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Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
` No. 22-cv-1891
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`DEFENDERS OF WILDLIFE
`1130 17th Street NW
`Washington, DC 20036
`
`SOUTHERN UTAH WILDERNESS
`ALLIANCE
`425 East 100 South
`Salt Lake City, UT 8411
`
`Plaintiffs,
`
`v.
`
`U.S. DEPARTMENT OF THE INTERIOR
`1849 C St., NW
`Washington, DC 20240
`
`BUREAU OF LAND MANAGEMENT
`1849 C St., NW
`Washington, DC 20240
`
`
`Defendants.
`
`
`
`
`
`
`
`
`INTRODUCTION
`
`1.
`
`Plaintiffs Defenders of Wildlife and Southern Utah Wilderness Alliance
`
`(collectively, Conservation Groups) bring this action for declaratory and injunctive relief against
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`Defendants United States Department of the Interior (Interior) and Bureau of Land Management
`
`(BLM), challenging their adoption of a December 2020 so-called “Pinyon-Juniper Categorical
`
`Exclusion Rule,” which purports to authorize extensive destruction of native pinyon-juniper
`
`habitats across the American West without requiring prior analysis and public disclosure of
`
`possible environmental impacts or alternatives under the National Environmental Policy Act
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`(NEPA). See National Environmental Policy Act Implementing Procedures for the Bureau of
`
`Land Management (516 DM 11), 85 Fed. Reg. 79504 (Dec. 10, 2020) (PJ CX Rule).
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`COMPLAINT - 1
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`

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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 2 of 30
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`2.
`
`The PJ CX Rule amends the Department of Interior’s Manual on NEPA
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`implementing procedures by adopting a new “categorical exclusion” that allows BLM to approve
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`projects destroying (by cutting, masticating, and mulching) up to 10,000 acres each of pinyon
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`pine and juniper forests across habitat for the greater sage-grouse and mule deer without first
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`preparing any Environmental Impact Statement or even any Environmental Assessment under
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`NEPA. See PJ CX Rule, 85 Fed. Reg. at 79517. The PJ CX Rule contains no limit on the number
`
`of such pinyon-juniper treatment projects that BLM may approve in sage-grouse and/or mule
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`deer habitat across the American West.
`
`3.
`
`In adopting the PJ CX Rule, Defendants claimed that this category of pinyon-
`
`juniper removal projects would have no significant effect on the public lands and wildlife. That
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`decision is arbitrary, capricious, and contrary to law, including because it is riddled with errors
`
`and oversights, and is inconsistent with the best available scientific information.
`
`4.
`
`For example, in adopting the PJ CX Rule, Defendants refused to consider the
`
`cumulative effects of pinyon-juniper removal projects, citing 2020 NEPA regulation changes
`
`adopted by the Council on Environmental Quality (CEQ) to assert that “NEPA specifically does
`
`not require evaluation of cumulative effects.” 1 Yet the NEPA revisions did not eliminate BLM’s
`
`
` 1 On July 16, 2020, CEQ issued a Final Rule amending its NEPA regulations. See Update to the
`Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,
`85 Fed. Reg. 43304 (July 16, 2020) (“2020 NEPA Rule”). The 2020 NEPA Rule became
`effective September 15, 2020, and Defendants applied the 2020 NEPA Rule in adopting the PJ
`CX Rule here. This Complaint thus cites the 2020 NEPA Rule, unless noted otherwise. But the
`validity of the 2020 NEPA Rule is currently being challenged before several courts, and
`Secretarial Order (“SO”) No. 3399 bars implementation of the 2020 NEPA Rule “in a manner
`that would change the application or level of NEPA that would have been applied to a proposed
`action before the 2020 Rule went into effect on September 14, 2020.” See Secretarial Order 3399
`(April 16, 2021), https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3399-508_0.pdf.
`(last visited June 30, 2022).
`
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`COMPLAINT - 2
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`

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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 3 of 30
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`obligation to consider reasonably foreseeable cumulative effects, as the CEQ expressly noted.
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`See, e.g., 2020 NEPA Rule, 85 Fed. Reg. at 43355 (“the final rule does not ignore cumulative
`
`effects”).
`
`5.
`
`Defendants also arbitrarily relied on unverified observations and a selective
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`review of prior BLM vegetation treatment projects (including prior pinyon-juniper treatments) to
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`support their assertion that approving pinyon-juniper removal projects under the PJ CX Rule will
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`have no significant environmental impacts, instead of obtaining credible and verified monitoring
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`data. CEQ’s own rules and guidance requires that project-specific “Findings of No Significant
`
`Impacts” (FONSIs) cannot be “relied on as a basis for establishing a categorical exclusion unless
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`the absence of significant environmental effects has been verified through credible monitoring of
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`the implemented activity.” See Final Guidance for Federal Departments and Agencies on
`
`Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental
`
`Policy Act, 75 Fed. Reg. 75628, 75630 (Dec. 6, 2010) (emphasis added). Defendants ignored this
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`requirement and refused to collect any credible monitoring information to inform their
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`conclusions. Defendants similarly erred by recasting the available scientific information and
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`public comments to support its new policy, as discussed in detail below.
`
`6.
`
`Defendants’ unlawful adoption of the PJ CX Rule has harmed the Conservation
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`Groups and the public, including by depriving them of NEPA’s procedural safeguards, and
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`threatening irreparable environmental and other harms. Accordingly, Conservation Groups
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`respectfully pray that the Court hold unlawful, reverse, and set aside the PJ CX Rule, and enter
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`such preliminary or permanent injunctive relief as may be requested hereafter to forestall
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`irreparable harm and protect the public interest pending adjudication of their claims.
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`
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`COMPLAINT - 3
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`

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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 4 of 30
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1331 (federal question), because Plaintiffs allege that Defendants violated the National
`
`Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and/or the Administrative Procedure Act, 5
`
`U.S.C. §§ 551 et seq., in adopting the PJ CX Rule. This Court also can provide relief under 28
`
`U.S.C. § 2201 (declaratory judgment), 28 U.S.C. § 2202 (injunctive relief), and 5 U.S.C. §§ 553,
`
`702, and 706 (Administrative Procedure Act).
`
`8.
`
`The challenged PJ CX Rule is a final agency action subject to judicial review
`
`pursuant to 5 U.S.C. §§ 702, 704, and 706.
`
`9.
`
`Venue in the District of Columbia is appropriate under 28 U.S.C. § 1391(e)(1)
`
`because Defendants U.S. Department of Interior and BLM are headquartered in Washington,
`
`D.C.; the primary author of the PJ CX Rule, Stephen Tryon, the Director of the Department of
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`Interior’s Office of Environmental Policy and Compliance, is located in Washington, D.C.;
`
`Plaintiff Defenders of Wildlife is headquartered in Washington, D.C.; Plaintiff Southern Utah
`
`Wilderness Alliance maintains an office in Washington, D.C.; and a substantial part of the events
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`and omissions at issue occurred in this District, including the administrative process associated
`
`with promulgation of the PJ CX Rule and its approval by Federal Defendants in this District.
`
`PARTIES
`
`10.
`
`Plaintiff DEFENDERS OF WILDLIFE (Defenders) is a national non-profit
`
`conservation organization with 2.1 million members and supporters. Defenders is headquartered
`
`in Washington, D.C., with offices throughout the country. Defenders focuses in particular on
`
`conserving and recovering wildlife species that are listed under the Endangered Species Act or
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`otherwise recognized as being of conservation concern, including the greater sage-grouse and
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`COMPLAINT - 4
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`

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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 5 of 30
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`pinyon jay, a bird that lives in the pinyon-juniper forest and was petitioned for listing under the
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`Endangered Species Act by Defenders in April 2022. Defenders has a long and consistent track
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`record of working on the conservation of at-risk species in the interior West including sage-
`
`grouse and Defenders advocates for these imperiled species in multiple ways, including through
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`scientific research, engaging in land management planning processes, and advocating to
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`government agencies for heightened conservation protections.
`
`11.
`
`Plaintiff SOUTHERN UTAH WILDERNESS ALLIANCE (SUWA) is a non-
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`profit organization based in Salt Lake City, Utah, and SUWA also has an office in Washington,
`
`D.C. SUWA has more than 14,000 members from all fifty states, the District of Columbia, and
`
`several foreign countries. SUWA’s mission is the preservation of the outstanding wilderness and
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`other sensitive public lands and wildlife habitat at the heart of the Colorado Plateau. SUWA
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`advocates for proper management of these lands and wildlife habitat, and the associated natural
`
`and cultural resources, in their natural state for the benefit of all Americans. SUWA promotes
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`local and national recognition of the region’s unique character through research and public
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`education; supports both administrative and legislative initiatives to permanently protect Utah’s
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`wild places within the National Park and National Wilderness Preservation Systems or by other
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`protective designations where appropriate; and builds support for such initiatives on both the
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`local and national level. Specifically, SUWA engages frequently on site-specific federal agency
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`management actions that have the potential to harm or enhance sagebrush and pinyon-juniper
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`habitat through vegetation removal, and places specific emphasis on protecting species like the
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`pinyon jay in its comments and recommendations during the NEPA process for these projects.
`
`12.
`
`Conservation Groups rely on the information and analysis made available by
`
`BLM (and other federal agencies) under NEPA to understand the likely harms of proposed
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`COMPLAINT - 5
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 6 of 30
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`actions, to critique errors in the BLM’s understanding or judgment, to provide information about
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`harms that BLM is not aware of or has overlooked, to inform other members of the public that
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`their interests may be affected, to provide feedback about public preferences and values with
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`respect to specific areas of the forests, to offer alternatives that may accomplish BLM’s goals
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`with less harm, and ultimately to assist BLM to avoid causing significant harms to the public
`
`lands and wildlife habitat and the people who use and depend on them for recreational, spiritual,
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`economic, and aesthetic benefits.
`
`13.
`
`Conservation Groups’ collective efforts, made possible by the NEPA process,
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`have been effective at helping inform BLM decisions and avoid significant harms. Because of
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`informed, site-specific public input, BLM has abandoned prior efforts to implement pinyon-
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`juniper or other so-called vegetation “treatment” projects across public lands and important
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`wildlife habitats, along with many other ecologically, socially, and culturally important areas that
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`are valued by Plaintiffs’ members.
`
`14.
`
`By removing NEPA’s procedural safeguards for consequential site-specific
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`decisions, the PJ CX Rule will cause significant harms to the public lands where Conservation
`
`Groups have concrete interests—harms that otherwise could have been prevented or lessened by
`
`public involvement and accountability. Conservation Groups have also been injured by
`
`Defendants’ refusal to conduct a NEPA analysis disclosing the harmful impacts of the PJ CX
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`Rule. Conservation Groups will also suffer harm through implementation of the PJ CX Rule
`
`because it will lead to the loss of important sagebrush and pinyon-juniper habitats across the
`
`American West, including habitats for greater sage-grouse and pinyon jay, without detailed
`
`environmental review. Conservation Groups and their members, staff, and supporters view,
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`experience, utilize, recreate, and otherwise enjoy the landscapes subject to pinon-juniper
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`COMPLAINT - 6
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`

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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 7 of 30
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`treatments under the PJ CX Rule. Conservation Groups will not be able to use, enjoy, or
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`appreciate the pinyon-juniper forests and other areas of public lands affected by pinyon-juniper
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`destruction under the PJ CX Rule if they are implemented without detailed environmental review
`
`following disturbances.
`
`15.
`
`Conservation Groups bring this action on their own behalf, and on behalf of their
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`members, staff, and supporters who live and work on and around BLM-managed public lands in
`
`the American West. Conservation Groups’ members, staff, and supporters enjoy viewing and
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`studying wildlife, and recreating in natural environments that they know are inhabited and
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`sustained by diverse wildlife, including species such as greater sage-grouse and pinyon jay that
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`rely on native habitats. Such members, staff, and supporters derive recreational, scientific,
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`aesthetic, inspirational, educational, and other benefits from such use. These uses include hiking,
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`camping, trail running, mountain biking, appreciation of archaeological resources and natural
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`quiet, journaling, birdwatching, ecosystem research, and photography. They regularly enjoy
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`BLM-managed sagebrush and woodland habitats for these uses and plan to continue doing so.
`
`16.
`
`Conservation Groups suffer injury-in-fact because they have devoted time,
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`energy, and organizational resources and money to protecting public lands and wildlife –
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`including habitat for the greater sage-grouse and pinyon jay, and advocating for responsible
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`management of these precious public lands. Conservation Groups have diverted resources from
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`other efforts to pursue their missions and have instead used those resources to submit public
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`comments to the BLM, file administrative objections, and engage with federal officials about
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`their concerns with the PJ CX Rule.
`
`17.
`
`Defendants’ violations of NEPA and the APA in adopting the PJ CX Rule have
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`injured and will continue to injure Conservation Group’s recreational, aesthetic, scientific,
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`COMPLAINT - 7
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 8 of 30
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`educational, spiritual, conservation, commercial, informational, and other interests, and the
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`interests of their staff, members, and supporters. These are actual, concrete injuries caused by
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`Defendants’ legal violations, for which judicial review and the relief requested are required to
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`redress. Conservation Groups have no adequate remedy at law.
`
`18.
`
`Defendant UNITED STATES DEPARTMENT OF THE INTERIOR (Interior) is
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`a federal agency responsible for managing about 500 million acres of federal public lands across
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`the United States. Interior, through the Office of the Secretary, adopted the PJ CX Rule as a final
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`rule on December 10, 2020.
`
`19.
`
`Defendant BUREAU OF LAND MANAGEMENT (BLM) is a federal agency
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`within the Department of the Interior. BLM is responsible for managing the public lands subject
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`to the PJ CX Rule, and BLM prepared the so-called BLM Pinyon Pine and Juniper Management
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`Categorical Exclusion Verification Report, which purported to substantiate Interior’s adoption of
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`the PJ CX Rule as adhering to the requirements of NEPA.
`
`20.
`
`Defendants have waived federal sovereign immunity pursuant to the APA. 5
`
`U.S.C. § 701.
`
`A.
`
`21.
`
`LEGAL FRAMEWORK
`
`National Environmental Policy Act
`
`NEPA’s twin aims are: (1) to foster informed decision making by requiring
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`agencies to consider the environmental impacts of their proposed actions; and (2) to ensure that
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`agencies inform the public that they considered environmental concerns. 42 U.S.C. § 4331; 40
`
`C.F.R. § 1500.1. To accomplish these goals, federal agencies must prepare an Environmental
`
`Impact Statement (EIS) to consider the effects of every “major Federal action[s] significantly
`
`affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
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`COMPLAINT - 8
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 9 of 30
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`22.
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`If it is uncertain whether a project may have significant impacts, an agency may
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`first prepare an environmental assessment (EA), which provides a briefer analysis of the
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`project’s impacts and alternatives. Based on the EA’s analysis, if the project is likely to have
`
`significant impacts, the agency must prepare an EIS. Otherwise, it may issue a Finding of No
`
`Significant Impact (FONSI). 40 C.F.R. § 1501.6.
`
`23.
`
`BLM may avoid preparing an EIS or EA only if a proposed action falls within an
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`identified categorical exclusion. Categorical Exclusions (CXs) are limited to actions that
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`“normally do not have a significant effect on the human environment.” 40 C.F.R. § 1501.4(a).
`
`The Department of the Interior has codified approximately 86 separate departmental CXs
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`(exclusive of categorical exclusions established or directed by statute), which apply to minor,
`
`insignificant, administrative, or ministerial agency functions. See Interior Manual, Chapter 516,
`
`Section 11.9.
`
`24.
`
`In considering the “significance” of impacts under NEPA, agencies must analyze
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`both “the potentially affected environment” and the “degree of the effects of the action.” 40
`
`C.F.R. § 1501.3(b). To assess the “potentially affected environment,” agencies should consider
`
`“the affected area (national, regional, or local) and its resources, such as listed species and
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`designated critical habitat under the Endangered Species Act.” Id. § 1501.3(b)(1). To assess the
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`“degree of the effects,” agencies should consider “[b]oth short- and long-term effects,” “[b]oth
`
`beneficial and adverse effects,” “[e]ffects on public health and safety,” and “[e]ffects that would
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`violate Federal, State, Tribal, or local law protecting the environment.” Id. § 1501.3(b)(1)(i)–(iv).
`
`25.
`
`In determining whether a type of action may be categorically excluded from
`
`NEPA review, agencies must consider possible cumulative effects, especially “where the
`
`categorical exclusion is nationwide in scope and has the potential to impact a large number of
`
`COMPLAINT - 9
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 10 of 30
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`acres.” Sierra Club v. Bosworth, 510 F.3d 1016, 1028 (9th Cir. 2007). If an agency cannot
`
`predict the cumulative effects of repeatedly using a proposed categorical exclusion, then
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`adoption of the CX is improper. Id. at 1029–30.
`
`26.
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`Additionally, an agency “cannot focus only on the beneficial effects” of the
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`departmental categorical exclusion, even where it will be deployed for important purposes, but
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`must also consider its adverse impacts. Id. at 1029; see also 40 C.F.R. § 1508.8 (1978) (requiring
`
`consideration of detrimental effects “even if on balance the agency believes that the effect will
`
`be beneficial”); 40 C.F.R. 1508.1(g)(1) (2020) (same).
`
`27.
`
`Unlike projects authorized using an EIS or EA, documentation for a CX does not
`
`include site-specific analysis, informed public comment, and consideration of alternatives. See
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`40 C.F.R. § 1501.5 (stating the requirements for the development of an EA) and 40 C.F.R. §
`
`1501.4(a) (specifying that CXs “do not require preparation of an [EA]”).
`
`B.
`
`28.
`
`Administrative Procedure Act
`
`The APA is a federal statute that was enacted “to improve the administration of
`
`justice by prescribing fair administrative procedure.” Administrative Procedure Act, Pub. L. No.
`
`79-404, 60 Stat. 237 (1946); 5 U.S.C. § 551 et seq.
`
`29.
`
`An agency undertaking rulemaking shall publish a general notice of the proposed
`
`rulemaking in the Federal Register. 5 U.S.C. § 553(b). The notice must include three elements:
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`1) a statement of the time, place, and nature of public rulemaking proceedings; 2) reference to
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`the legal authority under which the rule is proposed; and 3) either the terms or substance of the
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`proposed rule or a description of the subjects and issues involved. Id. After publishing notice, the
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`agency shall give all interested persons an opportunity to participate in the rulemaking through
`
`submission of written comments, with or without opportunity for oral presentation. 5 U.S.C. §
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`COMPLAINT - 10
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 11 of 30
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`553(c). The agency then incorporates in the adopted rule a concise general statement of the rule’s
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`basis and purpose. 5 U.S.C. § 553(c). This process is generally referred to as informal
`
`rulemaking or notice-and-comment rulemaking.
`
`30.
`
`Under the APA, an agency is required to supply a reasoned decision when
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`promulgating a new rule. Without a reasoned decision reflected in the administrative record, the
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`agency action is arbitrary, capricious, and not in accordance with law. 5 U.S.C. § 706(2).
`
`31.
`
`The APA provides for judicial review of final agency action, including notice-
`
`and-comment rulemaking. 5 U.S.C. § 706. A court may decide all relevant questions of law,
`
`interpret constitutional statutory provisions, and determine the meaning or applicability of the
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`terms of an agency action. In doing so, the reviewing court shall hold unlawful and set aside
`
`agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion,
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`or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
`
`32.
`
`The Supreme Court has held that an agency action is arbitrary and capricious “if
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`[an] 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
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`counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
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`difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm,
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`463 U.S. 29, 43 (1983). Further, the Court stated that an agency “must examine the relevant data
`
`and articulate a satisfactory explanation for its action including a rational connection between the
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`facts found and the choice made.” Id.
`
`33.
`
`An agency’s rationale for a new policy must be clearly disclosed and adequately
`
`sustained in the administrative record. SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).
`
`34.
`
`The APA requires an agency to provide interested persons an opportunity to
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`COMPLAINT - 11
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 12 of 30
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`participate in the rulemaking through submission of written data, views, or arguments, and the
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`agency must respond to significant comments. 5 U.S.C. § 553(c); Perez v. Mortgage Bankers
`
`Ass’n, 575 U.S. 92, 96 (2015). “Significant” comments are “those which raise relevant points
`
`and which, if adopted, would require a change in the agency’s proposed rule.” American Mining
`
`Congress v. U.S. E.P.A., 965 F.2d 759, 771 (9th Cir. 1992) (citing Home Box Office v. FCC, 567
`
`F.2d 9, 35 & n. 58 (D.C. Cir. 1977)). Failure to respond to significant comments may be grounds
`
`for reversal if the failure reveals the agency’s decision was not based on consideration of the
`
`relevant factors. Id. (citing Thompson v. Clark, 741 F.2d 401, 409 (D.C. Cir. 1984)).
`
`FACTUAL BACKGROUND
`
`Sagebrush Habitats and Losses
`
`35.
`
`Sagebrush ecosystems once encompassed up to 150 million acres—virtually half
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`of the American West. But over the past century and a half, much of what was once a
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`“Sagebrush Sea” across western North America–containing a variety of ecosystems including
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`those with pinyon-juniper trees and woodlands–has been degraded and transformed.
`
`36.
`
`Sagebrush ecosystems are now considered to be some of the most imperiled
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`ecosystems in North America, and currently occupy only about one-half of their historic land
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`area because of changes in land use and destruction of native sagebrush habitats.
`
`37.
`
`Remaining Sagebrush ecosystems are mostly located on public lands, where
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`federal agencies—particularly BLM—have been largely responsible for the degradation and
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`transformation of large acreages by digging them up, cutting them down, chaining, burning,
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`spraying with herbicides, and other “vegetation treatment” activities to remove native vegetation
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`and increase forage.
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`COMPLAINT - 12
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 13 of 30
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`38.
`
`A variety of human impacts have contributed to the loss, fragmentation, and
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`degradation of Sagebrush habitats, including agricultural and urban development, infrastructure
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`(including roads, highways, power lines, fences, pipelines, and others), livestock grazing, and oil
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`and gas and other energy or mineral development.
`
`39.
`
`Exotic invasive species have also contributed to the degradation and
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`transformation of sagebrush habitats, particularly cheatgrass invasions that are transforming vast
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`areas of the Great Basin, Colorado Plateau, and other areas of the Interior West and are spread by
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`human activities and disturbance, including vegetation clearing and livestock grazing.
`
`40.
`
`Pinyon pine and juniper forests are also native ecosystems distributed widely
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`across the interior west, and provide habitats often intermingled and around sagebrush habitats in
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`many western states across the Sagebrush Sea.
`
`41.
`
`The greater sage-grouse is a “sagebrush obligate” species, meaning it relies on the
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`sagebrush ecosystem for all its habitat needs. The fate of the sage-grouse thus depends on
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`ensuring that healthy and well-distributed sagebrush habitat exists across its range.
`
`42.
`
`Greater sage-grouse once numbered in the millions across the western U.S and
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`Canada, but loss and fragmentation of their native sagebrush habitats have caused populations to
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`decline precipitously over the last century. The current population of greater sage-grouse is
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`estimated at less than 20% of historic population levels, i.e., sage-grouse populations have
`
`experienced a 80% or more decline.
`
`43.
`
`The abundance and distribution of greater sage-grouse have similarly declined
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`dramatically in North America. Greater sage-grouse have been extirpated in Nebraska, Arizona,
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`New Mexico, and significant parts of Oregon, Washington, North and South Dakota, and central
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`eastern California.
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`COMPLAINT - 13
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`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 14 of 30
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`44.
`
`Historically, the Intermountain West ecoregion was the epicenter of mule deer
`
`distribution, which occupy and utilize native sagebrush and other habitats—including juniper and
`
`pinyon pine woodlands. Losses of sagebrush and other mule deer habitats have contributed to
`
`mule deer population declines in many western states in recent decades.
`
`Questionable Effectiveness of PJ Treatments to “Improve” Sagebrush Habitats.
`
`45.
`
`Defendants contend that the PJ CX Rule was adopted to “improve” sagebrush
`
`habitats utilized by sage-grouse and/or mule deer and thereby help offset these population losses.
`
`46.
`
`But the efficacy of vegetation treatments to remove pinyon and juniper woodlands
`
`to enhance sage-grouse populations and Sagebrush Sea ecosystem integrity is highly
`
`questionable, and vegetation treatments that are mismanaged can have significant detrimental
`
`effects, especially when projects involve very large acreages, as allowed under the PJ CX Rule.
`
`47.
`
`Vegetation treatments can damage native ecosystems because they increase the
`
`spread and abundance of non-native noxious weeds including cheatgrass, which changes the
`
`fundamental characteristics of native ecosystems. The presence of cheatgrass and other non-
`
`natives will increase the likelihood of further non-native invasion, establishment, and
`
`persistence. Pre-treatment understory composition, especially the relative abundance of native
`
`perennial grasses and forbs, is a primary determinant of the success or failure of efforts to restore
`
`plant communities by removing or thinning the trees.
`
`48. Mechanical vegetation treatments can also damage native ecosystems by
`
`disturbing soils through project-associated vehicle compaction and crushing, undermining their
`
`ecosystem function by removing biological crusts critical to soil stability and formation and
`
`facilitating soil loss and exotic weed invasion. Soils in arid environments, once damaged, can
`
`take hundreds of years to redevelop.
`
`COMPLAINT - 14
`
`

`

`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 15 of 30
`
`49.
`
`The Service has warned against permitting any vegetation treatments and projects
`
`in known sage-grouse winter habitat, except when the treatment is expressly designed to
`
`strategically reduce wildfire risk around or in the winter range, and will maintain winter habitat
`
`quality.
`
`50.
`
`The Service has also recommended that all vegetation treatment areas within
`
`sage-grouse habitat – including mechanized treatments to remove pinyon pine and juniper trees –
`
`receive rest from livestock grazing for two full growing seasons.
`
`The Proposed PJ CX Rule
`
`51.
`
`The 2018 Farm Bill amended the Healthy Forests Restoration Act to establish a
`
`statutory framework for BLM and the U.S. Forest Service to develop a departmental categorical
`
`exclusion to improve habitat for sage-grouse and mule deer. See Public Law 115-334, § 8611; 16
`
`U.S.C. § 6591e. That statutory framework provided the agencies with some discretion in
`
`implementing the terms of the categorical exclusion, but included mandatory limitations and
`
`prohibitions as well—including by limiting such pinyon-juniper treatment projects to 4,500 acres
`
`in size.
`
`52.
`
`Rather than rely on this statutory authorization for pinyon-juniper treatment
`
`projects and comply with the 4,500-acre limit prescribed by Congress, however, Trump
`
`administration officials determined to self-authorize much larger pinyon-juniper treatment
`
`projects, up to 10,000 acres in size, as reflected in the challenged PJ CX Rule.
`
`53.
`
`The PJ CX Rule was formally launched on March 13, 2020, when Interior
`
`published in the Federal Register a notice announcing its proposal to revise departmental NEPA
`
`implementing procedures for BLM to include the proposed PJ CX Rule. See National
`
`Environmental Policy Act Implementing Procedures for the Bureau of Land Management (516
`
`COMPLAINT - 15
`
`

`

`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 16 of 30
`
`DM 11), 85 Fed. Reg. 14700 (proposed March 13, 2020). According to that notice,
`
`“[e]stablishing the new proposed departmental categorical exclusion would streamline the
`
`process for pinyon pine and juniper tree removal projects,” and “more quickly . . . reduce pinyon
`
`pine and juniper density and cover” in sage-grouse and mule deer habitat across the American
`
`West. Id.
`
`54.
`
`Under the proposed departmental categorical exclusion, BLM could approve
`
`without any substantive NEPA review an unlimited number of “actions [across] up to 10,000
`
`acres within sagebrush and sagebrush-steppe plant communities to manage pinyon pine and
`
`juniper trees.” Id. For scale, 10,000 acres is roughly the size of most of Manhattan, or equivalent
`
`to 7,562 football fields. The proposed rule allowed a variety of vegetation treatment methods
`
`(including commercial logging), as follows: “[m]anual or mechanical cutting (including lop-and-
`
`scatter); mastication and mulching; yarding and piling of cut trees; pile burning; seeding or
`
`manual planting of seedlings of native species; and removal of cut trees for commercial products,
`
`such as sawlogs, specialty products, or fuelwood, or noncommercial uses.” Id.
`
`55. Mastication is a mechanical vegetation treatment designed to remove pinyon pine
`
`and juniper trees by shredding trees and shrubs and distributing the resulting woody debris across
`
`the landscape. “Bull Hog” masticators mow down trees with giant mulchers attached to front-end
`
`loaders or excavators. These machines turn living trees into piles of wood chips and stumps,
`
`quickly removing whole stands of native pinyon pine and juniper, and leaving behind dead and
`
`drying organic matter, as shown below in Photos 1 and 2.
`
`COMPLAINT - 16
`
`

`

`Case 1:22-cv-01891-BAH Document 1 Filed 06/30/22 Page 17 of 30
`
`
`
`
`
`
`Photo 1: Bull Hog masticating a juniper tree.
`
`Photo 2: Mulch piles left behind after mastication
`
`
`
`Under the PJ CX Rule, BLM did not limit mechanical mastication and other
`
`
`
`56.
`
`impactful vegetation removal methods to individual trees or small acreages. Instead, the PJ CX
`
`COMP

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