Opinion
Case No. 3:19-cv-1550-SI
2023-05-12
OREGON NATURAL DESERT ASSOCIATION; Audubon Society of Portland; and Defenders of Wildlife, Plaintiffs, v. Barry BUSHUE, State Director of BLM Oregon/Washington; and Bureau of Land Management, an agency of the United States Department of Interior, Defendants, and Cahill Ranches Inc.; Mackenzie Ranch, LLC; Laird Land Company LLC; Cow Creek Ranch, Inc.; Doug Burgess, dba Burgess Angus Ranch; Rocking Club Cattle, LLC; V Box Land & Livestock, Inc.; Mark Mackenzie LLC; and Tree Top Ranches, LP, Defendant-Intervenors.
Peter Macnamara Lacy, Oregon Natural Desert Association, Portland, OR, David H. Becker, Law Office of David H. Becker, LLC, Colton, OR, for Plaintiffs. Barclay T. Samford, Emma L. Hamilton, Luther Langdon Hajek, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, Arwyn Carroll, Natural Resources Section, Washington, DC, for Defendants. Caroline Lobdell, Aaron E. Bruner, Derek Gauthier, Western Resources Legal Center, Portland, OR, for Defendant-Intervenor Cahill Ranches, Inc. Elizabeth E. Howard, Sara Kobak, Schwabe, Williamson & Wyatt, Portland, OR, for Defendant-Intervenors Rocking Club Cattle LLC, V Box Land & Cattle Inc.
Peter Macnamara Lacy, Oregon Natural Desert Association, Portland, OR, David H. Becker, Law Office of David H. Becker, LLC, Colton, OR, for Plaintiffs. Barclay T. Samford, Emma L. Hamilton, Luther Langdon Hajek, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, Arwyn Carroll, Natural Resources Section, Washington, DC, for Defendants. Caroline Lobdell, Aaron E. Bruner, Derek Gauthier, Western Resources Legal Center, Portland, OR, for Defendant-Intervenor Cahill Ranches, Inc. Elizabeth E. Howard, Sara Kobak, Schwabe, Williamson & Wyatt, Portland, OR, for Defendant-Intervenors Rocking Club Cattle LLC, V Box Land & Cattle Inc. ORDER ADOPTING STIPULATED REMEDY Michael H. Simon, District Judge.
On December 7, 2022, the Court issued its Opinion and Order granting summary judgment to Plaintiffs Oregon Natural Desert Association, Audubon Society of Portland, and Defenders of Wildlife (collectively, Plaintiffs) (ECF 148). The Court found that the Bureau of Land Management and State Director Bushue (collectively, BLM) violated the Federal Land Policy and Management Act (FLPMA) and the Administrative Procedure Act (APA) by unlawfully failing to make portions of 13 research natural areas (RNAs) unavailable to livestock grazing, as required by the Oregon Greater Sage-Grouse Approved Resource Management Plan Amendment (2015 ARMPA). The Court, however, reserved final determination about a proper remedy until "the parties, after conferring to see if terms can be agreed upon, submit[ted] simultaneous briefs regarding an appropriate remedy consistent with the Court's conclusions." Oregon Nat. Desert Ass'n v. Bushue, 644 F.Supp.3d 813, 844 (D. Or. 2022). Now before the Court is Plaintiffs' and BLM's joint motion asking the Court to adopt their Stipulated Remedy (ECF 171). All Defendant-Intervenors oppose the joint motion. For the reasons explained below, the Court grants Plaintiffs' and BLM's joint motion to adopt their Stipulated Remedy.
A. Proposed Stipulated Remedy
"The [Administrative Procedure Act] allows a court to compel 'agency action unlawfully withheld or unreasonably delayed.' " Indep. Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing 5 U.S.C. § 706(1)); see also Vaz v. Neal, 33 F.4th 1131, 1137 (9th Cir. 2022). "In the context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency's delay is so egregious as to warrant mandamus." Telecomms. Rsch. & Action Ctr. v. F.C.C. (TRAC), 750 F.2d 70, 79 (D.C. Cir. 1984). "[C]ourts generally apply the so-called TRAC factors in deciding whether to order relief in claims of agency delay brought under the APA." Indep. Mining Co., 105 F.3d at 507 (citing TRAC, 750 F.2d at 79-80). Thus, in determining whether to grant mandamus relief compelling an "agency action . . . unreasonably delayed," 5 U.S.C. § 706(1), a district court must "balanc[e] the competing interests, and assess[ ] the applicability of the relevant [TRAC] factors to the facts and circumstances of [that particular] case." Indep. Mining Co., 105 F.3d at 512.
In granting Plaintiffs' motion for summary judgment, the Court evaluated the TRAC factors and determined that "the clear balance of the TRAC factors favor[ed] issuance of the writ [of mandamus]." Oregon Nat. Desert Ass'n, 644 F.Supp.3d at 844. The Court then requested further briefing from the parties as to an "appropriate remedy" and ordered that, "[u]ntil the Court has issued its Order on remedy, BLM may not further authorize grazing on any portions of the 13 key RNAs [that the 2015 ARMPA] designated unavailable to grazing." Id. Thus, the Court rejects Defendant-Intervenors' argument that the Court improperly issued an injunction without making the requisite findings because the Court did not grant an injunction. Instead, the Court granted mandamus relief, as described in § 706(1), after considering the appropriate factors.
To the extent that the Court's earlier Opinion and Order could be construed as a preliminary injunction until the Court issued its final remedy order, that issue is now moot. Further, the Court properly considered the equities when it considered the TRAC factors. In discussing the need for scientific management of grazed lands to promote the survival of sage-grouse, the Court found that the unique scientific research to be conducted in the ungrazed portions of the key RNAs is a "significant public good . . . weighed against the miniscule area [that the 2015 ARMPA makes] unavailable to grazing." Oregon Nat. Desert Ass'n v. Bushue, 644 F.Supp.3d at 842. Specifically, "only 22,765 acres are to be closed, 0.19% of the 12,083,622 acres that remain open to grazing." Id. Further, "[t]he 2,388 animal unit months [made] unavailable for grazing in the 2015 key RNA closures represent only 0.24% of the 998,919 active AUMs in eastern Oregon." Id. Finally, the Court noted BLM's "earlier determination of no economic impact" to Defendant-Intervenors and determined that any economic impacts do not weigh against Plaintiffs. Id. at 843.
The effect in 2023 is even lower. The total number of AUMs that will be unavailable for grazing in all of 2023 among the nine intervenors is 180—which is 0.3% of the 59,238 total AUMs for which these nine operators hold permits. See ECF 175 at 5-6. The Court also notes that even if the earlier Opinion and Order were a preliminary injunction, the effect on Defendant-Intervenors between the entry of that decision and this Order is minimal to nonexistent. Defendant-Intervenor Cahill's 2023 operations are not affected because the Sucker Creek pasture, on which Cahill grazes, and in which the Rahilly-Gravelly Key RNA is located, is scheduled to be rested and will not be grazed during 2023, regardless of these remedy proceedings. See ECF 162 at 4 (Joint Mot. Extend Remedy Briefing Deadlines ¶ 7). The turnout dates for other relevant pastures range from April 1, 2023, through the summer 2023. Id. ¶ 8.
In its Opinion, the Court was mindful of the Supreme Court's holding in Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), that when granting relief under 5 U.S.C. § 706(1), a court can only direct that an agency act and may not direct how that agency acts. Id. at 64, 124 S.Ct. 2373. Thus, the Court allowed BLM, in conjunction with the other parties, to determine how best to make the specified portions of the RNAs unavailable to grazing.
The Court now adopts the remedy that Plaintiffs and BLM jointly propose. See ECF 171-1 at 5-26 (Stipulated Remedy). This Stipulated Remedy represents a tailored remedial approach. It ensures both that Plaintiffs obtain relief on their successful claim and that the Court does not "substitute its judgment for that of BLM." Oregon Nat. Desert Ass'n, 644 F.Supp.3d at 834. The Stipulated Remedy also invokes the "broad authority" of district courts "to enforce federal laws through exercise of [their] equitable powers." United States v. Alisal Water Corp., 431 F.3d 643, 654 n.5 (9th Cir. 2005); see also Brown v. Plata, 563 U.S. 493, 538, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) ("Once invoked, the scope of a district court's equitable powers is broad, for breadth and flexibility are inherent in equitable remedies." (cleaned up)). Through this remedy, BLM retains discretion in how it will ultimately make the specified portions of the key RNAs unavailable to grazing. BLM also retains discretion in determining how it will prevent livestock from grazing on the specified portions of the RNAs in the interim. Although the substantive steps that BLM plans to take to effectuate the Court's Order are identified in detail in the Stipulated Remedy, at each step, BLM retains significant discretion in how it will carry out the mandate of this remedy order.
Under the Stipulated Remedy, BLM will "make best efforts" to complete all appropriate documentation and decision-making processes before the 2024 grazing season. In making these efforts, BLM may prioritize certain decisions, but it need not follow any specific schedule, nor is it required to implement any specific closure methods. Such flexibility allows BLM to retain the discretion needed to fulfill its statutory and regulatory obligations within its expertise. Thus, the Stipulated Remedy allows BLM to complete both the administrative processes necessary to modify grazing permits and any required National Environmental Policy Act (NEPA) analyses necessary to carry out its obligation to make the specified portions of the key RNAs unavailable to grazing.
Nothing in the Stipulated Remedy contradicts BLM's obligation to comply with 43 C.F.R. § 4100 or any other relevant regulatory and procedural safeguards to which permittees are entitled, including notice letters regarding changes to annual grazing authorizations and the regulatory process for addressing cattle that stray into the portions of the key RNAs that are unavailable for grazing. See, e.g., 43 C.F.R. § 4100 (regulations for grazing administration). The Court also notes that BLM already sent the required two-year notice letters in January 2020. See Oregon Nat. Desert Ass'n, 644 F.Supp.3d at 826-27.
Further, under the Stipulated Remedy, BLM will make "best efforts" to prevent livestock grazing on portions of the key RNAs specified in the 2015 ARMPA until after it has fully effectuated the closure of those portions of the RNAs. This remedy responds to the Court's statement that "it is now seven years since the 2015 ROD was adopted, and yet grazing continues to this day on the acres mandated to be 'unavailable for grazing.' " Id. at 840-41. Here again, BLM retains significant discretion. BLM will address all unauthorized livestock use in a manner consistent with its applicable regulations and policies. BLM also plans to elicit voluntary short-term agreements from permittees to keep livestock out of the key RNAs. Such agreements will identify management strategies and allow for limited trailing or crossing of livestock across pastures containing key RNAs when necessary. Even without a permittee agreement, BLM retains the discretion to determine which additional steps it will take to prevent livestock from grazing in the key RNAs. Additional steps may include compliance checks or requirements that permittees remove unauthorized livestock from the RNAs within a timeframe that is shorter than what BLM's usual processes require. Finally, each key RNA is unique and subject to different on-the-ground conditions affecting how BLM will implement the Stipulated Remedy. As BLM itself acknowledges, the Stipulated Remedy's terms leave BLM significant discretion to account for these differing conditions. Thus, the discretion that the Stipulated Remedy reserves for BLM tracks SUWA's mandate that the Court refrain from substituting its policy judgments for those of BLM.
The Court assumes that BLM will ensure that these additional steps will comply with all applicable regulations concerning livestock removal. To the extent that any required steps are incompatible with applicable regulations, those steps would be unenforceable.
In SUWA, the Supreme Court emphasized the need to allow agencies to retain discretion in how they carry out their legally required duties but did not prescribe the precise form of any remedy under Section 706(1). See SUWA, 542 U.S. at 64, 124 S.Ct. 2373. Thus, the Stipulated Remedy, although detailed, does not contravene the Supreme Court's holding in SUWA. Further, the Ninth Circuit has upheld detailed Section 706(1) remedies when they preserve agency discretion.
In Vietnam Veterans v. Central Intelligence Agency, 811 F.3d 1068 (9th Cir. 2016), the Ninth Circuit upheld a lower court's formulation of injunctive relief after finding a Section 706(1) violation, even when the district court required the agency to update the court regarding the agency's efforts and included specific deadlines for the agency to share information with the plaintiffs and the court. Id. at 1079. The Ninth Circuit held that this remedy was "appropriately tailored." Even though it included significant detail, the Ninth Circuit noted that the remedy "express[ly] reserve[ed] the Army's ability to act in its discretion to develop the appropriate policies in order to carry out [its] duty." Id. at 1079-80 (quotation marks omitted; emphasis added). The same is true here regarding the Stipulated Remedy. By detailing BLM's anticipated plans and committing BLM to provide updates and information throughout the process, the Stipulated Remedy provides assurances to the Court and Plaintiffs that BLM will make the specified portions of the key RNAs unavailable to livestock grazing. At the same time, BLM participated in crafting the provisions in the Stipulated Remedy and ensured that BLM retained discretion to effectuate the terms of the 2015 ARMPA.
B. Objections of Defendant-Intervenors
Having determined that the Stipulated Remedy complies with SUWA, the Court now turns to several arguments raised by Defendant-Intervenors. Preliminarily, the Court declines to relitigate the merits of its December 7, 2022 Opinion and Order. Defendant-Intervenors argue that the balance of the equities tips in their favor, and thus BLM should not be compelled to make the specified portions of the key RNAs unavailable to grazing. As discussed above, the Court properly considered and balanced the equities in its consideration of the TRAC factors. The Court finds the arguments to the contrary offered by Defendant-Intervenors unpersuasive. Additionally, to the extent that the Defendant-Intervenors challenge the 2015 ARMPA itself, this is not the appropriate forum to do that. The issue before this Court is whether BLM unreasonably delayed making the specified portions of the key RNAs unavailable to grazing, not whether the 2015 ARMPA itself was unlawful.
Defendant-Intervenors point to the Court's findings during the earlier temporary restraining order (TRO) hearing that the equities and public interest did not support a TRO. They then argue that because the relevant facts have not changed since that hearing, the Stipulated Remedy is not warranted. The Court subsequently explained, however, that "the TRO addressed Plaintiffs' demand to close immediately the entire pastures that contain the key RNAs, not just the portions outlined in the 2015 ARMPA." Oregon Nat. Desert Ass'n, 644 F.Supp.3d at 843 (emphasis omitted and emphasis added). "Now, much smaller portions of the RNAs are at issue: only about one-third of the total key RNA acres are unavailable to grazing." Id. (citing 2015 ARMPA at 2 18 (Table 2-6)). Thus, the Court's previous findings related to the TRO are not applicable here.
This case is not the proper vehicle to challenge the 2015 ARMPA. Only two Defendant-Intervenors administratively protested the 2015 ARMPA, and only one challenged the closure in court. Cahill filed a now-dismissed lawsuit challenging the 2015 ARMPA. Cahill Ranches, Inc. v. Bureau of Land Mgmt., No. 1:17-cv-960 (D. Or. filed Jun. 19, 2017). None of the other intervenors joined as parties to that litigation. Further, the Stipulated Remedy leaves Defendant-Intervenors free to participate in ongoing decision-making processes as BLM considers its final options for implementing the unavailability of specified portions of the key RNAs.
Defendant-Intervenors also argue that the Stipulated Remedy is an unlawful consent decree because it violates the law and imposes obligations on nonconsenting third parties. The Court rejects that argument. First, the Stipulated Remedy is not a consent decree. Instead, it is an agreed-upon remedy presented in response to the Court's directive that the parties confer to see if an appropriate remedy for the found violation could be agreed upon. BLM, exercising its discretion, considered the submission of the Stipulated Remedy to be more efficient than submitting a remedy proposal. ECF 162 at 3 (Joint Mot. Extend Remedy Briefing Deadlines ¶ 5). Thus, the caselaw that Defendant-Intervenors cite regarding consent decrees and settlements is inapplicable here.
Second, even if the Stipulated Remedy were the equivalent to a consent decree, it would not be unlawful. To the extent that Defendant-Intervenors argue that the Stipulated Remedy allows BLM to violate the law, they are mistaken. The Stipulate Remedy expects that BLM will follow all proper administrative procedures when modifying the grazing permit or any allottee. By contrast, in Conservation Northwest v. Sherman, 715 F.3d 1181, 1185 (9th Cir. 2013), a consent decree was held to be unlawful because it made permanent changes that bypassed procedures and notices required under NEPA and FLPMA. But the 2015 ARMPA decision to make portions of the key RNAs unavailable to grazing already went through a full NEPA review. Moreover, the Stipulated Remedy provides that the Bureau will follow all legal requirements in implementing permanent closures, including following all applicable procedures under the FLPMA and conducting any additional necessary NEPA analyses. The Stipulated Remedy also does not impose any obligations on third parties. See Loc. No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 529-30, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (upholding a consent decree when it "[did] not bind [an objecting third party to the decree] to do or not to do anything" and it "[did] not purport to resolve any claims [that that third party] might have"); see also Sierra Club v. North Dakota, 868 F.3d 1062, 1067 (9th Cir. 2017) (upholding a consent decree when objecting third parties to the decree argued it imposed "indirect duties and obligations on them," because "a careful look at the briefing reveal[ed] that the [third parties'] objection[s] [were] with the obligations imposed [on them] by [an agency's rule], not [by] the Consent Decree"). Although the Stipulated Remedy contemplates BLM entering into agreements with the allottees to keep livestock off the relevant portions of the key RNAs during this interim period, in the absence of such agreements, it does not obligate allottees to take any specific actions to ensure that their livestock are prevented from grazing on the specified portions of the RNAs. In short, it imposes no legal duties or obligations on permittees that do not already exist.
Defendant-Intervenors propose that instead of the Stipulated Remedy, the Court should order that BLM effectuate the closures by December 31, 2024. By pushing the deadline for any concrete action until the end of 2024, however, such an order would simply license further delay, contrary to the mandates contained in the 2015 ARMPA. The Stipulated Remedy, by contrast, addresses the Court's concerns with a detailed plan for immediate, intermediate, and permanent actions to carry out the key RNA closures. It also poses no risk of skirting SUWA's mandate that a court refrain from substituting its policy judgments for those of the relevant agency. By declining to impose an arbitrary deadline, the Court avoids depriving BLM of discretion that may be needed to comply with any statutory and regulatory requirements when making the specified portions of the RNAs unavailable to grazing. The Court thus rejects the alternative remedy proposed by Defendant-Intervenors. Finally, the Court emphasizes that the Stipulated Remedy does not waive any party's right to appeal the Court's decision on the merits of the parties' 2022 motions for partial summary judgment.
CONCLUSION
Before the Court is the Joint Motion of Plaintiffs and Federal Defendants to Adopt Stipulated Remedy (ECF 171). Having reviewed and considered that motion, including the accompanying proposed Stipulated Remedy (ECF 171-1), the Court concludes that the Joint Motion is appropriate and consistent with the Court's Opinion and Order dated December 7, 2022 (ECF 148). Accordingly, the Court GRANTS the Joint Motion (ECF 171) and ADOPTS the Stipulated Remedy (ECF 171-1), which will be attached to this Order and incorporated by reference. Further, the Court shall retain jurisdiction to enforce this Order and the Stipulated Remedy. Finally, this case remains open and the parties shall, within 90 days, submit a joint report proposing the next steps to be taken to resolve the remaining claims in this case.
IT IS SO ORDERED.
Attachment
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 David H. Becker (OSB # 081507)
Law Office of David H. Becker, LLC
24242 S. Engstrom Rd.
Colton, OR 97017
(503) 388-9160
davebeckerlaw@gmail.com
Attorneys for Plaintiffs
Todd Kim
Assistant Attorney General Emma L. Hamilton
Luther L. Hajek
Arwyn Carroll
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
999 18th Street, South Terrace, Suite 370
Denver, CO 80202
Tel: 303-844-1361 | Fax: 303-844-1376
emma.hamilton@usdoj.gov Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
OREGON NATURAL DESERT ASS'N, et al. Plaintiffs, v. BARRY BUSHUE, State Director, BLM Oregon/Washington, et al., Defendants, and CAHILL RANCHES, INC., Defendant-Intervenor, and MACKENZIE RANCH, LLC, et al., Defendants-Intervenors, and TREE TOP RANCHES, LIMITED PARTNERSHIP, Defendant-Intervenor. No. 3:19-cv-01550-SB
STIPULATED REMEDY
This Stipulated Remedy is entered into by and between Plaintiffs Oregon Natural Desert Association, Audubon Society of Portland, and Defenders of Wildlife (collectively "ONDA") and Federal Defendants Barry Bushue, BLM Oregon/Washington State Director, and the Bureau of Land Management (collectively "BLM"), who state as follows:
WHEREAS, BLM's 2015 Sage Grouse Approved Resource Management Plan Amendment ("2015 ARMPA") and Record of Decision ("ROD") made all or portions of 15 key Research Natural Areas ("RNAs") "unavailable to livestock grazing";
WHEREAS, two of the key RNAs were made unavailable and closed to livestock grazing before the 2015 ARMPA issued;
WHEREAS, on December 7, 2022, the United States District Court for the District of Oregon issued an Opinion and Order in this case, holding that BLM had unreasonably delayed implementing closures of 13 key RNAs;
WHEREAS, the Court directed BLM to "make unavailable to grazing the portions of the key RNAs specified in the 2015 ARMPA without further delay" and ordered that "BLM may not further authorize grazing on any portions of the 13 key RNAs designated unavailable to grazing" until the Court issues its Order on remedy;
WHEREAS, the Court directed the parties in this case to confer to determine whether they could agree on appropriate remedy terms;
WHEREAS, between February 2-6, 2023, the Malheur and Lakeview Field Offices of BLM sent letters to all affected permittees stating that, as a result of the Court's December 7, 2022, Opinion and Order, the key RNAs are unavailable to grazing and any livestock found within them will be considered unauthorized and will be dealt with through BLM's administrative process, up to and including trespass ("Notice Letters");
WHEREAS, BLM has exercised its authority under 43 U.S.C. 1752(c) to renew the 10-year grazing permit for the Boney Basin Allotment without modifying any terms or conditions of the permit, which will now expire February 28, 2033;
WHEREAS, BLM has provided Notice Letters and georeferenced maps of key RNAs to ONDA, affected permittees, and their counsel;
WHEREAS, on February 9, 2023, BLM provided to ONDA all available 2022 utilization and actual use information for pastures containing key RNAs; and
WHEREAS, BLM's Andrews-Steens Field Office has entered into a written agreement with the permittee affected by the East Fork Trout Creek key RNA that adjusted the allotment boundaries to exclude the key RNA and states that "[a]ny and all livestock use within" the key RNA "would be subject to trespass," and has provided a copy of that agreement to ONDA;
THEREFORE, ONDA and BLM agree to the following:
1. BLM will make best efforts to effectuate closures of the portions of the key RNAs specified in the 2015 ARMPA before the start of the 2024 season by completing all appropriate documentation and decision-making processes and implementing these closures as soon as possible thereafter.
a. The Lakeview Field Office anticipates finalizing this process first for the portion of the Foley Lake key RNA on the Coyote-Colvin Allotment;
b. The Malheur Field Office anticipates prioritizing these processes for the following key RNAs: Black Canyon, South Ridge Bully Creek, and North Ridge Bully Creek.
2. Until the closures described in Paragraph 1 have been implemented, BLM will make best efforts to prevent livestock from grazing in the key RNAs. To carry out this commitment, BLM plans to take the following steps prior to 2023 turnout:
a. Consider any livestock found within the key RNAs unauthorized
and address unauthorized livestock use as provided in BLM's policy, regulations at 43 C.F.R. Subparts 4140 and 4150, and other applicable law.
b. Enter into written agreements with all affected permittees to keep livestock out of all key RNAs. These agreements will identify management strategies permittees will take to draw livestock away from key RNAs which may include but are not limited to pasture rest, adjusting the season (or period) of use, herding, and placement of salt, supplements, and water. Trailing authorizations or crossing permits will be necessary for the pastures containing the Rahilly-Gravelly, Mahogany Ridge, and South Bull Canyon key RNAs, and may be necessary for the pastures containing the North Ridge Bully Creek, South Ridge Bully Creek, and Spring Mountain key RNAs. Where trailing or crossing livestock across a pasture containing a key RNA is necessary, BLM anticipates that the agreements will describe the month, route, and limited duration of any such allowable crossing or trailing. Available details regarding crossing and trailing needs and estimated turnout dates in 2023 for affected allotments are included in the table attached herein as Exhibit 1 and the crossing and trailing maps attached herein as Exhibit 2. These exhibits are incorporated by reference into this Stipulated Remedy.
c. In the absence of an agreement described in paragraph 2(b), BLM will take additional steps to those described in Paragraph 4 to prevent livestock from grazing in the key RNAs until the closures described in Paragraph 1 are implemented, including but not limited to increased frequency of compliance checks or requiring permittees to remove any unauthorized cattle from closed portions of key RNAs within a shorter timeframe than the timeframe set forth in Paragraph 2(a). BLM will confer with ONDA on any such proposed measures, and ONDA reserves the right to bring any disputes concerning measures implemented under this subparagraph to the Court for resolution as set forth in Paragraph 9, though disputes related to this subsection will not be subject to the 10 day waiting period described in Paragraph 9.
3. ONDA and BLM will confer in December 2023 on the status of BLM's progress in implementing necessary closure solutions. If BLM is unable to complete implementation of the selected closure solution for any key RNA before the 2024 grazing season begins for the pasture containing that key RNA, then, after conferral with ONDA and the relevant permittee(s), BLM will take appropriate measures to continue to prevent livestock from grazing in the key RNA until implementation is complete.
4. For all key RNAs, BLM will conduct periodic compliance checks during the 2023 grazing season.
a. The frequency of these compliance checks varies by key RNA and is described for each key RNA in Exhibit 1.
b. If BLM detects livestock in the key RNAs during a compliance check or becomes aware of livestock in a key RNA through other means including qualified public reports, it will follow its administrative process for addressing the unauthorized use, as provided in BLM's policy, regulations at 43 C.F.R. Subparts 4140 and 4150, and other applicable law.
c. For a public report to be qualified, it must provide the date, time, and GPS coordinates (or other reliable location information) of reported livestock.
d. The Malheur Field Office will verify that livestock have been removed within three days after the three-day period afforded to permittees to remove livestock from key RNAs. The Lakeview and Andrews-Steens Field Offices will verify that livestock have been removed during the next compliance check.
5. BLM will process a transfer application from J&B Land and Livestock, Inc. to Justin and Heather Johnson for Allotment #4 under 43 U.S.C. 1752(c) and without modifying any terms and conditions of the permit. The transferees, Justin and Heather Johnson, will replace J&B Land and Livestock, Inc. as the permittee grazing Allotment #4, and BLM will ensure, pursuant to Paragraphs 2 and 4, that no livestock are authorized to graze in the key RNA within Allotment #4 during the 2023 grazing season and until a closure solution for the key RNA has been fully implemented.
6. BLM will provide ONDA with: (1) copies of all agreements described in this document and 2023 annual authorizations (including approved number of livestock and use period by pasture) by May 1, 2023, (2) updated livestock turnout dates in allotments and pastures containing key RNAs and associated changes in grazing rotations as soon as practicable, and (3) copies of compliance check documentation by November 30, 2023.
7. Nothing in this Stipulated Remedy limits BLM's authority to amend applicable land use plans, including changing any RNA closure decisions. The closures referred to in this Stipulated Remedy are intended to comply with the Court's December 7, 2022, Opinion and Order that BLM make the key RNAs "unavailable to grazing . . . without further delay," and are intended to apply for the duration of the presently effective land
use plan decision concerning key RNA closures.
8. Reservation of Rights. ONDA reserves its rights to participate as a member of the public in all NEPA processes, and to challenge any action or decision related to effectuation of the closures of the key RNAs as described in Paragraph 1. Federal Defendants reserve and do not waive any defenses to any such challenges. ONDA and BLM agree that any such challenges must be initiated through new litigation or through amended or supplemental claims in this case if this case remains live, and not as claims to enforce this Stipulated Remedy. This Stipulated Remedy does not create any additional rights to challenge agency action that do not independently exist apart from this Stipulated Remedy. The Stipulated Remedy does not affect any party's rights to appeal the Court's decision on the merits of the parties' 2022 motions for partial summary judgment.
9. Modification of Stipulated Remedy. This Stipulated Remedy may be modified by the Court upon good cause shown (i) by written stipulation filed with and approved by the Court, or (ii) upon written motion filed by one of the parties pursuant to Paragraph 16 and granted by the Court. In the event that any party seeks to modify the terms of this Stipulated Remedy, or in the event of a disagreement between the parties concerning any aspect of this Stipulated Remedy, or in the event that any party believes that another party has failed to comply with any term or condition of this Stipulated Remedy, the party seeking the modification, raising the dispute, or seeking enforcement shall provide the other party with written notice of the claim. The parties agree that they will meet and confer (telephonically or in-person) at the earliest possible time in a good-faith effort to resolve the dispute before seeking relief from the Court. If the parties are unable to resolve the claim themselves after 10 business days following receipt of a written notice or such longer time agreed to by the parties, either party may seek relief from the Court. This Stipulated Remedy shall not be enforceable through a proceeding for contempt of Court.
10. Retention of Jurisdiction. Concurrently with this Stipulated Remedy, ONDA and BLM shall file a joint motion seeking adoption of this Stipulated Remedy as the Court's Order on remedy. The joint motion will request that the Court retain jurisdiction to resolve any disputes over compliance with the terms of this Stipulated Remedy and to resolve any motions to modify such terms until this Stipulated Remedy has concluded. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
11. Representative Authority. The undersigned representatives of Plaintiffs and Federal Defendants certify that they are fully authorized by the party or parties whom they represent to enter into the terms and conditions of this Stipulated Remedy and to legally bind those parties to it.
12. Compliance with Other Laws. Nothing in this Stipulated Remedy shall be interpreted as, or shall constitute, a commitment or requirement that Federal Defendants obligate or pay funds, or take any other actions in contravention of the Anti-Deficiency Act, 31 U.S.C.
§ 1341, or any other applicable law. Nothing in this Stipulated Remedy shall be construed to deprive a federal official of authority to revise, amend or promulgate regulations, or to amend or revise land and resource management plans. Nothing in this Stipulated Remedy is intended to waive any obligation to exhaust administrative remedies; to constitute an independent waiver of the United States' sovereign immunity; to change the standard of judicial review of federal agency actions under the Administrative Procedure Act ("APA"); or to otherwise extend or grant this Court jurisdiction to hear any matter, except as expressly provided in the Stipulated Remedy.IT IS SO AGREED AND STIPULATED. Dated: March 14, 2023.
13. Mutual Drafting. It is hereby expressly understood and agreed that this Stipulated Remedy was jointly drafted by Plaintiffs and Federal Defendants. Accordingly, those parties hereby agree that any and all rules of construction, to the effect that ambiguity is construed against the drafting party, shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of the Stipulated Remedy.
14. Sole and Final Agreement. This Stipulated Remedy contains all of the agreements between Plaintiffs and Federal Defendants, and is intended to be and is the final and sole agreement between the parties concerning remedy following the Court's December 7, 2022 Opinion and Order (notwithstanding any modifications that may be made to the Stipulated Remedy following further conferral and/or dispute resolution as otherwise provided herein). Plaintiffs and Federal Defendants agree that any other prior or contemporaneous representations or understandings not explicitly contained in this Stipulated Remedy, whether written or oral, are of no further legal or equitable force or effect. Any subsequent modifications to this Stipulated Remedy must be in writing, and must be signed and executed by Plaintiffs and Federal Defendants.
15. No Precedential Value. This Stipulated Remedy is the result of compromise and settlement, and does not constitute an admission, implied or otherwise, by Plaintiffs or Federal Defendants to any fact, claim, or defense on any issue in this litigation and has no precedential value.
16. Force Majeure. The parties understand that notwithstanding their efforts to comply with the commitments contained herein, events beyond their control may prevent or delay such compliance. Such events may include natural disasters as well as unavoidable legal barriers or restraints, including those arising from actions of persons or entities that are not party to this Stipulated Remedy. A party is entitled to delay or forego actions under this Stipulated Remedy due to events beyond their control, but force majeure shall not continue beyond the circumstances and conditions that prevent timely performance, and shall not apply if alternative means of compliance are available. The party claiming force majeure shall have the burden of proof in proceedings to enforce or modify the Stipulated Remedy.
17. Effective Date. None of the provisions or obligations of this Stipulated Remedy shall become effective and binding until the Court grants the stipulated motion to adopt this Stipulated Remedy as its Order on remedy.
TODD KIM
Assistant Attorney General
U.S. Department of Justice
Environment & Natural Resources Division s/ Emma L . Hamilton
EMMA L. HAMILTON (CA Bar No. 325360)
Trial Attorney
Natural Resources Section
999 18th Street
South Terrace, Suite 370
Denver, CO 80202
Tele: (303) 844-1361
Fax: (303) 844-1350
emma.hamilton@usdoj.gov
Counsel for Federal Defendants s/ Peter M . Lacy
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
Of Attorneys for Plaintiffs
"Turnout" refers to the date on which livestock are moved to or otherwise allowed to access an allotment or pasture for grazing at the beginning of the authorized season of use. Turnout dates vary by allotment, pasture, and permittee, and may change from year to year based on conditions on-the-ground as the grazing season approaches.
With the exception of livestock authorized to trail or permitted to cross certain pastures during specific periods of use, as described in paragraph 2(b).
43 C.F.R. Subparts 4140 and 4150; BLM Instruction Memorandum No. OR-2017-009. BLM's administrative process begins with a phone call to the permittee upon BLM realizing that unauthorized livestock use is occurring. BLM will give the permittee up to three days to remove livestock from the unauthorized area. If livestock are not removed within three days, BLM may initiate its formal trespass procedures.
The Stipulated Remedy uses the terms "season of use" and "period of use" interchangeably.
Trailing occurs when a permittee moves its livestock, during an authorized period of use, across a pasture or allotment for which the permittee holds a term grazing permit. Crossing occurs when a livestock operator moves its livestock across a pasture or allotment for which they do not hold a livestock grazing permit or is outside a period of use described in a term grazing permit.
Stipulated Remedy - Exhibit 1
2023 Grazing Plans for Affected Allotments Containing Key RNAs
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