On September 1, 2010, the Ninth Circuit Court of Appeal held in Western Watersheds Project v. Kraayenbrink (Sept. 1, 2010, No. 08-35359) that the U.S. Bureau of Land Management violated the National Environmental Policy Act and the Endangered Species Act when it adopted amendments to its grazing regulations. The court also held the district court erred in failing to consider plaintiffs’ claim based on the Federal Land Policy and Management Act (FLPMA) under the framework established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron).

On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM’s grazing regulations and issued a Record of Decision. In March 2006, the BLM had issued a Final Environmental Impact Statement in connection with the proposed amendments. In the Final Rule, the BLM concluded the regulations would have no effect on endangered or threatened species or their critical habitat. For this reason, the BLM did not consult with the U.S. Fish and Wildlife Service.

The stated purpose of the proposed amendments was to improve the working relationships with ranchers to protect the health of rangelands and to increase the effectiveness of the BLM grazing management program. The proposed amendments, however, also would decrease public involvement and oversight in federal grazing management, allow the BLM additional time to take corrective action for violations of BLM standards and guidance, put new limitations on the BLM’s enforcement powers, and cede ownership rights to permanent rangeland and structures and water from the United States to private ranchers.

Plaintiffs, a non-profit conservation group advocating science-based management and conservation of BLM’s public land, filed suit, challenged the proposed amendments as violating NEPA, the ESA, and FLPMA. Two organizations representing ranchers, the Public Lands Council and the American Farm Bureau Federation, intervened on behalf of the BLM. In June 2007, the district court enjoined enforcement of the proposed amendments. The BLM and the intervenors separately appealed. The BLM subsequently dismissed its appeal, while the intervenors maintained their appeal. In addition to the substantive claims, both parties challenge the other’s standing on appeal.

Before addressing plaintiffs’ substantive claims, the court addressed the standing issues. The court concluded the plaintiffs had established standing. The proposed amendments posed an imminent harm to plaintiffs’ members’ aesthetic enjoyment of the rangeland and their involvement in public land grazing management. The plaintiffs’ NEPA and FLPMA claims also fell within the statutes’ respective zones of interest—a requirement for suits brought under the APA for a violation of NEPA or FLPMA—because they had a direct interest in seeing the BLM consider the environmental consequences of its actions. The court also concluded the intervenors had established standing under Article III of the U.S. Constitution because the individual members of the intervenor organizations would have standing to pursue the appeal in their own right as each member suffered a concrete injury related to their individual agreements with the BLM, among other reasons. The court also held the dispute over the regulations at issue in this case was ripe for review.

The plaintiffs first argued the BLM violated NEPA by failing to take the required “hard look” at the environmental consequences of the regulations. NEPA establishes “action-forcing” procedures that require agencies considering major federal actions to provide a full and fair discussion in an EIS of the significant environmental impacts of the proposed action. Here, the court agreed with the plaintiffs, concluding the BLM failed to consider “objectively and in good faith” the concerns raised by its own experts, FWS, EPA, and state agencies. The court also concluded the Final EIS downplayed the environmental impacts of the regulations. Significantly, the BLM’s experts concluded, among other things, that the reduction in public oversight proposed by the amendments would give ranchers greater access to the BLM’s decision-making process at the expense of advocates for wildlife resources, resulting in long-term adverse impacts to wildlife. The proposed regulations would essentially shut out non-rancher members of the public from BLM’s decision-making process. The court also found the BLM failed to address concerns by the FWS and state agencies that the regulations would weaken the ability to manage rangelands in a timely fashion and that the Final EIS failed to address consequences of privatizing water rights on public land. The court further held the BLM failed to consider the combined effects of the proposed amendments and that the Final EIS gave no reasoned explanation for the BLM’s change in policy from the prior regulations before decreasing its regulatory authority as well as public participation. In short, the court found the changes were “discordant with the lessons learned from the history of rangeland management in the west, which has been moving towards multiple use management and increased public participation.”

The plaintiffs next argued the BLM violated the ESA by failing to consult with FWS before approving the regulations. The court agreed with the plaintiffs, holding the BLM’s no effect finding and failure to consult with FWS were arbitrary and capricious in violation of the ESA. The court noted that the minimum threshold for an agency action to trigger consultation with the FWS was low. With that in mind, the court questioned the BLM’s conclusion that the regulations, which would affect approximately 160 million acres of public lands in the West, would not affect so much as one of the 300 special status species identified in the Final EIS. The court found it significant that the FWS, an agency that is tasked with protecting endangered species, concluded the regulations would affect special status species and their habitats. The court also based its conclusion on the declarations of the BLM’s own scientists who advised that an ESA section 7 consultation was necessary.

In the plaintiffs’ final claim, they alleged the BLM violated the mandate of the FLPMA in approving the regulations. The FLPMA requires the BLM to provide avenues for public input in the planning and management of public lands. In response to the plaintiffs’ contention, the intervenors argued that it is not clear whether the BLM’s proposed amendments were in direct and unreasonable disregard of the FLPMA’s mandate when it approved the amendments. The intervenors argued the regulations did not eliminate public participation, but that they merely changed the circumstances of public participation. Thus, the intervenors argued, the district court was required to afford the deference established in Chevron to the BLM’s interpretation of its authority and obligations under the FLPMA as expressed in the proposed amendments.

Under Chevron, where a statute is ambiguous, and where Congress has not directly spoken on the matter at issue, the court must determine whether the agency’s interpretation of the statute is permissible. Here, the court concluded that the district court failed to apply the principles in Chevron to answer whether the limitation of public participation in the proposed amendments was in disregard of the FLPMA, or alternatively, whether the FLPMA’s public participation requirement was ambiguous and the BLM’s interpretation reasonable. With regard to these questions, the court of appeal remanded the FLPMA claim to the district court for further consideration.