A federal judge in the United States District Court for the District of Idaho issued a decision last Wednesday preventing the Bureau of Land Management (“BLM”) from implementing the 2019 Sage-Grouse Plan Amendments (“2019 Amendments”). The injunction issued in Western Watersheds Project v. Schneider, No. 1:16-cv-83-BLW (D. Idaho Oct. 16, 2019) prevents the 2019 Amendments from going into effect while the underlying litigation over whether the 2019 Amendments violated the National Environmental Policy Act (“NEPA”) is on-going. While the injunction is in place, the 2015 Sage-Grouse Plan (“2015 Plan”) will remain in effect.

The sage grouse is a rangeland bird found in sagebrush biomes across the West. Considered an indicator of habitat health, how to best manage sage grouse habitat has been a topic of debate for over ten years. As the court noted, the path to the drafting of the 2019 Amendments began in 2005 when the Fish and Wildlife Service (“FWS”) determined that despite declines in populations, listing the sage grouse under the Endangered Species Act (“ESA”) was not warranted. A judicial review of that determination resulted in a 2010 decision from FWS that while listing the sage grouse was warranted, it was precluded from listing by other species whose listing took precedence. In making that determination, FWS highlighted the inadequacy of federal land use plans to protect sage grouse. That conclusion from FWS prompted BLM, the United States Forest Service (“USFS”), and several states to craft and implement protections for the sage grouse in an effort to avoid future ESA listing. BLM and USFS worked with a team of sage grouse experts to draft and adopt the 2015 Plan which ultimately covered ten Western states and modified 98 land use plans. The 2015 Plan “established new sage-grouse priority habitat designations with heightened management protections” and minimized the amount of oil and gas drilling that would take place within sage grouse habitat. Following the implementation of the 2015 Plan, FWS determined that it would not list the sage grouse under the ESA, concluding that the protections for sage grouse in the 2015 Plan were such that granting the sage grouse ESA protections had become unnecessary.

In 2017, then-Interior Secretary Zinke ordered a review of the 2015 Plan and for recommendations on how to modify the plan to increase state involvement in sage grouse conservation. That review resulted in six different Environmental Impact Statements (“EIS”) and proposed amendments to revise the 2015 Plan in Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon. After a 90-day public comment period, BLM issued six Final EISs in 2018 along with six Records of Decisions (“ROD”) to amend the 2015 Plan, which BLM announced were effective immediately.

Although Western Watersheds Project v. Schneider was initially brought to challenge the 2015 Plan, after the announcement and implementation of the 2019 Amendments, the plaintiffs adjusted their complaint to challenge the 2019 Amendments instead. The plaintiffs argue that the 2019 Amendments violate NEPA by “(1) failing to take a range-wide analysis, (2) failing to evaluate climate change impacts, and (3) generally removing protections for the sage grouse that were unjustified by science or conditions on the ground.” Western Watersheds Project. In order to prevent the 2019 Amendments from being implemented while the underlying litigation over whether they violated NEPA was on-going, the plaintiffs had to show to the court that they were likely to succeed on the merits on their claim, would suffer irreparable harm without an injunction, and that the plaintiff would suffer more hardships if the 2019 Amendments took effect than the federal defendants would suffer if an injunction was issued. By granting the preliminary injunction, the court found that the plaintiffs satisfied all the required elements. Importantly, the court felt that the plaintiffs had shown that they were likely to succeed on their claims that the 2019 Amendments violated NEPA by demonstrating that BLM had made substantial reductions in protections from the sage grouse without providing scientific justification for doing so, and by failing to consider either reasonable alternatives to the proposed plan or the cumulative impacts of the proposed plan as required by NEPA.

With the 2019 Amendments enjoined from being implemented, the 2015 Plan has been reinstated. The 2019 Amendments would have reduced the amount of designated “sagebrush focal areas,” the habitat considered most essential for sage grouse conservation and subject to the greatest restrictions under the 2015 Plan, were reduced within all six RODs, and the documents for Colorado, Idaho, Utah, and Wyoming open up more land for oil and gas development within priority habitat areas. The 2019 Amendments would have also removed many of the restrictions to livestock grazing put in place by the 2015 Plan. All six of the RODs for the 2019 Amendments would either have eliminated or made optional the 7-inch grass height objective which required that grazing permit holders maintain a 7-inch grass height to provide protective covering for sage grouse. Additionally, the 2019 Amendments would have lifted the ban on grazing in “research natural areas” in the state of Oregon which had been established in the 2015 Plan in order to conduct research on how sage grouse populations fared without any grazing. With the injunction barring the 2019 Amendments from taking effect, the 2015 Plan restrictions remain in place.

As of today, BLM has not made an announcement about whether or not it will appeal the injunction. If the injunction is not appealed, it will remain in effect until the court makes a decision on whether the 2019 Amendments violated NEPA. If the court determines that the 2019 Amendments do violate NEPA, then the amendments will not be enforceable as a result of the ruling, and the preliminary injunction will no longer be necessary. However, if the court ultimately decides that the 2019 Amendments do not violate NEPA, then they will be reinstated with full effect.

 

To read the full decision and order in Western Watersheds Project v. Schneider click here.

To read the EISs and RODs for the 2019 Amendments click here.

To read more about NEPA and other environmental laws affecting agriculture click here.