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District Court in California Decides Latest Case in Series of Grazing Permit NEPA Challenges

April 18, 2012

On March 30, 2012, the District Court for Northern California decided the latest case in a series of cases challenging the Forest Service’s renewal of grazing on certain National Forests using a 2008 Categorical Exclusion authorized by Congress.

Under NEPA, the Forest Service is required to prepare a detailed environmental impact statement (“EIS”) for all major Federal actions significantly affecting the quality of the human environment.  However, NEPA regulations allow for the agency to move forward without an EIS if the agency determines that the proposed action falls within a categorical exclusion (“CE”) from NEPA review.

The Forest Service began requiring NEPA analyses in connection with the reissuance of grazing permits in 1994.  Due to the large number of federal grazing permits issued on National Forests, the Forest Service was unable to complete its NEPA review by the time many permits were up for reissuance.  In 1995, Congress allowed for an extension and limited exclusion from NEPA analysis for grazing permits.

In response to the largely unworkable 1995 schedule, Congress authorized the Forest Service to categorically exclude certain grazing decisions from NEPA review provided three conditions were met:

1) The decision continued current management on the allotment;

2) Monitoring indicates that current grazing management is meeting, or moving satisfactorily toward, objectives in the land and resource management plan (“LRMP”) as determined by the Secretary; and

3) The decision is consistent with agency policy concerning extraordinary circumstances.

The Forest Service used its CE authority to reissue many grazing permits across a number of national forests.  After the decisions were issued, a number of environmental groups filed suits across the Western United States challenging the use of the Forest Service’s CE authority for hundreds of grazing permits.  The United States District Court for the Northern District of California recently decided the latest in this series of cases.

In its decision, the court reviewed two CE decisions covering certain grazing allotments on the Klamath National Forest and Mendocino National Forest.  In its opinion on the Klamath National Forest, the court deferred to the Forest Service’s use of utilization data and condition and trend data to measure movement toward LRMP objectives. The court found that based on the monitoring information available, the Forest Service appropriately determined that current management is meeting or moving toward meeting LRMP objectives.  However, the court found that the agency failed to adequately explain its determination that potential conflicts between grazing and wilderness use would not adversely affect the wilderness resource, and it was required to do so as a wilderness designation constitutes an extraordinary circumstance.

In its opinion on the Mendocino National Forest CE decision, the court found that the monitoring data did not support the Forest Service’s determination that current management is meeting, or moving toward meeting, a number of resource objectives.  Specifically, the court found that there was no recent condition and trend data for most allotments, and no data at all for other allotments.  The court also found that there was no riparian monitoring data to show compliance with riparian or fisheries objectives.  Overall, the court concluded that there was insufficient information to determine that current management was meeting or moving toward meeting LRMP objectives.

The California opinion is likely to provide guidance for other western courts charged with determining whether the Forest Service properly used its CE authority, including a pending case in Oregon.  In the Oregon case, environmental groups are challenging a number of CE decisions on two national forests in Eastern Oregon. A decision is expected sometime this summer.

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