Case 2:21-cv-00297-SU Document 1 Filed 02/25/21 Page 1 of 47
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`Peter M. (“Mac”) Lacy (OSB # 013223)
`Oregon Natural Desert Association
`2009 NE Alberta St., Ste. 207
`Portland, OR 97211
`(503) 525-0193
`lacy@onda.org
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`Talasi B. Brooks (Pro Hac Vice application to be filed)
`Western Watersheds Project
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`PO Box 2863
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`Boise, ID 83701
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`(208) 336-7910
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`tbrooks@westernwatersheds.org
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`Attorneys for Plaintiffs
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`PENDLETON DIVISION
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`WESTERN WATERSHEDS PROJECT,
`OREGON NATURAL DESERT ASS’N,
`WILDEARTH GUARDIANS, and
`CENTER FOR BIOLOGICAL DIVERSITY,
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`Plaintiffs,
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`v.
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`SECRETARY OF THE UNITED STATES
`DEPARTMENT OF THE INTERIOR,
`and BUREAU OF LAND MANAGEMENT,
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`Defendants.
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`______________________________________
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`Case No. ________
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`COMPLAINT
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`(Environmental Matter)
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`1
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`Case 2:21-cv-00297-SU Document 1 Filed 02/25/21 Page 2 of 47
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`NATURE OF ACTION
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`1.
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`This case seeks judicial reversal, vacatur, and other relief with regard to former
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`Secretary of the Interior David Bernhardt’s January 19, 2021 decision—issued on the final day
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`of the Trump administration, following a rushed and truncated public process—to grant a new
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`grazing permit and preference to Hammond Ranches, Inc. (“HRI”) authorizing it to graze
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`domestic livestock on the Bridge Creek allotments of Steens Mountain in southeastern Oregon in
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`spite of its record of grazing permit violations. The decision challenged here follows a previous
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`last minute decision—enjoined and then vacated as unlawful by this Court in a related case
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`(No. 2:19-cv-0750-SI)—by former Secretary Bernhardt’s predecessor, Ryan Zinke, who
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`purported to “renew” HRI’s expired grazing permit without finding that HRI possessed a
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`satisfactory record of performance, as required by the Bureau of Land Management’s (“the
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`Bureau”) grazing regulations. W. Watersheds Proj. v. Bernhardt, 428 F. Supp. 3d 327 (D. Or.
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`2019) (holding unlawful and vacating Secretary’s decision); W. Watersheds Proj. v. Bernhardt,
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`392 F. Supp. 3d 1225 (D. Or. 2019) (preliminary injunction limiting grazing in 2019); W.
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`Watersheds Proj. v. Bernhardt, 391 F. Supp. 3d 1002 (D. Or. 2019) (temporary restraining order
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`limiting grazing in 2019).
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`2.
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`Although the Bureau had decided in 2014 not to renew HRI’s permit, based on
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`the operation’s failure to comply with the terms and conditions of its permit, including by setting
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`fire to public lands on Steens Mountain, then-Secretary Zinke interfered and, on his last day in
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`office, ordered the agency to renew the permit anyway. This Court set aside and vacated that
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`decision. Bernhardt, 428 F. Supp. 3d at 354.
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`3.
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`Now, former Secretary Bernhardt has, on his last day in office, issued a new
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`decision to grant HRI grazing privileges once again. The former Secretary’s Final Decision,
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`dated January 19, 2021 (“January 19, 2020 Final Decision,” or “Final Decision”) issues a 10-
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`Case 2:21-cv-00297-SU Document 1 Filed 02/25/21 Page 3 of 47
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`year grazing permit and preference to HRI for the Bridge Creek allotments over other, better-
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`qualified applicants; apportions forage within the Bridge Creek Area allotments (Hammond,
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`Mud Creek, Hardie Summer, and Hammond FFR); reconfigures the allotment boundaries; and
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`authorizes the construction and removal of a series of range projects within the area.
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`4.
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`Following this Court’s 2019 reversal and vacatur of the Secretary’s prior decision
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`in Case No. 2:19-cv-0750-SI, there was no longer any permit allowing livestock grazing on the
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`Bridge Creek allotments. The Bureau began a public process to consider anew whether to allow
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`grazing on the allotments and, if so, under what terms and conditions. The Bureau began by
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`advertising a notice of available forage and soliciting applications, and the agency had been
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`prepared to issue a decision following the ordinary process set out in its grazing regulations. But
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`former Secretary Bernhardt seized control of that process.
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`5.
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`On October 13, 2020, the Bureau mailed a scoping letter to interested publics,
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`requesting comments by October 27, 2020. Around a month later, on December 8, 2020, the
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`Bureau issued a draft “Bridge Creek Area Allotment Management Plan and Environmental
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`Assessment” (“AMP” and “EA”). It allowed only eight business days for public comment on the
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`draft EA and purported to incorporate and respond to all timely comments received within an
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`additional eight business days.
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`6.
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`On December 31, 2020, the Secretary’s Principal Deputy Assistant Secretary,
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`Casey Hammond, took over the matter from the local Bureau office and issued a Proposed
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`Decision to grant a grazing permit and preference to HRI. The Proposed Decision was
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`accompanied by a final “Bridge Creek Area Allotment Management Plan and Environmental
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`Assessment.” “Courtesy copies” of the Proposed Decision (but not the AMP and EA) were sent
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`by email to Plaintiffs Western Watersheds Project (“WWP”) and the Oregon Natural Desert
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`Association (“ONDA”) on New Year’s Day, but Plaintiffs and other members of the interested
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`public did not receive official copies of the AMP/EA and Proposed Decision until the second
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`week of January. Rather than providing the full time for administrative protest guaranteed by the
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`agency’s regulations, former Secretary Bernhardt directed the Bureau to cut off the
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`administrative protest period on Friday, January 15, 2021.
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`7.
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`Finally, claiming he was “exercising jurisdiction over this matter,” former
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`Secretary Bernhardt issued a “Notice of Final Decision” on Tuesday, January 19, 2021 in the
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`place of the Bureau—purporting to review and resolve 160 protests from the public in less than
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`one business day following the Martin Luther King, Jr. Day weekend. This was less than 24
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`hours before President Trump left office at noon the next day, and former Secretary Bernhardt
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`declared “there are no further administrative appeals available.”
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`8.
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`The Secretary’s January 19, 2021 Final Decision is unlawful in five major
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`respects. First, the Secretary violated the Federal Land Policy and Management Act (“FLPMA”),
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`43 C.F.R. §§ 1701–87, and the Department of the Interior’s regulations by improperly asserting
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`jurisdiction and by issuing the Decision without opportunities for public participation required by
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`law. Second, the Secretary violated FLPMA and its implementing regulations by improperly
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`determining that HRI was qualified to receive a grazing permit and granting a permit to HRI over
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`other applicants who were qualified. Third, the Secretary and the Bureau violated procedural
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`requirements of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370m-
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`12, by failing to provide information and analysis necessary to ensure meaningful public
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`participation and an informed decision. Fourth, the Secretary’s Decision violated FLPMA and its
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`implementing regulations because it does not comply with land use plan requirements adopted to
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`protect the greater sage-grouse. Fifth, the Secretary’s Decision violated the Steens Mountain
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`Cooperative Management and Protection Act of 2000 (“Steens Act”), 16 U.S.C. § 460nnn et
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`seq., because the Secretary incorrectly interpreted the Steens Act’s purpose and the Final
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`Decision fails to conserve, protect, and manage the “long-term ecological integrity” of Steens
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`Mountain.
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`9.
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`Upon information and belief, the rushed, opaque, and highly unusual public
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`processes and repeated intervention by multiple Secretaries of the Interior under the Trump
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`Administration in the Bureau’s grazing decisions regarding the Bridge Creek allotments reveals
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`that the Decisions have been tainted by political influence and are not the product of reasoned,
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`lawful decisionmaking.
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`10.
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`Plaintiffs, Western Watersheds Project, Oregon Natural Desert Association,
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`WildEarth Guardians, and the Center for Biological Diversity, file this action to ensure that the
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`Secretary is not permitted to once again ignore the law and issue a decision allowing livestock
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`grazing on the Bridge Creek allotments and Steens Mountain without first properly involving the
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`public and fully considering the environmental consequences of that decision. Accordingly,
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`Plaintiffs respectfully request that this Court set aside and vacate the Secretary’s January 19,
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`2021 Final Decision, Final Bridge Creek Area Allotment Management Plan and Environmental
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`Assessment, and grazing permit, and issue injunctive and other relief necessary to avoid harm to
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`fragile and irreplaceable fish, wildlife, and other natural resource values on Steens Mountain.
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`JURISDICTION AND VENUE
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`11.
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`Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action
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`arises under the laws of the United States, including NEPA, FLPMA, the APA, and the Equal
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`Access to Justice Act, 28 U.S.C. § 2412 et seq. Despite having their participation burdened by
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`truncated public comment and protest periods, and being deprived of the opportunity to file an
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`administrative appeal ordinarily available pursuant to the Bureau’s grazing regulations, Plaintiffs
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`have exhausted all available administrative remedies. Plaintiffs seek judicial review of final
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`agency actions of the Secretary and the Bureau. See 5 U.S.C. §§ 704, 706(2) (actions reviewable
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`and “final agency action”). An actual, justiciable controversy exists between the parties, and the
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`requested relief is therefore proper under 28 U.S.C. §§ 2201–02 and 5 U.S.C. § 701–06.
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`12.
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`Venue is proper in this Court under 28 U.S.C. § 1391 and Local Rule 3-2(b)
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`because all or a substantial part of the events or omissions giving rise to the claims herein
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`occurred within this judicial district, defendants reside in this district, and the public lands and
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`resources and agency records in question are located in this district.
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`13.
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`The federal government has waived sovereign immunity in this action pursuant to
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`5 U.S.C. § 702.
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`PARTIES
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`14.
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`Plaintiff WESTERN WATERSHEDS PROJECT (“WWP”), is a non-profit
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`corporation with approximately 12,000 members and supporters dedicated to protecting and
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`conserving the public lands and natural resources in Oregon and the West. WWP has staff and
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`offices in Oregon, Idaho, Wyoming, Montana, Nevada, and Arizona. Since its inception, WWP
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`has advocated to curb ecological abuses from public lands livestock grazing throughout the
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`West, including in Oregon. WWP and many of its members and supporters have long-standing
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`interests in preserving and conserving greater sage-grouse populations and sagebrush habitats in
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`Oregon and other states across the range of the greater sage-grouse. They also have interests in
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`the preservation of riparian habitats and native fish species, including redband trout.
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`15.
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`Plaintiff OREGON NATURAL DESERT ASSOCIATION (“ONDA”) is an
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`Oregon non-profit, public interest organization of about 10,000 members and supporters. It has
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`offices in Portland, Oregon and Bend, Oregon. ONDA’s mission is to protect, defend, and
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`restore forever, the health of Oregon’s native deserts. ONDA actively participates in Bureau and
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`Department of the Interior proceedings and decisions concerning the management of public lands
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`in eastern Oregon, including on Steens Mountain. ONDA brings this action on its own behalf
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`and on behalf of its members and staff, many of whom regularly enjoy and will continue to enjoy
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`the public lands and resources that are the subject of the final agency decision challenged in this
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`action, for educational, recreational, spiritual, and scientific activities. ONDA has been active in
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`monitoring ecological conditions on public lands managed by the Bureau throughout eastern
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`Oregon, including within the agency’s Burns District and on Steens Mountain. ONDA
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`participated throughout the public processes that led to the Secretary’s decision challenged here.
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`16.
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`Plaintiff WILDEARTH GUARDIANS (“Guardians”) is a non-profit organization
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`dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of the
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`West. Guardians has over 165,000 members and supporters, many of whom have long advocated
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`for the protection and restoration of sagebrush habitats and the species that depend upon them
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`and for responsible land management. Headquartered in Santa Fe, New Mexico, Guardians
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`maintains several other offices around the West, including an office in Portland, Oregon.
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`17.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a non-
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`profit organization dedicated to the preservation, protection, and restoration of biodiversity,
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`native species, and ecosystems. The Center was founded in 1989 and is based in Tucson,
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`Arizona, with offices or staff throughout the country, including in Portland, Oregon. It has more
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`than 63,000 members, including many who reside in, explore, and enjoy sage-grouse and
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`sagebrush ecosystems in Oregon and throughout the West. The Center advocates for sound
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`public land management to protect species habitat, including habitat for greater sage-grouse and
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`other sagebrush obligates in Oregon and elsewhere. The Center’s officers, staff, and members
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`regularly visit public lands and sagebrush habitats for recreational, scientific, educational and
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`other pursuits, and intend to continue to do so in the future.
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`18.
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`The Plaintiff organizations place a high priority on protecting and conserving
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`sagebrush ecosystems and curbing ecologically harmful grazing throughout the West, including
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`in Oregon. They undertake a wide range of activities including education, advocacy, scientific
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`study, habitat restoration projects, and litigation in order to protect and conserve sagebrush
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`ecosystems, often through reducing the effects of ecologically harmful livestock grazing, and to
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`communicate to the public and policy-makers about the values of sagebrush habitats in Oregon.
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`Plaintiffs have participated in the public processes surrounding the Bridge Creek allotments and
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`meet the definition of “interested publics.”
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`19.
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`Plaintiffs’ members, supporters, and/or staff work, recreate, study, and otherwise
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`use and enjoy public lands in Oregon, including public lands in and around the Malheur National
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`Wildlife Refuge and Steens Mountain, where the Bridge Creek allotments are located. Plaintiffs
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`engage in hiking, camping, cycling, wildlife observation, photography, scientific study, and other
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`activities on public land on and around Steens Mountain and the Malheur National Wildlife
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`Refuge, including the Bridge Creek allotments. They enjoy viewing or attempting to view
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`greater sage-grouse, redband trout, and other wildlife on Steens Mountain and the Bridge Creek
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`allotments, and visiting roadless and wilderness-quality lands in the area, and have been upset by
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`witnessing habitat degradation due to Bureau-authorized livestock grazing in these areas.
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`20.
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`The SECRETARY OF THE UNITED STATES DEPARTMENT OF THE
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`INTERIOR is sued solely in his or her official capacity as Secretary of the United States
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`Department of the Interior. David Bernhardt was the Secretary of the Interior at the time the
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`Secretary issued the January 19, 2021 Final Decision. The current Secretary of the Interior is
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`responsible for former Secretary Bernhardt’s decision challenged here. See Fed. R. Civ. P. 25(d).
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`21.
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`Defendant BUREAU OF LAND MANAGEMENT is an agency or
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`instrumentality of the United States within the Department of the Interior, and is charged with
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`managing the public lands and resources governed by the challenged decision at issue in this
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`case, in accordance and compliance with federal statutes and regulations.
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`22.
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`Plaintiffs have Article III standing to bring this action because they are directly
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`injured by the procedural and substantive FLPMA, NEPA, and APA violations alleged herein,
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`which are redressable by this Court. Plaintiffs are injured by the Secretary’s January 19, 2021
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`Final Decision issuing a new grazing permit and preference to HRI because it harms their strong
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`interests in having Executive Branch officials and federal agencies obey federal law and their
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`strong interests in ecologically sound grazing management. Plaintiffs are further injured by the
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`Secretary’s and Bureau’s decision to issue a grazing permit without required public process
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`because it deprives the agency and the public of full and accurate information concerning the
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`effects of the permit decision and alternative courses of action and deprives Plaintiffs of a legally
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`required, and meaningful, opportunity for detailed input. The January 19, 2021 Final Decision
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`threatens irreparable harm to sagebrush ecosystems, sage-grouse, wilderness, and redband trout
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`and their riparian habitat, all of which Plaintiffs value and enjoy, further harming Plaintiffs’
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`interests.
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`23.
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`Plaintiffs’ injuries would be redressed if this Court reversed and vacated the
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`Secretary’s January 19, 2021 Final Decision and enjoined the Bureau from allowing livestock
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`grazing on the allotments unless and until the Bureau and the Department of the Interior have
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`fully complied with FLPMA, NEPA, and applicable regulations. Unless judicial relief is granted,
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`Plaintiffs will continue to suffer irreparable harm to their interests from unlawful livestock
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`grazing under the grazing permit.
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`LEGAL BACKGROUND
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`A. FLPMA AND THE TAYLOR GRAZING ACT
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`24.
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`Two statutes provide the foundation for the Bureau’s management of livestock
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`grazing on public lands: the Taylor Grazing Act and FLPMA.
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`25.
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`In 1934, Congress passed the Taylor Grazing Act, 43 U.S.C. § 315 et seq., to
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`“stop injury to the [public] lands from overgrazing and soil deterioration, to provide for their use,
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`improvement and development, and to stabilize the livestock industry dependent on
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`the public range.” Pub. Lands Council v. Babbitt, 529 U.S. 728, 733 (2000) (internal quotation
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`marks omitted). To that end, the Taylor Grazing Act granted the Secretary of the Interior the
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`authority to regulate grazing on public lands through issuance of grazing permits and leases. See
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`43 U.S.C. § 315b. Grazing permits are ten-year authorizations “subject to the preference right of
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`the permittees to renewal in the discretion of the Secretary of the Interior.” Id.
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`26.
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`The issuance of a permit to graze livestock on federal public land “shall not create
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`any right, title, interest, or estate in or to the lands.” 43 U.S.C. § 315b. Rather, a grazing permit is
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`a revocable license to use public land, granted subject to the conditions the Secretary or Bureau
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`decides to impose. Pub. Lands Council, 529 U.S. at 735 (the “conditions placed on permits
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`reflect[] the leasehold nature of grazing privileges”).
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`27.
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`Despite the Taylor Grazing Act’s mandate to improve the conditions of the public
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`lands, they remained in unsatisfactory condition decades later. As a result, in 1976, Congress
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`enacted FLPMA, directing that the Secretary of the Interior, who oversees the Bureau, “shall,
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`with public involvement . . . , develop, maintain, and, when appropriate, revise land use plans
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`which provide by tracts or areas for the use of the public lands.” 43 U.S.C. § 1712(a). The
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`Bureau “shall manage the public lands . . . in accordance with” these plans. Id. § 1732(a).1 The
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`plans guide “[a]ll future resource management authorizations and actions . . . and subsequent
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`more detailed or specific planning, shall conform to the approved plan[s].” 43 C.F.R. § 1610.5-3;
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`see also id. § 4100.0–8.2
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`28.
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`The Bureau must manage the public lands consistent with the “principles of
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`multiple use and sustained yield” and “take any action necessary to prevent unnecessary or
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`undue degradation of the lands.” 43 U.S.C. §§ 1732(a), (b). To ensure it has adequate
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`information to fulfill these obligations, the Bureau must “prepare and maintain on a continuing
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`basis an inventory of all public lands and their resource and other values.” Id. § 1711(a). This
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`inventory “shall be kept current so as to reflect changes in conditions.” Id.
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`29.
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`Under FLPMA and its implementing regulations, the Bureau may allow livestock
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`grazing on specified allotments on the public lands. See 43 U.S.C. § 1752(a); 43 C.F.R. Part
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`4100 (grazing administration); see also id. § 4130.2 (grazing management and permitting); id. §
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`4100.0-5 (defining an allotment as “an area of land designated and managed for grazing of
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`livestock”). The Bureau authorizes and manages grazing through three types of decisions: a
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`grazing permit issued pursuant to 43 U.S.C. § 1752(a) and 43 C.F.R. § 4130.2; an allotment
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`management plan (“AMP”) issued pursuant to 43 U.S.C. § 1752(d) and 43 C.F.R. § 4120.2; and
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`1 The Bureau sometimes refers to these plans as “resource management plans” or RMPs. 43
`C.F.R. § 1601.0-1. This complaint uses “land use plan” and “resource management plan”
`interchangeably.
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` 2
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` Citations to the Bureau’s grazing regulations in 43 C.F.R. Part 4100 are to the regulations in
`effect as of Oct. 1, 2005, given the injunction of a subsequent revision of the regulations imposed
`by the district court in Western Watersheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302, 1325
`(D. Idaho 2008), aff’d in relevant part, 632 F.3d 472, 500 (9th Cir. 2011); see 60 Fed. Reg.
`9,894, 9,927 (Feb. 22, 1995).
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`variously-named annual decisions, see, e.g., 43 C.F.R. § 4130.4. A grazing permit typically lasts
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`for 10 years and specifies all authorized use for the area covered, including livestock grazing,
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`suspended use, and conservation use. 43 U.S.C. § 1752(a); 43 C.F.R. § 4100.0–5. Grazing
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`permittees may also hold a grazing “preference” which places them first in line against others for
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`receipt of a grazing permit. Id. A grazing permit may incorporate an AMP, which is a grazing
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`plan tailored to the specific range condition of the allotted area. 43 U.S.C. § 1752(d).
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`30.
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`Grazing decisions must comply with the guiding land use plan and a violation of
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`the land use plan also violates FLPMA.
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`i. Governing Land Use Plans
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`31.
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`Pursuant to FLPMA’s land use planning requirements, the Bureau issued the
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`Steens Mountain Cooperative Protection and Management Area RMP and the Andrews
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`Management Unit RMP in 2005. Together, these two land use plans govern management of the
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`four Bridge Creek allotments.
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`32.
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`Both governing RMPs set forth three different categories of grazing allotments,
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`each of which is subject to different monitoring requirements: “I” (or improve), “M” (or
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`manage), and “C” (or custodial). “I” allotments have identified resource concerns and receive
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`priority for implementation, effectiveness, and performance monitoring. “M” allotments have
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`low or no management or resource concerns and are targeted for effectiveness and performance
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`monitoring, unless monitoring data indicate a need for change to management strategy. “C”
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`allotments are the lowest priority for monitoring. For example, in preparing the Bridge Creek
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`allotments EA, the Bureau asserted that there was no monitoring data available for the Hammond
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`FFR allotment, a C allotment, even though it has been grazed under the Bureau’s management
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`for decades.
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`33.
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`Both RMPs have been amended by the Oregon Greater Sage-Grouse Approved
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`RMP Amendment (“ARMPA”), issued in September 2015. The new amendments, completed as
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`part of a national planning process intended to protect the greater sage-grouse, were intended “to
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`identify and incorporate appropriate measures in existing land use plans to conserve, enhance,
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`and restore GRSG habitat by avoiding, minimizing, or compensating for unavoidable impacts to
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`GRSG habitat in the context of the BLM’s multiple use and sustained yield mission under
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`FLPMA.” U.S. Department of Interior, Oregon Greater Sage-Grouse Approved Resource
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`Management Plan Amendment (“Oregon ARMPA”) 1–7 (September 2015). In the sage-grouse
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`amendment, the Bureau identified wildfire, invasive species, and livestock grazing as three of the
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`greatest threats to sage-grouse and sage-grouse habitat on BLM-administered lands in Oregon.
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`Id. at 1–7 to 1–8. To protect sage-grouse, the ARMPA includes these requirements, among
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`others:
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`• Objective SSS 4 requires the Bureau to manage land resource uses in sage-grouse habitat
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`“to meet the desired conditions” described in the ARMPA’s Habitat Objectives Table 2-
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`2, including setting 7- and 9-inch grass height standards for arid and mesic sites,
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`respectively, for grazing between March 1 and June 30. Id. at 2–4 to 2–5.
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`• Objective VEG 3 requires the Bureau to “[r]educe the area dominated by invasive annual
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`grasses to no more than 5 percent within 4.0 miles” of all leks. Id. at 2–10.
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`• MD VEG 12 requires the Bureau to “[a]djust discretionary land uses, such as active use
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`for livestock grazing or recreational uses or seasons, as needed to facilitate attainment
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`and persistence of vegetation restoration objectives.” Id. at 2–13.
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`• MD SSS-10 requires that for any management action that would result in habitat loss or
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`degradation, the Bureau must “require and ensure mitigation that provides a net
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`conservation gain to the species including accounting for any uncertainty associated with
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`the effectiveness of such mitigation. This will be achieved by avoiding, minimizing, and
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`compensating for impacts by applying beneficial mitigation actions.” Id. at 2–8.
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`34.
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`For new authorizations, like the grazing permit at issue here, the ARMPA
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`provides that all authorizations and actions in sage-grouse habitat will conform to or be
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`consistent with the decisions contained in the ARMPA. They will be followed unless there are
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`more restrictive decisions in the existing plans, in which case, the more restrictive decisions will
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`be implemented. Id. at 2-1.
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`35.
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`The 2015 Oregon ARMPA required “immediate” consideration of its goals,
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`objectives, and management direction. See, e.g., U.S. Department of Interior, Record of Decision
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`and Approved Resource Management Plan Amendments for the Great Basin Region (“Great
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`Basin ROD”) 1-41 (September 2015). (“[Immediate Decisions] go into effect when the ROD is
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`signed. These include goals, objectives, allowable uses, and management direction . . . .”). The
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`Bureau’s regulations implementing FLPMA likewise require that when a land use plan is
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`revised, existing resource plans and permits, contracts and other instruments must be revised
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`within a “reasonable period of time.” 43 C.F.R. § 1610.5-3.
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`ii. Grazing Decision Requirements
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`36.
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`The Bureau authorizes and manages livestock grazing on the Bridge Creek
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`allotments through grazing permits, allotment management plans, and annual authorization
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`decisions, as described above. Through the Final Decision challenged in this case, the Bureau
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`adopted a new AMP for the Bridge Creek allotments and also decided to grant HRI a new
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`grazing permit and preference.
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`Case 2:21-cv-00297-SU Document 1 Filed 02/25/21 Page 15 of 47
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`37.
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`The Bureau’s regulations implementing FLPMA provide that a mandatory
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`qualification for applicants for grazing permit renewal or issuance is that the applicant “must be
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`determined by the authorized officer to have a satisfactory record of performance.” 43 C.F.R. §
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`4110.1(b).
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`38.
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`The regulations provide that an applicant for renewal of a grazing permit has a
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`satisfactory record of performance “if the authorized officer determines the applicant and
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`affiliates to be in substantial compliance with the terms and conditions of the . . . Federal grazing
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`permit . . . for which renewal is sought, and with the rules and regulations applicable to the
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`permit or lease.” Id. § 4110.1(b)(1).
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`39.
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`The regulations provide that an applicant for a new grazing permit or lease does
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`not have a satisfactory record of performance when “[t]he applicant . . . has had any Federal
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`grazing permit or lease cancelled for violation of the permit or lease within the 36 calendar
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`months immediately preceding the date of application”; “[t]he applicant . . . has had any State
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`grazing permit . . . for lands within the grazing allotment . . . cancelled for violation . . . within
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`the 36 calendar months immediately preceding the date of application”; or “[t]he applicant . . . is
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`barred from holding a Federal grazing permit or lease by order of a court of competent
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`jurisdiction.” Id. § 4110.1(b)(2).
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`40.
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`The regulations do not separately define what constitutes a satisfactory record of
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`performance for applicants for a new grazing permit.
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`41.
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`The Bureau may only grant a new grazing permit to a qualified applicant. See id.
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`§ 4130.1-2.
`
`//
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`//
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`iii. Public Participation Requirements
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`42.
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`Both the Taylor Grazing Act and FLPMA require public participation in grazing
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`decisions, including decisions to issue grazing permits. The Taylor Grazing Act directed that the
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`Secretary “provide by appropriate rules and regulations for local hearings on appeals from the
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`decisions of the administrative officer in charge.” 43 U.S.C. § 315h. In FLPMA, Congress
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`declared it the policy of the United States that “in administering public land statutes and
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`exercising discretionary authority granted by them, the Secretary be required to establish
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`comprehensive rules and regulations after considering the views of the general public; and to
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`structure adjudication procedures to assure adequate third party participation, objective
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`administrative review of initial decisions, and expeditious decisionmaking.” Id. § 1701(a)(5).
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`The Secretary must give the public adequate notice and an opportunity to participate in
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`management planning for livestock grazing and other activities on the public lands. Id. §
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`1739(e).
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`43.
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`To comply with this direction, the Department of the Interior drafted its grazing
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`regulations to ensure public participation in grazing decisions. The 1995 grazing regulations that
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`currently govern grazing decisions on public lands allow members of the public to become
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`“interested publics” entitled to be involved in decision-making processes for the management of
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`livestock grazing on specific allotments. See 43 C.F.R. § 4100.0-5 (defining “interested
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`public”). The Bureau projected that “by involving the interested public early in the decision
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`making process on such issues as permit issuance, renewal and modification, increasing and
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`decreasing permitted use, and development of activity plans and range improvement programs,
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`there will be fewer protests and appeals because parties will have a better understanding of the
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`final decision and the factors considered in reaching the decision.” 1995 Grazing Regulations, 60
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`Fed. Reg. 9,894, 9,949 (Feb. 22, 1995) (emphasis added).
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`44.
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`The Bureau’s grazing regulations provide that agency officials must “consult,
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`cooperate and coordinate” with the interested public prior to the issuance or renewal of grazing
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`permits or leases. 43 C.F.R. § 4130.2(b). The agency must also consult, cooperate and coordinate
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`with the interested public in adjusting allotment boundaries, id. § 4110.2-4, and in increasing
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`perm