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Jarita Mesa Livestock Grazing Association v. United States Forest Service

United States District Court, D. New Mexico

October 13, 2017

JARITA MESA LIVESTOCK GRAZING ASSOCIATION; ALAMOSA LIVESTOCK GRAZING ASSOCIATION; SEBEDEO CHACON; THOMAS GRIEGO; DONALD GRIEGO; MICHAEL PENA; JUAN GIRON; JOE GURULE, JR.; FERNANDO GURULE; DIEGO JARAMILLO; LORENZO JARAMILLO; GABRIEL ALDAZ; ARTURO RODARTE; JEFFREY CHACON; GLORIA VALDEZ; JERRY VASQUEZ; CARLOS ORTEGA; LEON ORTEGA; HORACIO MARTINEZ; RONALD MARTINEZ; STEVE CHAVEZ; VANGIE CHAVEZ; ALFONSO CHACON; DANIEL RAEL; JOHN VALDEZ and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RIO ARRIBA, Plaintiffs,
v.
UNITED STATES FOREST SERVICE and DIANA TRUJILLO, in her official and individual capacities, Defendants.

          Richard Rosenstock Richard Rosenstock Esq. and Simeon Herskovits Iris A. Thornton Advocates for Community and Environment Attorneys for the Plaintiffs

          James D. Tierney Acting United States Attorney Ruth F. Keegan Assistant United States Attorney and Andrew A. Smith Environment & Natural Resources Division Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiffs' Amended Opening Brief, filed October 18, 2016 (Doc. 181-1)(“Opening Brief”). The Court held a hearing on January 26, 2017. The primary issues are: (i) whether the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 [] (“NEPA”) requires the Defendant United States Forest Service (“the Forest Service”) to consider the social and economic impacts of a proposed action ___ reducing grazing permits for the Alamosa and Jarita Mesa Grazing Allotments ___ before deciding to take it; and (ii) whether Defendant Diana Trujillo, former El Rito District Ranger, [1] decided to reduce grazing permits for the Alamosa and Jarita Mesa Grazing Districts before considering the Environmental Assessment for Jarita Mesa and Alamosa Grazing Allotments (dated September, 2010)(AR 011351-487)(“EA”). The Court concludes that NEPA requires agencies to consider the environmental impacts of agency action, which may ___ depending on a particular case's circumstances ___ extend to secondary social and economic effects that flow from an action's impact on the physical environment. NEPA does not, however, require agencies to consider social and economic impacts that flow directly from an action and not from the action's effect on the physical environment. Because the Plaintiffs allege that the Defendants failed to consider an agency action's direct social and economic impacts, the Court concludes that the Plaintiffs' allegations do not amount to a NEPA violation. After examining the Administrative Record (“AR”), the Court also concludes that Trujillo did not violate NEPA by deciding to take a particular agency action before considering the EA's findings. Accordingly, the Court will affirm the administrative appeal's decision.

         FACTUAL BACKGROUND

         The historical background surrounding this case predates both the parties before the Court and the Court itself. The individual Plaintiffs raise cattle in northern New Mexico and hold permits that allow their livestock to graze in either the Jarita Mesa Grazing Allotment (“Jarita Mesa Allotment”) or the Alamosa Grazing Allotment (“Alamosa Allotment”), depending on the permit. Complaint for Declaratory and Injunctive Relief ¶ 3, at 2-3, filed January 20, 2012 (Doc. 1)(“Complaint”).[2] The Jarita Mesa Allotment and the Alamosa Allotment are both within the El Rito Ranger District of Carson National Forest. See Complaint ¶ 1, at 2. They are also part of the Vallecitos Federal Sustained Yield Unit. See Complaint ¶ 2, at 2. In the Federally Sustained Yield Forest Management Act of 1944, Pub. L. No. 78-273, 58 Stat. 132 (codified at 16 U.S.C. §§ 583-583i), Congress authorized the Secretary of Agriculture to establish co-operative sustained-yield units like the Vallecitos Federal Sustained Yield Unit in federally owned or administered forest land under the Secretary's jurisdiction. See 16 U.S.C. § 583.

         1. Historical Background.

         The Plaintiffs and their ancestors, however, began grazing livestock on the land that now comprises those Allotments long before the Secretary of Agriculture established the Vallecitos Federal Sustained Yield Unit. See Complaint ¶ 3, at 2-3. The Plaintiffs are the heirs to a “Hispano ranching tradition” that dates back to the colonization of New Mexico by the Spanish in 1598, Carol Raish & Alice M. McSweeney, United States Department of Agriculture, Economic, Social, and Cultural Aspects of Livestock Ranching on the Española and Canjilon Ranger Districts of the Santa Fe and Carson National Forests: A Pilot Study 3 (RMRS-GTR-133, 2003), available at http://doi.org/10.2737/RMRS-GTR-113. The Spanish colonists brought their domesticated plants and animals ___ including cattle, horses, sheep, and goats ___ with them and introduced intensive irrigation agriculture, whereas indigenous farming practices relied on “extensive floodwater farming and soil retention techniques.” Raish & McSweeney at 3. The Spanish were forced out of northern New Mexico by the Pueblo Revolt of 1680, but Don Diego de Vargas reconquered the area twelve years later. See Raish & McSweeney at 3-4. After the reconquest, the new generation of Spanish colonists “generally worked their own land and maintained relatively cordial relations with the Pueblo Indian groups as both used the land in similar ways.” Raish & McSweeney at 4. The modern-day Hispanic villagers and farmers of northern New Mexico are descended from those farmers and ranchers. See Raish & McSweeney at 4.

         The Spanish Crown ___ between 1598 and 1821 ___ and then the Mexican government ___between 1821 and 1848 ___ confirmed the settlers' use and ownership of the land by issuing land grants. See Raish & McSweeney at 4. One particular kind of land grant, the community grant, generated a land-ownership that persists even today. See Raish & McSweeney at 4. Community grants gave individual settlers ownership over a building site ___ for a homestead ___ as well as a small ___ five to ten acres ___ plot of land for farming. See Raish & McSweeney at 4. The lion's share of the land bestowed by a community grant, however, belonged not to any individual settler but, instead, to the settlers as a group, which permitted individuals to “use[] the village grazing lands, timberlands, and community pastures as common lands.” Raish & McSweeney at 4. That allocation of land supported a small population of subsistence farmers and their animals for centuries with only scattered areas of land overuse near villages. See Raish & McSweeney at 4. Commercial sheep production increased while Mexico controlled the area, which in turn increased the amount of land overuse, but

[t]hroughout the 1800s, local Hispanic and Pueblo residents of the nearby valleys used the plateau as common property, bringing their small herds to the plateau for summer grazing. They also harvested from the abundant timber resources for personal use and small-scale business ventures and planted some summer crops. The small size and noncommercial nature of these operations ensured that sufficient grass and forest resources remained for all who needed them.

Raish & McSweeney at 4. “By the time of the United States occupation of New Mexico, over sixty such community grants were in existence.” Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M. L. Rev. 201, 236 (1996).

         The Mexican-American War drastically changed the way land in northern New Mexico was owned and used. When it signed the Treaty of Guadalupe Hidalgo in 1848, the United States agreed to recognize and protect the property rights of the people who resided in the territory that Mexico ceded to the United States. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Mex.-U.S., art. VII, February 2, 1948, 9 Stat. 922 (hereinafter “Treaty of Guadalupe Hidalgo”)(“Mexicans now established in territories previously belonging to Mexico . . . shall be free to continue where they now reside, or to remove at any time to the Mexican republic, retaining the property which they possess in said territories . . . .”); id. (“In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected.”); id. art. IX (“Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican republic [i.e., who shall elect to become United States citizens] . . . shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.”). The devil was, of course, in the details, because the Treaty of Guadalupe Hidalgo did not provide a mechanism for the residents of New Mexico to prove and assert their property rights.

         Congress acted to provide such a mechanism when, in 1854, it established the office of Surveyor-General for New Mexico. See Act of July 22, 1854, ch. 103, § 1, 10 Stat. 308. The Surveyor-General was charged with “ascertain[ing] the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico, ” as well as with “mak[ing] a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo . . . with his decision as to the validity or invalidity of the same.” Act of July 22, 1854 § 8, 10 Stat. at 309. Congress and not the Surveyor-General, however, was to make final decisions regarding the validity of New Mexican land claims. See Act of July 22, 1854 § 8, 10 Stat. at 309.

         The Surveyor-General mechanism, however, was not up to the task of “determining title to some fifteen million square miles of territory.” Klein, 26 N.M. L. Rev. at 225. “The time and finances of the surveyor general, for instance, were vastly inadequate, ” and “congressional action upon the surveyor general's recommendations was notoriously slow.” Klein, 26 N.M. L. Rev. at 225. Congress was hesitant to act on the Surveyor-General's recommendations, because those recommendations raised complex legal issues and dealt with large amounts of land; moreover, there was “a pervasive feeling that many unsettled land claims were fraudulent.” Klein, 26 N.M. L. Rev. at 225 n.186.

         To address the problems associated with the Surveyor-General system, Congress established the Court of Private Land Claims in 1891. See Act of March 8, 1891, ch. 539, 26 Stat. 854 (“1891 Act”). Those who claimed ___ under a Spanish or Mexican grant ___ land within the New Mexico, Arizona, and Utah territories, or within the States of Nevada, Colorado, and Wyoming, needed to petition the Court of Private Land Claims to confirm their claim unless their title “was already complete and perfect.” 1891 Act § 6, 26 Stat. at 856. If a claimant did not petition the Court of Private Land Claims as § 6 required within “two years from the taking effect of this act [of March 8, 1891], ” then their claim was “deemed and taken, in all courts and elsewhere to be abandoned and shall be forever barred.” 1891 Act § 12, 26 Stat. at 859. Claimants whose title “derived from the Spanish or Mexican Government, ” and was “already complete and perfect” when Mexico ceded its territory to the United States were permitted but not required to petition the Court of Private Land Claims to confirm their claim. 1891 Act § 8, 26 Stat. at 857. See Klein, 26 N.M. L. Rev. at 227 (identifying claims already complete and perfect as “those land grants that required [no] additional action by the Spanish or Mexican governments before good title could be conveyed”). But see Botiller v. Dominguez, 130 U.S. 238, 255-56 (1889)(“[N]o title to land in California, dependent upon Spanish or Mexican grants can be of any validity which has not been submitted to and confirmed by the board provided for that purpose . . . .”).

         Congress instructed the Court of Private Land Claims to determine the claimants' property rights “according to the law of nations, ” the Treaty of Guadalupe Hidalgo, and the “laws and ordinances” of either Spain or Mexico, depending on which country made the land grant at issue in a particular case. 1891 Act § 7, 26 Stat. at 857. “[E]quity and the usages and customs of the Spanish and Mexican government” are notably absent from that list, so the Court of Private Land Claims “refused to confirm land grants where the letter of the Mexican [or Spanish] law had not been observed, even if customary practices had been followed.” Klein, 26 N.M. L. Rev. at 236. In the words of Chief Justice Fuller,

under the act of March 3, 1891, it must appear, in order to the confirmation of a grant by the Court of Private Land Claims, not only that the title was lawfully and regularly derived, but that, if the grant were not complete and perfect, the claimant could, by right and not by grace, have demanded that it should be made perfect by the former government, had the territory not been acquired by the United States.

Ainsa v. United States, 161 U.S. 208, 223 (1896)(Fuller, C.J.)

         Strict application of legal ___ as opposed to equitable or customary ___ rules elevated to prime importance the technical issue whether Spanish and Mexican community land grants conveyed legal title to common lands. See Klein, 26 N.M. L. Rev. at 226. Moreover, “under international law, Mexico could cede only sovereign territory that had not been granted previously to individuals.” Klein, 26 N.M. L. Rev. at 236. It follows that,

[i]f the commons belonged to the community, then, post-conquest title would remain in the community. On the other hand, territory retained by the Spanish and Mexican governments for communal use became part of the United States' public domain, even where local communities had relied for generations on the commons for their subsistence.

Klein, 26 N.M. L. Rev at 236. The Supreme Court of the United States tackled that issue in United States v. Sandoval, 167 U.S. 278 (1897)(Fuller, C.J.), and it held that the Spanish and Mexican governments retained legal title to land conveyed by a land grant that was not allocated to any individual settler, because “unallotted lands were subject to disposition by the government.” 167 U.S. at 298. Like other common lands that community land grants conveyed, the land that ranchers in northern New Mexico used to graze their livestock thus passed to the United States as part of the Treaty of Guadalupe Hidalgo. Consequently, the Court of Private Land Claims did not confirm Spanish and Mexican community land grants, at least with respect to common lands. See Sandoval v. United States, 167 U.S. at 298 (“[N]either these settlers nor this town could have demanded the legal title to such lands of the former government, and the Court of Private Land Claims was not empowered to pass the title to either. It is for the political department to deal with the equitable rights involved.”). See also Raish & McSweeney at 5 (“[A]pproximately 24 percent of the acres claimed in New Mexico were confirmed compared to about 73 percent in California.”).

         2. The Events Giving Rise to the Litigation.

         “Today, much of the former grant land in northern New Mexico is managed by Federal agencies, primarily [the Forest Service], ” Raish & McSweeney at 5, [3] and the Plaintiffs' claims arise out of the Forest Service's management of the Alamosa and Jarita Mesa Allotments. The Forest Service issues ten-year permits that allow their holders to graze a specific number of animals on either the Alamosa Allotment or the Jarita Mesa Allotment. See EA at-(AR 011357). As part of determining the number of grazing permits to issue in 2011 and subsequent years, the Forest Service prepared the EA during 2009 and 2010. See EA at-(AR 011352, 011358). The EA evaluated the environmental impacts of three potential, alternative actions that the Forest Service could take. See EA at-(AR 011363-66). Under the first alternative (“Alternative 1”), the Forest Service would cease issuing grazing permits entirely. See EA at-(AR 011363). Council on Environmental Quality (“CEQ”)[4] regulations required the Forest Service to consider this alternative. See 40 C.F.R. § 1507.14(d). See also EA at-(AR 011363). Under the second alternative (“Alternative 2”), the Forest Service would maintain the pre-2011 grazing levels, see EA at-(AR 011364-65), including a “temporary” eighteen percent increase in grazing that was first adopted in 1980, see EA at-(AR 011366). Alternative 2, which the Forest Service designated the “proposed action, ” also incorporated improvements in the Forest Service's land-management practices. See EA at-(AR 011364-65). Under the third alternative (“Alternative 3”), the Forest Service would reduce grazing to pre-1980 levels. See EA at-(AR 011365-66).

         The EA compared the effects of each alternative on sixteen different resources. See EA at-(AR 011368-70). Understandably, the EA focuses on classically “environmental” resources, e.g., “Riparian Areas, Water Quality, and Wetlands, ” EA at-(AR 011512-21), but the EA's sixteen resources include “Economics, ” EA at-(AR 011466-67); “Social, ” EA at-(AR 011467); “Environmental Justice, ” EA at-(AR 011467-68); and “Recreation, ” EA at-(AR 011464-65). The EA did not, however, recommend or adopt any particular alternative. Instead, the EA served to inform agency decision-making by “disclos[ing] the direct, indirect, and cumulative environmental impacts that would result from the implementation of the proposed action and alternatives.” EA at-(AR 011357).

         On September 20, 2010, Trujillo decided to implement Alternative 3, which calls for an eighteen percent grazing reduction. See Decision Notice and Finding of No Significant Impact at-(AR 011488)(dated September 20, 2010)(AR 011488-500)(“DN/FONSI”). The DN/FONSI indicates that she considered the EA in making her decision; see DN/FONSI at-(AR 011488); “fully underst[oo]d the economic impact this decision will have on local livestock operators”; DN/FONSI at-(AR 011493); and decided to reduce grazing to pre-1980 levels, because “[t]he effects of the 18% increase in permitted livestock have now been evaluated and determined to be unsustainable”; DN/FONSI at-(AR 011492). Trujillo also determined that her decision would “not have a significant effect on the human environment[;] therefore an environmental impact statement will not be prepared.” DN/FONSI at-(AR 011494).

         Dissatisfied with Trujillo's decision, the Plaintiffs filed two administrative appeals. See Notice of Appeal for Jarita Mesa Livestock Grazing Association, Alamosa Livestock Grazing Association and Board of County Commissioners of the County of Rio Arriba of the El Rito District EA and FONSI (Appeal #11-03-02-0002-A215)(dated November 29, 2010), filed with the Forest Service November 29, 2010 (AR 011505-19); Letter from Steve Chavez to Diana M. Trujillo, District Ranger (Appeal #11-03-02-0001-A215)(dated October 30, 2010), filed with the Forest Service December 3, 2010 (AR 011503-04). District Ranger John D. Pierson was the Forest Service Appeal Reviewing Officer as to both appeals. See Letter from John D. Pierson to Kendall Clark (dated January 10, 2011)(AR 011525-26, 011539-40)(“Pierson Letter”). Because the Appeals raised similar issues, Pierson consolidated the Appeals and issued a single recommendation. See Pierson Letter at-(AR 011526, 011540). Pierson concluded that Trujillo “conducted a proper and public NEPA process, ” and Pierson “found no violations of law, regulations, or Forest Service policy.” Pierson Letter at-(AR 011526, 011540). Accordingly Pierson recommended that Trujillo's “decisions relating to this appeal be affirmed with respect to all of the appellant's contention.” Pierson Letter at-(AR 011526, 011540). On January 10, 2011, Pierson submitted to Kendall Clark, Clarkson National Forest's Forest Supervisor: (i) his consolidated recommendation, see Pierson Letter at-(AR 011525-26, 011539-40); and (ii) a separate Review and Findings for each appeal, see Review and Findings for Appeal #11-03-02-0001-A215 (undated)(AR 011522-24); Review and Findings for Appeal #11-03-02-0002-A215 (undated)(AR 011530-38). Clark was the Forest Service Appeal Deciding Officer as to both appeals, and, after a detailed review of the record and Pierson's recommendation, Clark decided to affirm Trujillo's decision. See Letter from Kendall Clark to Steve Chavez at-(AR 011521), (dated January 13, 2011)(AR 011520-21); Letter from Kendall Clark to Ted Trujillo at-(AR 011529)(dated January 13, 2011)(AR 011528-29).

         PROCEDURAL HISTORY

         The Plaintiffs filed their Complaint, which contains nine counts against the Forest Service and Trujillo, with the Court on January 20, 2012. See Complaint ¶¶ 111-46, at 47-53. The Court dismissed the Complaint's First Count on September 30, 2013, for failure to exhaust administrative remedies. See Order, filed September 30, 2013 (Doc. 102). See also Amended Memorandum Opinion, 61 F.Supp.3d 1013, filed November 18, 2014 (Doc. 135)(explaining more fully the Court's rationale). That Count alleges that Trujillo retaliated against the Plaintiffs to punish them for exercising their rights under the First Amendment to the Constitution of the United States of America. See Complaint ¶¶ 111-15, at 47-48.

         On September 30, 2015, the Court dismissed Counts Three, Four, Six, Seven, Eight, and Nine, because the Plaintiffs failed to exhaust their administrative remedies. See Memorandum Opinion and Order at 84-93, filed September 30, 2015 (Doc. 168)(“Administrative Exhaustion MOO”). Count Three alleges that the Defendants violated NEPA by failing to develop a proper baseline using the best available science. See Complaint ¶¶ 120-23, at 49. Count Four alleges that the Defendants violated NEPA by failing to consider reducing the wild horse and elk populations on the Alamosa and Jarita Mesa Allotments as an alternative to reducing the number of grazing permits. See Complaint ¶¶ 124-127, at 49-50. Counts Six and Seven allege that the Defendants violated the National Forest Management Act, 16 U.S.C. § 1604. See Complaint ¶¶ 132-40, at 50-52. Count Eight alleges that the Defendants violated the Federally Sustained Yield Forest Management Act of 1944, Pub. L. No. 78-273, 58 Stat. 132 (codified at 16 U.S.C. §§ 583-583i). See Complaint ¶¶ 141-43, at 52. Count Nine alleges that the Defendants violated Forest Service policy. See Complaint ¶ 144-46, at 52-53.

         Only Counts Two and Five, thus, remain before the Court. In Count Two, the Plaintiffs allege that the Defendants violated NEPA, because they did not take a hard look at the social, economic, and environmental justice[5] impacts of their decision to decrease grazing in the Alamosa and Jarita Mesa Allotments. See Complaint ¶¶ 116-19, at 48-49. The Plaintiffs say that the EA's analysis of those impacts was “cursory at best and does not rise to the level of the hard look required under NEPA.” Complaint ¶ 118, at 48. In Count Five, the Plaintiffs allege that Trujillo decided to reduce grazing “long before the Final EA was even issued.” Complaint ¶ 130, at 50. Consequently, according to the Plaintiffs, Trujillo violated regulations requiring her to “consider the alternatives analyzed in an EA before rendering a decision.” Complaint ¶ 129, at 50.

         Although the Plaintiffs style their initial filing as a “Complaint, ” it functions ___ insofar as the Plaintiffs seek judicial review of an administrative action under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-07 (“APA”)[6] ___ as a Petition for Review of Agency Action, because, when the Court reviews an agency action, it treats the case as an appeal that the Federal Rules of Appellate Procedure govern. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994); Wildearth Guardians v. U.S. Forest Serv., 668 F.Supp.2d 1314, 1323 (D.N.M. 2009)(Browning, J.).

         1. The Opening Brief.

         The Plaintiffs filed their Opening Brief on October 18, 2016. Opening Brief at 59. The Plaintiffs argue that the Defendants were obliged to consider the Plaintiffs' social and historical context when determining the amount of grazing to permit on the Alamosa and Jarita Mesa Allotments. See Opening Brief at 44. The Plaintiffs observe that “their families and communities are typical of the small, poor land-based communities in northern New Mexico who historically had rights and access to, and always have depended on, the common property of their land grants that now comprises these two allotments for the pasturage and grazing of their livestock.” Opening Brief at 44-45. The Plaintiffs contend that, to take a hard look at social, cultural, and economic effects of their decision to reduce grazing, the Defendants should have employed research methods much like those employed in the 2003 pilot study conducted by Carol Raish Alicia M. McSweeney. See Opening Brief at 45-46 (citing Raish & McSweeney at 3, 34-44). According to the Plaintiffs, that study and its research methodology offer “both analogous data and a template for how the Forest Service readily could have obtained the kind of information necessary to meaningfully consider the [Defendants' decision's] social, cultural, and economic effects.” Opening Brief at 46. The Plaintiffs state that, instead of conducting that inquiry, the Defendants “summarily declare[d] that reduction of permittees permitted grazing by nearly a fifth would have no significant effect on the Plaintiffs.” Opening Brief at 46. The Plaintiffs admit, however, that “the Defendants were not required to replicate the entire process followed by Raish and McSweeny, ” but the Plaintiffs maintain that the Defendants should have “engage[d] in at least a somewhat genuinely informed and robust evaluation . . . which necessarily would have entailed gathering additional data from the affected permittees and communities.” Opening Brief at 50.

         The Plaintiffs take particular issue with the EA's economic analysis' reliance on “a minimal, cursory, look at cattle commodity prices.” Opening Brief at 47. According to the Plaintiffs,

the Defendants' simplistic subtraction of a small percentage of the overall value of the pre-decision number of cattle permitted to graze on these allotments failed to recognize both: (1) the fact that the elimination of access to these allotments for part of the year would cause the permittees to lose the entire value of the number of cattle no longer permitted because they do not have access to alternative private pasturage for those cattle; and (2) the fact that the loss of those cows would result in significant secondary losses in calf production.

Opening Brief at 47. The Plaintiffs identify another reason why the EA oversimplified its economic analysis by looking solely at commodity prices:

[T]he beef from the cattle they raise is not simply sold as a commodity at auction. It also is shared by Plaintiffs and other permittees with members of their extended families, providing that larger population of local residents with healthy and inexpensive meat on which they depend for a vital part of their diet.

Opening Brief at 32.

         In support of their contention that Trujillo “failed to examine the analysis and findings of the EA prior to making her decision to reduce grazing by 18%, ” Opening Brief at 54, the Plaintiffs observe that, for all their criticism of the EA, it “adopt[ed] Alternative 2 [maintaining pre-2011 grazing levels] as the Proposed Action, ” Opening Brief at 52. The Plaintiffs contend that, by reducing grazing levels, Trujillo thus “disregarded the analysis contained in the EA” and “ma[de] good on her predetermined decision.” Opening Brief at 28. As evidence that Trujillo predetermined her decision, the Plaintiffs point to Trujillo's comments at a January 11, 2010 meeting of the Jarita Mesa Grazing Association, which “suggest[] that regardless of what the EA recommended after two years of study [with Alternative 2] as the proposed action, she would see that Alternative 3, which mandated an 18% reduction in permits, was chosen.” Opening Brief at 22.

         2. The Response.

         On November 11, 2016, the Defendants filed the Federal Defendants' Response Brief on the Merits, filed November 11, 2016 (Doc. 184)(“Response”). The Defendants begin by asserting that they did not violate NEPA by failing to take a hard look at reducing grazing's social and economic impacts. See Response at 26. The Defendants justify that conclusion with two alternative rationales. See Response at 26-28; 30-32.

         First, the Defendants argue that NEPA requires agencies to assess their actions' environmental impacts only, and that the economic and social impacts identified by the Plaintiffs are not environmental impacts. See Response at 26-28. According to the Defendants, economic and social impacts that are caused by an action's effect on the physical environment, “‘the world around us, so to speak, '” qualify as environmental impacts, but economic and social impacts that flow directly from agency action are not. Response at 27-28 (quoting Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983)(Rehnquist, J.)). The Defendants say that the “Plaintiffs' alleged economic and social impacts are not caused by any impact to the physical environment. Instead those alleged impacts flow directly from the 18-percent reduction in livestock numbers proposed in Alternative 3.” Response at 28. Consequently, the Defendants argue, NEPA did not require the Defendants to consider those alleged impacts, nor was the EA required to study them. See Response at 28. That conclusion makes sense, according to the Defendants, because “it is well-settled that the purpose of an EA is to determine whether a proposed agency action will have significant environmental impacts which would trigger the requirement for a detailed [Environmental Impact Statement].” Response at 28 (emphasis in original). The Defendants also observe that CEQ regulations regarding NEPA's implementation state that “‘economic or social effects are not intended by themselves to require preparation of an environmental impact statement.'” Response at 30 (quoting 40 C.F.R. § 1508.14).

         Second, the Defendants argue that, even if NEPA requires analysis of socioeconomic impacts, they satisfied that requirement. See Response at 32. The Defendants contend that ___ contrary to the Plaintiffs' suggestion ___ the Forest Service “did, in fact, consider, assess, and give great weight to the economic and social aspects of the decision to reauthorize livestock grazing on the Alamosa and Jarita Mesa Allotments.” Response at 32. The Defendants highlight Trujillo's conclusion in the DN/FONSI that reducing the amount of grazing “would have more socioeconomic benefits” than maintaining the status quo, because,

[w]hile on the surface, a cancellation of the temporary increase appears to be a negative effect on the permittees, the expected result of improved conditions that support a reliable grazing operation that would be more resilient to changing weather conditions would be beneficial to maintaining into the future the opportunity to continue grazing cattle, as has been so important to the local communities for many generations.

Response at 47 (quoting DN/FONSI at-(AR 011493)).

         The Defendants next assert that Trujillo did not predetermine the NEPA process' outcome. See Response at 48-50. The Defendants argue that predetermination “‘occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis, '” and that the record contains “no evidence to support such a finding by the Court.” Response at 45 (emphasis in original)(quoting Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 714 (10th Cir. 2010)(Holmes, J.)). The Defendants contend that, contrary to the Plaintiffs' suggestion, Trujillo's comments at a January 11, 2010 meeting of the Jarita Mesa Grazing Association do not indicate that Trujillo made a decision before the EA was completed. See Response at 48 (citing Opening Brief at 22). The Defendants support that contention by quoting the meeting notes: “‘[S]he has put the decision on hold while waiting for the NEPA report to be completed, ' although ‘[i]t is looking like the 18% temporary increase of 30 years ago will be rescinded.'” Response at 48 ...


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