Opinion
Case No. CV-01-529-E-BLW.
May 17, 2002
MEMORANDUM DECISION AND ORDER INTRODUCTION
The Court heard oral argument on May 17, 2002, on (1) plaintiffs' and defendants' joint motion to approve their settlement agreement; (2) intervenor's objection to the settlement agreement; (3) plaintiff's motion for injunctive relief; and (4) intervenor's motion to stay. The Court finds that it cannot approve the interim conditions provision of the settlement agreement. The Court will, however, grant plaintiffs' motion for preliminary injunction, allowing the cattle to be turned-out only on the condition that the grazing is governed by the terms of the BLM's proposed decision. Finally, the Court will deny the intervenor's motion to stay. The Court's reasoning is expressed below.
ANALYSIS
Plaintiffs (ICL) filed this action against the Bureau of Land Management (BLM) and its Field Office Manager Jeff Steele. ICL claimed that the BLM's June 2001 decision allowing grazing on the Pleasantview allotment in southeastern Idaho violated (1) the National Environmental Policy Act (NEPA), (2) the Federal Land Policy and Management Act (FLPMA), and implementing regulations, and (3) the Administrative Procedures Act (APA).
The holder of the grazing permit on the allotment, Pleasantview Livestock and Grazing Association Inc., filed a motion to intervene. On February 7, 2002, the Court allowed Pleasantview to intervene only as to the remedy issues, since Pleasantview's interests on the liability issues were adequately protected by the BLM.
In December, 2001, the BLM and ICL entered into settlement talks. On February 25, 2002, counsel for all parties, including Pleasantview, attended a settlement conference where the broad parameters of a settlement were discussed but no final settlement reached. Thereafter, ICL drafted a proposed Stipulated Settlement Agreement (Agreement) that it faxed to counsel for Pleasantview on March 15, 2002. While Pleasantview was reviewing the Agreement, the BLM and ICL signed the Agreement and filed it with the Court, along with a joint motion seeking Court approval of the Agreement. Pleasantview filed an objection to the Agreement. ICL responded with a brief seeking approval, and in the alternative, moved for a preliminary injunction to obtain the same relief set forth in the Agreement.
Pursuant to its Agreement with the ICL, the BLM issued a "proposed decision" on April 17, 2002. The proposed decision states that overgrazing is harming "key grass species" and causing erosion of riparian areas and dry canyon bottoms. Because these harmful effects violate the Fundamentals of Rangeland Health regulations, the proposed decision seeks a 19% reduction in "cattle use" of the allotment, by reducing the season of use by 24 days, among other things. To implement these changes, the proposed decision would rescind the current rules governing grazing in the Pleasantview allotment, contained in the June 7, 2001, Final Grazing Decision.
At oral argument, the BLM stated that it was ready to issue a Final Decision immediately, most likely on May 20, 2002. It appears that the Final Decision will be identical to the proposed decision. Under the BLM's regulations, the proposed decision becomes a final decision after a protest period where affected parties have the opportunity to comment. See 43 C.F.R. § 4160.3(b). Any party may file an appeal of the final decision within 30 days. Id. at (c). The appellant may seek to stay the effect of the final decision pending any appeal. Id. at (d). The BLM has 45 days to act on any motion to stay. Id. at § 4.21.
If the stay is granted, the parties agreed that the June 2001 Final Grazing Decision would govern the allotment. If, however, the stay is denied, the Final Decision would govern the allotment. Thus, once the stay issue is decided, the terms of grazing will be known. The confusion is over what rules govern grazing during the interim period — the period between the issuance of the Final Decision and the decision on any stay motion. The parties agreed that this interim period would be about 75 days, a combination of the 30 days to appeal and the 45 days to decide any motion to stay pending appeal.
The Court will use the term Final Decision to refer to the Final Decision the BLM is ready to issue in this case, most likely on May 20, 2002. The term "proposed decision" refers to the proposed decision on which this Final Decision was based. As discussed above, it appears that the Final Decision will be identical to the proposed decision. The Court recognizes that neither the non-BLM parties nor the Court have examined the Final Decision. Nevertheless, the parties and Court have examined the proposed decision, and the Court's decision will assume that any differences between the decisions will be insignificant.
1. Pleasantview's Objection to the Settlement
Pleasantview seeks to block the settlement between the BLM and ICL. This challenge raises the issue as to whether an intervenor has the right to block a settlement. The Supreme
Court has addressed this issue as follows:
It has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. . . . Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor.Local No. 93, Int'l Assoc. of Firefighters, AFL-CIO v. City of Cleveland et al., 478 U.S. 501, 528-30 (1986). Most of the Agreement does not impose obligations on Pleasantview — it merely sets in motion an administrative process in which Pleasantview has the opportunity to fully protect its interests. Under Firefighters, Pleasantview has no right to object to those portions of the Agreement that impose no obligation on it but merely require it to challenge the BLM's proposed decision in the administrative process.
There is, however, one provision of the Agreement that does more than set in motion an administrative process. That provision seeks a Court order that the Agreement's interim terms be imposed on Pleasantview until the Final Decision is in place and fully operative. Pleasantview has no ability to challenge such interim conditions in the administrative process because they are not part of the BLM's proposed decision they would be imposed by Court order. Despite the fact that Pleasantview has been allowed to intervene on remedy issues, the Agreement seeks to impose part of the remedy (interim conditions) without allowing Pleasantview a full opportunity to be heard.
It is simply unfair under these circumstances for the Court to approve the interim conditions. It is fair, however, to approve the remainder of the Agreement, and the Court shall do so.
2. ICI's Motion for Injunction
ICI has moved in the alternative to enjoin Pleasantview's turn-out of cattle now set for May 22, 2002. ICI is entitled to an injunction if it demonstrates that it is likely to succeed on the merits and may suffer irreparable injury, or that serious questions exist on the merits and the balance of hardships tips in its favor. See Self-Realization Fellowship Church v. Ananda, 59 F.3d 902, 913 (9th Cir. 1995). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Id.
The Court's rejection of the interim conditions set forth in the Agreement means that the 2001 Final Grazing Decision would probably govern grazing on the Pleasantview allotment during the interim period described above, although as discussed above, that is unclear. The 2001 Final Grazing Decision, however, has been found by the BLM to further violations of the Fundamentals of Rangeland Health regulations. The BLM has further decided that the Final Decision contains terms that cure those violations. This is powerful evidence supporting an injunction to prevent cattle from being turned-out unless grazing is governed by the terms of the Final Decision.
Pleasantview has not identified obligations imposed on it by the Final Decision that would burden it before the Court could hear the injunction issue on May 31, 2002. Thus, the hardships do not tip in Pleasantview's favor. On the other hand, ICI has a likelihood of success on the merits. These circumstances warrant an injunction enjoining Pleasantview from turning out cattle on the Pleasantview allotment except on the condition that the grazing be done under the terms and conditions set forth in the Final Decision. The injunction will last until the Court can hear the injunction issues on May 31, 2002.
3. Pleasantview's Motion to Stay
Pleasantview seeks to stay the BLM's proposed decision on the ground that the BLM failed to "consult, cooperate, and communicate" with Pleasantview before issuing the proposed decision. See 43 C.F.R. § 4110.3-3(a). This is an issue that Pleasantview may raise in the administrative process when it challenges the Final Decision. The Court finds no reason to reach into that process and deprive the agency with expertise of an opportunity to resolve it in the first instance. This motion will be denied.
ORDER
In accordance with the terms of the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the plaintiff's motion for preliminary injunction (docket no. 24) is hereby GRANTED allowing the cattle to be turned-out on the Pleasantview allotment only on the condition that the grazing be governed by the terms and conditions of the BLM's Final Decision. This injunction shall remain in full force and effect until May 31, 2002. The injunction is binding on the parties and all associated with them as set forth in Federal Rule of Civil Procedure 65(d).
IT IS FURTHER ORDERED, that the joint motion to approve settlement agreement (docket no. 19) is hereby GRANTED IN PART AND DENIED IN PART. It is granted to the extent that it seeks approval of all parts of the settlement agreement except the interim conditions provision. It is denied as to the interim conditions provision.
IT IS FURTHER ORDERED, that the motion to stay (docket no. 31) is hereby DENIED.
IT IS FURTHER ORDERED, that the intervenor's objection to the settlement agreement (docket no. 20) is hereby GRANTED IN PART AND DENIED IN PART consistent with the Court's ruling on the joint motion to approve settlement agreement.
IT IS FURTHER ORDERED, that a hearing be held on ICI's motion for injunction on May 31, 2002, at 10:00 a.m. in the Federal Courthouse in Boise, Idaho.