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Western Watersheds Project v. Bernhardt

United States District Court, D. Oregon

July 16, 2019

DAVID BERNHARDT, Secretary of the Interior, JEFFREY ROSE, District Manager Burns District Bureau of Land Management, and BUREAU OF LAND MANAGEMENT, Defendants.

          David H. Becker, Law Office of David H. Becker, LLC, Talasi B. Brooks, Western Watersheds Project, Inc., Paul David Ruprecht, Western Watersheds Project, Inc., Of Attorneys for Plaintiffs.

          Billy J. Williams, United States Attorney, and Stephen J. Odell, Assistant United States Attorney, United States Attorney's Office, Of Attorneys for Defendants.


          Michael H. Simon United States District Judge.

         Plaintiffs bring this action challenging Defendants' grant of a renewed Grazing Permit (the “Permit”) to Hammond Ranches, Inc. (“HRI”) on four allotments-Mud Creek, Hammond, Hammond FFR, and Hardie Summer. Plaintiffs argue that then-Secretary of the Interior Ryan Zinke[1] and Defendant Bureau of Land Management (“BLM”) acted arbitrarily and capriciously in violation of the Administrative Procedures Act (“APA”)[2] because they failed to follow the requirements of the National Environmental Policy Act of 1969 (“NEPA”), [3] the Federal Land Policy and Management Act of 1976 (“FLPMA), [4] and applicable BLM regulations. Plaintiffs allege that Defendants violated these statutes and regulations when Secretary Zinke ordered that HRI's previous grazing permit be renewed without conducting the analyses required by the FLPMA, BLM regulations, and NEPA, and under the 2015 Oregon Greater Sage-Grouse Approved RMP Amendment (“GSG-ARMPA”). Plaintiffs also allege that Defendants violated these statutes when BLM issued a categorical exclusion environmental review and approval (“CX”) and the approved Permit without performing the required analyses.

         Plaintiffs filed a motion for temporary restraining order (“TRO”) and preliminary injunction to enjoin grazing on the four allotments. On June 4, 2019, the Court granted Plaintiffs' motion for a TRO and enjoined grazing on the Mud Creek and Hardie Summer allotments through July 2, 2019. The TRO was extended until July 17, 2019 at 5:00 p.m., by the stipulation of the parties. Before the Court is Plaintiffs' amended motion for preliminary injunction, requesting an order enjoining Defendants from allowing turnout and grazing of livestock on the Mud Creek and Hardie Summer allotments until the Court resolves the merits of this case. It is the parties' and the Court's intention to resolve the merits of the case before the 2020 grazing season begins.

         HRI's cattle are currently on the Hammond and Hammond FFR allotments. The cattle have not yet entered the Mud Creek or Hardie Summer allotments. Thus, the requested injunction would not require any cattle be removed from either allotment.

         Defendants respond to Plaintiffs' motion for a preliminary injunction primarily by arguing that Plaintiffs have not demonstrated that they will suffer irreparable harm on the Hardie Summer allotment[5] in the absence of preliminary relief. Defendants also argue Plaintiffs fail to show that they are likely to succeed on the merits of their claims and that the balance of the equities and public interest considerations support issuing a preliminary injunction. On June 28 and July 2, 2019, the Court held an evidentiary hearing on Plaintiffs' motion.

         At the beginning of the hearing on June 28th, Defendants proposed an alternative grazing plan for the Court's consideration. Under this proposed amended grazing plan, there would be no authorized grazing on the Mud Creek allotment except for when the cattle “quickly and methodically trail through” to get to the Hardie Summer allotment.[6] On the Hardie Summer allotment, the pasture known as Fir Creek[7] would be rested, and the remaining pastures would be grazed at ¶ 30 percent utilization standard instead of the 50 percent utilization standard authorized in the Permit. For the reasons discussed below, the Court grants in part Plaintiffs' motion for a preliminary injunction. The Court enjoins any turnout and grazing beyond the amended grazing plan proposed by Defendants at the beginning of the June 28, 2019 hearing.


         A. Motion for a Preliminary Injunction

         A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit's earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

         The Supreme Court's decision in Winter, however, did not disturb the Ninth Circuit's alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).

         B. National Environmental Policy Act

         NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a).[8] “NEPA requires that ‘to the fullest extent possible . . . all agencies of the Federal Government shall' complete an environmental impact statement (EIS) in connection with ‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.'” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 640-41 (9th Cir. 2014) (alteration in original) (quoting 42 U.S.C. § 4332(2)(C)). “In addition to the proposed agency action, every EIS must ‘[r]igorously explore and objectively evaluate all reasonable alternatives' to that action. 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.'” Ctr. for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633, 642 (9th Cir. 2010) (second citation omitted). The purpose of NEPA is twofold: “(1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011). “In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look' at environmental consequences.” Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005) (citation omitted).

         C. Federal Land Policy and Management Act and BLM Regulations

         Grazing on federal lands is governed by, among other statutes and regulations, the Taylor Grazing Act of 1934[9] (“Taylor Grazing Act”) and the FLPMA. The Taylor Grazing Act requires persons seeking to graze livestock on public lands to obtain a permit from the Department of the Interior. The Taylor Grazing Act provides for the “orderly use, improvement, and development of the range” on public lands. 43 U.S.C. § 315a. “The Taylor Grazing Act authorized the Secretary of the Interior ‘to issue or cause to be issued permits to graze livestock' pursuant to ‘his rules and regulations.'” United States v. Estate of Hage, 810 F.3d 712, 717 (9th Cir. 2016) (quoting 43 U.S.C. § 315b). “[T]he implied license under which the United States has suffered its public domain to be used as a pasture for sheep and cattle . . . was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contravention of the rules and regulations.” United States v. Grimaud, 220 U.S. 506, 521 (1911) (citation omitted).

         The goals of the Taylor Grazing Act “are to ‘stop injury' to the lands from ‘overgrazing and soil deterioration,' to “provide for their use, improvement and development, ” and ‘to stabilize the livestock industry dependent on the public range.'” Pub. Lands Council v. Babbitt, 529 U.S. 728, 733 (2000) (quoting 48 Stat. 1269). “As grazing allocations were determined, the Department would issue a permit measuring grazing privileges in terms of ‘animal unit months' (AUMs), i.e., the right to obtain the forage needed to sustain one cow (or five sheep) for one month.” Id. at 735; see also 43 C.F.R. § 4100.0-5 (defining AUM).

         The FLPMA provides additional direction for the management of public lands. “In enacting FLPMA, ‘Congress declared that it is the policy of the United States to manage 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.'” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 498-99 (9th Cir. 2011) (quoting Ctr. for Biological Diversity v. U.S. Dep't of Interior, 581 F.3d 1063, 1075 (9th Cir. 2009)). The FLPMA instructs that permits for grazing on public lands ordinarily shall be issued for a 10-year term, subject to such terms and conditions as BLM deems appropriate and consistent with governing law. 43 U.S.C. § 1752(a). The FLPMA also establishes that a permittee holding an expiring grazing permit will be given first priority for renewal if the permittee “is in compliance with the rules and regulations issued [by the Secretary] and the terms and conditions of the permit.” 43 U.S.C. § 1752(c).

         BLM has issued regulations to implement the Taylor Grazing Act and the FLPMA. 43 C.F.R. §§ 4100-4190.1 (2005).[10] BLM's regulations specify “mandatory qualifications” for an applicant for a permit for grazing on public lands. 43 C.F.R. § 4110.1. These include that any applicant for renewal of a grazing permit “must be determined by the authorized officer to have a satisfactory record of performance.” Id. § 4110.1(b) (emphasis added). The regulations further provide that the authorized officer “will determine whether applicants for the renewal of permits . . . and any affiliates, have a satisfactory record of performance, ” and that “[t]he authorized officer will not renew . . . a permit . . . unless the applicant and all affiliates have a satisfactory record of performance.” Id. § 4130.1-1(b) (emphasis added). A satisfactory record means that the applicant is in “substantial compliance with” regulations applicable to the permit. Id. § 4130.1-1(b)(1)(i). “The authorized officer may take into consideration circumstances beyond the control of the applicant or affiliate in determining whether the applicant and affiliates are in substantial compliance with permit or lease terms and conditions and applicable rules and regulations.” Id. § 4130.1-1(b)(1)(ii).

         BLM regulations applicable to a grazing permit prohibit: “(3) Cutting, burning, spraying, destroying, or removing vegetation without authorization”; and “(4) Damaging or removing U.S. property without authorization.” Id. § 4140.l(b). BLM also has regulations applicable to preventing wildfires, which apply to users of public lands, including grazing permit holders. These regulations prohibit, without authorization, a user to: “[c]ause a fire, other than a campfire, or the industrial flaring of gas, to be ignited by any source; [b]urn, timber, trees, slash, brush, tundra or grass except as used in campfires; [l]eave a fire without extinguishing it; [or] [r]esist or interfere with the efforts of firefighter(s) to extinguish a fire.” Id. § 9212.1(a), (c), (d), (f).

         FLPMA also directs BLM to develop and maintain comprehensive Resource Management Plans (“RMPs”) that govern all aspects of public land management, including grazing administration. 43 U.S.C. § 1712. Grazing permits must be consistent with RMPs. 43 U.S.C. § 1732(a); 43 C.F.R. § 4100.0-8. RMPs constrain grazing permits by determining where grazing will or will not be allowed and by setting environmental standards that grazing permits must meet. See 43 U.S.C. § 1732(a) (requiring management “in accordance with the [RMPs]”); id. § 1752(c)(1) (conditioning renewal of grazing permits on lands remaining available for grazing in accordance with RMPs).

         The land use plans covering the four allotments at issue in this case are the Steens Mountain Cooperative Management and Protection Area (“CMPA”) Resource RMP and the Andrews Management Unit RMP, both approved in July 2005. In 2015, both of these RMPs were amended by the Oregon GSG-ARMPA. The GSG-ARMPA defines various categories of important sage-grouse habitat requiring special protection and consideration, including Priority Habitat Management Areas (“PHMAs”), General Habitat Management Areas (“GHMAs”), and Sagebrush Focal Areas (“SFAs”), which are a subset of PHMAs. PHMAs are “BLM-administered lands identified as having the highest value to maintaining sustainable [greater sage-grouse] populations.” GHMAs are “BLM-administered lands where some special management will apply to sustain [greater sage-grouse populations; areas of occupied seasonal or year-round habitat outside of PHMA[s].” SFAs are areas that “represent recognized strongholds for [greater sage-grouse].”

         The 2015 GSG-ARMPA also specifies certain “Management Decisions.” One of these requires that any “NEPA analysis for renewals . . . of livestock grazing permits/leases that include lands within SFA and PHMA will include specific management thresholds based on [greater sage-grouse] Habitat Objectives . . . Land Health Standards . . . and ecological site potential, and one or more defined responses that will allow the authorizing officer to make adjustments to livestock grazing that have already been subjected to NEPA analysis.”

         D. Administrative Procedures Act

         Neither NEPA nor the FLPMA provide a separate standard of review. Thus, claims under these Acts are reviewed under the standards of the APA. See Jewell, 747 F.3d at 601 (NEPA); Mont. Wilderness Ass'n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013) (FLPMA). Under the APA, “an agency action must be upheld on review unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” Jewell, 747 F.3d at 601 (quoting 5 U.S.C. § 706(2)(A)). A reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. (quotation marks and citation omitted). The reviewing court's inquiry must be “thorough, ” but “the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency.” Id. (quotation marks and citation omitted).

         Although a court's review is deferential, the court “must engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on the record before it.” Nat'l Wildlife Fed. v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 927 (9th Cir. 2007). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); see also Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir. 2001) (“The presumption of agency expertise can be rebutted when its decisions, while relying on scientific expertise, are not reasoned.”). The reasoned-decisionmaking requirement, the Supreme Court has often observed, includes a duty to explain any “departure from prior norms.” Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); see also Int'l Union, UAW v. NLRB, 802 F.2d 969, 973-74 (7th Cir. 1986) (“[A]n administrative agency is not allowed to change direction without some explanation of what it is doing and why.”). A court also “must not ‘rubber-stamp' . . . administrative decisions that [it] deem[s] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 858 (9th Cir. 2005) (first alteration in original, remaining alterations added).


         Based on the evidence presented by the parties, the Court finds the following facts are more likely true than not:

         Background of HRI's Permit

         1. HRI is a family-owned Oregon ranching corporation. Its shareholders are Steven Dwight Hammond, his wife Earlyna Hammond, and his parents Dwight Lincoln Hammond and Susan Hammond, through their Trust. Steven Hammond is the President of HRI, Dwight Hammond is the Vice President, and Earlyna Hammond is the Secretary.

         2. HRI began grazing on public BLM lands in 1964. Before the Permit at issue in this case, the most recent permit granted to HRI was Permit No. 3602564, which had a term from March 1, 2004 to February 28, 2014. This permit authorized, for each year: 68 cattle and 471 AUMs on Hammond, from April 1 to October 30; 32 cattle and 32 AUMs on Hammond FFR, from April 1 to April 30; 390 cattle and 590 AUMs on Mud Creek, from May 16 to June 30; and 408 cattle and 407 AUMs on Hardie Summer, from July 1 to September 30.

         3. On February 14, 2014, BLM denied HRI's Application for Permit Renewal. BLM explained that under its regulations permit holders and their “affiliates” must be in compliance with the rules and regulations issued by the Secretary of the Department of the Interior and the terms and conditions in the permit. BLM found that Steven Hammond and Dwight Hammond were affiliates of HRI. BLM also found that their criminal convictions for intentionally setting fires on public lands violated the regulations prohibiting cutting, burning spraying, destroying, or removing vegetation without authorization and damaging or removing U.S. property without authorization. 43 C.F.R. § 4140.1. BLM further concluded that the Hammonds' conduct violated 43 C.F.R. § 9212.1(a), (c), (d), and (f).

         4. BLM summarized in detail the witness testimony at the criminal trial, and characterized this testimony as demonstrating “how the Hammonds violated BLM grazing regulations and the terms of [HRI's] grazing permit, endangered the lives of numerous individuals, including firefighters, and altered ecological conditions on public lands.” BLM described testimony of the Hammonds lighting multiple fires.

         5. Steven Hammond was convicted of two counts, one relating to a 2001 fire and one relating to a 2006 fire. Dwight Hammond was convicted of one count, relating to a 2006 fire. The jury acquitted the Hammonds of several charges. The jury could not reach a verdict on several charges and the judge instructed the jury to continue deliberations on those charges. While the jury was deliberating, the prosecution and defense reached an agreement and the trial ended.

         6. In reaching its final decision in 2014 denying HRI's application to renew Permit No. 3602564, BLM accepted the sworn testimony at trial and, after a “thorough[] review[], ” rejected the protest filed by HRI that the sworn testimony was inaccurate or incomplete.

         7. BLM concluded that HRI and its affiliates had an unsatisfactory record of performance. BLM stated: “The Hammond fire-setting maliciously and knowingly placed public recreationists, firefighters, and BLM range staff at high risk just to further [HRI's] grazing interests.” BLM also noted that the “Hammonds set the fires because they disagreed with how BLM managed the land. The Hammonds acted in the interest of improving the rangeland forage for their cattle, but not necessarily for other resources like wildlife habitat.”

         8. BLM concluded that each criminal conviction, standing alone or in combination, constitutes an unsatisfactory record of performance. BLM explained:

The Hammonds' malicious disregard for human life and public property shows contempt for BLM regulation of public land. The Hammonds' interference with firefighting efforts is antithetical to orderly use of resources. The Hammonds' disregard for orderly and planned prescribed burning that accounts for ecological objectives and human safety is incompatible with the orderly use and improvement of resources. The BLM carefully plans and conducts prescribed burns to meet ecological objectives, such as retaining sagebrush and bitterbrush habitat. By taking matters into their own hands and burning public lands outside of the official BLM process, the Hammonds altered the Burns District's prescribed fire management strategy for years to come. Good stewardship is more than just producing grass for livestock-it requires orderly conduct that protects the multiple objectives of public lands and the lives of those who work and recreate on public lands.

         9. BLM also concluded that the Hammonds' “additional fire-setting described in the criminal trial, ” outside of their criminal convictions, constituted an unsatisfactory record of performance. BLM found that “the testimony shows a pattern of intentional fire-setting by Dwight and Steven Hammond-beyond the fires for which they were convicted-demonstrating their callous disregard for human life and BLM multiple use objectives for the land.”

         10. HRI appealed BLM's decision and sought a stay of the decision. On April 28, 2014, the Office of Hearings and Appeals (“OHA”) denied the Hammonds' motion for a stay and BLM's decision went into effect. OHA found that the criminal convictions were sufficient to establish violations of governing regulations. OHA also found that BLM correctly relied on other evidence of “multiple instances of the Hammonds setting fires to eliminate juniper for the purpose of increasing forage for their cattle” and held that their “pattern of starting fires that damage vegetation on public lands and endangers lives is sufficiently serious to warrant permit non-renewal.”

         11. HRI appealed the stay denial to the Interior Board of Land Appeals, and it affirmed the denial of the stay. Meanwhile, in the appeal the OHA was considering, the assigned judge was evaluating whether to have the case proceed to summary judgment or directly to a hearing. Industry trade organizations began lobbying then-Secretary of the Interior Zinke and President Donald J. Trump. Between May and November 2018, briefs were filed before the assigned OHA judge.

         12. On July 10, 2018, President Trump issued Executive Grants of Clemency, pardoning Steve and Dwight Hammond for their crimes and commuting their sentences. Steve Hammond had served three years of his five-year sentence and Dwight Hammond had served four years of his five-year sentence.

         13. On December 28, 2018, Secretary Zinke exercised his authority to assume jurisdiction over the appeal the OHA was considering. On January 2, 2019, his last day in office, Secretary Zinke issued his decision. He set out the factual and procedural history of the case in slightly more than one page, the applicable law in slightly more than one page, and his analysis in one paragraph. Secretary Zinke's analysis, in its entirety, states:

I find that the pardons constitute unique and important changed circumstances since the BLM made its decision. In light of the Grants of Executive Clemency, the years of imprisonment, and civil damages paid by the Hammonds, I find that it is consistent with the intent of the pardons-and in particular their reflection of the President's judgment as to the seriousness of the Hammonds' offenses-to renew the Hammonds' permit for the duration of the term that would have commenced in 2014. The Hammonds' continuance of grazing will depend on compliance with BLM's grazing regulations. I do not find fault with BLM's assessment of the law and facts in its 2014 Decision and I reiterate BLM's concern for human safety on public lands. The safety of our Nation's firefighters and others working and recreating on public lands remains paramount. I will ask BLM to keep the Office of the Secretary apprised of any permit compliance and human safety issues.

         14. Secretary Zinke concluded his decision by remanding “the matter to BLM with instructions to renew, within 30 days of the date of this decision, the permit under the same terms and conditions for the balance of the renewal period.”

         15. On February 5, 2019, BLM Rangeland Management Specialist Jamie McCormack circulated a memorandum to Burns District Manager Jeffrey Rose. This memorandum noted that Secretary Zinke had directed BLM to renew the Permit under the same terms and conditions as the previous permit. The memorandum stated that BLM had conducted standards and guidelines assessments and evaluations in 2018 on the four allotments, standards were being achieved except the standard relating to species, the failure of that standard was not caused by grazing, and thus the Permit qualified for a CX under the FLPMA, which constitutes compliance with NEPA. Mr. Rose concurred with this conclusion.

         16. The CX was dated February 1, 2019, but signed on February 4 and 5, 2019. It concluded that “the proposed action did not trigger any of the extraordinary circumstances described in 43 C.F.R. § 46.215.” The CX also concluded that the Permit was “in conformance with the [land use plans], qualifies as a categorical exclusion, and does not require further NEPA analysis.” 17. On February 13, 2019, Jeffrey Rose of BLM and Steve Hammond of HRI signed the Permit, with an effective date of February 1, 2019 through February 28, 2024.

         18. BLM did not complete an EIS or environmental assessment (“EA”) analyzing the Permit's proposed grazing on the allotments, or any alternatives. There is no evidence in the record that BLM previously conducted an EA or an EIS with respect to any earlier permits.

         Plaintiffs' Receipt of Permit and CX

         19. On January 29, 2019, counsel for Plaintiff Western Watersheds Project (“Western Watersheds”) noted the media coverage of Secretary Zinke's decision and asked the Department of the Interior and BLM for a copy of that decision. Both agencies provided a copy that same day. BLM noted, however, that they had just received the decision and “the details of how we will implement this decision have not been finalized.”

         20. Plaintiffs requested copies of documents relating to the decision, including a copy of the Permit, and submitted a request under the Freedom of Information Act (“FOIA”). On March 25, 2019, Plaintiffs again requested a copy of the Permit, noting that Western Watersheds had not yet received a copy. BLM responded that because Western Watersheds had submitted a FOIA request, the information would be provided under that request.

         21. On April 1, 2019, counsel for Western Watersheds responded to BLM, noting that the statutory deadline under FOIA had expired without a response, BLM had indicated it would not provide any response to the FOIA request until May 22, 2019, Western Watersheds believed it had a right to the information as an “interested party” under BLM regulations, and it would be a simple matter to email a copy. BLM provided a copy of the Permit and CX to Western Watersheds on April 1, 2019.

         22. Although the Permit authorized grazing to begin on April 1, HRI began grazing on March 25, 2019. No. application for different use than is authorized by the Permit, which is required by the Permit before such changed use can begin, was provided to the Court.

         23. The Permit authorized 68 cattle and 471 AUMs on the Hammond allotment.[11]BLM “orally” authorized an increase of up to 490 cattle. No. application for different use than is authorized by the Permit, which is required by the Permit before such changed use can begin, was provided to the Court. BLM later realized they had “miscalculated” that this number of cattle would comply with the Permit's limitation of 471 AUMs, and thus noted that HRI's total AUMs were in excess of the Permit.

         24. BLM issued letters to HRI adjusting the time frame and number of cattle that could be grazed on the Mud Creek and Hardie Summer allotments, in part due to this litigation.

         Characteristics of the Allotments

         25. The Mud Creek allotment is approximately 8, 200 acres, all of which is publicly-owned. It contains streams, including Dry Creek and Mud Creek.

         26. The Hardie Summer allotment is approximately 9, 800 acres, of which approximately 39 percent is owned by HRI and 61 percent (6, 000 acres) is publicly-owned. The allotment is subdivided into five pastures on which the cattle rotate during grazing. The Bridge Creek pasture is publicly-owned, the Cabin pasture is nearly equally owned between BLM and HRI, and the North, Fir Creek, and Sylvies pastures are predominantly owned by HRI.

         27. The Hardie Summer allotment also contains five streams, consisting of 3.3 miles of publicly-owned streams with riparian habitat. These streams are: Big Fir Creek, Little Fir Creek, Fish Creek, Lake Creek, and Big Bridge Creek. Big Fir Creek and Little Fir Creek are perennial streams with a significant portion (about half) on public land. Fish Creek is on private land and about 90 percent of Lake Creek is on private land. Big Bridge Creek is an intermittent stream that is mostly on private land. These streams are home to redband trout.

         28. The two allotments lie within the Steens Mountain CMPA. This area was designated by Congress with the purpose “to conserve, protect, and manage the long-term ecological integrity of Steens Mountain for future and present generations.” 16 U.S.C. § 460nnn-12(a). Objectives of this designation include to promote grazing, recreation, historic, and other uses that are sustainable, and to ensure the conservation, protection, and improved management of the ecological, social, and economic environment of the CMPA, including geological, biological, wildlife, riparian, and scenic resources. Id. § 460nnn-12(b)(2), (4).

         29. To assess the effects of this grazing, BLM developed a set of standards to measure the status of the soil, vegetation, riparian areas, and wildlife on the range. The standards are known as the Standards for Rangeland Health.

         30. BLM completed evaluations of Standards for Rangeland Health on the Mud Creek and Hardie Summer allotments in 2007 and 2018. These assessments were performed by an interdisciplinary team consisting of multiple agency specialists. The 2007 evaluation was based on data gathered by interdisciplinary teams in 2006, before the fires that had been set by the Hammonds in August 2006 burned much of the allotments and thus changed their rangeland characteristics.

         31. For the Mud Creek allotment, the 2007 evaluation concluded that the allotment was not meeting two of the five standards, Standard 5 that relates to native species, species listed under the Endangered Species Act (“ESA”), or locally important species, and Standard 3 that relates to ecological processes. The 2018 evaluation concluded that the allotment was not meeting Standard 5. The assessment further noted that an Assessment, Inventory, and Monitoring project was initiated in 2016 but sage-grouse habitat determinations could not be completed until the data collection is finished in 2020. Based on available information, BLM found that sage-grouse habitat overall was rated as “marginal” because of the lack of sagebrush cover and continuity due to recent fires and juniper encroachment, and the presence of invasive annual grasses. The evaluation found that sage-grouse habitat exists on the allotment and where it does, it is suitable for winter, leking, [12] nesting, and early spring brood rearing.

         32. For the Hardie Summer allotment, the 2007 evaluation found that all five standards were being met. The 2018 evaluation found that the allotment did not meet Standard 5. The Hardie Summer allotment failed this standard because species composition and diversity had been altered. The assessment noted this alteration was likely caused by juniper encroachment and fire. The assessment also noted that although there were no known sage-grouse leks on the allotment, “year-round habitat for sage-grouse does occur where sagebrush is present.” ECF 39-2 at 3. The assessment further noted that an Assessment, Inventory, and Monitoring project was initiated in 2016 but sage-grouse habitat determinations could not be completed until the data collection is finished in 2020. Based on available information, BLM concluded that the allotment offers “suitable year-round conditions for sage-grouse habitat.” This habitat was rated “marginal” due to the juniper encroachment and the “infestations of invasive annual grasses within large fire scars adjacent to the allotment.” Id. To meet this Standard, BLM recommended reducing juniper, reducing habitat loss, and treating invasive grasses. BLM concluded that grazing was not a causal factor for current habitat conditions.

         33. The allotments include Greater Sage-Grouse habitats designated in 2015 as PHMAs and GHMAs. The Mud Creek allotment also includes a sage-grouse breeding ground (“lek”), known as the South Bridge Creek lek. Two more leks, known as North Bridge Creek Nos. 1 and 2, lie less than two miles from the Mud Creek, Hammond, and Hammond FFR allotments and within three miles of the Hardie Summer allotment.

         34. The Hardie Summer allotment provides year-round habitat for sage-grouse, which are present at least from June to September.

         35. The 2006 fire more likely than not set by the Hammonds burned significant portions of the Mud Creek and Hardie Summer allotments. The Hammonds set the fire to burn brush and shrubs to increase the area for grass to grow for grazing. Because of the 2006 fire, the remaining areas of sagebrush on the Hardie Summer and Mud Creek allotments are of critical importance to sage-grouse.

         36. Without active intervention such as planting seedlings, it will take from 50 to 100 years for sagebrush to naturally reestablish in the allotments.

         37. Grazing reduces the likelihood that sagebrush will reestablish.

         38. The riparian vegetation on the Hardie Summer allotment is showing signs of recovery after five years without grazing. Willows are regrowing and regaining their natural shape rather than a high browse line from grazing. Willows provide bank stability and overhang hiding cover for fish, are a source of nutrient and insect input critical for trout survival, provide shade necessary to keep stream temperatures low, ...

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