Schwenke v. Secretary of the Interior

No. CV 79-133-BLG-JFB (D. Mont. August 15, 1990)

The court holds that the Fish and Wildlife Service's (FWS's) environmental impact statement (EIS) to limit cattle grazing on the Charles M. Russell National Wildlife Refuge in Montana complies with the requirements of the National Environmental Policy Act (NEPA). Ranchers holding grazing privileges on the Refuge challenged the EIS. The court refuses to pass judgment on the methodologies employed by the FWS in preparing the EIS. Likewise, the court holds that NEPA does not require the court to resolve disputes among experts. The court holds that the FWS adequately considered all reasonable alternatives, including a multiple use alternative. FWS reasonably gave this alternative less consideration than the chosen alternative, since the multiple use alternative may be less feasible because it would require congressional action to implement. The court holds that the EIS contains sufficient data to support the FWS's decision to limit grazing. The level of informed public participation fully satisfies NEPA. The court holds that the FWS's decision to suspend transfer of grazing privileges from 1976 to 1979 is not a major federal action requiring an EIS. An EIS is not required for decisions to terminate or issue individual grazing permits. The court denies defendant-intervenor's request for attorney fees and cost for failure to comply with local rules.

Counsel for Plaintiffs
Matt Knierim
P.O. Box 512, Glasgow MT 59320
(406) 228-9331

Counsel for Defendants
Tom France
National Wildlife Federation
240 N. Higgins St., Missoula MT 59802
(406) 721-6705

[21 ELR 20542]

Battin, J.:

Memorandum and Order

Presently pending before this Court are Cross-Motions for Summary Judgment. The Court has fully and carefully considered the arguments of both parties and has examined the applicable law. For the reasons set forth below, the Court grants defendant's and defendant-intervenor's Motions for Summary Judgment and denies plaintiff's Motion for Summary Judgment.

Facts and Procedural Background

Plaintiffs are ranchers in northeastern Montana who hold grazing allotments within the Charles M. Russell National Wildlife Refuse (CMR). In the action as it now stands before the Court, plaintiffs challenge the sufficiency of an environmental impact statement (EIS), prepared under the supervision of the United States Fish & Wildlife Service (FWS), to assess the impacts of grazing on CMR lands. The final EIS for the CMR grazing program was released in August 1985, and, based on the management alternatives identified in this EIS, the FWS recommended cuts in livestock grazing of thirty-three percent (33%). The Assistant Secretary of the Interior approved this proposed alternative on April 22, 1986. Plaintiffs challenged these livestock grazing cuts, and, in doing so, request that this Court invalidate the EIS and the Interior Department's approval of it.

The CMR consists of over a million acres of land surrounding the upper reaches of the Missouri River and the Fork Peck Reservoir. President Franklin D. Roosevelt initially set aside the region as the "Fort Peck Game Range" in 1936 by Executive Order 7509, and thereby withdrew the area from private settlement. The Game Range was established "for the conservation and development of natural wildlife resources and for the protection and improvement of public grazing lands andnatural forage resources." E.O. 7509 (reprinted in Final Environmental Impact Statement, Charles M. Russell National Wildlife Refuge, Appendix 4, at 173) [hereinafter "FEIS"]). The Game Range was placed under the joint jurisdiction of the Secretaries of the Interior and Agriculture. In 1976, however, Congress transferred jurisdiction over the Game Range exclusively to the Secretary of the Interior, to be administered under the National Wildlife Refuge System Administration Act of 1966. Through this and other Congressional actions, the "Fort Peck Game Range" became the "Charles M. Russell Wildlife Refuge," now managed by the FWS. FEIS, at 37.¹

[21 ELR 20543]

Management goals on the CMR are still governed by the directives of the organic Executive Order under which the Game Range was established. Schwenke v. Secretary of the Interior, 720 F.2d 571, 577 (9th Cir. 1983). This Executive Order created:

a limited priority for wildlife beyond which grazing and wildlife preservation have equal status. . . . E.O. 7509 specifically provides that the resources of the [CMR] shall be "first utilized" to support the primary and secondary [wildlife] species. . . . E.O. 7509 established a priority in access to the forage resources of the [CMR] for, in numbers within the Secretary's discretion, a maximum of 400,000 sharptail grouse, 1500 antelope, and that number of secondary species reasonably necessary to maintain a balanced wildlife population. Beyond those limits, wildlife and livestock have equal priority in access to the forage resources of the [CMR].

Id., at 574-75. The CMR must also be managed according to the strictures of the National Wildlife Range System Administration Act. Id., at 578.

Prior to the FWS's assumption of full control over the CMR, the Bureau of Land Managment (BLM) administered the federal grazing lease program on the Game Range. Grazing permits were issued by the BLM, in accordance with the Taylor Grazing Act, private individuals and entities according to estimates of the availability of forage resources within the CMR boundaries. The allocation of these permits was based on a range survey conducted in 1952-1953; this survey concluded that the CMR could support roughly 100,000 AUMs of grazing.² Until it was divested of jurisdiction in 1976, the BLM issued grazing permits to private livestock operators for approximately 60,000 AUMs. The other 40,000 AUMs were allocated to wildlife production.

Shortly after obtaining exclusive management authority over the CMR, the FWS reassessed the condition of the range in light E.O. 7509 and the new Congressional directive to manage the CMR according to the mandate of the National Wildlife Refuge System Administration Act. A new range survey was conducted in 1978 in accordance with the Soil Conservation Service (SCS) National Range Handbook. FEIS, at 48. The FWS also began to prepare an EIS on the CMR grazing program at this time.³ The FWS, acting on its understanding of its management directives from Congress and E.O. 7509, began to alter the balance of grazing between livestock and wildlife by favoring wildlife. The most tangible evidence of this new priority for wildlife was FWS's refusal to transfer grazing permits, traditionally attached to area ranches, to new buyers of these ranches. This policy remained in effect between 1976 and 1979, when the FWS once more began to allow transfer of grazing permits with the transfer of base properties.

Plaintiffs initially filed suit in this Court in 1979 to preclude the FWS from granting wildlife priority over livestock with respect to access to the forage resources of the CMR. This Court upheld the plaintiffs' position that the range resources of the CMR were to be administered on a co-equal basis between livestock and wildlife, in accordance with the Taylor Grazing Act. The Ninth Circuit Court of Appeals reversed that ruling, See Schwenke v. Secretary of the Interior, 720 F.2d 571 (9th Cir. 1983). The Appellate Court determined that E.O. 7509 afforded wildlife a limited priority over livestock, after which livestock and wildlife were to be managed on an equal footing. Id.

While this initial phase of litigation was pending, the FWS completed a draft EIS in 1980, solicited public comment, and held public hearings. After the Ninth Circuit Court's decision was released, the FWS reviewed its 1980 draft EIS, revised it slightly, and issued a new draft in 1984. A two and one-half month public comment period followed, and the FWS convened several public hearings to allow public comment on the second draft EIS. The most controversial portion of the draft EIS focused on the results of the range survey conducted in 1978. The new range survey concluded that the CMR could support approximately 109,000 AUMs of grazing — a result similar to the earlier range survey conducted in 1952-1953. Yet, because of the priority accorded to wildlife under E.O. 7509, the FWS proposed adopting a management plan calling for a thirty-three percent (33%) reduction in the numbers of livestock on the CMR. Under the proposed plan, livestock grazing would be cut on 53 of the 68 grazing allotments on the CMR; grazing would be increased on 4 allotments; and the FWS would take no action with respect to the remaining 11 allotments. Overall, the allocation of forage resources between wildlife and livestock would be reversed, with wildlife given primary access to 63% of the forage and livestock receiving roughly 37% of the range resource.

Because of the controversy stirred by these proposed reductions in livestock grazing, the Secretary of the Interior appointed an independent four-member, interagency review panel to assess both the conclusions of the EIS and the methodology utilized by the FWS to determine the proper allocation of forage resources between wildlife and livestock. While this "Blue-Ribbon Panel" found some irregularities in the study,⁴ the Panel also stated that "[t]he methods described in [the draft EIS] to allocate AUMs are appropriate. The four criteria (range site and condition survey, slope/water matrix, erosion hazards, and wildlife objectives) constitute a solid package." See Report of the Charles M. Russell Wildlife Refuge Draft Environmental Impact Statement Working Group, at 5 (Defendant-Intervenor's Memorandum in Support of Cross-Motion for Summary Judgment, Exhibit 1).

After responding to public and interagency comments to the draft EIS, the FWS released the CMR's final EIS in August, 1985. This FEIS contained evaluations of five alternative management plans for wildlife and livestock in the CMR. The plans considered by the FWS included: (1) taking no action, (2) adopting the proposed alternative with its thirty-three percent (33%) reduction in livestock management, (3) implementing an intensive wildlife management alternative, (4) choosing a multiple-use alternative that would be taken further Congressional action to implement, and (5) permitting no grazing whatsoever on the CMR. For each of these alternatives, the FWS evaluated the environmental consequences that would flow from their adoption. The FWS considered the environmental impacts to soils, watersheds, wildlife habitat, range conditions, and recreation and cultural resources. Additionally, the FWS considered the socio-economic impacts of the alternatives.

On April 22, 1986, the Assistant Secretary of the Interior for Fish, Wildlife, and Parks, William P. Horn, signed a "Record of Decision" adopting the "Proposed Alternative" listed in the FEIS. This alternative allocates "about 63 percent of available forage to wildlife, leaving 37 percent for livestock." See Record of Decision, April 22, 1986 (Memorandum in Support of Plaintiff's Motion for Summary Judgment, Exhibit A). The Assistant Secretary noted that the "Proposed Alternative" was selected because it:

meets the mandates of Executive Order 7509, Public Law 94-233, the National Wildlife Refuge System Administration Act, other applicable legal requirements, and associated court rulings. This alternative also recognizes that appropriate livestock use is consistent with the primary wildlife purposes of the refuge and describes a management program that integrates this use to accommodate legal, policy, and practical considerations.

Id. The FWS prescribed a five-year implementation plan for the livestock reduction on the CMR to mitigate the economic impacts to those livestock operators affected by the decision. Moreover, the FWS implemented a reduction in grazing fees during this transitional period.

Plaintiffs filed an amended complaint in January, 1987, seeking a declaratory judgment invalidating the FEIS (1) because its allocation of AUMS between livestock and wildlife lacks scientific integrity, (2) because the FEIS fails to set forth sufficient data to justify its conclusions, (3) and because the FEIS fails to consider multiple-use management as a viable alternative management scheme under E.O. 7509. [21 ELR 20544] Due to these alleged inadequacies, plaintiffs submit that adoption of the proposed alternative contained in the FEIS did not comply with the requirements of the National Environmental Policy Act (NEPA); they claim that is adoption was arbitrary and capricious and an action taken without observance of procedures required by law. Plaintiffs also request this Court to declare invalid any livestock reductions made by FWS prior to adoption of the FEIS. Moreover, plaintiffs seek an injunction restoring all cuts made in grazing allocations pursuant to the FWS management plan and another injunction prohibiting future reductions until completion and approval of a new EIS.

Both the Secretary of the Interior and Defendant-Intervenors National Wildlife Federation (NWF) hotly contest plaintiffs' assertions regarding the inadequacy of the FEIS and the methodology underlying it. They seek summary judgment on all issues in their favor, and the NWF specifically requests this Court to hold that both the FEIS and the Record of Decision complied with NEPA, to dismiss plaintiff's amended complaint, and to award them costs and attorney fees.

The Court has fully and carefully evaluated the briefs, oral arguments, supporting documents, and legal authority cited by the parties. Furthermore, the Court has thoroughly reviewed the FEIS and the methodologies underlying it. With this background, the Court is now prepared to rule.

Discussion

A. Standards for Summary Judgment

As a preliminary matter, the Court believes that a review of the grounds for granting motions for summary judgment is merited. Rule 56(c), Fed. R. Civ. P., directs courts to render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

When cross-motions for summary judgment are filed, the normal implication is that no disputed issues of material fact exist and that the dispute may be decided as a matter of law. A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1417 n.1 (9th Cir.), cert. denied, 476 U.S. 1117 (1986). Nevertheless, the Court may not merely assume that no material factual issues exist but must ascertain whether any material fact precluding summary judgment remains in contention. Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975); Eby v. Reb Realty, Inc., 495 F.2d 646, 649 n.4 (9th Cir. 1974).

A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the out come of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.

T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)).

In the case at bar, neither party seriously dispute the procedural history of the preparation and approval of the FEIS for the CMR. Nor do the parties dispute the facts leading up to the Assistant Secretary of the Interior's Record of Decision. The parties do, however, argue over the sufficiency and pertinence of the methodology and results obtained through this procedure. The Court's task is therefore to evaluate whether these disputed facts are "material," as defined by the substantive law, and therefore preclude summary judgment.

B. Compliance with NEPA

The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et. seq., provides in part that "all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

42 U.S.C. § 4332(2)(C). This provision of NEPA authorizes federal agencies to prepare environmental impact statements, and it outlines a skeletal framework for the contents of such statements.

As mentioned above, grazing programs on federal lands constitute "major Federal actions" and require preparation of an EIS for each program. Natural Resources Defense Council v. Morton, 388 F. Supp. 829 [5 ELR 20327] (D.D.C. 1974), affirmed, 527 F.2d 1386 (D.C. Cir. 1976). Hence, the FWS examined the grazing program on the CMR and prepared the EIS which is challenged in this lawsuit. Plaintiffs ask this Court to review the FEIS for the CMR for compliance with NEPA.

1. Scope for Judicial Review.

NEPA is a procedural statute that is designed to ensure that federal agencies are fully aware of the impacts of their decisions on the environment. Tribal Village of Akutan v. Hodel, 859 F.2d 651, 657 [19 ELR 20071] (9th Cir. 1988); Half Moon Bay Fishermans' Marketing Assoc. v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988); Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590 [18 ELR 20738] (9th Cir. 1988); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 [17 ELR 20756] (9th Cir. 1987). "NEPA. . . does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 1846 [19 ELR 20743] (1989). Judicial review of agency actions for compliance with NEPA is therefore governed by the Administrative Procedure Act (APA), 5 U.S.C. § 706 (2)(A) & (D). Courts reviewing agency actions under the APA must first ensure that agencies comply with all procedures required by law, and second, courts must ensure that agency decisions are not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Kunzman, at 492.

When faced with the task of reviewing the sufficiency of an EIS prepared pursuant to NEPA, a court must follow a "rule of reason" and make "a pragmatic judgment" (1) whether the EIS's "form, content and preparation foster both informed [agency] decision-making and informed public participation," and (2) whether the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" of an agency decision. Northwest Coalition for Alternatives to Pesticides, 844 F.2d at 591 (citation and quotation omitted); accord, Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U.S. 878, 97 [13 ELR 20544] (1983); Village of Akutan, 859 F.2d at 657; Half Moon Bay, 857 F.2d at 508. As long as the reviewing court is convinced that the agency has taken a "hard look" at a decision's environmental consequences, with the requisite level of informed public participation, "the court's review is at an end." Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 [18 ELR 20497] (9th Cir. 1988), corrected, 867 F.2d 1244 (9th Cir. 1989) (quoting California v. Block, 690 F.2d 753, 761 [13 ELR 20092] (9th Cir. 1982)); see also Methow Valley Citizens Council, 109 S. Ct. at 1846; Half Moon Bay, 857 F.2d at 508.

"The reviewing court may not 'fly speck' an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies." Kunzman, 817 F.2d at 492; accord Northwest Coalition for Alternatives to Pesticides, 844 F.2d at 591. Nor may a reviewing court substitute it judgment for that of the agency regarding the prudence of the proposed action. Half Moon Bay, 857 F.2d at 508; Kunzman, at 492. Even though it may be apparent to a court with the benefit of hindsight that the analysis contained in an EIS could be improved, this alone does not render an EIS insufficient. Cf. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1058 [15 ELR 20907] (9th Cir. 1985) (refusing to invalidate an EIS that could have been "a better, more informative document"). Furthermore,

NEPA does not require that [courts] decide whether an [EIS] is based on the best scientific methodology available, nor does NEPA require [courts] to resolve disagreements among various scientists as to methodology. [The courts'] task is simple to ensure that the procedure followed by the [agency] resulted in a reasoned analysis of the [21 ELR 20545] evidence before it, and that the [agency] made the evidence available to all concerned.

Friends of Endangered Species v. Jantzen, 760 F.2d 976, 986 [15 ELR 20455] (9th Cir. 1985). (citations omitted); accord Village of Akutan, 859 F.2d at 659; Kunzman, at 496.

Finally, "[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate." Better Henderson, 768 F.2d at 1057. On the other hand, an EIS is not insufficient merely because it fails to consider every conceivable alternative to the proposed action. Only reasonable alternatives need to be addressed in an EIS, not every alternative, or even a plaintiff's preferred alternative. Northwest Regional Coalition for Alternative Pesticides, 844 F.2d at 591; Animal Defense Council, 840 F.2d at 1441. In short, the reviewing court's role is not to decide on the best alternative, or the best methodologies underlying the alternatives studied, but to determine "whether the environmental Impact Statement provided adequate information to allow the Secretary [of the Interior] reasonably to decide that question." Better Henderson, at 1058.

2. Did the EIS Procedure Ensure Scientific Integrity?

Plaintiffs argue that the FWS failed to ensure the "scientific integrity" of their studies of the range carrying capacity at CMR, thereby violating 40 C.F.R. § 11502.24.⁵ Because of this alleged failure to protect scientific integrity, plaintiffs request this Court to find that the FWS did not comply with the procedure required by law and that the FWS decision to cut livestock grazing on CMR was arbitrary, capricious, and an abuse of discretion. 5 U.S.C. § 706 (2)(A) & (D).

Plaintiffs cite purported irregularities in each of the four steps used by FWS to allocate AUMs between livestock and wildlife in order to comply with E.O. 7509, the FWS first hired a number of independent range scientists to conduct a range survey according to the standards set forth in the SCS National Range Handbook. These individuals collected the raw field data, but the FWS assigned the task of calculating the baseline stocking rates from the raw data to a staff range conservationist. Plaintiffs contend that removing the calculation of the base stocking levels from the field scientists violates acknowledged "scientific practices." Defendants maintain, by contrast, that calculation of stocking rates is a purely mechanical task and that it is not unusual to turn over the calculations to a technician.

(1) In determining the proper allocation of AUMs between livestock and wildlife in order to comply with E.O. 7509, the FWS first hired a number of independent range scientists to conduct a range survey according to the standards set forth in the SCS National Range Handbook. These individuals collected the raw field data, but the FWS assigned the task of calculating the baseline stocking rates from the raw data to a staff range conservationist. Plaintiffs contend that removing the calculation of the base stockjing levels from the field scientists violates acknowledged "scientific practices." Defendants maintain, by contrast, that calculation of stocking rates is a purely mechanical task and that it is not unusual to turn over the calculations to a technician.

(2) The second step that the FWS used to determine the proper number of AUMs available on the CMR was a construct a mathematical model to simulate the use of forage by livestock in relation to steepness of slope and distance from water. Plaintiffs maintain that the FWS constructed this technique from scratch and that it is not a scientifically sound methodology for predicting livestock distribution and utilization of forage. Defendants acknowledge that the particular slope/water matrix technique used on CMR was not widely used prior to the CMR EIS study, but they point to the availability of a unique data base that existed for the CMR because of a prior scientific study of livestock-wildlife interaction that had been conducted in the area. This previously existing, detailed data base justified the use of this particular slope/water matrix, according to defendants. Moreover, the Secretary notes that correlating slope and distance from water with grazing pressure is a widespread practice within both the U.S. Forest Service and the BLM when these agencies determine the proper grazing levels on other federal allotments within their jurisdiction.

(3) The FWS next studied the geology of the CMR and reduced the number of AUMS available in areas containing highly erosive soils. In essence, the FWS treated these soils as having zero grazing potential. Plaintiffs maintain that eliminating all livestock grazing from these soils violates the procedures outlined in SCS National Range Handbook and the Montana Grazing Guidelines.⁶ Defendants respond that suspension of grazing on certain highly erodible soils was a discretionary decision based on recommendations of soil scientists and wildlife managers to protect soils, watersheds, and wildlife habitat. They also note that neither the SCS Handbook nor the Montana Grazing Guidelines mandate stocking highly erosive soils with livestock, even at reduced levels.

(4) The final step used in determining the number of available AUMs on the CFR was to conduct a region-wide "Habitat Evaluation Procedure" (HEP) for seventeen specified wildlife species. Plaintiffs criticize this methodology as unproven and untested. They assert that unmanageable variables, such as slope exposures and locations of coulees, were included in the HEP. They also claim that the HEP process employed subjective evaluations of the value of certain habitats, and they claim the study was based on too few sample sites. Defendants respond that the HEP technique had been discussed in scientific literature well before its implementation on the CMR, and that it was fine-tuned for the CMR study by a fully qualified inter-agency research team. As such, defendants maintain that the HEP process was well-grounded in accepted scientific principles. Defendants also imply that plaintiffs fundamentally misunderstand the HEPprocess. According to defendants, non-manageable variables were included only as background, contextual variables; the "so-called" subjectivity in the HEP reflected the field observations of trained wildlife biologists; and the level of sampling was far more detailed than plaintiffs represent.

Both parties support their respective arguments over the propriety of the various methodologies used in the CMR study with detailed citations to affidavits of range management experts, which sometimes become nearly vitriolic in support of one position or the other. Plaintiffs' experts vehemently assert that the procedures followed did not comport with the norms of scientific study. Defendants' experts claim with equal vigor that the procedures employed were completely justified and appropriate.

After a thorough review of the positions of the parties and the FEIS, the Court believes that, although plaintiffs try to couch their arguments as challenges to the scientific integrity of the EIS process, what plaintiffs actually seek is to have this Court pass judgment on the methodologies employed by the FWS in compiling the FEIS. As noted above, "NEPA does not require the courts to resolve disagreements. . . as to methodology." Village of Akutan, 859 F.2d at 659; Jantzen, 760 F.2d at 986. Furthermore, "[w]hen specialists express conflicting views, an agency must have a discretion to rely on the reasonable opinions of its own qualified experts even if, as an original mater, a court might find contrary views more persuasive." Marsh v. Oregon Natural Resources Council, 109 S. Ct. 1851, 1861 [19 ELR 20749] (1989); see also Sierra Club v. Froehlke, 816 F.2d 205, 214 [17 ELR 20817] (5th Cir. 1987) ("Academic disagreements over proper methodology are not enough to condemn an otherwise adequate EIS."); Montana Wildlife Federation v. Morton, 406 F. Supp. 489, 491 [6 ELR 20435] (D. Mont. 1976) ("[D]isagreement among experts cannot, alone, invalidate an EIS.").

In this case, the FWS's own experts assured the agency that the methodologies employed were sound. Moreover, the independent review panel appointed by the Secretary of the Interior to analyze the draft EIS characterized the four methodologies used as "appropriate" and stated that they constituted "a solid package." See Report of the Charles M. Russell Wildlife Refuge Draft environmental Impact Statement Working Group, at 5 (Defendant-Intervenor's Memorandum in Support of Cross-Motion for Summary Judgment, Exhibit 1). The Court therefore refuses to find the methodologies employed in the EIS process inadequate, and defers to the considered judgment and expertise of the agency. To reach any contrary conclusion would immerse this Court in impermissible "fly specking" and would constitute an intrusion into the discretionary authority of the FWS. Thus, the dispute over the methodologies employed in compiling the FEIS

1. Although the FWS retains primary jurisdiction over the wildlife resources of the CMR, the area is actually managed by a complex mosaic of federal and state agencies. FEIS, at 37. Most significantly, the FWS jointly manages the CMR with the U.S. Army Corps of Engineers which is responsible for the control and maintenance of Fort Peck Dam and Reservoir. The are within the Army Corps of Engineers primary jurisdiction totals 588,464 acres, including the 249,000-acre Reservoir. The FWS retains secondary jurisdiction over the wildlife resources in the upland regions of this portion of the CMR. FEIS, at 36.

2. An "AUM" abbreviates the term "Animal-Unit-Month" which is defined as "the amount of feed or forage required by a 1,000 pound animal for one month." FEIS, at 248.

3. The FWS initiated the EIS process in response to Natural Resources Defense Council v. Morton, 388 F. Supp. 829 [5 ELR 20327] (D.D.C. 1974), affirmed, 527 F.2d 1386 (D.C. Cir. 1976), in which the court held that the BLM's grazing programs on federal lands constituted a "major federal action" for purposes of the National Enviromental Policy Act, requiring the preparation of EIS's for individual grazing programs nationwide.

4. The Panel was most critical with respect to apparent overstocking of certain grazing allotments with livestock, even under scheme proposed in the draft EIS. See Report of the Charles M. Russell Wildlife Refuge Draft Environmental Impact Statement Working Group, at 7-9 (Defendant-Intervenor's Memorandum in Support of Cross-Motion for Summary Judgment, Exhibit 1).

5. "Agencies shall ensure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used . . . . An agency may place discussion of methodology in an appendix." 40 C.F.R. § 1502.24

6. Plaintiffs also claim that the soil classification system, see FEIS Appendix 7, is not decipherable by "interested non-professional layperson likely to be affected by the actions taken under the EIS." Kunzman, 817 F.2d at 493-94. The Court finds this argument without merit. Plaintiffs have not directed the Court's attention to any public comments to the draft EIS about the soil classification system used on the CMR indicating that this system was confusing or indecipherable. Moreover, after the Court's own inspection of Appendix 7, the Court cannot agree with plaintiffs' characterization of the system as indecipherable by laypersons.