Obama administration debating care of U.S. national forests

WASHINGTON - The Obama administration is crafting a new plan to manage the nation's 155 national forests, including six in Arizona, for the next 15 to 20 years.

At stake is the future of 193 million acres of forests and grasslands that are the nation's single largest source of drinking water and home to more than 15,000 species of plants and wildlife.

The U.S. Forest Service says the new plan, due by year's end, is urgently needed to replace the so-called forest-planning rule written in 1982 during the Reagan administration. That rule, which emphasized using the forests for logging, does not reflect the latest science on climate change and how best to protect wildlife and water, the Forest Service says.

The rule was never intended to last nearly three decades - about twice as long as expected. President Bill Clinton attempted to replace it in 2000, but his proposal was scrapped when President George W. Bush took office in 2001. Efforts by the Bush administration to draw up its own plan were derailed when the proposals were challenged by environmentalists and thrown out by federal courts.

As President Barack Obama's administration takes up the crucial but contentious issue, it is under intense scrutiny from competing interest groups that hope to shape the plan to their liking. Neither environmentalists nor business interests are happy with the first draft of the new forest rule. Conservation groups say it lacks adequate protection for wildlife and water and gives individual forest managers too much discretion in how to carry out the plan. Business groups say some of its provisions to protect species could end up kicking ranchers, timber companies and others off the land.

Industry groups also point to this year's devastating wildfires in Arizona as evidence that more logging and grazing are needed to prevent forests from becoming overgrown and fueling fires. Environmentalists say the fires underscore the need to make the forests more resilient to climate change, which increases temperatures and decreases streamflows.

A planning rule is required by the National Forest Management Act of 1976. It is intended to provide an overarching framework for the managers of individual forests and grasslands in the National Forest System to use in revising their own land-management plans, which they are supposed to do every 15 years. The rule is intended to provide guidance to forest managers on how best to protect forest health, water and wildlife while providing opportunities for recreation and economic ventures.

The first draft of the Forest Service plan focuses for the first time on how to strengthen the health of forests in the face of climate change and includes enhanced protections for water resources and watersheds, updated provisions for sustainable recreation, and a requirement that the land be managed for such multiple uses as mining, logging, energy production, outdoor recreation and wilderness protection.

The final plan, which does not require congressional approval, is expected to be published in November.

"We believe this is one of the most important conservation policies the Obama administration will undertake," said Jamie Rappaport Clark, former director of the U.S. Fish and Wildlife Service during the Clinton administration and executive vice president of Defenders of Wildlife. "This is land that belongs to all of us as Americans.

'Forests' appeal

The country's national forests attract more than 170 million people a year who hike, camp, hunt, fish, go boating or whitewater rafting, ride horses, ski, and drive snowmobiles and all-terrain vehicles. Visitors spend an estimated $13 billion a year in communities surrounding the national forests, supporting more than 224,000 jobs.

In Arizona, visitors are drawn to the lakes in the Apache-Sitgreaves National Forests (two forests managed as one), the Red Rocks of Sedona in the Coconino National Forest, the diverse "sky island" mountains in the Coronado National Forest, the bison herd in Kaibab National Forest, the Verde River headwaters in Prescott National Forest, and the saguaro-studded desert of the Tonto National Forest.

Nearly 3 million Americans have forest-related jobs in such fields as forest management, outdoor recreation and the forest products industry, according to the U.S. Forest Service.
Protection urged

Environmentalists say the current rule has not proved to be strong enough to protect the watershed that carries drinking water to 124 million Americans.

Clark said about three-quarters of the forest watersheds are considered by the Environmental Protection Agency to be "impaired," meaning that federal water-quality standards are not being met. According to the Forest Service, the biggest causes of water-quality impairment include excessive sediment loads, habitat destruction near waterways and contamination from mercury and other metals.

The Forest Service unveiled the proposed rule in February, opening it up for a public comment period that lasted through mid-May. During that time, more than 300,000 individuals, groups, tribes and state and local governments weighed in on the plan, reflecting a strong interest in the issue, the Forest Service said.

Forest Service officials will consider those comments as they draw up a final rule and environmental-impact statement.

Environmentalists applaud the increased protections for water resources and watersheds, stronger requirements to provide habitat for diverse animal and plant species, and a plan to address the impact of climate change for the first time. But they say the plan undermines those goals by giving too much power to individual forest managers to decide how - or even if - to protect wildlife and water.

In Arizona, that means managers could choose whether to maintain healthy populations of bighorn sheep, turkey and elk, designated by the Arizona Game and Fish Department as priority species of concern.

Matt Skroch, executive director of the Arizona Wilderness Coalition, said he would like to see the new forest rule do more to preserve watersheds by preventing development in roadless areas and making it easier to designate new wilderness areas, where logging, mining and other resource extractions are banned. A wilderness area has not been created in Arizona since 1984.

"If you go back 110 years or so, Arizona's national forests were largely created out of an interest in protecting our watershed and our water supply," Skroch said.

View from business

At the same time, the timber, cattle and sheep industries complain that the proposed forest rule's protections for wildlife are too broad and unclear because they require the Forest Service to "maintain viable populations of species of conservation concern," which could lead to restrictions on grazing and logging. In 2010, about 2 billion board feet of timber was harvested from national forests, down from about 12 billion in 1980. The proposed new rule does not specify how much logging would be allowed.

"There is no scientific consensus on what level of any given species is 'viable' or how it is to be 'maintained,' " said Dustin Van Liew, executive director of the Public Lands Council, which represents ranchers, and director of federal lands for the National Cattlemen's Beef Association. "The viability standard will be impossible for the agency to meet. There will be a litigation feeding frenzy by the radical environmental groups bent on ending grazing and other multiple uses on federal lands."

Environmental litigation and complicated bureaucratic rules already have significantly reduced the number of cattle that Arizona ranchers are grazing on national-forest land, said Bas Aja, director of government relations for the Arizona Cattlemen's Association.

There are about 100,000 head of cattle grazing in Arizona's six national forests today, Aja said, about 55,000 fewer than in 1993. That represents an estimated annual loss of $126 million to ranchers and to the larger Arizona economy, he said.

Ranchers typically acquire a 10-year lease to graze on public land, but that lease must be reviewed by the Forest Service each year, Aja said.

"You may be in the middle of your 10-year lease, but the Forest Service can tell you that they've identified a new species of concern and you can't graze your cattle anymore for who knows how long while they conduct studies and environmental reviews," Aja said.

The debate between environmentalists and ranchers mirrors a split in Congress, where lawmakers have sent dueling letters to Agriculture Secretary Tom Vilsack, calling for him to heed their calls for changes in the final forest rule.

A letter organized by Rep. Greg Walden, R-Ore., and signed by 59 House members asks Vilsack to start over. "Please do not lose this opportunity to produce a planning rule that is truly simple, understandable, flexible and (defensible) in court," the letter says.

A letter drafted by Rep. Ron Kind, D-Wis., and signed by 66 members of Congress, urges Vilsack to go further in protecting water and wildlife. "The course set by these sweeping new rules will determine the future of our national forests for generations to come," it says. "It is essential that we get this right."

Mexican gray wolves face new challenges in struggle for survival

Life isn't getting any easier for Mexican gray wolves struggling against extinction.

Both politics and nature have produced new hurdles for an animal reintroduced in 1998 to vast native ranges in Arizona and New Mexico. Currently, about 50 wolves live in the wild.

The Wallow Fire, which scorched more than a half-million acres, mostly in Arizona, blazed through prime wolf habitat. A June 21 U.S. Fish and Wildlife Service update said there was no evidence wolves had been killed in the fire. Adult wolves wearing radio collars were located near three dens in the burn area, but wildlife officials were still trying to determine whether pups survived. The report gives a status report on 10 packs, all of which were "exhibiting denning behavior."

It appears the wolves will survive the devastating wildfire. The politics, however, are influenced by a variety of competing ideologies ranging from ranching economics to ecosystem health that have given the Mexican Gray Wolf Recovery Program a herky-jerky gait.

New Mexico's new governor, Susana Martinez, provided the most recent turn. Martinez replaced four members of the New Mexico State Game Commission, which on June 9 voted to end the state's participation in the recovery program. State wildlife personnel officially ceased their activities on Friday.

"The governor's concerns remain the same about the real and various risks of the program - everything from the cost of livestock that is lost to basic safety concerns of parents and families," said Martinez spokesman Scott Darnell in an email. "She believes we must find an equitable and fair solution to this problem, one that, in particular, provides for compensation to our hard-working ranch families for the loss of their livelihood."
Before the commission voted, Michael Robinson, with the Center for Biodiversity, sent a letter to Martinez endorsed by 12 other national and local conservation groups.

"There is strong and growing support nationally, throughout New Mexico and in the Gila National Forest region for this beautiful, intelligent, social animal that is uniquely adapted to the arid Southwest but is beleaguered and at great risk of extinction," Robinson wrote. He exhorted Martinez and her game commission appointees to "take a stance consistent with dependable science and the broad public interest."

Former New Mexico Gov. Bill Richardson - a Democrat who preceded Republican Martinez - had directed state wildlife officials to stop trapping and killing wolves that were preying on cattle. Wolf advocates hailed that decision and supported state efforts to protect cattle, which included fencing livestock out of wolf denning areas, hazing wolves that venture into potential conflict areas and wolf feeding programs.

That approach, Robinson said, kept packs intact and caused the number of cattle killed by wolves to drop from 36 in 2007 to nine in 2010.

Nonetheless, officials in New Mexico's Catron County - which has large areas of public land designated for wolf recovery - are committed to ending the recovery program. With dwindling water supplies and other hardships, the last thing the livestock industry needs is another predator, said Catron County Commission chairman Hugh B. McKeen. County officials had asked Martinez to end the state's participation.

"Catron County engineered the ouster of New Mexico Game and Fish from the program," Robinson said in a telephone interview. "If there is depredation, I can see them (Catron County ranchers) immediately start clamoring for wolf removal."

McKeen has a different explanation for the drop in wolf attacks. He said wildlife officials under Richardson were feeding the wolves in an effort to ensure those numbers went down. Yet he also says that fewer area ranchers are reporting livestock depredations.

"So many ranchers are fed up with losing cattle," McKeen said. "And we don't want these federal people on our land."

Tod Stevenson, director of the New Mexico Department of Game and Fish, does not believe the changes will significantly impact the program.

"We will not have a direct hand in dealing with those on-the-ground, day-to-day issues," Stevenson said. "But this is a federal program and it always has been a federal program. We expect the (U.S. Fish and Wildlife Service) will staff up to continue providing those services."

Fish and Wildlife Service officials did not respond Friday to numerous phone messages requesting an interview.

New Mexico wildlife officials still will conduct biennial status reviews of state endangered species, Stevenson said. And they will continue to conduct law enforcement activities related to taking, possessing, selling or transporting any species on the state's endangered list.

"We will continue to fully investigate and prosecute violators to the best of our ability," Stevenson said.

Since the recovery program began 13 years ago, New Mexico has invested about $507,644. Federal funds obtained by the state over that time amounted to more than $1.4 million bringing the total investment to slightly more than $1.9 million. Two full-time staff members were involved, both of whom will be given the opportunity to find other positions within the department, Stevenson said.

State wildlife officials trapped and transplanted wolves; collared and tracked them; conducted feeding programs, provided range riders, fence modifications and other livestock management tools; made recommendations about wolf removals; and provided wolf location information to landowners and livestock producers, Stevenson said.

Still unknown is whether a $60,000 federal grant that requires a dollar-for-dollar state match will be maintained, Stevenson said. The money was used to reimburse ranchers whose livestock are killed by wolves and to pay for projects that minimize wolf impacts on livestock. Stevenson said his department is negotiating with the FIsh and Wildlife Service to keep that money in the program.

"We haven't got that completely resolved as to what mechanism we use," Stevenson said. "I'm pretty confident, one way or another, that we will get that done."

McKeen said he hopes they get the money "with no strings attached." He would like to see less bureaucracy involved in getting reimbursed for wolf kills and he said prevention techniques do not work.

Wolves are "not going to stay there in the Gila Wilderness," McKeen said. "They came out and started killing cattle again."

The wolf program is just the most recent example of forest mismanagement, McKeen said. A series of bad decisions - Forest Service actions that cut back on grazing and logging - are killing the livestock industry in Catron County, said McKeen, whose grandfather arrived there in 1886.

Logging would have reduced the severity of the Wallow Fire by removing deadwood that has been building up for decades, he said. Periodic wildfires in uninhabited areas also should be left to burn, he said. Without such thinning, trees suck groundwater and dry up wells, he said. Ranchers already deal with numerous other predators, including mountain lions and black bears.

McKeen has heard reports from Yellowstone National Park, where biologists say wolves are benefitting the ecosystem. Elk and deer herds are culled, making them healthier. Wolves also push the herds out of stream beds, allowing them to recover and support a wide variety of plants and animals.

"It's just a lot of hype," Mc-Keen said. "The wolves are here to further put us out of business."

In the meantime, the Mexican gray wolf hangs on.

Robinson said a successful program, which would result in a self-sustaining population, depends on more frequent releases, particularly in New Mexico.

In a May report, an interagency reintroduction team ranked 32 potential wolf release sites based on a formula that considered the results of past releases; appropriate distances from residences, towns, livestock, the recovery area boundary and other territorial wolves; and proximity to deer and elk, Robinson said. "The three top-ranked sites were all in the Gila Wilderness" part of which is in Catron County, he said.

In his letter, Robinson told Martinez that the Fish and Wildlife Service appears to be holding back on releases "in deference to perceived lack of support by your administration."

Chris Roberts writes for the El Paso Times, a member of the Texas-New Mexico Newspapers Partnership, and may be reached at chrisr@elpasotimes.com; (915) 546-6136.

Appeals court quashes rancher's claim on grazing land

The state Court of Appeals has thrown out a bid by a Southern Arizona ranching company to get title to land where its predecessors had grazed cattle for more than a century.

Without dissent, the three-judge panel rejected arguments by attorneys for Robinson Cattle that it was entitled to possession of thousands of acres that was deeded over to the state by the federal government in 1991. The court specifically rejected the company’s claim of vested property rights.

At the heart of the battle is land that became federal government property in 1853 when it got the parcel along with other lands pursuant to the Gadsden Treaty with Mexico. Judge William Brammer Jr., writing for the appellate court, said no competing claims had been asserted under Mexican law.

The federal government took the land out of public domain in 1902 to become the Santa Rita Forest Preserve.

Before that happened, though, Robinson’s predecessors had entered the parcel and later began grazing it. One predecessor even obtained title to a 160-acre homestead within the parcel.

Robinson eventually got the homestead and possessory rights to the parcel. And the company has continued to graze cattle on the parcel in a series of cooperative agreements with the University of Arizona, which manages what is known as the Santa Rita Experiment Range for research purposes.

When the last agreement was not renewed, UA sent Robinson a letter terminating its right to occupy the land.

The state then filed an action seeking clear title. Robinson filed a counterclaim, also seeking title.

When a trial judge dismissed Robinson’s claim without trial, he appealed.

Robinson says it is entitled to ownership of the parcel. That is based on an argument that, under local law and customs, and “pursuant to laws of Congress,’’ its predecessors obtained title to the property — and that its rights vested before the parcel was reserved by the federal government.

Brammer said that argument is flawed.

“Only Congress can authorize rights in public lands,’’ he said.

“Although the United States has allowed persons, sometimes called settlers, to graze livestock on public domain, such permission only gave rise to an implied license,’’ the judge continued. And Brammer said the federal government could revoke that right at any time, with no vested right to those who had been grazing cattle there.

What that means, Brammer said, is any “local laws and customs’’ that Robinson claims entitle the company to the property exist only if Congress authorized those rights explicitly. And the judges said an 1866 law that Robinson cited only acknowledges water and ditch right-of-way rights created under state law.

The judge also pointed out that when the federal government gave the land to Arizona, there were no reservations about any rights belonging to Robinson or any predecessor. More to the point, Brammer said, if the federal government considered Robinson the owner of the parcel, it never would have granted title to the state.

The court sidestepped the question of whether Robinson can access any water rights or improvement on the parcel without the state’s permission. The judges said he may have such rights but that needs to be decided through an administrative appeal to the proper state agency.

Ranchers eye Utah grazing program's success

Idaho ranchers and county commissioners are eyeing a unique grazing program in Utah that has resulted in millions of dollars of improvements in range conditions and water quality in that state.

Created by the Utah Legislature in 2006, the Utah Grazing Improvement Program has enabled that state to team with the private sector and federal agencies to make about $25 million in rangeland improvements.

It has also assisted ranchers sued by environmental groups, a facet of the program that is of particular interest to Idaho cattle producers.

Troy Forrest, a grazing rangeland coordinator with the Utah Department of Agriculture and Food, explained the program to Idaho cattle producers recently during the Idaho Cattle Association's mid-year conference.

Though the legislature initially funded the program to the tune of $2 million annually, that amount has dropped to $1.4 million because of the economic recession, Forrest said. Still, he added, the program has been able to leverage the $10 million it has received from the state to generate another $15 million from private and federal sources.

The money has been used to make an extensive array of rangeland improvements, including installing fencing, seeding, managing brush, fighting invasive plant species and improving water quality and availability.

Forrest said about 50 percent of the program's funds are used on water improvement projects, including developing springs and wells and laying miles of pipeline to better distribute livestock, benefit wildlife and lessen impacts to riparian areas.

Program funds have been used to purchase equipment such as drills that are available for lease at a minimal price for range improvement projects.

Utah had its worst ever fire season in 2007 and program funds were used to reseed badly damaged areas.

The program partners with other land management agencies such as the Bureau of Land Management and Forest Service and "we've been able to affect public policy in that way," Forrest said.

Forrest said the program spends a lot of money on monitoring so when BLM allotments come up for renewal, "we have hard data that can be used in federal court to defend (the agency's) decisions."

The program has filed as intervenors on behalf of ranchers in some anti-grazing lawsuits and has also brought in experts to testify and submitted court briefs.

"We have good science to back up what we're doing," Forrest said.

He said federal grazing improvement programs are poorly funded and Utah lawmakers "saw a gaping hole where we could step in and help make improvements to public and private lands."

The presentation got the attention of Idaho Rep. Jim Guthrie, a Southeast Idaho rancher. He said such a program could benefit Idaho ranchers, though he added it's too early to speculate on whether the Idaho Legislature would create and fund such a program.

"Avoiding lawsuits may be the wrong reason for doing it, but taking care of the land is the right thing to do regardless of what motivates you to do it," he said. "I think any time the cattle industry can collectively work to improve range conditions, it's a good idea.

Bishop Meets With DOI Officials to Confirm that the Wild Lands Proposal is Gone for Good

Washington, Jun 22 - House Natural Resources National Parks, Forests and Public Lands Subcommittee Chairman Rob Bishop (R-UT) today met with Department of Interior (DOI) Deputy Secretary David Hayes and Bureau of Land Management (BLM) Director Bob Abbey to discuss DOI Secretary Ken Salazar’s recent memo halting administrative efforts to unilaterally designate new Wild Lands areas. House Natural Resources Committee Chairman Doc Hastings (R-WA) also attended the meeting.

On April 14, 2011 the House of Representatives passed the Department of Defense and Full-Year Continuing Appropriations Act, the budget to fund the remainder of FY2011. This legislation included a provision cutting off all funding through September 2011 for the controversial Secretarial Order #3310, which outlined plans for the creation of new de-facto wilderness areas or “Wild Lands.” Subsequently, on June 1, 2011 DOI Secretary Ken Salazar issued a memo to BLM Director Bob Abbey stating that “pursuant to the 2011 CR, the BLM will not designate any lands as ‘Wild Lands’.”

“Deputy Secretary Hayes and Director Abbey reiterated that Secretarial Order #3310 is dead. They both assured me that no administrative action will be taken to designate Wild Lands now or any time after FY2011,” said Congressman Bishop. “The only way to move forward on public land issues is to avoid unpredictable, unilateral actions without congressional input. Both Director Abbey and Deputy Secretary Hayes stated their intention to reduce the uncertainty that has plagued the debate in recent years and pledged to seek more consensus on these issues by improving coordination and dialogue with Congress and stakeholders.”

In the memo, Secretary Salazar also stated that Deputy Secretary David Hayes will work to develop recommendations regarding the management of lands with wilderness characteristics. Congressman Bishop expressed a concern over the creation of new management plans and indicated that he was interested in learning more about what Deputy Secretary Hayes would be looking to implement. During today’s meeting, Deputy Secretary Hayes also indicated that his recommendations were not imminent and that the Administration would work closely with Congress once those recommendations were completed.

“After today I am confident that the Administration recognizes the primary role that Congress must play in land management decisions going forward, Bishop added. “I appreciated both Director Abbey and Deputy Secretary Hayes for taking time to sit down with me and Chairman Hastings and it is my hope that they will uphold the assurances made to us during today’s meetings that Secretarial Order #3310 is no longer. While it was good to hear their assurances, I remain cautiously optimistic and will work with my colleagues on the committee to continue careful oversight of the Administration.”

Agriculture Secretary Vilsack Introduces a Framework and Map to Improve the Health of America's Watersheds

Watersheds on national forests and grasslands are the source of 20 percent of the nation's drinking water supply

WASHINGTON, June 3, 2011-- Agriculture Secretary Tom Vilsack today announced the release of a new map that characterizes the health and condition of National Forest System lands in more than 15,000 watersheds across the country. The U.S. Forest Service's Watershed Condition Classification Map is the first step in the agency's Watershed Condition Framework, and is the agency's first national assessment across all 193 million acres of National Forest lands. Vilsack made the announcement at a USDA event in Washington highlighting the United Nation's International Year of Forests.

"Clean, healthy forests are vital to our efforts to protect America's fresh water supply," said Vilsack. "Our nation's economic health, and the health of our citizens, depends on abundant, clean and reliable sources of freshwater. The Watershed Condition Framework and map will help provide economic and environmental benefits to residents of rural communities."

The map establishes a baseline that will be used to establish priorities for watershed restoration and maintenance. The national Watershed Condition Framework establishes a consistent, comparable, and credible process for characterizing, prioritizing, improving, and tracking the health of watersheds on national forests and grasslands. The Framework also builds added accountability and transparency into the Integrated Resource Restoration program which is included in President Obama's budget proposal for the next fiscal year.

The Framework uses three watershed condition classifications:

* Class 1 watersheds are considered healthy.
* Class 2 watersheds are relatively healthy, but may require restoration work.
* Class 3 watersheds are those that are impaired, degraded or damaged.

Additional benefits to the Framework are the opportunities it provides to current and future partners in watershed restoration and maintenance. It also increases the public's awareness of their local watershed conditions and the role they can play in improving them. The Forest Service expects that as the map gains more widespread use, it will promote the department's "all-lands" approach to managing the nation's forest and landscapes.

"Watershed restoration is not new to the Forest Service, but we now have new capabilities to assess and prioritize where resources are most needed," said U.S. Forest Service Chief Tom Tidwell. "For the first time, we are laying out a process to allow data from local assessments to be collected, analyzed and evaluated to better understand existing conditions and the specific needs for restoration and maintenance at the national level."

The Forest Service, as custodian of national forests and grasslands—which contain nearly 400,000 miles of streams, 3 million acres of lakes, and many aquifer systems—provides drinking water for more U.S. residents than any other entity. The Forest Service manages habitat for more than 550 rare, threatened, and endangered aquatic species and provides water-related recreation to more than 130 million visitors each year. U.S. lakes and streams provide drinking water for one in five Americans.

The Framework integrates well with both the proposed Land Management Planning Rule and the agency's Climate Change Scorecard. All three efforts require working with the public and partners to assess, monitor, maintain and restore the health of forests and watersheds. The Framework assists by providing key data that will help to prioritize resources.

The Forest Service expects to have national and regional Watershed Condition Classification maps posted electronically on an agency Web site early next week, with an interactive mapping tool available by the end of the month, according to agency officials.

The mission of the U.S. Forest Service is to sustain the health, diversity, and productivity of the nation's forests and grasslands to meet the needs of present and future generations. The agency manages 193 million acres of public land, provides assistance to state and private landowners, and maintains the largest forestry research organization in the world.

Grazing Improvement Act introduced

WASHINGTON –Sen. Orrin Hatch (R-Utah) has joined Sen. John Barrasso (R-Wyo.) in introducing legislation that will bring greater certainly to ranchers and farmers in rural Utah and other states who graze livestock in the face of constant legal challenges from environmental extremists.

The Grazing Improvement Act of 2011 (S. 1129) helps ranching communities by preserving the use of livestock grazing permits. It provides more flexibility to the Bureau of Land Management (BLM) and Forest Service, allowing them to continue issuing grazing permits while required environmental analyses are pending.

“Cattle and sheep production in rural Utah brings in nearly $300 million per year in direct cash receipts and is an important driver in the state’s agricultural economy of nearly $3.5 billion. This is a critical component of the economic health and welfare of rural Utah,” Hatch said. “Our ranchers are responsible land stewards who should not be held hostage by a rigid permitting process or by lawsuits from environmental elitists who want to keep all livestock off of our public lands. This legislation will help provide our livestock producers with the certainty they need to make a living and to continue to contribute in a significant way to our economy.”

Under current law, livestock grazing permits expire after 10 years, and a new environmental analysis is mandatory before a new one can be issued. Unfortunately, federal agencies have been hamstrung in renewing permits because of the backlog of environmentalist lawsuits aimed at delaying the process.

For more than a decade, grazing permit holders and public land agencies have relied on Congress to temporarily grant continued use of grazing permits every year. The Grazing Improvement Act changes this by allowing the BLM and Forest Service to continue issuing grazing permits while an environmental analysis is being completed. It also provides more flexibility with categorical exclusions and other needed reforms to grazing permits.

In addition to Hatch, the Grazing Improvement Act is co-sponsored by Sens. Mike Crapo (R-Idaho), Mike Enzi (R-Wyo.), Dean Heller (R-Nev.), James Risch (R-Idaho) and John Thune (R-S.D.).

MEMORANDUM

KAREN BUDD FALEN
BUDD-FALEN LAW OFFICES, LLC

MAY 23, 2011

RE: LEVELING THE PLAYING FIELD: SUPPORT FOR THE GRAZING IMPROVEMENT ACT OF 2011

If jobs and the economy are the #1 concern for America, why are rural communities and ranchers under attack by radical environmental groups and overzealous federal regulators? America depends upon the hundreds of products that livestock provide, yet radical groups and oppressive regulations make it almost impossible for ranchers to stay in business. Opposition to these jobs comes in the form of litigation by radical environmental groups to eliminate grazing on public lands,
radical environmental group pressure to force "voluntary" grazing permit buy-outs from "willing sellers," and holding permittees hostage to the court deference given to regulatory "experts." The playing field is not level and the rancher is on the losing side. The Grazing Improvement Act of 2011 will level the playing field. I urge your support.

The Grazing Improvement Act of 2011 does the following:

1. Term of Grazing Leases and Permits. Both BLM and Forest Service term grazing permits are for a 10 year term. This bill extends that term to 20 years. This extension does not affect either the BLM's or Forest Service's ability to make interim management decisions based upon resource or other needs, nor does it impact the preference right of renewal for term grazing permits or leases.

2. Renewal, Transfer and Reissuance of Grazing Leases and Permits. This section codifies the various "appropriation riders" for the BLM and Forest Service requiring that permits being reissued, renewed or transferred continue to follow the existing terms and conditions until the paperwork is complete. Thus, the rancher is not held hostage to the ability of the agency to get its job done-a job that is admittedly harder because of radical environmental appeals, litigation and FOIA requests.

This bill also codifies the ability of the BLM and Forest Service to "categorically exclude" grazing permit renewal, reissuance or transfer from the paperwork requirements under National Environmental Policy Act ("NEPA") if the permit or lease continues current grazing management on the allotment. Minor modifications to
permit or lease can also be categorically excluded from NEPA if monitoring indicates that the current grazing management has met or is moving toward rangeland and riparian objectives and there are no "extraordinary circumstances." Finally, this section allows the BLM and Forest Service to continue to set their priority and timing for permit renewal or reissuance.

3. Applicability of Administrative Procedure Act. This provision is really what levels the playing field for the rancher, against the environmental "willing buyer" and the arbitrary decisions of the governmental regulator. First, this provision applies a real decision making process, with an independent hearing officer or judge, to Forest Service administrative appeals. Currently, legal challenges to Forest Service decisions are heard by the "next higher Forest Service line officer." There have long been allegations that this system is significantly skewed so that the Forest Service decision maker is "almost always right." For example, out of the 28 decisions that were administratively appealed in Forest Service Region 2 (Wyoming, Colorado, Kansas, Nebraska, South Dakota) from 2009 to the present, only 2 were rejected as being legally or factually wrong. In that same time period, in California, out of 78 appeals, only 13 decisions were either rejected or withdrawn. In Arizona and New Mexico, the Forest Service "independent review by the next higher line officer" only found 15 out of 83 decisions were deficient. In other words, just considering these three Forest Service regions, the agency found itself right 85% of the time. In a fair and equal system, no one is right that many times!

This provision would change that pattern so that Forest Service grazing permittees would appeal the decisions they believed were legally, factually or scientifically wrong to an independent law judge and the Forest Service would have to show why its decision is right, rather than the permittee having to show why the decision is wrong. The permittee would also be able to cross-examine Forest Service "experts" on the reasons for the decision and the agency would have to supply some justification for its decision. It is critical that Forest Service permittees have the ability to protect themselves from arbitrary decisions; an ability they do not have now.

Second, this Act would level the playing field for BLM permittees. Like the Forest Service provisions discussed above, this bill "changes" the current appeals system by requiring the BLM to prove its decision is legally and scientifically correct; rather than forcing the permittee to prove why the decision is legally and scientifically wrong. Additionally, the OHA has determined that when the BLM issues a decision adversely affecting a permittee's grazing privileges, the BLM decision can still be upheld, even if the BLM did not comply with all of the grazing regulations. In short, under the current appeals system, the permittee's experts have to show why the BLM experts are wrong (a burden that is very hard to carry) and the BLM decision can still be held to be correct, even if the BLM only substantially complied with its regulations. This is not a level playing field and a problem that absolutely needs corrected.

Finally, this section also returns to the law the "automatic stay" provisions eliminated by the Bruce Babbitt "Range Reform '94" regulations, except for decisions of a temporary nature and except in emergency situations.

In truth, this bill is more than mere technical changes to erroneous agency regulations, it gives some very real protection to the permittees. For example, the Ruby Pipeline "donation" to Western Watersheds Project to purchase grazing preferences on a "willing seller" basis only works if the permittee is honestly "willing to sell." However, if the permittee is always behind the curve in protecting his grazing permit and the only way he can "win" is by "voluntarily selling" his permit for pennies on the dollar, the word "willing" is truly compulsion. And, in the case of the Forest Service, the current administrative appeals process is like asking your father to change the decision of your mother, when your mother and father agreed on the decision before it was dictated to you.

Finally, this bill reverses the U.S. Justice Department capitulations to environmental groups during the course of recent litigation. These "settlements" have significantly restricted the BLM's and Forest Service's ability to legitimately use categorical exclusions to renew grazing permits. Neither the Justice Department nor the federal bureaucrats should be allowed to make Congressional policy without the Congressional branch of government. Make no mistake-this is not just a public lands ranchers' bill; this bill will help preserve family ranches, rural communities and the American beef supply. This is an American jobs bill! I urge your support and ask that you request your Congressional representatives support this bill.

-END-

Pearce pushes wilderness rollback

By Diana M. Alba DALBA@LCSUN-NEWS.COM


LAS CRUCES -- A proposal backed by Congressman Steve Pearce, R-N.M., would roll back wilderness-like protections from three Do a Ana County mountain ranges, as well as other land throughout the West.

The bill was applauded by local off-road vehicle enthusiasts and ranchers, who've complained the designations keep them off public lands, but condemned by wilderness proponents, who said it is the latest in a series of attacks by Pearce on the environment.

In Do a Ana County, the bill, H.R. 1581, would get rid of about 32,700 acres of wilderness study area, a temporary status treated like wilderness, which is the highest level of protection for federal lands.

A look back

Congress directed agencies to catalogue public lands in the 1970s and evaluate them for wilderness potential. In 1993, the U.S. Bureau of Land Management made its recommendations about potential wilderness in New Mexico.

In Dona Ana County, some 181,100 acres -- including in the Organ Mountains and West Potrillo Mountains -- were declared suitable for wilderness, while about 32,700 acres weren't, according to the report.

Despite the recommendations, Congress never took action, and the inventoried lands in Do a Ana County have been in a limbo state since.

Full-fledged, permanent wilderness status prohibits the use of mechanized vehicles -- at the heart of most contention surrounding the designation. Indeed, that was the focus a five-year debate about creating wilderness in Dona Ana County that cooled last December with the expiration of a bill by U.S. Sen. Jeff Bingaman, D-N.M.

Off-roading debate

No land in the in the Robledo or Sierra de Las Uvas mountains, in the west and northwest Do a Ana County, was recommended suitable for wilderness in 1993. They're among the temporary wilderness designations that would go by the wayside, if Pearce's bill were passed. About 8,600 acres in the West Potrillos, located in the southwestern part of the county, also would be removed.

Both are areas popular among off-road vehicle enthusiasts. But environmentalists contend they're scenically and ecologically valuable areas that merit wilderness protection.

Told about Pearce's proposal, ATV and off-road enthusiast Bob Duffey of Las Cruces said he favors removing some wilderness study area designations. The off-roading community, for the most part, uses public lands responsibly, he contended.

"There's enough land for everybody," said Duffey, a world champion motorcyclist. "We're not the big enemies they think we are."

Duffey pointed out that other states, including Utah, have benefited economically from promoting ATV recreation.

A notice sent by Pearce and two other sponsors soliciting support from other congressmen noted a number of off-roading, four-wheeling and logging groups that back the bill.

But Las Cruces City Councilor Sharon Thomas, a wilderness proponent, said the bill is a step backward. Getting rid of the designations would open up "very fragile lands" to more off-roading and development, she said.

"They're already being grazed upon, and that's probably enough," she said. "That's some risk; I don't think we should add anymore risks."

Forests, too

In addition to scrapping certain wilderness-study-area acreage, the bill would get rid of roadless areas within national forests that also haven't been recommended to become wilderness.

If passed, said Pearce spokesman Eric Layer, the lands would be managed as multiple-use, "which would allow for more recreational access and responsible resource development."

"Congressman Pearce is co-sponsoring this bill because it is a common-sense approach that simply codifies the recommendations of two federal agencies," he said in an email. "This is about seeking a common-sense solution to a land management issue in the West."

Should a wilderness study area designation be removed, the BLM would fall back to its long-term management plan, said Tom Phillips, with the agency's Las Cruces office. That offers protections for certain areas, including for environmental resources. For instance, if the Organ Mountain study area were lifted for some reason -- though that's not an actual proposal in the recent bill -- there would still be an administrative protection in place, he noted.

The legislation is likely to wind up a political statement only, given it's not backed by Bingaman, who chairs the Senate Energy and Natural Resources Committee, the panel that reviews wilderness bills. And the Senate and presidency are controlled by Democrats.

Bingaman, in an emailed statement, said H.R. 1581 would "take away existing protections from millions of acres of roadless areas managed by the Forest Service and BLM without properly considering the merits of each specific area."

"It could negatively impact the clean water we rely on that comes from these watersheds, and it could harm the fish and wildlife on our public lands that hunters and anglers use," he said. "For those reasons, I would oppose this legislation if it came to the Senate."

Pearce in 2008 introduced legislation to counter a wilderness proposal circulating in Do a Ana County. It would have eliminated wilderness study areas, while creating two new designations that would have restricted certain development while encouraging ranching. It never passed.

Changes?

Now, the BLM manages temporary wilderness conservatively.

Phillips described that as a "non-impairment standard," meaning the agency is attempting to preserve the lands, in case Congress ever decides to declare them permanent wilderness.

Some roads through temporary wilderness have been closed off, Phillips said. Still, there are some allowed routes, called "ways," Phillips said. Drivers, including ranchers and hunters, can use those roads, though they're not maintained routinely.

Also ranchers -- because wilderness allows ranching activity to continue -- can enter the areas with equipment to maintain water tanks periodically.

The BLM doesn't permit new roads in wilderness study areas, Phillips said, though he acknowledged the public does cut new, unauthorized dirt tracks.

If temporary wilderness was removed, Phillips said the agency could consider OK'ing new roads, as long as the area didn't have another type of protection under the agency's long-term plan. Projects would be evaluated on a case-by-case basis, he said.

"That's what we do now on land that's not WSA," he said.

Frank DuBois, a former New Mexico agriculture secretary and outspoken critic of the former Dona Ana County wilderness proposal, said he's aware of utility corridor projects that have "been delayed or re-routed at great expense" because of temporary wilderness. And one Dona Ana County rancher recently experienced a five-month wait while trying to get an OK to revamp a dirt tank, he said.

The proposed legislation isn't unreasonable, considering the BLM didn't recommend the areas be granted permanent status, DuBois said.

"I think the legislation is the ultimate in common sense," he said.

However, just because the BLM didn't recommend that these areas become wilderness does not preclude residents from seeking the designation independently, said Las Crucen Jeff Steinborn, a New Mexico Wilderness Alliance director who helped spearhead the legislation to create new wilderness. The bill, if passed, would hurt quality of life, hunting and recreation locally, Steinborn contended.

"To unilaterally roll back the protections makes no sense," he said. "It's not the type of vision most of us espouse in this county."

Diana M. Alba can be reached at (575) 541-5443.

Complaint Lodged With Agency Over Cow's Death

        The Catron County Commission has lodged a complaint alleging that state Game and Fish Department biologists tried to alter the finding of a federal investigation into a cow's cause of death.
        At stake in the verdict by Wildlife Services, a U.S. Department of Agriculture agency, is whether the cow's owner can receive compensation for the loss.
        If Wildlife Services confirms that a cow was killed by a Mexican gray wolf, an endangered species, a rancher can be reimbursed $747. But if the finding is not definite, if a wolf kill is only considered "probable," the rancher is not eligible for compensation.
        According to Catron County officials, two Wildlife Services employees, as well as the county's own "wolf incident investigator," concurred that a cow discovered Jan. 18 near the Arizona border had been killed by a wolf. Catron County officials allege Game and Fish biologists sought to change that conclusion to a "probable" wolf kill.
        According to Catron County's own news release issued this week, Game and Fish Director Tod Stevenson denied that his staff tried to modify the Wildlife Services finding from "confirmed" to "probable" wolf kill, but simply suggested federal personnel take into account the presence of feral dogs in the area of the cow carcass.
        The Game and Fish Department is looking into the matter, but administrators won't discuss the case at this time, said spokesman Lance Cherry.
        In response to emailed questions, Alan May, Wildlife Service's New Mexico director, said the exchange between his staff and Game and Fish employees in the case "was appropriate."
        During their meeting April 6, Catron County commissioners complained about the matter to Stevenson and two Game Commission members. The Catron commission in late February also filed a complaint with Gov. Susana Martinez asking for a review of the Game and Fish biologists' actions.
        "We have taken a no-wolf stand," Catron County Commission Chairman Hugh McKeen said in a written statement directed at the governor. "I'm requesting that you take a no-wolf stance, too."
        Martinez spokesman Scott Darnell said members of the governor's staff discussed Catron County's concerns with Game and Fish staff, adding: "We have instructed the Department of Game and Fish that this is a federal issue and DGF should not be playing such a role in the federal (wolf) repopulation efforts."
        May said that in trying to determine the cause of a domesticated animal's death, Wildlife Services personnel "routinely solicit input from others," including Game and Fish employees, "in order to ensure that the most informed decision is made."
        A private conservation group, Defenders of Wildlife, stopped paying ranchers compensation for wolf depredations last year; the group paid $19,203 to eight individuals in 2009 for wolf depredation claims.
       

NM ranchers: Venture threatens to leave area dry

Ray Pittman pulled his 1994 F-150 pickup to the top of a thinly wooded hill, a short walk from the water tank he built back in 1999 on his 1,300-acre ranch.

A mile down the hill, Pittman's 540-foot-deep well pumps groundwater, pushing it up to the tank to provide for cattle on this remote patch of central New Mexico landscape.

To the west, on the vast plain that makes up the Augustin Plains Ranch, a commercial venture has proposed sinking 37 wells to pump groundwater and pipe it to the Rio Grande Valley to supplement dwindling water supplies of central New Mexico's farms and cities.

The Augustin Plains Ranch proposal would move 54,000 acre-feet per year of water to the Rio Grande Basin 50 miles away — enough water to meet the needs of a city the size of Albuquerque.

In their application to the state, project backers were not specific about how the water would be used. The group declined repeated requests to provide further information.

But it appears to be aimed at making up for a water shortfall in the rapidly growing Rio Grande Valley, either through direct use or replacing water removed from the Rio Grande by municipal or industrial users upstream.

Those in the central New Mexico ranch country where the water would start its journey fear the project would leave them high and dry.

Pittman and his wife, Carol, use a second well to provide water to two ranch houses, three horses, two donkeys, "six or seven cats," one dog and nine goldfish that call one of the stock tanks home.

"People are afraid that this will deplete the aquifer," said Carol Pittman. "We all have wells."

The proposal would "essentially dry up the whole damn basin," said Albuquerque hydrologist Frank Titus. Water would disappear from wells, said Titus, who investigated the issue on behalf of the Pittmans and other residents of the ranching community. He said he has received no financial compensation for his work.

The Augustin Plains Ranch proposal and a similar project in eastern New Mexico, which would send water from the Fort Sumner area to Santa Fe, reflect entrepreneurial attempts to deal with a glaring New Mexico water problem.

The most detailed analysis, done for the New Mexico Interstate Stream Commission in 2004, found residents of New Mexico's Middle Rio Grande Valley are using water at an unsustainable rate, consuming water faster than nature replenishes it.

Albuquerque and Santa Fe have in the past few years started using water imported from the Colorado River Basin via the San Juan-Chama Project, reducing their dependence on unsustainable groundwater pumping.

Cities also have been pushed to make up some of the shortfall by buying up agricultural water rights in the Rio Grande Valley and taking the land out of production to reduce irrigation use.

To meet all municipal water needs would require taking nearly all the valley's agricultural land out of farming and shifting the water to city use, according to an analysis by the state Interstate Stream Commission.

The search for alternatives has led to the proposals to pump water from rural New Mexico into the Rio Grande Valley.

"There's no question in my mind that at some point there may be a need to augment the Middle Rio Grande by bringing in some bulk water from somewhere," State Engineer John D'Antonio said.

The proposals raise the specter of the Owens Valley, the California area dried up early in the 20th century to bring water to Los Angeles. Taking that water devastated the Owens Valley, D'Antonio said.

For now, D'Antonio, whose office administers New Mexico water rights, has said no. In a ruling earlier this year, D'Antonio turned down the Fort Sumner proposal. The group proposing the pipeline has appealed.

Attorneys involved in the case say the law cited in D'Antonio's decision is likely to apply to the Augustin Plains Ranch proposal. But the legal argument behind the decision is narrow, leaving open the possibility the proposal could return.

There are significant differences between the proposals.

The Fort Sumner proposal at 6,425 acre-feet of water per year involves about one-eighth the amount proposed to be pumped from the basin adjacent to the Pittmans' ranch.

The Fort Sumner proposal also involves existing groundwater pumping rights being used to irrigate farm land, said Ron Green, the Roswell rancher behind the project. The Augustin Plains Ranch wants to create new water rights with its 37 wells.

But the chief complaint against both projects is similar — that pumping water from rural areas to meet demand in New Mexico's cities will reduce the water available to communities left behind.

Green says the Fort Sumner project was designed to protect the water rights and economy of the Pecos River Valley, where the water will originate. The project has been structured to take only groundwater from farms in a way that won't affect the rights of other water users, Green said.

Steve Hernandez, the attorney who represents Pecos Valley irrigators who oppose the project, says the project poses the risk of upsetting the delicate water rights balance in the valley.

The project has a fatal flaw, according to D'Antonio's decision: Green has not identified who, specifically, will be using the water.

State water law requires an identified "beneficial use" on the receiving end, D'Antonio ruled. Without knowing who will use the water, where and how, the state cannot approve the application, D'Antonio ruled.

The argument used in the Fort Sumner ruling appears to apply to the Augustin Plains Ranch proposal, said Bruce Frederick of the New Mexico Environmental Law Center, who represents the Pittmans and other opponents.

The Augustin Plains Ranch proposal submitted in 2008 simply says the water can be used for any purpose anywhere in the portions of Catron, Sierra, Socorro, Valencia, Bernalillo, Sandoval and Santa Fe counties that lie in the Rio Grande Basin.

That falls short of the requirement to specify a "beneficial use," said Frederick.

The proposal amounts to an "attempt to monopolize a water supply for purposes of speculation and possible future water sales," Frederick wrote in a brief filed in the case.

There has been no decision in the case. But observers note both projects could overcome the current legal hurdle by signing up and identifying users, starting the legal discussions anew.

To Graze or Not To Graze?

Drought, Forest Service threaten to delay grazing season

The Rio Arriba County Commission voted to declare a state of emergency on behalf of local ranchers after the federal Forest Service threatened to delay the start of cattle grazing season on public lands.

Several stockmen spoke to the Commission at a meeting March 31 and said due to persistent, drought-like conditions in the region, district rangers in the Santa Fe and Carson National Forests were going to push back the date ranchers are permitted to release their cattle onto public grazing lands.

Dennis Gallegos, whose cattle graze on the Polvadera allotment in the Santa Fe National Forest, stood before the Commission the day before his permitted release date and said he was willing to force a confrontation with the Service, though he had been told not to release his cows yet. Then he called upon the commissioners to support him.

“I’m willing to turn the cattle out tomorrow if the County’s willing to challenge (the Service’s) authority,” Gallegos said. “I’m willing to start the brawl.“

Carlos Salazar, president of the Northern New Mexico Stockman’s Association, also spoke at the meeting and said he hoped the Commission and the sheriff would support Gallegos if he defied the Service.

Commission Chairman Felipe Martinez said as a public official the Commission could not encourage civil unrest. Then he added, “If I was in your position, maybe I’d do it too.”

Commissioner Alfredo Montoya agreed with Martinez that the Commission could not encourage defiance of the Service but to appease the ranchers he proposed passing the resolution declaring a state of emergency.

The resolution was drafted on the spot by Salazar, County attorney Ted Trujillo and County Emergency Manager Mateo DeVargas, then passed by the Commission. It declares “a state of emergency for the grazing community“ and calls upon available local resources and emergency measures, though it does not call for any explicit action or set aside any money.

Montoya said the declaration will call attention to the matter and could qualify the County for state resources.

Gallegos, who has one of the earliest permitted entry dates in the Santa Fe National Forest, said he received a verbal warning from Forest Service Range Conservationist Donald Serrano informing him that due to a lack of rainfall, his entry to the Polvadera allotment would be delayed indefinitely.

On April 1, the day Gallegos was supposed to turn his cattle out to graze, he instead met with Española District Ranger Sandy Hurlocker, Serrano and three members of the Range Improvement Task Force from New Mexico State University for a joint evaluation of the grazing land.

Sam Smallidge, of the task force, agreed with Serrano’s assessment that conditions on the range were dry, but said there was enough residual forage from last year to sustain Gallegos’ 30 cattle for at least a month until the date of release for other ranchers’ cattle on the allotment, whereupon a reassessment of the conditions should be conducted.

Smallidge also said a wet summer can be expected following a dry La Niña winter.

But Serrano said if conditions remain dry the entire allotment may have to be abandoned for the season and he was concerned that it would be more difficult to persuade Gallegos to remove his cattle than prevent him from allowing them onto the lands in the first place. Serrano said if the pastures received enough rainfall in the coming weeks to spur the growth of forage grasses for the cows, everything could proceed as normal.

“Why would I leave my cattle in a place with no food and water?” Gallegos said. “I’d rather sell them for $600 each than clip tags off their ears and let them die.”

Serrano fretted that if water remained scarce the ranchers would herd the cows into a higher-altitude pasture, potentially affecting an area the Service is rehabilitating from a forest fire last year and damaging a trout stream.

“We’re under a lot of pressure to take care of the burn area,” Serrano said.

After the joint assessment, Hurlocker, who as district ranger has the final say on the grazing decision, said he would allow Gallegos to turn out his cattle Monday, if he agreed to undertake certain measures, such as hauling water by truck for his cows or removing his cattle, should the dry weather persist

Hurlocker said he would incorporate the added measures into Gallegos’ annual operating instructions — a set of regulations given to each rancher at the start of each season. Hurlocker said situations like this are difficult because he is charged with managing the land for many uses not just cattle.

Gallegos’ reprieve may be temporary. Serrano said ranchers should be prepared with emergency drought plans and may have to sell their cows, send them to slaughter or support them on hay on their own property through all or part of the summer.

Ranchers on the Jarita Mesa and Alamosa allotments in the Carson National Forest — who are already bracing for a season marked by a 20 percent reduction in their permitted cattle — were also given warning in January that if the dry weather continued they would be subject to later entry dates, said Jarita Mesa Rancher Sebedeo Chacon. As of March 31, with many of the ranchers’ entry dates a month or two away, he said the Forest Service had not given him a written notice of any postponement, something he said it is required to do.

The emergency declaration cites delayed entry of livestock in several allotments in the Jemez, San Juan and Sangre de Cristo Mountains.

Don't let Big Green use government to mug taxpayers

So you are walking along one bright, sunny day minding your own business and loving life when suddenly two strangers jump in front of you, one a bearded dude in a worn L.L. Bean canvas shirt, khaki cargo shorts and sandals, the other in a dark pin-striped suit waving a file labeled "Equal Access to Justice Act."

When they demand that you "hand it over," your first instinct is probably to grip your wallet while assuming a defensive stance. You are indeed about to be mugged, but don't bother fighting these characters. Resistance is useless because such muggers have the law on their side. EAJA payouts for lawyer fees and other settlement costs in environmental suits against the government are going to leave you much poorer.

But the day could be coming when you won't be entirely without recourse, thanks to Sen. David Vitter, R-La., and Rep. Rob Bishop, R-Utah. They have introduced the Domestic Jobs, Domestic Energy, and Deficit Reduction Act of 2011 (3-D). The sponsors claim their bill "would create more than 2 million jobs, $10 trillion in economic activity, and $2 trillion in federal tax receipts (conservative 30-year estimates)." Among 3-D's major features are provisions to prod the federal bureaucracy to speed up Outer Continental Shelf lease sales for oil and natural gas exploration and development off the U.S. coasts, as well as federal permitting for energy purposes on public lands. The measure also would fix time limits on environmental and judicial reviews of leases and permits.

So what has all that to do with the two menacing figures blocking your way? The 3-D proposal would cap EAJA payouts in environmental lawsuits against the government. Under EAJA, Big Green environmental groups like the Environmental Defense Fund and Center for Biodiversity file hundreds of suits against the government every year, knowing the odds are great the litigation will be settled out of court. Win or lose, the Big Green groups receive millions of dollars in settlements, including lawyers fees and other cost reimbursements. The settlements are paid by the Treasury Department's Judgment Fund. Vitter and Bishop estimate that at least $4.7 billion has been paid out since 2003, with much of it going to Big Green groups.

But here's the catch: According to the Treasury Department, "the Judgment Fund has no fiscal year limitations, and there is no need for Congress to appropriate funds to it annually or otherwise. Moreover, disbursements from it are not attributed to or accounted for by the agencies whose activities give rise to awards paid. Absent a specific statutory requirement, the agency responsible is not required to reimburse the Judgment Fund." In other words, EAJA invites Big Green attorneys to file suits regardless of merit, knowing their hefty fees will be covered in the settlement paid from the Judgment Fund.

Worst of all, taxpayers have virtually no way of knowing how much such suits cost because courts often seal the settlements. Plus, according to Vitter and Bishop, "since 1998 there has been no uniform method of reviewing EAJA and there is no public accountability or transparency in the program." Tomorrow's Examiner editorial will look at the victims of this legalized theft and the lengthy list of Big Green perpetrators assaulting them.

Secrecy hides taxpayer dollars used in Big Green lawsuits

For thousands of farming and ranching families with leases and grazing rights on public lands in the West, having a good lawyer on call is more than a routine cost of doing business. It's an absolute necessity to protect a way of life that has often been handed down for generations. But that's far from the worst of it because not only do these hard-working, taxpaying men and women have to pay their own attorneys, they also frequently end up having to help pay the attorneys' fees and other legal costs for Big Green environmental groups that file lawsuits seeking to force the federal government to do their bidding. Usually, the individual ranchers and farmers aren't even defendants, they're just innocent bystanders who need attorneys to protect their interests because their livelihoods depend on the outcome of such litigation.

This unjust situation is a result of the Big Green environmental movement's discovery several decades ago that there was indeed "gold in them thar hills," thanks to an obscure federal law known as the Equal Access to Justice Act. Sunday's Examiner editorial detailed how a law intended to help small businesses get their day in court has been perverted into an unaccountable, tax-paid, cash cow worth hundreds of millions of dollars to groups like the Sierra Club, Center for Biodiversity, Environmental Defense Fund and Natural Resources Defense Council.

Payments under EAJA are made by the U.S. Treasury to its Judgment Fund, which is funded by a permanent congressional appropriation. The fund is not audited, agencies aren't required to account in their budgets for payments mandated by court decisions in their areas of jurisdiction, and courts often seal settlements to prevent public examination. It's an open invitation for Big Green groups to file suits, knowing that win or lose, most if not all of their legal expenses will be paid by the government. Best of all for them, it's all but impossible to track who gets how much from the taxpayers from these suits.

But there is enough evidence available to remove any doubt that Big Green litigators have hit the jackpot. Wyoming attorney Karen Fallen has spent many hours poring over court records to compile what she concedes is an incomplete list that includes 647 cases, including 299 in which nearly $18 million was paid under the EAJA to lawyers for 10 Big Green groups. If that amount seems insignificant, Sen. David Vitter, R-La., and Rep. Rob Bishop, R-Utah, estimate that at least $4.7 billion has been paid out of the Judgment Fund under the EAJA since 2003, with much of it going to Big Green groups. Vitter and Bishop have introduced legislation to cap such payments and to mandate proper accounting of them. Such actions would be good first steps toward restoring balance to federal litigation costs and ensuring justice for Western farmers and ranchers.

Gas pipeline company blasted for its role in purchasing Idaho grazing leases

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.

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.”

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.