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Western Watersheds Project v. Interior Board of Land Appeals

United States District Court, D. Utah

January 16, 2020



          Ted Stewart, United States District Judge.

         This matter is before the Court on a Motion to Recuse by Plaintiff Western Watersheds Project (“WWP”). For the following reasons, the Court will deny the Motion.

         I. BACKGROUND

         WWP is a conservation group devoted to improving grazing management across the western public lands. WWP brought this lawsuit to reverse a decision of the Interior Board of Land Appeals (“IBLA”) and to reverse the Bureau of Land Management's (“BLM”) decision renewing grazing permits on the Duck Creek allotment. The Duck Creek Allotment consists of 1, 078 acres of state lands, 8, 617 acres of private land, and 13, 090 acres of federal land located wholly in Utah.

         In 2008, WWP presented BLM with evidence that grazing on the Duck Creek allotment was degrading fish and wildlife habitat among other damage in violation of environmental statutes.[1] Nevertheless, BLM approved a new grazing decision for the Duck Creek allotment.[2]WWP appealed the BLM decision, and an administrative law judge reversed and remanded BLM's decision.[3] BLM appealed the reversal to IBLA, which reversed the administrative law judge's rulings and upheld BLM's 2008 decision.[4]

         WWP responded to IBLA's decision by filing this case in the United States District Court for the District of Idaho.[5] IBLA filed a motion to transfer venue, and before that motion was ruled upon, the State filed a motion to Intervene.[6] The Idaho Court granted IBLA's Motion to transfer venue to this Court but did not rule on the Motion to Intervene.[7] On September 18, 2019, this case was randomly assigned to the undersigned.[8] On October 15, 2019, the Court granted the Intervenor-Defendant's Motion to Intervene.[9] Approximately three weeks later, WWP filed the Motion arguing that this Court should recuse itself because of an actual and/or appearance of bias towards “environmentalists, environmental conservation groups, and federal regulation of public lands livestock grazing.”[10] The Federal Defendants and Intervenor-Defendants both oppose WWP's Motion to Recuse. [11]

         WWP supports its Motion by relying on statements allegedly made by the undersigned over 20 years ago. Those alleged statements include:

1. “Stating ‘[t]he livestock industry is just one vote away from being obliterated' in reference to President Clinton's proposed increase in public land grazing fees.”
2. “Stating ‘[i]f we pursue policies that destroy rural America, then we are losing a national treasure more valuable than any national park or monument we spend tax dollars on now,' in reference to grazing reform.”
3. “Asserting that rural communities are ‘a unique natural resource' and should be sustained ‘as an important part of the ecosystem' and environment.'”
4. “Stating that ‘maintenance of sustainable resources often requires active management by humans,' and ‘it has been frequently demonstrated that proper, intensive management of livestock can improve the land and riparian areas to the betterment of wildlife habitat and watershed.'”
5. “Referring to environmentalists as the ‘common enemy.'”
6. “Characterizing President Clinton's 1996 decision to designate 1.7 million acres as the Grand Staircase-Escalante National Monument in Utah as ‘a day of infamy.'”
7. “Stating ‘[r]ural Utah feels like a battleground, everything that would promote economic growth is being objected to by obstructionists-environmentalists.'”
8. “Calling the Southern Utah Wilderness Alliance ‘Zealots.'”
9. “Stating ‘[w]e are concerned when we see decisions reached by Federal officials, often in concert with State and local governments, overturned by the actions of interest groups.'”
10. “Stating ‘if rural Utahns don't watch out, they could lose control of their destiny' in reference to proposed fee hikes and royalties for extractive industries would drive business from Utah public lands.”
11. “Arguing that ‘range reform' is one ‘of a few examples of the issues [Utah] faces today which are imposed on us in a way by the Federal Government.'”[12]


         Plaintiff moves to recuse under two provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455(a). Section 144 states that when a party “makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” Procedurally, the judge against whom an affidavit of bias is filed may determine the affidavit's timeliness and sufficiency.[13] While making an initial determination of the facial sufficiency of the affidavit, the judge must not determine the truth or falsity of the facts stated therein.[14] Finally “[a] trial judge has as much obligation not to recuse himself when there is no reason to do so as he does to recuse himself when the converse is true.”[15]

         Section 455(a) states “[a]ny . . . Judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455, unlike Section 144, has no express procedural hurdles.[16] Under this section, a Judge is “under a continuing duty to ask himself what a reasonable person knowing all the relevant facts would think about his impartiality.”[17] Unlike Section 144, under Section 455, the Judge against whom impartiality is charged makes the recusal determination.[18]

         A. Recusal under 28 U.S.C. § 144

         To recuse a Judge under Section 144, “an affidavit of bias and prejudice must be timely, sufficient, made by a party, and accompanied by a certificate of good faith of counsel.”[19] Importantly, “the mere fact that a party has filed a § 144 motion, accompanied by the requisite affidavit and certificate of counsel, does not automatically result in the challenged judge's disqualification.”[20] “Rather, the statute only requires recusal upon the filing of a timely and sufficient affidavit.”[21]

         Notably, given that the Court must assess the sufficiency of the affidavit and must assume the factual allegations are true, Section 144 mandates that “the attorney presenting the motion . . . sign a certificate stating that both the motion and declaration are made in good faith.”[22] This certification requirement protects the integrity of the recusal process and “guard[s] against the removal of an unbiased judge through the filing of a false affidavit.”[23]

         Here, WWP filed a Motion to Recuse and Memorandum in Support, [24] a Certification by WWP's counsel that “this Motion to Recuse is made in good faith, ”[25] and a Declaration in Support of Motion to Recuse signed by Erik Molvar, WWP's executive director.[26] WWP's counsel, however, has certified only that the “Motion to Recuse is made in good faith, ” but makes no certification that the accompanying Affidavit and the substantive factual allegations have also been filed in good faith. Section 144's plain language undoubtedly requires that counsel certify to the Court that both the motion and declaration are made in good faith.[27] Section 144's technical requirements are not pointless procedural preconditions. Rather, they “guard against the removal of an unbiased judge through the filing of a false affidavit.”[28] Courts have routinely concluded that failure to comply with this requirement is grounds for denying the motion.[29] Accordingly, WWP has not complied with Section 144's procedural requirements and the Court will deny the Motion under this statute.

         B. Recusal under 28 U.S.C. § 455

         Section 455(a) states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” “A judge has a continuing duty to recuse under § 455(a) if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge's impartiality.”[30] Section 455 echoes Section 144 in many ways, but unlike Section 144, it has “no express procedural hurdles . . . .”[31]

         To disqualify under Section 455, WWP must demonstrate that a reasonable person, knowing all the relevant facts, would harbor doubt about the Court's impartiality towards WWP.[32] In doing so, the Court's analysis is limited “to outward manifestations and reasonable inferences drawn therefrom.”[33] “[T]he Judge's actual state of mind, purity of heart, incorruptibility or lack of partiality are not the issue.”[34] The Court also recognizes that “cases within § 455(a) are extremely fact driven ‘and must be judged on their unique facts and circumstances more than by comparison to situations considered in prior jurisprudence.'”[35] The Tenth Circuit has also made clear that Section 455 “is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice.”[36] Section 455 should also not be so broadly construed that recusal is mandated “upon the merest unsubstantiated suggestion of personal bias or prejudice.”[37] With that being said, the Tenth Circuit has compiled a nonexhaustive list of various matters not sufficient to require Section 455 recusal:

(1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters; (2) the mere fact that a judge has previously expressed an opinion on a point of law or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of the law upon those found guilty of a particular offense; (3) prior rulings in the proceeding, or another proceeding, solely because they were adverse; (4) mere familiarity with the defendant(s), or the type of charge, or kind of defense presented; (5) baseless personal attacks on or suits against the judge by a party; (6) reporters' personal opinions or characterizations appearing in the media, media notoriety, and reports in the media purporting to be factual, such as quotes attributed to the judge or others, but which are in fact false or materially inaccurate or misleading; and (7) threats or other attempts to intimidate the judge.[38]

         WWP argues that a reasonable person would harbor doubt of impartiality because “Judge Stewart's personal, extrajudicial statements . . . demonstrate . . . at least the appearance of bias . . . in favor of the State of Utah, resource extraction, and public lands grazing, and against environmental groups, environmental conservation, and federal public lands management . . . .”[39]

         Defendants challenge this assertion by arguing that courts have routinely rejected the notion that “a judge's previous advocacy for a legal, constitutional, or policy position is a bar to adjudicating a case, even when that position is directly implicated in the case before the court.”[40] Defendants also argue that there is only a “tangential relationship between the evidence in this case and Judge Stewart's alleged prior statements . . . .”[41] In other words, “[a]llegations of bias toward Plaintiff raised against Judge Stewart are based on speculation, drawing incomplete parallels with Judge Stewart's previous statements about different environmental groups and different issues.”[42]

         The Court is unconvinced that the undersigned's alleged statements would cause a reasonable person to harbor doubt about the Court's impartiality. WWP's list of alleged statements do not concern the parties or issues in this case, and a judge's prior comments on public policy and the law are not grounds for recusal.

         WWP relies only on the undersigned's past, alleged comments to support its argument of bias for Defendants and against WWP.[43] Specifically, WWP argues that the “totality of Judge Stewart's comments”[44] demonstrate “a pattern of hostility against both environmental organizations and federal oversight, demonstrating bias . . . .”[45] In other words, “Judge Stewart's prior comments disparaged environmentalists, environmental groups, and federal oversight of public lands, while amplifying the social and economic benefits of State-based land management and public lands livestock grazing.”[46] From this, WWP argues that “[t]hese statements show personal bias regarding key issues and parties in this case.”[47]

         A reasonable person would not harbor doubt of impartiality because none of the undersigned's alleged prior statements refer expressly or implicitly to any party in this case. Also, the statements do not refer to this case's issues. For example, as stated on multiple occasions by WWP in prior briefing, “this case challenges the Duck Creek decision by Defendant [IBLA] for applying erroneous legal standards and arbitrarily overturning witness credibility determinations . . . .”[48] Also, “the focus of WWP's claims in this Court” are the “legal and factual errors by Defendant IBLA.”[49] This case-by WWP's own statement-is not about grazing fees, national monuments, the Clinton administration's Rangeland Reform initiative, or the Southern Utah Wilderness Alliance; all topics the alleged comments discuss. Instead, as framed by WWP in its complaint, this case concerns the narrow issue of whether IBLA's decisions were ÔÇťarbitrary, capricious, not supported by substantial evidence, an ...

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