A federal magistrate judge let stand portions of a lawsuit brought by environmental groups over the allotments in the Steens Mountain of Oregon, once used by the Hammond family.
Judge Andrew Hallman for the U.S. District Court for the District of Oregon found the government’s motion to dismiss the suit as moot should be granted on certain claims by environmental groups, but the majority of the groups’ claims should stand.
Western Watersheds Project and three other environmental groups brought suit against the secretary of the Department of the Interior and the Bureau of Land Management (BLM), challenging the issuance of a grazing permit to Hammond Ranches Inc. by then-Interior Secretary David Bernhardt.
The groups argued the government violated several provisions of the Federal Land Policy and Management Act, the National Environmental Policy Act (NEPA), the Administrative Procedure Act and the Steens Mountain Cooperative Management and Protection Act.
The groups state the Hammonds overgrazed the allotments during two periods, and they violated the 2019 grazing permit by placing “six times the head of cattle allowed on the Hammond Allotment 10 days before the permit began.”
The grazing permit was subsequently withdrawn, and in 2020, BLM announced livestock operators could apply for the grazing allotments. BLM also announced it was beginning the NEPA process and issued a draft allotment plan and environmental assessment (EA). According to court documents, BLM allowed eight days for public comments on the draft documents, “an uncommonly short public comment period,” and BLM later ended the protest period before the required 15 days.
“BLM purported to resolve 160 separate protests in a single business day, and then-Secretary Bernhardt issued a final decision to grant grazing privileges to the Ranch on January 19, 2021, the documents state.
The groups filed suit on Feb. 25, 2021, and claimed the government’s 2021 grazing decision:
1. Improperly assumed jurisdiction before the decision became a “case” and shortened the protest period before issuing a final grazing decision.
2. Awarded the permit to an unqualified applicant under the Land Policy Act because Hammond Ranches Inc. had a history of violations, and other applicants did not.
3. Based the final decision on a flawed EA and finding of no significant impact (FONSI).
4. Failed to ensure the issued permit complied with the sage grouse management plan issued under the Land Policy Act.
5. Issued a permit violating the Steens Act by not adequately protecting the Steens Mountain Cooperative Management Area and “misinterpreting the Steens Act to include an additional competing purpose of promoting viable and sustainable grazing operations.”
Under the Land Policy Act, grazing decisions must comply with resource management plans, and the groups stated that a management plan for the sage grouse requires vegetative standards to be met on the allotments. The act also requires applicants for renewed grazing permits to have a satisfactory record of performance based on substantial compliance with prior permits and applicable rules and regulations.
“Finally, the Land Policy Act has two procedural requirements: first, the government must hold a 15-day protest period before issuing a final grazing decision, and second, the Secretary can only assume jurisdiction over ‘cases,’” court documents show.
The Steens Act requires the secretary to prepare “a comprehensive plan for the long-range protection and management of the Federal lands included in the Steens Management Area,” according to court documents.
After the suit was filed, the 2021 grazing permit was rescinded and remanded back to BLM for consideration. In April 2021, BLM announced it was engaging in the NEPA process and subsequently published a notice of intent to prepare an EIS for the allotments.
In February 2022, BLM withdrew the FONSI for the allotments.
On June 29, Hallman heard oral arguments regarding the case, and lawyers for the government moved to dismiss the suit as “moot since there is no live controversy between the parties,” said Shannon Boylan, the government’s attorney.
The environmental groups assert the withdrawal of the FONSI did not include the EA and did not remove all doubt about the mootness of the case.
Hallman, in the findings, stated the government made it clear that the future process of issuing a final grazing permit will include a sufficient time period for protest, and the grazing decision will not be made based on the challenged EA and FONSI. As a result, Hallman ruled in favor of the government on the portion of the first claim regarding the shortened protest period and on the third claim.
However, Hallman let stand the other claims by the environmental groups since the government did not state that it incorrectly issued the permit to Hammond Ranches Inc. despite the ranch’s history of violations or that the prior permit violated the Steens Act or the sage grouse management plan. Hallman further stated the government made no representations that it would avoid the challenged acts in the future.
“As a result, the court cannot find that it is absolutely clear that the government will not issue a grazing permit on the allotments to the ranch or issue a permit in line with the alleged violations to the Steen’s Act or applicable land use plans,” Hallman wrote. “Nor can the court find that the Secretary will not assume jurisdiction over the permit decision before BLM issues a decision.”
Hallman denied the government’s motion to dismiss the second, fourth and fifth claims, along with the portion of the environmental groups’ first claim related to the Secretary prematurely assuming jurisdiction of the grazing decision.
Objections to the findings and recommendation issued by Hallman must be submitted by Dec. 13. — Charles Wallace, WLJ editor
