United States District Court, D. New Mexico
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,
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
D. Tierney Acting United States Attorney Ruth F. Keegan
Assistant United States Attorney and Andrew A. Smith
Environment & Natural Resources Division Attorneys for
MEMORANDUM OPINION AND ORDER
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,  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.
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”). 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.
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.
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).
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
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.
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.
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 . . .
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
Ainsa v. United States, 161 U.S. 208, 223
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
The Events Giving Rise to the Litigation.
much of the former grant land in northern New Mexico is
managed by Federal agencies, primarily [the Forest Service],
” Raish & McSweeney at 5,  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”) 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
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).
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).
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,
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.
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
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 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.
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”) ___ 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.).
The Opening Brief.
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.
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.
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
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.
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).
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)).
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 ...