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Western Watersheds Project v. Bernhardt

United States District Court, D. Oregon

December 20, 2019

WESTERN WATERSHEDS PROJECT, CENTER FOR BIOLOGICAL DIVERSITY, and WILDEARTH GUARDIANS, Plaintiffs,
v.
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, Paul David Ruprecht, Western Watersheds Project, Inc., of Attorneys for Plaintiffs.

          Luther Langdon Hajek, United States Department of Justice, Environment and Natural Resources Division, of Attorneys for Defendants.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         In this case, the Court is asked to determine, among other things, whether the then-Secretary of the Interior, on his last day in office, failed to comply with governing statutes and regulations, acknowledge his departure from established agency policies and practices, and provide a reasoned explanation for that departure when ordering that a specific grazing permit be renewed. The Court also is asked to decide, among other things, whether vacatur of that agency action is the appropriate remedy, if those alleged serious errors have been found to occur.

         Plaintiffs bring this action challenging Defendants' grant of a 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 Procedure Act (“APA”)[2] by failing to follow the requirements of the Federal Land Policy and Management Act of 1976 (“FLPMA), [3] the National Environmental Policy Act of 1969 (“NEPA”), [4] and applicable BLM regulations. Plaintiffs contend that Defendants violated these statutes and regulations when Secretary Zinke ordered that HRI's previously-issued grazing permit be renewed without conducting the analyses required by the FLPMA, BLM regulations, NEPA, and the 2015 Oregon Greater Sage-Grouse Approved RMP Amendment. Plaintiffs also argue that Defendants violated these statutes and regulations when BLM issued a categorical exclusion environmental review and approval (“CX”) and the approved the Permit without performing the required analyses.

         Plaintiffs filed a motion for temporary restraining order (“TRO”) 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. By stipulation of the parties, the Court extended the TRO through July 17, 2019. On July 16, 2019, the Court granted in part Plaintiffs' amended motion for preliminary injunction, adopting a revised grazing plan proposed by Defendants. For the 2019 grazing season, the Court enjoined Defendants from allowing turnout and grazing of livestock on the Mud Creek allotment and the government-controlled portion of the Fir Creek pasture on the Hardie Summer allotment, and also enjoined turnout and grazing of livestock on the remainder of the government-controlled portions of the Hardie Summer allotment at greater than 30 percent utilization.

         Now pending before the Court are cross-motions for summary judgment filed by the parties. Plaintiffs also move to supplement the administrative record. Defendants agree to supplement the administrative record with the maps and actual records of use submitted by Plaintiffs, but object to supplementing the record with the declarations of Plaintiffs' experts and certain exhibits attached to those declarations.

         For the reasons that follow, Plaintiffs' motion for summary judgment is granted and Defendants' motion is denied on Plaintiffs' claim that Secretary Zinke violated the APA. Resolving this claim results in the vacatur of the Permit and remand to the agency. Thus, the Court need not resolve the pending motions relating to Plaintiffs' claims that Secretary Zinke and BLM violated NEPA and that BLM violated the APA. Whether there are additional violations that also would require vacatur need not be determined to resolve this dispute. Further, any potential future permit issued after remand would likely involve a different and more comprehensive NEPA analysis, particularly given the unique factual circumstances of the Permit issued in this case. Secretary Zinke allowed BLM 30 days to issue the Permit, but because of the government shutdown, BLM only had a few days to perform an expedited NEPA analysis and issue the Permit to comply with the Secretary's order. This makes any evaluation by the Court of BLM's current NEPA analysis likely irrelevant. The Court also need not resolve the disputed portion of Plaintiffs' motion to supplement the administrative record, because the disputed evidence relates to the portions of the cross-motions for summary judgment that the Court is not reaching at this time.

         STANDARDS

         A. Taylor Grazing Act

         Grazing on federal lands is governed by, among other statutes and regulations, the Taylor Grazing Act of 1934[5] (“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).

         B. Federal Land Policy and Management Act

         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).

         C. Relevant BLM Regulations

         BLM has issued regulations implementing the Taylor Grazing Act and the FLPMA. 43 C.F.R. §§ 4100-4190.1 (2005).[6] 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 the requirement that any applicant (and its affiliates) 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). An applicant is “deemed” to have a satisfactory record “if the authorized officer determines the applicant and affiliates to be in substantial compliance with the terms and conditions of the existing Federal grazing permit or lease for which renewal is sought, and with the rules and regulations applicable to the permit or lease.” Id. § 4110.1-1(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. § 4110.1-1(b)(1)(ii).

         BLM regulations applicable to a grazing permit prohibit, among other things: “(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, among other things: “[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).

         D. Administrative Procedure Act

         Claims under the FLPMA are reviewed under the standards of the APA. See Mont. Wilderness Ass'n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013); W. Watersheds Project v. Abbey, 719 F.3d 1035, 1041 (9th Cir. 2013); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir. 2006). Under the APA, a court must “hold unlawful and set aside agency action . . . found to be-arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” or “without observance of procedure required by law.” 5 U.S.C. § 706(2). “An 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.'” Gill v. United States Dep't of Justice, 913 F.3d 1179, 1187 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Agency action is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs., 463 U.S. at 43; see also Gill, 913 F.3d at 1187. The basis for the agency's decision must come from the record. Gill, 913 F.3d at 1187.

         A 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.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (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. 2008); 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.”). A court “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 Eng'rs, 402 F.3d 846, 859 (9th Cir. 2005) (first alteration in original, remaining alterations added). A court, however, may “uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.” Gill, 913 F.3d at 1187-88 (quoting Motor Vehicle Mfrs., 463 U.S. at 43).

         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.”). “Unexplained inconsistency” between agency actions is “a reason for holding an interpretation to be an arbitrary and capricious change.” Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).

         When an agency's action represents a policy change, such action requires “a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Mfrs., 463 U.S. at 42. A policy change will comply with the APA if the agency: “(1) displays ‘awareness that it is changing position,' (2) shows that ‘the new policy is permissible under the statute,' (3) ‘believes' the new policy is better, and (4) provides ‘good reasons' for the new policy, which, if the ‘new policy rests upon factual findings that contradict those which underlay its prior policy,' must include ‘a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.'” Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (alteration in original) (quoting F.C.C v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009)). If, however, the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so, the policy change violates the APA. Fox, 556 U.S. at 537.

         E. Motion for Summary Judgment in APA Cases

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In an action reviewing the merits under the APA, however, the Court does not ask whether there is a genuine dispute as to any material fact. Rather, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). In an APA-review case, “summary judgment is the appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.” Id.

         BACKGROUND

         A. Background of HRI's Permit, Subsequent Denial, and Appeal

         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 currently is the President of HRI and Dwight Hammond is the Vice President.[7] 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. AR 1270-72. This permit authorized, for each year: 68 cattle and 471 AUMs on the Hammond allotment, from April 1 to October 30;[8] 32 cattle and 32 AUMs on Hammond FFR, from April 1 to April 30; 390 cattle and 590 AUMs on the Mud Creek allotment, from May 16 to June 30;[9] and 408 cattle and 407 AUMs on the Hardie Summer allotment, from July 1 to September 30.[10]

         Steven and Dwight Hammond were indicted and tried on various criminal charges stemming from allegations that they intentionally set fire to public lands. At their criminal trial in June 2012, Steven Hammond was convicted on two counts, one relating to a 2001 fire and one relating to a 2006 fire. AR 3006. Dwight Hammond was convicted on one count, relating to a 2006 fire. Id. The jury acquitted the Hammonds on several charges and did not reach a verdict on several other charges. Id. On October 30, 2012, the Hammonds were sentenced by U.S. District Court Judge Michael Hogan. Steven Hammond was sentenced to twelve months and one day of imprisonment and three years of supervised release. AR 1506-08. Dwight Hammond was sentenced to three months of imprisonment and three years of supervised release. AR 1512-14. On February 7, 2014, the Ninth Circuit vacated these sentences on appeal and instructed the district court to resentence the Hammonds to the mandatory statutory minimum of five years. See United States v. Hammond, 742 F.3d 880, 884-85 (9th Cir. 2014). The district court resentenced the Hammonds on October 7, 2015, and ordered them to self-surrender on January 4, 2016, to begin serving their sentences. United States v. Hammond, No. 6:10-cr-60066-AA, ECF 234, 236[11]; see also AR 943.

         On July 7, 2011, the United States filed a civil suit against HRI and Dwight and Steven Hammond in No. 11-cv-0823-SU (D. Or). AR 1518-30. The United States sought damages for several fires it alleged were set by the Hammonds, including: (1) two Fir Creek area fires in 2005; (2) Krumbo Butte fire in 2006; (3) Lower Bridge Creek fire in 2006; and (4) Granddad fire in 2006. Id. On August 26, 2014, the parties to the civil suit met with a mediator and reached a settlement agreement. On December 4, 2014, U.S. Magistrate Judge Patricia Sullivan entered the Consent Judgment as the parties agreed. United States v. Hammond Ranches, Inc., No. 11-cv-0823-SU, ECF 76.[12] This judgment required HRI and the Hammonds to pay the United States $200, 000 before December 31, 2015. Id. As part of the settlement, the Hammonds also were to pay $200, 000 on or about December 1, 2014, for a total settlement payment of $400, 000. See id., ECF 75-1 (Settlement Agreement).

         On February 14, 2014, BLM denied HRI's Application for Permit Renewal and declared that HRI's grazing preference will no longer be effective and that HRI will no longer hold a superior or priority position against others for the purpose of receiving a grazing permit for the subject allotments.[13] AR 1110-30. 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 the Hammonds' 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).

         BLM summarized in detail the witness testimony received at the criminal trial. AR 1114-1124. BLM 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.” AR 1114. BLM described the testimony as showing that the Hammonds intentionally set multiple fires, which included fires in addition to the fires leading to the criminal convictions. 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. AR 1125.

         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.” AR 1126. 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.” Id. BLM noted that “With the non-renewal of this permit, the Hammonds will no longer have the same economic incentive to burn public land allotments without authorization and endanger people.” Id.

         BLM concluded that each criminal conviction, whether 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.

Id.

         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. AR 1127. 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.” Id.

         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. AR 3004-13. OHA found that the criminal convictions were enough 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, ” AR 3006, and found that in addition to the acts for which the Hammonds were found guilty, there was “also substantial evidence of other instances of the Hammonds setting fires which resulted in violations of 43 C.F.R. § 4140.1(b)(3).” AR 3010. OHA noted that the Hammonds did not dispute these other instances of starting fires, but instead merely argued that they were not convicted of such conduct. OHA determined that the other fires could be considered because “the standard of proof in a criminal case is much higher than the simple preponderance of the evidence standard applicable to the case on the merits in this proceeding.” AR 3011.

         OHA evaluated HRI's substantial compliance, using a test set forth in the 1995 final rule and later articulated by the Interior Board of Land Appeals (“IBLA”), which the Court will refer to for ease of reference as the “IBLA Test.” The IBLA Test instructs the adjudicator to consider: (1) the number of prior incidents of noncompliance; (2) the nature and seriousness of any noncompliance; and (3) the ultimate aim of BLM in permit renewal-to wit, to use the record of performance to confirm the ability of the permittee to be a good steward of the public land and thus protect the land from destruction or unnecessary injury and provide for orderly use, improvement, and development of resources. AR 3011. OHA concluded that the Hammonds' “pattern of starting fires that damage vegetation on public lands and endangers lives is sufficiently serious to warrant permit non-renewal. . . . It is also sufficiently serious to eliminate HRI's right to first priority for a new permit pursuant to 43 C.F.R. § 4130.2(e)(2).” AR 3012. OHA determined that HRI did not have a sufficient likelihood of success on appeal, considering whether HRI “raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.” AR 3008. OHA denied HRI's request for a stay.

         HRI appealed the stay denial to the IBLA. On November 23, 2016, the IBLA affirmed the denial of the stay. AR 2990-96. The IBLA held that the OHA correctly relied on the conduct for which the Hammonds were convicted in the criminal trial to conclude that HRI had not substantially complied with the terms of the 2004 permit and the underlying regulations. AR 2994. HRI also challenged OHA's reliance on the other instances of setting fires, for which the Hammonds were not convicted, and OHA's reliance on that conduct based on a preponderance of the evidence standard. The IBLA concluded: “We see no error in law or fact in Judge Sweitzer's determination. We are not persuaded that the Hammonds' acquittal with respect to ...


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