Western Watersheds Project v. Bureau of Land Management ( 2013 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 23, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
WESTERN WATERSHEDS PROJECT,
Petitioner - Appellant,
v. No. 12-8012
BUREAU OF LAND MANAGEMENT,
Respondent - Appellee,
------------------------------
LHS SPLIT ROCK RANCH, LLC,
Intervenor - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 2:10-CV-00266-SWS)
Erik Ryberg, Tucson, Arizona, appearing for Petitioner-Appellant.
C. Levi Martin, Assistant United States Attorney (Christopher A. Crofts, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Wyoming, Cheyenne, Wyoming, appearing for Respondent-Appellee.
Brandon L. Jensen (Karen Budd-Falen, with him on the brief), Budd-Falen Law Offices,
LLC, Cheyenne, Wyoming, appearing for Intervenor-Appellee.
Before LUCERO, HARTZ, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
Petitioner-Appellant Western Watersheds Project (“WWP”) challenged a Bureau
of Land Management (“BLM”) decision to grant a 10-year grazing permit to LHS Split
Rock Ranch, LLC (“Split Rock”) for four federal public land allotments in central
Wyoming (“the Split Rock allotments”). WWP asserted that BLM’s decision to grant the
grazing permit was arbitrary and capricious because BLM had previously concluded that
past grazing was a substantial cause of serious environmental degradation on the Split
Rock allotments. The district court granted summary judgment to BLM. WWP appeals.
Split Rock responds as Intervenor-Appellee.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
We begin by describing several relevant statutes and regulations. We then
summarize the factual and procedural history of the case before turning to our analysis of
the issues.
A. Relevant Statutes and Regulations
The Taylor Grazing Act of 1934, 43 U.S.C. § 315 et seq., authorizes BLM to
establish livestock grazing allotments on federal public lands. In carrying out this
mission, BLM also must comply with the Federal Land Policy and Management Act of
1976 (“FLPMA”), 43 U.S.C. § 1711 et seq., which requires BLM, inter alia, to develop
land use plans for the public lands it administers with a goal of improving resource
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conditions and avoiding “undue degradation” of the land. Id. §§ 1712(a), 1732(b).
FLPMA also requires BLM to manage public lands according to a “[m]ultiple use
management.” See State of New Mexico ex rel. Bill Richardson v. BLM, 565 F.3d 683,
690 n.3 (10th Cir. 2009). To fulfill its multiple use mission, BLM must design its land
use plans to strike “a balance among the many competing uses to which land can be put.”
Id. (quotations omitted); see also 43 C.F.R. § 1601.0-5(i).
Federal regulations similarly direct BLM to ensure that livestock grazing does not
exceed the “carrying capacity” of the land. 43 C.F.R. § 4130.3-1. “Carrying Capacity
means the maximum stocking rate possible without inducing damage to vegetation or
related resources.” Id. § 4100.0-5.
In 1987, pursuant to these authorities, the BLM developed a land use plan for the
Lander Field Office, which oversees the Split Rock allotments. Once a land use plan is
implemented “all future resource management authorizations and actions . . . shall
conform to the approved plan.” 43 C.F.R. § 1610.5-3(a). This means BLM’s actions
must be “clearly consistent with the terms, conditions, and decisions of the approved
plan.” Id. at § 1601.0-5(b). The 1987 Lander Resource Management Plan (“RMP”) is
the current land use plan and therefore guides BLM’s decisions concerning the land.
The Lander RMP provided for continued grazing on public lands consistent with
multiple use planning. Aplt. Appx. at 141, 143. The RMP outlined three objectives for
the rangeland use: (1) “[p]rovide enough forage on a sustained-yield basis to satisfy at
least the present demands of livestock, wild horses, and wildlife”; (2) “[m]aintain range
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condition at a level that would provide for sustained yield of forage production”; and (3)
“[m]aintain and improve the terrestrial, aquatic, and riparian1 ecosystems to provide
wildlife with adequate amounts of forage and habitat to maintain planned population
levels.” Id. at 144.
In carrying out these objectives under the FLMPA and the RMP, BLM considers
six categories of ecological health for rangeland, which are referred to as the Rangeland
Health Standards (“RHS”). Id. at 201-03; see also 43 C.F.R. § 4180.2. They include:
(1) Soils, (2) Riparian, (3) Upland Vegetation, (4) Diverse Species Habitat, (5) Water
Quality, and (6) Air Quality. Aplt. Appx. at 201-03. As we later discuss, whenever RHS
are not met, federal regulations require BLM to investigate and determine the cause. See
43 C.F.R. § 4180.2(c)(1). If grazing is a culprit, BLM must take appropriate corrective
action. See id. § 4180.2(c)(3).
Finally, the National Environmental Policy Act of 1969 (“NEPA”) requires federal
agencies to “assess potential environmental consequences of a proposed [agency] action.”
Utah Envtl. Congress v. Russell, 518 F.3d 817, 820 (10th Cir. 2008); see also 42 U.S.C.
§ 4331 et seq. “NEPA dictates the process by which federal agencies must examine
environmental impacts, but does not impose substantive limits on agency conduct.”
1
A riparian area is “land directly influenced by permanent water. It has visible
vegetation or physical characteristics reflective of permanent water influence. Lake
shores and stream banks are typical riparian areas.” Clive Kincaid, Interior Dec. 224,
229, 1989 WL 255324 111 (IBLA 1989) (quoting BLM Director’s Riparian Area
Management Policy dated January 22, 1987).
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Russell, 518 F.3d at 821. Rather, it serves to promote informed agency decision making,
government transparency, and public access to information. See State of New Mexico,
565 F.3d at 703.
Regulations implementing NEPA establish a two-part process for an agency
considering a proposed action. First, the agency must determine whether the proposed
action will significantly affect the environment. If the answer is not immediately
apparent, the agency must prepare an Environmental Assessment (“EA”), which is “a
concise public document that briefly provides sufficient evidence and analysis for
determining” the appropriate next step. Russell, 518 F.3d at 821 (quotations omitted); see
also 40 C.F.R. § 1508.9.
If the EA concludes that the proposed action will have no significant effect on the
environment, the agency may issue a Finding of No Significant Impact (“FONSI”) and
move forward with the proposed action. Russell, 518 F.3d at 821; see also §§ 1501.4(e),
1508.13. Otherwise, it must move on to the more extensive process of developing an
Environmental Impact Statement (“EIS”) to “‘rigorously explore and objectively evaluate
all reasonable alternatives’” and consider the comparative merits and environmental
effects of the alternatives against the proposed action. Wyoming v. U.S. Dep’t of
Agriculture, 661 F.3d 1209, 1243 (10th Cir. 2011) (quoting 40 C.F.R. § 1502.14(a)).
B. Factual History
Petitioner-Appellant WWP is a non-profit public interest organization committed
to promoting species and habitat protection in the western states, including Wyoming
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rangelands. Permittee LHS Split Rock is a Delaware limited liability company that
operates a ranch in central Wyoming. In 2003, BLM granted Split Rock a 10-year permit
allowing livestock grazing on four allotments in two central Wyoming counties.2 The
four Split Rock allotments—Diamond Springs, North Dobie Flat, South Dobie Flat, and
Black Jack Ranch—together encompass more than 90,000 acres of public land.
Grazing permits authorize limited grazing on designated land, within set limits
defined by stocking level and animal-unit-months (“AUM”). “Stocking level” refers to
the volume of grazing on the land.3 “AUM” refers to the amount of forage needed to
sustain one cow or its equivalent for one month. See 43 C.F.R. § 4100.0-5. Split Rock’s
grazing permit authorized a stocking level of 216 grazing days each year and up to 9,400
AUM. Since 1993, stocking levels on the Split Rock allotments have averaged 8,054
AUM.
1. 2005 Rangeland Health Standards Assessment
In 2005, BLM completed a comprehensive assessment of rangeland health
standards (“RHS”) on public lands in the Lander area. The RHS assessment revealed
significant rangeland health issues on all four Split Rock allotments. The allotments all
2
The permit was initially issued to a predecessor of LHS Split Rock, LLC, called
Split Rock Holdings, LLC. We refer to both entities interchangeably as “Split Rock.”
Split Rock is wholly owned by U.S. Farming Realty Trust, L.P., a Delaware limited
partnership.
3
We use the terms “stocking level” and “stocking rate” interchangeably.
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clearly failed in four of the six RHS standards—Soils, Riparian, Upland Vegetation, and
Diverse Species Habitat. One standard, Water Quality, was “unknown.” Aplt. Appx. at
202. The allotments passed only one of the six standards, Air Quality.
Failure under the standard of Riparian health was especially pronounced, as no
BLM-administered acres in the area met the standard. All but .7 miles of riparian land
was found to be “Functional-at-Risk with a downward trend.” Id. at 233; also see Aplt.
Br. at 19. Split Rock’s failure to comply with the herding requirements under its initial
permit allowed cattle to overuse riparian areas and contributed to this deficiency. Failure
under the Soils standard also was notable, with only 24 to 36 percent of the total acreage
in each allotment meeting soil productivity standards. The RHS assessment described the
soils as having bare ground and sparse vegetative cover, with the entire topsoil layer
absent in many areas. Although the water quality had not been recently tested, the RHS
assessment noted the decline or depletion of fisheries that had thrived several decades
earlier.
The results from this RHS assessment indicated that the stocking levels, i.e.,
grazing use, exceeded the carrying capacity of the Split Rock allotments. As noted
previously, “carrying capacity” refers to “the maximum stocking rate possible without
inducing damage to vegetation or related resources. It may vary from year to year on the
same area due to fluctuating forage production.” 43 C.F.R. § 4100.0-5. Federal
regulations require the BLM to “reduce permitted grazing use or otherwise modify
management practices” whenever carrying capacity is exceeded. Id. § 4110.3-2(b).
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In early 2006, the Lander Field Manager (“Lander FM” or “FM”) issued RHS
determinations that livestock overgrazing was a significant cause of these problems.
Following any RHS failure, federal regulations require BLM to identify and implement
“appropriate action” to make “significant progress toward fulfillment of the standard” by
the start of the next grazing year. Id. § 4180.2(c). Pursuant to this requirement, the FM
outlined Appropriate Actions to stall or reverse the land degradation described in the
2005 RHS assessment. These Appropriate Actions called for nearly two-dozen
aggressive changes to terms and conditions of Split Rock’s grazing permit, including
three-day pasture limits; maximum of 20-days’ hot-season grazing on some pastures; and
a rest-rotation system on six pastures, which would remove livestock entirely from one
pasture per year.
2. “Second Look” at the RHS assessment
Before the FM could implement these changes, he was replaced by a new Lander
FM, who rescinded the RHS findings and “directed the BLM staff to take a second look
at the . . . assessment [and] determination of cause.” Aplt. Appx. at 199. The new FM
directed the staff to consider “an independent opinion of rangeland conditions,” which
was to be commissioned by Split Rock. Id. He also ordered a peer review of the 2005
RHS Assessment. This peer review, conducted by experts outside the Lander Field
Office, concluded that the 2005 RHS Assessment was based on “scientifically accepted
and well established procedures” and that its conclusions were supported by
“[p]rofessional experience and hard data.” Id.
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In June 2007, the Lander Field Office staff submitted its determinations, which
affirmed its previous findings of severe rangeland health problems and again identified
overgrazing as a substantial cause. NEPA therefore required BLM to undertake an EA
before deciding whether to reissue Split Rock’s grazing permits. See 43 C.F.R.
§ 4180.2(c)(3).
3. The Environmental Assessment
The 102-page EA was issued in 2009. Relying largely on the 2005 RHS
Assessment, it acknowledged serious ecological problems on the rangeland. The EA
considered five alternatives to address these problems, but only three were analyzed in
detail. Two alternatives, referred to as “No Action” and “No Grazing,” were briefly
considered but rejected without detailed analysis. Aplt. Appx. at 209-10. The EA
explained that BLM had chosen not to analyze the No Action alternative because No
Action would have meant maintaining the same 2003 permit terms that had been found
detrimental. The EA did not analyze the No Grazing alternative because the 1987 Lander
RMP had “concluded that eliminating livestock grazing from all public lands would not
be a viable or necessary option,” and this document guided BLM. Aplt. Appx. at 210.
The EA analyzed the remaining three alternatives in detail. No single alternative
incorporated all of the nearly two-dozen Appropriate Actions developed in response to
the RHS.
Alternative One would have accomplished rangeland recovery primarily through a
robust rest-rotation grazing system, with only a slight decrease in volume of grazing. The
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rest-rotation system would have required one pasture to be fully rested each year, i.e., no
grazing on that pasture for the year. It would have restricted hot-season grazing on two
pastures, but otherwise require only a small decrease in the number of cattle, AUM, or
annual grazing days. The EA found this alternative to be the most effective of the three
in improving rangeland health.
Alternative Two would have accomplished rangeland recovery primarily through a
large decrease in stocking rate, with only deferred rotation rather than full rest rotation.
Deferred rotation would have meant delaying the start of the grazing season by several
weeks on most pastures. This alternative would have required nearly a one-third decrease
in the number of cattle and AUM and more intensive herding during the hot-season
period. The EA found this alternative would have improved rangeland health in an
“acceptable timeframe” but not as quickly as Alternative One.
Alternative Three was submitted by Split Rock. It called for an increase in
stocking rate (more cattle, higher AUM), an expanded grazing season, and some
deferred-rotation but no rest rotation. The EA found this alternative would have
accelerated degradation in several areas.
4. The FONSI and the Proposed Decision
In April 2009, several months after the EA was issued, the Lander FM issued a
FONSI—i.e., a finding that renewal of the Split Rock grazing permit would not
significantly affect the environment. As a result of the FONSI, no EIS was conducted.
Instead, BLM issued a Notice of Proposed Decision. The Proposed Decision did not
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match any of the alternatives described in the EA. Rather, it combined Alternatives One
and Two by eliminating the most environmentally protective features of each: it required
neither rest rotation nor a significant decrease in stocking levels. But the Proposed
Decision did incorporate other protective features, such as fencing, deferred rotation, and
a shorter grazing season.
Split Rock and WWP both protested. In response, BLM agreed to allow an
additional 100 cattle (for a total of 1,200 head) in exchange for Split Rock’s commitment
to provide a full-time employee to assist with herding compliance, which would help to
even out grazing across the acreage and reduce overgrazing of some at-risk areas,
especially riparian areas. It issued a final Notice of Decision in October 2009, granting
Split Rock a 10-year grazing permit under the terms of the Proposed Decision with these
negotiated adjustments.
The following chart summarizes the historic use of the allotments, the first two
alternatives considered in the EA, and the final Proposed Decision:4
4
For the remainder of this opinion, “Proposed Decision” refers to BLM’s final
proposed action on the Split Rock grazing permit, including the negotiated adjustments
detailed above.
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Change in Rest rotation
Stocking level or deferred Fencing & herding
AUM
rotation
8,054 AUM  No fencing
Historic use (1,366 cattle; - Neither  Herding required but
216 days) with poor compliance
6,717 AUM
Alternative 17% Full rest  Extensive fencing
(1,250 cattle;
One decrease rotation  No herding required
195 days)
5,358 AUM
Alternative 34% Deferred  Some fencing
(1,000 cattle;
Two decrease rotation only  Herding required
204 days)
Final 6,669 AUM  Some fencing
17% Deferred  Herding required and
Proposed (1,200 cattle;
decrease rotation only more strictly enforced
Decision 204 days)
C. Procedural History
WWP filed a Petition for Review of Agency Action in the Wyoming federal
district court pursuant to 5 U.S.C. §§ 701-706 of the Administrative Procedures Act
(“APA”). The petition challenged the new proposed grazing permit. WWP argued that
the permit decision was arbitrary and capricious because, inter alia, the EA failed to
comply with NEPA requirements to evaluate a reasonable range of alternatives and failed
to take a “hard look” at potential environmental consequences of the proposed action.
See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983).
The district court granted summary judgment to BLM. It concluded that BLM’s
permit decision was not arbitrary and capricious, finding that the EA had considered a
reasonable range of alternatives by establishing an adequate baseline from current
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conditions and including environmentally protective features. The court also determined
the EA met the hard look requirement.
II. DISCUSSION
We review de novo the district court’s grant of summary judgment for BLM.
State of New Mexico, 565 F.3d at 704-05 (10th Cir. 2009). Although the district court’s
decision is not afforded deference, BLM’s decision must be: “Our inquiry under the
APA must be thorough, but the standard of review is very deferential to the agency.”
Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156,
1165 (10th Cir. 2012) (quotations omitted). “A presumption of validity attaches to the
agency action and the burden of proof rests with” WWP. Morris v. U.S. Nuclear
Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir. 2010) (quotations omitted). Our
deference is most pronounced in cases where, as here, the challenged decision involves
“technical or scientific matters within the agency’s area of expertise.” Utah Envtl.
Congress v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).
This deference means we may set aside an agency action only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). An agency decision is arbitrary and capricious only if the agency
(1) entirely failed to consider an important aspect of the problem, (2)
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise,
(3) failed to base its decision on consideration of the relevant factors,
or (4) made a clear error of judgment.
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State of New Mexico, 565 F.3d at 704 (quotations omitted).
WWP raises two issues on appeal. First, it argues that the EA failed to evaluate a
reasonable range of alternatives as required under NEPA. Second, it argues that BLM
failed to take the required “hard look” at the potential environmental consequences of its
actions. We discuss each of these issues below and conclude that BLM’s decision was
not arbitrary and capricious.
We note, however, that WWP has raised serious questions about BLM’s decisions
regarding the Split Rock grazing permit that make this case difficult even under our
highly deferential review standard. The record reveals troubling problems with the
rangeland health of the Split Rock allotments, and even BLM implicitly acknowledges
that its Proposed Decision is unlikely to remedy these problems quickly. Nevertheless,
NEPA “merely prohibits uninformed—rather than unwise—agency action.” Id. It is not
within our authority to resolve whether BLM selected the best or wisest option. The
agency considered a reasonable range of alternatives, and its analysis met the minimum
threshold necessary to constitute a “hard look” at the consequences of its actions. We
may “not substitute our judgment for that of” BLM. Davis v. Mineta, 302 F.3d 1104,
1114 (10th Cir. 2002).
A. Did the EA Fail to Evaluate a “Reasonable Range of Alternatives”?
WWP argues that the EA failed to evaluate a reasonable range of alternatives as
required by NEPA because it analyzed only three alternatives that were on the permissive
end of the spectrum. WWP points to two problems in particular: failure to analyze the
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No Action alternative and failure to consider an aggressive, i.e., environmentally
protective, alternative.
1. No analysis of the No Action alternative
The EA expressly considered a “No Action” alternative, which would have
maintained the terms of the 2003 permits. Aplt. Appx. at 209. But it rejected this
alternative without analysis, explaining that No Action was not feasible because BLM
had already determined that the terms of the 2003 permits were detrimental to land
conditions. WWP does not advocate for implementation of the No Action alternative.
But it insists the EA should have analyzed this alternative to create a more effective
baseline for understanding the merits of Alternatives One, Two, and Three.
WWP argues that BLM was required to include a detailed analysis of the No
Action alternative under 40 C.F.R. § 1502.14, which requires inclusion of a no action
alternative in every EIS to provide “a clear basis for choice among options.” Id. But the
problem for WWP is that § 1502.14 does not apply. That provision governs the EIS,
which is more comprehensive than the preliminary EA document at issue here.5
Regulations require both documents to incorporate a range of reasonable
alternatives, but the depth of discussion and analysis required is different depending on
whether the document is an EIS or an EA. For example, section 1502.14 provides that an
5
WWP also cites State of Wyoming v. USDA, 661 F.3d 1209, 1244 (10th Cir.
2011), for the same proposition. But, like § 1502.14, State of Wyoming addresses the
standards for an EIS, not an EA.
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EIS should “[r]igorously explore . . . all reasonable alternatives,” and “[d]evote
substantial treatment to each alternative” with “detail.” Id. at (a)-(b). In contrast,
§ 1508.9 describes the EA as “a concise public document” that “[b]riefly provide[s]
sufficient evidence and analysis for determining whether to prepare an [EIS],” with “brief
discussions of the need for the proposal, of alternatives . . . [and] of the environmental
impacts.” Id. at (a)-(b).
In Davis v. Mineta, we said that a court of appeals reviews an EA’s FONSI
conclusion to determine whether an EIS should have been prepared. 302 F.3d at 1112.
This involves asking “whether the agency acted arbitrarily and capriciously in concluding
that the proposed action will not have a significant effect on the human environment.”
Id. (quotations omitted).6 Given the different standards for an EIS and an EA, the
absence of a detailed No Action analysis by itself does not render this FONSI arbitrary
and capricious.
WWP nevertheless argues that the EA was defective without a detailed No Action
analysis because there was no adequate baseline for evaluating the three analyzed
6
Davis illustrates one set of circumstances under which an EA may be arbitrary
and capricious. We reversed the U.S. Department of Transportation’s FONSI following
an EA concerning a new highway plan. 302 F.3d at 1110. The EA analyzed only the
proposed action and no action—but no other alternatives. Id. at 1112-13. The evidence
showed that DOT had hired a consultant to conduct the EA and instructed him in advance
that the EA must conclude with the issuance of a FONSI. Id. The EA concluded that a
plan to build a five-lane highway through a park where no road then existed would have
no significant environmental impact, even though the plan would have involved
demolition of historic structures, required construction of a bridge across a river, tripled
noise levels, and resulted in 34,000 cars per day traveling across the park. Id.- 16 -
alternatives. This argument fails because Section III of the EA devoted 19 pages to
describing “the baseline conditions within the Split Rock Ranch Allotments.” Aplt.
Appx. at 219. The EA used this discussion “as a comparison for determining the effects
of the alternatives on the critical elements of the human environment.” Id.; see id. at 219-
238. Section IV then described the anticipated environmental consequences of each of
the three analyzed alternatives. Both sections addressed the same resource categories—
soil and water, vegetation, riparian/wetland, wildlife/fisheries, special status species, and
cultural/socioeconomics—to “allow[] the reader to compare existing resource conditions
to potential impacts for the same resources.” Id. at 238; compare id. at 219-238, with id.
at 238-279.
WWP argues that the baseline was not detailed or robust enough, but these
arguments are again premised on EIS requirements, not the more lenient EA
requirements that actually govern. Under our highly deferential review, we cannot set
aside the agency’s decision merely because the EA could have been more thorough than
it was. WWP must show that the absence of a No Action analysis compromised the EA
so severely as to render the FONSI arbitrary and capricious. 5 U.S.C. § 706(2)(A).
After carefully reviewing the EA, we conclude that the absence of a No Action
analysis did not render the EA or the FONSI arbitrary and capricious.
2. No aggressive alternative
The EA expressly considered a “No Grazing” alternative, which would end
grazing altogether on the Split Rock allotments. But as with No Action, it rejected this
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alternative without analyzing it. The EA explained that it followed the 1987 Lander
RMP, which had determined that eliminating grazing from the lands was “not . . . a viable
or necessary option.” Aplt. Appx. at 210.
WWP argues that the EA should nevertheless have considered and analyzed a
more aggressive, environmentally protective alternative that would remedy overgrazing
problems more rapidly. It cites to State of New Mexico, where we rejected a BLM EIS
because it failed to consider reasonable alternatives that were more environmentally
protective than those analyzed. 565 F.3d at 709. WWP argues that, as in State of New
Mexico, BLM failed to evaluate more protective alternatives. It notes that none of the
analyzed alternatives incorporated all of the recommended Appropriate Actions from the
RHS Assessment and that Alternatives One and Two were predicted to have similar
outcomes—static or slight improvement or stable to increasing trends in most of the six
standard areas. This, WWP argues, does not meet NEPA’s required “range” of
alternatives.
But State of New Mexico also explained that an agency is not obligated to analyze
options that it reasonably determines are outside its statutory mandate or are impractical
or ineffective as judged against the agency’s objectives for a particular action or project.
See id. at 708-09; see also Bering Strait Citizens for Responsible Res. Dev. v. United
States Army Corps of Eng’rs, 524 F.3d 938, 955 (9th Cir. 2008) (holding that an agency
may reject alternatives that it determines to be “infeasible, ineffective, or inconsistent
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with the basic policy objectives”).7 And an agency has wide discretion in defining its
objectives and in determining which alternatives meet those objectives. See Wyoming v.
United States Dep’t of Agric., 661 F.3d 1209, 1244 (10th Cir. 2011); see also 43 C.F.R.
§ 1610.4-5 (“[T]he decision to designate alternatives for further development and
analysis remains the exclusive responsibility of the BLM”). A court may not reject
BLM’s stated objectives unless they are defined so narrowly as to foreclose reasonable
options. See State of New Mexico, 565 F.3d at 709.
WWP’s arguments concern one objective: improvement of rangeland health. This
is an important objective, but it was not BLM’s sole concern. The agency also sought to
fulfill its multiple use mandate, which is reflected in the Lander RMP, the FLPMA, and
the Taylor Grazing Act—all of which contemplate livestock grazing on the land. The EA
therefore crafted two alternatives that incorporated many of the Appropriate Actions,
with adjustments to balance the competing goal of facilitating continued grazing.
BLM’s effort to balance these competing objectives is sufficient to explain its
failure to pursue aggressive environmentally protective alternatives. We therefore cannot
conclude that the range of alternatives selected rendered the EA arbitrary and capricious.
7
We also note that State of New Mexico differs from this case in that it involved
the development of a resource management plan that was meant to guide future BLM
management of the land. See 565 F.3d at 691. This case involves the terms of a grazing
permit that were bound by an existing resource management plan, the Lander RMP.
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B. Did BLM Take a “Hard Look” at the Environmental Effects of Its Action?
WWP argues that the EA failed to take a “hard look” at the environmental
consequences of its Proposed Decision as required by NEPA. Specifically, WWP argues
that the EA failed to take a hard look at carrying capacity and at the effects of its own
Proposed Decision. In reviewing BLM’s decision, we ask whether it “was based on a
consideration of the relevant factors and whether [BLM] made a clear error of judgment.”
See Davis, 302 F.3d at 1114. We do not substitute our judgment for BLM’s. Id.
1. Carrying capacity
Average stocking levels on the Split Rock allotments during the initial permit were
8,054 AUM. Given the deterioration of rangeland health during this timeframe, BLM
acknowledged that these stocking levels “exceed[ed] the carrying capacity of the utilized
portions of the allotments.” Aplt. Appx. at 311. The Proposed Decision allowed grazing
to continue at a reduced stocking level of 6,669 AUM and concluded that this reduction
would be sufficient to remediate the rangeland deterioration. Neither the EA nor the
Proposed Decision included a specific calculation of the current carrying capacity of the
land.
Instead, the EA applied a qualitative approach based on detailed analyses of
various individual components that affect carrying capacity, such as soils, upland
vegetation, and riparian health. Section VI analyzed the impacts expected from each of
the three alternatives, with separate consideration of how each RHS standard would fare
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under each alternative. The EA also discussed the effects of specific strategies within
each alternative on the relevant RHS standards.
Five months after the EA was written and only a few days before the final decision
was signed, BLM conducted a brief quantitative analysis of carrying capacity in a memo
dated September 24, 2009. The memo provided mathematical calculations and relied on
standards from scientific literature to conclude that neither historical stocking levels nor
the proposed stocking level exceed carrying capacity of the allotments.
WWP attacks both the EA’s qualitative approach and the September 24, 2009
quantitative analysis. As to the EA, WWP’s arguments presume that NEPA’s hard look
requirement calls for a quantitative analysis of whether the reduced stocking levels
contemplated in the Proposed Decision would be within carrying capacity. But we have
found nothing in the record or the regulations suggesting that a quantitative calculation of
carrying capacity is the only reasonable method for determining appropriate grazing
limits. We agree with WWP that the EA could have provided a more rigorous
quantitative evaluation, but it does not follow that the EA’s qualitative analysis was
arbitrary and capricious.
WWP also attacks the quantitative analysis in the September 24, 2009 memo,
insisting its conclusions that historic grazing and the proposed new permit terms were
within carrying capacity are contrary to “the twin facts that (1) overgrazing has caused
such damage here and (2) grazing pressure will not be significantly diminished by the
BLM’s preferred plan.” Aplt. Br. at 49. But as Split Rock has argued, the qualitative
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analysis in the EA does not indicate that uniform overgrazing of the Split Rock allotments
as a whole caused historical rangeland degradation. Poor range management and
excessive use and overgrazing of specific areas contributed significantly to rangeland
health issues. For example, cattle had been allowed to spend too much time in riparian
areas; salt supplements and feed had been left near the water, exacerbating overuse of
riparian resources; and Split Rock had apparently failed to comply with herding
requirements to ensure more uniform grazing across the allotment. The Proposed
Decision addressed these issues with a modest decrease in the AUM limit combined with
improved range management techniques such as increased fencing and better herding
compliance.
WWP has shown that the estimates in the September 24, 2009 memo are debatable
and that BLM’s predictions may ultimately prove too optimistic. And WWP makes a
solid case for more quantitative analysis in the EA. But this is not enough to meet their
burden to show that the Proposed Decision is arbitrary and capricious. Mindful that our
deference is most pronounced with respect to “technical or scientific matters within the
agency’s area of expertise,” Bosworth, 443 F.3d at 739, we cannot say that it was
arbitrary and capricious for BLM to conclude that the stocking level in the Proposed
Decision would not exceed carrying capacity.
2. Effects of the Proposed Decision
The BLM crafted its Proposed Decision by combining two of the three alternatives
analyzed in the EA. Alternative One would have achieved rangeland health improvement
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primarily through rest rotation. Alternative Two would have achieved rangeland health
improvement primarily through a dramatic decrease in stocking level, with only deferred
rotation rather than the more protective practice of rest rotation. The Proposed Decision
combined the plans by eliminating the most protective feature of each. It included
neither the dramatic decrease in stocking level nor rest rotation. But it did include other
protective measures, such as fencing and herding requirements.
When an agency adopts a modified alternative that was not specifically analyzed
in an EA or EIS, this raises a question of whether a supplemental assessment is needed.
“An agency must prepare a supplemental assessment if the agency makes substantial
changes in the proposed action that are relevant to environmental concerns.” State of
New Mexico, 565 F.3d at 705 (quotations omitted). But if the modified alternative is
“qualitatively within the spectrum of alternatives . . . discussed” in the EA, no
supplemental assessment is required. Id. (quotations omitted). The relevant question
here is whether the impact of the Proposed Decision can be reasonably predicted from the
analysis conducted in the EA. See id. at 707.
Although the EA did not analyze the Proposed Decision itself, it did provide a
detailed analysis of many of the features ultimately included in the Proposed Decision,
including the impacts of various stocking levels, deferred rotation, length of grazing
season, herding compliance, fencing, and other features. As Split Rock notes, the
Proposed Decision is most similar to Alternative Two. Both provide a deferred rotation
system, a 204-day grazing season, a similar grazing schedule, frequent herding, and some
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additional fencing. The EA had concluded that Alternative Two would lead to some
rangeland health improvement but not as much improvement as Alternative One. The
Proposed Decision is less environmentally protective than Alternative Two because it
allows more cattle and allows grazing to begin earlier in the season. On the other hand,
the Proposed Decision demands stricter compliance with herding requirements than did
Alternative Two.
WWP illustrates its critique of BLM’s Proposed Decision with this analogy:
I want to increase my savings so I formulate two plans. In Plan
A I will forgo a planned vacation, but continue eating lunch
every day at Cafe Milano in downtown Tucson. In Plan B I will
forgo eating at Cafe Milano, but will go on vacation. I decide to
adopt a Hybrid Plan that partakes of both: I will keep eating at
Cafe Milano every day, and also go on vacation.
Aplt. Br. at 53. Under this analogy, two alternative plans to save money are combined to
create a hybrid plan that lacks the most effective features of either alternative and is
therefore likely to be less successful in advancing the goal of saving money.
But this analogy demonstrates a critical problem with WWP’s argument: It calls
into question the wisdom of BLM’s Proposed Decision, but not whether BLM could
predict its effects. As we explain above, the relevant question is whether the impact of
the Proposed Decision can be reasonably predicted from the EA’s analysis, not whether it
is the best possible decision. See State of New Mexico, 565 F.3d at 707. NEPA “merely
prohibits uninformed—rather than unwise—agency action.” Id. at 704 (quotations
omitted). Moreover, even though the Proposed Decision omits environmentally
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protective features from Alternatives One and Two, it nevertheless adds other features
that are more environmentally protective than historical practice—features that were
analyzed in the EA, such as fencing, herding, rest rotation, and fewer grazing days.
Our review of the EA and the Proposed Decision indicates that BLM analyzed the
various components of the plan sufficiently to meet NEPA’s hard look requirement and
did not act arbitrarily or capriciously.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s summary judgment ruling
for BLM.
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