Yesterday, February 13, 1998, Idaho Federal District Judge Lynn
Winmill
(a Clinton appointee) issued a decision in Idaho Watersheds Project and
the Committee for Idaho's High Desert's legal action against the BLM
which requested a preliminary injunction barring the BLM from
permitting the turn-out of livestock in the Owyhee Resource Area (1.3
million acres of public lands in south-west Idaho) of the BLM until the
agency brought livestock grazing management into compliance with
various Federal laws including the Federal Land Policy Management Act
(FLPMA), the National Environmental Policy Act (NEPA), the Clean Water
Act (CWA) as well as the BLM's own grazing management regulation, most
specifically 43 C.F.R. 4180 (the Fundamentals of Rangeland Health). The
two day hearing for this case was held in Boise, as you will recall, on
December 16 and 17, 1997.
Judge Winmill's 20 page decision essentially "split the
baby" by
denying IWP's request for a preliminary injunction but simultaneously
requiring the BLM to submit to the Judge by March 13, 1998 a time
schedule for completion of the politically stalled Owyhee Resource
Management Plan. Parties to the lawsuit would then be able to comment
on the proposed schedule by March 27, 1998 and Judge Winmill would then
reject or accept the proposal for completion of the new plan.
From the point of view of Idaho Watersheds Project, our initial take
on
the decision is mixed. The denial of the preliminary injunction states
that IWP and CIHD had not shown a sufficient likelihood of prevailing
on the merits of our various legal claims although the Judge did
acknowledge that our expert witnesses testimony (which came from Dr.
Bob Ohmart, Dr. Donald Johnson, and Dr. Don Chapman) was compelling and
that IWP had shown that irreparable harm would occur if livestock use
of these public lands continued without management changes. The Judge
also denied the BLM's and rancher intervenor's motion to dismiss our
complaint for a lack of ripeness and standing. This is good news
because it permits us in the future to continue to intervene in BLM
management actions in Federal Court while by-passing the morass of
legal sludge which makes up the Department of the Interior's
administrative appeals system ( the Interior Board of Land Appeals of
the Office of Hearings and Appeals which has a 2 to 4 year back log on
agancy appeals). The decision also puts the BLM's planning process
under the purview of a federal judge which represents a benefit in this
case since the Owyhee RMP process was begun in 1989 and remains
incomplete today.
Judge Winmill was willing to give the BLM some deference in that he
accepted their claim that they are changing management ( in baby ways
in IWP's opinion) to protect streams which they acknowledge have been
and continue to be degraded by livestock use. IWP is concerned that the
Judge did not give sufficient attention to our claims under the Clean
Water Act, the Fundamentals of Rangeland Health, and the FLPMA legal
claim that the BLM cannot authorize livestock use which is not in
compliance with its own land use plan. In this case the existing land
use plan was completed in 1981 and has never been fully implemented
especially in regard to riparian management, something acknowledged by
the BLM in the draft RMP for the Owyhee Resource Area which remains
stalled by political interference by Congressman (sic) Helen Chenoweth
and Senator Larry Craig.
IWP will continue our analysis of this decision, but no appeal is
planned. That the completion of the RMP for this resource area will now
be required by a federal judge in a specific time-frame is one positive
outcome of this lawsuit and also gives IWP the opportunity to go back
to court when the BLM dithers on the plan. In the meantime IWP intends
to initiate legal action against the U.S. Fish and Wildlife Service to
try and force the listing under the Endangered Species Act of the
Redband Trout which action, if successful, will result in ending the
tyranny of livestock abuse in southern Idaho on federal and, quite
likely, other lands where this native fish is slipping away.