Fight for Missouri Breaks Reaches 9th Circuit

SEATTLE (CN) - Environmentalists urged the 9th Circuit to revive their challenge to grazing and development in the Upper Missouri River Breaks National Monument.

A majestic landscape in northern Montana, the 377,000-acre monument remains largely unchanged since Lewis and Clark explored it in 1805. President Bill Clinton designated the area, which includes 149 miles of the Upper Missouri River, as a National Monument in 2001. The land hosts some of the largest elk and big horn sheep herds in the United States, and three of its sections are designated as "wild and scenic."

Environmentalists balked in 2009 when the Bureau of Land Management approved a management plan that prioritized cattle grazing, oil and gas development, and motorized recreation over conservation.

Western Watersheds Project claimed that the bureau had failed to conduct an environmental impact statement about grazing before determining it was not a significant issue.

In a separate complaint, the Montana Wilderness Association said the agency violated environmental laws in authorizing airstrips for private planes, natural resource extraction, off-road travel and motorized boat use.

The cases were consolidated, and U.S. District Judge Sam Haddon granted the bureau summary judgment in 2011, finding that the agency abided by "multiple use principles" to protect the monument.

"The interpretation that providing for multiple use was required so long as monument objects were protected was reasonable," the order states.

Western Watersheds Project and the Montana Wilderness Association argued separately before a three-judge appellate panel last week that the bureau should be required to "do the analysis it didn't do the first time around."

Melanie Kay, an EarthJustice attorney for the environmentalists, said the bureau violated its legal obligations in managing the monument.

"Instead of getting sorely needed on the ground inventory information, the BLM simply assumed there's not going to be any impacts and they just hired some consultants to review existing literature," she said.

The BLM identified routes it wanted to keep open and then "worked backwards" to wrongfully designate the rutted tracks as "roads," Kay added.

This allegedly allowed the agency to bypass the proclamation's ban on off-road travel.

Representing the Montana Wilderness Association, attorney Matthew Bishop said that the bureau wrongfully designated 24 miles of "ways" as "roads" because the road designation disqualifies areas for wilderness protection.

"The reason this is such a concern is because now all the sudden these formerly roadless areas all of the sudden have roads in them and the wilderness value such as opportunities for solitude, apparent naturalness, which is why these areas were set aside, is now degraded because you have roads in wilderness study areas," said Bishop, of the Western Environmental Law Center in Helena, Mt.

Bishop called this a violation of Federal Land Management Policy and Management Act.

Judge Ronald Gould asked if the environmentalists would still be concerned about off-road driving and camping if monument visitors were limited to maintained roads.

Bishop replied: "The impacts would be a lot less severe if you were limiting travel to the actual maintained roads."

Western Watersheds attorney Thomas Woodbury said the bureau failed to take a hard look at other management options and decided livestock grazing would take precedent over all other uses.

Judge Richard Paez asked: "Is it your position that, in order to carry out the purpose and the meaning of the proclamation, the BLM has to basically either eliminate grazing in the proclamation area or cut back significantly?"

Woodbury replied that the BLM was required to look at all options, including "no grazing," but it wouldn't be "realistic" to eliminate all cows from the monument.

Justice Department attorney Robert Stockman said the agency's management plan, took "very exhaustive look at the impacts from grazing."

Cows are filling the environmental role that once belonged to other species such as buffalo, Stockman said.

The proclamation establishing the monument specifically said that grazing was a historical use and could continue, he argued.

"That's very different than some other monuments," he said.

Judge Raymond Fisher, participating in the hearing through a remote video feed, said he felt "uneasy" that the bureau had read the proclamation to say grazing was "grandfathered in and you can't make any changes."

"I hope that's not the position BLM is taking," Fisher said.

Stockman replied that the bureau does not deem grazing untouchable, but rather as generally acceptable and not suited for an extra environmental review.

"None of the plaintiffs can point to any evidence that suggests there will be harm to objects in the monument," Stockman said.

The bureau's management plan also makes "a huge number of changes," "all to protect the monument," he added, noting that these changes include closing some roads and airstrips, prohibiting off-road travel, and restricting oil and gas drilling.

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