Court blocks changes in Bush-era grazing regulations
In a sometimes strongly worded decision, a three-judge panel said there is “resounding evidence'' that some of the changes in grazing regulations may affect species that are listed as endangered or harm their habitat. Yet the BLM concluded there would be no impact.
The judges also called it “undisputed'' that the regulations, proposed in 2006, “significantly reduce public oversight of grazing on public land.'' Judge Richard Paez, writing for the court, said that fact was pointed out to the BLM by various other agencies, including the Arizona Game and Fish Department, all of which said that reduced oversight would have negative environmental consequences.
“The BLM failed to address concerns raised by its own experts,'' Paez wrote, “as well as those from the federal Fish and Wildlife Service, the Environmental Protection Agency and various state agencies.''
For example, Paez said, in pushing ahead with the rules, BLM offered “no reasoned analysis'' for its conclusion — contradicted by those other agencies — that there would be no environmental effect caused by both across-the-board reductions in public involvement in management of grazing on public lands and the total elimination of public input into certain management decisions.
The judge also said BLM never seriously considered the concerns of others that the 2006 rules would weaken the ability of the agency to manage rangelands in a timely fashion.
And Paez said the final environmental impact statement doesn't address the consequences of increased construction and private water rights on public lands “despite concerns expressed by its own expert scientists.''
Paez also found fault with the effort by the EPA to delay any reductions in grazing under the claim that it could lead to better relations with ranchers.
“While diplomacy with permittees or lessees of public rangelands is certainly a worthy goal, it is no substitute for the BLM's obligations to comply with the National Environmental Policy Act and to conduct a studied review and response to concerns about the environmental implications of major agency action,'' the judge wrote.
He also said it appears that while BLM met the legal requirement of putting out its proposed rules for comment, the agency all but ignored the responses it got, making the whole exercise “form over substance.''
Roderick Walston, who represents the Public Lands Council, made up of ranchers who graze their cattle on public lands, said the judges got it wrong. He intends to ask the full appellate court to review the decision of its three-judge panel.
He said the courts should have thrown out the lawsuit when it was first filed by various environmental groups.
“You don't have standing to sue under the Constitution unless you can show how the regulations cause some concrete and particularized injury to you,'' Walston said. In this case, he said, these were only proposed regulations, meaning the challengers could not show the necessary harm.
Walston also disputed the judges' conclusion that the environmental impact statement was not very well done and ignored key facts. He said there was “extensive discussion'' of all the environmental effects of the proposed rule change.
One thing that may be working against Walston and his client is that the BLM itself, after losing the case at the trial court level, decided it was not interested in appealing the case. That has left the Public Lands Council and its allies at the American Farm Bureau Federation trying to convince the courts that what the BLM tried to get approved was correct in the first place.
“We'd always rather have the federal government in the case with us,'' he said. “But that does not affect our ability to go forward.''