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Western Watersheds Project v. Bureau of Land Management

United States District Court, E.D. California

September 4, 2013

WESTERN WATERSHEDS PROJECT, et al., Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, Defendant, FLYING M RANCH, et al., Defendant-Intervenors

Decided September 3, 2013.

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For Western Watersheds Project, Wild Earth Guardians, Plaintiffs: Alicia Ellen Thesing, Mills Legal Clinic, Stanford Law School, Stanford, CA; Leah Russin, Mills Legal Clinic of Stanford Law School, Environmental Law Clinic, Stanford, CA; Natalie J. Havlina, PHV, PRO HAC VICE, Advocates for the West, Inc., Boise, ID; Deborah Ann Sivas, Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Stanford, CA.

For Bureau of Land Management, Defendant: J. Earlene Gordon, GOVT, LEAD ATTORNEY, U.S. Attorney's Office, Sacramento, CA.

For Flying M Ranch, Defendant: William E. Peterson, LEAD ATTORNEY, Suellen Fulstone, PHV, Snell & Wilmer, LLP, Reno, NV; Brandon L. Jensen, PHV, PRO HAC VICE, Budd-Falen Law Offices, LLC, Cheyenne, WY; Karen Jean Budd-Falen, PHV, PRO HAC VICE, Budd-Falen Law Office, Cheyenne, WY.

For R.N. Fulstone Company, Intervenor Defendant: William E. Peterson, LEAD ATTORNEY, Suellen Fulstone, PHV, PRO HAC VICE, Snell & Wilmer, LLP, Reno, NV.

OPINION

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ORDER

KIMBERLY J. MUELLER, UNITED STATES DISTRICT JUDGE.

This matter is before the court on the parties' cross motions for summary judgment. (ECF 77, 83, 84, 87.) Plaintiffs assert BLM's renewal of grazing permits in Eastern California violates the Federal Land Policy and Management Act and the National Environmental Policy Act. The court held hearing on the motions on March 14, 2012. Natalie Havlina appeared for plaintiffs, J. Earlene Gordon appeared for defendant Bureau of Land Management (" BLM" ), Brandon Jensen appeared for defendant-intervenor Flying M Ranch (" Flying M" ), and Suellen Fulstone appeared for defendant-intervenor R.N. Fulstone Company (" Fulstone" ) (collectively, " defendant-intervenors" ). Having reviewed the parties' briefs and considered their arguments, and reviewed the substantial administrative record in this case,

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for the reasons below, the court GRANTS in part and DENIES in part each motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

BLM has authority under the Federal Land Policy and Management Act (" FLPMA" ), 43 U.S.C. § 1701, et seq., to issue livestock grazing permits for federal lands. See 43 C.F.R. § 4100.0-1, et seq. Grazing permits generally are valid for ten years and may be renewed. Id. § § 4110.1(b)(1), 4130.2. Under BLM's grazing regulations, grazing is managed " on public lands under the principle of multiple use and sustained yield, and in accordance with applicable land use plans." 43 C.F.R. § 4100.0-8. Grazing permits are required to have " terms and conditions determined by the authorized officer to be appropriate to achieve management and resource condition objectives for the public lands and other lands administered by the [BLM] . . . ." Id. § 4130.3. Such terms and conditions include " the kind and number of livestock, the period(s) of use, the allotment(s) to be used, and the amount of use, in animal unit months, for every permit or lease." Id. § 4130.3-1(a).

Three sets of standards, established by BLM in accordance with the FLPMA, are relevant to this action. The broadest standards are the " Central California Standards and Guidelines for Livestock Grazing" (" Central California Standards" or " Rangeland Health Standards" ), which contain the management standards and guidelines for the entire Central California geographical area. (Doc. 186: AR [1] 5777); 43 C.F.R. § 4180.2. The Central California Standards set standards for watershed function, ecological processes, water quality, and habitats of protected species. (Doc. 186: AR 5780.) These Standards apply only when a grazing allotment is not meeting certain criteria defined by the Standards themselves. (Doc. 186: AR 5791.)

Second, the 1993 Bishop Resource Management Plan (" Bishop RMP" ) applies to a smaller geographic area. ( See Doc. 233: AR 8873.) The Bishop RMP is administered by the Bishop Field Office, which manages 750,000 acres of land in Eastern California's Inyo and Mono counties. (Doc. 233: AR 8881, 8971-8973; Doc. 49: AR 1269.) A total 606,000 acres of this land, divided into 58 allotments, are open to grazing. ( See Doc. 49: AR 1269.) The Bishop RMP defines mandatory conditions for grazing on these allotments. (Doc. 233: AR 8890-8902, AR 8967-8977.)

The most specific standards relevant to this case are the challenged grazing permits themselves, which were issued by the Bishop Field Office in 2010. (Doc. 9; Doc. 13.) The Bishop Field Office's 58 grazing allotments are grouped into nine management areas. The challenged grazing permits relate to the Bodie Hills Management Area (" Bodie Hills" ), which encompasses 121,150 acres of public lands located north of Mono Lake. (Doc. 233: AR 8910.) Plaintiffs challenge BLM's renewal of grazing permits on four specific allotments within the Bodie Hills Management area: the Bodie Mountain, Mono Sand Flat, Potato Peak and Aurora Canyon allotments (collectively, " Bodie Hills allotments" ). ( See Compl., ECF 1.) Defendant-intervenor Fulstone is the permit-holder for the Potato Peak and Aurora Canyon allotments, and defendant-intervenor Flying M holds permits for the Bodie Mountain, and

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Mono Sand Flat Allotments. (Doc. 1: AR 1; Doc. 9: AR 166).

Before BLM renewed the permits for the Bodie Hills allotments, in September 2008, BLM issued an environmental assessment (" EA" ) analyzing the anticipated environmental impacts of renewal. ( See Doc. 49: AR 1238.) Prior to issuing the final EA, BLM published a draft version for public comment. Plaintiff Western Watersheds suggested changes to the draft EA, which BLM considered and addressed in the final EA. (Doc. 53: AR 1374; Doc. 49: AR 1238.)

BLM has designated two of the species known to inhabit the Bodie Hills allotments as " sensitive species" : the greater sage grouse ( centrocercus urophasianus ) and the pygmy rabbit ( brachylagus idahoensis ). (Doc. 49: AR 1323-1330.) The Bishop RMP contains provisions to protect these sensitive species. (Doc. 233: AR 8897.) Among these prescriptions are required yearlong and seasonal protections of these animals' habitats.

In 2003, several parties, including plaintiff Western Watersheds, petitioned the U.S. Fish and Wildlife Service to list the pygmy rabbit as endangered or threatened under the Endangered Species Act. (Doc. 3: AR 6.) In 2005, the U.S. Fish and Wildlife Service (" FWS" ) published a 90-day finding in the Federal Register, which stated that listing was not warranted. ( Id. ) The federal court for the District of Idaho vacated and remanded the finding, ordering FWS to issue a new finding on or before December 26, 2007. W. Watersheds Project v. Norton, CV 06-00127SEJL, 2007 WL 2827375 (D. Idaho Sept. 26, 2007). FWS issued the new 90-day finding on January 8, 2008, stating " that the petition presented substantial information indicating that the petitioned action may be warranted" and initiating a 60-day public comment period. (Doc. 3: AR 6.) On September 30, 2010, the FWS issued a proposed finding that listing was not warranted. ( Id. )

Plaintiffs filed their complaint challenging BLM's renewal of the grazing permits on October 26, 2010. Plaintiffs' two claims allege BLM's actions violated the 1) FLPMA and 2) the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321, et seq. [2] The court will address each of these claims in turn after addressing the threshold jurisdictional issues of exhaustion and standing.

II. JURISDICTION

A. Issue Exhaustion

Defendant-intervenors Flying M and Fulstone contend this court cannot entertain plaintiffs' FLPMA claim because plaintiffs did not raise their FLPMA arguments during the administrative process. Flying M and defendant BLM argue this court lacks jurisdiction to hear any claims brought by plaintiffs that were not raised during the administrative process. (ECF 83-1 at 12-13; ECF 84-1 at 17-18.) Fulstone similarly argues plaintiffs did not raise the issue of the contested grazing decisions violating the Bishop RMP at any time during the administrative process, but asserts instead that this lapse means plaintiffs' FLPMA claim fails as a matter of law. (ECF 87-1 at 21-22.) The court construes defendant-intervenors' arguments as raising issue exhaustion only. If defendant-intervenors also are arguing exhaustion of administrative remedies, the

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court finds this argument has no merit. Plaintiffs challenging BLM grazing decisions in this Circuit are not required to exhaust administrative remedies. W. Watersheds Project v. Salazar, 843 F.Supp.2d 1105, 1123 (D. Idaho 2012) (citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 827-28 (9th Cir. 2002)).

Plaintiffs are two regional not-for-profit conservation organizations dedicated to protecting the Western United States' natural resources. (Compl. ¶ ¶ 11-12.) Plaintiffs argue that defendant-intervenors confuse exhaustion of administrative remedies with issue exhaustion, that the FLPMA does not require exhaustion of administrative remedies, and that issue exhaustion is not applicable to their FLPMA claim. (ECF 90 at 18-22.)

Defendant-intervenors cite Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), and related cases to contend plaintiffs are barred from raising claims before this court that were not raised in the administrative process. ( See, e.g., ECF 83-1 at 12; ECF 84-1 at 24; ECF 87-1 at 22.) Under Vermont Yankee and its progeny, parties " challenging an agency's compliance with NEPA must structure their participation so that it . . . alerts the agency to the [parties'] position and contentions, in order to allow the agency to give the issue meaningful consideration." Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (internal quotations and citation omitted). Plaintiffs argue this line of cases is distinguishable on two grounds. First, these cases' exhaustion holdings are applicable only to NEPA, and in the instant case defendant-intervenors' exhaustion arguments relate only to the FLPMA. (ECF 90 at 20-21.) Second, the Ninth Circuit has refused to apply the Vermont Yankee doctrine to other statutes. ( Id. at 20 (citing Nw. Envir. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1535 (9th Cir. 1997)) (" NEDC " ).) In short, plaintiffs contend defendant-intervenors do not cite any legal authority requiring plaintiffs to exhaust their FLPMA claims prior to seeking judicial review. ( Id. at 21.)

While specific guidance on issue exhaustion has been provided for certain statutes like NEPA, see, e.g. Pub. Citizen., 541 U.S. at 764-65, no bright line standard for FLPMA issue exhaustion exists in the Ninth Circuit. See Or. Natural Desert Ass'n v. McDaniel, 751 F.Supp.2d 1151, 1159 (D. Or. 2011) (surveying issue exhaustion cases in this Circuit and holding plaintiffs satisfied FLPMA issue exhaustion requirement). As a general rule, courts in this Circuit will consider only those issues that were " presented before an administrative proceeding at the appropriate time." Nat'l Parks & Conservation Ass'n v. BLM, 606 F.3d 1058, 1065 (9th Cir. 2009) (quoting Marathon Oil Co. v. United States, 807 F.2d 759, 767-68 (9th Cir. 1986)) (internal quotations omitted). However, this general exhaustion requirement should be interpreted " broadly" : it is fulfilled if plaintiffs' appeal " provided sufficient notice to the [agency] to afford it the opportunity to rectify the violations that the plaintiffs alleged." Id. (quoting Native Ecosystems v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002)) (internal quotations omitted). Plaintiffs are not required to raise an issue in precise legal terms. Id. Thus, even " general objection[s]" to an agency action under the FLPMA can suffice if the objections, taken as a whole, provide the agency sufficient notice so that the agency can resolve the claim. McDaniel, 751 F.Supp.2d at 1163-64 (citing Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 965- 66 (9th Cir. 2002) and Native Ecosystems Council, 304 F.3d at 899). However,

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general objections that are too attenuated from the issues raised before the district court will not suffice. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 967 (9th Cir. 2006).

Plaintiff Western Watersheds Project (" WWP" ) raised objections to BLM's contested July 27, 2009 grazing decisions at several administrative stages. On July 23, 2008, WWP objected to the EA for livestock grazing on the Bodie Hills allotments. (Doc. 53: AR 1374-1390.) In its objection letter, WWP repeatedly referenced FLMPA requirements and discussed its concern for the welfare of the sage grouse and the pygmy rabbit in light of the impacts that livestock grazing on the allotments would have on these two species, impacts such as trampling and loss of vegetative cover. (Doc. 53: AR 1377-1380, 1383-1384.) WWP also protested the proposed grazing decisions on October 17, 2008, stating that the revised EA " acknowledg[es] that livestock grazing impacts sage grouse, pygmy rabbit, and the American pika" but " failed to fully analyze the site-specific impacts of the proposed action on these species or their habitat . . . ." (Doc. 42: AR 1178.) Finally, in its August 28, 2009 appeal of the final grazing decisions, WWP reiterated the above concerns, referenced the fact that the governing land use plan is the Bishop RMP, and included language from the EA, which stated the Bishop RMP controls the height requirement for riparian vegetation. (Doc. 31: AR 702, 712.)

Defendant-intervenors correctly note these objections do not contain the specific arguments plaintiffs assert before this court. Flying M takes the position that WWP's general comments to the agency about alleged impacts of grazing on wildlife habitat are too attenuated from WWP's FLPMA arguments in this action, that BLM is not providing yearlong and seasonal protections to sage grouse and pygmy rabbit habitat as required specifically by the Bishop RMP. (ECF 83-1 at 13-14.) At hearing, counsel for Fulstone similarly argued that WWP never claimed in its arguments at the administrative level that BLM violated the FLPMA specifically by infringing the Bishop RMP's seasonal and yearlong protection requirements. The question this court must resolve is whether WWP's objections are too general to have provided BLM sufficient notice to resolve the more specific claims now before this court.

In McDaniel, the plaintiff argued a BLM decision to open to motorized travel certain routes in a Wilderness Study Area (" WSA" ) that had fallen into obscurity violated the FLPMA's non-impairment requirement. 751 F.Supp.2d at 1163-64. The defendant argued the plaintiff had failed to exhaust the FLPMA non-impairment issue because " it only complained about the designation of public-access 'Obscure Routes' within the WSAs" in an appeal of the BLM's decision. Id. The plaintiff had not mentioned other types of routes, such as permittee-only routes, and had not specified which part of the FLPMA the BLM's decision violated. See id. at 1164. While the court characterized plaintiff's statements as a " general objection" to the challenged BLM action, the court held that " such imprecise formulations can satisfy the issue exhaustion requirement" because plaintiff's administrative appeal, " ' taken as a whole, provided sufficient notice' to the IBLA of [plaintiff's] objection to the [] designation of new routes within the WSAs." Id. (quoting Native Ecosystems Council, 304 F.3d at 899) (original emphasis).

In Hankins, the court affirmed in part and reversed in part the district court's holdings on issue exhaustion. 456 F.3d at 967. The plaintiff challenged BLM's approval

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of two gold mining permits. Id. at 960. During the permit proposal phase, the plaintiff had made " general comments" about the mining's impact on groundwater, springs, and seeps, and it had expressed concern about the current and future levels of toxins such as arsenic in the discharged water. Id. at 965-67. Before the district court, the plaintiff argued more specifically that granting the mining permits violated, among other things, the FLPMA and Public Water Reserve No. 107, the latter of which was issued by Executive Order in 1926. Id. Reversing the district court, the court held these general comments were sufficient to exhaust the plaintiff's FLPMA claims because the plaintiff " clearly expressed concern about the current and future levels of toxins in the discharged water, and the [BLM] was on notice of these concerns." Id. at 965. However, the district court correctly held that plaintiff's claim under the 1926 Executive Order was not exhausted, because the plaintiff's general comments about groundwater, springs, and seeps " in no way suggest an argument that the Bureau failed to protect federally-reserved water rights under an eighty-year-old Executive Order." Id. at 967.

Here, the court concludes WWP exhausted its FLPMA claims. [3] While WWP did not specifically argue that the grazing permits violated the FLPMA by infringing the Bishop RMP's seasonal and yearlong requirements, WWP stated generally that it was concerned about livestock grazing's impacts on the sage grouse and pygmy rabbit inhabiting the Bodie Hills allotments. (Doc. 53: AR 1377-1380, 1383-1384.) WWP also protested that BLM had not conducted site-specific analyses of grazing's impacts on these species' habitats. (Doc. 42: AR 1178.) Moreover, WWP clearly referred to the FLPMA and the Bishop RMP as containing the controlling requirements for grazing decisions. (Doc. 31: AR 702, 712, 714, 716-717.) As with the FLPMA arguments in McDaniel and Hankins, WWP's statements taken as a whole are sufficient to put BLM on notice of the concerns WWP more specifically elucidates in this action. Furthermore, the Bishop RMP is the land use plan that governs the Bodie Hills allotments where the grazing at issue in this case takes place, not analogous to an obscure eighty-year-old executive order. See Hankins, 456 F.3d at 967.

At the same time, it is undisputed that plaintiff Wild Earth Guardians (" WEG" ) did not participate in the administrative process. The court therefore addresses WEG's ability to persist as a party in this action separately below.

B. Standing

Plaintiffs assert that because plaintiff WWP has standing, it is unnecessary to consider whether plaintiff WEG has standing. (ECF 90 at 44 n.15 (citing Slockish v. U.S. Fed. Highway Admin., 682 F.Supp.2d 1178, 1186 (D. Or. 2010) (citing Nat'l Ass'n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009)).) At hearing, defendant-intervenors contested this assertion, arguing that permitting such piggyback standing would allow unfair leveraging of attorney's fees provisions and the right to appeal.

Authorities supporting each side's positions exist. Slockish and Brown hold that as a general matter a court in an injunctive relief case need not address

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each plaintiff's standing if it concludes that one plaintiff has standing. See also Sierra Club v. El Paso Props., Inc., No. 01- cv-02163-BNB-MEH, 2007 WL 45985, at *3 (D. Colo. Jan. 5, 2007) (no need to consider standing for multiple plaintiffs because both were " represented by the same counsel, raise the same Clean Water Act claims, and have presented their arguments to the court jointly throughout these proceedings . . . ." ).) However, this general rule does not bar a court from considering whether other plaintiffs have standing in cases with multiple plaintiffs. We Are America/Somos America, Coal. of Ariz. v. Maricopa Cnty. Bd. of Supervisors, 809 F.Supp.2d 1084, 1090-94 (D. Ariz. 2011) (considering defendant's motion to dismiss organizations and taxpayers separately for lack of standing and determining some did not have standing).

Because the parties do not dispute that plaintiff WWP has standing, the court finds it need not reach whether plaintiff WEG has standing. Defendant-intervenors did not separately move to dismiss plaintiff WEG for lack of standing, as did the defendants in Somos America, and defendant-intervenors' concerns about attorney's fees and rights to appeal expressed at hearing are unfounded. Because both plaintiffs have retained the same counsel and assert identical claims, there is no reason to fear additional attorney's fees would be awarded should plaintiffs prevail. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918 (9th Cir. 2004). While WEG could seek to appeal this court's order, if it did so independently of plaintiff WWP then WEG's independent standing would be considered at that juncture. Cf. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993) (finding that the district court's determination that one organizational plaintiff had standing normally would end the standing inquiry, but because the appellate court determined on appeal that the organizational plaintiff had waived its claims, the appellate court considered the standing of the other individual plaintiffs).

Finally, the court denies BLM's motion to strike WWP's extra-record declarations, which WWP claims are submitted to supplement the record on standing. Courts may consider such declarations " not in order to supplement the administrative record on the merits, but rather to determine whether petitioners can satisfy a prerequisite to this court's jurisdiction." Bonneville Power Admin., 117 F.3d at 1528; s ee also Natural Res. Def. Council, Inc. v. U.S. Forest Serv., 634 F.Supp.2d 1045, 1053 (E.D. Cal. 2007) (denying motion to strike declarations and disavowing reliance on the declarations except as they were relevant to standing); Karuk Tribe of Cal. v. U.S. Forest Serv., 379 F.Supp.2d 1071, 1088 (N.D. Cal. 2005), rev'd on other grounds, 681 F.3d 1006 (9th Cir. 2012) (holding extra-record declaration permissible to establish standing, even though neither defendants nor intervenors contested standing).

III. APA STANDARD OF REVIEW

The court reviews final agency actions under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, et seq. The court does not determine whether there are disputed issues of material fact as it would in a typical summary judgment proceeding; its review is based on the administrative record. 5 U.S.C. § 706(2)(F); Nw. Motorcycle Ass'n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994); see also South Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 723 F.Supp.2d 1247, 1256 (E.D. Cal. 2010) (usual summary judgment standards do not apply). The court must consider whether the agency's actions, findings and

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conclusions are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. . . ." 5 U.S.C. § 706(2)(A). The court's inquiry must be " searching and careful, but the ultimate standard is a narrow one." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citation omitted).

Under this narrow standard, a decision is arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it ...

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