The federal government is asking the court to dismiss a lawsuit by environmental groups regarding grazing allotments once used by Hammond Ranches Inc. (HRI) because the government has rescinded the decision to allow grazing until it completes an environmental review.
Lawyers for the Bureau of Land Management (BLM) presented oral arguments on June 29 in the U.S. District Court for the District of Oregon. “The case is moot because there is no live controversy between the parties,” said Shannon Boylan, the government’s attorney.
Western Watersheds Project (WWP) and three other environmental organizations urged Judge Andrew Hallman not to dismiss the suit over concerns the BLM will not complete the environmental impact statement (EIS) for the allotments.
“Right now there is no EIS, so it’s premature to declare the case moot,” said Talasi Brooks, attorney for WWP. “We don’t know what the agency will do this time, and we won’t know until they do it.”
In December 2021, the BLM announced it was conducting a scoping period for public comments on a proposed EIS for the 26,378-acre Bridge Creek project area in southeastern Oregon near the town of Frenchglen. The project covers the Hammond Fenced Federal Range, Hammond, Mud Creek and Hardie Summer allotments. The EIS will consider options from issuance of grazing for a 10-year period for up to three applicants to no grazing.
BLM also filed a motion to dismiss the complaint in December 2021, stating that because it rescinded the decision to issue the grazing permit to HRI, made by then-Secretary of the Interior David Bernhardt in January 2021, the environmental groups’ case is moot. Court documents state the decision was rescinded “nearly a year ago,” and the plaintiffs can no longer “assert actual injury to any concrete interest they may have in the Bridge Creek allotments. Accordingly, the court lacks subject-matter jurisdiction over plaintiffs’ claims and they should be dismissed.”
BLM stated in the motion it will conduct a new National Environmental Policy Act (NEPA) analysis and provide further opportunities for the public—including the plaintiffs—to participate before BLM renders a new final decision.
As a result of issuing the notice to prepare a new EIS, BLM announced it withdrew the findings of no significant impact (FONSI).
WWP and the environmental organizations filed court documents on March 2 in reply to the motion to dismiss, stating BLM’s decision to withdraw actions and decisions in the lawsuit “confirms that this case is reviewable under well-established exceptions to the mootness doctrine.”
The groups assert the withdrawal of the FONSI did not include the environmental assessment (EA) and did not remove all doubt about the mootness of the case. The removal of the FONSI and the grazing authorization is an action by the BLM to avoid review by the court, the groups claim. “It is well-established that an agency cannot moot a plaintiff’s case by stopping its offending conduct in this way.” Citing a previous lawsuit in the 9th Circuit Court, they state, “Voluntary cessation saves an issue from becoming moot if the defendant voluntarily stops the allegedly illegal conduct to avoid a judgment against him unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
WWP and the groups continue to challenge the EA without the grazing decision.
“The agency can issue a new decision based on that EA at any time,” Brooks said at the June hearing. “The fact the EA is still in effect means the agency can do the same thing again. BLM can authorize grazing based on the EA at any time.”
The government replied the plaintiffs “have not demonstrated a concrete injury to their interests and therefore have failed to show that they have standing to pursue a claim solely against the EA.”
BLM countered in a response that the case is mootness, not finality.
“Even if finality were at issue here, moreover, BLM withdrew the challenged decision and the challenged FONSI, committed to developing an EIS, and clarified that no further grazing will be authorized before the agency completes that new NEPA process,” court documents stated.
According to W. Alan Schroeder, the lawyer for HRI, the company submitted comments during the scoping period on the EIS.
Schroeder told WLJ in an email the revocation by the Biden administration of the grazing permit issued by Bernhardt is starting the process all over again.
In a letter to BLM, HRI and Schroeder questioned why the agency is requesting comments on the same objectives BLM previously considered, assessed and decided on in its previous NEPA and decision-making processes completed on Jan. 19, 2021. The letter asks BLM to also consider that the lands within the allotments are within a grazing district duly established by the secretary of the Interior in accordance with the Taylor Grazing Act. It also asks BLM to consider the amount of private land, water rights and related private infrastructure within the Bridge Creek area owned or controlled by HRI.
In response to the letter from Schroeder, Don Rotell, Andrews/Steens field manager for BLM, responded he expects to have a record of decision signed for the allotment management plan sometime in the “spring of 2023, and grazing decisions regarding allocation of available forage and grazing preference would be made shortly afterward.” Rotell also stated the agency could not issue a nonrenewable permit to HRI because they are not currently under NEPA analysis.
Schroeder stated he is surprised the lawsuit is still pending and not final.
Hallman said a decision would be issued within 60 days but urged the parties to find an interim solution. — Charles Wallace, WLJ editor
