                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 08 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



OREGON NATURAL DESERT ASS’N;                     No. 11-35143
WESTERN WATERSHEDS PROJECT,
                                                 D.C. No. 3:06-cv-01311-MO
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

CAROLYN FREEBORN, Field Manager,
Jordan Resource Area, BLM; DAVE
HENDERSON, Vale District Manager,
BLM; BUREAU OF LAND
MANAGEMENT; UNITED STATES
DEPARTMENT OF THE INTERIOR,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                      Argued and Submitted October 12, 2011
                                Portland, Oregon

Before: EBEL,** BERZON, and N.R. SMITH, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
      Oregon Natural Desert Association and Western Watersheds Project

(collectively ONDA) appeal the district court’s grant of summary judgment in

favor of the Bureau of Land Management (BLM) and BLM officials. The district

court held that ONDA’s National Environmental Protection Act (NEPA) challenge

to BLM’s March 2010 decisions regarding grazing management in the Louse

Canyon Geographic Management Area of southeastern Oregon was rendered moot

by BLM’s subsequent December 2010 grazing management decisions. Because

ONDA’s challenge is not moot, we reverse and remand.

      1. The BLM’s December 2010 decisions left challenged conditions from the

March 2010 decisions still in effect: (1) conditions on the use of already-built

range projects and (2) conditions on the reissuance of grazing permits. Both had

initially been authorized by the BLM in its July 2005 grazing management

decisions. In its June 2010 amended complaint, ONDA challenged the use of

already-built range projects by requesting that the court enter an injunction to

remove designated projects. ONDA also challenged the reissuance of grazing




                                          2
permits by requesting that the March 2010 decisions (which renewed the July 2005

decisions to reissue the grazing permits) be set aside.1

      While BLM argues that the December 2010 decisions superseded the March

2010 decisions, the December 2010 decisions only reaffirmed the parts of the

March 2010 decisions that governed use of already-built range projects and the

issuance of grazing permits. Because those same conditions are still in effect and

the same controversies exist after the issuance of the December 2010 decisions,

ONDA’s NEPA challenge to the March 2010 decisions was not mooted by

superseding agency decisions. See Kescoli v. Babbitt, 101 F.3d 1304, 1308–09

(9th Cir. 1996).

      2. Effective relief would be available to remedy BLM’s alleged violations

of NEPA stemming from the March 2010 decisions (as reaffirmed by the

December 2010 decisions). Effective relief is available to remedy the harms from

the already-built range projects. The district court could order BLM to mitigate the

damage caused by those projects constructed in violation of NEPA. See Or.

Natural Res. Council v. U.S. BLM, 470 F.3d 818, 820–21 (9th Cir. 2006).


      1
        Even if ONDA did not adequately challenge the two conditions in its
amended complaint, the parties offered sufficient evidence regarding those
conditions at the summary judgment stage. The district court could then allow
ONDA to amend its prayer for relief to reflect the issues presented at summary
judgment and meet the applicable pleading standards.

                                           3
      Effective relief is also available to remedy the harms from issuing the

grazing permits. Grazing is currently conducted in accordance with the court-

approved 2002 interim grazing management strategy. However, for any grazing to

take place at all, it must be authorized by a grazing permit. See 43 C.F.R.

§ 4130.2(a). If BLM violated NEPA when it made the March 2010 decisions (that

reaffirmed the reissuance of the grazing permits in the July 2005 decisions), the

district court could end such authorization and thereby halt any grazing through

enjoining the March 2010 decisions. The district court could also order BLM “to

develop tactics to mitigate the damage caused by [any NEPA] violation[s], such as

moving or removing livestock from the allotments so the land can repair itself.”

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1094 (9th Cir. 2003).

ONDA’s challenge is therefore not moot.

      3. ONDA requests that we direct the district court to issue a permanent

injunction to ensure that BLM complies with NEPA. However, the

appropriateness and scope of an injunction “raise[s] intensely factual issues, and

for that reason should be decided in the first instance by the district court.” Alaska

Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 732 (9th Cir.

1995) (internal quotation marks omitted). BLM did not submit evidence “as to the

scope of permanent injunctive relief” to the district court, and so the record has not


                                           4
been fully “developed in [that] respect.” Natural Res. Def. Council v. U.S. Forest

Serv., 421 F.3d 797, 816 n.29 (9th Cir. 2005).

      Thus, we remand this case to the district court for consideration of the merits

of ONDA’s NEPA challenge. On remand, the court should address the

appropriateness of ONDA’s requested injunctive relief and the proper scope of any

granted injunctive relief.

      REVERSED AND REMANDED.




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