United States Department of the InteriorOFFICE OF HEARINGS AND APPEALS

~p.rtmtnt.1 Hflrings Ul"ision405 South ~hin Slnel, Suitt 400

S.lt .....ktCity. Utah 804111TELEPHONE (SOlj524-3)44FACSIMILE (80l) 514.5539

May 19, 2010

ORDER

WESTERN WATERSHEDS PROJECT, ) AZ-LLAZAOlOOO-09-02)

Appellant ) Appeal from the Field Manager's Final) Decision dated May 22, 2009,

v. ) involving the Kanab Gulch Allotment,) Arizona Strip Field Office, Utah

BUREAU OF LAND MANAGEMENT, ))

Respondent )

Appellant's Motion for Summary Judgment Granted:Appealed Decision Set Aside

I. Introduction

Appellant Western Watersheds Project (WWP) has appealed a May 22, 2009,Final Decision (Final Decision) issued by the Field Manager of the Arizona StripField Office, Bureau of Land Management (BLM). The Final Decision renews thegrazing permit for the Kanab Gulch Allotment (Allotment). On August 28,2009,WWP filed a motion for summary judgment (WWP's Motion). On September IS,2009, BLM filed a cross-motion for summary judgment (BLM's Motion). Bothparties agree that this case presents no genuine issues of material fact and that it

should be resolved through summary judgment.

WWP has prevailed on its motion because the undisputed material facts showthat BLM violated the National Environmental Policy Act (NEPAj, 42 U.s.c. §§ 4321et seq., by failing to consider an adequate range of alternatives to the actionauthorized in the Final Decision. Throughout this Order, desert bighorn sheep areused as an example to discuss the defect in BLM's alternatives analysis. The desertbighorn sheep provide an illustrative vehicle for conveying the nature of theproblem with BlM's alternatives analysis.

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II. Background

BLM analyzed the action taken in the Final Decision (renewal of a IO-yeargrazing permit without change) as the proposed action in an environmentalassessment (EA).l Therein, BLM noted that renewal of the permit is in conformance

with the Proposed Resource Management Plan/Final EIS for the Arizona Strip Field. Office' (PRMP/FEIS) which was adopted and implemented through the January I,

2008, Arizona Strip Field Office Resource Management Plan Record of Decision(ROD) and Resource Management Plan (RMP).3 The RMP provides that theAllotment will remain available for grazing under the principles of multiple use.

In the EA, BLM gave detailed consideration to a single alternative, renewingcurrent grazing management practices without change. BLM briefly considered, butrejected from further analysis, a no grazing alternative because no grazing isinconsistent with the RMP. BLM also considered, but rejected from separateanalysis, a no-action alternative because, argued BLM, if no action were taken

I In the EA, BLM analyzes renewing grazing permits on three separateallotments. The allotments are the Hack Allotment, the Gulch Allotment, and theKanab Gulch Allotment. The three allotments are grazed independently of eachother, and the appealed Final Decision only addresses grazing on the Kanab GulchAllotment.

2 The full title of this document is "Proposed Resource Management Plan/FinalEIS for the Arizona Strip Field Office, the Vermillion Cliffs National Monument andthe ELM Portion of Grand Canyon-Parashant National Monument, and a ProposedGeneral Management Plan/Final ErS' for the NPS Portion of the Grand Canyon­Parashant National Monument."

3BLM's Exhibit 12 purports to be the 2008 Record of Decision (ROD) adoptingthe PRMP/FEIS and Final Resource Management Plan for the Arizona Strip FieldOffice (RMP). Instead, Exhibit 12 is the Recor~ of Decision and Final ResourceManagement Plan for the Grand Canyon-Parashant National Monument. However,official notice is hereby taken of the 2008 Arizona Strip ROD and RMP which areboth available online at: http://www.blm.gov/pgdata/etc/medialib/blm/az/pdfs/nepa/library/resource_management/ASFO_ROD.Par.73167.File.dat/ROD.pdf

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grazing would continue under terms and conditions identical to those in theproposed action.

On October 24, 2008, BLM issued both a proposed decision (ProposedDecision), in which it contemplated adopting the proposed action, and a Finding ofNo Significant Impact (FONSI) regarding the proposed action. After WWP filed aprotest (Protest) of the proposed decision, BLM issued the Final Decisionauthorizing the proposed action.

Under the terms of the Final Decision, the Allotment is grazed by 26 horsesfrom November 16 to April 30. The total grazing preference for the Allotment is 210animal unit months (AUMs), with 143 AUMs designated as active use and 67 AUMsdesignated as suspended non-use AUMs.

The Allotment is located in Mohave County, Arizona.. within a BLM­administered resource area called the Arizona Strip. The Arizona Strip consists of2.8 million acres of public land located in the northwestern comer of Arizona. TheArizona Strip is bordered to the west by Nevada, to the north by Utah, and to thesouth and east by Grand Canyon National Park (the Park). The Allotmentencompasses 4,260 acres of public land near the southern border of the Arizona Stripwithin the Kanab Creek Wilderness Area (KCWA) and the Kanab Creek HabitatArea (KCHA).

The Allotment provides habitat for desert bighorn sheep that occupy portionsof the KCHA and areas that extend into the Park which is located roughly two milesfrom the Allotmenfs southern boundary. See PRMP/FEIS at Maps 2.8, 3.16; 1979Vermillion Proposed Grazing Management Final Environmental Statement (1979Grazing E1S) at Map 2-2; BLM Exhibit (Ex.) 13 at 1.

III. Discussion

A. Summary Judgment Standards

The standards for evaluating a motion for summary judgment are set forth in2 Moore's Federal Practice § 56.15[8J as follows:

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The party moving for summary judgment has the burden of clearlyestablishing the lack of any triable issue of fact by the record properlybefore the court. His papers are carefully scrutinized; and those of theopposing party are on the whole indulgently regarded. ... It is not thefunction of the trial court at the summary judgment [stagel to resolveany genuine factual issue, including credibility; and for purposes ofruling on the motion all factual inferences are to be taken against the

moving party and in favor of the opposing party. ...

Consistent with the foregoing, the Interior Board of Land Appeals (Board or IBLA)has stated:

To obtain summary judgment there must be no true issue offact. Friends of the Earth v. Carey, 401 F. Supp 1386 (SD.N.Y. 1975);Doehler Metal Furniture Co. v. United States, 149 F.2d 130 (2d Cir. 1945).When contemplating summary judgment all factual, inferences must bedrawn in the light most favorable to the opposing party. S. J. Groves &Sons v. International Brotherhood of Teamsters, 581 F.2d 1241, 1244 (7thCir. 1978); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976).

Larson v. BLM, 129 IBLA 250, 252 (1994).

B. WWP's Argument

WWP argues that BLM considered an inadequate range of alternatives in theEA, and that the EA merely provides "narrative suppositions about the relativemerits of a single alternative, which is the same management that has been ongoingon the allotments in years past." Protest at 1. According to WWP, BLM should haveconsidered decreased permitted use or additional seasonal restrictions as part of itsNEPA alternatives analysis. WWP's Motion at 3.

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C. Contrary to BLM's Argument, the RMP Does Not ForecloseConsideration of Various Levels of Authorized Grazing Use

In the Final Decision, BLM responded to WWP'5 Protest with two arguments.First, BLM argued that the level of authorized grazing use was established in theRMP and, apparently, not subject to modification in the Final Decision:

The impacts from livestock grazing across the Arizona Strip(including on the Kanab Gulch Allotment) were fully analyzed in theArizona Strip Proposed RMP/Final Environmental Impact Statement(EIS), 2007. The Arizona Strip Field Office RMP established the level oflivestock grazing use on the Kanab Gulch Allotment. The proposedaction analyzed in the attached EA has been determined to be inconformance with the decisions contained in the RMP (see EA pages 2­3).

Final Decision at 2.

BLM's argument that the RMP precluded consideration of various levels ofauthorized grazing use in the EA cannot be sustained for at least two reasons. First,the RMP is not an implementation-level decision document where finaldeterminations regarding AUMs for specific allotments are made. Instead, the RMPis a land use planning document in which BLM makes broad decisions about howlands will be used.4 Second, the RMP explicitly provides for the modification ofauthorized use on grazing allotments in the Arizona Strip.

1. Land Use Planning and Implementation Decisions

In the RMP, BLM explains that the RMP is a land use planning document andthat land use planning decisions "set apart geographic areas for specific resources or

4 This forum is without jurisdiction to rule on the validity of the RMP. SeeHarold E. Carrasco, Et AI., 90 IBLA 39, 41 (1985). However, this forum does havejurisdiction to interpret the R1v1P and determine whether management actions areconsistent therewith. See e.g., Southern Wah Wilderness Alliance et of., 144 IBLA 70, 87(1998).

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uses, such as areas where wildland fire is not desired, lands available or not forlivestock grazing, or where OHV-designated areas are necessary." RMP at 2-6. Inthe RMP, BLM differentiates between those decisions and implementation-level

decisions as follows:

Implementation decisions are management actions tied to aspecific location. For the BLM, these are decisions that take action toimplement land use plan decisions and are generally appealable to theInterior Board of Land Appeals (ffiLA) under 43 CFR 4.410.Implementation or activity-level decisions generally constitute BLM'sfinal approval allowing on-the-ground actions to proceed. These typesof decisions require appropriate site-specific planning and [NEPAJanalysis. They may be incorporated into implementation plans(activity or project plans) or may exist as stand-alone decisions.

RMP at 2-6. BLM·s position that the level of use identified for the Allotment in theRMP constituted a binding land use plarming decision, foreclosing consideration ofdifferent levels of authorized grazing use in the EA, is inconsistent with BLM'sexplanation that: (1) land use plans determine what types of uses will occur onvarious parcels of land, and (2) implementation decisions authorize specificactivities on BLM lands.s

BLM maintains its position despite the fact that the RMP does not mentionthe Allotment by name, except in one map (RMP at 2-77, Map 2-9) and in theAppendix. Along with the other allotments in the Arizona Strip, the Allotment isreferenced in the Appendix in four lists providing basic information about eachallotment, including: (1) whether it is meeting the Standards for Rangeland Health,(2) the allotment's management classification status and season of use, (3) itsacreage, and (4) its authorized ADMs. RMP Appendix at B-12, C-2. D-2, and D-5.There is no site-specific NEPA analysis for the Allotment which would be expected

5 BLM used the RMP to make an implementation-level route designationdecision. However, in the ROD, BLM made it explicitly clear that the routedesignation was an implementation-level decision, and BLM provided an appealprocess for the route designation decision under 43 C.F.R. part 4 separate from theappeal process for the rest of the ROD. See ROD at 8; see also ROD at cover letter.

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if BlM had intended to make a binding decision regarding the grazing level for theAllotment.

2. The RMP Explicitly Provides for the Modification of GrazingUse on Allotments in the Arizona Strip

BLM's argument that the RMP foreclosed consideration of additional levels ofauthorized use fails because the RMP explicitly provides for the modification ofgrazing use on allotments in the Arizona Strip.

Desert bighorn sheep are designated as a priority species in the RMP. RMP at2-2B-2-29. The RMP provides that: u Activities that adversely affect breeding,feeding. or sheltering activities of priority wildlife species may be modified,mitigated, or otherwise restricted to minimize disturbance to the species. RMP at 2­29. Accordingly. the RMP allows BLM to modify grazing use to minimizedisturbances to desert bighorn sheep.6

Additionally, the RMP also explains that grazing use will be modifiedthrough the interdisciplinary allotment evaluation process. In the RMP, BLMstates:

The interdisciplinary allotment evaluation process will continueto be used to provide specific guidance and actions for managinglivestock grazing. Existing AMPs and other activity plans will beconsistent with achieving the [Desired Future Conditions (DFCs)] andstandards for rangeland health. They will contain the site~specific

management objectives, as well as actions, methods, tools, andappropriate monitoring protocols.

Existing management practices and levels of use on grazingallotments will be reviewed and evaluated on a priority basis todetermine if they meet or are making progress toward the Arizona

6 See discussion infra at 16-17 regarding conflicts between livestock grazingand desert bighorn sheep.

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Standards for Rangeland Health. Appropriate and timely actions willbe implemented to deal with those areas not meeting the standards.

RMP at 2-75.

The above-quoted language indicates that BLM will use the interdisciplinaryallotment evaluation process to identify site-specific management actions forallotments in the Arizona Strip and that activity level plans and allotmentmanagement plans will be tailored to meet DFCs? This language clearly envisionsadapting and modifying activity level plans to address conditions and resourceissues on grazing allotments in the Arizona Strip.

Consistent with the process described above, in January of 2007, BLM issuedan assessment (Assessment) detailing the results of an interdisciplinary allotmentevaluation conducted for the Allotment. The Assessment indicates that theAllotment is meeting all of the standards for rangeland health. However, under asub.heading titled "Specific Resource Objectives," the Assessment quotes thefollowing objective from the May 2001 Desert Bighorn Sheep Management Plan:

Increase populations of bighorn sheep to fully occupy... suitable habitat on the Arizona Strip at an average density of no

7 DFCs are defined in the RMP as follows:

Land use plans express OFes or desired outcomes in terms ofspecific goals, standards, and objectives for resources and/or uses.They direct the BLM actions in most effectively meeting legalmandates; numerous regulatory responsibilities; national policy; BLMstate director guidance; and other resource or social needs. Theallocations or designations, actions to achieve the OFes, restrictions onuses, allowable uses, and special designations are the decisions thatallow the BLM to work toward achieving DFCs. RMP at 2-5.

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more than four bighorn per square mile by the year 2010. Maximumpopulations for the . . _Kanab Creek (area) would be 340.

Assessment at 16.8

In the Assessment and with regard to this resource objective, BLM comments:"The sheep population is moving toward attainment of this objective, but it has notyet been reached." [d. BLM adopted this desert bighorn sheep resource objective(sans the 2010 deadline) as a DFC in the RMP which states: "[dJesert bighorn sheeppopulations would be at or near maximum levels sustainable for the habitat." RMPat 2-33.

Thus, the RMP clearly provides for managing grazing allotments in theArizona Strip based on the results of the interdisciplinary evaluation process. Here,BLM's interdisciplinary evaluation process explicitly adopted and affirmed the goalof increasing desert bighorn sheep populations in the Arizona Strip. Accordingly, inthe EA, BLM was free to consider modifying grazing use to address desert bighornsheep population goals'

Based on the all of the foregoing, it is apparent that the RMP provides morethan adequate latitude for BLM to consider a range of alternative grazing regimesand use levels in environmental assessments analyzing Arizona Strip grazingdecisions. The RMP unequivocally makes the land use planning decision thatallotments in the Arizona Strip will continue to be available for livestock grazing.However, the RMP does not foreclose BLM from otherwise considering a reasonablerange of grazing alternatives. See Wyoming Audubon et aI., 151 ffiLA 42, 45 (1999)

8 A copy of the updated Arizona Strip Desert Bighorn Sheep ManagementPlan, as amended July 2006 (2006 Desert Bighorn Sheep Management Plan), wassubmitted by counsel at the request of this office. See transmission dated March 26,2010. The 2006 Desert Bighorn Sheep Management Plan retained the goal of reachingideal population levels by 2010. 2006 Desert Bighorn Sheep Management Plan atunnumbered page 17.

9 See discussion infra at 16-17 regarding conflicts between livestock grazingand desert bighorn sheep.

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(holding that BLM is not bound by dates listed in tables in a resource managementplan where the plan also contains language providing for the modification of those

dates).

o. Adequacy of Alternatives Considered in the EA

Having concluded that the RMP does not foreclose the consideration ofvarious alternative grazing regimes on allotments in the Arizona Strip, the nextquestion is whether the alternatives considered in the EA complied with NEPA'srequirements. BLM's second argument - in response to WWP's argument that BLMfailed to consider in detail any alternatives to the proposed action - was that it

complied with NEPA because there were no reasonable alternatives substantiallydifferent in design or effects from the proposed action, given that no unresolvedconflicts exist on the Allotment. Final Decision at 3. [n its motion, BLM makes asimilar argument, stating that, because the Allotment was meeting aU the rangelandhealth standards under the grazing system renewed by the Final Decision, it was notreasonable to consider alternatives. The relevant legal principles governing NEPA'sapplication are discussed below.

I. NEPA Alternatives Analysis Legal Framework

Section 102(2)(E) of NEPA, 42 U.s.c. § 4332(2)(E) (2000),requires every Federal agency to "study, develop, and describeappropriate alternatives to recommended courses of action in anyproposal which involves unresolved conflicts concerning alternativeuses of available resources." Bob Marshall Alliance v. HodeL 852 F.2d1223. 1228-29 (9'" CiL 1988), cert. denied. 489 U.S. 1066 (1989). CEQregulations expressly identify the requirement to consider alternativeswithin an EA. 40 CFR 1508.9(b); see also 516 OM 3.4(A). A goal ofalternatives analysis is to "use the NEPA process to identify and assessthe reasonable alternatives to proposed actions that will avoid orminimize adverse effects·· •." 40 CFR 1500.2(e). An agency mustconsider alternatives that accomplish the intended purpose of theproposed action, be technically and economically feasible, and have alesser impact than the proposed project. "Under this requirement allreasonable alternatives must be considered (North Slope Borough v.

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Andrus, 486 F. Supp. 326, 330 (D.D.C. 1979») and obvious alternativesmay not be ignored (California v. Bergland, 483 F. Supp. 465, 488 (E.D.Cal. 1980))." State of Wyoming Game & Fish Commission, 91 IBLA364,369 (1986).

III re 51rattoll Hog Timber Sale, 160 IBLA 329, 337 (2004).

[This and other NEPAl procedures are designed to "insure a fullyinformed and well-considered decision." Vermont Nuclear PowerCorp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, S58(1978). NEPA does not require agencies to elevate environmentalconcerns over other appropriate considerations. Baltimore Gas &Electric Co, v. Natural Resources Defense CounciL Inc., 462 U.s. 87, 97(1983). Rather, NEPA only requires that an agency take a "hard look"at the environmental effects of any major Federal action. Kleppe v.Sierra Club, 427 U.s. 390, 410 n.21 (1976). NEPA assures that decision­makers are fully apprised of the likely effects of alternative courses ofaction so that their selections represent informed decisions. In reBryant Eagle Timber Sale, 133 IBLA 25, 29 (1995).

Southerll Utah Wildemess Alliallce, 157 IBLA 150, 170 (2002), rev'd all other groullds, 237F. Supp. 2d 48 (2002). Thus, '''[a]n agency is required to provide enough detail in aNEPA document to establish that it has taken a good-faith, objective, hard look atthe environmental consequences of the proposed actions.'" Utah WildernessAssociatioll, 140 IBLA 147, 152 (1997) (quoting III the Matter of the Appeals ofCommitteefor Idaho's High Desert, Goldell Eagle Auduboll Society, alld /ohll Barrillger, SEC 92-10101, at 11(1992)).

In Headwaters Inc., the 9th Circuit Court of Appeals explained the standard forevaluating the range of alternatives considered in an environmental impactstatement and an environmental assessment tiered to that environmental impactstatement. The court wrote: "We review an agencys range of alternatives under a'rule of reason' standard that 'requires an agency to set forth only those alternativesnecessary to permit a reasoned choice.'" Headwaters Inc. v. Bureau of LandMallagemelll, 914 F.2d 1174, 1180 (quoting Califomia v. Block, 690 F.2d 753, 766 (9~ Cir.1982)).

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a. Department's NEPA Regulations

The regulation implementing Section 102(2)(E) of NEPA states:

When the Responsible Official determines that there are nounresolved conflicts about the proposed action with respect toalternative uses of available resources, the environmental assessmentneed only consider the proposed action and does not need to consideradditional alternatives, including the no action alternative. (Seesection 102(2)(E) ofNEPA).

43 C.F.R. § 46.310(b). Accordingly, the range of alternatives that an environmentalassessment must address is governed by whether there are "unresolved conflicts . ..with respect to alternative uses of available resources...." [d.

In the section of the Federal Register notice addressing public comments tothe proposed rulemaking containing § 46.31O(b), the Department provided thefollowing summary of comments and response:

Comment: Other commenters stated that this section [§ 46.310]of the proposed rule should be removed because it conflicts withNEPA, CEQ [Council on Environmental Quality] regulations, andexisting case law.

Response: The Department disagrees. This section fullycomplies with NEPA and CEQ regulations, as well as CEQ guidance.On September 8, 2005, the CEQ issued EA guidance to Federalagencies entitled "Emergency Actions and NEPA" that explainedlanguage at section 102(2)(E) of NEPA "unresolved conflictsconcerning alternative uses of available resources" (42 U.S.c.4332(2)(E)). The CEQ guidance states: "When there is consensusabout the proposed action based on input from interested parties, youcan consider the proposed action and proceed without consideration ofadditional alternatives. Otherwise, you need to develop reasonablealternatives to meet project needs."

73 Fed. Reg. 61292, 61308 (Oct. 15, 2008) (emphasis added).

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The Department disrussed comments and its response regarding the termconsensus as follows:

Comment: These commenters therefore suggested that"consensus" be changed to "unanimity" to assure that there is noconfusion about the limited circumstances in which paragraph46.310(b) applies.

Response: "Unanimity" is not required; therefore, theDepartment declines to make the suggested alteration to the final fule.

73 Fed. Reg. 61308 (Oct. 15,2008). This discussion of the term consensus as it relatesto § 46.310(b) is confusing because the word consensus is not used in § 46.310(b) noris it defined in 43 C.F.R. part 46. Thus, the discussion of the word consensus mustrelate to its use in the above-quoted CEQ guidelines.

In any case, what is clear from the language of 43 C.F.R. § 46.310(b) is thatBLM may consider a single alternative (the proposed action) in an environmentalassessment where consensus exists with respect to alternative uses of availableresources. Accordingly, as discussed further below, the definition of the termconsensus is pivotal under the circumstances here.

Consensus is defined in the Webster's Collegiate Dictionary 245 (lOili ed. 2001)

as "a general agreement" as opposed to unanimity which requires "having theagreement and consent of all." [d. at 1280. What can be reasonably gleaned from theDepartment's refusal to incorporate the word unanimity into § 46.310(b) is that theResponsible Official may conclude that there is consensus (i,e., no unresolvedconflicts) with respect to alternative uses of available resources even where somedisagreement exists about the use of those resources. In other words, under 43C.F.R. § 46.31O(b), the Responsible Official might correctly determine that it is onlynecessary to consider a single alternative in an environmental assessment evenwhere that alternative is opposed by some, so long as general agreement exists withregard to the proposed use of available resources.

Having considered the meaning of the term consensus, which is not explicitlyused in section 46.310(b), it is appropriate to review the actual language of the

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regulation and consider the meaning of the phrase "unresolved conflicts ... withrespect to alternative uses of available resources." This phrase is drawn almostdirectly from section 102(2)(E) of NEPA. it is therefore useful to examine case lawinterpreting this NEPA language.

b. Case Law Interpreting "Unresolved ConflictsConcerning Alternative Uses of Available Resources"

Section 102(2)(E) of NEPA provides that all Federal agencies shall "study,develop, and describe appropriate alternatives to recommended courses of action in

any proposal which involves unresolved conflicts concerning alternative uses ofavailable resources...." 42 U.s.c. § 4332(2)(E). Case law interpreting the phraseunresolved conflict~ is not extensive. More often than not, when the language isdiscussed, it is mentioned in passing and not as a critical aspect of the court's ruling.Those cases with the most useful guidance are detailed below.

In North Carolina v. Hudson, 665 F. Supp. 428 ED.N.c., (1987), the courtinterpreted the phrase unresolved conflicts in both Section 102(2)(E) of NEPA and inthe regulations of the United States Army Corps of Engineers (Corps). The Corps'regulations state in pertinent part "'[w]here there are unresolved conflicts as toresource use, the practicability of reasonable alternative locations and methods toaccomplish the objective of the proposed structure or work must be considered. 33C.F.R. § 320.4 (a)(2)(ii)." [d. at 445.

In the case, the Corps argued that alternatives analysis was unnecessarybecause no unresolved conflicts existed as to the use of resources. Although thecourt ultimately concluded that the Corps had considered various and adequatealternatives, it also rejected the Corps' argument regarding the absence ofunresolved conflicts. The court wrote:

The Federal defendants and Virginia Beach contend that noconsideration of alternatives is required because there are no"unresolved conflicts as to resource use" but this argument isuntenable as such conflicts form the very basis of this controversy. For

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at the bottom of this controversy the real dispute is over who isentitled to the use of water, Virginia Beach or the [the plaintiff].

Hudson, 665 F. Supp. at 445-46 (footnote omitted).

The court's rejection of the Corps' argument in Hudson (i.e., that alternativesanalysis was not necessary because no unresolved conflicts existed) is significantbecause it indicates that the presence or absence of unresolved conflicts is anobjective question. In other words, an agency cannot unilaterally determine thatthere are no unresolved conflicts simply because conflicts have been resolved to theagency's satisfaction.

In Trinity Episcopal School v. Romney, 523 F.2d 88 (2d Gr. 1975), the courtconsidered the meaning of the words unresolved conflicts in the context of NEPAand concluded that where the objective of a Federal action can be accomplished intwo or more ways that have differing impacts on the environment, alternativesanalysis is required. Id. at 92. In Minnesota Public Interest Research Group v. Butz, 401F. Supp. 1276, 1317 (D.Minn. 1975) rev'd on other grounds, Minnesota Public InterestResearch Group v. Butz, 401 F. Supp. 1292 (D.Minn. 1976), the court explained that"conflicts between loggin& recreational. educational. and scientific use, and mining"warranted alternatives analysis under Section 102(2)(D) of NEPA. 1O

In Surfrider Foundation v. Dalton, 989 F. Supp. 1309 (S.D. Cal. 1998), the courtexplained that "[s]o long as there are unresolved conflicts about alternative uses ofland, an agency must conduct an alternatives analysis even when a proposal has noSignificant environmental impact. The same alternatives analysis requirement,found at 42 U.s.c. § 4332(2)(E), applies whether a proposal has an enormousenvironmental impact or none at all." [d. at 1332.

What the foregoing demonstrates is that the phrase "unresolved conflicts"has consistently been construed based on its plain meaning. The Board has

.. Section 102(2)(D) refers to the present-day section 102(2)(E). NEPA wasamended in August of 1975. A new SUb-paragraph (D) was added and the old sub­paragraph (D) was redesignated (E).

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expressed the same preference for statutory construction. In Permian Mud, Service,Inc., the Board cited the following quote with approval:

If- ... .. The plain meaning of the words is generally the mostpersuasive evidence of the intent of the legislature. Theplain meaning doctrine must be given application,however hard or unexpected the particular effect, whereunambiguous language calls for a logical and sensibleresult. It ......

31 IBLA 150, 157 (1977) (quoting McDade v. Morton, 353 F. Supp. 1006, 1013 (D. D.C.1973) (quoting District ofColumbia National Bank v. District ofColumbia, 348 F.2d 808,810 (D.C. eir. 1965»).

2. Application of the NEPA Alternatives Analysis LegalFramework to the Facts of this Case

3. Resource Conflicts

Under the legal principles described above, one question which must beconsidered is whether there are any conflicts over alternative uses of availableresources on the Allotment. While there may be other resource conflicts, the recordindicates that, at minimum, resource conflicts exist between desert bighorn sheepand livestock.

One of the documents BLM relies on in its post-hearing briefing is the 1979Grazing ElS. In that document, BLM indicates that there is a high degree of conflictbetween desert bighorn sheep and livestock for forage in the Allotment. BLMexplains as follows:

The present sheep habitat is in fair condition, mainly because ofexcessive livestock grazing. Studies have shown that bighorn sheepwill not stay in an area heavily used by other ungulates (Wells andWells, 1961 and Wilson, 1968). Bighorn sheep are highly dependent onclimax plant communities or communities in good to excellent

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condition and probably cannot coexist with livestock on intensely

grazed ranges.

1979 Grazing EIS at 2-18.

The competition over forage resources is also acknowledged in the EA. Atpages 14 through 20 of the EA, BLM has developed a chart titled "Table 4: CriticalElements of the Human Environment and other Resources/Concerns." The chartidentifies resources that are present which may be impacted by the proposed action.If a resource is present and potentially impacted, it is carried forward for furtheranalysis in the EA. EA at 14. On page 19, the chart states: "Desert bighorn sheepand mule deer are big game species that are known to occur throughout theseallotments. Interactions with livestock and competition for forage could occur; thisissue is therefore analyzed in detail later in this EA."

The record also indicates that resource conflicts between livestock and desertbighorn sheep occur over more than just forage resources. In the 2006 DesertBighorn Sheep Management Plan, and in regard to the Kanab Creek area, BLMnotes: "Springs located on BLM lands are impacted by cattle." [d. at 8. Additionally,as discussed above, the record, to date, does not indicate that BLM has met its owngoal with regard to achieving desired desert bighorn sheep population levels. Seediscussion supra at 8-9.

b. Consensus

Having concluded that resource conflicts exist between desert bighorn sheepand livestock, the next question which must be addressed is whether that conflicthas been resolved, i.e., whether there is consensus regarding the allocation ofresources between livestock and desert bighorn sheep. If consensus exists, there areno unresolved conflicts for purposes of 43 C.F.R. § 46.310(b) and BLM was onlyrequired to consider the proposed action alternative.

However, the record indicates that consensus does not exist. Evidence of thelack of consensus regarding the use of resources on the Allotment exists in the formof: (1) WWP's Protest, (2) the Center for Biological Diversity's March 5, 2007, letterto BLM (See Ex. 1 to Appellant's Response and Opposition to Agency Cross-Motion

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for Summary Judgment (AppellanYs Response), (3) the February 26, 2007, GrandCanyon Hikers and Backpackers Association's letter to BlM regarding theAssessment (See Ex. 2 to AppellanYs Response), and (4) the ROD in which BLMnotes that in response to the PRMP/FEIS some protestors voiced concerns about "theimpacts of livestock grazing on cultural and biological resources (i.e., desert tortoise,riparian areas, forest areas, and bighorn sheep)." ROD at 2.

All of the aforementioned documents identify concerns and issues regardinglivestock grazing and its impacts on other resources including desert bighorn sheep.Under these circumstances, one cannot reasonably conclude that consensus existswith respect to alternative uses of available resources on the Allotment.

3. Alternatives Considered in the EA

Having concluded that unresolved resource conflicts exist in the Allotmentwhich warrant alternatives analysis under 43 C.F.R. § 46.31O(b), the next question iswhether the alternatives considered in the EA satisfy NEPA's requirements. Theydo not, as BLM effectively considered a single alternative in the EA.

At page 10 of its motion, BLM argues that "because the Alloment is meetingall standards for rangeland health and the current terms and conditions alreadycontained seasonal restrictions, it was not reasonable to consider decreased livestocknumbers or additional seasonal restriction alternatives." In other words, BLMargues that EPA does not require additional alternatives analysis where publiclands are meeting the applicable standards for rangeland health. BLM offers nolegal support for this assertion, and this forum could find none.

The discussion of alternatives considered in the EA begins at page 6 of thatdocument where BLM explains:

The development of the alternatives for this EA was based onthe results of interdisciplinary rangeland health assessmentsconducted by the BLM in July 2004 (Hacks Alloment) and January2007 (Kanab Gulch and Gulch Allotments). The field assessmentsindicated that the allotments are being managed effectively and meetrangeland health objectives and standards, as defined by the Arizona

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Public Lands Standards for Rangeland Health and Guidelines forGrazing Management (BLM 1997). The assessment did not indicate theneed for changes in authorized uses or for new range improvements.

EA at 6. The above-quoted paragraph is actually a rationale for why BLM selectedthe proposed action (i,e., a continuation of current grazing management) forimplementation in the Final Decision as opposed to an explanation of how BLMdeveloped alternatives for consideration in the EA.

Under the heading"Alternatives Considered But Eliminated From FurtherAnalysis" in the EA, BLM explains that it did not analyze an "Elimination ofLivestock Grazing Alternative" because, among other things, no grazing would beinconsistent with the RMP's land use planning determination that grazingallotments in the Arizona Strip will remain open to livestock. EA at 10.

In the same section of the EA, BLM also briefly explains that a separate no~

action alternative was not considered because, argues BLM, grazing would continueunder the current grazing management regime (which is identical to the proposedaction) if BLM chose to take no action. In other words, argues BLM, under thecircumstance here, there is no distinction between the no-action alternative and theproposed action.

Thus, in the EA, BLM has identified a single alternative and cursorilydismissed consideration of two additional alternatives that fail to even approach thebasic NEPA requirement to evaluate alternatives which "accomplish the intendedpurpose of the proposed action, be technically and economically feasible, and have alesser impact than the proposed project." In re Stratton Hog Timber Sale, 160 ffiLA329,337 (2004); See also Muckle shoot Indian Tribe v. United States Forest Service, 177F.3d 800, 813 (9" Cir. 1999) (holding that the Forest Service had not considered anadequate range of alternatives in an EIS where it had considered a no actionalternative and two "virtually identical alternatives").

BLM has effectively turned a blind eye to a host of other possible alternativesincluding the obvious alternative of reduced grazing to potentially lessen conflictwith desert big horn sheep or other resource values on the Allotment. See PowderRiver Basin Resource Council, 120 IBLA 47, 56 (1991) (holding that NEPA requires theconsideration of obvious alternatives). The complete absence of consideration of

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any serious alternative to the proposed action fails to satisfy the "touchstone" forthis inquiry which is whether BLM's "selection and discussion of alternatives fostersinformed decision-making...." California v. Block, 690 F.2d 753, 767 (9" Cir. 1982)(internal citation omitted). Additionally, BLM's analysis of a single alternative in theEA fails to meet BLM's obligation to conduct NEPA analysis with "good faithobjectivity." Hogall v. BrowlI, 507 F. Supp. 191, 203 (W.o. Ark. 1980).

Finally, BLM's alternatives analysis fails to meet NEPA's requirement toprovide "'sufficient information to permit a reasoned choice among alternatives.'''ld. at 204 (quoting Natural Resource Defellse Coullcil v. Mortoll, 458 F.2d 827, 837 (D.C.Cir.1972)). In summary, BLM's alternatives analysis in the EA violates NEPA's hardlook requirements. See Americall Rivers v. FERC, 201 F.3d 1186, 1195-96 (9" Cir.1999).

4. Tiering

Having concluded that the EA's alternatives analysis violates NEPA.. aremaining question is whether BLM, through tiering the EA to other NEPAdocuments, has adequately addressed NEPA's alternatives analysis requirements. Ithas not.

In its motion, BLM asserts that the EA is tiered to the PRMP/FEIS andincorporates by reference the 2007 Assessment. BLM cites page 10 of the EA insupport of both of these assertions. BLM's Motion at 4. Additionally, BLM alsodiscusses alternatives considered in BLM's 1979 Grazing EIS and notes that the 2007PRMP/FEIS is tiered to the 1979 Grazing ElS. BLM's Motion at 2,6.

BLM then argues:

Here, the BLM tiered the EA to the Arizona Strip Proposed RMP/FEISissued in 2007, which relied on the grazing use allocations establishedin the Vermillion Grazing EIS of 1979.... Together, the EA and theArizona Strip Proposed RMP/FElS took a hard look at the impacts ofgrazing on the Allotment"

BLM's Motion at 7.

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This does not make dear whether BLM is arguing that the EA is also tiered tothe 1979 Grazing EIS. However, that possibility will be considered.

In Southern Utah Wilderness Allialtce et al., 123 IBLA 302 (1992), the Boardexplained tiering as follows:

Tiering an EA to a previously completed EIS simply raises thequestion whether the EIS adequately addresses the environmentaleffects of the proposed actions, or a supplemental EIS is requiredbecause the EIS' analysis is broad and does not address specificimpacts. See VentlIng v. Bergland, 479 F. Supp. 174, 179-80 (0.5.0.),afI'd mem., 615 F.2d 136S (8th Cir. 1979); NRDC v. Administrator,ERDA, 451 F, Supp. 1245, 1258-59 (DD.C. 1978), modified~ nom.NRDC v. U.S. NRC. 606 F.2d 1261 (D.C. Cir. 1979); NRDC v, Morton,388 F. Supp. 829, 838-41 (D,D.C. 1974), afI'd, 527 F.2d 1386 (D.C. Cir.)(per curiam); cert. denied, 427 U.S. 913 (1976); see also Manatee Countyv. Gorsuch, 554 F. Supp. 778, 788 (MD. Fla. 1982),

ld. at 306,

Thus, the question is whether BLM, through tiering the EA to the PRMP/FEIS,and possibly to the 1979 Grazing EIS, adequately considered alternatives to the ENsproposed action or otherwise cured the NEPA defects in the EA. As discussedabove, the PRMP/FEIS does not even mention the Allotment by name except in asingle map and on several lists located in the Appendix of that document (seediscussions supra at 6). The PRMP/FEIS is devoid of any type of site specificalternatives analysis that could remedy deficiencies in the EA's alternatives analysis.

The 1979 Grazing ElS does analyze grazing alternatives, and it does includesite specific analysis of the Allotment. However, the 1979 Grazing EIS is out-dated.Significant events which have occurred since the 1979 Grazing EIS was draftedrender that document ineffective in meeting BLM's NEPA analysis requirements.For example, in the 31 years since the document was drafted, the KCWA wasestablished, the Arizona Standards lor Rangeland Health were promulgated, andthe Arizona Strip Desert Bighorn Sheep Management Plan was adopted,

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In the section of the 1979 Grazing EIS discussing desert bighorn sheep, and inreference to allotments in the KCHA, BLM wrote: "Potential herd size is notknown." [d. at 2-18. As discussed above, since that time, BLM has determinedpotential desert bighorn sheep herd size in the same area, concluding that (for BLMlands) it is 340 desert bighorn sheep. See 2006 Arizona Strip Desert Bighorn SheepManagement Plan at 19. The determination of potential herd size alone constitutessignificant new information warranting additional NEPA analysis in the EA. ll SeeCenler for Native Ecosyslems el 01., 174 ffiLA 361, 367 (2008) (holding that the "rule ofreason" standard is used to determine whether significant new information orcircumstances require new NEPA analysis).

IV. Conclusion

BLM's analysis in the EA violates NEPA by failing to consider an adequaterange of alternatives. This NEPA violation constitutes a failure by BLM to take ahard look at the impacts of the Final Decision. See American Rivers, 201 F.3d at 1195­96.

Based upon the foregoing, Appellant's motion for summary judgment isgranted, the Final Decision is set aside, and the matter is remanded to BLM.

Administrative Law Judge

II BLM argues that the analysis of desert bighorn sheep in the EA is adequatebecause wildlife habitat issues were considered during the development of DesiredPlant Community (OPC) objectives which, in turn, ace utilized in the Final Decision.See BLM's Motion at 14-15; see also EA at 28. BLM's analysis by proxy argument isnot persuasive because factors besides ope are important for desert bighorn sheep.For example, the record indicates that reliable water sources are critical for desertbighorn sheep habitat and that livestock grazing impacts water sources. See 2006Arizona Strip Desert Bighorn Sheep Management Plan at 8.

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APPEAL INFORMAnON

Any party adversely affected by this decision has the right to appeal to theInterior Board of Land Appeals. The appeal must comply strictly with theregulations in 43 CFR Part 4, Subparts B and E (see enclosed information pertainingto appeals procedures).

See page 24 for distribution.

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DistributionBy Certified Mail:

Western Watersheds ProjectAttn: Greta Anderson, Arizona DirectorP.O. Box 2264Tucson, Arizona 85702

u.s. Department of the InteriorOffice of the Field SolicitorAttn: Wonsook S. Sprague, Esq.Sandra Day O'Co~erU.S. Courthouse401 West Washington Street, SPC 44Suite 404Phoenix, Arizona 85003-2151

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