JUDITH M. BRAWER (ISB # 6582)
WILLIAM M. EDDIE (ISB# 5800)
Advocates for the West
P.O. Box 1612
Boise, ID 83701
(208) 342-7024
(208) 342-8286 (fax)
Attorneys for Plaintiff Western Watersheds Project
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT, ) Case No. ______
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Plaintiff, )
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vs. ) Complaint
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RENEE SNYDER, Field Manager, Challis )
Field Office, Bureau of Land Management, )
And BUREAU OF LAND MANAGEMENT )
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Defendants. )
______)
INTRODUCTION
1. This action seeks judicial relief ordering Defendants Bureau of Land Management et al. (“BLM”) to comply with the requirements of law in their management of livestock grazing on the Burnt Creek allotment, located within BLM’s Challis Resource Area and the Salmon River basin of East-Central Idaho. The scenic Burnt Creek allotment is home to important spawning habitat for threatened bull trout, is wholly within the Burnt Creek Wilderness Study Area, and is determined by the BLM itself as having the highest level of scenic resource quality. Despite these irreplaceable resources, the Burnt Creek allotment is being degraded through BLM’s administration of livestock grazing on the allotment.
2. Specifically, Defendants are violating the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”) and its implementing regulations, 40 C.F.R. §1500 et seq., by issuing grazing permits and making grazing management decisions without adhering to NEPA’s environmental analysis or public participation requirements; and the Federal Land Policy Management Act, 43 U.S.C.A. § 1701 et seq. (“FLPMA”), and its implementing regulations, 43 C.F.R. § 4100 et seq., by authorizing livestock grazing on the Burnt Creek allotment in violation of the Challis Resource Management Plan’s standards and guidelines.
3. Plaintiff, Western Watersheds Project, thus seeks declaratory and injunctive relief, as prayed for below, in order to correct these violations of law while protecting the ecological values of the Burnt Creek area from the adverse effects of livestock grazing.
JURISDICTION AND VENUE
4. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action arises under the laws of the United States, including NEPA, FLPMA, the Equal Access to Justice Act, and the Declaratory Relief Act, 28 U.S.C. §§ 2201-2202. An actual, justiciable controversy now exists between Plaintiff and Defendants, and the requested relief is therefore proper under 28 U.S.C. §§ 2201-2202 and 5 U.S.C. § 701-06.
5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because all or a substantial part of the events or omissions giving rise to the claims herein occurred within Custer county within this judicial district, Defendants reside or do business in said county within this district, and BLM’s Challis Field Office and the public lands and resources in question are located in said county within this district.
6. The federal government has waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.
PARTIES
7. Plaintiff WESTERN WATERSHEDS PROJECT (“WWP”) is an Idaho non-profit membership organization dedicated to protecting and conserving the public lands and natural resources of watersheds in the American West. WWP has over 1,200 members, including many members who live in Idaho. WWP, as an organization and on behalf of its members, is active in seeking to protect and improve the riparian areas, water quality, fisheries, wildlife, and other natural resources and ecological values of western watersheds. WWP and its members actively participate in agency proceedings concerning the Burnt Creek allotment and BLM’s management of livestock grazing throughout the Challis Resource Area, as well as other parts of the Upper Salmon basin and central Idaho.
8. Indeed, WWP has a Central Idaho Project, based at the Greenfire Preserve on the East Fork Salmon River (near Challis, Idaho), through which WWP is actively engaged in land restoration, public education and outreach, and advocacy efforts addressing both (a) the adverse effects of livestock grazing upon the public lands and waters, and associated natural resource values of the area; and (b) how grazing exclusion or better management can improve areas degraded by past livestock grazing.
9. Plaintiff’s staff, members and supporters use and enjoy the waters, public lands, and natural resources of the Challis Resource Area, and the Burnt Creek allotment in particular, for many health, recreational, scientific, spiritual, educational, aesthetic, and other purposes. They enjoy fishing, hiking, camping, hunting, birdwatching, study, contemplation, photography, and other activities in and around the waters of the Burnt Creek allotment. WWP, its staff and members also participate in information gathering and dissemination, education and public outreach, commenting upon proposed agency actions, litigation, and other activities relating to BLM’s management and administration of the Burnt Creek allotment.
10. WWP staff have developed detailed reports concerning livestock trespass in the Burnt Creek exclosure, the poor condition of the Burnt Creek exclosure fencing and the overall poor ecological condition of the Burnt Creek allotment, including the tributary streams. WWP provided these reports to the BLM, Challis Resource Area, as well as other federal administrative agencies such as the U.S. Fish and Wildlife Service. These reports are part of a series of communications WWP has sent to the BLM and other federal agencies documenting their findings regarding the management situation on the Burnt Creek allotment since the 2000 grazing season.
11. Plaintiff’s interests in the Burnt Creek allotment are directly affected by Defendants’ failure or refusal to comply with federal laws and regulations in authorizing grazing on the Burnt Creek allotment. The interests of WWP, its staff and members have been and will continue to be injured and harmed by Defendants’ actions and/or inactions as complained of herein. These actions/inactions include the authorization of continued grazing on the Burnt Creek allotment in violation of natural resource protection laws such as NEPA and FLPMA. Unless the relief prayed for herein is granted, WWP and its members will continue to suffer on-going and irreparable harm and injury to their interests.
12. Defendant RENEE SNYDER is sued solely in her official capacity as Field Manager of the BLM’s Challis Field Office, in which the Burnt Creek allotment is located. Ms. Snyder is the BLM official responsible for issuance of the Burnt Creek allotment Change in Season of Use and Kind of Livestock Environmental Assessment and September 2002 Full Force and Effect Final Decision approving same, as alleged hereinafter below, and has principal authority for the actions and inactions alleged herein.
13. Defendant BUREAU OF LAND MANAGEMENT (“BLM”) is an agency or instrumentality of the United States, and is charged with managing the public lands and resources of the Burnt Creek allotment in accordance and compliance with federal laws and regulations.
STATEMENT OF FACTS
14. The 4,884 acre Burnt Creek allotment is located within the upper Pahsimeroi River watershed and is managed by the BLM’s Challis Field Office. Within the allotment, the only perennial stream is Burnt Creek, which is habitat, including spawning habitat, for the bull trout (Salvelinus confluentus). Bull trout is listed as “threatened” under the Endangered Species Act. See 63 Fed. Reg. 31,647 (June 10, 1998). A tributary of the Pahsimeroi River, Burnt Creek was recently included in the draft Critical Habitat designation for bull trout issued by the U.S. Fish and Wildlife Service (“FWS”). The Burnt Creek allotment is also important habitat for bighorn sheep, sage grouse and elk.
15. The Burnt Creek Wilderness Study Area is part of a larger, spectacular wilderness landscape and shares a 7.5 mile border with the 116,000 acre Borah Peak roadless area which has been recommended as suitable for Wilderness by the U.S. Forest Service. According to BLM’s Idaho Wilderness Study Report, “The primitive nature of the recommended area adds a spectacular example of sagebrush- and grass-covered hills with pockets of timber giving way to awesome rugged mountains rising into the adjacent RARE II Area. Both areas are dominated by the 12,655-foot Borah Peak, the highest point in Idaho.”
Legal Background
NEPA
16. NEPA is our national charter for protection of the environment. 43 U.S.C. § 4321 et seq; 40 C.F.R. §1500.1(a). Compliance with NEPA ensures that the BLM will carefully consider the environmental impacts of its actions and that this information will be made available to the public, before such actions occur. See 40 C.F.R. § 1501.2. NEPA obligates all federal agencies to undertake a thorough description and analysis of the environmental consequences of proposed federal actions, such as issuing livestock grazing permits. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501 et seq..
17. NEPA also requires federal agencies, including BLM, to “[r]igorously explore and objectively evaluate all reasonable alternatives” to the proposed action, including a “no action” alternative. 42 U.S.C. § 4332; 40 CFR § 1502.14(a). Agencies must apply NEPA’s environmental analysis and public participation procedures early in the planning process to, among other things, [s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources….” 42 U.S.C. §4332(E); 40 C.F.R. §1501.2.
FLPMA
18. FLPMA is the “organic act” for management of the public lands under BLM’s administration. Under FLPMA, BLM must develop land use plans, called Resource Management Plans, for the public lands under its control. See 43 U.S.C. § 1712. FLPMA further requires BLM to manage public lands, specifically including grazing lands, consistent with the standards, goals and objectives in the Management Plan. 43 U.S.C. § 1732(a); 43 C.F.R. § 4100.0-8. BLM “shall take appropriate measures . . . to make operations and activities under existing permits, contracts, cooperative agreements or other instruments for occupancy and use, conform to the approved [land use] plan . . . .” See 43 C.F.R. § 1610.5-3(b).
19. FLPMA also provides for BLM’s review and protection of select areas for future Wilderness designation. 43 U.S.C. §1782. During the period of review of such areas, called Wilderness Study Areas, and until they are either designated as Wilderness or removed from Wilderness consideration, FLPMA requires BLM to manage these Areas:
[I]n a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976: Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection.
43 U.S.C. §1782(c).
20. Pursuant to these requirements, BLM developed an interim policy for the management and protection of Wilderness Study Areas. BLM Manual H-8550-1 – Interim Management Policy for Lands Under Wilderness Review (1995). This Interim Policy specifies that the “preservation of wilderness values within a WSA is paramount and should be the primary consideration when evaluating any proposed action or use that may conflict with or be adverse to those wilderness values.” BLM Manual, H-8550-1(B).
21. While livestock grazing is considered a “grandfathered” use in Wilderness Study Areas, the Interim Policy specifically provides that changes to the grazing system such as change in numbers, kind, or class of livestock, or season of use, expanding the area authorized for grazing, or new facilities are not “existing” uses, and are therefore not “grandfathered.” BLM Manual H-8550-1(B)(8)(b).
Factual Background
22. Pursuant to FLPMA, 43 U.S.C. § 1712, in 1999 BLM’s Challis Field Office finalized and issued a new Resource Management Plan to govern management of public lands within the Challis Resource Area. The Challis Resource Area Management Plan contains resource condition objectives, land use allocations and other standards and guidelines for management of the Challis Resource Area, including livestock grazing on the Burnt Creek allotment, and protection of Wilderness Study Areas and Visual Resource Management Areas.
23. The Management Plan defines a Wilderness Study Area as a “roadless area that has been inventoried and found to have wilderness characteristics, having few human developments and providing opportunities for solitude and primitive recreation, as described in Section 603 of FLPMA and Section 2(c) of the Wilderness Act of 1964.” Challis Management Plan, p. 166.
24. All Wilderness Study Areas managed by the Challis Field Office have been studied by BLM and determined to be either suitable or non-suitable for inclusion into the National Wilderness Preservation System. BLM determined that 8,300 acres of the Burnt Creek Wilderness Study Area are suitable for inclusion in the Wilderness Preservation System, and 16,680 acres are unsuitable. The Burnt Creek allotment encompasses both suitable and unsuitable portions of the Burnt Creek Wilderness Study Area.
25. The Challis Resource Management Plan specifically requires Wilderness Study Areas to be managed according to BLM’s Interim Management Policy for Lands Under Wilderness Review until they are either added to the Wilderness Preservation System or released from Wilderness review. Because the entire Burnt Creek Wilderness Study Area is still under consideration for Wilderness designation, it must be managed pursuant to this Interim Policy.
26. In the Management Plan, BLM classifies the entire area of the Burnt Creek Wilderness Study Area, including the Burnt Creek allotment, as a “Class I” Visual Resource Management Area. Pursuant to the Management Plan, BLM must manage such areas to “[M]aintain a landscape setting that appears unaltered by humans. Natural ecological changes and very limited management activity are allowed. Any contrast created within the characteristic landscape must not attract attention.” Challis Resource Management Plan, p. 163.
27. The Management Plan also includes requirements for managing grazing throughout the Challis Resource Area, including the Burnt Creek allotment. One of the grazing management standards in the Management Plan pertains to the maintenance of range improvements. A range improvement is “a structure, excavation, treatment, or development to rehabilitate, protect, or improve range conditions on public lands.” Challis Resource Management Plan, p. 158.
28. The Management Plan specifically requires the BLM to “continue to require permittees to maintain range improvements (to current BLM standards) that are under cooperative agreement or permit. Livestock would not be allowed in a pasture until the range improvements under cooperative agreement or permit are functional and properly maintained. The BLM would continue to maintain exclosures as needed.” Challis Resource Management Plan, p. 40.