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Great Old Broads for Wilderness v. Kempthorne

September 20, 2006

GREAT OLD BROADS FOR WILDERNESS, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiffs Great Old Broads for Wilderness and the Center for Biological Diversity challenge the management of livestock grazing within the Glen Canyon National Recreation Area by the National Park Service ("NPS") and the Bureau of Land Management ("BLM"). Plaintiffs contend that the agencies have issued grazing permits and a management plan in violation the Glen Canyon Enabling Act, 16 U.S.C. § 460dd et seq.; the Park Service Organic Act, 16 U.S.C. § 1 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; and the National Historic Preservation Act ("NHPA"), 16 U.S.C. 470 et seq. Before the Court are the parties' cross-motions for summary judgment. For the reasons below, the Court will grant each motion in part.

BACKGROUND

The Glen Canyon National Recreation Area -- spanning more than a million acres of northern Arizona and southeastern Utah (see NPS Doc. 29 at 278 (August 1999 Grazing Management Plan) ("Grazing Plan")) -- was established in 1972 "[i]n order to provide for public outdoor recreation use and enjoyment of Lake Powell and lands adjacent thereto . . . and to preserve scenic, scientific, and historic features contributing to public enjoyment of the area[.]" See 16 U.S.C. § 460dd(a). In setting aside the land, Congress did not ignore its history. During the prior century, livestock had grazed continuously in the Canyon. (See Grazing Plan at 278.) Under the terms of the Glen Canyon Enabling Act, BLM was authorized to administer grazing leases within the area in accordance with "[t]he same policies [it] followed . . . in issuing and administering . . . grazing leases on other lands under its jurisdiction[.]" 16 U.S.C. § 460dd-5. The BLM's authority within Glen Canyon, however, was made subject to the Secretary of the Interior's obligation to "administer, protect, and develop the recreation area" as provided in the NPS's Organic Act. See id. (subjecting BLM's administration of grazing permits to § 460dd-3); id. § 460dd-3 ("The Secretary shall administer, protect, and develop the recreation area in accordance with the provisions of sections 1 and 2 to 4 of this title, as amended and supplemented[.]"); see also id. § 1 (providing that NPS shall manage units of the National Park System "by such means and measures as conform to [their] fundamental purpose . . . , which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.").

I. Management Documents

Consistent with its obligations under the Organic Act, see 16 U.S.C. § 1a-7(b), NPS developed a General Management Plan for Glen Canyon in 1979. (See NPS Doc. 21 at 162 (Glen Canyon General Management Plan) ("General Management Plan").) The plan recognized the predominance of grazing on the Canyon's lands, noting that "almost all accessible areas containing adequate forage and water [were] grazed" at the time of the document's drafting. (Id. at 182.) It accordingly proposed the preparation of a supplemental "Grazing Resources Component" setting forth a "[d]etailed description of the condition of the range" and offering "[r]ecommendations for specific range improvement practices and devices, management activities, and maximum grazing intensities compatible with the purpose of the recreation area." (Id. at 180; see also Grazing Plan at 279.)

In the two decades following NPS's publication of the Glen Canyon General Management Plan, no such grazing component emerged. In 1984, however, NPS and BLM entered a Memorandum of Understanding ("MOU") regarding the management of grazing within the recreation area. (See NPS Doc. 22 at 235.) The MOU -- acknowledging BLM's responsibility for the administration of grazing within Glen Canyon and NPS's responsibility for determining whether proposed grazing activities would be consistent with the values and purposes of the area -- established a framework by which BLM could consult with NPS in order to "ensure that grazing authorizations, range improvements" and other related actions would "not conflict with the Glen Canyon NRA enabling legislation . . . , the NPS Organic Act . . . , or the approved NPS General Management Plan for Glen Canyon NRA." (See id. at 234.) Under its terms, BLM was barred from authorizing grazing or related activities without first receiving a written "Values and Purposes Determination" from the NPS Regional Director "regarding the potential effect of the proposed action upon the values and purposes of the area." (Id; see also NPS Doc. 155 at 1856 (NPS Management Policies 2001 § 1.4.7) ("Before approving a proposed action that could lead to an impairment of park resources and values, an NPS decisionmaker must consider the impacts of the proposed action and determine, in writing, that the activity will not lead to an impairment of park resources and values. If there would be an impairment, the action may not be approved.").) NPS was further required to provide BLM with "any terms and conditions [it] deemed necessary . . . for inclusion in [a] proposed action to ensure the activity's compatibility with the area's values and purposes." (Id.) This process was confirmed in a 1993 agreement between Glen Canyon's superintendent and BLM's state directors for Utah and Arizona. (See NPS Doc. 1 ("Interagency Agreement between Bureau of Land Management and National Park Service for Grazing Management on Glen Canyon National Recreation Area"); see also NPS Doc. 15 (1998 "reaffirmation memorandum" renewing the agencies' commitment to the agreement).)

On July 22, 1999, NPS adopted a Grazing Management Plan for Glen Canyon and a corresponding finding of no significant impact ("FONSI"). (See Grazing Plan at 273.) As provided in the area's General Management Plan, the document described the climate of Glen Canyon, the history of grazing on its lands, the present condition of the area's various resources, and the existing management scheme between BLM and NPS. (See id. at 280-87.) The document also provided for the cooperative development of a monitoring plan under which resource conditions would be evaluated to ensure their compliance with NPS and BLM standards. (Id. at 286-87.) Most critically, however, the Grazing Management Plan set forth the series of "goals and objectives" governing NPS's written determination as to whether any proposed change to grazing activities within Glen Canyon would be consistent with the area's values and purposes. (See id. at 284, 287.) For each of eight resource categories -- vegetation, soils, water quality, wildlife, cultural resources, paleontological and quaternary resources, scenic resources, and recreational resources -- the plan established an ultimate management "goal," the "objectives" to be met in pursuit of that goal, and those actions to be taken in furtherance of the stated objectives.*fn1 (See id. at 287-88.) Under the document's terms, "[i]f a proposed action meets these objectives, or can meet them by incorporating prescribed mitigation requirements, the actions will be considered to have complied with the 'purposes' of the recreation area" and "[t]he Superintendent will recommend that it be approved by the BLM authorizing official." (Id. at 279.)

II. Grazing Permits

At the time of the Grazing Management Plan's publication, BLM was burdened by an unusually large number of permits requiring review prior to their renewal. (See BLM Doc. 307 at 3549 (January 16, 2003 Bureau memorandum indicating that "a 'spike' in permit expirations in 1999 and 2000 occurred, which resulted in a backlog of expired permits that need[ed] to have [the renewing process] completed").) See also 145 Cong. Rec. S10658 (daily ed. Sept. 9, 1999) (statement of Sen. Durbin) ("Many of the current [10-year] grazing permits were issued in the late 1980s and now are starting to expire in large numbers during a 2 or 3-year period. These permits, numbering in the thousands, present the BLM with an unusually large and burdensome short-term renewal workload."). Unwilling to impose the costs of BLM's backlog on the region's ranchers,*fn2 Congress responded with a series of appropriations riders providing for the renewal of all expiring permits pending the completion of requisite review procedures. Under the Consolidated Appropriations Act of 2000 -- the first such statute relevant to this litigation --the Secretary of the Interior was required to "renew[]" any grazing permit that expired or was transferred during fiscal year 2000, with

[t]he terms and conditions contained in the expiring permit . . . continu[ing] in effect under the new permit . . . until such time as the Secretary of the Interior completes processing of such permit . . . in compliance with all applicable laws and regulations, at which time such permit . . . may be canceled, suspended or modified, in whole or in part, to meet the requirements of such applicable laws and regulations.

Pub. L. No. 106-113, § 123, 113 Stat. 1501, 1501A-159 (1999). Provisions identical in all relevant respects were subsequently enacted for those permits that expired or were transferred during fiscal years 2001, 2002 and 2003. See Department of the Interior and Related Agencies Appropriations Act, Pub. L. No. 106-291, § 116, 114 Stat. 922, 943 (2000); Department of the Interior and Related Agencies Appropriations Act, Pub. L. No. 107-63, § 114, 115 Stat. 414, 438 (2001); Consolidated Appropriations Resolution, Pub. L. No. 108-7, § 328, 117 Stat. 11, 276 (2003) (requiring renewal of any grazing permit "that expires, is transferred, or waived during fiscal year 2003"). All told, twelve of the grazing permits contested in this case were renewed pursuant to these provisions.*fn3 In 2003, Congress extended the same renewal requirement to all permits that expired, were transferred, or were waived "during fiscal years 2004-2008[.]" Department of the Interior and Related Agencies Appropriations Act, Pub. L. No. 108-108, § 325, 117 Stat. 1241, 1307 (2003). In addition to the language included in the previous riders, the 2003 legislation provided that beginning in November 2004, and every year thereafter, the Secretar[y] of the Interior . . . shall report to Congress the extent to which [the Secretary is] completing analysis required under applicable laws prior to the expiration of grazing permits, and beginning in May 2004, and every two years thereafter, the Secretar[y] shall provide Congress recommendations for legislative provisions necessary to ensure all permit renewals are completed in a timely manner.

Id.at 1308. While creating this mechanism for congressional oversight, the provision stated that "the Secretar[y] in [the Secretary's] sole discretion determine[s] the priority and timing for completing required environmental analysis of grazing allotments based on the environmental significance of the allotments and funding available to the Secretar[y] for this purpose." Id. Thirty of the grazing permits contested here were renewed pursuant to this provision.*fn4

To date, neither NPS nor BLM has finalized its review of the renewed permits under NEPA, NHPA, or NPS's Organic Act.*fn5 (See Defs.' Mem. at 22 (acknowledging NPS and BLM's "inability to fully process the [contested] permits in compliance with NEPA, the NHPA, and the NPS Organic Act").) According to BLM, the series of riders addressing grazing permit renewals "allowed the emphasis to change from processing permits based on administrative expiration dates to addressing resource issues in high priority watersheds." (BLM Doc. 307 at 3550 (January 16, 2003 Bureau Instruction Memorandum to State Directors).) Moreover, the agency has stated that "all carryover grazing permits shall be fully processed using the information from [state] land health standards evaluations as needed to complete environmental impact analysis" ...


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