wildlife species, and their populations suffer. Id.
21.Livestock grazing has also been documented to have particularly severe adverse effects upon water quality, and riparian or stream habitats. See Carter Decl., ¶¶ 20-21, 24-29 (discussing these effects and scientific literature) & Exhs. 2-3, 26-29 (article, reports, and protests submitted to BLM during 2001 permit process, addressing these points). Livestock presence and grazing cause the removal of soil-protecting vegetation and shady cover, soil compaction, and direct trampling of stream banks, which all result in the alteration and loss of stream flows, increased water temperatures, and loss of in-stream habitat provided by overhanging banks, trees, shrubs and grasses. Id. Dissolved oxygen is lost due to sedimentation from erosion, which seals rocky stream substrates with sediment; and due to increases in nutrients and organic matter from animal waste that pollutes the water and causes algae blooms. Id. These factors deplete the oxygen by limiting water circulation through these substrates and through respiration and decomposition. Id.
22.Livestock waste also contains large numbers of human pathogens, including E coli. Id. Results of studies show that when cattle are present, fecal coliform levels rise and they are carried downstream for large distances. Id. Livestock create a reservoir of these and their associated pathogenic organisms in the soil and stream sediments that reside there for long periods. These can cause exceedances of water quality standards even months after the livestock are removed. Id.
23.Livestock grazing further affects wildlife and wildlife habitat by altering and simplifying the structure, productivity, and functions of the plant community. Studies have documented the loss of biodiversity and lowering of population densities of wildlife populations caused by competition with livestock for food and cover. See Carter Decl., ¶¶ 30-46 (discussing these effects and citing literature) & Exhs. 3, 26-29 (WWP submissions to BLM addressing these points).