A federal appeals court has
barred the Bureau of Land Management from pushing through Bush-era
changes in how the government oversees grazing on 160 million acres of
public lands throughout the West, including nearly 12 million acres in
Arizona.
In a strongly worded decision, a three-judge panel said there is
"resounding evidence" that some of the changes in grazing regulations
may affect species that are listed as endangered or harm their habitat.
Yet the BLM concluded there would be no impact.
The judges also said that the regulations, proposed in 2006,
"significantly reduce public oversight of grazing on public land." And
Judge Richard Paez, writing for the court, said that fact was pointed
out to the BLM by various other agencies, including the Arizona Game and
Fish Department, all of which said that reduced oversight would have
negative environmental consequences.
"The BLM failed to address concerns raised by its own experts," Paez
wrote, as well as those from the federal Fish and Wildlife Service, the
Environmental Protection Agency and various state agencies, the judge
wrote.
For example, Paez said, in pushing ahead with the rules, BLM offered
no reasoned analysis for its conclusion - contradicted by those other
agencies - that there would be no environmental effect caused by both
across-the-board reductions in public involvement in management of
grazing on public lands and the total elimination of public input into
certain management decisions.
The judge also said BLM never seriously considered the concerns of
others that the 2006 rules would weaken the ability of the agency to
manage rangelands in a timely fashion.
And Paez said the final environmental impact statement doesn't
address the consequences of increased construction and private water
rights on public lands "despite concerns expressed by its own expert
scientists."
Paez also found fault with the effort by the EPA to delay any
reductions in grazing under the claim that it could lead to better
relations with ranchers.
"While diplomacy with permittees or lessees of public rangelands is
certainly a worthy goal, it is no substitute for the BLM's obligations
to comply with the National Environmental Policy Act and to conduct a
studied review and response to concerns about the environmental
implications of major agency action," the judge wrote.
He also said it appears that while BLM met the legal requirement of
putting out its proposed rules for comment, the agency all but ignored
the responses it got, making the whole exercise "form over substance."
But Roderick Walston, who represents the Public Lands Council, made
up of ranchers who graze their cattle on public lands, said the judges
got it wrong. He intends to ask the full appellate court to review the
decision of its three-judge panel.
He said the courts should have thrown out the lawsuit when it was first filed by various environmental groups.
"You don't have standing to sue under the Constitution unless you can
show how the regulations cause some concrete and particularized injury
to you," Walston said. In this case, he said, these were only proposed
regulations, meaning the challengers could not show the necessary harm.
Walston also disputed the judges' conclusion that the environmental
impact statement was not very well done and ignored key facts. He said
there was extensive discussion of all the environmental effects of the
proposed rule change.
One thing that may work against Walston and his client is that the
BLM itself, after losing the case at the trial-court level, decided it
was not interested in appealing the case. That has left the Public Lands
Council and its allies at the American Farm Bureau Federation trying to
convince the courts that what the BLM tried to get approved was correct
in the first place.
"We'd always rather have the federal government in the case with us,"
Walston said. "But that does not affect our ability to go forward."
The case is Western Watersheds Project v. Kraayenbrink 08-35359.
