Western Watersheds Project v. Kraayenbrink

632 F.3d 472

2011 Daily Journal D.A.R. 981

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. Caswell; Bureau of Land Management; Dave Pacioretty; Dirk Kempthorne; David Rosenkrance, Defendants,Public Lands Council, Defendant-intervenor,andAmerican Farm Bureau Federation, Defendant–intervenor–Appellant.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. Caswell; Bureau of Land Management; Dave Pacioretty; Dirk Kempthorne; David Rosenkrance, Defendants,American Farm Bureau Federation, Defendant-intervenor,andPublic Lands Council, Defendant–intervenor–Appellant.

Nos. 08–35359

08–35360.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 2009.Filed Sept. 1, 2010.Amended Jan. 19, 2011.

Roderick E. Walston, Best Best & Krieger LLP, Walnut Creek, CA, 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, CO, Johanna H. Wald, Natural Resources Defense Counsel, San Francisco, CA, Todd C. Tucci, Lauren M. Rule, Advocates for the West, Boise, ID, Laurence (“Laird”) J. Lucas, Boise, ID, for respondents Western Watersheds Project, Ralph Maughan, Idaho Conservation League, Idaho Wildlife Federation, National Wildlife Federation, and Natural Resources Defense Council.Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 4:05–cv–00297–BLW.

Before: RAYMOND C. FISHER and RICHARD A. PAEZ, Circuit Judges, and BARRY TED MOSKOWITZ,^* District Judge.

ORDER

The Opinion, filed on September 1, 2010 and reported at 620 F.3d 1187 (9th Cir.2010), is amended as follows:

1. At slip op. 13266, 620 F.3d at 1209, the citation < see also Defenders of Wildlife v. Flowers, 414 F.3d 1066, 1072 (9th Cir.2005)> is replaced with < see also Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988).>

2. At slip op. 13266, 620 F.3d at 1210, the citation < see Defenders of Wildlife, 414 F.3d at 1072.> is replaced with < see Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018–19 (9th Cir.2009).>

3. At slip op. 13267, 620 F.3d at 1210, the citation < 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).> is deleted.

An Amended Opinion is filed concurrently with this Order.

With those amendments, the petition for panel rehearing is denied.

The petition for rehearing en banc was circulated to the full court and no judge called for rehearing en banc. Fed. R.App. P. 35.

The petition for hearing en banc is denied.

No further petitions for rehearing shall be filed.

Taxation of costs against Public Lands Council is reinstated.

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. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, 43 U.S.C. § 315 et seq., the BLM has adopted regulations 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 (collectively 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 Public 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 limitations 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. (collectively Plaintiffs) challenged the new amendments on procedural 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 enjoined enforcement of the proposed regulations. W. Watersheds Project v. Kraayenbrink, 538 F.Supp.2d 1302, 1324 (D.Idaho 2008).

The BLM and Intervenors separately appealed. In December 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 Regulations 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 violated 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 permanent 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 framework and with the deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we vacate the district court's grant of summary 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 amendments to its grazing regulations, we begin with a brief account 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, 120 S.Ct. 1815, 146 L.Ed.2d 753 (2000). Lack of oversight, “[p]opulation growth, forage competition, and inadequate range control all began to have consequences both serious and apparent” for the western rangelands. Id. at 733, 120 S.Ct. 1815. Over-grazed and suffering from a terrible drought, the range was swept by dust storms. “The devastating 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, President 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 deterioration,” 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 rangelands into grazing districts, the Department of Interior created district advisory boards comprised of local ranchers. Public Lands Council, 529 U.S. at 734, 120 S.Ct. 1815. The boards became the effective 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, 120 S.Ct. 1815. In 1962, 83.4 percent of the public grasslands remained in fair or poor condition. Id.

In 1976, Congress enacted FLPMA, 43 U.S.C. § 1701 et seq. The stated purpose of FLPMA was to manage the grasslands 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 Council, 529 U.S. at 738, 120 S.Ct. 1815 (citing 43 Fed.Reg. 29,067). Thereafter, the grazing amendments went largely unchanged until 1995. In 1995, the Department of Interior amended the federal grazing regulations in order to, among other objectives, broaden membership on the district advisory boards, “improve...