the United States Court of Appeals for the Ninth Circuit upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations. The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.
BLM is the federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM’s authority under the Taylor Grazing Act of 1934, the BLM has adopted regulations that implement its grazing management responsibilities. On July 16, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM’s grazing regulations; these amendments would have decreased public involvement in public lands management, put new limitations on the BLM’s enforcement powers, and increased ranchers’ ownership rights to improvements and water on public lands.
The petitioner in Western Watershed Project, brought suit alleging violation of NEPA, ESA, and the Federal Land Management Policy Act (“FLPMA”). The petitioner won at trial court and BLM appealed. In addressing the first major issue, the court concluded that BLM failed to take a “hard look” at the environmental consequences and combined effects of the proposed regulatory amendments. The court explained that a final Environmental Impact Statement (“EIS”), a strict NEPA requirement, must offer a reasoned explanation and analysis for an agency’s change of policy. Given that there is a presumption against changes in current policy, the court noted that the agency proposing the change(s) must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between facts found and the choice made. In this case, agency experts concluded that there would be significant impacts but BLM, in the court’s view, did not address these conclusions and did not provide adequate evidence supporting a finding of no significant impact.
In addressing the second major issue, the court concluded that BLM (or any major agency) violates the ESA when it concludes, without rational basis, that proposed amendments to its regulations would not affect listed species or their habitat. ESA requires agencies considering actions that “may affect” listed species and their habitat to consult with the United States Fish and Wildlife Service (“FWS”). For the same reasons that the court found BLM had violated NEPA, it held that BLM violated ESA. The court reasoned that because BLM failed to consider relevant expert analysis and concerns or articulate a rational connection between the facts found and the choice made, leading to its failure to consult with FWS, its actions were arbitrary and capricious in violation of the agency’s obligations under ESA.