`
`Timothy M. Bechtold
`BECHTOLD LAW FIRM PLLC
`PO Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Attorney for Plaintiffs
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
`
`NATIVE ECOSYSTEMS COUNCIL, and
`
`ALLIANCE FOR THE WILD ROCKIES,
` CV-
` Plaintiffs,
`
`vs.
`COMPLAINT FOR
`
`INJUNCTIVE AND
`JOHN MEHLHOFF and BUREAU OF
`DECLARATORY RELIEF
`LAND MANAGEMENT,
`
` Defendants.
`
`
`
`
`1.
`
`This is a civil action for judicial review under the citizen suit
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`I. INTRODUCTION
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`provision of the Administrative Procedure Act of the U.S. Bureau of Land
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`Management’s (BLM) authorizations, analyses, and lack thereof within the
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`Iron Mask Planning Area (Project).
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`2.
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`Plaintiffs Native Ecosystems Council and Alliance for the Wild
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`Rockies attest that the decisions of Defendants that authorized livestock
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`grazing, fence construction, wet meadow exclosures, and development of
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`water sources for livestock on public lands within the Iron Mask Planning
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`Area are arbitrary and capricious, an abuse of discretion, and/or otherwise
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`not in accordance with law.
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`3.
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`Defendants’ actions or omissions violate the National Environmental
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`Policy Act (NEPA), 42 U.S.C. 4331 et seq., and the Administrative
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`Procedure Act (APA), 5 U.S.C. §§ 701 et seq., by illegally authorizing and
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`completing rangeland management infrastructure projects on the Iron Mask
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`Planning Area without the proper NEPA analysis.
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`4.
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`Plaintiffs request that the Court find the actions implemented by the
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`Defendants on the Iron Mask Planning Area illegal pursuant to 5 U.S.C. §
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`706(2)(A).
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`5.
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`Plaintiffs seek a declaratory judgment, injunctive relief, the award of
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`costs and expenses of suit, including attorney and expert witness fees
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`pursuant to the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412, and
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`such other relief as this Court deems just and proper.
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`II. JURISDICTION
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`This action arises under the laws of the United States and involves the
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`
`6.
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`United States as a Defendant. Therefore, this Court has subject matter
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`jurisdiction over the claims specified in this Complaint pursuant to 28
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`U.S.C. §§ 1331, 1346.
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`7.
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`An actual controversy exists between Plaintiffs and Defendants.
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`Plaintiffs’ members use and enjoy the Iron Mask Planning Area and
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`specifically the Indian Creek Forage Reserve Allotment for hiking, fishing,
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`hunting, camping, photographing scenery and wildlife, and engaging in
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`other vocational, scientific, spiritual, and recreational activities. Plaintiffs’
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`members intend to continue to use and enjoy the area frequently and on an
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`ongoing basis in the future.
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`8.
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`The aesthetic, recreational, scientific, spiritual, and educational
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`interests of Plaintiffs’ members have been and will be adversely affected and
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`irreparably injured if Defendants continue to implement the Project. These
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`are actual, concrete injuries caused by Defendants’ failure to comply with
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`mandatory duties under NEPA and the APA. The requested relief would
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`redress these injuries and this Court has the authority to grant Plaintiffs’
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`requested relief under 28 U.S.C. §§ 2201 & 2202, and 5 U.S.C. §§ 705 &
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`706.
`
`9.
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`Plaintiffs submitted timely written comments and objections
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`concerning the Project in the available administrative review process, thus
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`they have exhausted administrative remedies. Therefore, the Court has
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`jurisdiction to review Plaintiffs’ APA claims.
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`III. VENUE
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`10. Venue in this case is proper under 28 U.S.C. § 1391(e) and LR
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`3.2(b)(1)(C). Defendant Mehlhoff resides within the Billings Division of the
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`United States District Court for the District of Montana.
`
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`11. Plaintiff NATIVE ECOSYSTEMS COUNCIL (NEC) is a non-profit
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`IV. PARTIES
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`Montana corporation with its principal place of business in Three Forks,
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`Montana. Native Ecosystems Council is dedicated to the conservation of
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`natural resources on public lands in the Northern Rockies. Its members use
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`and will continue to use the Indian Creek Forage Allotment and the Iron
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`Mask Planning Area for work and for outdoor recreation of all kinds,
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`including fishing, hunting, hiking, horseback riding, and cross-country
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`skiing. The BLM’s unlawful actions adversely affect Native Ecosystems
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`Council’s organizational interests, as well as its members’ use and
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`enjoyment of the Indian Creek Forage Allotment and the Iron Mask
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`Planning Area. Native Ecosystems Council brings this action on its own
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`behalf and on behalf of its adversely affected members.
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`12. Plaintiff ALLIANCE FOR THE WILD ROCKIES (Alliance) is a tax-
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`exempt, non-profit public interest organization dedicated to the protection
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`and preservation of the native biodiversity of the Northern Rockies
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`4
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`Bioregion, its native plant, fish, and animal life, and its naturally functioning
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`ecosystems. Its registered office is located in Missoula, Montana. The
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`Alliance has over 2,000 individual members, many of whom are located in
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`Montana. Members of the Alliance observe, enjoy, and appreciate
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`Montana’s native wildlife, water quality, and terrestrial habitat quality, and
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`expect to continue to do so in the future, including in the Iron Mask Planning
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`Area and in the Indian Creek Forage Allotment. Alliance’s members’
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`professional and recreational activities are directly affected by Defendants’
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`failure to perform their lawful duty to protect and conserve these ecosystems
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`as set forth below. Alliance for the Wild Rockies brings this action on its
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`own behalf and on behalf of its adversely affected members.
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`13. Defendant John Mehlhoff is the State Director for the
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`Montana/Dakotas Bureau of Land Management.
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`14. Defendant U.S. Bureau of Land Management is an administrative
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`agency within the U.S. Department of Interior, and is responsible for the
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`health, diversity, and productivity of public lands for the use and enjoyment
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`of present and future generations.
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`V. FACTUAL ALLEGATIONS
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`
`BACKGROUND & PROCEDURAL HISTORY
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`5
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`15.
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`In 2007, the BLM acquired 5,566 acres of land adjacent to the Indian
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`Creek Allotment (Iron Mask Acquisition) to “protect important resource
`
`values” and “improve wildlife habitat near the Missouri River corridor . . .”
`
`16. This land, next to the Canyon Ferry Reservoir near Townsend,
`
`Montana, was slated for subdivision development, but The Rocky Mountain
`
`Elk Foundation and The Conservation Fund purchased the property to
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`prevent subdivision development and preserve wildlife habitat.
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`17. The Rocky Mountain Elk Foundation and The Conservation Fund
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`sold the land to the BLM.
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`18. Funds for the purchase were provided by the Land and Water
`
`Conservation Fund and by the Montana Fish and Wildlife Conservation
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`Trust, which was funded by sales of cabin sites on Canyon Ferry Reservoir.
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`19. The land is in the Elkhorn Wildlife Management Unit, a unique
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`designation in which the land is managed specifically for the benefit of the
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`elk, bighorn sheep, deer and other wildlife that inhabit the area.
`
`20. The BLM released the Proposed Butte Resource Management Plan
`
`and Final Environmental Impact Statement in September 2008.
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`21. The BLM produced the Butte Resource Management Plan (RMP) in
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`2009 that provides a comprehensive land use plan to guide management of
`
`public lands, including the Iron Mask Planning Area.
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`22. The BLM released a draft Environmental Assessment for the Iron
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`Mask Project on June 6, 2014. NEC and Alliance provided comments on the
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`draft Environmental Assessment on July 18, 2014.
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`23. The BLM produced a Final Environmental Assessment (Iron Mask
`
`EA) for the Iron Mask Project on July 1, 2015.
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`24. The BLM signed the Decision Record authorizing the Project and a
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`Finding of No Significant Impact Statement (FONSI) on July 1, 2015.
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`25. The agency chose to implement Alternative B, the Preferred
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`Alternative, that would be implemented in separate decisions.
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`26. The separate decisions included the Decision Record for Vegetation
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`and Riparian Treatments issued on July 1, 2015 (2015 Vegetation Decision)
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`and the Final Grazing Decision and Response to Protest for the Indian Creek
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`Forage Reserve issued on March 7, 2016 (2016 Grazing Decision).
`
`27. On August 11, 2015 Alliance and NEC administratively appealed the
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`Decision Records. The appeal was rejected August 24, 2015.
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`28. Plaintiffs Alliance and NEC filed suit challenging the 2015
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`Vegetation Decision and 2016 Grazing Decision alleging, among other
`
`claims, that the BLM failed to analyze and disclose past, present and
`
`reasonably foreseeable treatments or their cumulative impacts to the Project.
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`See Native Ecosystem Council v. Judice, 2019 WL 1131231 (D. Mont. 2019)
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`(Iron Mask I).
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`29. Prior to resolution on the merits of Iron Mask I, the BLM began
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`implementation of grazing developments.
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`30.
`
` This Court ultimately found in favor of Plaintiffs and held that the
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`BLM failed to perform a cumulative impacts analysis by failing to consider
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`past, present and reasonably foreseeable vegetation projects. Iron Mask I at
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`*7-8.
`
`31. This Court stated, “Nowhere in [the Ironmask EA] does BLM attempt
`
`to analyze possible spill-over effects of the challenged decisions on the
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`impacts to vegetation or wildlife inside the Planning Area. Id. at *8.
`
`32. This Court remanded the matter to the BLM “so that it may prepare a
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`supplemental environmental assessment consistent with this order and the
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`law.” Id. at *9.
`
`33. On September 20, 2019, the BLM subsequently conduced and
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`released the Iron Mask Planning Area Supplemental Environmental
`
`Assessment (SEA).
`
`34. On September 23, 2019, the BLM issued a Decision Record for
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`Upland and Riparian Vegetation Treatments for Iron Mask Planning Area
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`(2019 Vegetation Decision).
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`8
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`35. On February 28, 2020 Plaintiffs filed another action challenging the
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`2019 Vegetation Decision, alleging the BLM failed to analyze the
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`cumulative impacts of vegetation treatments on wildlife as required by
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`NEPA and this Court’s directive in Iron Mask I. Native Ecosystems Council
`
`et al., v. Mehlhoff, CV-20-19-BLG-SPW-TJC (D. Mont.)(Iron Mask II).
`
`Plaintiffs moved this Court to preliminarily enjoin the 2019 Vegetation
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`Decision.
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`36. On July 6, 2020, the magistrate judge recommended granting
`
`Plaintiffs’ motion, finding that the Plaintiffs demonstrated a likelihood of
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`success on the merits. Iron Mask II, Dkt#13.
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`37. The magistrate judge found, “the SEA has likely failed to satisfy this
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`Court’s order in Iron Mask I and thus NEPA’s requirement that BLM give a
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`hard look at to the cumulative impacts of the proposed treatments on
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`wildlife- with particular attention on sensitive species.” Iron Mask II,
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`Dkt#13 at 21.
`
`38. On July 24, 2020, this Court adopted the findings and
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`recommendation of the magistrate judge and preliminarily enjoined the 2019
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`Vegetation Decision.
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`39. Following the Court’s Order, the Iron Mask II Defendants voluntarily
`
`withdrew the 2019 Vegetation Decision on August 24, 2020.
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`40. On February 28, 2020, BLM issued a grazing decision for the Indian
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`Creek allotments on the Iron Mask Planning area (2020 Grazing Decision)
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`pursuant to the SEA.
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`41. The 2020 Grazing Decision establishes grazing terms and conditions,
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`management prescriptions, and authorizes construction of “range
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`improvement projects” to manage grazing on the Indian Creek Forage
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`Reserve Allotment within the Iron Mask Planning Area.
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`42. Plaintiffs administratively appealed the 2020 Grazing Decision.
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`43. On May 21, 2020, the BLM denied Plaintiffs’ administrative appeal.
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`44. After this Court issued a preliminary injunction order on the 2019
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`Vegetation Decision, Plaintiffs here asked the BLM to voluntarily withdraw
`
`the 2020 Grazing Decision, since it was based on the same infirm analyses
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`as the 2019 Vegetation Decision. Plaintiffs also requested the BLM to
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`remove grazing developments it had installed on the Indian Creek area.
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`45. The BLM informed Plaintiffs that it would withdraw the 2020
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`Grazing Decision.
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`46. After a period of delay, on December 10, 2020, the BLM voluntarily
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`withdrew the “unimplemented portions of the [2020] grazing decision,” and
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`stated that it “does not have plans to remove any fencing.”
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`47. After the BLM withdrew the 2020 Grazing Decision, rather than filing
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`a lawsuit, Plaintiffs here again requested the BLM to remove the grazing
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`developments it had installed on the Iron Mask area, since the developments
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`were installed pursuant to decisions either held unlawful by the Court or
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`withdrawn by the BLM because this Court had identified infirmities in the
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`analyses for the decisions.
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`48. On December 17, 2020, the BLM stated that it “will not be removing
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`any of the fencing or other range improvements installed pursuant to either
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`the 2016 or 2020 Indian Creek Forage Reserve Allotment Grazing Decision.
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`Any further action by BLM, including removal of the fencing or other
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`improvements, would require a new BLM decision.”
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`49. Because the BLM refuses to remove unlawful grazing developments
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`on land that was purchased specifically for wildlife habitat, Plaintiffs here
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`must again ask this Court to intervene.
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`ELKHORN MOUNTAINS
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`50. The Elkhorn Mountains are an isolated and unique mountain range of
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`about 250,000 acres.
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`51. About 160,000 acres of the Elkhorn Mountains are managed by the
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`Helena and Beaverhead-Deerlodge National Forests. The Iron Mask area
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`11
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`includes land managed as the only Wildlife Management Unit in the
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`National Forest System.
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`52. About 75,000 acres of the Elkhorn Mountain foothills are managed by
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`the BLM under the Butte RMP.
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`53. The Butte RMP designated 50,431 acres as the Elkhorn Mountains
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`Area of Critical Environmental Concern (ACEC) because of its “diverse
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`upland and aquatic habitat for wildlife and fish.”
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`54. The Iron Mask Environmental Assessment states that “Management
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`of the Elkhorn Mountains ACEC is focused primarily on . . . Important
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`cultural/historical sites, diverse upland and aquatic habitat for the wildlife
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`and fish, and unique natural management area (referring to the USFS lands
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`being designated as a Wildlife Management Unit) and cooperative
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`management of the area with the BLM, USFS, and FWP.”
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`55.
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`“For the Iron Mask [Decision Area], wildlife, habitat and unique
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`management area are the primary values. . .” for the Elkhorn Mountains
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`ACEC.
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`56.
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`“Most of the Decision Area was designated in the Butte RMP as part
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`of the Elkhorn Mountain ACEC.”
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`57. Approximately 15,019 acres of the Elkhorn Mountains ACEC are
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`within the Iron Mask Planning Area.
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`IRON MASK PLANNING AREA
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`58. The Iron Mask Planning Area is located in the Upper Missouri
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`Watershed Basin, in Broadwater and Jefferson County northwest of
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`Townsend, Montana.
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`59. The Iron Mask Planning Area covers approximately 124,933 acres
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`within Jefferson and Broadwater Counties, Montana.
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`60. The Decision area, the BLM-administered lands within the planning
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`area considered here, consists of 19 separate BLM-owned land parcels
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`totaling 26,235 acres.
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`61. The FONSI stated, “environmental analysis documented no major
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`effects on unique geographic features of the area, cultural or historic
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`resources, park lands, prime farmlands
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`BUTTE RESOURCE MANAGEMENT PLAN
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`62. The Butte RMP sets forth land management standards for the Project
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`Area.
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`63. Throughout the Butte Field Office region, all BLM authorized
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`activities must meet or move toward providing habitat to maintain a viable
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`and diverse population of native plant and animal species, including special
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`status species.
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`13
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`64. The Butte RMP authorized the expansion of the Indian Creek
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`Allotment, a portion of land within the Planning Area, and combined the
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`Indian Creek Allotment with 5,566 acres acquired from the Rocky Mountain
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`Elk Foundation and The Conservation Fund.
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`65. The Butte RMP designated the total area as the Indian Creek Forage
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`Reserve Allotment.
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`66. The Butte RMP sets forth directives to manage the Indian Creek
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`Forage Reserve Allotment as a forage reserve usable by permittees of other
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`allotments, on a temporary basis, when their own allotments are unavailable
`
`or unusable due to events like drought, fire, vegetation treatments, or other
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`agency project work.
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`67. The Butte RMP provide the objectives and authorizations for treating
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`grassland and shrubland, and reducing conifer colonization in the Iron Mask
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`Planning Area.
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`68. The Butte RMP determined that vegetation treatments would include
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`“cutting non-commercial conifers that have encroached into grassland or
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`sagebrush habitats, and that prescribed burning will be used to treat forest,
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`grassland or shrubland vegetation types.”
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`69. The Butte RMP authorized the vegetation and riparian treatments and
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`authorized grazing in the Iron Mask Planning Area.
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`14
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 15 of 25
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`70. The Butte RMP states in its analysis of direct, indirect, and
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`cumulative impacts “Certain information was unavailable for use, usually
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`because inventories have either not been conducted, were not complete, or
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`were not of consistent quality across the Planning Area. Some of the major
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`areas where data are incomplete or substantially lacking are: . . . Certain
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`wildlife inventory data (i.e. lynx denning habitat, occupied pygmy rabbit
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`habitat); Wildlife monitoring data. . . .”
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`71. The Butte RMP states, “As a result, impacts cannot be quantified
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`given the proposed management of certain resources. Where this occurs,
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`impacts are projected in qualitative terms, or in some instances, are
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`described as unknown. Subsequent project level analysis will provide the
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`opportunity to collect and examine site-specific inventory data necessary to
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`determine the appropriate application of the RMP level guidance. In
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`addition, ongoing inventory efforts within the Planning Area continue to
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`update and refine the information used to implement this plan.”
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`INDIAN CREEK FOREST RESERVE ALLOTMENT
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`72. The Iron Mask Planning Area contains 15 active livestock grazing
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`allotments, including the Indian Creek Allotment.
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`73. The Indian Creek Allotment was previously 2,215 acres and 376
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`AUMs. Butte RMP EIS 40.
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`15
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`74.
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`In 2007, the BLM acquired 5,566 acres of land adjacent to the Indian
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`Creek Allotment (Iron Mask Acquisition) to “protect important resource
`
`values” and “improve wildlife habitat near the Missouri River corridor . . .”
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`75. The Butte RMP authorizes the expansion of the Indian Creek
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`Allotment by an additional 5,566 acres and 700 AUM by including the Iron
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`Mask Acquisition.
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`76. The Iron Mask FONSI and Grazing Decision implement this
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`expansion.
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`77. This expanded Indian Creek Allotment is located in the Elkhorns
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`Cooperative Management area (ECMA) and managed as a forage reserve
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`allotment (Indian Creek Reserve Allotment).
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`78. A forage reserve allotment is an allotment without a term grazing
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`permit that is grazed on a temporary nonrenewable basis.
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`79. This type of allotment is used “to provide temporary grazing to rest
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`other areas.”
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`2020 GRAZING DECISION
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`80. The 2020 Grazing Decision, which has been withdrawn, authorized up
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`to 937 AUMs within the Indian Creek Reserve Allotment.
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`81. Grazing on this allotment would remove approximately 40% of the
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`existing herbaceous forage.
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`16
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`82. Vegetation less than 4 inches high “reduces forage availability for
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`livestock and wildlife.”
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`83. Grazing on the forage reserve allotment would result in competition
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`for forage between cows and herbivorous wildlife.
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`84. Grazing by cattle reduces plant biomass available and does not
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`increase nutritional value of the remaining plant biomass, thus reducing
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`potential for available forage for wildlife.
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`85. The majority of the uplands located on the lower elevation of the
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`Indian Creek Reserve Allotment are currently in an “undesirable state” and
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`“may have crossed a threshold in plant communities from that expected for
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`the area.”
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`86. The Iron Mask SEA states that the Indian Creek Reserve Allotment is
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`dominated by cheatgrass, Dalmation toadflax, and lacks bluebunch
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`wheatgrass; the SEA also notes a shift away from a dominance of deep-
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`rooted perennials and toward more shallow-rooted species.
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`87. The Iron Mask SEA concludes that increased livestock grazing on this
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`already degraded allotment will “help increase vigor and reproductive
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`opportunities for plants” but fails to disclose how.
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`17
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 18 of 25
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`88. The 2020 Grazing Decision authorized construction of riparian
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`exclosures, water developments, as well as construction of five miles of
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`new fencing.
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`89. Fences constitute hazards to wildlife from entanglement and by
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`blocking movement.
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`WILDLIFE
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`90. The Iron Mask EA states “Several [bird] species designated
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`‘sensitive’ by BLM may occur in the [planning] area. Species requiring
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`special management consideration to promote their conservation and reduce
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`the likelihood of future Endangered Species Act (ESA) listing are designated
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`‘sensitive’ by BLM State Directors.”
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`91. The Iron Mask EA further states, “Grey wolves have moved into the
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`area in recent years. Other predators include coyote, mountain lion, bobcat,
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`black bear, and badger. Numerous small mammals are present in the area as
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`well, including shrew species, many rodent species, and several bat species.”
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`92. The Iron Mask EA provides a table that discloses BLM-listed
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`Sensitive Species that occur in the planning area.
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`93. The BLM-listed Sensitive Species that have been documented in the
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`area are gray wolf, Townsend’s big-eared bat, bald eagle, Brewer’s sparrow,
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`18
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 19 of 25
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`golden eagle, long-billed curlew, McCown’s longspur, sage thrasher,
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`Northern leopard frog, and westslope cutthroat trout.
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`94. The SEA analyzes cumulative impacts to “relevant resources” or
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`“relevant resources issues.”
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`95. The SEA states, “The Present Actions are those actions described in
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`the 2015 Vegetation Treatment decision and the 2016 the Indian Creek
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`Forage Reserve decision, contemporaneously with other ongoing decisions
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`in the cumulative impact areas identified for the relevant resource issues.”
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`96. The SEA does not disclose and discuss why the identified “relevant
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`resource” or “relevant resource issues” were chosen for analysis.
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`97. The “relevant resource issue” for wildlife identified in the SEA are elk
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`and elk habitat, bighorn sheep and bighorn sheep habitat, mule deer and
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`mule deer habitat, and pronghorn and pronghorn habitat.
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`98. The SEA does not analyze the cumulative impacts to the BLM-listed
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`Sensitive Species that have been documented in the Iron Mask Planning
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`Area.
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`99. The SEA does not analyze the cumulative impacts to species found in
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`the Iron Mask Planning Area.
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`100. The BLM fails to analyze the grazing decision’s cumulative impacts
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`on wildlife species other than elk, pronghorn, bighorn sheep and mule deer.
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`19
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 20 of 25
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`101. The BLM fails to analyze and disclose the direct and indirect impacts
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`of grazing on wildlife.
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`102. The BLM fails to disclose the science and reasoning supporting its
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`conclusion that the vegetation treatments and grazing benefits plant
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`communities and wildlife.
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`UNLAWFUL FENCE CONSTRUCTION AND WATER SOURCES
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`103. The BLM has constructed up to 8.5 miles of fencing in the Iron Mask
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`Planning Area, has constructed riparian exclosures, and has developed water
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`sources.
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`104. The construction of the up to 8.5 miles of fencing, riparian exclosures,
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`and development of water sources were authorized by the 2016 Grazing
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`Decision.
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`105. The 2016 Grazing Decision was vacated by this court. The supporting
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`Iron Mask EA was found to be in violation of NEPA.
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`106. The 2020 Grazing Decision authorized construction of 5 miles of
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`fencing, riparian exclosures, and development of water sources.
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`107. The BLM has withdrawn the 2020 Grazing Decision. The supporting
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`SEA was found to be in violation of NEPA.
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 21 of 25
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`108. The BLM refuses to remove the fencing, riparian exclosures, and
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`development of water sources constructed pursuant to the 2016 Grazing
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`Decision and 2020 Grazing Decision.
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`VI. CLAIMS FOR RELIEF
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`CLAIM 1
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`The construction of the fencing, riparian exclosures, and water sources
`are unlawfully authorized actions without proper analysis in violation of
`the NEPA and APA.
`
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`109. All previous paragraphs are incorporated by reference.
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`110. NEPA requires that agencies take a “hard look” at the environmental
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`consequences of their proposed actions before the agencies choose a
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`particular course of action.
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`111. Federal regulations permit an agency planning a major federal action
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`to conduct an Environmental Assessment in order to determine whether it
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`must prepare an EIS. 40 C.F.R. §1508.9
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`112. If the EA shows that the proposed action will have no significant
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`impact, the agency may issue a finding of no significant impact (FONSI) and
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`Decision Notice. 40 C.F.R. §1501.4; 36 C.F.R. §220.3
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`113. If however, the EA shows that the proposed activity will have a
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`significant impact, the federal agency must prepare an EIS before
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`proceeding with the proposed activity. Id.
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`21
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 22 of 25
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`114. If the agency prepares an EIS, it must document its final decision in a
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`Record of Decision. 40 C.F.R. §1505.2.
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`115. Alternatively, an agency may invoke a “categorical exclusion” to
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`NEPA analysis if the action falls within “a category of actions which do not
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`individually or cumulatively have a significant effect on the human
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`environment and which have been found to have no such effect in
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`procedures adopted by a Federal agency in implementation of these
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`regulations (§ 1507.3) and for which, therefore, neither an environmental
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`assessment nor an environmental impact statement is required.” 40 C.F.R. §
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`1508.4.
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`116. If an agency decides to use a categorical exclusion, it must prepare a
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`Decision Memo documenting the decision. 36 C.F.R. §220.3.
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`117. Any agency action must be authorized by a decision.
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`118. The fences, riparian exclosures, and water developments are unlawful
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`because they have not been authorized pursuant to a decision notice, record
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`of decision, or decision memo.
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`CLAIM 2
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`The 2020 Grazing Decision and Iron Mask SEA violate NEPA and the
`APA.
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`119. Alternatively, if the BLM has not fully withdrawn the 2020 Grazing
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`Decision and relies upon it for authorization of the fences, riparian
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`22
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 23 of 25
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`exclosures and water developments, then the BLM is in violation of NEPA
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`and this Court’s directive by failing to examine the cumulative impacts of
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`the 2020 Grazing Decision on all wildlife.
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`120. NEPA requires federal agencies’ environmental analysis to consider
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`“any adverse environmental effects which cannot be avoided.” 42 U.S.C.
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`§4332(2)(C)(ii). When several actions may have cumulative or synergistic
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`environmental impacts, BLM must consider these actions together and
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`prepare a comprehensive environmental analysis.
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`121. Agencies are required to take a hard look at direct, indirect and
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`cumulative impacts of a proposed action. 40 C.F.R. §1508.25(c).
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`122. Cumulative impact is the impact on the environment, “which results
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`from the incremental impact of the action when added to other past, present
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`and reasonably foreseeable future actions regardless of what agency (Federal
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`or non-Federal) or person undertakes such other actions. Cumulative impacts
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`can result from individually minor but collectively significant actions taking
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`place over a period of time.” 40 C.F.R. §1508.7.
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`123. The Iron Mask Project EA indicates that wildlife and habitat are
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`primary values for the decision area.
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`124. The Iron Mask Project EA indicates that BLM Sensitive Species occur
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`in the Decision Area.
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`23
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 24 of 25
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`125. The Butte RMP Environmental Impact Statement indicates that many
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`wildlife species depend on the habitat the BLM will be removing.
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`126. The Iron Mask Supplemental Environmental Analysis fails to analyze
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`the cumulative impacts on BLM Sensitive Species that are known to occur
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`in the Iron Mask Planning Area.
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`127. The BLM’s failure to analyze the cumulative impacts on these species
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`violates NEPA and this Court’s Orders in Iron Mask I and Iron Mask II.
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`128. The BLM also failed to disclose why it chose to limit its cumulative
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`impact analysis to its chosen “relevant resources” and further failed to
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`disclose the best available science and analysis that supports using the
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`chosen “relevant resources” as a proxy in analyzing cumulative impacts to
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`wildlife in violation of NEPA.
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`129. The BLM’s failure to consider these impacts and disclose its decision
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`is arbitrary and capricious and unlawful in violation of NEPA, 42 U.S.C. §
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`4332(2)(C), NEPA’s implementing regulations, and the APA, 5 U.S.C. §
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`706.
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`VII. RELIEF REQUESTED
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`For all of the above-stated reasons, Plaintiffs request that this Court award
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`the following relief:
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`24
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`Case 1:20-cv-00186-SPW-TJC Document 1 Filed 12/21/20 Page 25 of 25
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`A. Declare that the fences, riparian exclosures, water developments and
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`any other “range improvement” constructed in the Iron Mask Planning Area
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`pursuant to the 2016 Grazing Decision and/or the 2020 Grazing Decision are
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`unlawful and in violation of NEPA and the APA.
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`B. Declare the Iron Mask SEA and the 2020 Grazing Decision in
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`violation of NEPA and this Court’s directive and enjoin implementation of
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`the developments authorized by the 2020 Grazing Decision, Iron Mask SEA,
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`and the Butte RMP;
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`C. Order the BLM to remove the fences, riparian exclosures, water
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`developments, and any other “range improvements.”
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`D. Award Plaintiffs their costs, expenses, expert witness fees, and
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`reasonable attorney fees under EAJA; and
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`E. Grant Plaintiffs any such further relief as may be just, proper, and
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`equitable.
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`Respectfully submitted this 21st day of December, 2020.
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`
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`/s/Timothy M. Bechtold
`BECHTOLD LAW FIRM, PLLC
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`
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`Attorney for Plaintiffs
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`25
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