Judge Strikes Documents in Eco Fight

     RENO, Nev. (CN) – A federal judge will not accept environmentalists’ declaration and supporting documents in a legal fight over a federal plan to improve natural habitat on 600,000 acres south of Ely, Nevada.
     U.S. District Judge Howard D. McKibben granted a motion to strike information submitted by the Western Watersheds Project, which accuses the Bureau of Land Management of violating the Administrative Procedure Act in its project in the Cave Valley and Lake Valley watersheds.
     The BLM claims the plan will “improve habitat for all wildlife, especially sage grouse and big-game species” and “achieve better distribution of livestock and wildlife, and improve overall rangeland health.”
     But Western Watersheds says the BLM “intends to mow, chop, burn and poison sagebrush within what the Nevada Department of Wildlife considers ‘essential and irreplaceable’ greater sage grouse habitat. In addition, the BLM’s decisions permit the construction or reconstruction of over 400 miles of fences and new wells, reservoirs, pipelines and livestock watering facilities within key sage-grouse habitat.”
     Western Watersheds Project challenged the plan in a federal complaint in Idaho that was transferred to Nevada in 2013.
     “This plan is harmful to sage grouse because it would fragment habitat, increase the spread of weeds at new water sites, cause direct mortality through collisions with new fencing and destroy sage-grouse nesting habitat through livestock trampling,” Western Watersheds says.
     “The proposed projects will also affect other wildlife in the Cave Valley and Lake Valley watersheds, including Rocky Mountain elk, mule deer, pronghorn antelope, desert bighorn sheep, Brewer’s sparrow, sage thrasher and green-tailed towhee. Thirty-one sensitive species live in the project area, including bald eagle, pygmy rabbit and a number of native bats.
     “In spite of this knowledge, the BLM decided to implement a landscape-scale sagebrush and juniper eradication program and range development project under the guise of ‘Watersheds Restoration.'”
     Western Watersheds on Sept. 17, 2014 filed a motion for partial summary judgment and provided a declaration and supporting maps and photographs from its National Environmental Policy Act coordinator, Kenneth Cole.
     U.S. Attorney Daniel G. Bogden filed a motion to strike , saying Cole’s information provided nothing useful for the court to consider.
     “Although it had the opportunity to do so, [Western Watersheds Project] did not move to supplement the record with these materials. Instead, plaintiff has submitted them for the first time during litigation while neither moving for leave to do so nor offering any basis for the court to consider these extra-record materials,” Bogden wrote in his motion to strike.
     Cole provided 12 maps that the Western Watersheds says show “‘approved vegetation treatments relative to other natural resource consideration'” and illustrate the “complex interrelation of the treatment areas,” Judge McKibben wrote in his order.
     Bogden claims that “the problem is that in redoing maps already created by the BLM, Mr. Cole ignored the requirements of the restoration plan.”
     Western Watersheds “then relied on the false assumptions reflected in the maps done by Mr. Cole to draw erroneous conclusions about the plan and present them to the court,” Bogden wrote.
     Cole also submitted photographs showing “disturbed soil” near the Cave Valley treatment area that he says shows the BLM did not abide by the project’s treatment plan.
     However, “Pictures purporting to show the result of the treatments shortly after they were administered are not particularly helpful in demonstrating the success or failure” of the project that has “long-term objectives to be achieved over 5-10 years,” McKibben wrote.
     Cole’s maps show prescribed fire will be used in eight sites that receive less than 12 inches of annual precipitation, McKibben wrote. He said the maps were based on project maps that do not account for the restriction against prescribed fires in areas that get less than 12 inches of annual precipitation.
     Information provided by Cole’s declaration and supporting maps and photographs already are “in the record” and Western Watersheds should be able to “make their argument even without the declaration,” McKibben wrote.
     He granted the motion to strike Cole’s declaration and supporting documents.
     The Western Watersheds Project and Bogden could not be reached for comment Friday.

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