SOUTHERN NEVADA WATER AUTHORITY & BUREAU OF LAND MANAGEMENT

191 IBLA 382 Decided October 13, 2017

United States Department of the Interior Office of Hearings and Appeals

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

Arlington, 22203

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

SOUTHERN NEVADA WATER AUTHORITY & BUREAU OF LAND MANAGEMENT

2017-302 & 2017-305 Decided October 2017

Appeal from an order by an Administrative Law Judge granting a motion for summary judgment and denying cross-motions for summary judgment in a grazing appeal challenging a final grazing decision issued by the Field Manager, Schell (Nevada) Field Office, Ely District, BLM. NV-L020-14-01.

Petitions for stay granted.

1. Administrative Grazing Permits and Appeals; Rules of Practice: Appeals: Standing to Appeal

When an organization seeks to establish standing through its members, i t must demonstrate that one or more of its members has a legally cognizable interest, coinciding with the organization's purposes, that is or may be adversely affected by the decision. An organization can successfully demonstrate adverse effect by submitting an affidavit, declaration, or other statement by a member attesting to the fact that their use of the lands or resources at issue is or is substantially likely to be injured by the decision.

2. Administrative Procedure: Standing; Grazing Permits and Licenses: Rules of Practice: Appeals: Standing to Appeal

An organization's standing to appeal does not cease to exist simply because the appellant organization has not illuminated the factual predicates for its standing at all times throughout the pendency of its appeal. An

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appellant is not required to justify its standing to appeal after initially filing the appeal, unless called upon to do so by a motion to dismiss, submitted by an adverse party, or by an ALJ or the Board.

Administrative Procedure: Rules of Practice: Appeals: Stay

Under the Department's regulations, a party requesting a stay bears the burden of proof to demonstrate that a stay should be granted. Specifically, the petition for a stay must show sufficient justification based on the following criteria: the likelihood of immediate and irreparable harm i f the stay is not the relative harm to the parties i f the stay is granted or the likelihood of appellant's success on the and whether the public interest favors granting the stay. A failure to satisfy any one of the stay criteria wi l l result in denial of a petition for stay.

Administrative Procedure: Burden of Grazing Permits and Licenses: Rules of Practice: Appeals: Burden of Proof

An appellant challenging a BLM grazing decision bears the burden to show that the decision is not reasonable or does not represent substantial compliance with the Taylor Grazing Act or its implementing regulations. A BLM grazing decision wi l l not be overturned unless it is not supported on any rational basis and is thus arbitrary and capricious. In addition, BLM is entitled to rely on the professional opinion of its experts concerning matters within the realm of their expertise, where i t is reasonable and supported by record evidence. A party challenging a BLM grazing decision must show the decision was based on a material error in methodology, data, analysis, or conclusion. This burden is not met by mere expressions of disagreement with BLM's analysis and conclusions.

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5. National Environmental Policy Act of 1969: Environmental Statements

NEPA requires that an EA include a brief discussion of appropriate alternatives. Appropriate alternatives are those that wi l l accomplish the project's intended purpose, are technically and economically feasible, and wi l l avoid or minimize adverse environmental impacts. NEPA does not require that an agency consider a minimum number of alternatives, and i t generally suffices for an agency to consider a no action and proposed action alternative in an EA, particularly i f the proposed action wil l achieve environmental benefits.

APPEARANCES: William G. Myers, I I I , Esq, and Murray D. Feldman, Esq, Boise, Idaho, for Southern Nevada Water Janell M. Bogue, Esq, Office of the Regional Solicitor, U.S. Department of the Interior, Sacramento, California, for the Bureau of Land Kristin F. Ruether, Esq, Boise, Idaho, for Western Watersheds Project.

OPINION BY ADMINISTRATIVE JUDGE

Southern Nevada Water Authority and the Bureau of Land Management (BLM) have individually appealed from, and petitioned for a stay of the effect of, an August 1, 2017, Order issued by Administrative Law Judge (ALJ) Andrew S. in the case of Western Watersheds v. In his Order, the ALJ granted summary judgment in favor of Western Watersheds Project (WWP), which had appealed from a November 15, 2013, final grazing decision (FGD) issued by the Field Manager, Schell (Nevada) Field Office, Ely District, BLM.

In his FGD, the Field Manager renewed 10-year grazing permit for the Cottonwood and Scotty Meadows Allotments, located in the Spring Valley in Lincoln and White Pine Counties, Nevada. In his Order, the ALJ reversed the Field Manager's FGD based on the ALJ's determination that the data BLM relied upon was BLM's environmental assessment (EA) was inadequate under the National Environmental Policy Act of 1969 and the FGD did not comply with the applicable land use plan or BLM's policy on sage-grouse, in violation of

Hearings Division Docket No. 42 §§ 4321-4370h (2012).

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section 302(a) of the Federal Land Policy and Management Act of 1976 (FLPMA).3

The ALJ concluded that BLM's decision was in error because it had done "nothing to conserve, enhance, or restore priority sage-grouse habitat that is admittedly in unsuitable condition,"4 and he remanded the case so that BLM can give "at least some serious consideration [to] . . . modifications intended to improve habitat."5

We docketed SNWA's appeal as IBLA 2017-302, and BLM's appeal as IBLA 2017-305. On October 3, 2017, we issued an order granting WWP's unopposed motion to consolidate these appeals.

SUMMARY

Under our regulations, a party seeking a stay must show sufficient justification based on four criteria: the likelihood of immediate and irreparable harm i f the stay is not the relative harm to the parties i f the stay is granted or the likelihood of appellant's success on the and whether the public interest favors granting the stay. Here, the ALJ found that BLM's decision renewing SNWA's 10-year grazing permit for the Cottonwood and Scotty Meadows Allotments was flawed under NEPA and FLPMA because BLM failed to take action that would improve, enhance, or restore sage-grouse habitat. BLM and SNWA seek a stay of the ALJ's decision in order keep the terms and conditions of SNWA's renewed permit in place during the pendency of their appeals.

Because we conclude that the ALJ likely erred by failing to accord BLM's decision, and the opinion of its experts, appropriate deference, we find that BLM and SNWA have sufficiently demonstrated that they are likely to succeed on the merits of their appeals. Further, we conclude that because SNWA's renewed permit is more protective of sage-grouse and its habitat than the prior permit, BLM and SNWA have satisfied the requirement to show that without a stay, there would be immediate and irreparable harm. And we also conclude that BLM and SNWA have sufficiently demonstrated that the balance of harms and public interest favor a stay because i t wi l l ensure SNWA's renewed permit remains effective. We therefore grant their petitions for a stay of the ALJ's August 1, 2017, Order.

43 U.S.C. § 1732(a) (2012). Order at 13. Id. at 1.

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BACKGROUND

SNWA's Authorized Grazing Use on the Cottonwood and Scotty Meadows Allotments

BLM issued SNWA's grazing permit for the Cottonwood and Scotty Meadows Allotments effective November 1, 2007, for a term of 10 years.'' The Allotments are located in the South Spring Valley Watershed, approximately 45-60 miles southeast of Ely, Nevada, and encompass 49,975 acres (Cottonwood) and 17,322 acres (Scotty Meadows) of BLM-managed public land.7 The Cottonwood Allotment consists of six pastures - two native pastures (South and North) and four pastures seeded with crested wheatgrass (Upper Seeding, Middle Seeding, Lower Seeding, and Deer Flat Seeding).8 The Cottonwood Allotment also includes the Eagle Wild Horse Herd Management Area and part of the Fortification Range Wilderness.9 The Scotty Meadows Allotment consists of one unfenced pasture, and includes the Shoshone Ponds Area of Critical Environmental Concern (ACEC), which provides habitat for the Pahrump poolfish, an endangered species under the Endangered Species Act of

Greater sage-grouse {Centrocercus urophasianus), a BLM sensitive species, are found in or near the Allotments. One known active is located within the Cottonwood Allotment, and two active are located approximately three miles from, but not within, the Scotty Meadows Allotment.11 Because sage-grouse "often nest in suitable habitat within three miles of a lek site,"12 BLM designated most of the eastern half of the Cottonwood Allotment as "Preliminary Priority Habitat" (PPH) and "Preliminary General Habitat" (PGH) for sage-grouse, and much of the eastern half of the Scotty Meadows Allotment as PPH.13

SNWA Notice of Appeal, Statement of Reasons, and Petition for Stay (SNWA Petition) at 5. Final EA, DOI-BLM-NV-L020-2012-0029-EA (July 29, 2013), at 1. Final EA at Id., Appendix 2, Standards Determination Document (SDD) at 1. SDD at 1. 16 U.S.C. §§ 1531-1544 (2012); SDD at 2; Final EA at 18. Final EA at Id., Appendix 1, Maps, at Map 6 (Preliminary General and

Priority GRSG Habitat within the Cottonwood and Scotty Meadows Allotments). 20. Final EA, Appendix 1, at Map 6; SDD at 20, 33; Second Declaration (Deck) of

Bernard J. Petersen, SNWA's Ranch and Resource Manager, Jan. 4, 2017 (Ex. 3 to SNWA Petition), 9, at 7 ("Using BLM's sage-grouse shapefiles, I determined that

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Under its grazing permit, SNWA was authorized to graze cattle on the Cottonwood Allotment during the winter months, and on the Scotty Meadows Allotment during the summer months.14 Specifically, between November 1 and June 15, SNWA was authorized to annually graze a total of 250 cattle (1,865 Animal Unit Months on the Cottonwood Allotment, and between June 1 and September 30, i t was authorized to annually graze 378 cattle (1,227 AUMs) on the Scotty Meadows Allotment.16

B. Application for Permit Renewal and BLM's Assessment of Rangeland Conditions

In 2008, BLM began its process for determining whether to renew SNWA's grazing permit.17 During this process, and in accordance with its grazing regulations, BLM conducted an assessment to determine i f the Allotments were meeting the applicable Standards for Rangeland Health and Guidelines for Grazing Management (Nevada Determining whether an allotment is meeting its applicable standards is necessary because the grazing regulations require that i f the Bureau determines that an allotment is not meeting a standard, and existing grazing management practices or levels of grazing use are significant factors in failing to achieve the standard, BLM must take "appropriate action . . . that wi l l result in significant progress toward fulfillment of the standardD," not later than the start of the next grazing year.19

BLM explained that for its assessment of the Cottonwood and Scotty Meadows Allotments i t "used rangeland monitoring data, maps, professional observations, and photographs, as well as pertinent publications, to assess achievement of the applicable standards and conformance to the guidelines for each

the Cottonwood Allotment contains approximately 18,000 acres of priority habitat and 10,000 acres of general habitat. The Scotty Meadows Allotment contains approximately 1,000 acres of priority habitat and 4,500 acres of general habitat.").

4. See 43 C.F.R. § 4100.0-5 (2005) (defining AUM as the amount of forage necessary

to sustain one cow (or its equivalent) for one month). 4. BLM Notice of Appeal, Petition for Stay, and Motion for Extension of Time (BLM

Petition) at 3. Id:, 43 C.F.R. Subpart 4180 (Fundamentals of Rangeland Health and

Standards and Guidelines for Grazing Administration) (2005). 43 C.F.R. § 4180.2(c)(3) (2005).

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of the Allotments."20 BLM documented this data and information, and its conclusions, in a "Standards Determination Document" (SDD), which BLM completed in 2012 and appended to the EA it prepared prior to issuing the FGD.21

As stated in the SDD, BLM assessed the Allotments under the applicable Nevada S&G, which "reflect the . . . goals of improving rangeland health while providing for the viability of the livestock industry, all wildlife species, and wild horses and burros in the Northeastern Great Basin Area and Mojave-Southern Great Basin Area."22 For the Cottonwood Allotment, BLM looked at whether the allotment was meeting Standard 1 (Soils), Standard 2 (Ecosystem Components), and Standard 3 (Habitat and Biota). For the Scotty Meadows Allotment, BLM looked at whether the allotment was meeting Standard 1 (Upland Sites), Standard 2 (Riparian and Wetland Sites), and Standard 3 (Habitat).23

As documented in the SDD, BLM determined that the Cottonwood Allotment was meeting Standards 1 and 2; with respect to Standard 3 (Habitat and Biota), BLM determined that the allotment was not meeting the standard, but was making

progress towards achieving the BLM found that, "[b]ased on vegetation data, the majority of the allotment is not meeting the habitat needs for Greater Sage-Grouse with minimal herbaceous understory necessary for early-brood rearing."25 But BLM concluded that the allotment's failure to meet Standard 3 was not attributable to livestock Rather, BLM found that the allotment's failure to achieve Standard 3 was due to an overpopulation of wild horses, and to "historic livestock management practices, periodic drought, and altered natural disturbance regimes which allow for pinyon and juniper trees to expand into sagebrush communities."27 BLM determined that significant progress was being made toward achieving the Standard based, in part, on its finding that livestock utilization is "currently low to moderate," and that "appropriate grazing management and allowable use levels" are stimulating plant production, which

BLM Petition at 3; FGD at 2 ("The interdisciplinary team evaluated rangeland monitoring data (i.e., vegetation cover and composition, utilization, and proper functioning condition) to assess achievement of the Standards.").

See Final EA, Appendix 2. SDD at 1. Id. at 3, 19; see FGD at 2. SDD at 3, 20; FGD at 2. 20. Id. at 10, 20, 34. Id. at 20, 34.

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contributes to perennial cover, as well as . . . litter for soil protection and health."28

For the Scotty Meadows Allotment, BLM found that Standard 1 was being met, but that Standards 2 and 3 were not being met.29 BLM found that the allotment was not meeting Standard 2 (Riparian and Wetland Sites), and significant progress was not being made toward its achievement, because livestock were overgrazing riparian vegetation.30 BLM also determined that Standard 3 (Habitat) was not being met in a portion of the allotment, concluding that "the sagebrush communities are not meeting the habitat needs for Greater Sage-Grouse because of minimal herbaceous understory."31 BLM stated that because of limited data, however, i t could not determine a trend in rangeland health, and therefore could not assess whether significant progress was being made toward achievement of Standard But BLM found that grazing management practices and levels of grazing use were not a significant factor in the failure to achieve Standard 3, and attributed the condition of the allotment's habitat to the same factors contributing to the Cottonwood Allotment's failure to meet its habitat standard - "historic livestock management practices, periodic drought, and altered natural disturbance regimes which allow for pinyon and juniper trees to expand into sagebrush communities."33

C. BLM's Proposed and Final Grazing Decisions

In February 2013, BLM published a Preliminary EA for public comment analyzing a proposed action of renewing SNWA's grazing permit, subject to certain modifications based on BLM's assessment of rangeland health in the Allotments.34

For the Scotty Meadows Allotment, BLM proposed retaining the existing authorized annual grazing use of 378 cattle from June 1 to September 30 (1,227 AUMs).3 5 For the Cottonwood Allotment, however, BLM proposed changing the existing annual grazing use of 250 cattle (1,865 AUMs) between November 1 and June 15, to grazing divided among six pastures with different seasons of use, and based on a

Id. 20. Id. at 21, 34; FGD at 2. SDD at 21, 25, 34; FGD at 2. SDD at 33; see id. at 21, 27, 34; FGD at 2. SDD at 21, 27, 33. Id. at 34; see id. at 21, 27; FGD at 2. Preliminary EA, Feb. 11, 2013. Id. at 5; Proposed Decision, July 31, 2013 (Proposed Decision), at 4.

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stocking rate of 30 acres per A U M . 3 6 Specifically, 450 AUMs per year would be authorized in the North Native and South Native Pastures, between November 1 and February 19, and 308 AUMs per year would be authorized in the four seeded pastures between February 20 and May The proposed action also adopted a "deferred-rotation grazing system" for the native pastures and a "rest-rotation grazing system" for the seeded pastures, which would "provide growing season rest on the native pastures every year, and growing season rest on the one out of every four years."38

The proposed action implemented an "adaptive management" approach for both Allotments, which would allow SNWA to graze up to the total number of cattle during the approved period of use, but not to exceed the permitted AUMs.3 9 And the proposed action provided for temporary water hauling in part of the North Native and South Native Pastures in the Cottonwood Allotment, and authorized the construction of two new fences, one separating the Scotty Meadows and South Spring Valley Allotments, and the other encircling the spring brook and wet meadow associated with the Shoshone Well #2, creating a 26-acre riparian exclosure where cattle could not graze, in the Scotty Meadows Allotment.40

After the public comment period, BLM issued a Final EA. In the Final EA, BLM considered the proposed action as set forth in the Preliminary EA and Proposed Decision, with minor modifications.41 The Final EA also considered a riparian pasture alternative, under which a new fence would be constructed creating a three pasture grazing system for the Scotty Meadows Allotment; a change period of use alternative, under which the period of use in the Scotty Meadows Allotment would change from summer to fall/winter grazing,' a no action alternative, under which grazing would continue in accordance with SNWA's existing grazing and a no grazing alternative, under which SNWA's grazing permit would be terminated and no grazing would be authorized in the Allotments.42

Preliminary EA at 5; Proposed Decision at 4. Id. Proposed Decision at 5, 7. Preliminary EA at 5; Proposed Decision at 4. Preliminary EA at 4, 6; Proposed Decision at 6, 7. Final EA at 4-6. Id. at 6-10.

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On July 31, 2013, the Field Manager issued a Proposed Decision, adopting the proposed action. WWP protested that decision.

In the FGD, issued on November 15, 2013, the Field Manager stated that, based on WWP's protest, he "reconsidered [his] Proposed Decision, and ha[s] included additional terms and conditions to the grazing permit."43 In the FGD, BLM authorized grazing use as in the proposed action, maintaining the level of use in the Scotty Meadows Allotment at 378 cattle annually from June 1 to September 30 (1,227 AUMs), and adopting the six-pasture system for grazing in the Cottonwood Allotment, which permits a total of 450, 566, and 308 AUMs per year, respectively, in the North Native, South Native, and Seeding Pastures.44 In the FGD, the Field Manager added, however, that the permitted use for the seeded pastures "may be adjusted based on subsequent monitoring data (i.e. actual use and utilization)."45

The Field Manager concluded in the FGD that SNWA's new grazing permit "will achieve, or make significant progress toward the Nevada S&G," "in accordance with all applicable laws, regulations, and policies."46 The FGD specified that the 26-acre riparian exclosure to be constructed in the Scotty Meadows Allotment was necessary to achieve Standard 2 (Riparian and Wetland Sites) in that allotment, which BLM had determined was not being met due to cattle overgrazing riparian vegetation.47 The Field Manager stated: "The riparian exclosure is needed to achieve the standard and to ensure the protection of the endangered Pahrump poolfish."48

On November 22, 2013, the Field Manager amended the FGD.49 In the amended decision, the Field Manager modified the November 15, 2013, FGD to preclude grazing within the riparian exclosure in the Scotty Meadows Allotment because grazing in that area "may result in adverse effects to historic property that has been determined as eligible for the inclusion in the National Register" under

3. Id. at 4. Id. at 7. Id. at 2. Id. at 7. Id. Amendment to Final Decision Issued on November 15, 2013, Nov. 22, 2013

(Amendment).

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the National Historic Preservation Act (NHPA).50 The Field Manager explained that in order to comply with NHPA, BLM would enter into a Memorandum of Agreement with SNWA and the Nevada State Historic Preservation Office (SHPO) prior to authorizing any grazing within the exclosure that would address mitigation measures to prevent adverse effects to historic properties located within the exclosure.51 The Field Manager explained that this was the only change to the FGD and that 11 other elements" of the FGD ' unchanged."52

D. Initial Proceedings in the Hearings Division

WWP timely appealed and sought a stay of BLM's November 15, 2013, FGD, as amended by the November 22, 2013, decision. In an order dated January 21, 2014, ALJ Harvey C. Sweitzer denied WWP's petition for a stay of the of BLM's November 2013 FGD, concluding that WWP failed to show that the balance of harms favored granting a stay.53 The ALJ found that granting a stay "would do more harm than good" because, based on the measures in the renewed permit designed to make progress towards meeting the applicable rangeland health standards and to protect the endangered Pahrump poolfish, "grazing under the appealed decision would be an improvement over grazing practices under the prior permit."54

Several months later, in an Order dated June 10, 2014, ALJ Pearlstein suspended the appeal to allow BLM time to complete its NHPA process to mitigate any adverse effects of grazing on historic properties within and outside of the exclosure. BLM then engaged in consultation with the Nevada SHPO and determined, with SHPO concurrence, that authorized grazing and related activity under the renewed permit would not adversely affect historic properties.55 BLM therefore determined that i t did not need to issue a new or amended FGD to address the riparian exclosure.56

The parties then proceeded to file motions for summary judgment.

Amendment at 2. Id. at 1. Id. Order, Jan. 21, 2014, at 6. Id. See Letter from SHPO to BLM, May 29, 2015 ("The SHPO concurs with the

BLM's determination of No Adverse Effect for the proposed undertaking."). See BLM/SNWA Joint Status Report (Nov. 9, 2016) at 1.

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E. The Parties' Arguments on Summary Judgment

In its motion for summary judgment, WWP argued that in renewing SNWA's grazing permit, BLM violated FLPMA because the FGD was inconsistent with land use plan amendments adopted by BLM in 2015 that include provisions designed to protect sage grouse and its habitat.57 WWP stated that although BLM approved the Nevada and Northeastern California Greater Sage-Grouse Approved Resource Management Plan Amendment after i t issued its FGD, the ARMPA still applies because "WWP raised the issue of compliance with sage-grouse policies and [Resource Management Plan] standards, because the Department of the Interior's authority allows i t to consider regulatory changes made during the pendency of the appeal, and because it is consistent with the Hearings Division's treatment of the

in other appeals."58

WWP further argued that BLM violated NEPA in renewing SNWA's grazing permit because in its EA, BLM failed to consider reasonable alternatives designed to protect sage grouse and its habitat.59 WWP alleged that the range of alternatives was flawed because BLM "did not consider any alternative that reduced livestock grazing use to improve sage-grouse habitat, despite habitat requirements not being met on the allotment."60 WWP further argued that BLM violated NEPA because i t failed to adequately consider the direct, indirect, and cumulative impacts of grazing on sage grouse and its habitat.61 Among other things, WWP argued that BLM's baseline analysis was inadequate because it did not provide "any information on the condition of the [sage-grouse] habitat, . . . the population or trend of the species, . . . [or] . . . the limiting factors . . . for the species . . . WWP also argued that BLM ignored the impacts the FGD's authorization of new fences, new water hauling, and higher use levels would have on sage-grouse.63

See WWP Motion for Summary Judgment at 7-13. 8. Id. at 13-16. Id. at 13; see id. at 16 ("[N]one of the grazing alternatives responded to the fact

that sage-grouse habitat on the allotment was in poor condition, and that updated science and management guidance supported much more protective utilization levels.").

Id. at 17-23. Id. at 17. Id. at 18.

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In their cross-motions for summary judgment, BLM and SNWA argued that BLM complied with FLPMA and NEPA in renewing SNWA's permit.

With respect to FLPMA, BLM and SNWA argued that the FGD was consistent with the governing land use plan, the Ely Resource Management Plan.64

In its Response to WWP's summary judgment motion, BLM further argued that the 2015 ARMPA, which did not exist during the analysis leading to the FGD, was not applicable to the FGD.65 BLM stated: "Appellant seeks to apply the 2015 ARMPA, but i t would have been impossible for the BLM to ensure such compliance at the time of the Final Decision because the 2015 ARMPA was still being developed."66

BLM further argued that the Hearings Division lacked jurisdiction to hear WWP's argument about the applicability of the ARMPA because WWP's notice of appeal necessarily did not contain any allegations specifically referencing the 2015 plan amendments.67 And BLM and SNWA argued that the Hearings Division should decline to apply the 2015 ARMPA retroactively to the FGD, stating that to do so "would require the BLM to reconsider a grazing permit, which took years of analysis and public input."68

BLM and SNWA further argued that BLM complied with NEPA, and WWP provided no evidence of any NEPA violation.69 First, BLM argued that i t considered five alternatives in the EA, and WWP had not identified any alternatives that BLM failed to consider that would have met the objectives of the proposed action while causing less significant impacts.70 And contrary to WWP's assertion that the EA provided only minimal or no analysis of the no grazing and no action alternatives, BLM stated that "the EA does clearly analyze a varied range of alternatives including no SNWA similarly argued that aspect of the affected

See BLM Motion for Summary Judgment at 19; SNWA Motion for Summary Judgment at 22-23.

See BLM Response at 2-3. Id. at 3; see id. (stating that the FGD "was issued in November 2013, years

before the record of decision for the 2015 ARMPA was signed"). 2. Id. at 5; see SNWA Response at 11-14. See BLM Motion for Summary Judgment at 11-18; see also SNWA Motion for

Summary Judgment at 15-22. BLM Motion for Summary Judgment at 12. see BLM Response at 11 ("BLM included in its analysis both a no-action and

a no-grazing alternative. The no-grazing alternative . . . essentially establishes one

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environment analyzed in the EA considered the effect of each alternative, including the No Action and No Grazing alternatives, on specific Second, BLM argued that the analysis in the EA took the required hard look at the FGD's impacts to sage-grouse and its habitat.73 BLM stated that the EA described the general status of sage-grouse and the "science-based guidelines for sage grouse needs for nesting, brood-rearing, and winter habitat," and identified the Allotments' PGH and PPH for sage-grouse, "as well as the locations of active, inactive, and unknown BLM further stated that the EA analyzed the impacts from the FGD and the alternatives on all resources, including sage-grouse.75 BLM argued that WWP "clearly disagrees with the BLM's choice, but has not provided any objective evidence to show that the BLM's analysis was incomplete or

And BLM argued that the EA's cumulative effects analysis complied with NEPA, stating that the bureau "fully analyzed the cumulative impacts and considered past, present, and reasonably foreseeable future activities" over the 10-year timespan of the grazing permit.77 BLM concluded that WWP's arguments amounted to "flyspeck[ing]" the EA, but that WWP had not shown that BLM failed to consider a substantial environmental question of material significance.78

In its motion for summary judgment, SNWA further argued that WWP lacked standing to pursue its appeal. SNWA argued that WWP based its standing to appeal on one of its directors and members, Katie Fite, but that Ms. declaration failed to demonstrate that she had a legally cognizable interest that is or is substantially likely to be injured by the FGD.79

end of the spectrum against which all other alternatives could be measured. Such an analysis is entirely permissible under NEPA.").

SNWA Motion for Summary Judgment at 16; see SNWA Response at 1-3. BLM Motion for Summary Judgment at 14-15. Id. at 14. Id. at 14-15; see SNWA Response at 5-6; id. at 6 ("WWP disagrees with BLM's

portrayal of the effects . . . but a difference of opinion is insufficient to overturn the Final Decision.").

BLM Motion for Summary Judgment at 15. Id. at 17; see SNWA Motion for Summary Judgment at 18 ("By analyzing each

affected resource for cumulative effects, BLM has complied with its NEPA Handbook and the regulations.").

BLM Response at 12. SNWA Motion for Summary Judgment at 7 (citing 43 C.F.R. §§ 4.470 and

4160.4).

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F. August 1, 2017, Order

On August 1, 2017, ALJ issued the Order now on appeal, granting summary judgment in favor of WWP. The ALJ framed the issue before him as "whether BLM may properly renew a grazing permit with terms and conditions that wi l l admittedly do nothing to improve, enhance, or restore priority sage-grouse habitat that is admittedly in unsuitable condition."80 The ALJ answered this question in the negative.81

First, the ALJ found flaws in the data relied upon by BLM in its assessment of the health of the Allotments. He noted that in the SDD, BLM had determined that both Allotments "failed to meet rangeland health Standard 3 for wildlife habitat due to unsuitable conditions for sage-grouse nesting and brood-rearing," because the herbaceous understory was not meeting sage-grouse habitat needs.82

And while the ALJ acknowledged that BLM concluded in the SDD that livestock grazing was not the cause of either allotment's failure in meeting Standard 3, he stated that BLM's conclusions "are highly questionable, and may even be said to lack a rational basis due to the sparseness and staleness of the data on which they rely . . . In particular, the ALJ noted that BLM's failure to discern any trend on the Scotty Meadows Allotment "should default to a finding of failing to make significant progress."81 Further, the ALJ determined that BLM's finding that the Cottonwood Allotment was making progress towards achieving the habitat standard was based on utilization data that was "sparse, stale, and thin."8 5 The ALJ

For the native pastures there is data only for the 2000, 2001, 2003, 2007, and 2008 grazing seasons. Utilization was very high in 2001 and 2002, but very low in 2003. Then there is a three-year gap until 2007, which showed some moderately high [utilization], followed by 2008 which showed light to moderate [utilization]. Thus, the finding of a positive trend was apparently based on intermittent utilization data, the most recent of which was already five years old when BLM issued the FGD in 2013. . . . I t is difficult to understand how a current trend could be determined in 2013 without any monitoring data for the past

Order at 13. Id. Id. Id. at 14 n.4. Id. Id. at 15.

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5 years, or even a description of more recent observations or any other basis for the positive finding.86

Ultimately, the ALJ concluded that because of the "lack of adequate data," BLM's FGD lacked a rational basis.87

Second, although the ALJ declined to rule on the parties' arguments with respect to the applicability of the 2015 ARMPA, he found that in renewing SNWA's grazing permit, BLM had failed to comply with policy guidance in effect that

BLM Instruction Memorandum No. 2013-043, Interim Sage-Grouse Policies and According to the ALJ, that guidance provided that "[w]hen there is inadequate data to determine a trend, as was the case here, . . . BLM should deploy an [interdisciplinary team] 'as practicable to conduct a new land health The ALJ recognized that BLM prepared the SDD, but found fault with the fact that BLM did not "go out and conduct an updated thorough rangeland health assessment . . . in 2013 when the permit was scheduled for renewal."90 In addition, the ALJ stated that BLM's I M required BLM to consider a reasonable range of alternatives, including no grazing or reduced grazing, and deferred or rest-rotation systems. But again, even though the ALJ admitted that BLM's EA met this requirement, he nevertheless concluded that the EA was flawed because i t did not "consider a reduced grazing alternative, such as one limiting grazing use to recent average actual use (about 70% of authorized use), as urged by WWP."91 The ALJ thus concluded that BLM's failure to comply with its policy constituted a violation of FLPMA.9 2

Third, the ALJ also concluded that BLM's range of alternatives violated NEPA by failing to include additional alternatives or modifications in livestock management that could benefit sage-grouse.93 The ALJ found that BLM "should have at least given some consideration" to such alternatives, including

Id. Id. at 18. BLM I M No. 2013-043, Interim Sage-Grouse Policies and Procedures

(Dec. 22, 2011) (IM No. 2013-043). Order at 18. Id. Id. at 19. Id. at 20. Id. at 19-20.

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"imposing more restrictive vegetation use limits to accord with sage-grouse habitat objectives, perhaps only in PHMA and GHMA; reducing authorized grazing use to average actual use further restrictions on water hauling to avoid PHMA and GHMA on the Cottonwood additional seasonal restrictions to avoid PHMA and GHMA, and increased monitoring for sage-grouse habitat objectives."94

And the ALJ further faulted BLM for failing to consider any alternative that "combined elements of two or more alternatives considered in the EA."95 The ALJ recognized that nothing [s] that a BLM livestock grazing permit renewal decision have no impact on sage-grouse or that the potential effects on sage-grouse and its habitat must drive the agency decision to the exclusion of all other factors."96

But he nevertheless concluded BLM was required "to give serious consideration to options that could improve unsuitable habitat where at all feasible when it issues land-use decisions."97

The ALJ therefore granted summary judgment in favor of WWP and remanded the matter to BLM. BLM and SNWA have each timely appealed from ALJ Order, and requested a stay of the effect of his Order during the pendency of their appeals. In this decision, we rule on their stay petitions.

DISCUSSION

A. WWP Has Standing to Appeal

The requirement for an appellant to demonstrate it has standing to pursue an appeal is a fundamental threshold question. Therefore, before addressing SNWA's and BLM's stay petitions, we must first address SNWA's argument that WWP lacked standing to pursue its appeal, and the ALJ erred by failing to dismiss WWP's appeal for lack of jurisdiction.98

Under our regulations governing grazing appeals, any person "whose interest is adversely affected by a final BLM grazing decision may appeal the

Id. at 19-20 n.8. Id. at 19 see id. at 19 ("For example, why not leave the FGD's [riparian]

exclosure in place to protect the most sensitive part of the Shoshone Ponds ACEC, while incorporating a rotation system in the remainder of the Scotty Meadows Allotment!?]").

Id. at 16. Id. See SNWA Petition at 15-18.

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decision to an administrative law An appellant meets this requirement by demonstrating that the decision at issue injures a cognizable legal interest.100

When an organization seeks to establish standing through its members, as WWP did before the Hearings Division, i t must demonstrate that one or more of its members has a legally cognizable interest, coinciding with the organization's purposes, that is or may be adversely affected by the decision.101 An organization can successfully demonstrate adverse effect by submitting an affidavit, declaration, or other statement by a member attesting to the fact that their use of the lands or resources at issue is or is substantially likely to be injured by the decision.102

During the summary judgment proceedings, SNWA argued that WWP lacked standing to pursue its appeal because WWP failed to demonstrate that i t had a member with a legally cognizable interest in the Allotments, and that such interest had been or was substantially likely to be injured by BLM's FGD.1 0 3 SNWA alleged that WWP's standing declarant, Katie Fite, made only "highly generalized statements" that lacked the "factual specificity" necessary to demonstrate standing.104 In his August 1, 2017, Order, ALJ found that WWP had standing, based on a February 5, 2017, declaration of Kenneth Cole, WWP's Idaho Director, "who has repeatedly visited the subject Allotments and demonstrated a cognizable interest in their ecology and wildlife."105

SNWA argues again on appeal that WWP lacks standing and that its appeal is "likely moot."106 SNWA argues that WWP must demonstrate standing continuously during its appeal, and that WWP has not done so because Ms. Fite left WWP in 2015; Mr. Cole did not file a standing declaration until 2017; and Mr. Cole

43 C.F.R. § 4.470(a). Idaho Cattle Association, 190 IBLA 99, 104(2017); Western Watersheds Project,

187 IBLA, 316, 321 (2016) (citing the Board's standing regulations, at 43 C.F.R. § 4.410(d)).

Idaho Cattle Association, 190 IBLA at 105; see also Cascadia Wildlands, 188 IBLA 7, 10 (2016); Western Watersheds Project, 187 IBLA at 320; Defense, 187 IBLA 233, 236 (2016).

Idaho Cattle Association, 190 IBLA at 105; Guardians, 183 IBLA 165, 170 (2013). 103 SNWA Motion for Summary Judgment at

Id. at 9. Order at 13 n.2.

loo SNWA Petition at 15.

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subsequently left WWP as an employee in SNWA states that these circumstances "rais[e] significant questions whether WWP lost its standing" between 2015 and 2017, when "no member of WWP expressed a legally cognizable interest in the appeal of the Final Decision," and whether WWP "once again lost its standing" in 2017 when Mr. Cole was no longer employed by WWP.1 0 8

[2] We find that WWP has standing. Although Ms. Fite left her position with WWP in 2015, Mr. Cole has been a member of WWP since 2008, and his use of the Allotments began in 2011, prior to BLM's issuance of the FGD.1 0 9 WWP provided a declaration of Mr. Cole in which Mr. Cole attests that he enjoys seeing and photographing sage-grouse in their natural environment; he visited the Scotty Meadows Allotment in 2011 and the Cottonwood Allotment in 2013; he appreciates the Allotments "for their relative remoteness and beauty, as well as their importance for sage grouse"; and he plans to visit the Allotments in the

Cole's declaration satisfies the requirement to demonstrate a legally cognizable interest that has been or is substantially likely to be injured by grazing on the Allotments.111

Moreover, although Mr. Cole left his position with WWP in 2017, he remains a member of the organization. As such, WWP properly concludes that even though Mr. Cole "was not the original standing declarant, his declaration demonstrates that WWP held continuous standing throughout this appeal."112 We reject SNWA's contention that WWP lost standing because no member of the organization expressed a legally cognizable interest in the appeal, i.e., by submitting a new

Id. at 17-18. Id. at 17; see id. at 18 ("In the context of associational standing, i f a member of

the association upon whose declaration the association relied for standing leaves the association, the association loses standing.").

WWP Response at 12 (citing Second Declaration of Kenneth Cole, dated Feb. 5, 2017 (Second Cole Deck), at 6, 11, 12).

Second Cole Deck at 8, 11, 12, 17, 19. See e.g., Western Watersheds Project, 182 IBLA 1, 8 (2012)

recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even i f relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person.").

WWP Response at 12 (citing Deck of Kenneth Cole, Sept. 11, 2017, at 2-3 (stating he left employment with WWP on July 14, 2017, but remains a member of the organization)).

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declaration, between 2015 and Standing to appeal does not cease to exist simply because the appellant has not illuminated the factual predicates for its standing at all times throughout the pendency of its appeal; an appellant is not required to justify its standing to appeal after initially filing the appeal, unless called upon to do so by a motion to dismiss, submitted by an adverse party, or by an ALJ or the Board.

Because Mr. Cole remains a member of WWP and his declaration satisfies the requirement for an organization to demonstrate standing, we conclude that WWP has standing and the ALJ did not err by failing to dismiss WWP's appeal for lack of jurisdiction.

We therefore now turn to BLM's and SNWA's petitions for stay.

B. The Standards for Obtaining a Stay

[3] Under the Department's regulations, a party requesting a stay bears the burden of proof to demonstrate that a stay should be granted.114 Specifically, the petition for a stay must show sufficient justification based on the following criteria: the likelihood of immediate and irreparable harm i f the stay is not the relative harm to the parties i f the stay is granted or denied; the likelihood of appellant's success on the and whether the public interest favors granting the stay.115 A failure to satisfy any one of the stay criteria wi l l result in denial of a petition for a stay.116

As discussed below, because we find that BLM and SNWA show sufficient justification under each of the four stay criteria, we grant their petitions for a stay of the ALJ's August 1, 2017, Order.

See SNWA Petition at 17. 43 C.F.R. § 4.21(b)(2).

Id. § 4.21(b)(1). Blue Mountains Biodiversity Project, 188 IBLA 143, 152 (2016); Petan Company

Nevada v. BLM, 186 IBLA 81, 91 (2015) (citing Oregon Natural Resources Council Action, 148 IBLA 186, 188 (1999)).

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C. BLM and SNWA Have Shown a Likelihood of Success on the Merits of Their Appeals

1. The Burden of Proof in Grazing Appeals

[4] An appellant challenging a BLM grazing decision before an ALJ bears the burden to show that the decision is not reasonable or does not represent substantial compliance with the Taylor Grazing Act or its implementing

This means that a BLM grazing decision wil l not be overturned by an ALJ unless it is not supported on any rational basis and is thus arbitrary and capricious.119 As the Board has stated, "[a]lthough unusual, this scope of review is consistent with the highly discretionary nature of the Secretary's responsibility for Federal range lands."120 The Board has long applied this same standard to decide grazing appeals from ALJ decisions.121

In addition, BLM's determination of the appropriate grazing authorization for an allotment is based on an assessment by its technical experts of the carrying capacity and overall health of the Federal rangeland.122 BLM is entitled to rely on the professional opinion of its experts concerning matters within the realm of their expertise, where i t is reasonable and supported by record evidence.123 Therefore, a party challenging a BLM decision based on the professional opinion of its experts

show that the decision "was based on a material error in methodology, data, analysis, or conclusion."124 An appellant must show, with objective evidence, either that "BLM erred when collecting the underlying data, when interpreting that data, or when reaching the conclusion," or that "a demonstrably more accurate study has

43 U.S.C. §§ 315-315r (2012). 43 C.F.R. § 4.480(b) ("No adjudication of grazing preference wi l l be set aside on

appeal, i f i t appears that it is reasonable and that i t represents a substantial compliance with the provisions of [43 C.F.R.] [P]art 4100.").

v. WWP, 191 IBLA 144, 180 (2017) (citing Thomas E. v. BLM, 155 IBLA 158, 164 (2001); American Mustang & Burro Association, Inc., 144 IBLA 148, 150 (1998)).

Kelly v. BLM, 131 IBLA 146, 151 (1994). BLM v. WWP, 191 IBLA at 179; see Kelly v. BLM, 131 IBLA at 151; Ralph

Eason v. BLM, 121 IBLA 259, 260 (1993). WWP, 191 IBLA at 180. Id. (citing West Cow Creek Permittees v. BLM, 142 IBLA 224, 238 (1998)). see West Cow Creek Permittees v. BLM, 142 IBLA at 238 (appellant must

show not just that the results he in error, but that they are erroneous").

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disclosed a contrary result."125 An appellant's burden is not met "by mere expressions of disagreement with BLM's analysis and conclusions."126

2. The ALJ Likely Erred in Remanding BLM's November 2013 FGD

After reviewing the pleadings, the administrative record, and the ALJ's August 1, 2017, Order, we conclude, at this stage in the proceedings, that the ALJ likely erred by failing to accord BLM's decision, and the opinion of its experts, appropriate deference. As the original appellant in this appeal, WWP had the burden to show that BLM's FGD was not reasonable or did not represent substantial compliance with the TGA and its implementing regulations. Rather than addressing whether WWP met this burden, the ALJ instead found fault with BLM's data, but without any showing that BLM erred in either collecting or analyzing that data. Further, the ALJ determined that BLM's failure to consider an alternative more protective of sage-grouse and its habitat violated BLM guidance and NEPA, but without any showing that such an alternative was required by BLM's guidance, or was an appropriate and reasonable alternative under NEPA. We stated recently that an ALJ is "required to heed the Board's longstanding principle that an appellant's burden to demonstrate error in a BLM grazing decision, founded on the professional opinion of BLM's experts, wi l l 'not [be] carried by mere expressions of disagreement with BLM's analysis and We find that in this case, the ALJ did not adhere to this principle.

a. SNWA and BLM are likely to succeed in demonstrating that the ALJ erred in finding that the data BLM relied upon was flawed

In making its determination in the SDD that grazing was not a causal factor in the failure of the Scotty Meadows and Cottonwood Allotments to meet Standard 3, BLM relied upon utilization data from 2000, 2001, 2003, 2007, 2008, and 2009, as well as percent composition/cover data from 2007, 2008, 2009, and The

West Cow Creek Permittees v. BLM, 142 IBLA at 238. American Mustang & Burro Association, Inc., 144 IBLA at 150; see Smigel v.

BLM, 155 IBLA at 164; Glanville Farms, Inc. v. BLM, 122 IBLA 77, 87 (1992). 127 BLM, 191 IBLA at 153 (quoting American Mustang & Burro Association, Inc., 144 IBLA at 150).

See BLM Petition at 12-13.

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record also reflects that the Nevada Department of Wildlife (NDOW) agreed with BLM's assessment.129

In its motion for summary judgment, WWP did not allege any errors in BLM's data, or argue that there were other data available that BLM should have used in its analysis. Rather, based on the fact that in the EA, BLM "admitted the allotments were not meeting sage-grouse habitat needs due to a lack of herbaceous understory," WWP's arguments focus on its position that BLM's FGD was not consistent with the 2015 ARMPA, and that BLM was required, under NEPA, to consider alternatives that were more protective of sage-grouse and its habitat.130

In his Order, however, the ALJ concluded that BLM's FGD lacked a rational basis because the utilization data BLM relied upon was "sparse, stale, and th in . " 1 3 1

He found that BLM's conclusion that there was a positive trend towards achieving Standard 3 in the Cottonwood Allotment was "based on intermittent utilization data, the most recent of which was already five years old when BLM issued the FGD in 2013," and the SDD provided "no other corroborating support for the finding of significant progress on the Cottonwood Allotment."132 And he further concluded that BLM's failure to identify a trend in the Scotty Meadows Allotment meant the allotment should be deemed to be failing to meet the habitat standard.133

As BLM explains, the data it relied upon "was gathered during the relevant evaluation period and during the time that the prior permit's terms were being implemented."134 Neither WWP nor the ALJ provides any evidence rebutting BLM's findings or identifies any errors in BLM's collection or analysis of the data. In addition, the ALJ provides no rationale for his conclusion that simply because BLM could not determine a trend on the Scotty Meadows Allotment with respect to Standard 3, i t automatically meant that the allotment was failing to make

See Letter to BLM from NDOW, Apr. 15, 2013, at 1-2 ("Our surveys have documented a long term decline in the number of birds attending the only active lek within the Cottonwood . . . NDOW agrees that current livestock management is not a contributing factor to the non-achievement of Standard 3 -Habitat and Biota.").

WWP Motion for Summary Judgment at see id. at 7-16. 131 Order at 15, 18.

Id. at 15. Id. at 14 n.4 ("BLM's failure to discern any trend on the Scotty Meadows

Allotment should default to a finding of failing to make significant progress."). BLM Petition at 13.

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significant progress toward achieving that standard. Nor does the ALJ cite any authority that prescribes a minimum amount of data required in order for BLM to make a reasoned conclusion about trend in an allotment's condition.135 What is required is that BLM must, based on available data and the opinions of its technical experts, make a decision that is reasonable and supported by the record.136 BLM did so in this case. In his Order, the ALJ offered only his opinion that BLM's data was insufficient. But the ALJ's disagreement with BLM's reliance on, and interpretation of, its data is not based on any objective evidence, and does not demonstrate that BLM's FGD was based on any "material error in methodology, data, analysis, or conclusion."137 Accordingly, we conclude that the ALJ likely erred in finding BLM's data to be inadequate to support the bureau's decision.

b. BLM and SNWA are likely to succeed in demonstrating that the ALJ erred in finding that BLM violated FLPMA

We also find that the ALJ's conclusions regarding FLPMA are likely in error. In his Order, the ALJ concluded that BLM violated FLPMA because its FGD did not comply with I M No. 2013-043, Interim Sage-Grouse Policies and Procedures, which had amended the governing land use plan.1 3 8 The ALJ acknowledged that there was no requirement in FLPMA or the I M "that a livestock grazing permit renewal decision have no impact on sage-grouse or that the potential effects on sage-grouse and its habitat must drive the agency decision to the exclusion of all other factors."139 But the ALJ nevertheless concluded that BLM's renewal of SNWA's grazing permit was inconsistent with the guidance requiring a new land health assessment when data are "inadequate to determine whether progress is being made toward achieving Land Health Standards," and requiring consideration in the NEPA analysis of a reduced grazing alternative.140

We first find that the ALJ likely erred in concluding that BLM's I M amended the governing land use plan, the Ely Resource Management Plan. This is because land use plans can be changed only through a land use planning process, which involves public notice and comment procedures.141 A BLM IM, which is issued

See id. at 12. v. WWP, 191 IBLA at 180. Id.) see West Cow Creek Permittees v. BLM, 142 IBLA at 238. Order 20. Id. at 16. Id. at 18. C.F.R. §§ 1610.5-5, 1610.5-6 (2015).

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without any public process, cannot amend a land use plan. Moreover, the policies articulated in Instruction Memoranda do not have the force and effect of law.1 4 2

Accordingly, any failure by BLM to comply with an guidance does not constitute a violation of FLPMA.

The Board, however, has long held that Instruction Memoranda, while not binding on the Board, are "deemed controlling on the agency . . . We therefore look to whether the ALJ correctly concluded that BLM's FGD was out of step with the direction in I M No. 2013-043. We determine that he did not correctly so conclude.

First, the ALJ concluded that under the IM, BLM was required to undertake a new land health assessment since i t did not have the data necessary for determining whether the Scotty Meadows Allotment was trending toward or away from achieving Standard But the language relied upon by the ALJ in the I M specifically applies only when BLM has determined that livestock grazing was a significant causal factor for an allotment not achieving a standard.145 This was the case in the Scotty Meadows Allotment.

Second, the ALJ concluded that because BLM did not consider in its EA a reduced grazing alternative that could benefit sage-grouse, i t violated the IM's

See Petan Company of Nevada v. BLM, 186 IBLA 81, 96 (2015) (stating that the BLM Manual and Instruction Memoranda "do not have the force and effect of law, since they were not promulgated, in the manner of regulations, by notice and opportunity-for-comment rulemaking, in accordance with the Administrative Procedure Act"); Biodiversity Conservation Alliance, 174 IBLA 174, 180 (2008) (explaining that because Instruction Memoranda are "not adopted pursuant to the rulemaking procedures of the Administrative Procedure Act . . . [they] not have the force and effect of law").

Lassen Motorcycle Club, 133 IBLA 104, 108 (1995); Petan of Nevada v. BLM, 186 IBLA at 97.

See Order at 18. I M No. 2013-043 at 4-5 ("[0]n an allotment that was not achieving land health

standards in the last renewal cycle, and livestock was a significant causal factor," and "[w]here monitoring data are not available or inadequate to determine whether progress is being made toward achieving Land Health Standards, an interdisciplinary team should be deployed as practicable to conduct a new land health assessment.").

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guidance on NEPA alternatives.146 The ALJ reached this conclusion despite the fact that he specifically found that BLM had satisfied the IM's alternatives requirement, stating: "The EA here does meet this minimum requirement."147 The ALJ found fault with the EA because BLM did not consider "some combination o f the alternatives BLM considered, but did not analyze in detail, and the proposed

The ALJ further found that "BLM should also have at least given some consideration to several other possible management modifications, some suggested by WWP, that could benefit But the I M does not require that BLM consider combinations of alternatives, or alternatives with the purpose of benefiting

Rather, the I M directs that BLM include in its NEPA analysis for grazing authorizations "a reasonable range of alternatives (e.g., no grazing or a significant reduced grazing alternative, current grazing alternative, increased grazing alternative, etc.) . . . BLM complied with this directive by considering a no grazing alternative, as well as deferred and rest-rotation grazing.

Ultimately, the ALJ concluded that BLM did not comply with the I M because it did not "seriously consider and incorporate [into the FGD] any terms and conditions that could benefit sage-grouse habitat . . . But BLM complied with the IM, which directs that BLM authorize grazing in a way that "maintains and/or improves" sage-grouse and its habitat,152 by incorporating various measures into SNWA's grazing permit, including establishing a deferred-rotation system to allow perennial grasses and forbs to reproduce and establish a healthy root requiring water hauling along existing roads and to improve cattle distribution throughout the native resting high use areas to improve vegetative and creating the riparian exclosure on the Scotty Meadows Allotment to protect the spring brook and wet meadow, and promote potential sage-grouse use during nesting and brood-rearing.153 While the ALJ appears to conclude

Order at 19 ("The EA does not consider a reduced grazing alternative, such as one limiting grazing to recent average actual use (about 70% of authorized use), as urged by WWP.").

Id. at 18. Id. Id.', see id. at 20. I M No. 2013-043 at 5.

Order 20. I M No. 2013-043 at 5. BLM Petition at 14, see Final EA at 21, 23 ("Temporary water hauls would

draw livestock away from the permanent water sources and up onto the benches.

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that these measures are insufficient, his difference of opinion is insufficient to demonstrate error in BLM's FGD.

We therefore see no basis for the ALJ's determination that BLM failed to comply with the I M No. 2013-043, and conclude that he likely erred in finding that BLM violated FLPMA.

c. BLM and SNWA are likely to succeed in demonstrating that the ALJ erred in finding that BLM violated NEPA

In his Order, the ALJ determined that BLM violated NEPA because BLM did not consider in its EA additional alternatives or modifications to SNWA's grazing permit that could benefit sage-grouse while still meeting livestock management objectives.154 The ALJ agreed with WWP's assertion that none of the alternatives considered by BLM "responded to the fact that sage-grouse habitat on the allotment was in poor condition . . . The ALJ specifically suggested that BLM should have included an alternative that reduced grazing to average actual use, and alternatives that combined elements of the proposed action and other alternatives described in the

We find, however, that the ALJ's conclusion likely is not consistent with NEPA, or in line with Board precedent.

[5] NEPA requires that an EA include a brief discussion of appropriate alternatives.157 Appropriate alternatives are those that "wil l accomplish the project's intended purpose, are technically and economically feasible, and wi l l avoid or minimize adverse environmental impacts."158 NEPA does not require that an agency consider a minimum number of alternatives, and it generally suffices for an

This would relieve grazing pressure and improve vigor on vegetation near the permanent water sources . . . ."). 154 Order 20. 155 WWP Motion for Summary Judgment at 16.

Order at 19 ("For example, why not leave the FGD's [riparian] exclosure in place to protect the most sensitive part of the Shoshone Ponds ACEC, while incorporating a rotation system in the remainder of the Scotty Meadows Allotment . . . ?").

40 C.F.R. § 1508.9(b); 43 C.F.R. 46.310(a). Company, 186 IBLA 325, 336 (2015) (quoting Cascadia

Wildlands, 184 IBLA 385, 409 (2014)); Biodiversity Conservation Alliance, 183 IBLA 97, 124 (2013); Guardians, 182 IBLA 100, 107 (2012).

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agency to consider a no action and proposed action alternative in an EA, particularly i f the proposed action wi l l achieve environmental benefits.159 I f BLM decides not to afford detailed analysis to any alternative, BLM is required to briefly explain the reasons for not doing so, and an appellant's burden is to demonstrate, with objective proof, that BLM erred in its decision.160 "[T]he fact that a party may favor an alternative other than that adopted by BLM does not render the action taken by BLM

Here, in addition to its proposed action renewing SNWA's permit, BLM considered other alternatives, including a no grazing alternative under which SNWA's grazing permit would be terminated and no grazing would be authorized in the Allotments. By considering the no grazing alternative, BLM's range of alternatives covered "either end of the spectrum" of As we have explained, BLM need not discuss myriad alternatives, "each resulting in an incremental change in the overall impact" of a proposed action, and i t is sufficient when BLM sets forth the implications of its proposed action and the no action

BLM's failure to consider an alternative that reduced grazing to actual average use or that combined elements of other alternatives did not violate NEPA.

Moreover, an alternative to benefit and its habitat would not be an "appropriate alternative" required to be considered in the EA since i t would not meet BLM's purpose and need, which, as stated in the EA, was "to manage livestock grazing on public lands to provide for a level of grazing consistent with multiple use, sustained yield, and watershed function and health; to authorize grazing use in accordance with applicable laws, regulations, policies and land use and to improve conditions on the allotments [through grazing management] in order to meet or make significant progress towards achieving rangeland health . . .

While BLM's purpose and need included improving conditions to help achieve the habitat standard for each allotment, which would benefit sage-grouse and its

Klamath Siskiyou Wildlands Center, 190 IBLA 295, 306 (2017); Randy L . 187 IBLA 298, 303 (2016); Roseburg Resources Company, 186 IBLA at 336

(citing Earth Island Institute v. United States Forest Service, 697 F.3d 1010, 1022 (9th Cir. 2012)).

WWP, 191 IBLA at 260. Southern Utah Wilderness Alliance, 152 IBLA 216, 224 (2000). In Re Blackeye Again Timber Sale, 98 IBLA 108, (1987). Id. Final at 1.

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habitat, any alternative considered also had to meet BLM's objectives of authorizing and managing livestock grazing on the Allotments. Further, the ALJ's determination that BLM should have considered alternatives that were specifically designed to benefit sage-grouse overlooks the design features BLM incorporated into its FGD that are intended to benefit sage-grouse and its habitat. For example, the FGD requires water hauling, which is anticipated to improve herbaceous understory for sage-grouse, and creation of a riparian exclosure in the Scotty Meadows Allotment, which could encourage early and late brood-rearing use by

In addition, deferred and rest-rotation grazing would allow vegetative conditions to improve, benefiting sage-grouse.166

Neither WWP, on summary judgment, nor the ALJ, in his Order, provided objective evidence demonstrating that their suggested alternatives were reasonable and appropriate, and that the impacts of any such alternatives were not already encompassed by the alternatives BLM included in the EA. The ALJ's determination that BLM violated NEPA's requirement for a reasonable range of alternatives amounts to a difference of opinion, which cannot overcome the reasoned opinions of BLM's technical

Finally, the ALJ found that BLM violated NEPA because in its EA i t did not "balance the positive and negative effects" of the alternatives "or explain why the proposed action is superior."168 But this is not required by NEPA, and the ALJ provides no authority for his assertion of error.

The ALJ's holding appears to have been based on his conclusion that NEPA compelled BLM to "make at least some attempt to foster the enhancement or restoration of healthy sage-grouse habitat on the subject Allotments."169 But NEPA does not compel an agency to take any particular action. Indeed, it is well-established that NEPA is a procedural statute that is designed to provide decision

Id. at 21; see id. ("While Greater Sage-Grouse are not currently known to use the Scotty Meadows riparian area, the recovery of riparian vegetation may encourage early and late brood-rearing use.").

Id. at 21, 23. See WWP, 191 IBLA at 216; Southern Utah Wilderness Alliance,

158 IBLA 212, 216 (2003); Blue Mountains Biodiversity Project, 139 IBLA 258, 267 (1997) ("A mere disagreement or difference of opinion as to the proper alternative wil l not suffice to establish error in BLM's choice of alternatives.").

Order at 19. Id. at 13.

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makers with adequate information to make a decision,' but NEPA does not require that the decision made is the one "that is most solicitous of environmental conservation."170 Here, BLM satisfied its obligation under NEPA by considering the environmental effects of its proposed action and alternatives. As the United States Supreme Court explained: "NEPA itself does not mandate particular results, but simply prescribes the necessary process. . . . I f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental

Although the ALJ stated that he was "not trying to manage the Allotment for BLM," his Order appears to do just that by holding that BLM violated the law in failing to strike a different balance among resources.172 As BLM states, however: "A BLM decision cannot be overturned because the agency could have balanced competing resources differently. The BLM had the discretion to strike its own balance so long as i t has a rational basis for doing so."173 The ALJ's preference for a management scheme in the Allotments that would be more protective of sage-grouse and its habitat does not demonstrate error in BLM's decision.

3. BLM and SNWA Have Shown a Likelihood of Immediate and Irreparable Harm if a Stay is not Granted

By remanding BLM's FGD, ALJ Pearlstein's Order automatically nullified SNWA's renewed permit and placed back into effect SNWA's prior As a consequence, in the absence of a stay of the ALJ's Order, SNWA would graze its cattle under that prior permit, and the terms and conditions of the renewed permit,

170 Friends of the Nestucca Coast Range Association, 144 IBLA 341, 356 (1998). Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see

Wyoming Outdoor Council, 176 IBLA 15, 25 (2008) BLM has satisfied the procedural requirements of section 102(2)(C) of NEPA, it wi l l be deemed to have complied with NEPA, regardless of whether a different substantive outcome would be reached by appellants, this Board, or a reviewing (quoting Biodiversity Conservation Alliance, 174 IBLA 1, 14 (2008)).

Order 20. BLM Petition at 15.

See Order, June 10, 2014, at 2 ("[V]acating the FGD would return grazing management on these Allotments to the terms and conditions of the previous permit"); Order, May 1, 2017, at 4 ("A remand would theoretically result in a return to the previous permit's terms and conditions.").

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which benefit sage-grouse and its habitat, would not apply.175 As BLM explains, this means that "the deferred-rotation system designed to give additional rest to the native pastures in Cottonwood wi l l be implemented," and "the water hauling in Cottonwood wi l l not be authorized, meaning that livestock wi l l not be drawn away from the high-use areas of the allotment for additional rest."176 In addition, SNWA states that i f a stay is not granted, the riparian exclosure created under the renewed permit would have to be removed, leading to "immediate harm to the habitat of the endangered Pahrump poolfish."177 And SNWA argues that the fence between the two Allotments would also have to be removed, resulting in the drift of cattle between the Allotments and overgrazing.178 BLM and SNWA therefore argue that a stay of the ALJ's August 1, 2017, Order is necessary to prevent the immediate and irreparable harm that would be caused by returning to the terms and conditions of SNWA's prior permit.

We agree, and conclude that BLM and SNWA have provided sufficient justification of immediate and irreparable harm in the absence of a stay. Although WWP argues that there wi l l be no immediate and irreparable harm in the absence of a stay since BLM determined, in its SDD, that livestock grazing was not a causative factor in either allotment's failure to meet Standard this does not mean that there wi l l be no harm to the environment from reverting back to the grazing allowed under SNWA's prior permit.

Moreover, even ALJ recognized that grazing under the renewed permit would be preferable to grazing under the prior permit, recommending that "[t]he FGD's current terms and conditions should remain in . . However, the only way the renewed permit's terms and conditions can remain in effect is i f we stay the effect of the ALJ's Order, and maintain the status quo that has persisted

See BLM Petition at 18. Id. SNWA Petition at 23.

See id. at 20, 24 ("To prevent cattle drift in the absence of the boundary fence, . . . SNWA wil l need to monitor the cattle daily. . . . This is both costly and time consuming, and puts SNWA at risk of violating grazing regulations i f the cattle drift from one side to the other."). 179 WWP Response at 2-3 ("[BLM] vigorously disputes that the prior grazing regime caused any of the Fundamentals of Rangeland Health violations . . . .").

Order at 20; see Order, May 1, 2017, at 4 ("The FGD included additional terms and conditions that were more protective of rangeland health than the previous permit . . . .").

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since ALJ Sweitzer's January 2014 order denying WWP's petition for a stay at the Hearings Division.181 We therefore find BLM and SNWA have satisfied their burden to show a likelihood of immediate and irreparable harm if we do not grant a stay.

4. BLM and SNWA Have Shown that the Balance of Harms Favors a Stay

Because SNWA's renewed permit is more protective of sage-grouse and its habitat, in which WWP has a vested interest, we also find that WWP would not be harmed by a stay, and therefore, that the balance of harms favors a stay.182

Further, we find no evidence in the record that granting a stay would cause harm to sage-grouse, its habitat, or any other aspect of the environment that

would be avoided by declining to grant a stay, which would result in SNWA's prior permit being in effect. For example, as we have already noted, under the renewed permit, BLM implemented a deferred-rotation grazing system for the native pastures, which precludes grazing during the critical growing season and wi l l benefit sage-grouse and its habitat. The renewed permit also provides for temporary water hauling, the construction and the creation of a riparian exclosure, all of which provide protections for sage-grouse and its habitat. In addition, SNWA represents that under the renewed permit's adaptive management approach, "in most cases, i t does not run the maximum number of permitted cattle or graze them for the entire permitted season of use."183

For these reasons, we find the balance of harms favors the grant of a stay.

See BLM Petition at 18 ("The New Permit, with the terms and conditions authorized by the FGD, has been in effect since early 2014 when [WWP's] petition for [a] stay was denied."); see also Holmgren v. BLM, 175 IBLA 321, 333 (2008) ("Ordinarily, stays are granted to maintain the status quo pending resolution of an appeal.").

See Order, Jan. 21, 2014, at 6 ("WWP appears to acknowledge that grazing under the appealed decision would be an improvement over grazing practices under the prior permit "); BLM Petition at 18 ("[WWP] admitted that the FGD's terms and conditions were more protective than the previous permit . . . .").

SNWA Petition at 4 (citing Second Petersen Deck, 4, at 2-3).

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5. BLM and SNWA Ha ve Shown that the Public Interest Fa vors a Stay

Finally, we that the public interest favors the grant of a stay because a stay would maintain the benefits of the renewed permit's protections for sage-grouse and its habitat, including the riparian exclosure, fences, water hauling, and maximum grazing utilization levels, which would otherwise be lost or delayed in the absence of a stay.184

We conclude that BLM and SNWA have carried their burden to establish that they are likely to succeed on the merits of their appeals, and have shown sufficient justification under each of the other three stay criteria. We therefore wi l l grant their petitions for a stay of the effect of the ALJ's Order, during the pendency of the appeals.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,185 we grant BLM's and SNWA's petitions for a stay of the effect of ALJ Pearlstein's August 1, 2017, Order.

See SNWA Petition at 21-22 (citing Order, Jan. 21, 2014, at 4-5, 6); BLM Petition at 18.

43 C.F.R. 4.1.

CONCLUSION

I concur:

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