In Western Watersheds Project v. Haaland (“Western Watersheds”), the Tenth Circuit Court of Appeals evaluated the United States Forest Service’s 2019 approval of ten-year permits for horse and cattle grazing on a portion of land known as the Upper Green River Area Rangeland (“UGRA Project”) near Yellowstone National Park in Wyoming. The Forest Service’s Record of Decision (ROD) authorizing the project relied on a biological opinion by the U.S. Fish and Wildlife Service which concluded that the project “would not jeopardize the continued existence of grizzly bears” in the Greater Yellowstone Ecosystem. The U.S. Fish and Wildlife Service (FWS) listed grizzly bears as threatened under the Endangered Species Act in 1975, identifying livestock grazing practices as one key threat to the species.
Western Watersheds Project and accompanying environmental advocacy organizations (the Appellants) argued that agencies’ assessment and approval of the UGRA Project violated the Endangered Species Act and the National Forest Management Act. The court agreed in part. Appellants requested that the court vacate the ROD authorizing the project. Instead, the court remanded to the FWS and the U.S. Forest Service (USFS) without vacatur or other injunctive relief, allowing livestock grazing to continue despite potential harms to grizzlies. The court provided limited support for its reasoning that remand to the agencies without vacatur was the appropriate remedy in this case, merely pointing to the consequences of a vacatur which were raised by USFS and FWS and which Appellants had not addressed. Nowhere in its decision did the court consider other injunctive relief. With this disposition, the court deviated from general practice of the Tenth Circuit and other circuits of remanding cases to district courts for evaluation of the appropriateness of vacatur or other injunctive relief. Given the substantive nature of the agency deficiencies of concern in Western Watersheds, this disposition sets an improper precedent and indicates that projects that seriously violate critical protective statutes may plunge ahead before being corrected.
