Grazing Cattle and the BLM's Violation of NEPA and ESA

By Emilio Camacho and Cori Badgley

In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.

BLM is the federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM’s authority under the Taylor Grazing Act of 1934, the BLM has adopted regulations that implement its grazing management responsibilities. On July 16, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM’s grazing regulations; these amendments would have decreased public involvement in public lands management, put new limitations on the BLM’s enforcement powers, and increased ranchers’ ownership rights to improvements and water on public lands.                  

The petitioner in Western Watershed Project, brought suit alleging violation of NEPA, ESA, and the Federal Land Management Policy Act (“FLPMA”). The petitioner won at trial court and BLM appealed. In addressing the first major issue, the court concluded that BLM failed to take a “hard look” at the environmental consequences and combined effects of the proposed regulatory amendments. The court explained that a final Environmental Impact Statement (“EIS”), a strict NEPA requirement, must offer a reasoned explanation and analysis for an agency’s change of policy. Given that there is a presumption against changes in current policy, the court noted that the agency proposing the change(s) must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between facts found and the choice made. In this case, agency experts concluded that there would be significant impacts but BLM, in the court’s view, did not address these conclusions and did not provide adequate evidence supporting a finding of no significant impact.

In addressing the second major issue, the court concluded that BLM (or any major agency) violates the ESA when it concludes, without rational basis, that proposed amendments to its regulations would not affect listed species or their habitat. ESA requires agencies considering actions that “may affect” listed species and their habitat to consult with the United States Fish and Wildlife Service (“FWS”). For the same reasons that the court found BLM had violated NEPA, it held that BLM violated ESA. The court reasoned that because BLM failed to consider relevant expert analysis and concerns or articulate a rational connection between the facts found and the choice made, leading to its failure to consult with FWS, its actions were arbitrary and capricious in violation of the agency’s obligations under ESA.

Part of the order was also vacated because the court, considering a third issue, concluded that the district court failed to consider plaintiffs' Federal Land Policy and Management Act claim under the framework and deference to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 842-43.

This decision reminds agencies of the following two principles: 1) agencies must consider relevant expert analysis and concerns and provide adequate responses if the agency decides to reject the expert’s conclusion; 2) when the agency is changing an existing policy or rule, the agency must articulate a rational connection between the facts found and the choice to adopt the amendments.

Emilio Camacho is a law clerk at Abbott & Kindermann, LLP and attending his third year of law school at the University of California at Davis and Cori M. Badgley is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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