Oregon Natural Desert Ass'n v. Singleton

47 F.Supp.2d 1182

OREGON NATURAL DESERT ASSOCIATION; Oregon Wildlife Federation; Idaho Watersheds Project; and Committee for Idaho's High Desert, Plaintiffs, v. Ed SINGLETON, in his official capacity as Vale District Manager, Bureau of Land Management; Jerry L. Taylor, in his official capacity as Jordan Resource Area Manager, Bureau of Land Management; U.S. Bureau of Land Management, an agency of the United States Department of the Interior; and Bruce Babbitt, in his official capacity as Secretary of the Department of the Interior, Defendants and Oregon Cattlemen's Association, a nonprofit organization on behalf of its members, Intervenor-Defendant.

No. Civ. 98-97-RE.

United States District Court, D. Oregon.

November 3, 1998.

COPYRIGHT MATERIAL OMITTED

Jack K. Sterne, Anchorage, Alaska, for plaintiffs.

Kristine Olson, United States Attorney, Thomas C. Lee, Assistant United States Attorney, Portland, Oregon, for defendants.

Jeffrey B. Wilkinson, Stewart Sokol & Gray, LLC, Portland, Oregon, for intervenor-defendant.

OPINION AND ORDER

REDDEN, Senior District Judge.

The plaintiffs, environmental groups (collectively, "ONDA"), bring this action against the Bureau of Land Management and three named individuals: Ed Singleton and Jerry Taylor, in their official capacities as managers of the Bureau of Land Management, and Bruce Babbitt, Secretary of the United States Department of the Interior (collectively, "BLM.") Oregon Cattlemen's Association appears as an intervenor-defendant.

ONDA challenges the BLM's management plan for the Main, West Little, and North Fork Owyhee Rivers (collectively "Owyhee Rivers"), alleging that the BLM has failed to 1) adopt a management plan which complies with the mandate of the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. §§ 1271-1284 to protect and enhance the Owyhee Rivers' values, in that it authorizes continued livestock grazing; 2) prepare an adequate environmental impact statement ("EIS"); and 3) analyze alternative courses of action which would fully protect and enhance the Owyhee Rivers, all in violation of the WSRA, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370a, and the Administrative Procedures Act, 5 U.S.C. §§ 701-706. ONDA seeks declaratory and injunctive relief, as well as attorney fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412.

All parties move for summary judgment (doc. 32, 42, 49). Oral argument on the motions was heard on October 15, 1998.

Factual Background

The WSRA states the policy of the United States that certain designated rivers which possess "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values," shall be "preserved in free-flowing condition" and that the rivers and their immediate environments be "protected for the benefit and enjoyment of present and future generations." 16 U.S.C. § 1271. A river is eligible for designation and protection under the WSRA if it is a free-flowing stream and the adjacent land area possesses one or more of the "outstandingly remarkable values" ("ORVs") enumerated in § 1271.

In 1984, Congress designated 120 miles of the Main Owyhee River as a federal wild and scenic river pursuant to the WSRA. In the Oregon Omnibus Wild and Scenic Rivers Act of 1988, Pub.L. 100-557, codified at 16 U.S.C. § 1274(a)(91), Congress added 57 miles of the West Little Owyhee and nine miles of the North Fork Owyhee to the national wild and scenic rivers system. Congress has classified all three segments of the Owyhee Rivers as "wild." A wild river area is defined under the WSRA as "free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted." 16 U.S.C. § 1273(b). The "wild" classification is the most restrictive of three possible classifications. Id. (Each river included in the system must be classified, designated and administered as "wild," "scenic," or "recreational.")

The designated portions of the Owyhee Rivers are in southeast Oregon, along the Oregon-Idaho border. Much of the Owyhee Rivers' length is within steep, rocky walls. The Owyhee canyonlands provide habitat for over 200 species of wildlife. Several plant species within the canyonlands are classified as federal or state sensitive species or are on "watch lists." Redband trout, which have been petitioned for listing under the Endangered Species Act, inhabit the West Little Owyhee River segment of the system.

The river system also contains grazing allotments, under which private cattle and sheep ranchers are given permits to graze their livestock on publicly-owned land, typically at below-market rates. 4 United States Department of Agriculture, An Assessment of Ecosystem Components in the Interior Columbia Basin and Portions of the Klamath and Great Basins at 1772, Second Declaration of Jack K. Sterne, Exhibit C.

Section 3 of the WSRA requires the BLM to issue a "comprehensive management plan" to "provide for the protection of the river values" within three fiscal years after designation. 16 U.S.C. § 1274(d)(1). The WSRA requires that the plan "address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of this chapter." 16 U.S.C. § 1274(d)(1).

In May 1991, the BLM began the process of preparing an updated management plan for the Owyhee Rivers to comprise the newly-designated sections. The BLM issued a draft management plan and environmental assessment ("EA") analyzing the impact of the Plan and alternatives to it in May 1992, and a final management plan in September 1993 ("the Plan" or "the Plan/EA"). On the basis of the EA, the BLM prepared a finding of no significant impact ("FONSI"), concluding that NEPA did not require preparation of an EIS. The Plan was upheld on appeal to the Interior Board of Land Appeals.

The Plan established that the Main Owyhee contained five ORVs: scenery, geology, recreation, wildlife, and cultural. The ORVs of the West Little and North Fork Owyhee included recreation, scenery and wildlife. The Plan did not designate botanical or fishery ORVs, but characterized vegetation as a "key component of the visual resource, important to watershed values, wildlife habitat, and a vital part of the natural setting for recreation." Administrative Record ("AR") Tab 178, p. 24.

The management standard for livestock grazing articulated in the Plan is as follows: "Agricultural use is restricted to a limited amount of domestic livestock grazing and hay production to the extent currently being practiced." AR Tab 178 p. 13.

Plan's findings on impact of grazing on Owyhee Rivers

At the time of planning, the BLM recognized that in the river area accessible to livestock — 67 miles, or 36%, of the 186-mile river system — grazing was creating noticeable negative effects on about 10%, or 18 miles. AR Tab 178, p. 16. The areas most affected by livestock grazing were trail crossings and "water gaps," the places livestock came to the river to drink.

The EA noted that at least seven of 11 grazing allotments and one trail area showed negative effects from livestock grazing, and that these negative effects had a direct impact on the scenic, recreational, and watershed ORVs of the Owyhee Rivers. AR Tab 178, p. 86-87. The seven affected allotments were Quartz Mountain, Bogus Creek, West Cow Creek, Saddle Butte, Jackies Butte, Louse Canyon, and Campbell. Id.

The EA also contained a finding that there had been livestock use ranging from heavy to slight at 56 of the 138 campsites in the river corridor, AR Tab 178, p. 89, and that livestock use at 12 of these campsites — those situated at water gaps or trailing points along the corridor — was "generally heavy." Id.

The Plan had also noted this grazing damage in its statement of issues:

At certain locations along each river segment, grazing is suspected of causing impacts to the [ORVs] identified in each river's designations. Areas of concern include Five Bar, Three Forks Deary Pasture, Sand Hollow, Fletcher Trail, Granite Creek, Sand Spring to Bull Creek, the Hole-in-the-Ground, Greeley Bar, Island Field, Squaw Creek ... Anderson Crossing, and the upper reaches of the West Little Owyhee River.

AR Tab 178, p. 16. The negative impact of livestock grazing on ORVs was described as follows:

• conflicts with recreationists where livestock congregate, graze and deficate [sic] on and around campsites;

• visual impacts of livestock trailing and grazing affecting scenic and recreation values;

• ecological condition (status) of upland and riparian areas currently in early to mid seral status that have been or are heavily impacted by livestock grazing, trampling or defecation.

AR Tab 178, p. 16. The Plan also noted that

[s]everal areas along the river corridors have been livestock gathering routes and trailing routes for many years. Some of these areas (Five Bar, Three Forks, Fletcher Trails, Granite Creek, Sand Springs, Navaro, Ryegrass, and Bull Creek) are receiving significant impacts. Vegetation is denuded on the immediate area of trails and where livestock are gathered and concentrated for short periods of time while moving between pastures or allotments. The scenic and aesthetic quality of these areas are [sic] diminished as a result of livestock grazing, trampling, and defecation. Since many of these sites are also used for camping, recreation experience is negatively impacted. In addition, cultural sites are degraded from cattle concentrated on sites. Livestock milling breaks artifacts, compacts the ground surface and mixes the artifacts, breaks down river banks, and promotes erosion that can wash away parts of sites.

Id. Other parts of the administrative record also reflect concerns about livestock grazing at the time the Plan was being written. In a memorandum written in 1992 to the Jordan Resource Area Manager, BLM's...