Western Watersheds Project v. Kraayenbrink ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT; 
RALPH MAUGHAN; IDAHO WILDLIFE
FEDERATION; IDAHO CONSERVATION
LEAGUE; NATURAL RESOURCES
DEFENSE COUNCIL; NATIONAL
WILDLIFE FEDERATION,
Plaintiffs-Appellees,
v.
JOE KRAAYENBRINK; JAMES L.
No. 08-35359

CASWELL; BUREAU OF LAND
MANAGEMENT; DAVE PACIORETTY; D.C. No.
DIRK KEMPTHORNE; DAVID 4:05-cv-00297-BLW
ROSENKRANCE,
Defendants,
PUBLIC LANDS COUNCIL,
Defendant-intervenor,
and
AMERICAN FARM BUREAU
FEDERATION,
Defendant-intervenor-Appellant.

13225
13226 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
WESTERN WATERSHEDS PROJECT; 
RALPH MAUGHAN; IDAHO WILDLIFE
FEDERATION; IDAHO CONSERVATION
LEAGUE; NATURAL RESOURCES
DEFENSE COUNCIL; NATIONAL
WILDLIFE FEDERATION,
Plaintiffs-Appellees,
v.
No. 08-35360
JOE KRAAYENBRINK; JAMES L.
D.C. No.

CASWELL; BUREAU OF LAND
MANAGEMENT; DAVE PACIORETTY; 4:05-CV-00297-
DIRK KEMPTHORNE; DAVID BLW
ROSENKRANCE, OPINION
Defendants,
AMERICAN FARM BUREAU
FEDERATION,
Defendant-intervenor,
and
PUBLIC LANDS COUNCIL,
Defendant-intervenor-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
November 2, 2009—Portland, Oregon
Filed September 1, 2010
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13227
Before: Raymond C. Fisher and Richard A. Paez,
Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge Paez
*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
13230 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
COUNSEL
Roderick E. Walston, Best Best & Krieger LLP, Walnut
Creek, California, Kathryn Kusske Floyd, Jay C. Johnson,
Mayer Brown LLP, Washington, D.C., for petitioners Public
Lands Council and American Farm Bureau Federation.
Joseph Feller, National Wildlife Federation, Boulder, Colo-
rado, Johanna H. Wald, Natural Resources Defense Counsel,
San Francisco, California, Todd C. Tucci, Lauren M. Rule,
Advocates for the West, Boise, Idaho, Laurence (“Laird”) J.
Lucas, Boise, Idaho, for respondents Western Watersheds
Project, Ralph Maughan, Idaho Conservation League, Idaho
Wildlife Federation, National Wildlife Federation, and Natu-
ral Resources Defense Council.
OPINION
PAEZ, Circuit Judge:
The Bureau of Land Management (BLM) is the federal
agency charged with overseeing livestock grazing on over 160
million acres of public land in the western United States. Pur-
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13231
suant to the BLM’s authority under the Taylor Grazing Act of
1934, 43 U.S.C. § 315 et seq., the BLM has adopted regula-
tions that implement its grazing management responsibilities.
See 43 C.F.R. § 4100 et seq.
On July 12, 2006, the Secretary of the Interior proposed
eighteen amendments to the BLM’s grazing regulations (col-
lectively the 2006 Regulations). See 71 Fed. Reg. 39,402. The
stated purpose of the proposed amendments was to improve
the working relationships with permittees and lessees (i.e.
ranchers), to protect the health of rangelands, and to increase
the administrative efficiency and effectiveness of the BLM
grazing management program. See id. at 39,402, 39,403; see
also Proposed Revisions to Grazing Regulations for the Pub-
lic Lands, Final Impact Statement (Final EIS) at ES-5, 4-38.
Among other changes, the proposed amendments decreased
public involvement in public lands management, put new lim-
itations on the BLM’s enforcement powers, and increased
ranchers’ ownership rights to improvements and water on
public lands.
Western Watersheds Project and Maughan et al. (collec-
tively Plaintiffs) challenged the new amendments on proce-
dural and substantive grounds. Plaintiffs argued that the BLM
violated the National Environmental Policy Act (NEPA) by
failing to take the required “hard look” at the environmental
effects of the revised regulations; failed to consult with the
United States Fish & Wildlife Service (FWS) as required by
the Endangered Species Act (ESA); and violated the Federal
Land Policy and Management Act (FLPMA) in promulgating
the 2006 Regulations.
Shortly after the suit was filed, Public Lands Council and
the American Farm Bureau Federation (collectively
Intervenors)—two organizations that represent the interests of
ranchers in the western states—intervened on behalf of the
BLM to defend the proposed amendments. In June 2007, the
district court granted summary judgment to Plaintiffs and
13232 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
enjoined enforcement of the proposed regulations. W. Water-
sheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302, 1324
(D. Idaho 2008).
The BLM and Intervenors separately appealed. In Decem-
ber 2008, the BLM filed a motion to dismiss the agency’s
appeal, which we granted, and the BLM no longer seeks to
challenge the district court’s judgment or defend the proposed
amendments. Intervenors maintain their appeal. Plaintiffs
challenge Intervenors’ standing to defend the 2006 Regula-
tions without the BLM as a party to this appeal. Indeed, the
BLM filed an amicus brief in support of Plaintiffs’ standing
challenge. Intervenors counter that not only do they have
standing but Plaintiffs lack standing and their claims are not
ripe. We conclude that both parties have standing and that
Plaintiffs’ claims are ripe.
Because we agree with the district court that the BLM vio-
lated NEPA and the ESA in adopting the 2006 amendments,
we affirm the court’s grant of summary judgment to Plaintiffs
as to these claims. We also affirm the district court’s perma-
nent injunction enjoining the BLM regulations as set forth in
the Federal Register of July 12, 2006, amending 43 C.F.R.
Part 4100 et seq. Because the district court erred when it
failed to consider Plaintiffs’ FLPMA claim under the frame-
work and with the deference set forth in Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984), we vacate the district court’s grant of sum-
mary judgment in favor of Plaintiffs on this claim and remand
it for further consideration.
I. Background
The history of regulation of the western rangelands is less
than eighty years old. Despite its relative brevity, however,
that history reflects the wisdom of lessons learned. Because
those lessons are recorded, in part, in the BLM’s past amend-
ments to its grazing regulations, we begin with a brief account
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13233
of the history of federal regulation of range management in
the western states.
A. Development of Grazing Regulation
Prior to 1934, the public rangelands were unregulated and
ranchers freely grazed livestock on the publicly owned range.
See Public Lands Council v. Babbitt, 529 U.S. 728, 731
(2000). Lack of oversight, “[p]opulation growth, forage com-
petition, and inadequate range control all began to have con-
sequences both serious and apparent” for the western
rangelands. Id. at 733. Over-grazed and suffering from a terri-
ble drought, the range was swept by dust storms. “The devas-
tating storms of the Dust Bowl were in the words of one
Senator ‘the most tragic, the most impressive lobbyist, that
ha[s] ever come to this Capitol.’ ” Id. (quoting 79 Cong. Rec.
6013 (1935)) (alteration in original). On June 28, 1934, Presi-
dent Franklin Roosevelt signed the Taylor Grazing Act, 43
U.S.C. § 315 et seq., into law authorizing the Secretary of the
Interior, for the first time, to manage the rangelands and
divide them into regulated grazing districts. Id. The Taylor
Grazing Act’s stated purpose was both to “stop injury to the
public grazing lands by preventing overgrazing and soil dete-
rioration,” 48 Stat. 1269, and to “promote the highest use of
the public lands.” 43 U.S.C. § 315.
To manage and oversee the division of the public range-
lands into grazing districts, the Department of Interior created
district advisory boards comprised of local ranchers. Public
Lands Council, 529 U.S. at 734. The boards became the effec-
tive governing body of each grazing district. Id.Nearly three decades after the enactment of the Taylor
Grazing Act, however, the Department of Interior had failed
to achieve the first of the Act’s stated goals, namely, to halt
the degradation of the public grasslands. Id. at 737. In 1962,
83.4 percent of the public grasslands remained in fair or poor
condition. Id.13234 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
In 1976, Congress enacted FLPMA, 43 U.S.C. § 1701 et
seq. The stated purpose of FLPMA was to manage the grass-
lands for “multiple use,” id. § 1701(a)(7),1 with an increased
emphasis on the management of the public lands “in a manner
that will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water
resource, and archeological values.” Id. § 1701(a)(8).
In 1978, to comply with the new law, the Department of the
Interior amended its grazing regulations. Public Lands Coun-
cil, 529 U.S. at 738 (citing 43 Fed. Reg. 29,067). Thereafter,
the grazing amendments went largely unchanged until 1995.
In 1995, the Department of Interior amended the federal graz-
ing regulations in order to, among other objectives, broaden
membership on the district advisory boards, “improve admin-
istration of grazing permits and leases, to place greater
emphasis on stewardship of the rangeland resource,” and “to
manage the rangeland resource using an ecological approach.”
58 Fed. Reg. 43,208; see Public Lands Council, 529 U.S. at
739.
Public Lands Council and other ranching-related organiza-
tions with members who held grazing permits sued the Secre-
tary, challenging the new regulations and arguing that they
1
FLPMA defines “multiple use” in relevant part as:
[T]he management of the public lands and their various resource
values so that they are utilized in . . . a combination of balanced
and diverse resource uses that takes into account the long-term
needs of future generations for renewable and nonrenewable
resources, including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic, scien-
tific and historical values; and harmonious and coordinated man-
agement of the various resources without permanent impairment
of the productivity of the land and the quality of the environment
with consideration being given to the relative values of the
resources and not necessarily to the combination of uses that will
give the greatest economic return or the greatest unit output.
43 U.S.C. § 1702(c).
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13235
exceeded the Secretary’s authority under the Taylor Grazing
Act. Public Lands Council, 529 U.S. at 739. The Supreme
Court held that the amendments did not exceed the Secre-
tary’s authority under the Act, and the 1995 amendments went
into effect (hereinafter the 1995 Regulations). Id. at 743, 748,
750; see 43 C.F.R. § 4100 et seq. (1995).
B. The 2006 Regulatory Changes
In 2002, the Secretary of the Interior began efforts once
again to amend the regulations governing BLM’s oversight of
livestock grazing on public lands. See W. Watersheds Project,
538 F. Supp. 2d at 1306-07. The BLM developed a list of pro-
posed changes and assembled an interdisciplinary team of
experts to review them. Id.In July 2002, the BLM interdisciplinary team reported that
the proposed “changes [that limit public participation] conflict
with the spirit of the Secretary’s 4 C’s [communication, con-
sultation, cooperation, and conservation] because they explic-
itly allow for excluding a segment of the population [i.e. the
non-ranching public] who would otherwise choose to publicly
participate.” AR 67849. The report further explained that
“[r]estricting public participation will ultimately lead to
poorer land management decisions . . . [and] environmental
harm, without necessarily sustaining or improving economic
conditions.” Id. The BLM, however, made no substantial
changes to the proposed changes and published them in
December 2003 for comment. See 68 Fed. Reg. 68,453.
Following the public comment period, a second interdisci-
plinary BLM team reviewed the proposed amendments. That
team was led by an official from the BLM’s Washington D.C.
office and included a fisheries biologist, a wildlife biologist,
a hydrologist, a soils scientist, and other specialists in eco-
nomics, fire, recreation, wild horses, and archeology. See W.
Watersheds Project, 538 F. Supp. 2d at 1307. In November
2003, the second BLM interdisciplinary team issued its report
13236 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
titled the Administrative Review Copy Draft EIS (ARC-
DEIS). The ARC-DEIS criticized the new regulations, con-
cluding that if put into effect the changes will cause “a slow
long-term adverse effect on wildlife and biological diversity
in general.” AR 68006.
In December 2003, undeterred, the BLM proceeded to pub-
lish the proposed regulations and seek public comment. The
BLM assembled a third interdisciplinary team to write the
Final EIS. The Final EIS team made substantial changes to
the ARC-DEIS and deleted without comment the ARC-
DEIS’s conclusion that the proposed changes would have
adverse impacts on wildlife, biological diversity, and riparian
habitats. See W. Watersheds Project, 538 F. Supp. 2d at 1308.
By March 2006, the BLM issued the Final EIS and Adden-
dum, and in July 2006, the BLM issued its Final Rule and
Record of Decision, adopting the proposed changes (i.e. the
2006 Regulations). 71 Fed. Reg. 39,402.
The 2006 Regulations make several major modifications to
the 1995 Regulations. Generally, the proposed amendments
make changes that fall into three broad categories: (1) public
input in public rangelands management; (2) the BLM’s envi-
ronmental enforcement powers; and (3) permittee’s and les-
see’s (i.e. ranchers) ownership rights on public grazing lands.
We explain the changes with respect to each broad category
in turn.
1. Public input in public rangelands management
The 2006 Regulations both narrow the definition of “inter-
ested public” and remove the requirement that the BLM con-
sult, cooperate, and coordinate with the “interested public”
with respect to various management decisions.2 43 C.F.R.
2
Interested public is defined in the 2006 Regulations as an individual,
group or organization that has:
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13237
§ 4100.0-5. Under the 1995 Regulations, an individual, group,
or organization that submitted a written request to the BLM
to be involved in the decision-making process regarding a
specific allotment would be put on a list of “interested public”
and would receive notice of issues concerning that allotment.
43 C.F.R. § 4300.0-5 (1995). Under the 2006 Regulations, if
the individual, group, or organization receives notice but does
not comment, it will be dropped from the “interested public”
list. See 43 C.F.R. § 4300.0-5.
Furthermore, under the 2006 Regulations, the BLM is no
longer required to involve interested members of the public
when issuing or renewing an individual grazing permit. Id.§ 4130.2(b). Instead, the BLM must only “consult, cooperate,
and coordinate” with “affected permittees and lessees, and the
state.” Id. The 2006 Regulations similarly remove the require-
ment to consult with the interested public on the following
decisions, all of which required consultation under the 1995
Regulations: modifications to the terms in grazing permits, id.
§ 4130.3-3(a); adjustments to allotment boundaries, id.
§ 4110.2-4; changes in active use, id. § 4110.3-3(a); emer-
gency allotment closures, id. § 4110.3-3(b); and issuance of
temporary nonrenewable grazing permits and leases, id.
§ 4130.6-2(a).
(1)(i) Submitted a written request to BLM to be provided an
opportunity to be involved in the decisionmaking process as to a
specific allotment, and
(ii) Followed up that request by submitting written comment as
to management of a specific allotment, or otherwise participating
in the decisionmaking process as to a specific allotment, if BLM
has provided them an opportunity for comment or other participa-
tion; or
(2) Submitted written comments to the authorized officer regard-
ing the management of livestock grazing on a specific allotment.
43 C.F.R. § 4100.0-5.
13238 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
2. Environmental enforcement on public rangelands
The 1995 Regulations required the BLM to take corrective
actions upon finding either a violation of the Fundamentals of
Rangeland Health3—ecological criteria that, pursuant to the
1995 Regulations, all public lands had to meet—or the Stan-
dards and Guidelines for Grazing Administration (Standards
and Guidelines). 43 C.F.R. §§ 4180.1, 4180.2(c) (1995). The
2006 Regulations eliminate the Fundamentals of Rangeland
Health, leaving only the Standards and Guidelines as enforce-
able standards. 43 C.F.R. § 4180.2(c)(1).
Upon discovery of a violation of either the Fundamentals
of Rangeland Health or the Standards and Guidelines, the
1995 Regulations required the BLM to take corrective action
“as soon as practicable but not later than the start of the next
grazing year.” 43 C.F.R. § 4180.1 (1995). The 2006 Regula-
tions extend the time for the BLM to take corrective measures
to 24 months. 43 C.F.R. § 4180.2(c)(1)(i).
The 2006 Regulations also increase the amount of monitor-
ing required before the BLM can enforce the Standards and
Guidelines. Prior to initiating an enforcement proceeding, the
2006 Regulations require that the BLM gather baseline moni-
toring data to determine “that existing grazing management
practices or levels of grazing use on public lands are signifi-
cant factors in failing to achieve the standards and conform
with the guidelines” and only multi-year BLM data (not all
available data as provided in the 1995 Regulations) may be
considered. Id. § 4180.2(c)(1). In short, under the 2006 Regu-
lations, the BLM cannot rely upon other sources for data and
must gather monitoring data for each allotment prior to deter-
mining whether a rancher has violated the Standards and
Guidelines and initiating corrective measures.
3
The 1995 Regulations adopted a new set of ecological mandates for
grazing on the public lands, called the Fundamentals of Rangeland Health.
43 C.F.R. § 4180 et seq. (1995).
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13239
The 2006 Regulations also include a novel “phase-in” pro-
vision whereby the BLM is required to phase-in grazing
reductions of over ten percent over a five-year period. Id.§ 4110.3-3(a)(1).
3. Permittee and lessee ownership rights
Under the 2006 Regulations, as under the previous 1995
Regulations, the BLM may enter into cooperative range
improvement agreements with a person, organization, or other
government entity for the installation, use, maintenance,
and/or modification of permanent range improvements or
rangeland developments.4 Under the 1995 Regulations, how-
ever, the United States retained full title to any permanent
range improvements. Under the 2006 Regulations, the private
cooperator and the United States share title to permanent
range improvements. Compare 43 C.F.R. § 4120.3-2 (1995),
with 43 C.F.R. § 4120.3-2.
With respect to water rights, under the 1995 Regulations,
to the extent allowed by state law, the right to any water on
public lands was held by the United States. 43 C.F.R.
§ 4120.3-9 (1995). Under the 2006 Regulations, to the extent
permitted by state law, permittees, not the United States,
acquire and hold water rights on public lands. 43 C.F.R.
§ 4120.3-9.
In summary, the proposed amendments reduce public over-
sight of federal grazing management, eliminate the Funda-
mentals of Rangeland Health as enforceable standards, allow
the BLM additional time to respond to failing allotments,
increase monitoring requirements, and cede ownership rights
to permanent rangeland structures and water from the United
States to private ranchers.
4
Permanent range improvements include, according to the BLM 2006
Regulations, such permanent fixtures as fences, buildings, pipelines, wells,
reservoirs, and stock tanks. 43 C.F.R. § 4120.3-2.
13240 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
II. Standard of Review
We review de novo standing, ripeness, and a district court’s
grant of summary judgment. Citizens for Better Forestry v.
U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003).
Alleged procedural violations of NEPA and FLPMA are
reviewed under the Administrative Procedure Act (APA), 5
U.S.C. § 706(2). See Ctr. for Biological Diversity v. U.S.
Dep’t of Interior, 581 F.3d 1063, 1070 (9th Cir. 2009). In
reviewing claims brought under the APA, we will only set
aside agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
We review claims brought under the ESA under the citizen-
suit provision of the ESA or, when the citizen-suit provision
is unavailable, under the APA. See Coos County Bd. of
County Comm’rs v. Kempthorne, 531 F.3d 792, 802 (9th Cir.
2008). Irrespective of whether an ESA claim is brought under
the APA or the citizen-suit provision, the APA’s “arbitrary
and capricious” standard applies; and, an agency’s “no effect”
determination under the ESA must be upheld unless arbitrary
and capricious. See Or. Natural Res. Council v. Allen, 476
F.3d 1031, 1036 (9th Cir. 2007). Critical to that inquiry is
whether there is “a rational connection between the facts
found and the conclusions made” in support of the agency’s
action. Or. Natural Res. Council v. Brong, 492 F.3d 1120,
1131 (9th Cir. 2007) (internal quotation marks omitted).
Review of the BLM’s interpretation of its own statutory
mandate, including review under the APA, requires applica-
tion of the deference principle recognized in Chevron. See
Nw. Envtl. Advocates v. E.P.A., 537 F.3d 1006, 1014 (9th Cir.
2008).
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13241
III. Discussion
A. Standing
Both parties challenge the other’s standing on appeal. Fur-
thermore, the BLM submitted an amicus brief in support of
Plaintiffs’ argument that Intervenors’ lack Article III standing
to maintain their appeal absent the government.
1. Intervenors’ Standing
As noted above, Public Lands Council and American Farm
Bureau Federation intervened on behalf of the BLM in the
district court and now pursue this appeal. Although the BLM
filed a notice of appeal, it subsequently abandoned its appeal.
The end result is that Intervenors seek to defend the 2006
Regulations—regulations that the BLM itself no longer seeks
to defend.
While this situation presents an unusual circumstance, it is
not one without precedent, and it is well established that the
government is not the only party who has standing to defend
the validity of federal regulations. See, e.g., Kootenai Tribe of
Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir. 2002) (hold-
ing that intervenors could appeal and challenge the grant of
injunctive relief by defending the government’s action against
alleged violations of NEPA when the federal defendants
decided not to appeal); see also Didrickson v. U.S. Dep’t of
the Interior, 982 F.2d 1332, 1339 (9th Cir. 1992) (holding that
environmental groups had standing to defend government reg-
ulations on appeal, despite the government’s dismissal of its
appeal); Nat’l Wildlife Fed’n v. Lujan, 928 F.2d 453, 456 n.2
(D.C. Cir. 1991) (same).
[1] Absent the government, however, Intervenors must
now, and for the first time, establish Article III standing. See
Diamond v. Charles, 476 U.S. 54, 68 (1986) (“[A]n interve-
nor’s right to continue a suit in the absence of the party on
13242 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
whose side intervention was permitted is contingent upon a
showing by the intervenor that he fulfills the requirements of
Art. III.”); see also Didrickson, 982 F.2d at 1338 (“An interest
strong enough to permit intervention is not necessarily a suffi-
cient basis to pursue an appeal abandoned by the other par-
ties.”).
[2] In these circumstances, Intervenors’ standing need not
be based on whether they would have had standing to inde-
pendently bring this suit, but rather may be contingent on
whether they have standing now based on a concrete injury
related to the judgment. See Didrickson, 982 F.2d at 1338; see
also Idaho Farm Bureau Fed’n v. Babbit, 58 F.3d 1392, 1398
(9th Cir. 1995). To invoke this court’s jurisdiction on the
basis of an injury related to the judgment, Intervenors must
establish that the district court’s judgment causes their mem-
bers a concrete and particularized injury that is actual or
imminent and is likely to be redressed by a favorable deci-
sion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Furthermore, since Intervenors seek associational
standing on behalf of their members, there are three related
but distinct Article III standing requirements. Colwell v. Dep’t
of Health & Human Servs., 558 F.3d 1112, 1122 (9th Cir.
2009).
An association has standing to bring suit on behalf
of its members when [1] its members would other-
wise have standing to sue in their own right, [2] the
interests at stake are germane to the organization’s
purpose, and [3] neither the claim asserted nor the
relief requested requires the participation of individ-
ual members in the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000) (bracketed numbers added).
Public Lands Council5 is a national organization of public
5
Because Intervenors Public Lands Council and American Farm Bureau
Federation both submitted supplemental briefs and declarations in support
of their standing, we address the two organizations’ standing separately.
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13243
lands ranchers that represents the interests of sheep and cattle
ranchers in fifteen western states. Public Lands Council sub-
mitted four declarations from its members to establish Article
III standing to pursue this appeal on behalf of the organiza-
tion’s members.6 “It is common ground that . . . [an] organiza-
tion[ ] can assert the standing of its members.” Summers, 129
S. Ct. at 1149. But the organization asserting standing must
provide “specific allegations establishing that at least one
identified member [has] suffered or would suffer harm,” id. at
1151, and “generalized harm . . . will not alone support stand-
ing,” id. at 1149.
[3] Here, we conclude that Public Lands Council has
standing to pursue this appeal on behalf of its members
6
In conducting our review, except for unusual circumstances, we con-
sider only the district court record. See Lowry v. Barnhart, 329 F.3d 1019,
1024 (9th Cir. 2003). Here, “[w]e accept the supplemental declarations
because the [intervenors] were not required, under Ninth Circuit law, to
establish standing in order to intervene; only now must they demonstrate
particularized injury.” Didrickson, 982 F.2d at 1340 (internal citation
omitted). In its amicus brief, the government argues that Intervenors
should not be permitted to submit these supplemental declarations. The
government cites Summers v. Earthland Inst., 129 S. Ct. 1142, 1150 n*
(2009), for the proposition that affidavits filed after the district court enters
final judgment will not be considered. The situation in Summers, how-
ever, was distinct. In Summers, the parties whose standing was questioned
were not intervenors, but rather the original plaintiffs who first challenged
the application of Forest Service regulations to one particular forest, and
then—for the first time on appeal and after the original claim had been
resolved—sought to challenge the Forest Service’s regulations generally.
Id. at 1149. The supplemental standing affidavits in that case were filed
with the district court after the government had filed its appeal. The
Supreme Court’s refusal to consider those affidavits merely stands for the
proposition that standing—where it would have been necessary to bring
the claim in the district court—cannot be created retroactively and that in
the absence of a live dispute over concrete application of government reg-
ulations, plaintiffs did not have standing to challenge the regulations in
general for the first time on appeal. Here, unlike in Summers, Intervenors
were not required to establish Article III standing in district court, nor are
they now pursuing a new claim following resolution of the original claim.
13244 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
Charles Rex and Dallas Horton. On June 11, 2007, Charles
Rex entered into a cooperative range improvement agreement
with the BLM, which included provisions to construct pipe-
line and livestock water troughs across public and private
lands. See Decl. of Charles Rex ¶¶ 1-2. The project was com-
pleted in 2009; however, “the Federal District Court’s deci-
sion has prevented the Partnership from obtaining title and
ownership of the rangeland improvement project . . . .” Id.
¶¶ 3-4. Charles Rex’s inability to obtain title is an injury in
fact that is actual, not conjectural or hypothetical; that injury
is fairly traceable to the district court’s judgment; and it is
likely to be redressed by a favorable decision. See Didrickson,
982 F.2d at 1338.
Public Lands Council member Dallas Horton has federal
grazing permits on various BLM allotments. See Decl. of Dal-
las Horton ¶ 1. The BLM recently issued a proposed decision
to renew his grazing permits; however, the agency indicated
that his grazing permits may not comply with the applicable
standards and guidelines and has proposed a thirty percent
reduction of grazing. Id. ¶ 2. The district court’s order enjoin-
ing the 2006 Regulations effectively requires the BLM to take
prompt corrective action against Horton rather than phasing in
any reduction of grazing over a five-year period. Horton has
also suffered an injury in fact that is traceable to the district
court’s judgement and is likely to be redressed by a favorable
decision.
[4] Because Public Lands Council’s members Charles Rex
and Dallas Horton would have standing to pursue this appeal
in their own right, their interests are germane to Public Lands
Council’s purpose, and neither the claims asserted nor relief
requested requires Charles Rex’s nor Dallas Horton’s partici-
pation as parties, Public Lands Council has associational
standing to pursue the appeal. Intervenors, therefore, have
Article III standing.7
7
Because we conclude that Public Lands Council has standing, we need
not consider whether American Farm Bureau Federation also has standing.
See Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993).
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13245
2. Plaintiffs’s Standing
Intervernors also challenge Plaintiffs’ standing to assert
their claims. “[Article III] limits are jurisdictional: they can-
not be waived by any party, and there is no question that a
court can, and indeed must, resolve any doubts about this con-
stitutional issue.” City of Los Angeles v. County of Kern, 581
F.3d 841, 845 (9th Cir. 2009).
To have standing, Plaintiffs must meet the established three
part test outlined above for each claim. See Lujan, 504 U.S.
at 560; see also DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 342 (2006). In addition, a plaintiff bringing suit under
the APA for a violation of NEPA or FLPMA must show that
the alleged injury falls within NEPA’s “zone of interests.”
Kootenai Tribe of Idaho, 313 F.3d at 1111-12.
An individual bringing a substantive claim related to envi-
ronmental harms may establish an injury in fact by showing
“a connection to the area of concern sufficient to make credi-
ble the connection that the person’s life will be less enjoyable
—that he or she really has or will suffer in his or her degree
of aesthetic or recreational satisfaction—if the area in ques-
tion remains or becomes environmentally degraded.” Ecologi-
cal Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149
(9th Cir. 2000). We have held that an environmental group
had standing to bring a NEPA claim when its members
enjoyed photographing marine life, fishing, and watching
marine life in the area potentially affected by the challenged
government action. Ocean Advocates v. U.S. Army Corps of
Eng’rs, 402 F.3d 846, 859-60 (9th Cir. 2005). We have held
that environmental groups had standing to bring an ESA
claim where the groups’ members regularly used and enjoyed
an area inhabited by the imperiled species. Idaho Farm
Bureau Fed’n, 58 F.3d at 1399.
[5] Here, Western Watersheds Project submitted five dec-
larations in the district court, which identify both a concrete
13246 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
interest in and an imminent harm to specific allotments of
BLM land to which the 2006 Regulations apply. Western
Watersheds Project is designated as an “interested public” and
is actively engaged in how the BLM manages public lands in
Idaho, Utah, Nevada, Oregon, Montana, Wyoming, Colorado,
and California. See Decl. of Jon Marvel ¶¶ 5-8. Jon Marvel,
founder of Western Watersheds Project, identified numerous
BLM grazing allotment sites in Idaho, Utah, Wyoming, and
Montana that he has personally visited and continues to visit,
study, enjoy, and in which he pursues recreational activities.
Id. ¶¶ 12-13. Kathleen Fite, a member of Western Watersheds
Project and the organization’s Biodiversity Director, identi-
fied specific affected locations and allotments that she visits,
studies, works to protect, and over which the 2006 Regula-
tions will exclude her from participating in various manage-
ment decisions. Decl. of Kathleen Kite ¶¶ 1, 17-19, 57-59.
[6] In sum, the 2006 Regulations pose an imminent harm
to Western Watersheds Project’s members’ aesthetic enjoy-
ment of the rangeland and to their involvement in public land
grazing management. See Summers, 129 S. Ct. at 1149 (hold-
ing that if the harm alleged “in fact affects the recreational or
even the mere aesthetic interests of the plaintiff, that will suf-
fice” for standing purposes (citing Sierra Club v. Morton, 405
U.S. 727, 734-36 (1972))); see also Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1517 (9th Cir. 1992) (con-
cluding that declarations naming specific areas used by
group’s members were sufficient to show particularized threat
of injury).
[7] Plaintiffs also bring a procedural claim under NEPA.
To satisfy the injury in fact requirement, and thereby meet the
first prong of Article III standing, “a plaintiff asserting a pro-
cedural injury must show that the procedures in question are
designed to protect some threatened concrete interest of his
that is the ultimate basis of his standing.” Citizen for Better
Forestry, 341 F.3d at 969 (internal quotation marks omitted).
We have described the concrete interest test as “requiring a
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13247
geographic nexus between the individual asserting the claim
and the location suffering an environmental impact.” Id. at
971 (internal quotation marks omitted). The Kite and Marvel
declarations establish a geographic nexus between Western
Watersheds Project’s members and the locations subject to the
2006 Regulations, and, therefore, Western Watersheds Project
has established a concrete interest sufficient to pursue their
NEPA claim.
“Once a plaintiff has established an injury in fact under
NEPA the causation and redressability requirements are
relaxed.” Cantrell v. City of Long Beach, 241 F.3d 674, 682
(9th Cir.2001). “[T]he members must show only that they
have a procedural right that, if exercised, could protect their
concrete interests . . . .” Defenders of Wildlife v. EPA, 420
F.3d 946, 957 (9th Cir. 2005) rev’d on other grounds sub
nom. Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007). Because “it is enough that a revised EIS
may redress plaintiffs’ alleged injuries,” Western Watersheds
Project satisfies the causation and redressability requirements.
Kootenai Tribe of Idaho, 313 F.3d at 1113.
Plaintiffs also meet the requirements for associational
standing: the interests at stake are pertinent to the interests of
Plaintiffs, and there is no indication that resolving this case
would require or even be aided by the participation of either
organizations’ individual members. Friends of the Earth, 528
U.S. at 180-81.
[8] Finally, Plaintiffs’ NEPA and FLPMA claims fall
within the statutes’ respective zones of interest. See Kootenai
Tribe of Idaho, 313 F.3d at 1113-14. Western Watersheds
Project—a non-profit conservation group engaged in advocat-
ing science-based management, land restoration, public edu-
cation, and conservation of BLM’s public lands with
thousands of members that study, recreate, and enjoy aesthetic
pursuits on the affected grasslands—has a direct interest in
seeing that the BLM adequately considers the environmental
13248 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
consequences of its planned action as required by NEPA and
that the well-being of the affected land not be threatened. See
Cantrell, 241 F.3d at 679 (holding that birdwatchers’ interest
in preventing adverse environmental effects from agency
action fell “squarely” within the zone of interests of NEPA).
Finally, Western Watersheds Project’s interest in protecting
public grasslands, ensuring public participation in the man-
agement of the grasslands, and protecting the species that live
there from over-grazing falls squarely within the zone of
interests protected by FLMPA. See Desert Citizens Against
Pollution v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000).
Plaintiffs have Article III standing.
B. Ripeness
Intervenors argue that Plaintiffs’ actions are not ripe for
review because the 2006 Regulations have not yet been
applied by the BLM. Ripeness serves “to prevent the courts,
through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative poli-
cies, and also to protect the agencies from judicial interfer-
ence until an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties.”
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), over-
ruled on other grounds by Califano v. Sanders, 430 U.S. 99(1977). We apply a two-part test to determine if a case satis-
fies prudential requirements for ripeness: the fitness of the
issue for judicial decision and the hardship to the parties of
withholding court consideration. See California v. U.S. Dep’t
of Agric., 575 F.3d 999, 1011 (9th Cir. 2009).
[9] Here, the dispute would not interfere with further
administrative action because both the EIS and the 2006 Reg-
ulations are final. Plaintiffs are “taking advantage of what
may be their only opportunity to challenge [the agency regu-
lations] on a nationwide, programmatic basis.” Id. As the
Supreme Court has noted, “a person with standing who is
injured by a failure to comply with the NEPA procedures may
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13249
complain of that failure at the time the failure takes place, for
the claim can never get riper.” Ohio Forestry Ass’n v. Sierra
Club, 523 U.S. 726, 737 (1998). The dispute over the 2006
Regulations is ripe for adjudication.
C. National Environmental Policy Act
In passing NEPA, Congress “recogniz[ed] the profound
impact of man’s activity on the interrelations of all compo-
nents of the natural environment” and set out “to create and
maintain conditions under which man and nature can exist in
productive harmony.” 42 U.S.C. § 4331(a). To bring federal
action in line with Congress’ goals and to foster environmen-
tally informed decision-making by federal agencies, NEPA
“establishes ‘action-forcing’ procedures that require agencies
to take a ‘hard look’ at environmental consequences.” Metcalf
v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Rob-
ertson v. Methow Valley Citizens Council, 490 U.S. 332, 348
(1989)). Foremost among those procedures is the preparation
of an environmental impact statement (EIS).
Agencies considering “major Federal actions significantly
affecting the quality of the human environment” are required
to prepare an EIS. 42 U.S.C. § 4332(C). The EIS “shall pro-
vide full and fair discussion of [the] significant environmental
impacts” of the proposed action. 40 C.F.R. § 1502.1. That dis-
cussion serves two purposes:
First, it ensures that the agency, in reaching its deci-
sion, will have available, and will carefully consider,
detailed information concerning significant environ-
mental impacts. Second, it guarantees that the rele-
vant information will be made available to the larger
audience that may also play a role in both the deci-
sionmaking process and the implementation of that
decision.
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)
(internal quotation marks, brackets, and citation omitted). By
13250 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
focusing agency and public attention on the environmental
effects of proposed agency action, “NEPA ensures that the
agency will not act on incomplete information, only to regret
its decision after it is too late to correct.” Marsh v. Or. Natu-
ral Res. Council, 490 U.S. 360, 371 (1989).
Here, the BLM prepared a Final EIS in which it concluded
that the proposed 2006 Regulations and related changes to the
management of grazing on public rangelands would not have
significant environmental effects. Final EIS at ES-5, 4-38.
Plaintiffs challenge the BLM’s no effect finding and argue
that it is arbitrary and capricious. Specifically, Plaintiffs argue
that the BLM (1) failed to take a “hard look” at the environ-
mental consequences of the proposed changes and to respond
adequately to concerns and criticisms raised by the agency’s
own experts, FWS, and other agencies; (2) failed to consider
adequately the combined effects of the regulatory changes;
and (3) failed to offer a reasoned explanation for why the
BLM was changing its grazing management policies, particu-
larly given that the BLM seeks to reduce public participation
and roll back environmental protections. We address the three
NEPA challenges in turn.
First, Plaintiffs argue that the BLM failed to take a “hard
look” at the significant environmental impacts of the 2006
Regulations. In particular, they fault the BLM for failing to
respond to concerns raised by its own experts, FWS, the Envi-
ronmental Protection Agency (EPA), and state agencies that
the following changes would have significant environmental
consequences: (1) reduction in public oversight and consulta-
tion in the management of grazing on public rangelands; (2)
delayed enforcement, elimination of the Fundamentals of
Rangeland Health as enforceable standards, and increased
monitoring requirements prior to enforcement of the Stan-
dards and Guidelines; and (3) expansion of private rights to
permanent structures and water on public lands. With respect
to each of these three revisions, we review the comments and
concerns raised by the public and interested agencies in
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13251
response to publication of the draft EIS. We also review the
BLM’s response in the Final EIS to those comments. To
avoid redundancy, we save our discussion of whether the
BLM complied with the requirements of NEPA to take a
“hard look” at significant environmental impacts for the end.
1. Public participation in the management of grazing
on public rangelands
It is undisputed that the 2006 Regulations significantly
reduce public oversight of grazing on public land. The effect
of that reduction, however, and whether there are foreseeable
and related environmental consequences is disputed.
The first interdisciplinary team of experts assembled by the
BLM to review the proposed regulations in 2002 cautioned
that:
The [revised] definitions of interested and interested
public appear, by themselves, benign. However,
using those definitions . . . appear[s] to allow the
exclusion of virtually all other [i.e. non-rancher]
members of the public who may otherwise want to
participate. . . . Restricting public participation will
ultimately lead to poorer land management decisions
. . . [and] to greater environmental harm, without
necessarily sustaining or improving economic condi-
tions.
AR 67848-49. In November 2003, a second interdisciplinary
team of experts assembled by the BLM expressed concern
about the proposed reduction in public oversight and consulta-
tion in the management of public rangelands. In their report
to the BLM, the interdisciplinary team concluded that the
deletion of the requirement to consult, cooperate, and coordi-
nate with or seek review and comment from the interested
public would result in long-term adverse impacts to wildlife
and special status species on public lands. AR 68009. That
13252 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
report further concluded that the requirement for the BLM to
cooperate with established grazing boards “will result in giv-
ing permittees and lessees greater access to the decision mak-
ing process at the expense of conservation groups who are
advocates for wildlife resources,” resulting in “a long-term
adverse impact for wildlife and special status species
resources.” Id.FWS officials also reviewed the 2006 Regulations prior to
publication and expressed concern. Specifically, in their
report to the BLM, the FWS officials commented that the pro-
posed reduction in public oversight may constrain biologists
and range conservationists from recommending and imple-
menting management changes and that “[FWS] believe[s]
these aspects of the proposed revisions have the potential to
be detrimental to fish and wildlife resources.”8 AR 68058.
Similar comments expressing concern that reduced public
oversight would have negative environmental consequences
were submitted by the New Mexico Department of Game and
Fish, California Department of Fish and Game, and Arizona
Department of Game and Fish, among other state agencies.
In the Final EIS, the BLM explains that it reduced the
involvement of “interested public,” by eliminating the ability
to comment as to some management decisions and increasing
8
The FWS report is titled “U.S. Fish and Wildlife Service Comments
Proposed Rules for Grazing Administration—Exclusive of Alaska and
Draft Environmental Impact Statement: Proposed Revisions to Grazing
Regulations for the Public Lands,” and was faxed by FWS to the lead con-
tact on the BLM team. The BLM argues that the FWS comments are
unsigned and labeled “Draft.” The comments, however, are detailed,
extensive, and contained in 17 pages of thoughtful and well-written analy-
sis. As the district court pointed out, the report bears no sign that it was
mistakenly sent or that it is anything other than the official position of
FWS on the proposed regulations. “Indeed, the subsequent conduct of the
parties shows that the fax was official and got the BLM’s attention. On
October 12, 2005, the BLM met with the FWS to address the very con-
cerns raised in the fax.” W. Watersheds, 538 F. Supp. 2d at 1321.
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13253
the requirements to do so for others, to improve efficiency
and reduce the costs of sending periodic mailings to interested
public members who are not in fact active participants. Final
EIS at 5-95. The BLM concludes that the 2006 Regulation’s
changes to public participation will not affect the environ-
ment. Id. at 4-36, 4-37. The BLM states that the reduction in
public participation “should allow the BLM to make more
timely decisions. Thus, it would have a beneficial effect on
vegetation resources.” Id. at 4-32. The Final EIS also notes
that the changed definition of interested public “would enable
the BLM to focus communication efforts on those interested
publics who are involved in the significant issues occurring
on grazing allotments.” Id. at 4-27. The BLM further explains
that “[w]hile public input may help identify environmental
impacts, the BLM’s experience under the existing regulations
is that public participation . . . can be inefficient and unpro-
ductive and, in some instances, redundant.” Appendix FEIS at
37.
2. Elimination of the Fundamentals of Rangeland
Health as enforceable standards, delayed enforce-
ment, and increased monitoring requirements
Before they were amended, the BLM’s grazing regulations
required the BLM to take corrective action whenever it deter-
mined that existing grazing practices were causing violations
of either the Fundamentals of Rangeland Health or the Stan-
dards and Guidelines. 43 C.F.R. § 4180.2(c) (1995). The 2006
Regulations remove this requirement with respect to the Fun-
damentals of Rangeland Health. See 71 Fed. Reg. 39,508(amending 43 C.F.R. § 4180.1). Furthermore, upon discovery
of non-compliance with applicable Standards and Guidelines,
the BLM is required to “phase-in” any grazing reduction of
more than ten percent over a period of five years. 43 C.F.R.
§ 4110.3-3(a)(1). And the BLM, under the 2006 Regulations,
has two years to initiate an enforcement action. Id. § 4180.2.
Finally, the 2006 Regulations require the BLM to “use moni-
toring data to identify the significant factors that contribute to
13254 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
failing to achieve the standards or conform with the guide-
lines,” and to propose appropriate action only after it is deter-
mined based on that data that “existing grazing management
practices or levels of grazing use on public lands are signifi-
cant factors” in failing to achieve the Standards and Guide-
lines. Id.
Plaintiffs challenge these changes and argue that they will
have significant undisclosed and unconsidered environmental
consequences. Plaintiffs argue that the Fundamentals of
Rangeland Health are a key requirement for ensuring healthy
rangelands and the BLM provided no rational explanation for
its decision to eliminate them as enforceable standards. Plain-
tiffs point out that during the adoption of the 1995 Regula-
tions, the Fundamentals of Rangeland Health “were identified
as the basic components of rangeland health and were
intended to serve as overarching principles to be supple-
mented by the standards and guidelines.” 68 Fed. Reg. 68,452,
68,466 (emphasis added).
In the Final EIS, the BLM acknowledges that some com-
ments “expressed concern” that the Standards and Guidelines
are replacing the Fundamentals of Rangeland Health. Final
EIS at 5-75. The BLM, however, concludes that the Funda-
mentals are redundant and overly broad and, therefore, there
is no environmental consequence of no longer enforcing them
directly. Id.; see also 71 Fed. Reg. 39,402, 39,492-93 (con-
cluding that the Fundamentals are “a duplicate administrative
mechanism”).
With regard to the delay in enforcement following the find-
ing of a violation of the Standards and Guidelines, the BLM’s
own team of experts expressed concern. AR 68008. “[T]hese
cumulative delaying tactics could result in a protracted 7 year
period for full implementation and change and thus would
result in a long-term, adverse impact upon wildlife resources
and biological diversity, including threatened and endangered
and special status species.” Id.WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13255
BLM’s experts were not the only ones troubled by the envi-
ronmental implications of the potential enforcement delays. In
its response to the proposed amendments extending the
enforcement period, FWS stated that “[i]n the arid West, bio-
logical and many physical resources are usually already near
thresholds of change,” and “[e]xtending the deadline for initi-
ating an appropriate course of action to make remedial
changes in grazing practices . . . from 12 to 24 months could
be extremely detrimental to long-term range health and fish
and wildlife resources.” AR 68067-67.
The EPA reviewed the proposed amendments and reported
that it was “concerned that this proposed change would allow
for an additional twelve months over the current regulations’s
time frame for making necessary changes.” AR 68052.
Finally, the ARC-DEIS observed that “BLM funding and
staffing levels do not provide adequate resources for even
minimal monitoring and the additional monitoring require-
ment will further burden the grazing decision process, thus
adversely impacting wildlife resources and biological
resources in the long-term.” AR 68008. FWS further
explained that “a requirement for monitoring before a reme-
dial action can even be initiated” may threaten special status
species, such as the sage-grouse that require timely “proactive
rangewide measures” to ensure their survival. AR 68069.
The EPA also commented on the monitoring changes and
expressed concern that the increased monitoring requirements
would delay implementing land management changes and
impair the BLM’s ability to take “action that is necessary to
immediately address actions on rangelands that are being
degraded by existing uses.” AR 68051.
In a comment submitted by the California Department of
Fish and Game, that agency similarly took issue with the pro-
posed changes in enforcement and warned of environmental
consequences.
13256 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
[T]he proposed revisions tend to weaken the ability
of local BLM Districts to manage rangelands in a
timely fashion by [requiring monitoring and] adding
considerable time before action can be taken. The
rangeland management process . . . needs to be able
to respond to the condition of the rangeland in order
to conserve fish and wildlife resources. . . . Range-
land health could be compromised by the proposed
requirement that changes requiring more than a 10
percent reduction in grazing could be phased in over
5 years. Fragile ecosystems in arid environments
cannot wait that long for change to occur.
AR 61054-55.
In the Final EIS, the BLM acknowledges that changes to
the basis for rangeland health determinations, the time frame
for taking action to meet rangeland health standards, and
increased monitoring requirements may delay administrative
enforcement actions. The agency concludes, however, that
such delay would affect only a relatively small number of
allotments. Final EIS at 4-23, 4-24. This conclusion is based
on a five-year BLM study in which the agency assessed 58
million acres of BLM land (or, roughly a third of its total
grazing land) and found that 16 percent of allotments failed
to meet the Standards and Guidelines due to existing livestock
grazing practices or levels of grazing use. Id. at 4-24. There-
fore, the BLM concluded “at most approximately 16 percent
of all allotments evaluated in the future may fail standards due
to current livestock grazing practices.” Id.
3. Private rights to permanent improvements and
water
The 2006 Regulations also granted permittees shared title
to permanent rangeland improvements as well as water rights
on public lands to the extent permitted by state law. See 43
C.F.R. § 4120.3-9.
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13257
In the ARC-DEIS, BLM’s experts reported that
“[a]uthorizing joint title to range improvements will have [a]
very long lasting adverse impact to the wildlife of the public
lands in the West,” and that loss of control and right to water
on public lands will “reduce wildlife habitat quality by pro-
moting wildlife-livestock conflicts.” AR 68007. The BLM’s
interdisciplinary team further noted that the “present ability of
BLM to hold water rights to benefit wildlife, particularly fish
has been significant.” Id.The Final EIS discusses the change in rangeland improve-
ment ownership, but instead of analyzing the environmental
consequences of the proposed ownership changes, the Final
EIS focuses on potential development and economic gain,
stating that the new ownership provisions may stimulate an
increase in private investment in the construction of rangeland
improvements. Final EIS at 4-25, 4-11;AR 661, 647. The
Final EIS reports that the BLM projects that under the 2006
Regulations there would be approximately 1,200 new range-
land improvement projects developed each year over the next
five years. Final EIS at 4-11; AR 647. There is no discussion
in the Final EIS of the environmental impact of this increased
construction.
As to the changes in water rights, the Final EIS concludes
without explanation that the proposed regulations would have
little or no effect on present water resource conditions. Final
EIS at 4-36.
4. Summary NEPA discussion
Plaintiffs’ first claim is that the BLM failed to take a “hard
look” at the environmental consequences of the proposed reg-
ulatory changes, and that the BLM’s approval of the 2006
Regulations was, therefore, arbitrary and capricious. See Te-
Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior,
608 F.3d 592, 599 (9th Cir. 2010). We review the regulatory
13258 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
changes together in considering whether the BLM violated
NEPA.
[10] An agency considering “major federal actions signifi-
cantly affecting the quality of the human environment” has an
obligation under NEPA to prepare an EIS that in “form, con-
tent and preparation foster[s] both informed decision-making
and informed public participation.” Native Ecosystems Coun-
cil v. United States, 418 F.3d 953, 958 n.4, 960 (9th Cir.
2005) (internal quotation marks omitted). The “hard look”
”must be taken objectively and in good faith, not as an exer-
cise in form over substance, and not as a subterfuge designed
to rationalize a decision already made,” Metcalf, 214 F.3d at
1142, and the final EIS must include a “discussion of adverse
impacts that does not improperly minimize negative side
effects.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d
1147, 1159 (9th Cir. 2006), abrogated on other grounds by
Winter v. Natural Res. Defense Council, Inc., 129 S. Ct. 365,
375 (2008). “Accurate scientific analysis, expert agency com-
ments, and public scrutiny are essential to implementing
NEPA.” 40 C.F.R. § 1500.1(b). “[G]eneral statements about
possible effects and some risk do not constitute a hard look
absent a justification regarding why more definitive informa-
tion could not be provided.” Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998)
(internal quotation marks omitted).
[11] Here, the BLM failed to address concerns raised by its
own experts, FWS, the EPA, and state agencies. For example,
the BLM offered no reasoned analysis whatsoever in support
of its conclusion—which is in direct conflict with the conclu-
sion of its own experts and sister agency, FWS—that there
will be no environmental effect caused by both the across-the-
board reduction in public involvement in management of
grazing on public lands and the elimination of public input
into particular management decisions. Similarly, the BLM
never seriously considered the concerns raised by FWS and
the California Department of Fish and Game among others
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13259
that the 2006 Regulations weaken the ability of the BLM to
manage rangelands in a timely fashion. As FWS explained in
its comment, “in the west, environmental, and therefore, vege-
tation changes happen stochastically, rapidly, and often
involve extremes,” and “it is important for BLM range profes-
sionals to respond immediately and to the extent necessary to
avoid a change in range condition from which it may take
decades to recover.” AR 68062. The BLM’s Final EIS also
does not address the consequences of increased construction
and private water rights on public rangeland, despite concerns
expressed by its own expert scientists that the “present ability
of BLM to hold water rights to benefit wildlife, particularly
fish has been significant.”
Instead of a serious response to FWS’s concerns and an
analysis and consideration of the various delays and impedi-
ments in the BLM’s stewardship of public rangelands, as
required by NEPA, the Final EIS downplays the environmen-
tal impacts of the 2006 Regulations. The BLM, invoking
notions of efficiency, justifies the reduction in public partici-
pation and the elimination of the Fundamentals of Rangeland
Health as enforceable standards by stating that the 2006 Reg-
ulations are “anticipated to improve the efficiency and effec-
tiveness” of grazing administration. Final EIS at 4-23. The
Final EIS does not address the environmental consequences of
a mandatory five-year delay in implementing reductions of
ten percent or greater in active use on a permittee’s grazing
land, but rather speculates that this delay would “often
result[ ] in improved cooperative relations and management
between BLM and the permittee or lessee.” Id. at 4-25.
While diplomacy with permittees or lessees of public
rangelands is certainly a worthy goal, it is no substitute for the
BLM’s obligations to comply with NEPA and to conduct a
studied review and response to concerns about the environ-
mental implications of major agency action. See Earth Island
Inst., 442 F.3d at 1159 (explaining that the final EIS must
include a “discussion of adverse impacts that does not
13260 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
improperly minimize negative side effects”). While we recog-
nize that NEPA is a procedural statute, which “exists to
ensure a process, not to mandate particular results,” Native
Ecosystems Council v. Tidwell, 599 F.3d 926, 936 (9th Cir.
2010) (internal quotation marks omitted), part of the proce-
dure required is that an agency in its Final EIS address “any
responsible opposing view which was not adequately dis-
cussed in the draft statement and shall indicate the agency’s
response to the issues raised.” 40 C.F.R. § 1502.9(b). “This
disclosure requirement obligates the agency to make available
to the public high quality information, including accurate sci-
entific analysis, expert agency comments and public scrutiny,
before decisions are made and actions are taken.” Center for
Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1167
(9th Cir. 2003) (citing 40 C.F.R. § 1500.1(b)). When an
agency, such as the BLM, submits proposed regulatory
changes for public comment and then offers no meaningful
response to serious and considered comments by experts, that
agency renders the procedural requirement meaningless and
the EIS an exercise in “form over substance.” See Metcalf,
214 F.3d at 1142.
[12] Here, the BLM gave short shrift to a deluge of con-
cerns from its own experts, FWS, the EPA, and state agen-
cies; the BLM neither responded to their considered
comments “objectively and in good faith” nor made respon-
sive changes to the proposed regulations. Id. “[P]ublic scru-
tiny [is] essential to implementing NEPA,” 40 C.F.R.
§ 1500.1(b), and the BLM was required to “assess and con-
sider . . . both individually and collectively” the public com-
ments received during the NEPA process and to respond to
such in its Final EIS. Id. § 1503.4(a); see Center for Biologi-
cal Diversity, 349 F.3d at 1167 (holding that the agency in
that case violated NEPA when it failed “to disclose and dis-
cuss responsible opposing scientific viewpoints in the final
statement”). We therefore conclude that the BLM violated
NEPA by failing to take a “hard look” at the environmental
consequences of the proposed regulatory amendments.
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13261
[13] In addressing the new monitoring requirement, the
Final EIS concludes that the impact on the agency will be
minimal because only 16 percent of the allotments evaluated
during the last five years failed to achieve standards and con-
form to guidelines. Final EIS at 4-26. The BLM, however,
currently monitors and has data on only a third of the total
allotments. Final EIS at 4-24. Having no monitoring data on
the vast majority of the land the BLM monitors, and offering
no corroborating scientific evidence, the assertion that the 16
percent finding is representative is unsupported. See Earth
Island Inst. v. Hogarth, 494 F.3d 757, 763-64 (9th Cir. 2007)
(explaining that we generally defer to an agency’s expertise
in the methodology of the agency’s studies but a result that is
not rationally connected to the best available scientific evi-
dence receives no such deference). Furthermore, even if we
credit the BLM’s estimate that 16 percent of all BLM grazing
does not meet the Standards and Guidelines, 16 percent of all
BLM public rangelands still amounts to over 25 million acres.
The Final EIS does not consider the environmental impact on
the over 25 million acres of affected public rangelands of the
requirement, under the 2006 Regulations, that monitoring data
be collected by the agency prior to bringing an enforcement
action. By failing to consider the impact of the 2006 Regula-
tions on over 25 million acres of affected public rangelands,
the BLM “entirely failed to consider an important aspect of
the problem,” and, therefore, its no effect conclusion was
arbitrary and capricious. The Lands Council v. McNair, 537
F.3d 981, 987 (9th Cir. 2008) (en banc), abrogated on other
grounds by Winter, 129 S. Ct. at 375.
Furthermore, the BLM failed to consider the combined and
synergistic effects of the proposed amendments. See Or. Nat-
ural Res. Council, 492 F.3d at 1132 (explaining that one of
the “specific requirements under NEPA is that an agency
must consider the effects of the proposed action in the context
of all relevant circumstances, such that where several actions
have a cumulative . . . environmental effect, this consequence
must be considered in an EIS” (quotation marks omitted)).
13262 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
For example, the reduction of public participation in various
grazing management and permitting decisions is logically
compounded by the increased difficulty in maintaining “inter-
ested public” status as to a given allotment in the first place.
Similarly, the dual changes of reducing the data that must be
considered when monitoring an allotment, and permitting
enforcement actions to be brought only where there is avail-
able monitoring data, combine synergistically to reduce
enforcement significantly. Furthermore, phased in reductions
of corrective measures, delayed corrective actions, and the
requirement that monitoring data be available before correc-
tive action is taken each delays enforcement and impedes
agency responsiveness. Together, the effects of these changes
are even more dramatic, resulting in greater delay and greater
environmental impact. As the BLM’s own experts noted,
“these cumulative delaying tactics could result in a protracted
7 year period for full implementation and change” and there-
fore “would result in long-term, adverse impact upon wildlife
resources.” AR 68008. We agree with the district court that
the BLM violated the procedural requirements of NEPA and
failed to take a “hard look” when it failed to consider the
combined effects of the 2006 Regulations. See City of
Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.
1990) (“NEPA requires that where several actions have a
cumulative or synergistic environmental effect, this conse-
quence must be considered in an EIS.”).
Finally, we note that the Final EIS offers no reasoned
explanation for the BLM’s change of policy from the 1995
Regulations. “[A]n agency changing its course by rescinding
a rule is obligated to supply a reasoned analysis for the
change beyond that which may be required when an agency
does not act in the first instance.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).
The Supreme Court has said, in considering an agency’s
decision to change its regulatory policy, “[i]f Congress estab-
lished a presumption from which judicial review should start,
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13263
that presumption . . . is . . . against changes in current policy
that are not justified by the rulemaking record.” Id. at 42(emphasis in original). “[T]he agency must examine the rele-
vant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found
and the choice made.” Id. at 43 (internal quotation marks and
citation omitted).
Here, the BLM decreased its regulatory authority over
rangeland management, decreased the role of the public in
overseeing that management, and granted permittees and les-
sees increased ownership rights. These changes are inconsis-
tent with the 1995 Regulations and discordant with the
lessons learned from the history of rangeland management in
the west, which has been moving towards multiple use man-
agement and increased public participation. The BLM itself
acknowledges in the Final EIS that public input helps identify
environmental impacts. As the district court pointed out, when
the BLM enacted the 1995 Regulations the BLM recognized
with respect to public participation that:
Experience has shown that the greater and more
meaningful the participation during the formulation
of decisions and strategies for management, the
higher the level of acceptance and thus the lower the
likelihood of a protest, an appeal, or some other form
of contest.
W. Watersheds Project, 538 F. Supp. 2d at 1313 (quoting 60
Fed. Reg. 9894, 9924 (1995)).
[14] Nonetheless, the BLM makes substantial reductions in
the avenues for public input because, as the BLM explains,
such input is at times “inefficient” and “redundant.” Appendix
FEIS at 37. The BLM’s rationale falls short of the require-
ments of NEPA and the APA. The BLM has failed to consider
relevant factors, failed to articulate a rational connection
between the facts put forth by agency experts and the choices
13264 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
made, and changed course from current policy without a rea-
soned explanation. In short, the BLM’s Final EIS has not pro-
vided a “full and fair discussion” of the environmental
impacts of the proposed regulatory changes, 40 C.F.R.
§ 1502.1, impairing both the ability of the BLM to reach a
reasoned decision and the ability of the “larger audience” to
play an effective role in the decisionmaking process. See
Dep’t of Transp., 541 U.S. at 768. Therefore, we conclude
that the BLM has failed to take a “hard look” at the environ-
mental impacts of the 2006 Regulations as required by NEPA,
and its conclusion in the Final EIS that the proposed action
would have no significant environmental impact is arbitrary
and capricious under the APA. We affirm the district court’s
grant of summary judgment to Plaintiffs.
D. Endangered Species Act
The Supreme Court has called the ESA “the most compre-
hensive legislation for the preservation of endangered species
ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437
U.S. 153, 180 (1978). The ESA reflects “a conscious decision
by Congress to give endangered species priority over the ‘pri-
mary missions’ of federal agencies.” Id. at 185.
[15] The heart of the ESA is section 7(a)(2), 16 U.S.C.
§ 1536(a)(2). Section 7(a)(2) requires a federal agency to “in-
sure that any action authorized, funded, or carried out” by the
agency “is not likely to jeopardize the continued existence of
any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such spe-
cies.” 16 U.S.C. § 1536(a)(2); see Cal. ex rel. Lockyer v. U.S.
Dep’t of Agric., 575 F.3d 999, 1018 (9th Cir. 2009). Section
7(b), a procedural component of the ESA, requires a federal
agency to complete formal consultation with FWS if the
agency determines that any action on its part “may affect” any
listed species or critical habitat. 16 U.S.C. § 1536(a)(2)-(c);
50 C.F.R. § 402.14(a); see Cal. ex rel. Lockyer, 575 F.3d at
1018.
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13265
Here, the BLM concluded that the proposed 2006 Regula-
tions would have no effect on endangered or threatened spe-
cies or their critical habitat and, therefore, did not consult with
FWS. See Sw. Ctr. for Biological Diversity v. U.S. Forest
Serv., 100 F.3d 1443, 1447-48 (9th Cir. 1996). The BLM
explained in the Final Rule that
none of these eighteen administrative changes will
have an effect on listed or proposed species or pro-
posed or designated critical habitat. . . . Thus . . . the
BLM has fulfilled its obligations under section 7 of
the ESA and has determined that the proposed revi-
sions will have no effect on listed or proposed spe-
cies or proposed or designated critical habitat.
Final Rule, 71 Fed. Reg. 39402.
Plaintiffs contend that the BLM violated the ESA by failing
to consult with FWS before approving the 2006 Regulations.
Plaintiffs challenge the BLM’s failure to consult under the
citizen-suit provision of the ESA. 16 U.S.C. § 1540(g)(1). The
citizen-suit provision allows individuals to bring suits “to
enjoin any person, including the United States and any other
governmental instrumentality or agency . . . who is alleged to
be in violation of any provision of this chapter or regulation
issued under authority thereof.” Id.; see Bennet v. Spear, 520
U.S. 154, 173 (1997); Washington Toxics Coal. v. EPA, 413
F.3d 1024,1030 (9th Cir. 2005). The citizen-suit provision “is
a means by which private parties may enforce the substantive
provisions of the ESA against” government agencies. Bennett,
520 U.S. at 173. Because Plaintiffs’s claim is available under
the ESA, this court looks to the ESA and not to the APA. See
id. at 164 (determining first whether citizen-suit provision of
ESA applied and then applying APA to remaining ESA
claims); Coos County Bd. of County Comm’rs, 531 F.3d at
802 (determining that “if a plaintiff can bring suit against the
responsible agencies under a citizen suit provision, this action
precludes an additional suit under the APA” (internal quota-
13266 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
tion marks, citation, and brackets omitted)). “Because ESA
contains no internal standard of review, section 706 of the
Administrative Procedure Act, 5 U.S.C. § 706, governs
review” of the BLM’s actions and “the normal ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law’ standard applies.” Village of False Pass v.
Clark, 733 F.2d 605, 609-10 (9th Cir. 1984); see also Defend-
ers of Wildlife v. Flowers, 414 F.3d 1066, 1072 (9th Cir.
2005).
Accordingly, Plaintiffs argue that the BLM’s no effect find-
ing was arbitrary and capricious and, therefore, that the
BLM’s determination that consultation was not required was
not in accordance with law. The minimum threshold for an
agency action to trigger consultation with FWS is low, and we
conclude that the regulatory amendments here—which affect
160 million acres of public land, home to hundreds of special
status species—handily meet that threshold.
To determine whether the BLM’s no effect determination
was arbitrary and capricious, we must decide whether the
BLM “considered the relevant factors and articulated a ratio-
nal connection between the facts found and the choice made.”
Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841
(9th Cir. 2003) (quoting Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, 462 U.S. 87, 105 (1983)). A federal agency
“must initiate formal consultation if its proposed action ‘may
affect’ listed species or critical habitat,” and “[a]ny possible
effect, whether beneficial, benign, adverse, or of an undeter-
mined character, triggers the formal consultation require-
ment.” 51 Fed. Reg. 19,949; see Defenders of Wildlife, 414
F.3d at 1072. The BLM’s decision to forgo consultation with
FWS must be reversed if the BLM “entirely failed to consider
an important aspect of the problem” or “offered an explana-
tion that runs counter to the evidence before the agency.” The
Lands Council, 537 F.3d at 987 (internal citation and quota-
tion marks omitted).
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13267
[16] The sheer number of acres affected by the 2006 Regu-
lations and number of special status species who reside on
those lands alone suggest that the proposed amendments “may
affect” a listed species or its critical habitat. The BLM’s graz-
ing regulations affect roughly 160 million acres of public
lands, home to hundreds of special status species. Indeed,
because of the sheer number of special status species present
on those 160 million acres, the BLM lists the names of all the
special status species in the West in the Final EIS. Final EIS
at Appendix 1. The list includes over 300 special status spe-
cies: 30 species of birds; 49 species of fish; 39 species of
mammals; 137 species of plants; 8 species of snails; 10 spe-
cies of crustaceans; 6 species of reptiles; 15 species of insects;
and 11 species of amphibians that are endangered, threatened,
or candidate species in the West. Id. (containing a 35 page
table that lists identified special status species). Presumably
and logically, the BLM listed these species—over 300—
because many of them are found on the affected 160 million
acres. Still, the BLM maintains—contrary to the experts’
reports—that the regulatory changes will not affect so much
as one special status species, animal or plant, or its habitat.
Furthermore, we find it significant that FWS, the agency
that “is primarily responsible for protecting endangered spe-
cies,” and that has what we have previously referred to as “the
more appropriate expertise,” concluded that the 2006 Regula-
tions would affect status species and their habitat. Sierra Club
v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987); see also
Defenders of Wildlife, 414 F.3d at 1074 (holding that the
Corps arbitrarily refused to initiate Section 7 consultation
where FWS demanded consultation).
FWS explained that “[w]ild ungulates, sage-grouse,
neotropical migrant birds, pygmy rabbits, and various raptors
are all influenced by the presence and distribution of livestock
in the western sagebrush-steppe ecosystem,” and “[t]he pro-
posed revisions seek to change the ways livestock will be
managed spatially and temporally.” AR 68069. FWS identi-
13268 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
fied the greater sage-grouse and its habitat as being particu-
larly vulnerable to the extension in the amount of time the
BLM would take to make needed grazing changes. AR 68059.
FWS was “most concerned” that “public coordination is not
required for renewal or issuance of grazing permits/leases”
and the 2006 Regulations provide for private ownership of
water on public lands. AR 68060, 68071 (noting that “[t]here
is no more important resource for fish and wildlife in the arid
west than water”). As FWS explained, “[p]ublic input is an
important component of ensuring [a] complete and accurate
analysis,” and “[i]mproperly managed permits or leases could
have negative effects for listed and sensitive species.” AR
68060. With respect to the change in water ownership, FWS
reasoned that “private water users seeking exclusive control
of a water source on public lands for livestock grazing pur-
poses would reduce habitat quality (for wildlife)” and that this
would “have a slow, long-term adverse effect on wildlife as
a whole and biological diversity in general.” AR 68070 (quot-
ing the Bureau of Land Management, Rangeland Reform ‘94:
Final Environmental Impact Statement (1994)).
Not only FWS but also the BLM’s own scientists advised
the agency that Section 7 consultation was necessary. One sci-
entist, an ARC-DEIS team member and BLM wildlife biolo-
gist for 30 years, concluded that “we are definitely in a ‘may
affect’ situation and should therefore consult.” AR at 68227.
The lead representative from the BLM’s Fish and Wildlife
Program concluded that consultation was a “no brainer,” and
a BLM fisheries biologist concluded that “[s]everal of the reg-
ulation changes within the proposed action are likely to
adversely affect listed species . . . , which triggers the need to
consult with FWS.” AR 68193.
Plaintiffs also submitted extra-record material in the district
court supporting their “may affect” argument. Intervenors
argue that this court may not look to extra-record material in
conducting a review under the ESA. As we explained in
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13269
Washington Toxics Coalition, the APA applies only where
there is “no other adequate remedy in a court,” 5 U.S.C.
§ 704, and—because the ESA provides a citizen suit remedy
—the APA does not apply in such actions. 413 F.3d at 1034.
Therefore, under Washington Toxics Coalition we may con-
sider evidence outside the administrative record for the lim-
ited purposes of reviewing Plaintiffs’ ESA claim. See id. at
1030, 1034.
Erick Campbell, a wildlife biologist for the BLM since
1976, submitted a declaration in support of Plaintiffs’ ESA
claim. Decl. of Erick Campbell ¶¶ 3-4. Campbell wrote the
terrestrial special status species sections for the ARC-DEIS.
Id. Campbell warned that “direct grazing impacts include
livestock consumption of palatable special status plants and
direct trampling of special status species, such [as the] desert
tortoise,” and concluded that the “cumulative effects resulting
from all these [proposed regulatory] changes will be signifi-
cant and adverse for wildlife and biological diversity in the
long-term.” Id. ¶¶ 14, 16.
Robert House, a Certified Fisheries Biologist and Aquatic
Scientist with over 35 years of professional experience with
FWS and BLM, submitted a lengthy declaration detailing the
effects the 2006 Regulations would have on ESA listed sal-
monids. Decl. of Robert House ¶¶ 1-2. He concluded “that the
proposed grazing regulation changes as set forth in BLM’s
Final EIS ‘may affect’ and, further, are ‘likely to adversely
affect’ listed and special status fish species and their current
and potential usable aquatic and riparian habitat.” Id. ¶ 9.
Kathleen Fite, who has a Master’s degree in Biology and
was employed for 9 years as a Senior Wildlife Technician
with the Idaho Department of Fish and Game, filed a declara-
tion stating that the affected public lands are home to “hun-
dreds of species of birds and wildlife, including many
threatened, endangered and special status species such as the
bald eagle, Greater sage-grouse, pygmy rabbit, Columbia
13270 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
spotted frog, desert tortoise, golden eagle, Southwestern wil-
low flycatcher, Mexican spotted owl, burrowing owl, ferrugi-
nous hawk, Swainson’s hawk, and a variety of migratory
birds.” Decl. of Kathleen Fite ¶¶ 5-7, 22. Kite detailed the
effect that over-grazing has on the habitat of these species,
including causing erosion and destruction of the native plant
community. Id. at ¶ 31-33. She also pointed out that the 2006
Regulations create incentives to build more range improve-
ments, which will affect “vital habitats for native species such
as sage-grouse, desert tortoise, and pygmy rabbit.” Id. ¶¶ 104-
05.
In sum, there is resounding evidence from agency experts
that the eighteen amendments to the BLM’s grazing regula-
tions, i.e. the 2006 Regulations, “may affect” listed species
and their habitat. The requirement that a federal agency con-
sidering action consult with FWS is triggered under the ESA
if that proposed action “may affect” listed species. Cal. ex rel.
Lockyer, 575 F.3d at 1018. In 1995, the last time the BLM
amended its grazing regulations, it consulted with FWS. W.
Watersheds, 538 F. Supp. 2d at 1306. Nevertheless, here the
BLM concluded, without rational basis, that the 2006 Regula-
tions would not affect listed species or their habitat and that
the amendments were purely administrative. As evidenced by
the expert declarations, the 2006 Regulations are not purely
administrative. They alter ownership rights to water on public
lands; increase the barriers to public involvement in grazing
management; and substantially delay enforcement on failing
allotments, in ways that will have a substantive effect on spe-
cial status species.
[17] “Although our review under the arbitrary and capri-
cious standard is deferential, it does not condone a ‘clear error
of judgment.’ ” Blue Mountains Biodiversity Project, 161
F.3d at 1216 (quoting Marsh, 490 U.S. at 378). Because the
BLM failed to consider relevant expert analysis or articulate
a rational connection between the facts found and the choice
made, we conclude that the BLM’s no effect finding and
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13271
resulting failure to consult were arbitrary and capricious in
violation of the BLM’s obligations under the ESA. See
National Ass’n of Home Builders, 340 F.3d at 841.
E. Federal Land Policy and Management Act
Plaintiffs also challenged the 2006 Regulations under
FLPMA. In enacting FLPMA, “Congress declared that it is
the policy of the United States to manage the public lands ‘in
a manner that will protect the quality of scientific, scenic, his-
torical, ecological, environmental, air, and atmospheric, water
resource, and archeological values.’ ” Ctr. for Biological
Diversity, 581 F.3d at 1075 (quoting 43 U.S.C. § 1701(a)(8)).
With regard to public participation, FLPMA directs that:
In exercising his authorities under this Act, the Sec-
retary, by regulation, shall establish procedures,
including public hearings where appropriate, to give
. . . the public adequate notice and an opportunity to
comment upon the formulation of standards and
criteria for, and to participate in, the preparation and
execution of plans and programs for, and the man-
agement of, the public lands.
43 U.S.C. § 1739(e).
[18] The parties do not dispute that under § 1739(e), the
BLM must provide avenues for public input in the planning
and management of the public lands. It is not obvious, how-
ever, whether the 2006 Regulations—limiting input and elimi-
nating it entirely from certain management decisions—were
in direct and unreasonable disregard of that statutory require-
ment. Intervenors argue that in resolving that question, the
district court erred when it did not afford the 2006 Regula-
tions Chevron deference. Intervenors further argue that the
regulations do not eliminate public participation (a result
Intervenors concede FLPMA forbids), but rather simply alter
the circumstances of public participation. We agree as to the
13272 WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK
former, Chevron analysis was required, and reserve judgment
on the latter.
[19] The district court erred when it failed to apply the
analytical framework set out in Chevron to the BLM’s inter-
pretation of its authority and obligations under FLPMA, as
expressed by the 2006 Regulations. See Chevron, 467 U.S. at
842-43; see, e.g., Nw. Envtl. Advocates, 537 F.3d at 1014(applying Chevron deference to FLPMA claim). Under Chev-
ron, the district court was required to determine whether the
elimination of public comment as to certain management
decisions (but not others) and the changed definition of “inter-
ested public” under the 2006 Regulations were in disregard of
FLPMA’s unambiguous language; or, alternatively, whether
FLPMA’s public participation requirement is ambiguous and
the BLM’s interpretation reasonable. See Webb v. Lujan, 960
F.2d 89, 92 (9th Cir. 1992) (“We must uphold an agency’s
construction of a statute if it is consistent with the unambigu-
ous language of Congress, or if the statute is ambiguous, if it
is reasonable.”). Because the district court failed to apply
Chevron, we vacate the district court’s grant of summary
judgment to Plaintiffs on this claim.
[20] Although we may affirm the district court’s summary
judgment ruling on any grounds supported by the record, the
issues we would be required to decide under Chevron to
resolve the Plaintiffs’s FLPMA claim are not adequately
briefed or argued by the parties. See Trustees of S. Cal. IBEW-
NECA Pension Trust Fund v. Flores, 519 F.3d 1045, 1048
(9th Cir. 2008) (remanding an issue to the district court where
the district court had not considered it and the parties had not
adequately briefed it on appeal). For example, if FLPMA’s
requirements with respect to public participation are indeed
ambiguous, Chevron analysis in this instance would require a
determination of whether the BLM’s interpretation of its own
authority was reasonable. We are not in a position to make
such a determination based on the information provided by
the parties and found in the record. Therefore, we deem it
WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13273
appropriate to vacate the court’s judgment regarding the
FLPMA claim and to remand this claim to the district court
for further consideration under Chevron in the first instance.9
V. Conclusion
The BLM violated both NEPA and the ESA. We affirm the
district court’s grant of summary judgment in favor of Plain-
tiffs as to these claims, and we affirm the district court’s per-
manent injunction enjoining the BLM’s 2006 Regulations.10
See Wash. Toxics Coal., 413 F.3d at 1034 (“It is well-settled
that a court can enjoin agency action pending completion of
section 7(a)(2) requirements.”); Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002) (explaining that
“effectuating Congress’ clear intent [in passing the ESA]
required issuance of an injunction” (citing TVA v. Hill, 437
U.S. 153, 193-95 (1978))).11 Because the district court failed
to consider Plaintiffs’ FLPMA claim under the framework
and with the deference set forth in Chevron, we vacate the
district court’s grant of summary judgment in favor of Plain-
tiffs on this claim.
AFFIRMED in part; VACATED in part; and
REMANDED.
Plaintiffs shall recover their costs on appeal.
9
Although we remand the FLPMA issue to the district court for further
consideration, we do not foreclose the possibility that one or both parties
may argue that the case or the FLPMA issue is moot. The district court
is free on remand to consider any such argument.
10
Intervenors do not challenge the scope of the injunction on appeal.
Any argument concerning the nature and scope of the district court’s
injunctive relief is, therefore, waived. See, e.g., Friends of Yosemite Valley
v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008).
11
The district court, however, remains free to make any necessary modi-
fications to the injunction, if warranted, after it addresses Plaintiffs’s
FLPMA claim on remand.