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Western Watersheds Project v. Jewell

United States District Court, D. Utah

November 23, 2016

WESTERN WATERSHEDS PROJECT; COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiffs,
v.
S.M.R. JEWELL, in her official capacity as Secretary of the Interior; NATIONAL PARK SERVICE, Defendants.

          MEMORANDUM DECISION AND ORDER AFFIRMING THE NATIONAL PARK SERVICE'S FINAL AGENCY ACTION

          JILL N. PARRISH, UNITED STATES DISTRICT COURT JUDGE

         Plaintiffs Western Watersheds Project and Cottonwood Environmental Law Center (collectively “Environmental Plaintiffs”) bring this suit challenging the actions of the National Park Service (the “Park Service”) in issuing an October 2014 three-year Special Use Permit (the “Permit”) authorizing cattle grazing on the Hartnet Allotment in Capitol Reef National Park (“Capitol Reef”). Environmental Plaintiffs allege that the Park Service failed to comply with the National Environmental Protection Act (“NEPA”) and therefore violated the Administrative Procedures Act (“APA”). Specifically, Environmental Plaintiffs contend that the Park Service's decision to categorically exclude the Permit for the Hartnet Allotment from NEPA analysis was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Environmental Plaintiffs appeal the agency action, asking this court to hold that the Park Service violated NEPA and requesting the court vacate the categorical exclusion and the Permit. For the reasons set forth below, the court AFFIRMS the Park Service's action.

         FACTUAL BACKGROUND

         Capitol Reef National Park, located in south-central Utah, was established by Congress on December 18, 1971. At that time, there were 19 cattle grazing allotments within Capitol Reef. The enabling legislation provided for a 10-year phase-out of cattle grazing in the park. But local concern about the economic impact of phasing out cattle grazing in Capitol Reef led Congress to pass legislation in 1982, extending grazing in the park through December 31, 1994. The 1982 legislation also called for the Park Service to contract with the National Academy of Sciences to study the impact of grazing on Capitol Reef's resources. In 1988, Congress passed another piece of legislation that extended cattle grazing privileges to allow permittees who legally used Capitol Reef lands for livestock grazing when the park was established to continue the practice during their lifetime and the lifetime of their children who were born on or before establishment of Capitol Reef. This 1988 law is still in effect today.

         The Park Service bought out seventeen of the grazing permits over the past few decades and now only two grazing allotments remain in Capitol Reef. Among the two remaining allotments is the Hartnet Allotment. The Hartnet Allotment is comprised of 96, 000 acres-about 71, 000 of which are in the park. It has been managed by the Park Service since 2010. The grazing season on the Hartnet Allotment runs from October 15 through May 31 each year for up to 163 cow/calf pairs. The Park Service authorizes grazing on the Hartnet Allotment by issuing Special Use Permits.

         Three protected plant species found in the Hartnet Allotment are listed as threatened or imperiled under the Endangered Species Act: the Wright Fishhook cactus (Sclerocactus wrightiae), the Winkler cactus (Pediocactus winkleri), and the Last Chance Townsendia (Townsendia aprica). The Hartnet Allotment area contains “very important habitat for the maintenance of” each of these three species.

         On October 15, 2014, the Park Service issued a three-year Permit for grazing on the Hartnet Allotment. The three-year permit was considered an “interim permit” because the Park Service is proceeding with an Environmental Impact Statement (“EIS”)/Management Plan for long-term management of livestock grazing and trailing in Capitol Reef. The EIS/Management Plan is scheduled for completion in 2017. When the Park Service issued the three-year Permit, it categorically excluded the Permit from NEPA analysis. In December 2014, the Park Service prepared a Biological Assessment pursuant to the Endangered Species Act that analyzed the impacts of cattle grazing on the three protected plant species through 2017. The U.S. Fish and Wildlife Service also subsequently completed a Biological Opinion (“BiOp”) similarly analyzing the impacts of cattle grazing on the three protected plant species.

         Environmental Plaintiffs first filed their complaint against the Park Service on April 29, 2014 alleging that the Park Service had violated NEPA and the Endangered Species Act by failing to analyze the environmental impacts of cattle grazing in Capitol Reef. After the Park Service issued the Permit in October 2014 and prepared a Biological Assessment pursuant to the Endangered Species Act that analyzed the impacts of cattle grazing on the three plant species through 2017, the parties agreed that the Environmental Plaintiffs' claims under the Endangered Species Act were moot. Environmental Plainiffs amended their complaint on April 30, 2015, challenging only the Park Service's decision to categorically exclude from NEPA analysis the three-year Permit for grazing on the Hartnet Allotment. On March 16, 2015, the Park Service published a notice in the Federal Register announcing its intentions to complete the long-term EIS/Management Plan. Thus, the only issue before the court is whether the Park Service violated NEPA by categorically excluding the Permit for the Hartnet Allotment from environmental analysis while the long-term EIS/Management Plan is prepared.

         LEGAL STANDARDS

         Although docketed as a Motion for Summary Judgment, this is a review of final agency action and will be analyzed under the appropriate standard of review for agency action-not under Fed.R.Civ.P. 56. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994) (“A district court is not exclusively a trial court. In addition to its nisi prius functions, it must sometimes act as an appellate court. Reviews of agency action in the district courts must be processed as appeals. . . . Motions to affirm and motions for summary judgment are conceptually incompatible with the very nature and purpose of an appeal.”).

         The APA allows for judicial review of final agency action. 5 U.S.C. §§ 702, 704. The APA further outlines the scope of judicial review and states that “[t]he reviewing court shall . . . hold unlawful and set aside agency action . . . found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). The duty of a court in reviewing agency action under the “arbitrary or capricious” standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made. Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). “[I]f the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, ” then the agency action would be arbitrary and capricious and held to be unlawful. Motor Vehicle Mfrs. Ass'n., 463 U.S. at 43. In engaging in its review, the court must be thorough, but keep in mind the standard of review is narrow and highly deferential with the agency's decision being “entitled to a presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The court looks to “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. at 416.

         NEPA “mandates that federal agencies . . . assess potential environmental consequences of a proposed action.” Utah Envt'l Cong. v. Russell, 518 F.3d 817, 820-21 (10th Cir. 2008) (citations omitted). Although NEPA “dictates the process by which federal agencies must examine environmental impacts, ” it does not substantively limit agency conduct. Id. at 821 (citations omitted). A federal agency can comply with the NEPA process for a proposed action in one of three ways: (1) prepare an environmental impact statement, (2) prepare an environmental assessment, or (3) prepare a categorical exclusion. Id. A “categorical exclusion” is available only for “those actions predetermined not to ‘individually or cumulatively have a significant effect on the human environment.' [40 C.F.R.] § 1508.4.” Id. In Guidance Regarding NEPA Regulations, 48 Fed.Reg. 34, 263, 34, 265 (July 28, 1983), the Council on Environmental Quality (“CEQ”) expressed concern that federal agencies were applying categorical exclusions too narrowly and discouraged the practice, stating that “if this approach is applied narrowly it will not provide the agency with sufficient flexibility to make decisions on a project-by-project basis with full consideration to the issues and impacts that are unique to a specific project.” Id. The CEQ went on to encourage agencies “to consider broadly defined criteria which characterize types of actions that, based on the agency's experience, do not cause significant environmental effects.” Id. See also Colorado Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1209-10 (10th Cir. 2006) (citing the Guidance Regarding NEPA Regulations).

         Before implementing an action under a categorical exclusion, an agency must determine that there are no “extraordinary circumstances in which [the] normally excluded action may have a significant environmental effect.” 43 C.F.R. § 46.205(c) (emphasis added). See also California v. Norton, 311 F.3d 1162, 1177 (9th Cir. 2002). If “extraordinary circumstances” are present, further analysis and environmental documents must be prepared and the use of a categorical exclusion is inappropriate. 43 C.F.R. § 46.205(c)(1). Park Service regulations provide that “[e]xtraordinary circumstances (see paragraph 46.205(c)) exist for individual actions within categorical exclusions that may . . . [h]ave significant impacts on species listed” under the Endangered Species Act. 43 C.F.R. § 46.215(h). The General Management Plan for Capitol Reef National Park states that “[a]ny impact that may affect listed or National Park ...


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