Court Upholds Use Of Categorical Exclusion for 3-year NPS Grazing Permit

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A court recently upheld the National Park Service’s use of a categorical exclusion when it issued a 3-year permit for cattle grazing in Capitol Reef National Park.  Categorical exclusions allow the agency to avoid more detailed environmental analyses.  The area of the Park at issue contained three threatened or imperiled plant species.  The plaintiffs argued that livestock grazing has the potential for measurable environmental impact on these species, which is all that is needed to require an environmental assessment and prohibit use of a categorical exclusion.  However, the court rejected this argument.  The court noted that, if it were to adopt plaintiff’s view, “it is hard to imagine any action that Park Service could take without preparing an environmental assessment or environmental impact statement.”

The plaintiffs also argued that NPS said that the permit would not have substantial impacts on the plants because it was for a short term, even though NPS acknowledged that cattle grazing could have long-term impacts.  Thus, NPS’s decision was arbitrary.  However, the court held that NPS’s focus on the impact only over the 3-year term of the permit was reasonable.  The court further noted that NPS was conducting an environmental impact statement for a longer term permit that would replace the 3-year permit.

In addition, the plaintiffs argued that a categorical exclusion was not applicable because NPS relied on mitigation measures to justify the continued grazing.  As the plaintiffs’ pointed out, NPS’s policy was that a project was not eligible for a categorical exclusion if it involved mitigation efforts.  However, the court found that the mitigation measures were not the basis for applying a categorical exclusion, but merely additional factors that further supported the decision.

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