Western Watersheds Project v. Bob Abbey , 719 F.3d 1035 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT , a No. 11-35705
nonprofit organization; GLENN
MONAHAN , in his individual D.C. No.
capacity and as a member of 4:10-cv-00004-
Western Watersheds Project; NANCY SEH
SCHULTZ, in her individual capacity
and as a member of Western
Watersheds Project, OPINION
Plaintiffs - Appellants,
v.
BOB ABBEY , in his official capacity
as Director of the Bureau of Land
Management, an agency of the
United States; GARY SLAGEL, in his
official capacity as Manager of the
Upper Missouri River Breaks
National Monument; GENE R.
TERLAND , in his official capacity as
BLM Montana State Director; GARY
L. BENES, in his official capacity as
Field Manager of BLM’s Lewistown
Field Office; BUREAU OF LAND
MANAGEMENT , an agency of the
United States Department of Interior,
Defendants - Appellees,
2 WESTERN WATERSHEDS PROJECT V . ABBEY
and
BLAINE COUNTY ; CHOUTEAU
COUNTY ; FERGUS COUNTY ;
MISSOURI RIVER STEWARDS;
PHILLIPS COUNTY ,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
February 5, 2013—Seattle, Washington
Filed June 7, 2013
Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Gould
WESTERN WATERSHEDS PROJECT V . ABBEY 3
SUMMARY*
Environmental Law
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of United States agencies
and officials in an action challenging the Bureau of Land
Management’s management of grazing within the Upper
Missouri River Breaks National Monument in Montana.
The panel held that BLM reasonably interpreted
Proclamation No. 7398, 3 C.F.R. § 7398 (2002), to not
require programmatic changes to grazing management
policies in the Breaks Monument Resource Management
Plan, and the Breaks Monument Environmental Impact
Statement complied with the National Environmental Policy
Act by taking a hard and careful look at grazing impacts.
The panel also held that the Environmental Assessment
for the Woodhawk Allotment, located within the Monument,
violated the National Environmental Policy Act by not
considering a reasonable range of alternatives that included
a no- or reduced-grazing option. The panel remanded for the
district court to enter an appropriate order requiring BLM to
remedy the deficiencies in the Environmental Assessment for
the Woodhawk Allotment or to prepare a more detailed
Environmental Impact Statement.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WESTERN WATERSHEDS PROJECT V . ABBEY
COUNSEL
Thomas J. Woodbury, Western Watersheds Project, Missoula,
Montana, for Plaintiffs-Appellants.
Robert Parke Stockman (argued), Ignacia S. Moreno,
Assistant Attorney General, Tyler Welti, Rachel K. Bowen,
and David C. Shilton, United States Department of Justice,
Environment & Natural Resources Division, Washington
D.C.; Sarah Shattuck and Karan Dunnigan, Of Counsel,
Office of the Solicitor General, United States Department of
the Interior, Washington D.C., for Defendants-Appellees.
Hertha L. Lund (argued), Lund Law, Bozeman, Montana;
Steven J. Lechner and Jeffrey Wilson McCoy, Mountain
States Legal Foundation, Lakewood, Colorado, for
Intervenors-Appellees.
OPINION
GOULD, Circuit Judge:
More than two-hundred years ago, the Upper Missouri
River Breaks enchanted Lewis and Clark as they traveled
westward through what is now north-central Montana.
Proclamation No.7398, 3 C.F.R. § 7398 (2002). The
explorers marveled at the area’s “most romantic appearance,”
with white sandstone bluffs that seemed “to rival the human
art of masonry.” Id. They admired the abundant wildlife and
observed big-horn sheep, mule deer, elk, and antelope. Id. In
2001, President Clinton recognized the biological, historical,
and cultural significance of the Breaks country by designating
the area as the Upper Missouri River Breaks National
WESTERN WATERSHEDS PROJECT V . ABBEY 5
Monument (“Breaks Monument” or “Monument”). The
Bureau of Land Management (“BLM”), an agency of the
United States Department of the Interior, manages the
Monument, an area of unparalleled scenic beauty, great
geological and biological import, and special historical
significance.
Appellants Western Watersheds Project, Glenn Monahan,
and Nancy Shultz (collectively “Western Watersheds”) argue
that BLM’s management of grazing within the Breaks
Monument violates the Federal Land Policy and Management
Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701–1787;
Proclamation No. 7398, 3 C.F.R. § 7398 (2002); and the
National Environmental Policy Act of 1969 (“NEPA”),
42 U.S.C. §§ 4321–4347. Western Watersheds contends that
BLM improperly interpreted the Proclamation to exclude
programmatic grazing changes from the Breaks Monument
Resource Management Plan (“Breaks Resource Plan”). It
further argues that the Breaks Monument Environmental
Impact Statement (“Breaks EIS”) and the site-specific
Environmental Assessment (“EA”) for the Woodhawk
Allotment violated NEPA by not adequately assessing the
impacts of livestock grazing within the Monument.
The district court granted summary judgment in favor of
Appellees United States Department of the Interior, BLM,
and named employees in their official capacities (collectively
“BLM”). Western Watersheds appealed. We have
jurisdiction to review this appeal under 28 U.S.C. § 1291.
We affirm in part and reverse in part. We conclude (1) that
BLM reasonably interpreted the Proclamation in developing
the Breaks Resource Plan, (2) that the Breaks EIS complied
with NEPA, and (3) that the EA for the Woodhawk Allotment
6 WESTERN WATERSHEDS PROJECT V . ABBEY
violated NEPA. We remand for further proceedings on the
Woodhawk Allotment permit renewal.
I
President Clinton established the Breaks Monument by
presidential proclamation pursuant to his authority under the
Antiquities Act, 16 U.S.C. § 431. See 3 C.F.R. § 7398. The
Breaks Monument comprises more than 375,000 acres of
federal land in north-central Montana intermingled with
nearly 120,000 acres of state, county, and private land. The
Proclamation’s purpose is to protect various “objects” in the
Breaks country that have biological, geological, or historical
significance. Id.The Breaks country remains remote and largely
undeveloped, so “[m]any of the biological objects described
in Lewis’ and Clark’s journals continue to make the
monument their home.” Id. These biological objects include
essential habitat for sage-grouse and waterfowl, the Judith
River and its tributaries that provide habitat for forty-eight
species of fish, and a fully functioning cottonwood gallery
forest ecosystem—one of only a few remaining in the
Northern Plains. Id.The Proclamation directs BLM to manage the Breaks
Monument pursuant to applicable legal authorities and the
Proclamation’s purposes and terms. Id. These terms include
provisions that either direct BLM to take a specific action or
limit the Proclamation’s impact. Id. One of these provisions,
and a key one affecting this lawsuit, states that the “[l]aws,
regulations, and policies followed by the [BLM] in issuing
and administering grazing permits or leases on all lands under
its jurisdiction shall continue to apply with regard to the lands
WESTERN WATERSHEDS PROJECT V . ABBEY 7
in the monument.” Id. Western Watersheds challenges
BLM’s interpretation of that grazing provision.
BLM concluded that the grazing provision authorized it
to follow existing laws, regulations, and policies governing
grazing to “protect the objects of the Monument and
rangeland resources.” This interpretation limited the scope of
both the Breaks Resource Plan, which BLM created to guide
the agency’s management of the Breaks Monument, and the
Breaks EIS, which assessed environmental impacts of the
Breaks Resource Plan. The Breaks EIS considered six
alternatives, but none proposed programmatic changes to
grazing management because, importantly, BLM interpreted
the Proclamation not to require such changes. The Breaks
Resource Plan and Breaks EIS adopted BLM’s interpretation
and explained that existing laws, regulations, and policies
would continue to apply in the Monument. These laws and
regulations include the Lewistown District Standards for
Rangeland Health and Guidelines for Livestock Grazing
Management (Lewistown Standards).
Western Watersheds contends that the Lewiston
Standards are inadequate to protect Monument objects and
that BLM erred by relying on the Lewiston Standards in the
Breaks Resource Plan, the Breaks EIS, and the EA for the
Woodhawk Allotment. This contention moves us toward
center stage in the drama of this dispute involving grazing
within the Breaks area protected by the Proclamation. We
must consider both BLM’s grazing policies, which may be
continued under the Proclamation, and the needs of the
Monument objects, some of which are in tension with BLM’s
existing grazing policies.
8 WESTERN WATERSHEDS PROJECT V . ABBEY
The Lewistown Standards were created in 1997 as part of
the regional Montana/Dakotas Standards for Rangeland
Health and Guidelines for Livestock Grazing Management.
BLM regulations mandate the creation of regional or
statewide rangeland standards consistent with the
fundamentals of rangeland health set forth in those
regulations. See 43 C.F.R. §§ 4180.1, 4180.2. These
regulations also allow for localized standards and guidelines,
like those developed for the Lewistown District, “to address
local ecosystems and management practices.” 43 C.F.R.
§ 4180.2(b). The Central Montana Resource Advisory
Council participated in developing the Lewistown Standards.
The Lewistown Standards set five standards and fourteen
guidelines. The “[s]tandards are statements of physical and
biological condition or degree of function required for healthy
sustainable rangelands.” Standards one and two adopt a
proper-functioning-condition model to determine upland,
riparian, and wetland health. These standards require soil
stabilization, adequate vegetation, and a rich biotic
community. The guidelines “are preferred or advisable
approaches to ensure that standards can be met or that
significant progress can be made toward meeting the
standard(s).” All BLM rangelands in the Lewistown District
must achieve the standards or make measurable progress
toward them. The Lewistown Standards are implemented
through a watershed planning process that identifies
watershed plan areas by grouping grazing allotments that
have similar resource values and concerns. Generally, BLM
issues ten-year grazing permits for these allotments, and each
permit renewal must comply with NEPA.
The Woodhawk Allotment, located within the Monument,
is governed by the watershed planning process and the
WESTERN WATERSHEDS PROJECT V . ABBEY 9
Lewistown Standards. When the ten-year grazing permit for
the Allotment expired on December 31, 2008, BLM proposed
renewing the permit for another ten-year period. BLM then
conducted an environmental assessment to determine the
environmental impact of renewing the permit. With this
assessment, BLM released a finding of no significant impact
because (1) the permit renewal would facilitate management
changes to improve riparian and water quality conditions and
(2) it would not impact wildlife, air quality, or cultural
resources. The EA considered four alternatives in detail: one
no-action alternative, which would implement the same
management practices as the previous permit, and three
action alternatives that proposed different management
practices for the Allotment. Also, the EA considered but did
not analyze in detail alternatives that would reduce or
eliminate grazing. These reduced-grazing alternatives were
eliminated because BLM determined that they did not meet
the purpose of the proposed permit renewal. Moreover,
because it had considered a no-grazing alternative in the 1979
Missouri Breaks Grazing Environmental Statement, BLM
found it unnecessary to consider such an option for the
Woodhawk Allotment. Western Watersheds challenges both
the BLM’s finding of no significant impact and the range of
alternatives considered in the Woodhawk Allotment EA.
Western Watersheds’s underlying concern is that the
Breaks Resource Plan, the Breaks EIS, and the EA for the
Woodhawk Allotment ignore the detrimental impacts of
livestock grazing on Monument objects, especially riparian
areas, cottonwood gallery forest ecosystems, and sage-grouse
habitat. Livestock have grazed in the Breaks Monument area
since the late 1800s. BLM acknowledges that livestock
grazing can significantly affect the protected biological
objects of the Monument. Overgrazing reduces habitat
10 WESTERN WATERSHEDS PROJECT V . ABBEY
quality for the greater sage-grouse, which can cause increased
predation on nests or nest desertion. In riparian areas, grazing
degrades water quality, affecting fish and other aquatic
species. BLM studies have found hot-season grazing to be a
significant cause of the lack of cottonwood and willow
regeneration along the Missouri River.
On November 20, 2009, Western Watersheds filed suit in
the U.S. District Court for the District of Montana
challenging the Breaks Resource Plan, the Breaks EIS, and
the EA for the Woodhawk Allotment. This case was
consolidated with two other cases challenging the Breaks
Resource Plan and EIS.1 On August 9, 2011, the district court
denied Western Watersheds’s motion for summary judgment
and granted BLM’s motion for summary judgment. In re
Montana Wilderness Ass'n, 807 F. Supp. 2d 990, 1005 (D.
Mont. 2011). The district court found reasonable BLM’s
interpretation that the Proclamation let it manage the Breaks
Monument for multiple-use so long as Monument objects
were adequately protected. The district court also determined
that the Breaks Resource Plan adequately protected
Monument objects and did not violate FLPMA. Rejecting
Western Watersheds’s NEPA claims, the district court
concluded that BLM took a “hard look” at grazing impacts in
the Breaks EIS and did not err by excluding from
consideration programmatic changes to grazing management.
The district court also determined that the EA complied with
NEPA.
1
Although the district court issued one decision for all three cases, the
parties appealed separately. The two other cases, Montana Wilderness
Association v. Terland, 11-35818, and The Wilderness Society v. Bureau
of Land Management, 11-35821, were consolidated on appeal and heard
by this panel on the same day as this case.
WESTERN WATERSHEDS PROJECT V . ABBEY 11
II
“We review de novo the district court’s grant of summary
judgment.” Ocean Advocates v. U.S. Army Corps of Eng’rs,
402 F.3d 846, 858 (9th Cir. 2004). The Administrative
Procedure Act (“APA”) governs our review of BLM’s
compliance with NEPA and FLPMA. See Ctr. for Biological
Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 641 (9th
Cir. 2010). Under the APA, we may set aside BLM’s
decision only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)
(quoting 5 U.S.C. § 706(2)(A)). This deferential standard
requires us to “ensure that the agency considered the relevant
factors and articulated a rational connection between the facts
found and the choices made.” Greater Yellowstone Coal., Inc.
v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011) (quoting
Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv.,
475 F.3d 1136, 1140 (9th Cir. 2007)). But it does not allow
us “to substitute our judgment for that of the agency.” Id.12 WESTERN WATERSHEDS PROJECT V . ABBEY
III
We proceed to the merits.2 Western Watersheds contends
that BLM’s interpretation of the Proclamation is illogical and
violates FLPMA and the Proclamation by unreasonably
elevating multiple-use principles above protection of
Monument objects. BLM responds that its interpretation is
2
On appeal, Intervenors-Appellees’ moved to strike portions of W estern
W atersheds’s excerpts of record and references to those documents in the
opening brief. The district court had refused to consider this evidence,
first by denying W estern W atershed’s motion to compel supplementation
of the administrative record and second by granting BLM’s motion to
strike the extra-record evidence submitted by W estern W atersheds. W e
review a district court’s ruling on a motion to strike for abuse of
discretion. El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir.
2003). W estern W atersheds raised the issue of the excluded evidence in
a two-sentence footnote to the facts section of their opening brief. Parties
must clearly articulate in their opening brief any issues that they intend to
raise on appeal. Christian Legal Soc’y Chapter of U niv. of Cal. v. Wu,
626 F.3d 483, 485 (9th Cir. 2010) (order). W estern Watershed’s minimal
discussion of the district court’s orders in a footnote does not meet this
standard. See id. By not properly raising the issue in its opening brief,
W estern W atersheds waived any challenge to these district court orders.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). W e also agree
with the district court that BLM did not consider the challenged evidence
in developing the Breaks Resource Plan, the Breaks EIS, or the EA for the
W oodhawk Allotment, and that the evidence did not meet any exception
for supplementing the record. See Sw. Ctr. for Biological Diversity v. U.S.
Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). W e therefore grant the
motion to strike the extra-record evidence submitted by W estern
W atersheds and any reference to this evidence in W estern W atersheds’s
opening and reply briefs. Moreover, we decline to take judicial notice of
these documents, as urged by W estern Watersheds, because the documents
contain observations and conclusions that are not “generally known” or
“accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b).
WESTERN WATERSHEDS PROJECT V . ABBEY 13
not unreasonable in light of the plain language and structure
of the Proclamation. We agree.
“FLPMA requires that BLM, under the Secretary of the
Interior, ‘develop, maintain, and[,] when appropriate, revise
land use plans’ to ensure that land management be conducted
‘on the basis of multiple use and sustained yield.’” Klamath
Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir.
2006) (quoting 43 U.S.C. §§ 1701(a)(7), 1712(a)). This
multiple-use-and-sustainable-yield mandate guides BLM’s
management of public lands “except that where a tract of
such public land has been dedicated to specific uses
according to any other provisions of law it shall be managed
in accordance with such law.” 43 U.S.C. § 1732(a). Under
this provision, BLM must manage the Breaks Monument in
compliance with the terms of the Proclamation. Id.3
We have previously applied “great deference” to an
agency’s interpretation of an executive order charged to its
administration. Kester v. Campbell, 652 F.2d 13, 15 (9th Cir.
1981); see also Am. Fed’n of Gov’t Emps. v. Fed. Labor
Relations Auth., 204 F.3d 1272, 1274–75 (9th Cir. 2000). We
explained that an agency’s interpretation must be reasonable,
but “need not be the only reasonable interpretation.” Kester,
652 F.2d at 16. To determine reasonableness, we adopted the
standard applied for reviewing an agency’s interpretation of
its own regulations. Id. at 15–16. Under that standard, an
agency interpretation is reasonable “unless it is plainly
3
Because § 1732(a) incorporates the Proclamation’s terms, we need not
consider whether the Proclamation itself is subject to judicial review. See
City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166
(9th Cir. 1997) (determining whether Executive Orders were subject to
judicial review).
14 WESTERN WATERSHEDS PROJECT V . ABBEY
erroneous or inconsistent with the (order).” Id. at 16 (quoting
United States v. Larionoff, 431 U.S. 864, 872 (1977)). We
similarly apply that deferential standard to an agency’s
interpretation of a presidential proclamation it administers.
We review the BLM’s interpretation to determine whether it
is consistent with the Proclamation’s language and purpose.
See id.BLM’s interpretation is reasonable and consistent with
the plain language of the Proclamation. The Proclamation
recites that “[l]aws, regulations, and policies followed by the
[BLM] in issuing and administering grazing permits or leases
on all lands under its jurisdiction shall continue to apply with
regard to the lands in the monument.” 3 C.F.R. § 7398.
BLM interpreted this language to mean that the “Monument
designation in itself d[id] not mandate a need for an
adjustment of forage allocated to livestock.” Based on this
interpretation, BLM concluded that livestock grazing would
continue to be governed (1) by existing laws and regulations
that apply to grazing on all BLM public lands and (2) by the
Lewistown Standards. BLM then incorporated the
Lewistown Standards into the Breaks Resource Plan to
control grazing on the Monument.
It was reasonable for BLM to conclude that the plain
language of the Proclamation allowed it to continue to apply
the Lewistown Standards within the Monument. Nothing in
the Proclamation suggests that those Standards should not be
considered a “policy” for the purposes of implementing the
Proclamation. They were adopted before the Proclamation
and are the main policy followed by BLM in administering
grazing on its land. Moreover, although it requires the
protection of Monument objects, the Proclamation does not
foreclose consideration of multiple-use-and-sustainable-yield
WESTERN WATERSHEDS PROJECT V . ABBEY 15
principles for grazing management. These principles are part
of the existing law that guides the “[BLM] in issuing and
administering grazing permits.” 3 C.F.R. § 7398.
The Proclamation’s structure also supports the conclusion
that BLM’s interpretation “sensibly conforms to the purpose
and wording of the [Proclamation].” Lezama-Garcia v.
Holder, 666 F.3d 518, 525 (9th Cir. 2011). After discussing
the various objects protected by the designation, the
Proclamation sets forth several directives and limitations.
The directives require the Secretary of the Interior to prepare
a transportation plan and prohibit off-road use of motorized
vehicles. 3 C.F.R. § 7398. The limitations restrict the
designation’s impact on tribal rights and state management of
fish and wildlife. Id. The provision discussing grazing
management falls within these limiting provisions. That
placement supports BLM’s conclusion that President Clinton
intended this to be a restrictive term that did not mandate
changes to BLM’s grazing management so long as Monument
objects were protected.
BLM’s interpretation also reasonably reflects the views
of then-Secretary of the Interior Bruce Babbitt and the
Central Montana Resource Advisory Council expressed while
promoting the area for designation. In response to a request
from the Secretary, the Resource Advisory Council
recommended to Secretary Babbitt that livestock grazing
continue to be managed in accordance with the Lewistown
Standards. Secretary Babbitt approved, stating that
“[c]onsistent with the implementation of th[e] [Lewistown]
Standards and Guidelines, as well as other applicable law,
grazing should continue and BLM’s mandates regarding
livestock grazing should not be affected.” This
correspondence is consistent with BLM’s conclusion that the
16 WESTERN WATERSHEDS PROJECT V . ABBEY
grazing provision in the Proclamation contemplated a
continuing application of the Lewistown Standards.
Western Watersheds argues that BLM’s reading of the
Proclamation is illogical because it ignores other laws,
regulations, and policies followed by BLM in administering
grazing. Western Watersheds contends that BLM ignored the
Taylor Grazing Act, 43 U.S.C. §§ 315–315n; § 302(b) of
FLPMA, 42 U.S.C. § 1732(b); BLM’s own regulations; and
other BLM policies. But Western Watersheds does not show
that the Lewistown Standards conflict with what is required
by these authorities. Upon review, the contrary proves true.
The Lewistown Standards aim to “maintain or improve
resource conditions in upland and riparian habitats” to
achieve “healthy sustainable rangelands.” This goal does not
conflict with the Taylor Grazing Act’s purpose of stopping
injury to public lands by preventing overgrazing, see Public
Lands Council v. Babbitt, 529 U.S. 728, 733 (2000), or
FLPMA’s directive that the Secretary of the Interior “take
any action necessary to prevent unnecessary or undue
degradation of the lands,” 43 U.S.C. § 1732(b). Moreover,
we have determined that the “undue degradation” provision
of § 1732(b) does not mandate specific BLM action but
instead gives BLM “discretion to choose appropriate
measures to address the environmental degradation.”
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1222
(9th Cir. 2011). We also find no conflict between the
Lewistown Standards’ purpose and the National Landscape
Conservation System’s intent to “conserve, protect, and
restore nationally significant landscapes.” See 16 U.S.C.
WESTERN WATERSHEDS PROJECT V . ABBEY 17
§ 7202(a).4 We recognize that the grazing provision of the
Proclamation may reflect a political compromise between
conservation values and public use, but any such political
matters are beyond the purview of the courts.
Western Watersheds also contends that BLM’s
interpretation does not reasonably protect Monument objects.
They argue that by adopting the Lewistown Standards, the
Breaks Resource Plan applies the same failed management
strategies employed by BLM for thirty years to the detriment
of sage-grouse habitat, cottonwood gallery forest ecosystems,
and riparian areas. Western Watersheds is concerned with the
Lewistown Standards’ use of the properly-functioning-
condition standard instead of the potential-natural-community
standard.5 To the extent that Western Watersheds seeks to
challenge the Lewistown Standards or BLM’s past
management decisions, those matters are not properly before
us. This case is not about the legitimacy of the Lewiston
4
W estern W atersheds also contends that BLM’s interpretation conflicts
with agency guidance and a draft resource management plan
implementing a similar presidential proclamation. W e decline to review
these documents. The agency guidance was issued after the Breaks
Resource Plan and “may not be advanced as a new rationalization” for
attacking BLM ’s interpretation. Sw. Ctr. for Biological Diversity,
100 F.3d at 1450. Likewise, the district court refused to take judicial
notice of the draft resource management plan because it constituted extra-
record evidence, and we decline to review that evidence when that issue
was waived on appeal. See supra note 2.
5
A potential-natural-community standard would require BLM to
manage the allotment to achieve plant communities “representing the
latest successional stage attainable on a specific, hydrological included
surface.” According to W estern Watersheds, this is a more stringent
management standard than the properly-functioning-condition model
adopted in the Lewiston Standards.
18 WESTERN WATERSHEDS PROJECT V . ABBEY
Standards. It is about the legitimacy of BLM’s decision to
incorporate those Standards into the Breaks Resource Plan.
And any challenges to past BLM management decisions are
likely barred by the six-year statute of limitations. See
28 U.S.C. § 2401.
Moreover, the record does not support Western
Watersheds’s argument that Monument objects are threatened
by BLM’s reliance on the Lewistown Standards. For
example, the Breaks Resource Plan sets forth specific
restrictions on grazing near sage-grouse leks during the
breeding season and provides the option to adjust grazing
seasons to protect habitat. It provides that grazing may be
adjusted to achieve healthy vegetation goals or other
rangeland standards in accordance with 43 C.F.R.
§ 4180.2(c). BLM could make changes to grazing levels as
needed to restore the ecosystem to its properly functioning
condition. See id.; 43 C.F.R. § 4110.3. It may be true that
BLM could adopt more stringent standards for rangeland
health, but it does not follow that BLM’s decision not to do
so violates the Proclamation and FLPMA. We will not
substitute our judgment for that of the agency. Lands Council
v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc),
abrogated on other grounds by Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7 (2008). Absent evidence that
BLM’s protection efforts are inconsistent with the
Proclamation or contrary to other applicable law, we
conclude that there is no error in its interpretation. See
Kester, 652 F.2d at 16. The record supports BLM’s
conclusion that adopting the Lewistown Standards in the
Breaks Resource Plan gives adequate protection for
Monument objects.
WESTERN WATERSHEDS PROJECT V . ABBEY 19
We conclude that BLM’s interpretation is consistent with
the Proclamation’s plain language, structure, and history.
BLM’s interpretation of the Proclamation was reasonable and
the Breaks Resource Plan adequately protects Monument
objects and does not offend FLPMA. BLM’s interpretation
of the Proclamation does not mean that BLM lacks authority
to reconsider its grazing programs in future actions if
necessary to protect Monument objects. We hold only that it
was reasonable for BLM to interpret the Proclamation not to
require programmatic changes to its grazing practices in the
Breaks Resource Plan.
IV
We next review whether the Breaks EIS complied with
NEPA. Western Watersheds contends that the Breaks EIS
violates NEPA in several ways: (1) it improperly determined
that programmatic changes to BLM’s grazing policies were
outside the scope of the Breaks EIS; (2) it did not consider a
no-grazing or reduced-grazing alternative; and (3) it did not
take a “hard look” at grazing impacts. We conclude that the
Breaks EIS did not violate NEPA.
“NEPA is a procedural statute intended to ensure
environmentally informed decision-making by federal
agencies.” Tillamook Cnty. v. U.S. Army Corps of Eng’rs,
288 F.3d 1140, 1143 (9th Cir. 2002). It requires federal
agencies to take a “hard look” at a proposed project’s
environmental impacts, but it does not mandate particular
results. Id. Under NEPA, federal agencies must prepare an
EIS before “taking ‘major Federal actions significantly
affecting the quality’ of the environment.” Kern v. U.S.
Bureau of Land Mgmt., 284 F.3d 1062, 1067 (9th Cir. 2002)
(quoting 42 U.S.C. § 4332(2)(C)). “By definition,
20 WESTERN WATERSHEDS PROJECT V . ABBEY
preparation of an RMP6 is a ‘major Federal action
significantly affecting the quality of the human environment,’
and so categorically requires preparation of an EIS.” Id.(quoting 43 C.F.R. § 1601.0-6)). Council on Environmental
Quality regulations require an EIS to state the purpose and
need of the project and to consider a reasonable range of
alternatives. 40 C.F.R. §§ 1502.13, 1502.14.
A
Western Watersheds argues that BLM erred by defining
the scope and purpose of the Breaks EIS to exclude
programmatic changes to grazing and by not considering an
alternative that provided for grazing reduction or elimination.
These arguments are related: a project’s scope and purpose
define the reasonable range of alternatives that must be
analyzed. See Westlands Water Dist. v. U.S. Dep’t of
Interior, 376 F.3d 853, 868 (9th Cir. 2004).
“The ‘scope’ of an EIS is defined as ‘the range of action,
alternatives, and impacts to be considered in an [EIS].” Nw.
Res. Info. Ctr., Inc. v. Nat’l Marine Fisheries Serv., 56 F.3d
1060, 1067 (9th Cir. 1995) (quoting 40 C.F.R. § 1508.25). To
determine the proper scope of an EIS, agencies should
consider (a) connected, cumulative, and similar actions; (b)
a no-action alternative, other reasonable alternatives, and
mitigation measures; and (c) direct, indirect, and cumulative
impacts. 40 C.F.R. § 1508.25. An agency has “considerable
discretion” to define the scope of an EIS. Nw. Res. Info. Ctr.,
Inc., 56 F.3d at 1067 (quoting Thomas v. Peterson, 753 F.2d
754, 758 (9th Cir. 1985)).
6
The court in this statement by “RMP” is referring to a resource
management plan.
WESTERN WATERSHEDS PROJECT V . ABBEY 21
The scoping process for the Breaks EIS expressly
excluded changes to grazing management based on BLM’s
interpretation of the Proclamation. The EIS defined the
Breaks Resource Plan’s purpose as:
provid[ing] a comprehensive plan for
managing the Monument and site-specific,
detailed plans for managing transportation,
visitor use, and oil and gas leases in a manner
that protects the objects identified in the
Proclamation, while recognizing valid
existing rights. The Proclamation requires
that BLM manage the Monument in order to
implement the purpose of the Proclamation.
This statement highlights specific projects mandated by the
Proclamation, none of which required broad changes to
BLM’s grazing practices.
BLM did not violate NEPA by excluding changes to its
grazing practices from the scope and purpose of the Breaks
Resource Plan. Because the Breaks Resource Plan was
developed to implement the Proclamation’s objectives, those
objectives guide our analysis of the reasonableness of the
purpose outlined in the EIS. See Westlands Water Dist.,
376 F.3d at 866 (“Where an action is taken pursuant to a
specific statute, the statutory objectives of the project serve as
a guide by which to determine the reasonableness of
objectives outlined in an EIS.”). We have already determined
that BLM’s interpretation of the Proclamation to allow the
continued use of its grazing management was reasonable
under FLPMA and the Proclamation. Based on that analysis,
BLM also reasonably defined the scope and purpose of the
22 WESTERN WATERSHEDS PROJECT V . ABBEY
Breaks Resource Plan in the EIS. Western Watersheds does
not show that NEPA mandates a different conclusion.
It was also reasonable for the Breaks EIS to exclude
detailed consideration of a no-grazing or reduced-grazing
alternative. An EIS need not consider in detail an alternative
that does not meet the purpose of the project. See City of
Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986)
(“When the purpose is to accomplish one thing, it makes no
sense to consider the alternative ways by which another thing
might be achieved.”). But if an alternative is eliminated from
detailed study, the agency must “briefly discuss [its] reasons”
for doing so. 40 C.F.R. § 1502.14(a). Here, the EIS
explained why it excluded from detailed review two
alternatives that would reduce or eliminate grazing. The EIS
considered but eliminated two reduced-grazing alternatives:
(1) an alternative to identify lands as not available for
livestock grazing and (2) an alternative to reduce or phase out
livestock grazing. BLM rejected the first alternative because
the Proclamation did “not require nor suggest” the need to
restrict grazing and the existing Lewistown Standards could
be used “to mitigate conflicts with Monument uses and
values.” Similarly, BLM excluded the second alternative
because there was “no documented need to reduce or phase
out livestock grazing based on the Proclamation and
Standards for Rangeland Health.” Given the scope and
purpose of the Breaks Resource Plan, these explanations
satisfy NEPA’s brief discussion requirement. See League of
Wilderness Defenders – Blue Mountains Biodiversity Project
v. U.S. Forest Serv., 689 F.3d 1060, 1072–73 (9th Cir. 2012)
(concluding that the Forest Service did not err by eliminating
from detailed review two alternatives that would not meet the
purpose of the proposed action). We conclude that at the
programmatic level of NEPA review, it was reasonable for
WESTERN WATERSHEDS PROJECT V . ABBEY 23
BLM to decline to analyze in detail an alternative that would
change grazing management levels throughout the entire
Monument.
B
Western Watersheds also contends that the Breaks EIS
did not take a “hard look” at grazing impacts. They argue
that the Breaks EIS did not adequately analyze these impacts
and that it inappropriately tiered to other NEPA documents.7
The record leads us to opposite conclusions.
NEPA requires agencies “to take a ‘hard look’ at how the
choices before them affect the environment, and then to place
their data and conclusions before the public.” Or. Natural
Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1099
(9th Cir. 2008). This “hard look” requires a “full and fair
discussion of significant environmental impacts” in the EIS.
40 C.F.R. § 1502.1. “General statements about possible
effects and some risk do not constitute a hard look absent a
justification regarding why more definitive information could
not be provided.” W. Watersheds Project v. Kraayenbrink,
632 F.3d 472, 491 (9th Cir. 2011) (citations and alterations
7
W estern W atersheds also argues that the B reaks EIS should have
disclosed as a cumulative impact that BLM destroyed over two-thousand
acres of sage-grouse habitat in 1979 through sagebrush spraying. We
disagree. NEPA requires an agency to consider the cumulative impact of
the current action “when added to other past, present, and reasonably
foreseeable future actions.” Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1214–15 (9th Cir. 1998). Although in some
situations discussion of the environmental impact of a thirty-year-old
project might be useful and relevant, we conclude that it is not here. The
EIS took a “hard look” at environmental impacts on sage-grouse without
discussing the 1979 spraying.
24 WESTERN WATERSHEDS PROJECT V . ABBEY
omitted). The requirements of NEPA are procedural and not
substantive. Vt. Yankee Nuclear Power Corp. v. Natural Res.
Def. Council, Inc., 435 U.S. 519, 558 (1978). They require a
responsible federal agency to give a hard and careful look at
environmental impacts. See Metcalf v. Daley, 214 F.3d 1135,
1141 (9th Cir. 2000). Rather than “mandating that agencies
achieve particular substantive environmental results . . . ,
NEPA promotes its sweeping commitment to ‘prevent or
eliminate damage to the environment and biosphere’ by
focusing Government and public attention on the
environmental effects of proposed agency action.” Marsh v.
Or. Natural Res. Council, 490 U.S. 360, 371 (1989) (quoting
42 U.S.C. § 4321).
Western Watersheds first contends that BLM violated
NEPA by not fully analyzing grazing impacts on Monument
objects and by not considering management
recommendations made in three scientific studies that
assessed environmental impacts of grazing in the Breaks
country. These studies include: the 1989 Inventory
Classification and Management of Riparian Sites Along the
Upper Missouri National Wild and Scenic Review by Paul
Hanson (“Hanson study”); the 2003 study on Flood
Dependency of Cottonwood Establishment Along the
Missouri River by Michael Scott, et al. (“Scott study”); and
the 2004 study on Riparian Forests of the Wild and Scenic
Missouri River: Ecology and Management by Greg Kudray
et al. (“Kudray study”). We reject this argument.
Our review of the record shows that BLM adequately
considered riparian health and grazing impacts in the Breaks
EIS. In more than one section, the EIS addressed grazing
impacts on greater sage-grouse habitat, riparian vegetation,
and fish and wildlife. It also discussed range improvements
WESTERN WATERSHEDS PROJECT V . ABBEY 25
that would be implemented for each alternative, including
constructing new water developments to reduce
livestock/wildlife conflicts and promoting adequate ground
cover to reduce grazing impacts on soils. Given that the
Breaks EIS discussed grazing impacts in detail, Western
Watersheds seems to argue that BLM did not look hard
enough at grazing. But the record is sufficient to satisfy us
that BLM made an informed decision based on its objective,
good-faith analysis of grazing’s adverse impacts. See
Kraayenbrink, 632 F.3d at 491.
Also, the record reveals that the Breaks EIS discussed
each of the studies that Western Watersheds contends BLM
did not consider. The Breaks EIS cited the studies performed
by Hansen, Scott, and Kudray multiple times to define the
riparian areas affected by the Breaks Resource Plan. That
section further noted that the Hansen study and others “show
a significant lack of regeneration of cottonwood, willow, and
understory species on the Missouri River,” which is caused in
part by “continuous hot season use by livestock.” BLM
considered these studies. It simply did not draw the same
conclusions about riparian habitat and grazing impacts as
does Western Watersheds. In short, Western Watersheds asks
us to perform our own scientific review of these studies to
conclude that BLM ignored important scientific evidence.
But our role is more precisely to “ensure that the agency has
adequately considered and disclosed the environmental
impact of its actions.” Hells Canyon Alliance v. U.S. Forest
Serv., 227 F.3d 1170, 1177 (9th Cir. 2000) (quoting Morongo
Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d
569, 573 (9th Cir. 1998)). We decline to substitute our
judgment for that of BLM, especially with “respect to
scientific matters within the purview of the agency.”
26 WESTERN WATERSHEDS PROJECT V . ABBEY
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.,
387 F.3d 989, 993 (9th Cir. 2004).
We are not persuaded by Western Watersheds’s
remaining argument that the Breaks EIS is deficient because
it inappropriately tiered its analysis of grazing impacts to
environmental assessments performed for site-specific
watershed plans. “Tiering refers to the coverage of general
matters in broader environmental impact statements (such as
national program or policy statements) with subsequent
narrower statements or environmental analyses (such as
regional or basinwide program statements or ultimately
site-specific statements) incorporating by reference the
general discussions and concentrating solely on the issues
specific to the statement subsequently prepared.” 40 C.F.R.
§ 1508.28. NEPA regulations encourage tiering to decrease
repetition so that agencies can “concentrate on the issues
specific to the subsequent action.” 40 C.F.R. § 1502.20.
Western Watersheds explains that under these regulations it
would be improper for BLM to tier the Breaks EIS to
environmental assessments performed during the watershed
process. See 40 C.F.R. § 1508.28(a).
But Western Watersheds does not explain just how the
Breaks EIS tiers to these site-specific environment
assessments. They contend that the Breaks EIS
inappropriately tiers to both “existing and anticipated
Watershed EAs.” We find no evidence of this in the record.
Western Watersheds cites to sections of the EIS that
explained how the watershed planning and permit renewal
process assesses compliance with the Lewistown Standards.
But these discussions merely show how the Lewistown
Standards are implemented and do not impermissibly
WESTERN WATERSHEDS PROJECT V . ABBEY 27
incorporate environmental review conducted through the
watershed planning process.
Western Watersheds’s argument that the EIS defers to
future environmental assessments of grazing impacts gets no
further. It is unclear how an EIS can effectively tier to
environmental analysis not yet performed. In effect, this
argument restates Western Watersheds’s contention that the
EIS did not adequately consider grazing impacts. But we
have concluded that it did do so. BLM’s discussion of how
it will conduct more in-depth review at the site-specific level
does not indicate that the Breaks EIS improperly “tiered” to
these future assessments but only that BLM plans to “fully
evaluate[]” site-specific impacts of its future actions. See
Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th
Cir. 2003).
C
In concluding that BLM complied with NEPA in
developing the Breaks EIS, we distinguish between the two
different levels of agency planning and management:
programmatic and site-specific. See id. When an agency
develops an EIS for a programmatic plan like the Breaks
Resource Plan, the EIS “must provide ‘sufficient detail to
foster informed decision-making,’ but ‘site-specific impacts
need not be fully evaluated until a critical decision has been
made to act on site development.’” Id. (quoting N. Alaska
Envtl. Ctr. v. Lujan, 961 F.2d 886, 890–91 (9th Cir. 1992)).
Our conclusion that the Breaks EIS contains sufficient
analysis for informed decision-making at the programmatic
level does not reduce or minimize BLM’s critical duty to
“fully evaluate[]” site-specific impacts. See id. Stated
another way, BLM’s decision to exclude broad changes to its
28 WESTERN WATERSHEDS PROJECT V . ABBEY
grazing management throughout the Monument in the Breaks
Resource Plan does not avoid its critical obligation to
consider changes to grazing preferences at the site-specific
stage. It is to that issue that we now turn.
V
We consider whether the EA for the Woodhawk
Allotment complied with NEPA. Western Watersheds
challenges BLM’s finding of no significant impact and argues
that BLM should have prepared a full EIS before issuing the
renewed permit. It also contends that BLM did not consider
a reasonable range of alternatives because the EA did not
consider (1) a no-grazing alternative or (2) an alternative that
incorporated the potential-natural-community standard.
Western Watersheds further expresses concern that the EA
tiers to outdated NEPA documents.
An agency may prepare an environmental assessment to
determine whether an EIS is needed. 40 C.F.R. § 1501.4(b).
If the environmental assessment shows that the agency action
may significantly affect the environment, then the agency
must prepare an EIS. Nat’l Parks & Conservation Ass’n v.
Babbitt, 241 F.3d 722, 730 (9th Cir. 2001), abrogated on
other grounds by Monsanto Co. v. Geerston Seed Farms, 130
S. Ct. 2743, 2756–57 (2010). If an agency concludes in its
environmental assessment that the proposed action will not
have a significant environmental impact, then it may issue a
finding of no significant impact and proceed without further
study. See Te-Moak Tribe of W. Shoshone of Nev. v. U.S.
Dep’t of Interior, 608 F.3d 592, 599 (9th Cir. 2010). NEPA’s
requirement that agencies “study, develop, and describe
appropriate alternatives . . . applies whether an agency is
preparing an [EIS] or an [EA].” N. Idaho Cmty. Action
WESTERN WATERSHEDS PROJECT V . ABBEY 29
Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th
Cir. 2008) (per curiam) (citations omitted). Although an
agency must still “give full and meaningful consideration to
all reasonable alternatives” in an environmental assessment,
the agency’s obligation to discuss alternatives is less than in
an EIS. Id. “The existence of a viable but unexamined
alternative renders an [EA] inadequate.” Westlands Water
Dist., 376 F.3d at 868 (quoting Morongo, 161 F.3d at 575).
The Woodhawk Allotment EA considered three action
alternatives and one no-action alternative. The action
alternatives each considered issuing a new grazing permit at
the same grazing level as the previous permit, 3,120 animal
unit months (“AUMs”),8 but with changes to the terms and
conditions of the permit, including range improvements such
as installing or removing fencing. The no-action alternative
that BLM considered in the EA “would issue a new grazing
permit with 3,120 animal unit months” and have the same
terms and conditions as the expiring permit. Also, the EA
considered but did not analyze in detail a no-grazing
alternative, a reduced-stocking-level alternative (“reduced-
grazing alternative”), and an alternative that would manage
the area for potential natural community. The no-grazing and
reduced-grazing alternatives were both excluded for not
meeting the purpose and need of the proposed action. The
no-grazing alterative was also excluded because it was
previously considered in the 1979 Missouri Breaks Grazing
Environmental Statement. The potential-natural-community
alterative was eliminated as unreasonable because it would be
impossible to maintain given the project’s purpose and need.
8
Animal unit months are defined as “the right to obtain the forage
needed to sustain one cow (or five sheep) for one month.” Public Lands
Council, 529 U.S. at 735.
30 WESTERN WATERSHEDS PROJECT V . ABBEY
We are troubled by BLM’s decision not to consider a
reduced- or no-grazing alternative at the site-specific level,
having chosen not to perform that review at the programmatic
level. Although we have held above that the decision not to
consider these alternatives in the Breaks Resource Plan did
not violate NEPA, this decision has deprived BLM of
information on the environmental impacts of the
unconsidered alternatives. At the site-specific level, then,
BLM is operating with limited information on grazing
impacts. It is at this stage, when the agency makes a critical
decision to act, that the agency is obligated fully to evaluate
the impacts of the proposed action. See ‘Ilio’ulaokalani
Coal. v. Rumsfeld, 464 F.3d 1083, 1097 (9th Cir. 2006)
(explaining that if an agency does not consider reasonable
alternatives at the programmatic stage, then it has an
“obligation” to consider such alternatives at the site-specific
stage). The analysis in the Breaks EIS was sufficient for the
proposed programmatic action, but the proposed permit
renewal at the site-specific level demands more. Where
modification of grazing practices is not considered at a
programmatic level for the full Monument area, it is all the
more important that agency actions on site-specific areas give
a hard and careful look at grazing impacts on Monument
objects.
BLM’s analysis in the EA does not take this hard and
careful look. Each of the four alternatives considered in
detail, including the no-action alternative, would have
reauthorized grazing at the exact same level—3,120 animal
unit months. The distinguishing factors between the no-
action alternative and the action alternatives that were voiced
by BLM were the terms and conditions imposed on the
grazing permit. For example, in Alternative 4, the proposed
and selected action, the terms of the new grazing permit
WESTERN WATERSHEDS PROJECT V . ABBEY 31
would require relocation of grazing boundaries, replacement
of some fencing barriers, and adjustment to riparian
objectives to increase water quality. We do not question the
environmental soundness of these terms and conditions, as
that is not the issue presented to us. But we do question how
an agency can make an informed decision on a project’s
environmental impacts when each alternative considered
would authorize the same underlying action—permitting
grazing at the level of 3,120 AUMs. There is no meaningful
difference between the four alternatives considered in detail
as to how much grazing they allow. See Muckleshoot Indian
Tribe v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir. 1998)
(per curiam) (concluding that the EIS violated NEPA when
the two action alternatives considered in detail were
“virtually identical”). Given the varied objects of the
Proclamation, and the ways in which grazing in a particular
area might affect them, we do not think that readopting prior
grazing levels in the Monument without assessment was
precisely what the President had in mind in proclaiming that
prior grazing policies could continue. True, the prior grazing
practices can continue, but BLM must consider if they should
be modified in any case where prior grazing practices would
substantially harm the objects that the Proclamation declared
to be preserved.
The Proclamation’s grazing provision did not restrict
BLM’s authority to change grazing levels; it maintained it.9
9
W e are persuaded by Judge W inmill’s analysis in Western Watersheds
Project v. Salazar, which analyzed a similar grazing provision in
Presidential Proclamation No. 7373. See 2011 W L 4526746, at *14 (D.
Idaho. Sept. 28, 2001). President Clinton issued that Proclamation on
November 9, 2000, to expand the Craters of the Moon National
Monument. Id. at *7.
32 WESTERN WATERSHEDS PROJECT V . ABBEY
The grazing provision says only that existing laws shall
continue to apply with regard to grazing management. See 3
C.F.R. § 7398. Under those existing laws, BLM has the
authority “under the Taylor Act and . . . FLPMA to reclassify
and withdraw rangeland from grazing use.” Public Lands
Council, 529 U.S. at 742. FLPMA authorizes BLM to issue
ten-year grazing permits “subject to such terms and
conditions the Secretary concerned deems appropriate and
consistent with governing law.” 43 U.S.C. § 1752(a).
Renewal of those permits depends, in part, on whether the
land remains available for grazing in accordance with the
applicable land use management plan. See 43 U.S.C.
§ 1752(c); Public Lands Council, 529 U.S. at 742. The
Breaks Resource Plan, as the governing land use management
plan, makes clear that “[t]he Proclamation requires that the
BLM manage the Monument in order to implement the
purpose of the Proclamation.” From these provisions, it is
plain that existing laws permit BLM to make changes to the
scope of grazing operations. To this end, the Proclamation
and the Breaks Resource Plan both reiterate BLM’s authority
to reduce or eliminate grazing as needed to protect Monument
objects.
Perhaps in recognition of this authority, BLM briefly
considered both a no-grazing and a reduced-grazing
alternative. This brief discussion, however, does not cure the
inadequacies of the other alternatives analyzed in the EA.
BLM considered and then dismissed without detailed analysis
the no-grazing and reduced-grazing alternatives. The first
reason given by BLM for rejecting these alternatives was that
they were beyond the purpose and need of the project. But
the record shows that these alternatives could feasibly meet
the project’s goal. Feasible alternatives should be considered
in detail. See Muckleshoot Indian Tribe, 177 F.3d at 814
WESTERN WATERSHEDS PROJECT V . ABBEY 33
(concluding that the Forest Service violated NEPA by
considering but preliminary dismissing several feasible
alternatives). The purpose and need of the Woodhawk
Allotment permit renewal was “to evaluate rangeland health
standards and modify current grazing practices on the
allotment so that progress can be made toward meeting the
standards.” Lewiston Standard number two sets forth the
specific goal of achieving proper functioning condition in
wetland areas, which is indicated in part by diverse
composition of vegetation and adequate vegetative cover. It
would be reasonable to analyze in detail the environmental
impacts of an alternative that authorized something less than
3,120 AUMs before a permit was renewed. Such an
alternative could still reasonably meet the purpose of making
progress toward meeting the Lewistown Standards, but it
might operate in a more friendly way toward the protected
objects of the Monument.
The EA also explained that detailed review of a no-
grazing alternative was not necessary because such an
alternative had been analyzed in the 1979 Missouri Breaks
Grazing Environmental Statement. But an agency errs when
it relies on old data without showing that the data remain
accurate. See N. Plains Res. Council, Inc. v. Surface Transp.
Bd., 668 F.3d 1067, 1086–87 (9th Cir. 2011) (concluding that
the Surface Transportation Board did not take a “hard look”
at environmental impacts when it relied on ten-year-old aerial
surveys). Here, BLM did not explain why its detailed
consideration of an alternative in an analysis made thirty
years before the 2009 Woodhawk Allotment EA for purposes
of administering grazing over a broad area excuses its duty to
fully analyze that alternative now, after decades have passed
and after the Proclamation has added protection for the area.
Even if the physical environment of the Woodhawk
34 WESTERN WATERSHEDS PROJECT V . ABBEY
Allotment is substantially the same, that does not “lead[] to
the conclusion that the information regarding habitat and
populations of numerous species remains the same as well.”
Id. at 1086. A general assessment of a no-grazing alternative
in the 1979 Missouri Breaks Grazing Environmental
Statement, which was performed decades before President
Clinton issued the Proclamation to protect objects of the
Monument, does not avoid the need to consider with care
impacts of grazing in the Woodhawk Allotment EA. See
Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 997–98
(concluding that it is improper to tier to an EIS that lacks
information about specific impacts of a proposed project).
The severely dated information in the 1979 Environmental
Statement does not give adequate, accurate, and specific data
on grazing impacts to Monument objects such as might
facilitate an informed decision by BLM.
The Proclamation changed the legal landscape of the
permitting process for the Woodhawk Allotment, and BLM
must consider this change in determining the reasonable
range of alternatives that should be carefully analyzed in the
Woodhawk Allotment. See Natural Res. Def. Council v. U.S.
Forest Serv., 421 F.3d 797, 813 (9th Cir. 2005) (“[W]here
changed circumstances affect the factors relevant to the
development and evaluation of alternatives, the [agency] must
account for such change in the alternatives it considers.”).
BLM must consider both the terms of the Proclamation and
the objects of the Proclamation to be preserved before taking
actions that can affect Monument objects. It did not do so
when it rejected without analysis the no-grazing alternative or
the possibility of more limited grazing.
BLM’s second reason for rejecting the reduced-grazing
alternative is deficient for the same reason. The EA
WESTERN WATERSHEDS PROJECT V . ABBEY 35
explained that in addition to not meeting the purpose and
need of the project, the reduced-grazing alternative was
contrary to the stocking levels that had been established for
the Woodhawk Watershed before the 1998 watershed plan.
Again, this explanation does not account for the changed
circumstances of the Proclamation. See id. These grazing
levels may have been sufficient to meet the area’s
environmental needs before the land was designated as a
National Monument, but BLM did not show how maintaining
the same grazing levels thereafter is adequate to protect the
objects preserved by the Proclamation. BLM’s failure to
consider the changed circumstances brought by the
Proclamation, and the impacts of grazing on protected objects
in the Monument within the Woodhawk Allotment, renders
the EA inadequate.
BLM responds that the Woodhawk Allotment EA is
sufficient because it meets the goals of the Breaks Resource
Plan. BLM identifies agency responses to public comments
that asked BLM to consider in detail reduced-grazing
alternatives. These responses stated that the goals of the EA
were in line with those of the Breaks Resource Plan to
manage riparian and wetland areas with the aim of making
progress toward a “proper functioning condition,” to borrow
a phrase from the Lewiston Standards, of the ecosystem. The
response that mentions protection of Monument objects states
simply that Alternative 4 in the EA should protect Monument
objects. This may be true, but even so it does not excuse
BLM from its heightened obligation to analyze fully other
reasonable grazing alternatives that may better protect
Monument objects. An alternative to authorizing grazing at
3,120 AUMs could feasibly meet the goals of both the Breaks
Resource Plan and the Woodhawk Allotment permit renewal,
while better preserving Monument objects. But BLM’s
36 WESTERN WATERSHEDS PROJECT V . ABBEY
decision not to consider such an alternative, without adequate
explanation, shows that it did not take the hard and careful
look at impacts of the permit renewal that is required by
NEPA.
In conclusion, the EA process for the Woodhawk
Allotment was deficient in its consideration of alternatives
insofar as it did not consider in detail any alternative that
would have reduced grazing levels on the Allotment in light
of the Monument’s protected objects. BLM cannot ignore the
Proclamation’s goal of protecting Monument objects when it
determines the reasonable range of alternatives for NEPA
review of site-specific actions. We make no decision of
substance on how a balance should be struck by BLM, but we
conclude that the agency’s procedural efforts to explore
alternatives in the EA did not satisfy NEPA. Because we
reverse on this issue, we do not reach Western Watersheds’s
arguments that BLM should have considered a potential-
natural-community standard or that BLM should have
prepared an EIS for the Woodhawk Allotment.
VI
Western Watersheds seeks injunctive relief to limit
grazing in riparian areas until the BLM complies with NEPA
for the Woodhawk Allotment. Before a court may issue a
permanent injunction, a party must show “(1) that it has
suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance
of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not
be disserved by a permanent injunction.” Monsanto Co., 130
S. Ct. at 2756; Sierra Forest Legacy v. Sherman, 646 F.3d
WESTERN WATERSHEDS PROJECT V . ABBEY 37
1161, 1184 (9th Cir. 2011); see also Winter, 555 U.S. at 32(stating that the standard for issuing a permanent injunction
is essentially the same as for a preliminary one except for the
need to succeed on the merits). This standard applies equally
in NEPA cases—we put no thumb on the scale in favor of an
injunction. Monsanto Co., 130 S. Ct. at 2757.
Because the district court concluded that the EA complied
with NEPA, it did not consider injunctive relief. We have
reached a conclusion on the EA different from that of the
district court, but we decline to reach a decision in the first
instance on the appropriate remedy and, specifically, whether
injunctive relief is proper. We remand to the district court to
determine on an appropriate record whether injunctive relief
is warranted under the traditional four-factor test. See Ocean
Advocates, 402 F.3d at 871 (remanding to the district court to
consider injunctive relief in the first instance); see also
Natural Res. Def. Council, 421 F.3d at 816–17 (remanding to
the district court to consider a permanent injunction when a
Forest Service EIS violated NEPA).
VII
We hold that BLM reasonably interpreted the
Proclamation to not require programmatic changes to grazing
management policies in the Breaks Resource Plan and that
the Breaks EIS complied with NEPA by taking a hard and
careful look at grazing impacts. By contrast, we hold that the
EA for the Woodhawk Allotment violated NEPA by not
considering a reasonable range of alternatives that included
a no- or reduced-grazing option. We reverse and remand for
the district court to enter an appropriate order requiring BLM
to remedy the deficiencies in the EA for the Woodhawk
38 WESTERN WATERSHEDS PROJECT V . ABBEY
Allotment or to prepare a more detailed EIS, whichever is
considered appropriate, in a timely matter.
Because this is a mixed judgment, each party shall bear its
own costs.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.