To say that El Paso Western Pipeline Group President Jim Cleary was met with an unfriendly welcome at the Idaho Capitol Wednesday might be an understatement.
Cleary, whose entity is building the Ruby gas pipeline that will run underground from southwestern Wyoming to northwestern Nevada, stood before lawmakers Wednesday to discuss his company’s agreement with the Western Watersheds Project (WWP), an environmental group characterized as “domestic terrorists” by Rep. Judy Boyle, R-Midvale.
The agreement – a settlement of a lawsuit WWP filed over the construction project – forces El Paso to pay $15 million through a 10-year time span to the Sagebrush Habitat Conservation Fund. The fund is intended to be used solely conservation efforts, but several lawmakers on the House and Senate resource committees inferred that the money and the partnership are being used to force ranchers out of business by buying up federal grazing permits.
The intriguing thing is that the project doesn’t even touch Idaho soil; it runs through northern Utah. The settlement allows for the fund to conduct conservation activities in the five southern Idaho counties because they are adjacent to counties where pipeline construction is taking place.
It is also interesting that – as noted by Rep. JoAn Wood, R-Rigby, – El Paso is already required to restore the disturbed lands once construction is completed. Wood questioned the need for the conservation fund if mitigation is already taking place in affected areas. Cleary said that WWP was concerned with animals and plants that inhabit the area might be adversely affected by construction and that the fund will help soften the blow to native species.
The fund is prohibited from using litigation – or threats of it – to engage in conservation efforts, but lawmakers are skeptical there isn’t some tag-teaming going on between WWP and the fund over grazing permits.
On its website, WWP boasts that it holds 4,000 acres of Idaho land previously used for cattle grazing and that it is now using the property for conservation efforts. The group also brags about its past litigation in order to move toward improved ecological stewardship over public lands.
Ranchers holding federal and state grazing permits must renew them every 10 years and can be bid against by willing buyers at that time. The fund itself is not allowed to bid on leases, but WWP can – and does – bid for the leases in order to retire them permanently. The group feels it is in the best interest of the environment to end unsuitable land practices.
Ranchers can also sell leases at any time during the 10-year period if another party is interested in the land.
The fund can only buy permits from ranchers who want to sell, but Sen. Bert Brackett, R-Twin Falls, contends that WWP is attempting to intimidate ranchers to force the sale of leases to the fund. “This is just another tack they are taking,” said Brackett, adding that he has a letter from an Arizona rancher who has dealt with WWP and has been threatened with litigation over his grazing permit. “That’s how you get a willing seller,” he explained. “This is not much different than that.”
During the hearing, Brackett fired away at Cleary, saying that allowing the fund to buy up grazing leases is devastating to local economies. “It destroys the tax base,” he said.
Cleary, on the defense all afternoon, said that’s not the purpose of the deal. “It is certainly not the intent to impair communities or their tax bases,” Cleary explained. He noted that only willing buyers sell grazing leases and that the fund itself has no way of putting pressure ranchers to give up their grazing rights.
Rep. Scott Bedke, R-Oakely, was one of the most outspoken critics of Leary, El Paso, and the $15 million fund. Bedke said that the by working out a deal with WWP, El Paso sacrificed the interests of Idaho. “You got yours and we didn’t get ours here,” said Bedke. “You had the ability to cut your deal and the rest of us were left to twist here.”
Sen. Jeff Siddoway, R-Terreton, echoed Bedke’s sentiments. “That land is completely out of production now,” said Siddoway.
Rep. Lenore Hardy Barrett, R-Challis, didn’t mince words when it came her turn to speak. “You dodged a bullet, but you funded the firing squad that’s coming for the rest of us,” said Barrett, saying that El Paso got everything it wanted from the deal.
But Cleary stayed firm, contending that no one has forced ranchers to sell leases. “There are people who have their own reasons for doing transactions,” he explained, adding that ranchers often sell leases in order to fund retirements or to generate funds to re-tool other ranching operations.
Thursday, March 24, 2011
Tuesday, March 22, 2011
Salazar renews debate over wild lands
When Interior Secretary Ken Salazar ordered the Bureau of Land Management to begin looking for wild lands in the West, he set up a new chapter in an old confrontation.
Conservation and environmental organizations in Colorado saw an opportunity to take a step toward long-sought goals of having land across the state — most of them in northwest Colorado — and in neighboring Utah set aside for preservation of wilderness characteristics.
Others, however, saw the inventory of wild lands as a threat to the energy and other industries.
The order by Salazar, a former Colorado senator and onetime head of the state’s Department of Natural Resources, was innocuous, said Kurt Kunkle, wilderness coordinator for the Colorado Environmental Coalition.
Salazar’s Secretarial Order 3310 was merely aimed at complying with federal law, the Federal Lands Policy Management Act, which calls for a inventory of such lands.
“It’s not a land grab,” Kunkle said. “I’m kind of surprised by all the hubbub around wild-lands policy.”
Salazar’s order reinstated long-standing BLM authority that was reversed during the George W. Bush administration, Kunkle said.
That’s not to say, however, that Kunkle’s organization and others want the land only to be inventoried.
“We still would like to look at a map and see wilderness one day,” Kunkle said.
Talk about doing that, however, already is having the unwelcome effect of further depressing an already stressed economy in the northwest part of the state, U.S. Rep. Scott Tipton, R-Colo., said.
The starting point for the wild-lands discussion in western Colorado are proposals set out in 2006 by the Southern Rockies Conservation Alliance, which outlines 60 proposed wilderness areas, and a majority of them, 37, are in northwest Colorado. The areas were offered as wilderness proposals by residents.
Tipton’s district affected
Conservation and environmental organizations see Salazar’s order as a return to the original idea of land management in the West.
Tipton says the Interior Department “overreached its authority, moving into the powers granted to Congress.”
“We need input first, rather than after the fact,” Tipton said.
Tipton’s 3rd Congressional District, which he wrested from Salazar’s brother John in November, includes most of the Western Slope. It is potentially the most heavily affected in Colorado by the wild-lands proposal.
Many of the proposed northwest Colorado areas are where the oil and gas industry is active or holds leases, including the Roan Plateau in Garfield County and Vermillion Basin in Moffat County.
Salazar’s order calls on the BLM to protect lands with wilderness characteristics by avoiding “impairment” of those lands “unless the BLM determines that impairment of wilderness characteristics is appropriate and consistent” with existing law and other considerations.
The order requires that wild lands be recognized as a part of the development of resource-management plans, which guide the management of bureau districts for 20 years.
It’s in the drafting of those plans that the public will have the opportunity to be deeply involved in the wild-lands discussion, Interior Department officials say.
Uintah County, Utah, Commissioner Mike McKee said he fears that Interior Department officials in Washington, D.C., would be able to supersede local and state bureau officials and play too great a role in determining whether lands have wilderness characteristics that need to be protected from development.
The secretarial order wipes out work already done in many parts of the West and lets environmental organizations take another shot at establishing wild lands after decisions have been reached, McKee said.
“So, it’s a continual moving ball,” he said.
Drilling, employment
The wild-lands proposal also stands to hinder efforts to develop domestic energy resources, Tipton said.
“The West is mineral rich, and there are those of us who believe there can be a win-win” with energy and environmental concerns, Tipton said.
Industry already has a big lead in that department, environmental organizations said, pointing to statistics showing that one acre of BLM land is set aside as wilderness for every 42 acres leased by oil and gas corporations. More than 64 percent of lease acres remain to be drilled, according to checksandbalancesproject.org, which criticizes leasing as “simply a land grab on the part of fossil fuels corporations.”
Restrictions on drilling and rising unemployment in the West are likely connected, Tipton said.
“I don’t think you can dismiss it as a potential cause of unemployment,” Tipton said, noting the 11 percent unemployment rate in Mesa County, which three years ago was a booming energy area.
Recognition of wild lands could be beneficial to the recreation industry, which includes hunting, angling and wildlife viewing, said Suzanne O’Neill, executive director of the Colorado Wildlife Federation.
Salazar’s order put back in place a criterion for the multiple-use evaluation of BLM holdings that had been removed in 2003, O’Neill said.
“We are comfortable with it being a criterion” in deciding how to manage those lands, especially considering that wild lands could be an important part of a robust outdoor-recreation segment of the regional economy, O’Neill said. “We can have extraction, and we can have areas that are really for wildlife recreation.”
Conservation and environmental organizations in Colorado saw an opportunity to take a step toward long-sought goals of having land across the state — most of them in northwest Colorado — and in neighboring Utah set aside for preservation of wilderness characteristics.
Others, however, saw the inventory of wild lands as a threat to the energy and other industries.
The order by Salazar, a former Colorado senator and onetime head of the state’s Department of Natural Resources, was innocuous, said Kurt Kunkle, wilderness coordinator for the Colorado Environmental Coalition.
Salazar’s Secretarial Order 3310 was merely aimed at complying with federal law, the Federal Lands Policy Management Act, which calls for a inventory of such lands.
“It’s not a land grab,” Kunkle said. “I’m kind of surprised by all the hubbub around wild-lands policy.”
Salazar’s order reinstated long-standing BLM authority that was reversed during the George W. Bush administration, Kunkle said.
That’s not to say, however, that Kunkle’s organization and others want the land only to be inventoried.
“We still would like to look at a map and see wilderness one day,” Kunkle said.
Talk about doing that, however, already is having the unwelcome effect of further depressing an already stressed economy in the northwest part of the state, U.S. Rep. Scott Tipton, R-Colo., said.
The starting point for the wild-lands discussion in western Colorado are proposals set out in 2006 by the Southern Rockies Conservation Alliance, which outlines 60 proposed wilderness areas, and a majority of them, 37, are in northwest Colorado. The areas were offered as wilderness proposals by residents.
Tipton’s district affected
Conservation and environmental organizations see Salazar’s order as a return to the original idea of land management in the West.
Tipton says the Interior Department “overreached its authority, moving into the powers granted to Congress.”
“We need input first, rather than after the fact,” Tipton said.
Tipton’s 3rd Congressional District, which he wrested from Salazar’s brother John in November, includes most of the Western Slope. It is potentially the most heavily affected in Colorado by the wild-lands proposal.
Many of the proposed northwest Colorado areas are where the oil and gas industry is active or holds leases, including the Roan Plateau in Garfield County and Vermillion Basin in Moffat County.
Salazar’s order calls on the BLM to protect lands with wilderness characteristics by avoiding “impairment” of those lands “unless the BLM determines that impairment of wilderness characteristics is appropriate and consistent” with existing law and other considerations.
The order requires that wild lands be recognized as a part of the development of resource-management plans, which guide the management of bureau districts for 20 years.
It’s in the drafting of those plans that the public will have the opportunity to be deeply involved in the wild-lands discussion, Interior Department officials say.
Uintah County, Utah, Commissioner Mike McKee said he fears that Interior Department officials in Washington, D.C., would be able to supersede local and state bureau officials and play too great a role in determining whether lands have wilderness characteristics that need to be protected from development.
The secretarial order wipes out work already done in many parts of the West and lets environmental organizations take another shot at establishing wild lands after decisions have been reached, McKee said.
“So, it’s a continual moving ball,” he said.
Drilling, employment
The wild-lands proposal also stands to hinder efforts to develop domestic energy resources, Tipton said.
“The West is mineral rich, and there are those of us who believe there can be a win-win” with energy and environmental concerns, Tipton said.
Industry already has a big lead in that department, environmental organizations said, pointing to statistics showing that one acre of BLM land is set aside as wilderness for every 42 acres leased by oil and gas corporations. More than 64 percent of lease acres remain to be drilled, according to checksandbalancesproject.org, which criticizes leasing as “simply a land grab on the part of fossil fuels corporations.”
Restrictions on drilling and rising unemployment in the West are likely connected, Tipton said.
“I don’t think you can dismiss it as a potential cause of unemployment,” Tipton said, noting the 11 percent unemployment rate in Mesa County, which three years ago was a booming energy area.
Recognition of wild lands could be beneficial to the recreation industry, which includes hunting, angling and wildlife viewing, said Suzanne O’Neill, executive director of the Colorado Wildlife Federation.
Salazar’s order put back in place a criterion for the multiple-use evaluation of BLM holdings that had been removed in 2003, O’Neill said.
“We are comfortable with it being a criterion” in deciding how to manage those lands, especially considering that wild lands could be an important part of a robust outdoor-recreation segment of the regional economy, O’Neill said. “We can have extraction, and we can have areas that are really for wildlife recreation.”
Thursday, March 3, 2011
Ninth Circuit’s "federal defendant" intervention rule in NEPA cases finally meets its end: Wilderness Society v. United States Forest Service
* Latham & Watkins LLP
* Janice M. Schneider , James L. Arnone and Drew C. Ensign
* February 22 2011
Introduction
In a significant decision issued in mid-January 2011, the U.S. Court of Appeals for the Ninth Circuit (en banc) abandoned its categorical rule that a party may not intervene of right in the merits of a National Environmental Policy Act (NEPA) case. In doing so, the court overturned its decades-old rule that had severely limited and often prevented holders and beneficiaries of federally issued permits and approvals from participating as a party in the merits of lawsuits challenging the government’s compliance with NEPA. This limitation was inconsistent with the plain language of the federal intervention rules, ignored the significant investments and interests private parties have in seeking and obtaining federal authorizations for a vast array of projects, and conflicted with the Ninth Circuit’s test in favor of liberal intervention in all other cases. Most importantly, the limitation ignored the very real practical impairment that project proponents would suffer if the agency approval(s) were set aside. Project proponents now have the opportunity to demonstrate that they have the requisite interests to participate in the merits of NEPA lawsuits brought against the government, and a greater ability to assist the government in defending project approvals while protecting their own interests. All we can say is, its about time.
Intervention of Right Standard
Federal Rule of Civil Procedure 24(a) provides:
Intervention as of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by the existing parties.
From Rule 24(a), the Ninth Circuit distilled a four-part test for intervention of right:
(1) the motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.
Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993) (quotations marks and citation omitted). A interest is "protectable" if is "protected by some law." Id. (emphasis added). The Ninth Circuit further provides that "[t]he rule is construed broadly, in favor of the applicants for intervention." Id. (quotation marks omitted).1
Prior Ninth Circuit NEPA Rule
Despite taking a generally liberal view towards intervention, the Ninth Circuit adopted a unique rule for NEPA cases. In Portland Audubon Society v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989), the Ninth Circuit held that "purely economic interests" were not protectable interests that could support intervention of right in NEPA actions. The Ninth Circuit later broadened those restrictions such that "no one but the federal government can be a defendant" in NEPA actions. Sierra Club, 995 F.2d at 1485; see also Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998).
The Ninth Circuit drew these restrictions from the Seventh Circuit’s generally restrictive view towards intervention of right in all cases. The Ninth Circuit, however, did not apply this restrictive standard to any statute other than NEPA. Nor did the Ninth Circuit base this NEPA-specific approach on any statutory language in NEPA or the federal intervention rules.
The Ninth Circuit’s NEPA-specific standard conflicted with the standard of every other circuit that had reached the issue, including the Third, Fifth, Tenth and D.C. Circuits. See WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992 (10th Cir. 2009); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969-74 (3d Cir. 1998) (explaining that Ninth Circuit approach is a "wooden standard [that] minimizes the flexibility and spirit of Rule 24"); Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994); Wilderness Soc’y v. Morton, 463 F.2d 1261 (D.C. Cir. 1972).
This NEPA-specific rule produced anomalous results. For example, the holder of a federal permit was denied any ability to defend the issuance of that permit against challenge under NEPA. Recognizing this injustice, the Ninth Circuit pared back its NEPA-specific rule a bit, by permitting private parties to intervene of right in the remedies stage of NEPA litigation. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1496-97 (9th Cir. 1996). The limitations on intervention of right in the merits stage, however, was retained. Id.
Although the Ninth Circuit’s rule only applied to intervention of right,2 many district courts extended that categorical bar on intervention to permissive intervention under Rule 24(b) as well. See, e.g., Center for Food Safety v. Connor, No. 08-484, 2008 WL 3842889 (N.D.Cal. Aug 15, 2008); Center for Tribal Water Advocacy v. Gutierrez, 2007 WL 527932, *4 (D.Or. Feb. 12, 2007); Olympic Forest Coal. v. U.S. Forest Serv., No. 07-5344, 2007 WL 3374996, at *2-3 (W.D. Wash. Nov. 9, 2007).
Anarchy in the District Courts
Egged on by plaintiffs seeking to preclude participation by project proponents in other environmental litigation, many district courts in the Ninth Circuit began to extend the Ninth Circuit’s restrictions on intervention of right to other environmental statutes, over the objections of project proponents.3 Cases were broadly split, with other district courts refusing to extend the doctrine, but nonetheless driving up litigation issues and costs across a broad array of environmental statutes.4
Wilderness Society: Background
Wilderness Society began as a challenge under NEPA to a decision by the U.S. Forest Service. Specifically, two environmental groups filed suit against the adoption of a "travel plan" that allowed motorized vehicles to use some 1,196 miles of trails in Idaho’s Sawtooth National Forest. The environmental groups argued that the Forest Service’s failure to prepare an environmental impact statement (EIS) violated NEPA.
Three recreational groups, Magic Valley Trail Machine Association, Idaho Recreation Council and Blue Ribbon Coalition, Inc., sought to intervene of right to defend the validity of the Forest Service’s approval of the travel plan. Applying the Ninth Circuit’s "federal defendant" rule, the district court denied intervention of right, and then also denied permissive intervention. When the recreational groups’ motion was denied, they appealed to the Ninth Circuit.
The Ninth Circuit panel sua sponte asked the parties on July 13, 2010 to file supplemental briefs addressing "[w]hether this case should be heard en banc to decide if this court should abandon the ‘federal defendant rule,’ which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." Following those briefs, the Ninth Circuit granted en banc review on September 30.
There was an outpouring of support for abandoning the Ninth Circuit’s restrictions on intervention of right in NEPA cases. As the Ninth Circuit noted, "no fewer than thirty-seven amici — including conservation, recreation and commercial groups, state and local governments, Indian tribes, regional water authorities, and the federal government, among others — argue that we should abandon our categorical prohibition …." Wilderness Society, 2011 U.S. App. LEXIS 734, at *10-11. Notably, even the plaintiffs did not formally oppose abandonment of the "federal defendant rule," but instead merely argued that Wilderness Society presented a poor vehicle for considering the issue. (The government also argued the case did not present the issue properly.)
Wilderness Society: Holding
The Ninth Circuit squarely abandoned its restrictions on intervention of right in NEPA cases in a unanimous opinion written by Judge Silverman. Indeed, that court forthrightly admitted the many errors underlying its prior standard:
The "federal defendant" rule runs counter to all of the above standards. In applying a technical prohibition on intervention of right on the merits of all NEPA cases, it eschews practical and equitable considerations and ignores our traditionally liberal policy in favor of intervention. It also fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest "protectable under some law," and a relationship between that interest and the claims at issue. Courts should be permitted to conduct this inquiry on a case-by-case basis, rather than automatically prohibiting intervention of right on the merits in all NEPA cases.
Wilderness Society, 2011 U.S. App. LEXIS 734, at *14. The court further acknowledge that the rule conflicted with virtually every other court of appeals that had addressed the issue. Id. at *16-18.
Abandoning its prior rule, the Ninth Circuit substituted a standard under which "the operative inquiry should be, as in all cases, whether ‘the interest is protectable under some law,’ and whether ‘there is a relationship between the legally protected interest and the claims at issue.’" Id. at *5. Importantly, the court held that "[a] putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if "it will suffer a practical impairment of its interests as a result of the pending litigation." Id. at *19. The Ninth Circuit therefore vacated and remanded so that the district court could reevaluate the recreation groups’ motion under its new standard. Id. at *18-19.
Implications Going Forward
Most obviously, Wilderness Society will permit intervention of right far more broadly in NEPA actions by removing the prior categorical bar and substituting a liberal standard that favors intervention. In addition, Wilderness Society should stop and reverse the trend of district courts precluding intervention of right in suits involving other environmental statutes or denying permissive intervention categorically in NEPA suits.
Wilderness Society should therefore allow much broader participation by individuals and groups that are likely to be affected by litigation. This is critically important as in many instances this will allow parties and counsel with greater familiarity and involvement in specific projects during the regulatory compliance stage (such as development of a proposed project’s EIS) to contribute to resolving the litigation. And this in turn should lead to better judicial decision making, consistent with the purposes underlying Federal Rule of Civil Procedure 24. See County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980) (the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process).
In some instances, Wilderness Society will permit private parties to advance arguments that the government was not inclined to make. In recent litigation concerning genetically modified sugarbeets, for example, the government declined to raise a laches defense despite plaintiffs’ nearly three-year long delay in filing suit. See Center for Food Safety v. Vilsack, No. 08-484, 2009 WL 3047227, at *9 n.4 (N.D. Cal. Sept. 21, 2009). In that case, while the owner of the intellectual property and growers of the crop applied for intervention, the district court categorically denied both intervention of right and permissive intervention — allowing the permit holders to participate only as amici, who were not permitted to take discovery on or otherwise pursue the laches defense. In other instances, this may take the form of advancing different statutory or record-based arguments.
The Wilderness Society decision may also affect the tendency of district courts to bifurcate NEPA actions into merits and remedies phases. This approach paralleled the Ninth Circuit bifurcation previously recognized for intervention, which gave the intervenor a clear role in the remedy, if any, that should be applied if a NEPA violation was found. Instead, district courts may increasingly ask for briefing on both merits and potential remedies issues to be combined, although intervenors should be vigilant in pressing for a remedies phase if necessary given prevailing case law. See, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010) ("The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation"); Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1158 (9th Cir. 1988) (NEPA "does not show a congressional intent to foreclose equitable balancing by a court enforcing its requirements"); High Sierra Hikers Ass’n v. Blackwell, 381 F.3d 886, 898-99 (9th Cir. 2004) (affirming limited, "fair and balanced" NEPA injunction where district court expressly "balanced the environmental and economic concerns").5
Another major impact is that intervenors will now be able to appeal of the merits of NEPA decisions even when the government declines to file its own appeal. From a private project proponent’s perspective, this can be critically important because the result of a government decision to not appeal from an adverse decision may be years of additional NEPA review and associated significant costs. Indeed, reversing a litigation loss can mean the difference in a successful project versus an abandoned one.
This change may have other foreseeable consequences: (1) there may be a noticeable increase in the Ninth Circuit’s NEPA docket, and (2) the government’s ability to act strategically by restricting the NEPA cases it appeals to the Ninth Circuit will likely be diminished. As a result, more NEPA cases may reach the Supreme Court on the merits. Notably, two of the government’s recent victories in Supreme Court environmental cases were in cases where intervenors successfully sought Supreme Court review over the government’s opposition. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2943 (2010);6 Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009).
Now that the Ninth Circuit has abandoned the "federal defendant" rule, project proponents can expect to more significantly and directly influence NEPA and other environmental litigation in order to protect their interests.
* Janice M. Schneider , James L. Arnone and Drew C. Ensign
* February 22 2011
Introduction
In a significant decision issued in mid-January 2011, the U.S. Court of Appeals for the Ninth Circuit (en banc) abandoned its categorical rule that a party may not intervene of right in the merits of a National Environmental Policy Act (NEPA) case. In doing so, the court overturned its decades-old rule that had severely limited and often prevented holders and beneficiaries of federally issued permits and approvals from participating as a party in the merits of lawsuits challenging the government’s compliance with NEPA. This limitation was inconsistent with the plain language of the federal intervention rules, ignored the significant investments and interests private parties have in seeking and obtaining federal authorizations for a vast array of projects, and conflicted with the Ninth Circuit’s test in favor of liberal intervention in all other cases. Most importantly, the limitation ignored the very real practical impairment that project proponents would suffer if the agency approval(s) were set aside. Project proponents now have the opportunity to demonstrate that they have the requisite interests to participate in the merits of NEPA lawsuits brought against the government, and a greater ability to assist the government in defending project approvals while protecting their own interests. All we can say is, its about time.
Intervention of Right Standard
Federal Rule of Civil Procedure 24(a) provides:
Intervention as of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by the existing parties.
From Rule 24(a), the Ninth Circuit distilled a four-part test for intervention of right:
(1) the motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.
Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993) (quotations marks and citation omitted). A interest is "protectable" if is "protected by some law." Id. (emphasis added). The Ninth Circuit further provides that "[t]he rule is construed broadly, in favor of the applicants for intervention." Id. (quotation marks omitted).1
Prior Ninth Circuit NEPA Rule
Despite taking a generally liberal view towards intervention, the Ninth Circuit adopted a unique rule for NEPA cases. In Portland Audubon Society v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989), the Ninth Circuit held that "purely economic interests" were not protectable interests that could support intervention of right in NEPA actions. The Ninth Circuit later broadened those restrictions such that "no one but the federal government can be a defendant" in NEPA actions. Sierra Club, 995 F.2d at 1485; see also Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998).
The Ninth Circuit drew these restrictions from the Seventh Circuit’s generally restrictive view towards intervention of right in all cases. The Ninth Circuit, however, did not apply this restrictive standard to any statute other than NEPA. Nor did the Ninth Circuit base this NEPA-specific approach on any statutory language in NEPA or the federal intervention rules.
The Ninth Circuit’s NEPA-specific standard conflicted with the standard of every other circuit that had reached the issue, including the Third, Fifth, Tenth and D.C. Circuits. See WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992 (10th Cir. 2009); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969-74 (3d Cir. 1998) (explaining that Ninth Circuit approach is a "wooden standard [that] minimizes the flexibility and spirit of Rule 24"); Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994); Wilderness Soc’y v. Morton, 463 F.2d 1261 (D.C. Cir. 1972).
This NEPA-specific rule produced anomalous results. For example, the holder of a federal permit was denied any ability to defend the issuance of that permit against challenge under NEPA. Recognizing this injustice, the Ninth Circuit pared back its NEPA-specific rule a bit, by permitting private parties to intervene of right in the remedies stage of NEPA litigation. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1496-97 (9th Cir. 1996). The limitations on intervention of right in the merits stage, however, was retained. Id.
Although the Ninth Circuit’s rule only applied to intervention of right,2 many district courts extended that categorical bar on intervention to permissive intervention under Rule 24(b) as well. See, e.g., Center for Food Safety v. Connor, No. 08-484, 2008 WL 3842889 (N.D.Cal. Aug 15, 2008); Center for Tribal Water Advocacy v. Gutierrez, 2007 WL 527932, *4 (D.Or. Feb. 12, 2007); Olympic Forest Coal. v. U.S. Forest Serv., No. 07-5344, 2007 WL 3374996, at *2-3 (W.D. Wash. Nov. 9, 2007).
Anarchy in the District Courts
Egged on by plaintiffs seeking to preclude participation by project proponents in other environmental litigation, many district courts in the Ninth Circuit began to extend the Ninth Circuit’s restrictions on intervention of right to other environmental statutes, over the objections of project proponents.3 Cases were broadly split, with other district courts refusing to extend the doctrine, but nonetheless driving up litigation issues and costs across a broad array of environmental statutes.4
Wilderness Society: Background
Wilderness Society began as a challenge under NEPA to a decision by the U.S. Forest Service. Specifically, two environmental groups filed suit against the adoption of a "travel plan" that allowed motorized vehicles to use some 1,196 miles of trails in Idaho’s Sawtooth National Forest. The environmental groups argued that the Forest Service’s failure to prepare an environmental impact statement (EIS) violated NEPA.
Three recreational groups, Magic Valley Trail Machine Association, Idaho Recreation Council and Blue Ribbon Coalition, Inc., sought to intervene of right to defend the validity of the Forest Service’s approval of the travel plan. Applying the Ninth Circuit’s "federal defendant" rule, the district court denied intervention of right, and then also denied permissive intervention. When the recreational groups’ motion was denied, they appealed to the Ninth Circuit.
The Ninth Circuit panel sua sponte asked the parties on July 13, 2010 to file supplemental briefs addressing "[w]hether this case should be heard en banc to decide if this court should abandon the ‘federal defendant rule,’ which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." Following those briefs, the Ninth Circuit granted en banc review on September 30.
There was an outpouring of support for abandoning the Ninth Circuit’s restrictions on intervention of right in NEPA cases. As the Ninth Circuit noted, "no fewer than thirty-seven amici — including conservation, recreation and commercial groups, state and local governments, Indian tribes, regional water authorities, and the federal government, among others — argue that we should abandon our categorical prohibition …." Wilderness Society, 2011 U.S. App. LEXIS 734, at *10-11. Notably, even the plaintiffs did not formally oppose abandonment of the "federal defendant rule," but instead merely argued that Wilderness Society presented a poor vehicle for considering the issue. (The government also argued the case did not present the issue properly.)
Wilderness Society: Holding
The Ninth Circuit squarely abandoned its restrictions on intervention of right in NEPA cases in a unanimous opinion written by Judge Silverman. Indeed, that court forthrightly admitted the many errors underlying its prior standard:
The "federal defendant" rule runs counter to all of the above standards. In applying a technical prohibition on intervention of right on the merits of all NEPA cases, it eschews practical and equitable considerations and ignores our traditionally liberal policy in favor of intervention. It also fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest "protectable under some law," and a relationship between that interest and the claims at issue. Courts should be permitted to conduct this inquiry on a case-by-case basis, rather than automatically prohibiting intervention of right on the merits in all NEPA cases.
Wilderness Society, 2011 U.S. App. LEXIS 734, at *14. The court further acknowledge that the rule conflicted with virtually every other court of appeals that had addressed the issue. Id. at *16-18.
Abandoning its prior rule, the Ninth Circuit substituted a standard under which "the operative inquiry should be, as in all cases, whether ‘the interest is protectable under some law,’ and whether ‘there is a relationship between the legally protected interest and the claims at issue.’" Id. at *5. Importantly, the court held that "[a] putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if "it will suffer a practical impairment of its interests as a result of the pending litigation." Id. at *19. The Ninth Circuit therefore vacated and remanded so that the district court could reevaluate the recreation groups’ motion under its new standard. Id. at *18-19.
Implications Going Forward
Most obviously, Wilderness Society will permit intervention of right far more broadly in NEPA actions by removing the prior categorical bar and substituting a liberal standard that favors intervention. In addition, Wilderness Society should stop and reverse the trend of district courts precluding intervention of right in suits involving other environmental statutes or denying permissive intervention categorically in NEPA suits.
Wilderness Society should therefore allow much broader participation by individuals and groups that are likely to be affected by litigation. This is critically important as in many instances this will allow parties and counsel with greater familiarity and involvement in specific projects during the regulatory compliance stage (such as development of a proposed project’s EIS) to contribute to resolving the litigation. And this in turn should lead to better judicial decision making, consistent with the purposes underlying Federal Rule of Civil Procedure 24. See County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980) (the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process).
In some instances, Wilderness Society will permit private parties to advance arguments that the government was not inclined to make. In recent litigation concerning genetically modified sugarbeets, for example, the government declined to raise a laches defense despite plaintiffs’ nearly three-year long delay in filing suit. See Center for Food Safety v. Vilsack, No. 08-484, 2009 WL 3047227, at *9 n.4 (N.D. Cal. Sept. 21, 2009). In that case, while the owner of the intellectual property and growers of the crop applied for intervention, the district court categorically denied both intervention of right and permissive intervention — allowing the permit holders to participate only as amici, who were not permitted to take discovery on or otherwise pursue the laches defense. In other instances, this may take the form of advancing different statutory or record-based arguments.
The Wilderness Society decision may also affect the tendency of district courts to bifurcate NEPA actions into merits and remedies phases. This approach paralleled the Ninth Circuit bifurcation previously recognized for intervention, which gave the intervenor a clear role in the remedy, if any, that should be applied if a NEPA violation was found. Instead, district courts may increasingly ask for briefing on both merits and potential remedies issues to be combined, although intervenors should be vigilant in pressing for a remedies phase if necessary given prevailing case law. See, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010) ("The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation"); Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1158 (9th Cir. 1988) (NEPA "does not show a congressional intent to foreclose equitable balancing by a court enforcing its requirements"); High Sierra Hikers Ass’n v. Blackwell, 381 F.3d 886, 898-99 (9th Cir. 2004) (affirming limited, "fair and balanced" NEPA injunction where district court expressly "balanced the environmental and economic concerns").5
Another major impact is that intervenors will now be able to appeal of the merits of NEPA decisions even when the government declines to file its own appeal. From a private project proponent’s perspective, this can be critically important because the result of a government decision to not appeal from an adverse decision may be years of additional NEPA review and associated significant costs. Indeed, reversing a litigation loss can mean the difference in a successful project versus an abandoned one.
This change may have other foreseeable consequences: (1) there may be a noticeable increase in the Ninth Circuit’s NEPA docket, and (2) the government’s ability to act strategically by restricting the NEPA cases it appeals to the Ninth Circuit will likely be diminished. As a result, more NEPA cases may reach the Supreme Court on the merits. Notably, two of the government’s recent victories in Supreme Court environmental cases were in cases where intervenors successfully sought Supreme Court review over the government’s opposition. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2943 (2010);6 Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009).
Now that the Ninth Circuit has abandoned the "federal defendant" rule, project proponents can expect to more significantly and directly influence NEPA and other environmental litigation in order to protect their interests.
Wednesday, March 2, 2011
Future of Southwest’s Mexican Gray Wolf Uncertain
A program to reestablish the Mexican gray wolf in New Mexico and Arizona narrowly dodged a defunding proposal recently. With only 50 of the wolves living in the wild, what kind of protection will they receive?
By Bobby Magill, 3-02-11
Like many outfitters and ranchers in Catron County, New Mexico — one of the counties of the Sagebrush Rebellion of the 70s and 80s — Tom Klumker wants Mexican gray wolves out of the Gila National Forest, where the U.S. Fish and Wildlife Service has been releasing the endangered wolves into the wild since 1998.
“They’ve been successful at wiping out a bunch of livestock and hurting a bunch of ranchers,” Klumker said. “As a result, they’ve made a big difference on the livestock industry in Catron County. I don’t think we need them. The early settlers worked very hard to get rid of both the wolf and the grizzly for a very good reason.”
Klumker, based in Glenwood, N.M., is a board member of the vehemently anti-wolf Americans for the Preservation of Western Environment, or APWE, and the Southwest Director of the New Mexico Council of Outfitters and Guides, a group now part of a new Fish and Wildlife Service Mexican Gray Wolf Recovery Planning Team. The team will create a new recovery plan that may eventually lead the way to a healthy and sustainable population of Mexican wolves in New Mexico and Arizona.
Whether it’s in New Mexico or the Northern Rockies, efforts to restore native gray wolf populations must face ranchers and sportsmen worried and angry that wolves will prey on their cattle and run elk into places difficult to hunt. And, just as in Montana, whose Democratic senators have introduced a bill to remove federal Endangered Species Act protections from the gray wolf of the Northern Rockies and where Gov. Brian Schweitzer declared in February that the state will not prosecute ranchers who kill wolves that attack livestock, efforts to help the recovery of the gray wolf’s southern counterpart face numerous political challenges.
Smaller and lighter than its Northern Rockies cousin, the Mexican gray wolf is one of five subspecies of gray wolf native to North America. Today, Mexican wolves, which roam the Gila and Apache-Sitgreaves national forests in western New Mexico and eastern Arizona, are the controversial subjects of the Mexican Gray Wolf Recovery Program, which began after the species was listed as endangered in 1976.
So far, about the Fish and Wildlife Service has released about 90 wolves since 1998, according to agency data. Today, about 50 Mexican wolves exist in the wild.
Originally, the Fish and Wildlife Service’s goal was to have 100 wolves in the wild by 2006, but because of conflicts with ranchers and the broiling politics surrounding the Mexican wolf’s reintroduction, that goal has yet to be met.
“The idea is to get enough wolves out there where we can step back, get them de-listed, and they can generate their own self-sustaining population, and the states will then have management of them,” said Fish and Wildlife Service spokesman Tom Buckley.
The Mexican wolf recovery area straddles the eastern reach of the Mogollon Rim country, where the rim disappears into the remote Blue Range in Catron County, one of New Mexico’s biggest and least populated counties. The lobos’ new turf includes the rugged Gila and Aldo Leopold wilderness areas — together totaling more than 750,000 acres of wilderness broken only by a single unpaved road — and the Blue Range Wilderness and Primitive areas of New Mexico and Arizona.
The deep sense of wildness there is as legendary as the wilderness areas’ founder and namesake — Aldo Leopold, the “Sand County Almanac” author who in the 1920s demanded the U.S. Forest Service protect the Gila region as the nation’s first wilderness area 40 years before the passage of the Wilderness Act.
In those days, there were still wild Mexican wolves roaming the Gila. By the 1970s, they were nearly extinct.
The Mexican wolf was protected under the Endangered Species Act in 1976 and efforts began to reintroduce the wolf into New Mexico and Arizona not to restore balance to the ecosystem, but to simply return an endangered species to the wild as the law demands, said ReWilding Institute carnivore biologist Dave Parsons, a former Fish and Wildlife Service Mexican wolf recovery coordinator.
But the absence of the wolf since the mid-20th Century took its toll on the balance of the ecosystem, he said.
In Yellowstone National Park, the return of the gray wolf has given elk a long-absent predator, providing for healthier aspen stands and riparian vegetation and an ecosystem that supports more bird species than before, he said.
“What we’re seeing in the Gila is very similar, and the riparian vegetation is pretty well gone in a lot of places,” Parsons said.
Researchers working in Yellowstone studied the Mexican wolf reintroduction area in the Southwest and discovered a “reverse trophic cascade where the ecosystem has simplified in the absence of the wolf,” Parsons said. Once some of the wolves were returned to the wild, the health of aspen groves began to improve.
But cattle growers aren’t impressed.
Caren Cowan, executive director of the New Mexico Cattle Growers Association, said the lagging Mexican wolf numbers show the program isn’t working, especially as ranchers continue to deal with wolves killing cattle.
Officially, there were 185 confirmed cattle depredations from wolves from 1998 through 2009 in New Mexico and Arizona, said Arizona Department of Game and Fish wolf biologist Jeff Dolphin.
But the real number of depredations, Cowan said, is difficult to nail down because many ranchers fear the level of proof needed to confirm that a wolf killed a cow is so high that they don’t bother to report a suspected killing.
With the Fish and Wildlife Service’s population goals unmet as it dealt with livestock industry concern about widespread cattle depredations, the future of the recovery program remains uncertain.
In February, the program survived an attempt by U.S. Rep. Steve Pearce, R-N.M., to de-fund the program for the remainder of the 2011 fiscal year after his amendment was dropped from the continuing resolution that will fund the government for the rest of the year.
In November, a group of 13 Democratic congressmen, including Rep. Raul Grijalva of Arizona, Rep. Martin Heinrich of New Mexico and Rep. Jared Polis of Colorado, asked Interior Secretary Ken Salazar to release 22 captive Mexican wolves into the wild immediately, create a new Mexican wolf recovery plan and complete a draft environmental impact statement allowing changes to the program’s rules that will ensure the Mexican wolf’s full recovery.
Their letter to Salazar claims the Fish and Wildlife Service has been ignoring scientists’ recommendations for the health of the wolves, jeopardizing their viability in the wild.
Cowan said Pearce, long an opponent of the Mexican Gray Wolf Recovery Program, has championed the cattle growers’ cause and wants to see the program ended immediately.
Pearce’s press secretary, Eric Layer, said Pearce is concerned mainly with cutting federal spending and reducing the national debt, but he doesn’t know if Pearce will attempt to de-fund the program again as Congress takes up President Obama’s 2012 budget request.
Though the politics of the program may be daunting, some important biological questions vital to the Mexican wolf’s recovery still need to be answered, particularly: How many wolves does it take for the species to fully recover?
“Would it be 100, 200, 500 wolves on the landscape?” said Buckley of the Fish and Wildlife Service.
The new Mexican wolf recovery planning team will attempt to answer that question because a previous plan for the recovery program didn’t, he said.
A 1982 Fish and Wildlife Service plan for the Mexican wolf failed to specify recovery criteria, according to the agency’s 2010 Mexican Wolf Conservation Assessment, which concludes that the wolves now in the wild are threatened by illegal shooting and the lack of an adequate recovery plan.
On Feb. 22, the Mexican Gray Wolf Recovery Planning Team, composed of a group of cattlemen, hunters, conservationists and representatives of a handful of state and federal agencies, met for the first time in Albuquerque to begin the two-year process of drawing up a revised and more detailed recovery plan.
In 1982, “there were no Mexican wolves in the wild anywhere, and it wasn’t foreseen that there would be,” said Eva Sargent, who represents Defenders of Wildlife on the recovery planning team. “The idea for this team is to write a proper recovery plan with goals of how to get there and de-listing criteria.”
Cowan, who is a member of the recovery planning team, said she hopes the team will create a recovery plan that will make ranchers’ needs a top priority.
“I hope that we accomplish some sort of situation that allows ranchers and livestock producers to stay on the ground,” she said. “How do we do that? I certainly don’t have any bright ideas on that at this point in time. It’s vital that we allow the ranching industry to survive in that area.”
But the Tucson-based Center for Biological Diversity, one of the most zealous voices for wolf recovery, claims the team is stacked against conservation interests.
“The selection of participants was heavily influenced by politics,” said Michael Robinson, conservation advocate for the Center for Biological Diversity. “Our organization is the reason that Mexican wolves are in the wild now. By any stretch of the term ‘stakeholder,’ we qualify, but we’ve been excluded because we believe very strongly in upholding the science. There are others on the team who take the same view, but they are very few.”
The team is full of well-qualified scientists, he said, and he hopes wolf biology won’t get watered down on the team amid ranchers’ concerns.
Even though Cowan and other ranchers are participating on the team, another group of ranchers, led by APWE and the Gila Livestock Growers, hopes a judge will stop any effort to continue the Mexican wolf recovery program.
Last year, those groups and Otero and Catron counties filed a lawsuit aiming for a court ruling allowing ranchers to kill Mexican wolves they believed were responsible for livestock depredations. The lawsuit claimed that no problem wolves had been removed from the wild since 2007, and the ranchers want the right to defend their cattle from attack.
Part of the ranchers’ anger stems from the Fish and Wildlife Service’s abandonment of a “three strikes” rule in 2009, which allowed the agency to kill or trap wolves that had attacked livestock three times.
Cowan’s group didn’t join the lawsuit because it felt it was time to give up on taking its cause to the courtroom.
“New Mexico Cattle Growers has already participated in two lawsuits on this issue and we lost them both and we didn’t feel we had the funds to devote to another lawsuit in that venue,” Cowan said.
In February, the rancher groups and Catron and Otero counties withdrew their suit on a technicality, but they’re planning to re-file soon.
“It was a fatal flaw on our part,” Klumker said. Environmentalists “were really crowing and happy that we dropped the case, but we’re going to slam them again. We’re going to file it right back at the dirty bastards.”
Bobby Magill can be found online at www.bobbymagill.com.
By Bobby Magill, 3-02-11
 | |
“They’ve been successful at wiping out a bunch of livestock and hurting a bunch of ranchers,” Klumker said. “As a result, they’ve made a big difference on the livestock industry in Catron County. I don’t think we need them. The early settlers worked very hard to get rid of both the wolf and the grizzly for a very good reason.”
Klumker, based in Glenwood, N.M., is a board member of the vehemently anti-wolf Americans for the Preservation of Western Environment, or APWE, and the Southwest Director of the New Mexico Council of Outfitters and Guides, a group now part of a new Fish and Wildlife Service Mexican Gray Wolf Recovery Planning Team. The team will create a new recovery plan that may eventually lead the way to a healthy and sustainable population of Mexican wolves in New Mexico and Arizona.
Whether it’s in New Mexico or the Northern Rockies, efforts to restore native gray wolf populations must face ranchers and sportsmen worried and angry that wolves will prey on their cattle and run elk into places difficult to hunt. And, just as in Montana, whose Democratic senators have introduced a bill to remove federal Endangered Species Act protections from the gray wolf of the Northern Rockies and where Gov. Brian Schweitzer declared in February that the state will not prosecute ranchers who kill wolves that attack livestock, efforts to help the recovery of the gray wolf’s southern counterpart face numerous political challenges.
Smaller and lighter than its Northern Rockies cousin, the Mexican gray wolf is one of five subspecies of gray wolf native to North America. Today, Mexican wolves, which roam the Gila and Apache-Sitgreaves national forests in western New Mexico and eastern Arizona, are the controversial subjects of the Mexican Gray Wolf Recovery Program, which began after the species was listed as endangered in 1976.
So far, about the Fish and Wildlife Service has released about 90 wolves since 1998, according to agency data. Today, about 50 Mexican wolves exist in the wild.
Originally, the Fish and Wildlife Service’s goal was to have 100 wolves in the wild by 2006, but because of conflicts with ranchers and the broiling politics surrounding the Mexican wolf’s reintroduction, that goal has yet to be met.
“The idea is to get enough wolves out there where we can step back, get them de-listed, and they can generate their own self-sustaining population, and the states will then have management of them,” said Fish and Wildlife Service spokesman Tom Buckley.
The Mexican wolf recovery area straddles the eastern reach of the Mogollon Rim country, where the rim disappears into the remote Blue Range in Catron County, one of New Mexico’s biggest and least populated counties. The lobos’ new turf includes the rugged Gila and Aldo Leopold wilderness areas — together totaling more than 750,000 acres of wilderness broken only by a single unpaved road — and the Blue Range Wilderness and Primitive areas of New Mexico and Arizona.
The deep sense of wildness there is as legendary as the wilderness areas’ founder and namesake — Aldo Leopold, the “Sand County Almanac” author who in the 1920s demanded the U.S. Forest Service protect the Gila region as the nation’s first wilderness area 40 years before the passage of the Wilderness Act.
In those days, there were still wild Mexican wolves roaming the Gila. By the 1970s, they were nearly extinct.
The Mexican wolf was protected under the Endangered Species Act in 1976 and efforts began to reintroduce the wolf into New Mexico and Arizona not to restore balance to the ecosystem, but to simply return an endangered species to the wild as the law demands, said ReWilding Institute carnivore biologist Dave Parsons, a former Fish and Wildlife Service Mexican wolf recovery coordinator.
But the absence of the wolf since the mid-20th Century took its toll on the balance of the ecosystem, he said.
In Yellowstone National Park, the return of the gray wolf has given elk a long-absent predator, providing for healthier aspen stands and riparian vegetation and an ecosystem that supports more bird species than before, he said.
“What we’re seeing in the Gila is very similar, and the riparian vegetation is pretty well gone in a lot of places,” Parsons said.
Researchers working in Yellowstone studied the Mexican wolf reintroduction area in the Southwest and discovered a “reverse trophic cascade where the ecosystem has simplified in the absence of the wolf,” Parsons said. Once some of the wolves were returned to the wild, the health of aspen groves began to improve.
But cattle growers aren’t impressed.
Caren Cowan, executive director of the New Mexico Cattle Growers Association, said the lagging Mexican wolf numbers show the program isn’t working, especially as ranchers continue to deal with wolves killing cattle.
Officially, there were 185 confirmed cattle depredations from wolves from 1998 through 2009 in New Mexico and Arizona, said Arizona Department of Game and Fish wolf biologist Jeff Dolphin.
But the real number of depredations, Cowan said, is difficult to nail down because many ranchers fear the level of proof needed to confirm that a wolf killed a cow is so high that they don’t bother to report a suspected killing.
With the Fish and Wildlife Service’s population goals unmet as it dealt with livestock industry concern about widespread cattle depredations, the future of the recovery program remains uncertain.
In February, the program survived an attempt by U.S. Rep. Steve Pearce, R-N.M., to de-fund the program for the remainder of the 2011 fiscal year after his amendment was dropped from the continuing resolution that will fund the government for the rest of the year.
In November, a group of 13 Democratic congressmen, including Rep. Raul Grijalva of Arizona, Rep. Martin Heinrich of New Mexico and Rep. Jared Polis of Colorado, asked Interior Secretary Ken Salazar to release 22 captive Mexican wolves into the wild immediately, create a new Mexican wolf recovery plan and complete a draft environmental impact statement allowing changes to the program’s rules that will ensure the Mexican wolf’s full recovery.
Their letter to Salazar claims the Fish and Wildlife Service has been ignoring scientists’ recommendations for the health of the wolves, jeopardizing their viability in the wild.
Cowan said Pearce, long an opponent of the Mexican Gray Wolf Recovery Program, has championed the cattle growers’ cause and wants to see the program ended immediately.
Pearce’s press secretary, Eric Layer, said Pearce is concerned mainly with cutting federal spending and reducing the national debt, but he doesn’t know if Pearce will attempt to de-fund the program again as Congress takes up President Obama’s 2012 budget request.
Though the politics of the program may be daunting, some important biological questions vital to the Mexican wolf’s recovery still need to be answered, particularly: How many wolves does it take for the species to fully recover?
“Would it be 100, 200, 500 wolves on the landscape?” said Buckley of the Fish and Wildlife Service.
The new Mexican wolf recovery planning team will attempt to answer that question because a previous plan for the recovery program didn’t, he said.
A 1982 Fish and Wildlife Service plan for the Mexican wolf failed to specify recovery criteria, according to the agency’s 2010 Mexican Wolf Conservation Assessment, which concludes that the wolves now in the wild are threatened by illegal shooting and the lack of an adequate recovery plan.
On Feb. 22, the Mexican Gray Wolf Recovery Planning Team, composed of a group of cattlemen, hunters, conservationists and representatives of a handful of state and federal agencies, met for the first time in Albuquerque to begin the two-year process of drawing up a revised and more detailed recovery plan.
In 1982, “there were no Mexican wolves in the wild anywhere, and it wasn’t foreseen that there would be,” said Eva Sargent, who represents Defenders of Wildlife on the recovery planning team. “The idea for this team is to write a proper recovery plan with goals of how to get there and de-listing criteria.”
Cowan, who is a member of the recovery planning team, said she hopes the team will create a recovery plan that will make ranchers’ needs a top priority.
“I hope that we accomplish some sort of situation that allows ranchers and livestock producers to stay on the ground,” she said. “How do we do that? I certainly don’t have any bright ideas on that at this point in time. It’s vital that we allow the ranching industry to survive in that area.”
But the Tucson-based Center for Biological Diversity, one of the most zealous voices for wolf recovery, claims the team is stacked against conservation interests.
“The selection of participants was heavily influenced by politics,” said Michael Robinson, conservation advocate for the Center for Biological Diversity. “Our organization is the reason that Mexican wolves are in the wild now. By any stretch of the term ‘stakeholder,’ we qualify, but we’ve been excluded because we believe very strongly in upholding the science. There are others on the team who take the same view, but they are very few.”
The team is full of well-qualified scientists, he said, and he hopes wolf biology won’t get watered down on the team amid ranchers’ concerns.
Even though Cowan and other ranchers are participating on the team, another group of ranchers, led by APWE and the Gila Livestock Growers, hopes a judge will stop any effort to continue the Mexican wolf recovery program.
Last year, those groups and Otero and Catron counties filed a lawsuit aiming for a court ruling allowing ranchers to kill Mexican wolves they believed were responsible for livestock depredations. The lawsuit claimed that no problem wolves had been removed from the wild since 2007, and the ranchers want the right to defend their cattle from attack.
Part of the ranchers’ anger stems from the Fish and Wildlife Service’s abandonment of a “three strikes” rule in 2009, which allowed the agency to kill or trap wolves that had attacked livestock three times.
Cowan’s group didn’t join the lawsuit because it felt it was time to give up on taking its cause to the courtroom.
“New Mexico Cattle Growers has already participated in two lawsuits on this issue and we lost them both and we didn’t feel we had the funds to devote to another lawsuit in that venue,” Cowan said.
In February, the rancher groups and Catron and Otero counties withdrew their suit on a technicality, but they’re planning to re-file soon.
“It was a fatal flaw on our part,” Klumker said. Environmentalists “were really crowing and happy that we dropped the case, but we’re going to slam them again. We’re going to file it right back at the dirty bastards.”
Bobby Magill can be found online at www.bobbymagill.com.
Tuesday, March 1, 2011
Western Watersheds Project Victory Stops Corporate Ranching on 450,000 Acres of Public Land in Southern Idaho
~ Jon Marvel
Friends,
~ Jon Marvel
Friends,
On February 28, 2011 Chief Judge B. Lynn Winmill of the United States District Court for Idaho agreed with Western Watersheds Project and reimposed an injunction stopping livestock grazing on 17 grazing allotments covering over 450,000 acres of public land in the Jarbidge Field Office of the Bureau of Land Management in southern Idaho.
The allotments closed under this injunction contain some of the most important remaining habitat for sage grouse, desert bighorn sheep, the threatened plant species slickspot peppergrass as well as native redband trout, pygmy rabbits and pronghorn antelope.
The allotments closed under this injunction contain some of the most important remaining habitat for sage grouse, desert bighorn sheep, the threatened plant species slickspot peppergrass as well as native redband trout, pygmy rabbits and pronghorn antelope.
Jarbidge BLM Allotments closed by the decision .
Click to view interactive map
Click to view interactive map
Western Watersheds Project welcomes this Court Order (pdf) and looks forward to the Bureau of Land Management finally reforming its illegal actions that have led to this outcome.
Western Watersheds Project sends thanks to our excellent legal counsel in this matter Todd Tucci of Advocates For The West in Boise and to WWP Biodiversity Director Katie Fite for years of hard and often unrewarded work in the Jarbidge Field Office.
Thank you !
Here is Western Watersheds Project's News Release on this important victory:
Western Watersheds Project Wins A Federal Court Injunction Stopping Livestock Grazing on over 450,000 Acres of Public Land in Southern Idaho
Greater sage grouse, pygmy rabbit and Slickspot peppergrass have won a reprieve from livestock grazing which has decimated their populations and destroyed their habitat. Late yesterday, Chief Judge B. Lynn Winmill of the federal District for Idaho held BLM, various Simplot corporate entities, and other corporate ranching operations to the terms of an earlier agreement, and again enjoined livestock grazing on 17 livestock grazing allotments in southern Idaho.
“Instead of negotiating a reasonable compromise to allow some grazing to continue in these areas, BLM, Simplot and other ranchers gambled and they lost,” said Todd C. Tucci, senior attorney for Advocates for the West, who is representing plaintiff Western Watersheds in the case. “We have been seeking common ground for the eight months, and their idea of compromise was complete capitulation. We are gratified that the court held BLM and Simplot to terms of our agreement.”
In 2005, the federal court enjoined livestock grazing on 28 grazing allotments, after finding that Bureau of Land Management (BLM) violated the National Environmental Policy Act, the Federal Lands Policy and Management Act, and the BLM’s Fundamentals of Rangeland Health. Western Watersheds Project, ranchers and the BLM then entered into an agreement allowing some ongoing grazing and requiring the BLM to develop a new Resource Management Plan (RMP) for the Jarbidge Field Office as well as an Environmental Impact Statement (EIS) for that plan. The EIS would examine the impacts of grazing on public lands in the Jarbidge Field Office of the BLM. In the interim five years, BLM has failed to issue the required EIS and RMP.
“The sage-grouse populations in the Jarbidge Field Office are in collapse,” said Jon Marvel, Executive Director of Western Watersheds Project. “This reprieve – which comes at the start of the sage-grouse nesting period – will help ensure that adequate habitat exists for this keystone species. BLM cannot keep allowing the same grazing over and over, and expect a different result,” said Marvel.
Recent data from the Idaho Department of Fish and Game shows that sage-grouse populations in the Jarbidge Field Office are in a free fall, with declines of over 90% since 2006 alone. For example, in the Browns Bench area of the Field Office, total male sage-grouse lek counts are down from 185 in 2006 to 29 in 2010, and some areas are in an even steeper decline.
“It is long past time for these corporate ranching operations to take responsibility for the impacts of their grazing on wildlife habitat throughout the Jarbidge Field Office,” said Katie Fite, Biodiversity Director for Western Watersheds Project. “These corporations have refused to modify their grazing practices to adapt to the needs of these imperiled wildlife species, even in the face of undisputed scientific evidence,” said Fite.
Maybe, just maybe, this injunction will restore some order and balance to public lands grazing in the Jarbidge Field Office,” said Tucci. “We can only hope.”
Western Watersheds Project sends thanks to our excellent legal counsel in this matter Todd Tucci of Advocates For The West in Boise and to WWP Biodiversity Director Katie Fite for years of hard and often unrewarded work in the Jarbidge Field Office.
Thank you !
Here is Western Watersheds Project's News Release on this important victory:
Western Watersheds Project Wins A Federal Court Injunction Stopping Livestock Grazing on over 450,000 Acres of Public Land in Southern Idaho
Greater sage grouse, pygmy rabbit and Slickspot peppergrass have won a reprieve from livestock grazing which has decimated their populations and destroyed their habitat. Late yesterday, Chief Judge B. Lynn Winmill of the federal District for Idaho held BLM, various Simplot corporate entities, and other corporate ranching operations to the terms of an earlier agreement, and again enjoined livestock grazing on 17 livestock grazing allotments in southern Idaho.
“Instead of negotiating a reasonable compromise to allow some grazing to continue in these areas, BLM, Simplot and other ranchers gambled and they lost,” said Todd C. Tucci, senior attorney for Advocates for the West, who is representing plaintiff Western Watersheds in the case. “We have been seeking common ground for the eight months, and their idea of compromise was complete capitulation. We are gratified that the court held BLM and Simplot to terms of our agreement.”
In 2005, the federal court enjoined livestock grazing on 28 grazing allotments, after finding that Bureau of Land Management (BLM) violated the National Environmental Policy Act, the Federal Lands Policy and Management Act, and the BLM’s Fundamentals of Rangeland Health. Western Watersheds Project, ranchers and the BLM then entered into an agreement allowing some ongoing grazing and requiring the BLM to develop a new Resource Management Plan (RMP) for the Jarbidge Field Office as well as an Environmental Impact Statement (EIS) for that plan. The EIS would examine the impacts of grazing on public lands in the Jarbidge Field Office of the BLM. In the interim five years, BLM has failed to issue the required EIS and RMP.
“The sage-grouse populations in the Jarbidge Field Office are in collapse,” said Jon Marvel, Executive Director of Western Watersheds Project. “This reprieve – which comes at the start of the sage-grouse nesting period – will help ensure that adequate habitat exists for this keystone species. BLM cannot keep allowing the same grazing over and over, and expect a different result,” said Marvel.
Recent data from the Idaho Department of Fish and Game shows that sage-grouse populations in the Jarbidge Field Office are in a free fall, with declines of over 90% since 2006 alone. For example, in the Browns Bench area of the Field Office, total male sage-grouse lek counts are down from 185 in 2006 to 29 in 2010, and some areas are in an even steeper decline.
“It is long past time for these corporate ranching operations to take responsibility for the impacts of their grazing on wildlife habitat throughout the Jarbidge Field Office,” said Katie Fite, Biodiversity Director for Western Watersheds Project. “These corporations have refused to modify their grazing practices to adapt to the needs of these imperiled wildlife species, even in the face of undisputed scientific evidence,” said Fite.
Maybe, just maybe, this injunction will restore some order and balance to public lands grazing in the Jarbidge Field Office,” said Tucci. “We can only hope.”
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