A judge ruled Jan. 13 in favor of a stay against a Bureau of Land Management (BLM) decision that authorized a Simplot cattle company to increase their grazing numbers on an Idaho allotment.
Administrative Law Judge Veronica I. Larvie in the Office of Hearings and Appeals, an administrative law court within the Department of the Interior, ruled the “risk of immediate harm” to resources in the area “from which it may never recover” warranted a stay of BLM’s decision.
Background
In October, the Bureau of Land Management (BLM) issued a final decision that revised and renewed a livestock grazing permit for 10 years for J. R. Simplot Company, doing business as Dickshooter Cattle Co. (DCC).
DCC’s grazing permit for the Big Springs Creek allotment is located in Owyhee County, ID, and includes 60,174 acres of public land, 4,543 acres of state land and 4,419 acres of private land, totaling 69,136 acres. The entire allotment is a sage grouse priority habitat management area.
Under the prior permit, DCC was authorized 10,621 animal unit months (AUMs) between April and September each year. Average actual use in the management area between 1995 and 2018 was 3,779 AUMs, according to court documents.
Using data from 2004-2012 and 2019, BLM had determined DCC’s grazing area was not meeting the Idaho Standards for Rangeland Health (ISRH) for water quality and special status species, and grazing management was likely the reason for DCC’s failure to meet the standards for special status plants.
To address the issues found, BLM prepared an environmental analysis with four alternatives, one of which was proposed by DCC. Under DCC’s proposal, BLM would authorize the use of 10,800 AUMs and incorporate a proposed comprehensive adaptive management plan. BLM selected DCC’s proposal but chose to utilize a substitute adaptive management plan.
This alternative authorized an increase of 179 AUMs due to a land transfer deal between BLM and DCC, as well as the creation of a sage hen allotment within the grazing boundaries. The decision also authorized construction of four range improvement projects and potential construction of an additional three projects.
A trio of conservation groups, WildLands Defense, Western Watersheds Project and Wilderness Watch, then appealed and petitioned for a stay regarding BLM’s decision.
Larvie’s opinion
In response to the BLM’s environmental analysis and final decision, the conservation groups “noted several eyebrow-raising features,” according to Larvie’s opinion. These included:
• Concern over “BLM’s apparent willingness to sacrifice at least one occurrence of BLM sensitive species Bach’s calicoflower.”
• The fact that the final decision may be inconsistent with the 1983 Bruneau Management Framework Plan’s directive to “provide (for) or enhance rare and endangered plants where they exist throughout the planning unit.”
• Failure to follow site-specific National Environmental Policy Act analysis.
• BLM’s decision to utilize riparian conditions to assess cultural resources impacts, but failure to respond to WildLands Defense’s protest point asking for rationale behind the choice.
“However, the most concerning aspect of the (final decision) is that it abandons some of the most crucial components of the comprehensive, carefully-thought-out adaptive management plan delineated at Appendix C of the (environmental analysis),” Larvie wrote.
“Instead, the (final decision) adopts an adaptive management plan through which grazing use will be reduced by at least one week—using one-week increments—if minimum stubble height and browse thresholds are not met at the end of each growing season.”
She added that the least problematic part of the plan was BLM offering little explanation as to why grazing reductions as short as one week are expected to bring the allotment in conformation with ISRH. “What is more problematic is that under the (final decision): ‘Following the year that thresholds are met, the full use period will be reinstated,’” Larvie wrote.
“Under the adaptive management plan analyzed in the (environmental analysis), BLM has discretion to keep grazing mitigation measures in place if it determines that they are necessary to maintain applicable stubble heights and browse thresholds.”
Larvie said the final decision was a significant change from what was analyzed in the environmental analysis. As such, she wrote, it leaves her to wonder whether the adaptive management plan will result in “continuous oscillation” between grazing that meets the minimum stubble height requirement and grazing that causes the allotment to fail to meet standards.
Larvie said granting a stay would have little effect in terms of authorized use, since grazing would continue at the level of use authorized in the prior permit. However, she noted the difference between authorized use and actual use on the allotment is significant, and the final decision “clearly demonstrates an intent to increase actual grazing use” by authorizing construction of range improvement projects.
This raises concern, she wrote, because grazing with the original 3,779 AUMs failed to meet the ISRH, and BLM identified grazing as a significant reason for that.
“The possibility of increased actual grazing use in the (grazing area) creates a risk of immediate harm to resources in the (grazing area) from which it may never recover,” Larvie wrote. She added that heightened attention to such risks was necessary when the entire grazing area is sage grouse habitat.
DCC argued that a stay will have adverse economic impacts on the cattle company as well as the local economy of Owyhee County, to which Larvie wrote, “While I do not take DCC’s assertions lightly, BLM’s economic analysis in the (environmental assessment) concludes that DCC could continue operation under the prior permit.”
She continued that she does not intend to let the appeal linger on her docker, as she recognizes “the need for economic certainty among members of the ranching community,” and as such, she intends to determine whether the final decision is sound or if it should be vacated. “Thus, the relative harm to DCC should be minimal,” she said.
Larvie therefore granted a stay, giving 30 days for contestors to file an appeal to the Interior Board of Land Appeals. — Anna Miller, WLJ managing editor
