ELR Citation: ELR 20096
No(s). Civ. S-84-616RAR (E.D. Cal. Sep 3, 1985)

The court holds that cooperative management agreements (CMAs) entered into between the Bureau of Land Management (BLM) and ranchers for the regulation of livestock grazing on public lands violate the Bureau's duties under several environmental statutes and the Administrative Procedure Act (APA). The court first holds that plaintiffs have standing to sue and that the appropriate standard of judicial review is the "not in accordance with law standard" expressed in APA §706(2)(A). The court then rules that BLM did not violate the public participation requirements of APA §553(b) and (c) in its promulgation of regulations for the CMA program. The notice of proposed rulemaking sufficiently outlined the essential elements of the program, revealing that BLM intended to allow permittees to manage livestock grazing on their allotment. Defendants' statement of basis and purpose is also sufficient, although the court feels the question is a close one. Defendants reponded to the comments made during the rulemaking process, but the responses sometimes consisted of observations that the comments challenged the Secretary's statutory authority for the new program. However, defendants did modify the final rule and responded to the comments in considerable detail. The court concludes that the fact that the agency did not respond to every single comment is not fatal, particularly when one considers the statement of basis and purpose together with the notice of proposed rulemaking and the modifications in the final rule.

Turning to the substantive legal issues, the court first rules that the Experimental Stewardship Program (ESP) of the Public Rangelands Improvement Act (PRIA) does not apply, rejecting defendant's contention that the CMA program can be upheld under the PRIA even if it cannot be upheld under the Taylor Grazing Act or the Federal Land Policy and Management Act (FLPMA). The court notes that normally it would give substantial deference to the Secretary of the Interior's interpretation as to the applicability of a statutory program to a delegation of agency authority such as is present in this case. However, the court finds that the Secretary did not rely on the ESP for the delegation; the argument is merely a post hoc rationalization by defendants' counsel that deserves no judicial deference. Moreover, even if the Secretary did rely on the ESP, that program does not create exceptions to FLPMA's permit requirements. The court then holds that the CMAs violate the Taylor Grazing Act, FLPMA, and PRIA. The CMA program authorizes BLM to make special grazing permit arrangements, allowing permittees to manage their allotment as they deem appropriate without effective oversight or conditions as to the manner or extent of grazing allowed. Permittees are essentially guaranteed tenure for at least ten years, with no evaluation being performed until the end of five years. The program violates the statutes' requirements that the Secretary of the Interior, not the ranchers, determine the manner in and extent to which livestock practices will be conducted on the public lands and does not follow the specific methods mandated in FLPMA for permit issuance. It also violates the statutes' requirements that permits include reservations of authority to revise or cancel the permit if necessary.

The court rules that the Secretary of the Interior and BLM have violated the National Environmental Policy Act (NEPA) by not preparing an environmental impact statement (EIS) on the CMA program. Defendants' main point in the environmental assessment (EA), that CMA permittees would be ranchers with exceptional livestock management capabilities, is unsupported since the criteria defendants used to select CMA permittees were based on the current condition of the land, not on ranchers' demonstrated abilities to improve the range. In addition, the EA does not describe the potential impacts and makes no attempt to assess the degree of potential harm so that the risk may be weighed. Given the repeated congressional findings that overgrazing by permittees has been key in the degradation of federal lands, defendants' unsupported determination of no significant impact is plainly unreasonable.

The court further rules that defendants violated the notification requirements of APA §553 in their promulgation of revised grazing regulations. The notice accompanying the proposed revision for allotment management plans was misleading, suggesting that the purpose of the proposed change was to eliminate redundancy when in fact the defendants intended significant substantive changes. The defendants did not explain or justify in the final rulemaking the reasons for changing the role of the land use plans in evaluating permits, nor did they explain the rationale for deleting penalty provisions for ranchers who violated federal environmental statutes. The court also rules that BLM's supplemental feeding technique regulations violate the APA and NEPA. The regulations, which would allow ranchers for the first time to use such techniques without prior BLM authorization, represent a major policy shift by BLM, and the court concludes that defendants' explanation was inadequate given the level of criticism they received on the proposed change. BLM should also have prepared an EIS, rather than concluding through an EA that the regulation would have no significant impact, since the agency's former position had been that serious adverse impacts could result from supplemental feeding practices. Finally, the court rules that defendants gave adequate notice of the regulation redefining individuals with "affected interests" who may participate in the grazing decisionmaking process and that plaintiffs had not shown that BLM officials had excluded persons entitled to participate from the decisionmaking process.

Counsel for Plaintiffs
David B. Edelson, Johanna H. Wald
Natural Resources Defense Council, Inc.
25 Kearny St., San Francisco CA 94108
(415) 421-6561

Laurens H. Silver
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100
%Counsel for Defendants
Wells C. Burgess, George William Sherk
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3769

Andrew M. Wolfe, Ass't U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Counsel for Amicus Curiae
Craig C. Thompson
Department of Justice, 1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437