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Western Watersheds Project v. United States Bureau of Land Management

United States District Court, D. Arizona

February 26, 2015

Western Watersheds Project, et al., Plaintiffs,
v.
United States Bureau of Land Management, Defendant.

ORDER

PAUL G. ROSENBLATT, District Judge.

This case involves challenges under the National Environmental Policy Act ("NEPA") to the Bureau of Land Management's ("BLM") decision regarding management of livestock grazing on the Sonoran Desert National Monument. Specifically, Plaintiffs Western Watershed Project and Sierra Club (collectively, "WWP") contend that the process by which BLM made its decision to allow grazing on the Sonoran Desert National Monument lands north of Interstate Highway 8 ("I-8") was not adequately explained nor adequately supported by the administrative record and thus violates NEPA. The parties have filed cross-motions for summary judgment. (Doc. 36 (WWP); Doc. 49 (BLM).) The Court will grant in part and deny in part summary judgment in favor of Plaintiffs, and will deny BLM's cross motion for summary judgment.[1]

Background

A. Establishment of the Sonoran Desert National Monument

The Sonoran Desert National Monument (the "Monument"), which was established by Presidential Proclamation in 2001, covers more than 486, 000 acres in southwest Arizona. The Monument was set aside to protect the Sonoran desert landscape and diverse plant communities, animals, and historical sites found there. The Proclamation characterizes the Monument as "the most biologically diverse of the North American deserts, " with a "spectacular diversity of plant and animal species." (AR 3886.) "The most striking aspect of the plant communities within the Monument are the abundant saguaro cactus forests, " which are a "national treasure, rivaling those within the Saguaro National Park." (Id. )

The Monument was created for the purpose "of protecting the objects identified" in the Proclamation, and thus the activities that can occur on the Monument are restricted. (AR 3887-88.) Use of motorized and mechanized vehicles off roads is prohibited within the Monument, and the Monument lands are withdrawn from any form of entry, sale, lease, or other disposition, including for mining and mineral development. (Id. ) Grazing within the Monument is also restricted. Specifically, although the "[l]aws, regulations, and policies followed by the Bureau of Land Management in issuing and administering grazing permits and leases" continue to apply to Monument lands, the Proclamation provides "that grazing permits on Federal lands within the Monument south of Interstate Highway 8 shall not be renewed at the end of their current term." (AR 3888.) Further, on Monument lands north of I-8, grazing may continue "only to the extent that the Bureau of Land Management determines that grazing is compatible with the paramount purpose of protecting the objects identified in this proclamation." (Id. )

B. The Grazing Decision

To address the actions "necessary to protect the objects" of the Monument, BLM was required to prepare a management plan. (AR 3888.) In 2002, BLM began that process by gathering data for the purpose of conducting a Land Health Evaluation ("LHE").

1. PBI Data

BLM contracted with The Nature Conservancy ("TNC"), as a primary partner in an interdisciplinary team, to make rangeland health assessments on the Monument. TNC, in turn, contracted with the Pacific Biodiversity Institute ("PBI"), through an assistance agreement with BLM, to collect data within the Monument. TNC and PBI conducted fieldwork on the Monument lands during the period 2002 to 2006, collecting data at 320 different plots.

PBI's study indicated that the lower elevation communities on the Monument were most impacted by livestock grazing and showed the greatest disturbance in the form of low vegetation cover, low native species diversity, and high levels of non-native species. Of those communities, the creosote-bursage desert scrub community, which is one of the primary communities in the Monument, had the greatest level of livestock grazing and was one of the most disturbed communities. Further, the areas around livestock congregation areas within those communities, such as water sources, other range developments, and cattle trails, had the most severe degradation with highly altered vegetation composition and structure and altered surface soils.

2. BLM Data

BLM had previously collected data in 1981, and collected additional data at "key areas" of the Monument in 2003-2004, 2007, and 2009. A "key area" is a long-term monitoring plot located in a single ecological site and plant community which is representative of the community in which it is located and represents where livestock grazing pressure is occurring across the management area. Key areas are a relatively small portion of each grazing allotment "selected because of its location, proximity to water, livestock and wildlife habitat values, and value as a long-term monitoring point."

BLM's key areas are typically located approximately one mile from a water source. WWP contends that BLM locates them at this distance from a water source, rather than closer to the source, to prevent collection of data in areas with the heaviest impacts. (Doc. 44-1 ¶ 29.) BLM contends that it locates the key areas approximately one mile from a water source "to prevent arbitrarily skewing the data toward heavy impacts (less than 0.5 miles from water) or toward fewer impacts (greater than 1.5 miles from water)." (AR 74612; Doc. 51 ¶ 29.)

3. Land Health Evaluation

BLM used the data gathered by itself and PBI to prepare the LHE, an essential step in the process of determining whether livestock grazing is compatible with protecting the objects of the Monument. The LHE gauged whether "Standard One" and "Standard Three" of the Arizona Standards for Rangeland Health were being achieved on the grazing allotments located on Monument lands north of I-8 and, if not, whether livestock grazing was the causal factor.[2] Only BLM's application of Standard Three - which examines desired resource conditions based on production and diversity of native plant communities by assessing plant composition, structure, and cover - is at issue in this case.

a. Desired Plant Community Objectives

To assess Standard Three, BLM first established desired plant community objectives for each of the "ecological sites" on the Monument. The Monument contains seven categories of "ecological sites": sandy wash, loamy swale, limy fan, limy upland deep, limy upland, granitic hills, and sandy loam deep. The desired plant objectives for each ecological site relate to vegetation canopy cover, vegetation composition, and, for some ecological sites, recruitment of saguaros.

To establish the desired plant community objectives for each ecological site, BLM considered data from corresponding ecological sites on the Barry M. Goldwater Range and Area A ("BGR/A"), and information from Natural Resources Conservation Service ecological site descriptions and reference sheets (collectively "ESD"). The BGR/A historically was grazed by livestock until the early 1940s. Since that time, BGR/A has been closed to grazing, although it has continued to have some use by trespass livestock, especially along the edges of the area.

b. Standard Three Assessment - Whether Desired Plant Community Objectives Were Being Met

After setting the desired plant community objectives, BLM compared data collected on the six grazing allotments north of I-8 with the desired plant community objectives to assess whether each of the ecological sites on each of the grazing allotments was meeting the plant community objectives. BLM relied on both its own data from 36 plots and PBI data from 48 plots. BLM did not use any PBI or other data from plots that were close to livestock congregation areas and thus excluded data from the heaviest impact areas. When comparing the key area data to the desired plant community objectives, BLM considered a plot to be meeting the objective if the data value was within 80% of the objective, i.e., was within the "80% threshold."

The final determination of whether an ecological site within an allotment was achieving desired plant community objectives was based on a preponderance of the evidence standard. Under this standard, if more than half of the plots within an ecological site were meeting all objectives, the whole ecological site was considered to be meeting objectives. This approach was used because there were not enough plots to complete a valid statistical analysis for each ecological site.

In the final LHE, BLM determined that 127, 550 acres, or 50.5 percent, of Monument lands north of I-8 were not meeting the desired plant community objectives (i.e., were not achieving Standard Three).

c. Causality Determination

In 2009, BLM collected information to determine livestock use levels during the 2008-2009 grazing season on the allotments north of I-8. BLM used two methods to assess livestock use. One method was to conduct utilization transects on the Bighorn and Conley allotments in spring and summer 2009 to estimate percent use of certain perennial shrub species.

The other method used by BLM was use pattern mapping on the Monument in March and April 2009, to determine the proportion of vegetation production that had been consumed or destroyed by the animals. To map the use patterns, BLM drove along roads on the northern portion of the Monument and stopped every half mile to a mile to assess livestock use of key perennial forage species. The level of livestock use was classified on the initial use pattern map as "negligible, " "slight, " "light, " "moderate, " "heavy, " "severe, " or "very severe." The initial use pattern map also designated areas that were "unsuitable" for grazing because they were too steep, and areas that were "unsurveyed." For areas with use classified as "heavy" or "severe, " BLM also conducted utilization transects to verify the accuracy of the classifications.

The final use pattern map produced by BLM changed the designation of certain areas from the designation that was used on the initial use pattern map. For example, areas that were initially designated as "unsuitable" were changed to a designation of "unsurveyed or inaccessible" on the final map, and areas that were initially designated as "unsurveyed" were changed to a designation of "negligible" or "slight" use on the final map. (AR 83693, 83691, 84023; Doc. 44-1 ¶ 63; Doc. 51 ¶ 63.)

BLM assumed that in areas that had greater than 40% shrub utilization (classified as moderate, heavy, or severe use), livestock grazing was the causal factor in not achieving the rangeland health standards. However, if areas had less than 40% shrub utilization (classified by BLM as negligible to slight livestock use), BLM assumed that livestock grazing was not the causal factor for non-achievement of the health standards. In areas where BLM determined that current grazing was not the causal factor for non-achievement, BLM attributed the failure to other factors such as historic livestock grazing, historic livestock patterns, fire, drought, off-road vehicle use, or general recreation.

BLM determined that of the Monument lands north of I-8 that were not achieving the desired plant community objectives, livestock grazing was the causal factor on 8, 498 acres. The remaining acreage of the Monument lands north of I-8 was deemed by BLM to be compatible with livestock grazing.

Standard of Review

WWP brings this challenge under NEPA, which requires federal agencies to consider the consequences of their actions on the environment. NEPA's mandate is "essentially procedural It is to ensure a fully informed and well considered decision." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). "NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). The goals of NEPA are to ensure the agency will have detailed information on ...


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