NATIVE ECOSYSTEMS COUNCIL

189 IBLA 383 Decided March 24, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. Quincy St., Suite 300

Arlington, 22203

703-235-3750 703-235-8349 (fax)

NATIVE ECOSYSTEMS COUNCIL

2016-227 Decided March 24, 2017

Appeal from a decision of Administrative Law Judge Harvey C. Sweitzer, denying a petition to stay the effect of a Notice of Final Grazing Decision.

Affirmed.

1. Grazing Permits and Licenses: Adjudication; Grazing Permits and Licenses: Appeals; Grazing Permits and Licenses: Rules of Practice: Appeals

Departmental regulations for grazing appeals allow for a stay of a final BLM grazing decision, provided the appellant shows sufficient justification to an Administrative Law Judge based on: (1) the relative harm to the parties if the stay is granted or denied; (2) the likelihood of the appellant's success on the merits; (3) the likelihood of immediate and irreparable harm if the stay is not granted; and (4) whether the public interest favors the granting of a stay. A party challenging a decision on a stay petition bears the burden to demonstrate error in that decision.

APPEARANCES: Sara Johnson, Director, Willow Creek, Montana, for Native Ecosystems Council; Bryan Wilson, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Billings, Montana, for the Bureau of Land Management.

Native Ecosystems Council (NEC) has appealed from a May 31, 2016, Order by Administrative Law Judge (ALJ) Harvey C. Sweitzer (ALJ Order). The ALJ Order denied NEC's petition to stay the effect of a March 7, Notice of Final Decision (Final Decision) by the Field Manager, Butte (Montana) Field Office, Bureau of Land Management (BLM), which implemented the April 2009 Record of Decision and Approved Butte Resource Management Plan (ROD) and established the Indian Creek

OPINION BY ADMINISTRATIVE JUDGE JACKSON

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Forage Reserve Allotment (Forage Reserve or Allotment). The Final Decision authorizes grazing use of the Forage Reserve by permittees of other allotments on a temporary, nonrenewable basis when their own allotments are unavailable or unusable due to drought, fire, vegetation treatments, or agency project work. It authorizes replacement of six miles of obsolete fencing with five miles of new fencing, authorizes development of seven water projects for the Forage Reserve, and specifies that these range improvements must be completed before any grazing use will be authorized on the Forage Reserve.

NEC appealed from and petitioned to stay the effect of the Final Decision, but ALJ Sweitzer denied its petition because he found immediate implementation of the Final Decision was likely to be beneficial to range resources and that NEC had not shown the relative harm factor favors a stay in this case.1 An appellant challenging an ALJ decision on a stay petition must show error in that decision. NEC asserts that the balance of harm supports a stay, claiming taxpayers will be harmed if BLM implements the Final Decision and NEC prevails on appeal, and argues that ALJ Sweitzer gave too much weight to alleged benefits of denying a stay that had been identified by BLM. We are unpersuaded, do not find these claims show ALJ Sweitzer erred in denying a stay in this case, and therefore affirm the ALJ Order.

The Indian Creek Forage Reserve Allotment And The 2015 Final Decision.

Pursuant to a Decision Record (DR) dated November 4, 2005, which was based on an environmental assessment, (Acquisition EA), BLM acquired a property commonly referred to as "Iron Mask." The Iron Mask acquisition encompassed 5,566 acres of privately held lands, the vast majority of which were within the Indian Creek allotment administered by BLM's Butte Field Office.2 BLM merged the Iron Mask acquisition with the Indian Creek allotment in April 2009 to form the Indian Creek Forage Reserve Allotment that is within the 25,902-acre Elkhorns Cooperative Management Area (ECMA).3 It then prepared an EA to analyze an array of existing and proposed management actions in the Iron Mask Planning Area (PA), which included 14 grazing allotments, the ECMA, the Elkhorn Mountains Area of Critical Environmental Concern, and a National Guard firing range where BLM manages grazing and minerals.4 The PA EA analyzed three alternatives for improving land health,

ALJ Order at 2 Acquisition EA at see DR at 2 ("Unique multiple-use resources and

opportunities such as grazing will be analyzed in the ongoing Butte Field Office [Resource Management Plan (RMP)]."). ROD at 24 ("This will be managed as a forage reserve allotment

Use will be authorized on a temporary, nonrenewable basis."). Iron Mask PA Environmental Assessment, DOI-BLM-MT-B070-2013-19 (PA EA) at

("Iron Mask acquisition area currently lacks appropriate infrastructure to be

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enhancing biodiversity, addressing travel management, establishing management direction for the Forage Reserve, and continued livestock grazing, as identified in the Butte RMP.

On July 1, 2015, BLM issued an "umbrella" Decision Record and Finding of No Significant Impact plus separate DRs for Vegetation and Riparian Treatments and for the Iron Mask Travel Management Plan, and it also alerted the public that seven more decisions would be issued based on that EA.5 Consistent with its decision, BLM issued a Notice of Field Manager's Proposed Grazing Decision for the Forage Reserve Allotment on October 7, 2015. NEC protested that decision, and on March 7, 2016, BLM issued its Final Decision, which included an attached response to each of NEC's protest points.6

The Final Decision provides for the removal of six miles of obsolete fencing and the construction of range improvements for managing the Allotment as a forage reserve, including five miles of fencing for riparian exclosures, three spring developments, and 6.5 miles of pipeline for supplying water to up to seven water tanks.7 State and BLM-managed lands within the Forage Reserve will be grazed together using a two-pasture deferred rotation scheme.8 The Forage Reserve can be grazed only by permittees of other allotments within the ECMA, on a temporary basis when their allotments are unavailable or unusable due to drought, fire, vegetation treatments, or agency project work.9 A permittee can apply for such temporary use once the proposed fencing and water developments are in place. Successful applicants will sign a cooperative agreement, assume maintenance responsibility of all range improvement projects, and be responsible for obtaining a grazing permit from the Montana Department of Natural Resources and Conservation (if necessary) and coordinating with private landowners.10 The season of use is May 15 to October 15 or such shorter period as may be identified in the permittees' allotment; BLM will evaluate range conditions and use levels each year to determine whether the Forage Reserve will be available for use the following year.11 The Final Decision limits utilization to 40 percent for the East pasture (both livestock and wildlife) and sets a 6-inch minimum

managed as a forage reserve allotment."), 7 ("Decisions [include] What, if any, types of structural range improvements and grazing systems would be established for the Indian Creek Forage Reserve grazing allotment."). See DR (July 1, at 2 ("Six individual range permit renewal decisions [and] a

forage reserve allotment will be issued under this [PA EA]."). Final Decision, Attachment (BLM Response to Protest). Final Decision at 7-9. Id. at 4; see PA EA at 24. Final Decision at 4. Id. 7.

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stubble height for the West pasture.12 These guidelines and limits are designed to meet or make progress towards meeting rangeland health standards.13

NEC appealed from and petitioned to stay the effect of the Final Decision,14 but its stay request was denied by ALJ Sweitzer because he found NEC had not shown that the balance of harms favored granting a stay in this case. NEC filed a combined Notice of Appeal/Statement of Reasons on July 11, 2016 (NoA/SOR),15 which BLM responded to on August 15, 2016 (Answer).

Standard of Re vie w for Stay Petitions

[1] An Appellant who petitions to stay a final BLM grazing decision "must show sufficient justification" and "demonstrate that a stay should be granted" under each of four criteria: (1) relative harm to the parties if the stay is granted or denied; (2) the likelihood of appellant's success on the merits; (3) the likelihood of immediate and irreparable harm if the stay is not granted; and (4) whether the public interest favors granting of a stay.16 Failure to satisfy any one of these criteria will result in the denial of the stay petition.17 A party appealing from a decision by an Administrative Law Judge that granted or denied a stay petition must demonstrate error in that decision.18

ALJ May Order

In his Stay Order, ALJ Sweitzer denied NEC's stay petition because it did not show that the balance of harms to the parties weighed in favor of granting a stay.19

Based on his review of Appellant's SOR and Stay Petition, ALJ Sweitzer found that many of its claims were unrelated to the Final Decision on appeal and, "[t]o the extent NEC focuses on the alleged harms of the Final Decision, NEC's assertions of harm are based upon factual inaccuracies and allegations of the harms of livestock grazing generally rather than being specific to the circumstances of the Allotment," and that its claims on

Id. at 6. Id. Notice of Appeal, Statement of Reasons (SOR), and Request for Stay (Stay Petition),

filed Apr. 2016. 43 C.F.R. § see 43 C.F.R. § 4.478(c) ("[A]n appeal under paragraph

(a) of this section does not further proceedings before the administrative law judge.").

43 C.F.R. § 4.471(c), (d); see, e.g., Petan Company of Nevada v. BLM, 186 IBLA 81, 91 (2015); W. Wesley Wallace, 156 IBLA 277, 278 (2002).

See, e.g., Blue Mountains Biodiversity Project, 188 IBLA (2016). See Double Anchor Ranches, Inc. v. BLM, 188 IBLA 77, 83 (2016). ALJ Order at 4, 7.

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appeal were not adequately supported by convincing argument or objective proof.20

By contrast, ALJ Sweitzer found persuasive the many benefits of denying a stay that had been identified by BLM: (1) the creation of forage reserves would increase its ability to implement wildlife habitat restoration projects in other areas of the ECMA; (2) the level and the timing of grazing envisioned by BLM may improve the vigor, cover, and reproduction of native plants, which could benefit wildlife and effectively manage weeds and non-native plants; (3) the addition of water sources and a two-pasture rotation scheme would not only spread grazing use more evenly across the Forage Reserve, with less concentration at natural water sources, but also make more water sources available to wildlife; (4) the net reduction of one mile of fencing and use of more wildlife friendly fences will reduce adverse impacts on individual animals and improve their ability to access forage, water, and seasonal habitats; and (5) riparian condition should improve with better livestock distribution, more water source alternatives, and new exclosures around riparian areas.21

ALJ Sweitzer addressed each of NEC's arguments in favor of a stay and against immediate implementation of the Final Decision, found "many of the benefits of the Final Decision are directly related to the range improvements which BLM seeks to implement," and concluded: "The immediate effect of implementing the Final Decision by carrying out the range improvements is likely to be beneficial to range resources."22

Has its Burden to Demonstrate Error in the ALJ Order.

In challenging the ALJ Order, NEC raises many of the same arguments it had earlier raised in the proceedings before ALJ Sweitzer. BLM counters by relying on the rationales stated in the ALJ Order and the fact that since the "Final Decision is more protective of resources, including wildlife, than is current management," the balance of harms tips "decisively" in favor of denying a stay in this case.23 The burden is on NEC to demonstrate error in the ALJ Order,24 but an appellant cannot meet that burden by simply reiterating arguments as if there was no decision addressing those arguments.25

Id. at 4. Id. at 4-5. Id. at 6; see id. at 7 ("This fact supports denial of the stay petition. Before grazing

ever occurs [in the Allotment], NEC will likely have had the opportunity to present its position and receive a ruling on its merits."); 43 C.F.R. § (proceedings before ALJ Sweitzer not suspended during this appeal from his ALJ Order).

Answer at 11; see id. ("NEC will not be harmed if the stay is denied, yet NEC's own interest in wildlife, the public's interest in effective management of public lands, and BLM's ability to effectively manage the ECMA will be harmed if a stay is granted.").

In re North Trail Timber Sale, 169 IBLA 258, 261-62 (2006). See Klamath-Siskiyou Center, 187 IBLA 287, 288 (2016); see also In re

Mill Creek Salvage Timber Sale, 121 IBLA 360, 362 (1991).

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NEC identifies several discrete issues on appeal, which we address separately below:

• BLM will be harmed by its expenditure of public monies to develop forage reserve infrastructure only to expend more public funds to dismantle that infrastructure if NEC ultimately prevails on appeal.26 We are not persuaded that this harm to BLM favors granting a stay in this case, particularly since BLM did not raise it and here argues in favor of denying a stay based on the immediate benefits to BLM and the regulated community from immediately implementing the Final Decision.

• BLM never explored a "no grazing" the proposed periodic use of the Forage Reserve will not eliminate adverse impacts to and reduced stocking rates are needed to address damage from previous grazing.27 Each of these issues goes to the heart of appellant's challenge to the Final Decision and does not identify any harm NEC will suffer if its stay petition is denied. In making these arguments, NEC presents no evidence showing the ALJ erred in determining that the balance of harms weighs against granting a stay. At most, these issues are arguments as to why BLM should have issued a different decision and, as such, may address the likelihood of success criterion under 43 C.F.R. § 4.21(b)(1)(H).

• Immediate implementation of the Final Decision will facilitate vegetation treatments and promote the destruction of wildlife habitat on other

It is true that immediate implementation of infrastructure projects on the Forage Reserve will allow vegetation treatments to proceed on other grazing allotments, but as correctly noted by BLM, ALJ Sweitzer found those treatments were not the subject of or addressed in the Final Decision.29 Moreover, this claim does not demonstrate that ALJ Sweitzer erred in concluding that the balance of harms weighs in favor of denying a stay. To the extent this claim is relevant to how the Allotment is managed as a forage reserve, we find it goes to the likelihood of success criterion, not to the balance of harms addressed by ALJ Sweitzer.

• Implementation of the Final Decision will not improve wildlife habitat. NEC disagrees with BLM's opinion that the timing and level of grazing in the

NoA/SOR 3. 5. Id. at 6. Answer at

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Forage Reserve may improve its condition and benefit both wild and domestic animals. It claims BLM's opinion is "not with any science," any forage consumed by livestock will necessarily reduce what is left for wildlife, and that cattle will compact the soil, which will reduce vegetation growth.30 But as ALJ Sweitzer correctly observed, "NEC has made no showing of how the particular grazing scheme in the Final Decision, as opposed to grazing generally, will lead to the harm it alleges."31 We agree and find that claims of generalized harm from grazing do not show that the balance of harms from implementing a new grazing scheme justifies granting a stay in this case.

• Spring livestock grazing of the Forage Reserve will adversely affect the fawning and calving of big game species. NEC claims BLM was required to gather data to demonstrate that mule deer and elk do not calve and fawn on the Forage Reserve.32 This very same claim was raised to and rejected by ALJ Sweitzer.33 Since NEC provides no data or argument on appeal that demonstrates that these impacts have occurred or will occur in the Forage Reserve, we also reject its claim here.

• Barbed wire fences create a significant hazard to wildlife. NEC acknowledges that ALJ Sweitzer correctly found there will be a net reduction in fencing under the Final Decision, but it claims "there should be a complete removal of barbed wire fences to protect wildlife."34 While this claim may go to a likelihood of success on appeal, it does not show error in the denial of stay based on the relative harm to the parties. Moreover, we agree with ALJ Sweitzer's response and finding that immediate implementation of the Final Decision's "fencing changes, as opposed to the status quo if a stay is granted, are beneficial to wildlife."35

• Grazing of the Forage Reserve will degrade riparian areas. Based on observations made and photographs taken of trampled riparian areas in April 2000 by NEC's Executive Director, NEC fears resumed grazing of the Forage Reserve will cause such conditions to reoccur.36 However, nowhere does it address the steps taken by BLM to minimize that possibility (e.g.,

NoA/SOR at 6-7. ALJ Order at 6. NoA/SOR 9. at 9-11; ALJ Order at 6 ("Montana Fish, Wildlife and Parks has not

designated any of the land as elk calving NoA/SOR 10. ALJ Order 6. NoA/SOR 12.

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added water sources, exclosures, annual monitoring, and only temporary grazing by fewer cattle). NEC has not shown error in the balancing of harms undertaken in the ALJ Order.

• Adding water developments to the Forage Reserve (e.g.. spring and pipelines) will be detrimental to wildlife. NEC concedes

that wildlife will use new water sources authorized by the Final Decision but claims they will be adversely impacted by livestock using those water sources and that dispersing cattle across the Forage Reserve and its pastures will "extend cattle grazing to more areas of the allotment, and thus increase grazing impacts on wildlife."37 As we find this claim to be a generalized assertion of grazing impacts without regard to this Forage Reserve or the grazing scheme identified in the Final Decision, we are not persuaded that it shows the balance of harms favors granting a stay in this case.38

In sum, we agree with BLM's claim that "NEC offers no specific, data-based evidence that merely allowing the limited grazing contemplated by the decision would harm an interest of NEC's [or that such harm] would be greater than the harm to BLM of staying the implementation of the decision."39 We therefore conclude that NEC did not meet its burden to show error in the ALJ Order here on appeal.

NoA/SOR 14. Order at 6 ("NEC has made no showing of how the particular grazing scheme

in the Final Decision, as opposed to grazing generally, will lead to the harm it alleges."). Answer at 9.

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Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, under 43 C.F.R. § 4.1, we affirm Administrative Law Judge Sweitzer's May 31, 2016, Order, denying Appellant's petition for a stay of BLM's Final Decision.

I concur:

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