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CHAPTER 2 - APPLICABLE LAWS AND REGULATIONS

 

2.1 Introduction and Legal Background

 

In managing livestock grazing on the Monument, BLM must adhere to a complex web of statutory and regulatory directives.  While the these dictates may be intricate, their overarching message is clear – BLM is not to take livestock grazing as a given.  Rather, the agency must determine on a case-by-case basis if grazing is an appropriate use of the land.  In reaching its conclusion, BLM must consider factors ranging from the factual findings in the Proclamation creating the Monument to its determinations that various waters are suitable for designation as Wild and Scenic Rivers.  The agency must also factor in its decision making what this document makes abundantly clear – study after peer-reviewed study has shown that grazing has a significant adverse impact on a host of ecosystem and public land values, including the very values that the Monument was designed to protect.  As this document also establishes, the adverse impacts of grazing extend to values that are protected by other applicable statutes such as the Clean Water Act and the National Historic Preservation Act. 

 

The other underlying legal obligation owed by BLM to the public is that, where the agency allows grazing to occur, the agency must manage this use so that these same Monument and public land values are protected.  The relevant statutes and regulations together require BLM to conserve and restore soils, water, ecosystems, wildlife habitat, and cultural, recreation and scenic resources – and even the range itself.  Where livestock grazing has an unacceptable impact on these values, management of livestock must change accordingly.

 

This document compiles BLM’s own data to show that current grazing practices in the Monument are violating the full spectrum of the agency’s legal duties.  Because of excessive livestock grazing, ecosystems are not properly functioning, the beneficial uses of streams are not being met, cultural resources are being destroyed and delicate soils are being irreparably lost.  In response, this document presents a system of livestock grazing, assessment and monitoring that, if implemented, will allow BLM to comply with its legal obligations – or at least will allow the agency to make great strides in that direction.  A system of grazing that does not recognize the science and the analysis presented here and does not address the significant failures of current grazing practices in the Monument will not met the agency’s legal obligations and will fall hopelessly short of the law.

 

As the Proclamation creating the Monument makes plain, in managing “existing” livestock grazing, BLM must comply with all applicable laws and regulations.  Proclamation No. 6920 (Proclamation) (“existing grazing uses shall continue to be governed by applicable laws and regulations other than this proclamation”).  These applicable laws and regulations include the:  1) Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-84, (FLPMA); 2) FLPMA regulations, such as the Fundamentals of Rangeland Health and Utah Standards and Guidelines for Grazing Administration, 43 C.F.R. § 4180, (Fundamentals and Standards and Guidelines); 3) Clean Water Act, 33 U.S.C. §§ 1251 – 1387, (CWA); 4) Endangered Species Act, 16 U.S.C. §§ 1531-43, (ESA); 5) National Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-87 (WSR Act); and, 6) National Historic Preservation Act, 16 U.S.C. §§ 470-470w-6 (NHPA).  Moreover, BLM must comply with the relevant land use plan – the Grand Staircase-Escalante National Monument Management Plan (Management Plan).  42 U.S.C. §§ 1701(8).

 

Finally, BLM must manage grazing in the Monument in the context of the Monument Proclamation, which identifies conservation of Monument resources as the focus of BLM’s management of this spectacular place.  Monument Proclamation (BLM “shall manage the [M]onument . . . to implement the purposes of this proclamation”).  This duty to protect Monument resources is so central to its management obligations that BLM stated:  “[t]he Proclamation . . . clearly dictates that the [BLM] protect these [Monument] resources.  All other considerations are secondary to that edict.”  Plan at 1.1 (emphasis added).

 

The Antiquities Act, the source of the President’s power to create the Monument, confirms that conserving and safeguarding Monument resources is BLM’s core management duty.  Congress passed the Antiquities Act in order to provide for the “proper care and management of the objects to be protected” by designation of a national monument.  16 U.S.C. § 431.[1]  Therefore, the purpose of the Monument designation to protect geologic, paleontological, archeological, historical and biological resources within its borders combined with the broad preservationist goals of the Antiquities Act establish BLM’s duty to manage activity within the Monument, including livestock grazing, so that the sensitive and valuable Monument resources are not harmed.

 

            This approach is entirely consistent with the provision of the Monument Proclamation directed at livestock grazing, which states:  “[n]othing in this proclamation shall be deemed to affect existing permits or leases for, or levels of, livestock grazing” within the Monument.  Monument Proclamation (emphasis added).  This is because the Proclamation makes clear that “existing grazing uses shall continue to be governed by applicable laws and regulations other than this proclamation.” Id. 

 

First, what this provision means is that the Proclamation’s protective mandate prevents BLM from allowing any non-existing grazing uses to adversely impact Monument resources.  These non-existing uses include any proposed water developments, fencing, and vegetation manipulation projects, as well as changes in levels of grazing, utilization rates, stocking rates and seasons of use.[2]  Currently closed areas may not be open to grazing unless the agency can establish that doing so will not impact sensitive Monument values.  

 

Second, as is spelled out below, the language of the Proclamation simply further defines BLM’s multiple-use obligations under FLPMA.  This statute, the organic legislation governing BLM, requires the agency to manage the public lands, including the Monument, in a manner that provides for “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations . . . .”  These values include “recreation . . . wildlife and fish, and natural, scenic, scientific and historical values.”  43 U.S.C. § 1702(c).  Thus, the Proclamation has confirmed certain factual findings – that the lands comprising the Monument are most valuable for their geological, archeological, paleontological, historic and biological resources.  In designating the Monument, the President also determined that the long-term needs of the American people are best served by protecting these values above all others.  For example, Remarks by the President Establishing the Monument (“[T]oday we will save the Grand Escalante Canyons and the Kaiparowits Plateaus of Utah for our children”).[3]

 

Third, the Proclamation’s edit that Monument values be protected serves to emphasize BLM’s obligations under other applicable statutes and regulations, including the ESA, CWA, NHPA, WSR Act, Fundaments and Standards and Guidelines, and FLPMA’s other protective mandates, such as the prohibition against permanent impairment and undue and unnecessary degradation.  Below we discuss the specific management obligations imposed by these relevant statues and regulations.  Together, these laws constitute a tightly knit web of protective measures that require BLM to manage livestock grazing to conserve and restore the Monument’s biological, ecological and cultural values.

 

 

2.2  FLPMA

 

            As the organic legislation of BLM, FLPMA contains several provisions relevant to livestock grazing on the Monument.  These include:  1) FLPMA’s multiple use provision requiring BLM to balance competing resource values to ensure that the public lands are managed in a manner “that will best meet the present and future needs of the American people,” 43 U.S.C. § 1702(c); National Wildlife Fed’n v. BLM, 140 IBLA 85, 101 (1997); Management Plan at 41-42; 2) FLPMA’s edit that BLM manage resources “without permanent impairment of the productivity of the land and the quality of the environment,” 43 U.S.C. § 1702(c), and “to prevent unnecessary or undue degradation of the lands,” 43 U.S.C. § 1732(b); 3) FLPMA’s mandate that BLM adhere to its land use plans, “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,” and other purposes, 42 U.S.C. §§ 1701(8), 1712, and, in this case, abide by the Management Plan; and, 4) FLPMA’s implementing regulations, especially the Fundamentals and Standards and Guidelines.  43 C.F.R. § 4180.

 

2.2.1. FLPMA Balancing of Competing Resource Values.  FLPMA requires BLM to manage the public lands for multiple use.  This means that the agency must make “the most judicious use of the land for some or all of [the various] resource values . . . [and to] use . . . some land for less than all of the resources . . . .”  43 U.S.C. § 1702(c).  This requires BLM to undertake a decision process “to balance competing resource values to ensure that the public lands are managed in a manner ‘that will best meet the present and future needs of the American people.’”  43 U.S.C. § 1702(c); Comb Wash at 101; Management Plan at 41-42.  BLM’s balancing of values must be reasoned and well-informed.  Therefore, the agency must accumulate sufficient data and consider relevant rigorous science to determine what uses are appropriate in any given area. 

 

Applied to the management of livestock grazing, the analysis must, on a site-specific level, weigh the benefits and harms of grazing to determine if BLM should allow this use in any given area.  Moreover, should the agency conclude that livestock grazing is an appropriate use, BLM must consider multiple-use values in determining how that area should be grazed.  National Wildlife Fed’n v. BLM, No. UT-06-91-1 (DOI, Office of Hearings and Appeals, Hearings Div.) (Dec. 20, 1993) at 25, aff’d Comb Wash (citing 43 U.S.C. §§ 1701(a)(8), 1702(c)).  Therefore, in establishing grazing thresholds such as stocking rates and utilization levels, BLM is required to abide by “FLPMA’s mandate [that it] protect the full spectrum of environmental, ecological, cultural, and recreational values.”  Id.

 

2.2.2 FLPMA’s Multiple Use Mandate.  FLPMA, BLM’s organic act, requires the agency to manage public lands “under principles of multiple use and sustained yield.”  43 U.S.C. § 1732(a).  FLPMA defines “multiple use” as:

 

the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; . . . a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historic values; . . .the use of some land for less than all of the resources; . . . without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or greatest unit production. 43 U.S.C. § 1702(c). 

By requiring BLM to meet the needs of the American people, FLPMA focuses on fulfilling national, rather than local interests.  Id.  Moreover, FLPMA requires that BLM management include “the use of some land for less than all of the resources . . . .”  Id.  This means that on some lands certain uses must be prohibited in the name of protecting resources harmed by those uses.  To determine where management “for less than all of the resources” is appropriate, BLM must consider “the relative values of the resources . . . .”  Id.  Thus, BLM must assess the value, to the American people, of each resource in the Monument, weigh this value against the value of the resource uses that may cause harm to or compete with that resource, and to determine which “combination of uses” are appropriate in any given area. 

 

Although FLPMA does not require economic cost/benefit analysis, it does require that the BLM rationally “balance competing resource values to ensure that public lands are managed in the manner ‘that will best meet the present and future needs of the American people.’”  Comb Wash, 140 IBLA at 101.  To this end, the agency must investigate and analyze the condition of the area’s “‘varied resources and the impacts of grazing upon those resources.’”  Comb Wash, 140 IBLA at 101 (quoting National Wildlife Fed’n v. BLM, No. UT-06-91-1 at 25). 

 

FLPMA also identifies the resources BLM must consider.  It’s multiple-use provision cites “recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historic values” as those values BLM is required to incorporate into its examination of harms and benefits.  Elsewhere FLPMA establishes the policy that “public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.”  43 USC § 1701(a)(8).  Thus, what is clear is that livestock is one among many uses and values that BLM must consider in making decisions about grazing management.

           

Broken down further, FLPMA requires BLM to determine the condition of and consider the impacts of grazing on the components that makeup the Congressionally designated multiple-use values.  Thus, in weighing the benefits and harms of grazing under FLPMA, BLM must consider the effects of grazing on loss of native vegetation, soil erosion, reduced water infiltration and increased surface runoff, trampling of streambanks, degradation of stream channels, trampling and contamination of archaeological sites, degradation of wildlife habitat, scenic and recreational values, and income.  See National Wildlife Fed’n v. BLM, UT-06-91-1 at 24-25.  Ultimately, the question BLM must answer is whether the benefits of grazing an area outweigh the harms caused by livestock to other resource values.  Moreover, if, after the requisite analysis, BLM determines grazing is an appropriate use of an area, the agency must consider the harms and benefits of grazing in determining stocking rates, or the level at which grazing can occur.  

 

Finally, if the agency determines that grazing is an appropriate use of an area, its consideration of multiple use values does not end.  FLPMA further obligates BLM to consider multiple use in determining how that area should be grazed.  National Wildlife Fed’n v. BLM, No. UT-06-91-1 (DOI, Office of Hearings and Appeals, Hearings Div.) (Dec. 20, 1993) at 25, aff’d Comb Wash (citing 43 U.S.C. §§ 1701(a)(8), 1702(c)).  Therefore, in managing livestock, such as establishing stocking rates and utilization levels, BLM is required to “protect the full spectrum of environmental, ecological, cultural, and recreational values.”  Id.  This means that BLM must take into consideration, when determining the details of grazing management, the impacts of grazing on scenery, water quality, cultural resources – values that are not measured by forage utilization measurements.  Id. (“BLM’s failure to adequately consider many factors other than range utilization and trend data when setting stocking rates violates FLPMA’s mandate to protect the full-spectrum of environmental, ecological, cultural, and recreational values.”) Therefore, in setting a stocking rate, BLM must base its grazing management on more than forage utilization, and BLM must monitor grazing impacts to assess harms to multiple use resources by assessing more than utilization levels or stubble heights.  By the same token, assessing for compliance with rangeland health standards does not reflect impacts to resource values such as recreation, scenic and cultural resources, and again, grazing management cannot be based on or expressed and monitored solely in terms of rangeland health standards.  

 

2.2.2.1  The Proclamation and the Management Plan Relative to FLPMA Multiple Use Mandate.  The Proclamation and the Management Plan tip FLPMA balancing in favor of the conservation of particular resources.  Proclamation No. 6920.   As the BLM acknowledges, the Monument was created by the President of the United States “to protect a spectacular array of scientific, historic, biological, paleontological, and archaeological objects” there.  Management Plan at 3. Indeed, “[a]ll other considerations are secondary to that edict.”  Id.  Therefore, as the Management Plan reflects, what is in the best interests of the American people has already been determined: the protection of these sensitive resources.  Furthermore, the Proclamation and the Management Plan have determined the relative value of the resources – scientific, historic, biological, paleontological and archaeological resources are, in the Monument, always more valuable than other resources.  As a result, BLM, guided by the President, has done much of the work that FLPMA requires, and left for the present analysis only one determination:  how to manage grazing so that it has no adverse impacts on Monument resources.  Where adverse impacts occur, grazing practices must be altered to eliminate these impacts.  If the impacts cannot be eliminated, FLPMA and the Management Plan require that grazing be prohibited.

 

That the protection of the scientific, historic, biological, paleontological and archaeological resources in the Monument is in the best interests of the American people does not conflict with the provision of the Proclamation relating to livestock grazing.  In addition to stressing the importance of Monument values, the Proclamation states that “[n]othing in this proclamation shall be deemed to affect existing permits or leases for, or levels of, livestock grazing” within the Monument. Proclamation No. 6920 (emphasis added).  “[E]xisting grazing uses shall continue to be governed by applicable laws and regulations other than this proclamation.” Id. 

 

FLPMA is plainly an applicable law that governs livestock grazing on the Monument.  FLPMA requires BLM to weigh competing resource values to ensure management of the Monument is in the best interests of the American people.  What best serves these interests has already been determined in the Management Plan – the conservation and protection of Monument values.  Based on this mandate, BLM must regulate grazing to accomplish the Monument’s protective goals.  Thus, BLM’s authority and duty to regulate grazing practices to protect Monument resources exists independently of the Proclamation.  The Proclamation and the Management Plan merely inform the FLPMA balancing BLM must undertake, and tip the scales decidedly in favor of the protection of Monument values from adverse impacts from grazing.

 

2.2.2.2 Fundamentals of Rangeland Health and Standards and Guidelines Relative to FLPMA Multiple Use Mandate.  Compliance with the Fundamentals of Rangeland Health and the Standards and Guidelines does not alleviate BLM of the duty to undertake FLMPA analysis.  Moreover, the agency cannot suggest that compliance with these regulations means that livestock grazing is not having an unacceptable effect on FLPMA’s multiple-use values.

 

The Fundamentals of Rangeland Health require that watersheds be “in, or making significant progress toward, properly functional physical condition.”  43 C.F.R. 4180.1 (a).  “Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, [must be] maintained, or there [must be] significant progress toward their attainment.”  43 C.F.R. 4180.1(b).  Habitats of special status species must be restored or maintained, or there must be significant progress toward restoration.  43 C.F.R. 4180.1(d).  Utah’s Standards and Guidelines provide methods for implementing these requirements.  See 43 C.F.R. 4180.2(b).

 

These regulatory requirements, however, are insufficient, standing alone, to provide for the balancing of values that is required by law.  Initially, the Fundamentals and Standards and Guidelines do not even consider multiple use values such as recreation, scenic, and cultural resources.  Nor do the Fundamentals and Standards and Guidelines undertake any balancing between the benefits and harms of grazing relative to these values.

 

Even with regard to ecological multiple use values, compliance with the Fundamentals and Standards and Guidelines does not meet the requirements of FLPMA’s balancing requirement.  First, instances where the desired resource conditions are not being met and livestock grazing is a significant factor in the lack of appropriate conditions, suggest strongly that grazing is causing inappropriate levels of harm to the ecological multiple-use values including watershed, wildlife, fish, ecological, environmental, and water resources. 

 

Second, even where BLM believes grazing management changes could be made or have been made to make progress toward achieving the desired conditions, the ailing condition of the ecological processes is strong evidence that grazing has an undue negative impact on ecological multiple-use values in the particular area.  Moreover, even if the BLM could guarantee that the ecological resources would recover, the time this takes, or the changes to grazing management required – such as expensive range development projects – could tip the FLPMA balancing in favor of closing an area to grazing. 

 

Finally, even if BLM could guarantee that grazing and properly functioning ecological conditions could co-exist, FLPMA balancing could reveal that grazing is not is the best interests of the American people.  This is because a given area could have particularly important ecological values and the interests of the American people might best be served by maintaining this area in a state that exceeds “properly functioning” condition.[4]  For example, an area could be Critical Habitat as defined by the Endangered Species Act.  The area could be the only in the Monument that provides habitat for a particular species.  Or, the area could support a combination of factors – such as the ecological and cultural resource values.  In each of these cases, the harms caused by grazing – even though they do not bring the area into the realm of non-functioning – may not be acceptable given the high value to the American people of leaving the area ungrazed. 

 

 

            Chapter 4 describes in detail the “decision process” BLM must undertake to fulfill its multiple use obligations under NEPA.  This process necessarily requires BLM to assign relative values to various resource uses applicable to the Monument.  These almost necessarily vary on a site specific basis.  BLM must also determine if an area is capable of sustaining livestock grazing – does it have access to water, stable soils, sufficient forage and other qualities that enable it to sustain livestock grazing.  If an area is capable of sustaining livestock use, BLM must then, based on the relative value of various uses, determine the best combination of uses to allow in any given area.  This analysis must consider that, in the Monument, various values designated in the Proclamation and Management Plan are of particularly high value to the American people.  The analysis must also recognize that livestock grazing, particularly as it is currently practiced in the Monument, often has significant adverse impact on various Monument resources including soils and soil crusts, vegetation, wildlife habitat, water quality, and recreational, scenic, cultural and historic resources.  Finally, where grazing is appropriate, this same weighing process and consideration of multiple use values must inform management decisions such as stocking rates and utilization levels.

 

2.2.3. Preventing Permanent Impairment and Unnecessary and Undue Degradation. FLPMA requires BLM to manage the public lands “without permanent impairment” to the productivity and the quality of the environment and in a manner that prevents “unnecessary or undue degradation.”  43 U.S.C. §§1701(7), 1732(a) (emphasis added).  Moreover, these substantive FLPMA standards animate the procedural requirement of the National Environmental Policy Act to consider all alternatives and take a “hard look” at those alternatives.  Thus, BLM’s consideration of alternatives must include those that prevent permanent impairment and prevent unnecessary orundue degradation of the public lands. See, e.g. Kendall’s Concerned Area Residents, 129 IBLA 130, 140-41 (1994); Nez Perce Tribal Exec. Comm., 120 IBLA 34, 36 (1991) (both discussing interplay of FLPMA’s multiple use mandate with NEPA analysis). 

 

This document addresses BLM’s obligations under this FLPMA provision in two ways.  First, it establishes that in several situations, current grazing practices in the Monument are permanently impairing productivity and the environment.  For example, resource damage such as soil erosion and the crushing of biological crusts constitute permanent impairment to the resource.  Grazing of marginal areas which cannot recover from livestock use also violates this protective mandate.  Damage to and destruction of cultural resources is permanent.  Repeated conflicts with recreational values and damage and destruction to the scenic resource also constitutes permanent impairment.  Moreover, by allowing inappropriately high utilization levels, which are often also not properly adjusted for season of use, and by allowing stocking rates that are permanently impairing the Monument’s resources, BLM is also impermissibly allow permanent impairment of the resources under its management.[5]

 

Second, the analysis and management proposals provided in this guidance document show that the damage livestock grazing perpetuates on Monument resources is both unnecessary and undue.  This is because, where grazing is appropriate, BLM can and must take steps such as reducing utilization and stocking rates, changing seasons of use, and closing areas to grazing to avoid degradation to the land and permanent impairment of the environment and the productivity of the land. 

 

2.2.4. Adherence to the Monument Plan.  Under FLPMA, BLM also must develop and adhere to “land use plans” governing administration of grazing and other activities upon BLM lands.  This management must occur “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,” and other purposes.  42 U.S.C. §§ 1701(8), 1712; 43 CFR Part 1600.  All resource management decisions made by BLM, including issuance of grazing permits, must conform to the approved land use plan.  43 U.S.C. § 1712; 43 C.F.R. § 1610.5-3(a) (“All future resource management authorizations and actions, as well as budget or other action proposals to higher levels in the bureau of land management and Department, and subsequent more detailed or specific planning, shall conform to the approved plan”). 

 

            Thus, BLM must administer grazing on the Monument in keeping with the Management Plan.  Because the Management Plan is appropriately focused on protecting Monument resources, resources which are highly vulnerable to damage from livestock grazing, the Management Plan requires BLM to change current grazing practices significantly to protect the Monument’s soils, native vegetation and wildlife, cultural resources and waters adequately.  For example, the Management Plan establishes specific objectives for the management of fish and wildlife. Because BLM must manage all activities on the Monument to achieve these objectives for fish and wildlife, the agency must determine, as part of the grazing decision process, how it can meet these objectives if and when it allows livestock use to occur in any given area.  Below, we outline the specific Management Plan objectives (pertaining to fish and wildlife, streams and riparian areas, soils, vegetation, and water) that the BLM must adhere to as grazing management decisions are made in the upcoming Grazing DEIS:

 

2.2.5.1 GSENM Management Plan objectives for fish and wildlife.  While many of the elements of the Management Plan speak for themselves relative to livestock grazing, such as those that require Section 7 consultation, the relationship between grazing and other objectives and decisions is more subtle.  For example, in relation to the following objectives of the Management Plan, BLM must consider and analyze in the Grazing DEIS:

 

FW-3         Any existing TES species recovery and/or management plans relative to the Monument need to be described, and consistency with these recovery/ management plans must be considered in grazing decisions.

 

FW-4         Grazing decision should emphasize restoring those riparian areas that fail to meet rangeland health standards.  Riparian areas constitute some of the most critical habitats for native species, both aquatic and terrestrial.

 

FW-5         Preserving the integrity of wildlife corridors, migration routes, and access to key forage, nesting, and spawning areas may be incompatible with facilities constructed and habitat manipulation conducted for livestock grazing.  This decision requires BLM to identify key forage, nesting, and spawning areas in areas that have “developments.”  Past chainings and water developments clearly are among the list of developments that should be considered in this DEIS. 

 

SSA-1       The BLM must consider special species in the Monument in the context of livestock grazing.  Domestic livestock grazing in riparian areas has lead to most riparian areas failing to meet habitat needs for raptors.  In upland areas, substantial loss of plant community diversity and biomass has lead to long-term decline in prey populations for a number of raptors listed as special species. 

 

SSA-21     BLM must designate protected “activity centers” of Mexican spotted owls in accordance with the spotted owl recovery plan.  BLM should report these designations and manage grazing to ensure that existing owl habitat provides for the needs of this species, especially the need for an adequate prey supply.  BLM must determine the required prey density needed for owl recovery and assess whether livestock grazing will allow for adequate prey supplies. Grazing decisions must emphasize restoring habitat function for the owl.

 

SSA-22     An inventory for the southwestern willow flycatcher is underway in GSNM.  BLM should report the findings of this inventory and identify those habitats that meet and do not meet the flycatcher’s needs.  Grazing, in particular, can impact this habitat.  Grazing decisions must emphasize restoring habitat function for the flycatcher.

 

2.2.5.2 GSENM Management Plan objectives for streams and riparian Areas.  Similarly, the Management Plan establishes management objectives for riparian areas which must be reflected in grazing management practices and decisions:   Specifically, BLM is to manage “riparian areas so as to maintain or restore them to properly functioning condition and ensure that stream channel morphology and functions are appropriate to the local soil type, climate, and land form.”  Again, many of the decisions implemented to achieve these objectives are self-explanatory.  However, additional considerations include:

 

SSA-9       For those allotments with perennial streams, BLM is required to assess that stream’s natural flow and whether any past or proposed grazing use or water development will prevent attainment of natural flows. 

 

RIPA-3      BLM is required to identify those actions that are needed to ensure impaired riparian areas are making significant progress toward properly functioning condition, and to monitor the improvement of riparian health in these areas.  The Grazing DEIS must report the recovery actions that have been implemented, detail the monitoring that is in place, and describe how grazing is not conflicting with recovery in these areas.

 

RIPA-6      Grazing decisions should describe how future permitted grazing use will comply with the need to remove exotic riparian plants and allow for full recovery of the invaded habitat.

 

2.2.5.3 GSENM Management Plan objectives for soils.  In addressing management of uses to protect soils, BLM has committed to protection of a key ecological component rarely considered in grazing decisions in the past.  However, the Management Plan, coupled with the agency’s statutory and regulatory obligations, require that BLM take this issue head on.  Specifically, BLM must manage uses to prevent damage to “soil resources” and ensure the health and distribution of biological soil crusts is “maintained or improved.”  Management Plan at 21.   Moreover, the agency must consider, relative to the decisions implementing this objective:

 

SOIL-1      Perhaps the most widespread, single damaging activity to soils is livestock grazing as traditionally practiced.  In this DEIS, BLM must identify where biological crusts have been damaged by grazing practices, and for those areas with damaged crusts, the grazing decision should include a recovery program.

 

2.2.5.4 GSENM Management Plan objectives for vegetation.  Recognizing the importance of this Monument resource, the GSENM Management Plan requires BLM to “achieve a natural range of native plant associations.  Management activities will not be allowed to significantly shift the makeup of these associations, disrupt their normal population dynamics, or disrupt the normal progression of these associations.”  While many provisions of the Management Plan relative to vegetation are straight forward, this does not make them any less important to sound decision-making and appropriate management of livestock grazing.  Other considerations include:

 

VEG-3       Livestock grazing, as has traditionally been practiced, is perhaps the most all-encompassing surface disturbing activity found in the monument.  Clearly, the grazing DEIS will need to assess the impacts of livestock grazing to vegetation.

 

SSP-2        Grazing permit operators often drive cross-country as part of their work to maintain grazing facilities, distribute supplemental food and water, and manage livestock.  These actions impact the vegetative community, especially special status plant communities.

 

RHG-9       BLM has made an effort to identify relict plant communities, which are often important as ecological reference areas.  Unfortunately, most grazing allotments lack suitable, ungrazed representative reference areas – and thus - relict plant communities. 

 

NW-7        To prevent the introduction of noxious weeds, BLM requires certified weed free hay and the cleaning of machinery used outside the Monument.  This should include livestock operator equipment driven in the monument.  Many of the trucks, trailers, and ATVs that grazing operators use also operate outside the Monument.  Special stipulations should be attached to each grazing permit.

 

NW-8        Monitoring plots are to be established to assess the effectiveness of noxious weed control.  As part of the grazing management program, these plots should assess the impact that continued grazing has on noxious weed control.  Grazing exclosures should be a part of this monitoring program.

 

SEED-1     After fires, a number of factors influence the need to reseed and its potential success.  In places where fire has recently occurred, the grazing EIS should describe the application of these factors when making a grazing management decision.

 

REV-1       Restoration and revegetation also involves a number of factors.  BLM should consider the kind of livestock grazing that can occur while still allowing recovery goals to be met.

 

2.2.5.5  GSENM Management Plan objectives for water.  The Management Plan requires BLM to “ensure that the appropriate quality and quantity of water resources are available for the proper care and management of the objects of the Monument,” and undertake or sponsor research “to improve management of water.”   More specifically, the Management Plan specifies:

 

WAT-1      “New water development for other uses could be permitted for . . better distribution of livestock when deemed to have an overall beneficial effect on Monument resources . . .”  

 

This provision has several ramifications.  First, as suggested above, because any new water development is not an existing grazing use, any such project is subject to the Proclamation’s substantive requirement that protection of Monument resources prevail over any other resource decision.[6]  Given that upland soils and native vegetation are primary Monument values, it would be difficult, if not impossible to justify subjecting more upland areas to grazing when this use will damage these values. 

 

Second, this provision requires BLM to make two findings before approving a water development – that the project results in better distribution of livestock and that it will benefit the land.  This former finding must be documented, rather than based on conjecture.  The second finding would be again be difficult to support.  Relevant studies show that the supposed redistribution of grazing through water development has not benefited the land.  Rather, the construction of water developments in arid and semiarid areas has led to the degradation of upland soils, vegetation, wildlife habitat, scenery, and aesthetic qualities (Feller, 1997, McAuliffe 1997). Thus, the Proclamation, Management Plan and the adverse impact of new water developments combined to suggest that new developments cannot be justified in the Monument.  Therefore, grazing practices in the Monument should not rely on this management tool.  Moreover, before any such project is approved, BLM should analyze past water distribution projects and assess their impact on the soil and plant community. 

           

2.2.5.6 Compliance with the Management Plan. Finally, this document establishes that current grazing practices are seriously out of line with the Management Plan.  At the same time, the analysis and management recommendations outlined in this guidance document show that only in adopting the grazing practices and analyses presented, can BLM comply with the obligations set forth in the Management Plan. 

 

 

2.3  Fundamentals and Standards and Guidelines

 

The Fundamentals of Rangeland Health and Standards and Guidelines, 43 CFR § 4180, are binding regulations which require the BLM to “promote healthy sustainable rangeland ecosystems,” and ensure these ecosystem components are “properly functioning.” 43 CFR § 4100.0-2.  By adhering to the regulations, the BLM will both protect and restore ecosystem values on grazed public lands and provide for the “sustainability of the western livestock industry and communities that are dependent upon productive, healthy public rangelands.”  Id

 

            The Fundamentals of Rangeland Health direct BLM to manage livestock grazing so that:

 

“[W]ater quality complies with State water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives such as meeting wildlife needs,” 43 C.F.R § 4180.1(c);

 

“[E]cological processes. . . are maintained, or there is significant progress toward their attainment, in order to support healthy biotic populations and communities,”  43 C.F.R. § 4180.1(b);

 

Watersheds are in, or be making significant progress toward, “properly functioning physical condition, including their upland, riparian-wetland, and aquatic components,” 43 C.F.R. § 4180.1(a); and

 

Habitats must be “restored or maintained” for endangered, threatened and other special status species.  43 C.F.R. § 4180.1(d).

 

            Pursuant to 43 C.F.R. § 4180.2, Standards and Guidelines have been developed for BLM lands in Utah to implement the Fundamentals.  In addition to the Fundamentals, the Utah Standards and Guidelines require BLM to consider “the land and its living and nonliving components (soil, air, water, flora, and fauna) . . . first.”   “Only when ecosystems are function properly can the consumptive, economic, political, and spiritual needs of [people] be attained in a sustainable way.”  The Standards and Guidelines further require that certain conditions reflective of healthy ecosystems be present, such as:  1) sufficient cover and litter to protect soils; 2) the Desired Plant Community; 3) appropriate [f]requency, diversity, density, age classes and productivity of desired native species; and, 4) full support of the beneficial uses of relevant waters.  To this end, BLM must undertake specific management actions, such as:  1) [m]aintain viable and diverse populations of plants and animals appropriate for the site; 2) “[p]rovide or improve . . . habitat for Threatened or Endangered Species;” 3)  “[a]void grazing conflicts with other species that have the potential of becoming protected or special status species;” and, 4) consider grazing impacts on the quality of the outdoor experience.

 

            BLM’s regulations further mandate that grazing permits “shall incorporate terms and conditions to ensure conformance” with these rangeland health fundamentals.  43 C.F.R. § 4130.3-1(c).  Additionally, the regulations provide that the “authorized officer shall take appropriate action . . . as soon as practicable, but not later than the start of the next grazing year upon determining that existing grazing management needs to be modified to ensure” that these rangeland health fundamentals are satisfied.  43 C.F.R. § 4180.1 (emphasis added); 43 C.F.R. § 4180.2(c); Idaho Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999) (43 C.F.R. § 4180.2(c) requires concrete changes to grazing practices where BLM makes triggering determination). 

 

            Thus, BLM must manage grazing so that this use does not interfere with healthy ecosystems.  The management prescriptions in this document focus on how BLM can achieve this mandate.  Section 4.1 of Chapter 4 of this guidance document specifies how BLM should make assessments to evaluate compliance with the Fundamentals and Standards and Guidelines.  Appendix A details how the agency should determine whether grazing is the cause of non-compliance with the regulations, thereby triggering corrective management action pursuant to 43 C.F.R. § 4180.1 and 43 C.F.R. § 4180.2(c).  Chapter 3 and Appendix A point to reams of studies and analyses that show the adverse impacts grazing has on the very ecosystem values that the Fundamentals and Standards and Guidelines are designed to protect.  Chapter 3, Sections 3.1 and 3.2 show that many of the ecosystem values in the Monument are seriously ailing under present grazing management.  Finally, Chapter 4 and Appendix B establishes how BLM can begin the process of complying with the Fundamentals and Standards and Guidelines by reducing stocking rates, reducing utilization levels, closing riparian areas to livestock use, changing seasons of use to avoid grazing in the growing season and otherwise implementing the strategies presented in this document to fulfill its obligation to put ecosystem health first.

 

 

2.4  Clean Water Act

 

The goal of the Clean Water Act (CWA) is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”   To this end, the CWA requires federal agencies to comply with state water quality standards.  33 USC §§ 1323, 1313.  Moreover, FLPMA requires land use plans to provide for compliance with applicable pollution control laws, including state water quality standards.  43 USC  1712 (c)(8).[7]

 

In 1987, Section 319 was added to the CWA to provide additional emphasis on preventing and correcting nonpoint source pollution problems.  In response, the State of Utah has incorporated narrative biological criteria into its state water quality standards which state that:

 

[I]t shall be unlawful . . . to discharge or place any waste or other substance in such a way as will be or may become offensive such as unnatural deposits . . . or cause conditions which produce undesirable aquatic life . . . or result in concentrations or combinations of substances which produce undesirable physiological responses in desirable resident fish, or other desirable aquatic life . . . . Utah Admin. Code R317-2-7.2 (narrative standards).

 

The State of Utah has designated several stream segments within the Monument as Category 1 High Quality Waters which are thereby subject to an enhanced anti-degradation standard.  Utah Admin. Code R317-2-3.2.  These segments, “determined by the [State] to be of exceptional recreational or ecological significance” include the main drainage and the tributaries of:  1) Calf Creek; 2) Sand Creek; 3) Mamie Creek; and 4) Deer Creek. Utah Admin. Code R317-2-12.  State standards require the maintenance (or anti-degradation) of the existing high quality of these waters by, inter alia, controlling nonpoint sources of waste “to the extent feasible through implementation of best management practices or regulatory programs.”  Utah Admin. Code R317-2-3.2. 

 

            As the Management Plan indicates, BLM has undertaken a water quality monitoring program at 60 sites in the Monument “to ensure that Sate and Federal water quality standards are met.”  Management Plan at 35.  The results of this monitoring plan must be incorporated into grazing management on the Monument.  Specifically, as this document shows, science has established an indisputable connection between livestock grazing and increased erosion and therefore sediment loading in streams.  At the same time, livestock are responsible for the denuding of stream banks, leading to increased temperatures in the water and for depositing fecal matter directly into the stream, thereby increasing levels of fecal coliform and nutrients.  Given this link, BLM must respond where there are elevated temperatures, sediments and/or levels of fecal coliform by undertaking the prescriptions described in Chapter 4, Section 4.7.1 to reduce erosion and increase appropriate vegetation in riparian areas.

 

Of note is that the Department of Water Quality (DWQ) is no longer listing waters as impaired based on increased levels of sediments.  This is because DWQ has not determined appropriate or inappropriate sediment levels for Utah’s waters.  Because a stream may not be listed as impaired for sediments does not mean that it is meeting its beneficial uses and does not mean that it is meeting Utah’s water quality standards. 

 

Rather, as the Environmental Protection Agency (EPA) has confirmed, excessive sediments impair a water’s beneficial uses:

 

[e]xcessive sediments deposited on stream and lake bottoms can choke spawning gravels (reducing survival and growth rates), impair fish food sources, fill in rearing pools (reducing cover from prey and thermal refugia), and reduce habitat complexity in stream channels. Excessive suspended sediments can make it more difficult for fish to find prey and at high levels can cause direct physical harm, such as clogged gills.  Protocol for Developing Sediment TMDLs, EPA 1999 (EPA 841-B-99-004). 

 

The above report goes on to state:

 

Thus, whether pursuant to narrative or numerical standards, BLM must evaluate all waters to determine whether aquatic life is being impaired by sediments.  This is particularly true of the Escalante and Paria rivers and Calf Creek where excessive levels of sediment have long been a problem.  See Management Plan at 34.  If sediment levels are not sufficiently indicative of a failure to meet state water quality standards, assessments should include benthic macroinvertebrate data, diurnal dissolved oxygen data, habitat quality evaluations, and fisheries data.  Only this way can BLM actually determine if the waters in the Monument are meeting their beneficial uses.

 

 

2.5  Endangered Species Act and Wildlife Protection

 

The ESA 1) requires all federal agencies to use their authority to conserve endangered and threatened species, 16 U.S.C. §§ 1531(c)(2), 1536(a)(1); 2) requires each federal agency to "insure" that any action it authorizes is not likely "to jeopardize the continued existence of any endangered species or threatened species,"  Id. § 1536(a)(2);  3) requires federal agencies to consult with, in this case, the Fish and Wildlife Service (FWS),  before deciding to carry out or authorize any action that might have an effect on these species; 4) and prohibits federal or state agencies from taking endangered or threatened species.  16 U.S.C. § 1538; 4180 C.F.R. § 4180.1 (d) (BLM must ensure that “[h]abitats are, or are making significant progress toward being, restored or maintained for Federal threatened and endangered species . . . .); Utah Standards and Guidelines, Standard 3 (same).

 

Again, this document is replete with references to peer-reviewed science that establishes the significant adverse impact that livestock grazing has on wildlife habitat generally, and the southwestern willow flycatcher and Mexican spotted owl specifically.[8]  Where BLM is obligated to advance the recovery of listed and special status species, this adverse impact is inappropriate.  Thus, BLM is required to consider the presence of special status species or their habitat and the harm caused to this habitat by livestock in making its determination of whether an area should be grazed.  If the BLM determines grazing is appropriate, management of livestock should guarantee that habitat for these species be of high quality. 

 

            Moreover, this duty to “manage uses to prevent damage to fish and wildlife species and their habitats is echoed in the Management Plan.  Management Plan at 12.  Moreover, the plan obligates BLM to “place a priority on protecting riparian and water resources as they relate to fish and wildlife . . . .”  Id.  BLM has also promised that grazing management changes in the Monument “will provide protection for listed and sensitive species . . . .”  Id. at 14.

 

            At the same time, BLM’s own data confirms that many wildlife habitats in the Monument are in ailing condition.  Ecosystem values are not properly functioning or not functioning at all.  Utilization and stocking levels are often so high that the vegetation that provides cover and forage for wildlife is close to non-existent. 

 

Thus, to meet its obligations to protect wildlife, BLM must significantly alter current grazing management practices.  This means that the agency must undertake the assessments and methodology presented in this document and incorporate the science presented here to ensure that the Monument’s wildlife will no longer exist in peril under the influences of excessive livestock use.

 

 

2.6  National Wild and Scenic Rivers Act

 

In creating the National Wild and Scenic River System, Congress declared that:

 

selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.

 

To implement the WSR Act, the BLM manual requires the agency to manage eligible rivers, tentatively classified as wild, scenic, and/or recreational so that “activities and authorized uses shall not be allowed to adversely affect either eligibility or the tentative classification. . . .”   BLM Manual § 8351.32C.   This, together with other provisions of the BLM Manual means that the agency may make a determination in the RMP process to manage an eligible river segment for preservation of WSR Act values.  See, BLM Manual § 8351.33A.  Such a determination is authorized under section 202 of FLPMA.

 

            In the Management Plan, BLM made such a determination.  After finding 252 miles of stream segments suitable for inclusion in the WSR system, which “will be recommended for Congressional designation into the National Wild and Scenic River System,” BLM stated “[t]hose streams found suitable will be managed for protection of the resources associated with the stream.”  Management Plan at 61.  Thus, BLM must protect the values which make the water a worthy addition to the WSR system.  These include values which are vulnerable to livestock grazing, such as:  1) high scenic quality; 2) high recreational use: 3) important fish and wildlife habitat; 4) historic homestead and routes; 5) prehistoric sites and rock art; 6) riparian areas; 7) bird habitat, including habitat for southwestern willow flycatcher, peregrine flacon, and Mexican spotted owl; 8) threatened plants; and, 9) fish habitat.

 

            This document is relevant to BLM’s obligations under the Management Plan relative to the WSR Act in several ways.  First, it presents science which confirms that livestock grazing does have a significant adverse effect on the very values which make the suitable stream segments eligible for designation under the WSR Act.  Second, it shows that livestock grazing as currently practiced in the Monument is adversely affecting these values – sensitive wildlife and fish habitats are being jeopardized by over utilization, riparian areas are not properly functioning and scenic and cultural resources are being destroyed.  Thus, these practices cannot continue.  Finally, this document presents the methodology, analysis and prescriptions for a grazing system that will be significantly more in keeping with BLM’s obligations under the Management Plan.

 

 

2.7  National Historic Preservation Act

 

NHPA establishes a policy that “the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.”  16 U.S.C. § 470.  “The preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.”  Id.  Accordingly, BLM must “administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations.”  16 U.S.C. § 470-1.

 

To this end, the NHPA requires the BLM to assume “responsibility for the preservation of historic properties which are owned or controlled by” the agency.  16 U.S.C. § 470h-2.  Specifically, the BLM must establish “a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties.”  16 U.S.C. § 470h-2(2).  This program must ensure “that historic properties under the jurisdiction or control of the agency, are identified, evaluated, and nominated to the National Register.”  16 U.S.C. § 470h-2(2)(A).

 

In addition, BLM must “take into account the effect of [any “proposed Federal or federally assisted”] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”  16 U.S.C. 470f.  Properties that are eligible for the National Register include those “that have yielded, or may be likely to yield, information important in prehistory or history.”  36 C.F.R. § 60.4. 

 

The Proclamation recognizes the outstanding importance of the cultural resources in the Monument, declaring that the area:

 

was a contact point for the Anasazi and Fremont cultures, and the evidence of this mingling provides a significant opportunity for archeological study.  The cultural resources discovered so far in the monument are outstanding in their variety of cultural affiliation, type and distribution.  Hundreds of recorded sites include rock art panels, occupation sites, campsites and granaries.  Many more undocumented sites that exist within the monument are of significant scientific and historic value worthy of preservation for future study.

The monument is rich in human history.  In addition to occupations by the Anasazi and Fremont cultures, the area has been used by modern tribal groups, including the Southern Paiute and Navajo.  John Wesley Powell’s expedition did initial mapping and scientific work in the area in 1872.  Early Mormon pioneers left many historic objects, including trails, inscriptions, ghost towns such as the Old Paria townsite, rock houses, and cowboy line camps. . .

Indeed, inventories show “extensive use of places within the monument by ancient Native American cultures” and many more “significant” sites have yet to be documented.  Id.   At the same time, the Management Plan recognized that this vast array of cultural resources within the Monument can be directly and severely threatened by grazing:

 

Livestock grazing has the potential to impact archaeological and historic resources directly by trampling artifacts, mixing cultural materials, pushing over standing structures, rubbing on rock art panels, concentrating use in alcoves, and surface disturbance from construction of range facilities.  Indirectly, livestock use has potential to impact archaeological and historic resources by accelerating erosion, leading to destruction of standing structures and uncovering buried artifacts, which may subsequently be trampled.  Additionally, concentrating use around range facilities has the potential to impact sites in close proximity to these facilities.

Final EIS at 3.10.  Indeed, inventories show “extensive use of places within the monument by ancient Native American cultures” and many more “significant” sites have yet to be documented.  Id.  The indirect adverse effects of livestock grazing include “accelerating erosion, leading to the destruction of standing structures and uncovering buried artifacts, which may subsequently be trampled.”  Id.  Moreover, where livestock concentrate, such as around water developments or in riparian areas, “has the potential to impact sites in close proximity to” these areas.  

 

In the immediately adjacent Glen Canyon National Recreation Area, the Park Service made alarming conclusions regarding the impairment to cultural resources caused by grazing.  The Park Service recognized that cattle trampling quickly affects masonry structures, perhaps the most vulnerable sites, by displacing masonry elements, toppling walls, churning fill, undermining walls and foundations, and destroying interior features.  Glen Canyon EA at 27.  Long term grazing can result in the total loss of the structure.  Id.  The agency notes that the stirring and churning of soils caused by livestock use can also obscure subterranean and semi-subterranean structures.  EA at 28.

 

The Park Service also specifies that artifact concentrations and caches are “extremely susceptible to dispersal and destruction as a result of trampling,” resulting in broken and damaged pieces, decreased visibility and the complete loss of critical scientific information.  Id. at 28.  Construction features and information on their use and diversity “are also easily lost or destroyed by grazing livestock.”  Id.  Livestock trailing across midden concentrations can cause severe impacts and “valuable deposits containing perishable baskets and sandals, as well as vegetal and organic remains are often completely destroyed as a result.”  Id.  Cattle even destroy rock art when they rub themselves on cliff faces.  Id.

 

Not surprisingly, the Park Service has documented that of 130 sites regularly assessed, 25 percent have been impacted by cattle:

 

It is common to find sites where structures are visible only as chunks of mortar scattered amount the dung . . . . Wherever livestock have access, surface artifacts are rare.  The integrity of artifact concentrations is lost, and the artifacts themselves are not visible . . . . Midden deposits containing perishable items . . . are actually torn up or churned by livestock. EA at 28. 

 

The impacts of livestock are compounded because livestock congregate in riparian areas, the very places where “some of the richest archeological deposits in this nation” are located.  EA at 29.  Indeed, the Park Service estimates that between 9 and 43 percent of riparian cultural sites have been adversely impacted by livestock.  Id

 

The Park Service comments that other surveys show “even higher levels of grazing impacts.”  Id. at 29.  Near Hite, livestock have damaged 86 percent of the recorded sites.  Id.  The benchlands above Wahweap and Warm Creeks suffered similar rates of destruction, with 44 percent of Grand Bench sites, the highest concentration in the area, showing “significant evidence of damage by livestock.”  Id.[9]

 

As the evidence asserts and BLM itself admits, ongoing livestock use in the Monument is significantly damaging, if not destroying cultural resources.  In allowing this devastation to occur, BLM is violating the law.  Recognizing its obligations, BLM states that it will manage uses, including grazing, “to prevent damage to archaeological resources . . . . “  Management Plan at 11.  This effort is to be accompanied by intensive surveys to identify the location of previously undocumented cultural resources.  Id.  Moreover, should BLM determine impacts to cultural resources are occurring, it must construct “fences or other barriers” or otherwise “protect archaeological and historic resources.”  Final EIS at 3.12-3.13. 

 

Thus, grazing management on the Monument must include immediate steps to protect the vulnerable and irreplaceable cultural resources there.[10]  Wherever the agency knows of livestock damage to resources or the potential of this damage, the agency must close the area to grazing.  In regions that have been inventoried for cultural resources, grazing should also be eliminated wherever cultural resources exist in areas where livestock normally congregate: e.g., near fences and water sources, in alcoves, and under shade trees.  In regions that have not been inventoried, BLM should immediately undertake Class III inventories to ensure that cultural resources are not impacted.

 

 

2.8 Conclusion

 

            Examination of BLM’s statutory and regulatory responsibilities shows that it must undertake a case-by-case determination of whether grazing is an appropriate use of each area in the Monument.  This analysis must take place in the context of the agency’s obligations to protect Monument and public lands resources and in the context of the science presented here that establishes the significant harm that livestock grazing has on these resource values.  Where the agency determines grazing is appropriate it must also manage that grazing in light of documented resource damage and the agency’s protective obligations. 



[1] Indeed, the broad protective goals of the Act have been upheld in light of a challenge that the Act was designed to protect archeological resources only.  Cappaert v. United States, 426 U.S. 129 (1976). 

[2] Where BLM determines that restricting grazing levels will benefit Monument resources its actions will not rule afoul of the Proclamation’s edit.

[3] Specifically, among the resources the President identified as so important to the American people are the area’s: 1) “geologic treasure of clearly exposed stratigraphy and structures;” 2) “world class paleontological sites;” 3) “cultural resources . . . outstanding in their variety of cultural affiliation, type and distribution;” 4) “outstanding biological . . .. and ecological values” including “unique, isolated communities,” “a spectacular array of unusual and diverse soils,” “[f]ragile cryptobiotic soils,” “relic” and diverse vegetation, and wide unique variety of wildlife species. Id.  The President’s focus on the incredible worth of these resources to the American people underscores BLM’s duty under FLPMA to regulate grazing, a non-priority use and a threat to public land values, so that the Monument resources are not impaired. 

 

[4] Nor does properly functioning ecological condition ensure the conservation of special status species, which may require habitats that are in better condition than “properly functioning.”  In addition, although the relevant regulations require maintenance or restoration of current special status species habitat, they do not provide for the protection and restoration of potential habitat.

[5] Interestingly, the Fundamentals and Standards and Guidelines are an effective measure of permanent impairment and loss of productivity relative to ecological factors, and help relate these concepts to BLM’s multiple use mandate.  Thus, where an area fails, for an extended period of time, to comply with these health indicators, it is sufficiently close to being permanently impaired or to losing its productivity, to constitute a violation of this provision of FLPMA.

[6] This substantive requirement goes beyond the factual finding made by the Proclamation that Monument resources and objects are of particularly high value to the American people. 

[7] As mentioned above, the Fundamentals and Standards and Guidelines require the BLM to manage public lands subject to grazing to comply with water quality standards and to achieve management objectives such as meeting wildlife needs.  43 CFR § 4180.1(c); Utah Standard 4 (“BLM will apply and comply with water quality standards established by the State of Utah (R.317-2) . . . . Activities on BLM Lands will fully support the designated beneficial uses described in the Utah Water Quality Standards . . .”).

 

[8] These are the two federally listed species that generally receive the most attention in GSENM.

[9] It is worth noting that under the Archeological Resource Protection Act of 1979 and other federal statutes that a person involved in the destruction of cultural resources would be subject to criminal charges.

[10] As the Glen Canyon EA also acknowledges, the Standards and Guidelines alone will not guarantee the protection of cultural values as required by FLPMA and NHPA.  Glen Canyon EA, 31.  Therefore,  BLM must adopt additional safeguards to protect archaeological and historic resources.