Full opinion text
MEMORANDUM AND ORDER RAMIREZ, District Judge. The parties’ cross-motions for summary judgment came on regularly for hearing before the undersigned on November 19, 1984. All parties were present and represented by respective counsel as was amicus curiae, STATE OF CALIFORNIA. The parties have in effect submitted the case for trial upon an agreed record since neither plaintiffs nor defendants have alleged that genuine triable factual issues exist. On May 9, 1984, plaintiffs (five environmental and wildlife organizations and one individual) filed a petition for review and complaint challenging the final rules and agency actions of the Secretary of the United States Department of the Interior, “the Secretary,” and the Director of the Bureau of Land Management, “the BLM.” Based on the various issues presented and the status of the parties involved, the Court finds that jurisdiction is properly predicated on the provisions of 28 U.S.C. § 1331. INTRODUCTION The case before the Court is complex and involves issues of national importance and first impression. The regulations under attack are amendments to existing Department of Interior regulations with one common characteristic. Each pertains to the management of domestic livestock grazing on lands owned by the federal government and under the management jurisdiction of the BLM. Plaintiffs maintain in this action that defendants’ rules and actions violate dozens of sections of several comprehensive federal statutes, including, but not limited to: the Taylor Grazing Act of 1934, 43 U.S.C. § 315, et seq.; the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701, et seq.; the Public Rangelands Improvement Act of 1978 (PRIA), 43 U.S.C. § 1901, et seq.; the Administrative Procedures Act (APA), 5 U.S.C. § 551, et seq.; and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. In substantial degree plaintiffs’ positions are upheld in this opinion. One issue which has dominated all others in the instant litigation is plaintiffs’ challenge to the Secretary’s so-called “Cooperative Management Agreements” (CMAs) by which defendants have permitted selected ranchers to graze livestock on the public lands in the manner that those ranchers deem appropriate. For reasons stated in this opinion, the Court rules that the CMA program is contrary to Congressional intent and was enacted without proper regard for the possible environmental consequences which may result from overgrazing on the public lands. The Court holds that the CMA program is not a Congressionally authorized experiment with public grazing permits but is instead a permanent system which could eventually be extended to millions of acres of public grazing land in the western United States. The cooperative agreements unlawfully abdicate the Secretary’s statutory duty to prescribe for ranchers the appropriate number of livestock which may be grazed on each public land allotment or the permissible grazing seasons. The agreements also fail to retain necessary governmental authority to enforce overgrazing prohibitions by cancelling, suspending, or modifying permits on abused public allotments. The regulation and program, consequently, violate the spirit and letter of federal laws which are intended to preserve and improve the ravaged commons through intensive management and ongoing governmental rights of reentry. Plaintiffs are also entitled to summary judgment on their challenges to regulatory amendments aimed at reshaping United States policy regarding regional and local land use planning, livestock feeding, and penalties against ranchers who violate federal and environmental laws. Defendants, on the other hand, are entitled to summary judgment on the remainder of the regulations under challenge. I. PRELIMINARY ISSUES A. Standing to Sue In cases challenging administrative decisions the federal courts may not embrace general public actions in which all comers attack controversial agency decisions. Following the letter of the Supreme Court’s extensive teachings on the subject of standing, courts must strive to avoid the danger of immunization of agency action while at the same time ensuring that each litigant possesses a sufficient stake in the controversy to justify judicial intervention. In cases such as the one at bar, a four prong standing test is required. The first two prongs are Constitutional prerequisites, based on the Article III command that federal courts only hear “cases and controversies.” The third and fourth prongs involve prudential considerations of restraint which guarantee, among other things, that the litigation will proceed with sufficient adversary vigor. Based on the foregoing, the complaint and record must demonstrate (1) plaintiffs’ “actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); (2) a causal connection between the injury and the challenged action such that the injury is “likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); (3) “particularized” legal rights and interests as opposed to “generalized grievances” or claims merely based on the rights of third parties, Warth v. Seldin, 422 U.S. 490, 499-500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975); and (4) interests that arguably fall within the “zone of interests to be protected or regulated by the statute” in question, Ass’n of Data Processing Services Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). In the present case, plaintiffs have satisfied each of the four mentioned requirements. The first requirement may be satisfied by alleging “threatened” as opposed to actual harm. City of Davis v. Coleman, 521 F.2d 661, 670-71 (9th Cir.1975). Individual and organizational plaintiffs have alleged that they or their members use the public lands for recreational and aesthetic purposes and that the challenged regulations will have an adverse impact upon their use and enjoyment of these lands. Plaintiffs have also unquestionably demonstrated that their alleged threatened injuries “fairly can be traced to the challenged action,” and are therefore, “likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Congress, in enacting legislation regulating the public lands has determined that the very values and interests which are alleged to be threatened are those sought to be protected by the legislation. It is not for this Court, therefore, to hold that enforcement of those laws can have no causal connection to the protection of those values and interests. Moreover, plaintiffs by seeking relief aimed at eliminating the cause of the threatened injury, have established a clear connection between the alleged harm and the action requested of the court. To satisfy the third requirement, it is not necessary that plaintiffs’ injuries are exclusive to themselves. So long as plaintiffs have asserted “distinct and palpable” harm to themselves, they may also “invoke the general public interest in support of their claim.” Warth v. Seldin, supra, 422 U.S. at 501, 95 S.Ct. at 2206. The instant record details the specific nature of the alleged harm geographically and categorically. The allegations are not generalized or abstract but pertain to these particular plaintiffs. Finally, plaintiffs have demonstrated that they are within the so-called “zone of interest” which Congress sought to protect by passage of laws pertaining to livestock grazing, environmental protection, and administrative process. Not only do the public land statutes mandate public participation, but they are aimed at preserving and protecting the aesthetic, environmental, and recreational values associated with public lands. Plaintiffs, as users of these lands, are certainly among the groups of citizens Congress intended to benefit when it required defendants to manage these lands by carefully regulating livestock grazing practices thereon. In sum, plaintiffs, as users of the public lands and as participants in the administrative process, have established standing to challenge defendants’ livestock grazing regulations, the procedure by which those regulations were promulgated, and the decision to enact them without first preparing environmental impact statements. B. Standard of Review This Court is empowered, to the extent necessary to decide the issues herein presented, to hold unlawful and set aside any of the actions or rules of the Secretary or the BLM which are not in accordance with law. 5 U.S.C. § 706(2)(A). The Court should defer to the agency charged with the administration of the laws and sustain its interpretation of a complex statute even if it is not the only permissible construction. Chemical Mfrs. Ass’n v. N.R.D.C., — U.S. -, -, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985). However, where the administrative interpretation “is contrary to the language chosen by Congress, and that language is not inconsistent with the congressional purpose,” the Court must enforce the will of Congress and not that of the agency. Lynch v. Rank, 747 F.2d 528, 534 (9th Cir.1984). Since “the courts are the final authorities on issues of statutory construction,” administrative constructions reached by rulemaking must be set aside if they are “inconsistent with the statutory mandate” or “frustrate the policy that Congress sought to implement.” F.E.C. v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). The principle of deference is particularly applicable to agency rules promulgated immediately following the enactment of a statute which represent a “contemporaneous construction” of the law by those “charged with the responsibility of setting the machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” ALCOA v. Central Lincoln Peoples’ Utility District, 467 U.S. 380, -, 104 S.Ct. 2472, 2480, 81 L.Ed.2d 301 (1984). On the other hand, “post hoc rationalizations by counsel for agency action are entitled to little deference” since it is the agency official and not its counsel “who possesses the expertise that can enlighten and rationalize the search for the meaning and intent of Congress.” Securities Industry Association v. Board of Governors, — U.S. -, -, 104 S.Ct. 2979, 2983, 82 L.Ed.2d 107 (1984). In reviewing the Secretary’s rules, and therefore his construction of the statutes governing the regulation of public lands, a two part analysis is required by the Supreme Court. First, if Congress has clearly spoken on the issue, the Court must “give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. N.R.D.C., 467 U.S. 837, -, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Second, if the statute “is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. The Court will not consider its own policy views or whether it believes the agency rule or other challenged action was the wisest choice available so long as it was “a reasonable choice within a gap left open by Congress.” Id. 104 S.Ct. at 2793. II. LEGISLATIVE AND HISTORICAL BACKGROUND The Secretary, through the BLM, is charged with managing more than 170 million acres of public rangelands throughout the western United States. Livestock grazing is authorized on about 150 million of these acres which are located primarily in Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. Officials burdened with this task are guided and constrained by Congressional mandate — a mandate that has matured in the last century from a policy of near laissez faire, in the years prior to the Great Depression, to the current national posture of watchful conservation and affirmative action to improve rangeland conditions. The history of grazing policy and politics in the west and in Washington, D.C., has been the story of competing interests, changing values, and, unfortunately, deteriorating resources. In order that the issues in this lawsuit may be more fully comprehended, a brief look at the development of this policy is essential. A. The Public Domain From the mid-nineteenth century until 1934, when Congress first enacted comprehensive legislation regulating rangeland management, the key battles over the public lands were between ranchers, who sought to monopolize the range for their own uses, and “homesteaders, nomadic herders,” and a few government officials, who struggled to “keep the public lands open and available to all comers.” The frontier attitudes of western ranchers made the western cattle industry firmly opposed to legal regulation. Nevertheless, many ranchers during this period employed sophisticated legal strategies for maintaining their monopoly over the use of public lands. Federal law, while sparse, became a force against the monopolistic tendencies of the ranchers. The Unlawful Enclosures Act of 1885 prohibited the fencing of any public lands or the prevention of free entry upon or passage through public lands. Unlawful Inclosures of Public Land Act, 43 U.S.C. §§ 1061-66. In 1890, the Supreme Court held that “there is an implied license, growing out of the custom of nearly a hundred years” that the public lands, particularly the grazing lands, “shall be free to the people who seek to use them.” Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 307, 33 L.Ed. 618 (1890). The public domain described by the Supreme Court in Buford was rapidly shrinking by the early twentieth century as a result of the Nation’s generous homesteading laws and massive federal withdrawals of public lands. Coggins II, at 35. Lands were withdrawn for such public purposes as Indian reservations, military uses, and for inclusion in the National Park and Forest Systems. Id. In 1934, Congress completed the shrinking process by enacting a system of range allocation which is still the foundation for federal public rangeland management. B. The Taylor Grazing Act of 1934 The Taylor Grazing Act, 43 U.S.C. § 315, et seq., authorized the Secretary to withdraw those lands which remained unappropriated for specific public uses, and divide them into grazing districts. Id. § 315. The main goals of the Act as set forth in its preamble were to improve the rangeland conditions and to stabilize the western livestock industry. The Secretary was empowered to make rules, regulations and contracts with permittees and was subject to little constraint in how he chose to carry out the legislative purposes of the Taylor Act. The Secretary was also authorized to issue permits to graze livestock to stock owners “upon the payment of a reasonable fee.” 43 U.S.C. § 315b. Ranchers and other settlers with existing livestock operations were given preference in the issuance of grazing permits and the duration of permits was limited to a maximum of ten years. Id. Congress also admonished that the issuance of a grazing permit created no “right, title, interest, or estate in or to the lands” but built into the permit system a “preference right of the permittees to renewal in the discretion of the Secretary.” Id. While the Secretary was given wide discretion and existing users were given generous preferences, Congress nevertheless, for the first time in the Taylor Act, directed the Secretary, and not the ranchers, to rule the range. In no uncertain terms Congress provided that the extent of livestock grazing (i.e., numbers of animals per acre) and the timing of livestock grazing (i.e., seasons of use) were to be specified by the Secretary. Thus, in deference to the recognized injury to the rangelands caused by the largely unregulated exploitation of public lands, and in the apparent hope that regulation would help stabilize the western livestock industry, Congress in the Taylor Act, essentially closed the public domain. The process of carving up the land into grazing districts was swift, “hasty,” and dominated by the stock industry itself. By the 1970’s it was the view of many experts that the BLM had failed to achieve one of the principal goals of the Taylor Act, namely to improve range conditions or at a minimum to “stop injury to the public grazing lands by preventing overgrazing and soil deterioration." In 1975, the BLM reported to the Senate Committee on Appropriations that only about 19% of the acres under its control were “improving,” while 65% were “static,” and 16% were admittedly “declining.” These estimates, as depressing as they were, apparently understated the static and declining condition of the already ravaged public lands according to subsequent reports issued by the BLM and the United States Accounting Office. Crities of the BLM’s management brought suit in the early seventies to compel the preparation of an individual environmental impact statement for each grazing district. In 1974, the United States District Court for the District of Columbia jolted the agency by granting the relief sought by plaintiffs and observing that “the BLM has shown relatively slow progress in implementing a thorough management planning system which would assist in protecting the environment.” Natural Resources Defense Council, Inc. v. Morton, supra, 388 F.Supp. at 836. As a result of the BLM’s “slow progress,” the Court observed that “in a substantial and practical sense there is a serious threat of injury to the public lands which lends urgency to plaintiffs’ claims.” Id. The jolt felt by the BLM from the courts and other critics must have also reached Congress which, in 1976, enacted a new livestock management system premised on the specific finding that “a substantial amount of the Federal range lands is deteriorating in quality.” 43 U.S.C. § 1751(b)(1). C. Federal Land Policy & Management Act The Federal Land Policy & Management Act of 1976, 43 U.S.C. § 1701, et seq. (hereinafter FLPMA), was a comprehensive statement of the public policy of the United States, declaring that public lands be systematically inventoried and subjected to a land use planning process which would enable them to be managed by the Secretary of the Interior in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy use. 43 U.S.C. § 1701(a)(8). FLPMA did not repeal the essential provisions of the Taylor Act, but rather added a new management structure within which the Secretary was to operate. The Act contains an implicit denunciation of past practices of the BLM in managing public grazing lands: Congress finds that a substantial amount of the Federal range lands is deteriorating in quality, and that installation of additional range improvements could arrest much of the continuing deterioration and could lead to substantial betterment of forage conditions with resulting benefits to wildlife, watershed protection, and livestock production. 43 U.S.C. § 1751(b). FLPMA’s principal management requirement is that the Secretary “shall” manage the public rangelands for “multiple use and sustained yield.” 43 U.S.C. § 1732(a). Moreover, the Act directs that land use plans be developed and that the public lands shall be managed “in accordance with the land use plans” when they are available. Id. 1. Permit Issuance Requirements. The provisions of FLPMA which raise the principal disputes in this lawsuit, however, are the very specific requirements for permits and leases contained in 43 U.S.C. § 1752. Since, as will be explained, these issues turn on the express language of Congress, a complete treatment of the permit and lease provisions is essential. Under FLPMA the typical permit or lease (hereinafter the Court’s reference to “permits” shall include within the meaning of that term “permits and leases”) is intended to be for a duration of ten years except under specified conditions not relevant herein. Each permit may include such “terms and conditions” deemed appropriate by the Secretary so long as those terms and conditions are “consistent with the governing law.” 43 U.S.C. § 1752(a). The terms and conditions in permits shall, however, include, but not be limited to, “the authority” of the Secretary “to cancel, suspend or modify” the permit “in whole or in part” pursuant to the terms and conditions in the permit, or to “cancel or suspend” the permit for violations by the permittee of grazing regulations or permit requirements. Id. Assuming that during the term of the permit the land has been used for livestock grazing, and that the permit-tee has complied with all permit requirements, and has accepted any new conditions of the Secretary, the holder of an expiring permit “shall be given first priority” for permit renewal at the end of ten years. 43 U.S.C. § 1752(c). Under FLPMA, however, the Secretary is not given carte blanche authority to issue ten-year permits containing whatever terms and conditions are deemed appropriate. The statute is remarkably clear and specific in its requirement that all permits conform to one of two prescribed methods of issuance. 43 U.S.C. § 1752(d), (e). Furthermore, as noted, Congress directed that among the terms and conditions to be included in each permit shall be an express retention of authority by the Secretary to cancel, suspend, or modify the permit under specified circumstances. 43 U.S.C. § 1752(a). 2. Allotment Management Plans. The first of FLPMA’s only two permissible methods of permit issuance is outlined in § 1752(d) and entails the incorporation into some permits of so-called Allotment Management Plans (hereinafter “AMPs”). AMPs have been described by Professor Coggins as “the penultimate step in the multiple use planning process” and as “basically land use plans tailored to specific grazing permits.” Congress has defined an AMP as being a document which “prescribes the manner in, and extent to, which livestock operations will be conducted____” 43 U.S.C. § 1702(k)(l). On the other hand, AMPs need only describe “the type, location, ownership, and general specifications for ... range improvements” on grazing allotments, 43 U.S.C. § 1702(k)(2), and may include other appropriate terms and conditions the Secretary wishes to insert. 43 U.S.C. § 1702(k)(3). If the Secretary chooses to incorporate an AMP into a permit, § 1752(d) requires that the AMP be “tailored to the specific range condition of the area” and mandates that the Secretary review each AMP on a periodic basis to determine whether the AMP has been effective in improving range conditions in the area. The Secretary is empowered to revise or terminate AMPs but only following “consultation, cooperation, and coordination” with the parties involved. 43 U.S.C. § 1752(d). In fact, the dominant import of subsection (d) is that the final prescription of grazing practices contained in any AMP must be the result of “careful and considered consultation, cooperation, and coordination with the lessees, permittees, and landowners involved.” Id. The decision whether to incorporate an AMP into a permit is wholly within the discretionary judgment of the Secretary. 3. Permits Without AMPs. The statute, however, provides only a single alternative in the event the Secretary has not completed an AMP. In such cases, the Secretary need not proceed by way of consultation with permittees, but may simply issue permits which themselves prescribe appropriate livestock management practices. 43 U.S.C. § 1752(e). This short-cut method of prescribing grazing practices requires the Secretary to “incorporate in grazing permits and leases such terms and conditions as [the Secretary] deems appropriate” but also requires that the Secretary “shall specify” in each permit: (1) “the number of animals to be grazed” by the permittee; (2) “the seasons of use” for livestock grazing; and (3) a provision that the Secretary “may reexamine the condition of the range at any time ” and, if necessary, “readjust” the livestock grazing prescription for the allotment. Id. (emphasis supplied). From the plain language of the statute there is no question in this Court’s view that the AMP and no-AMP methods of permit issuance, provided for in § 1752(d) and (e) are the only permissible methods: § 1752(e) provides that the required permit conditions respecting “numbers of animals,” “seasons of use,” and “reexamination” and “readjustment,” shall be incorporated into permits “in all cases” where an AMP is not so incorporated. But even where an AMP is incorporated, the Secretary nevertheless must prescribe the manner in and extent to which livestock practices are conducted on grazing allotments. 43 U.S.C. § 1702(k)(l). Moreover, all permits, including those containing AMPs, must contain provisions by which the Secretary expressly retains authority to cancel, suspend, or modify permit terms and conditions. 43 U.S.C. § 1752(a), (d), and (e). Thus, as a practical matter, the only significant difference between the two permissible methods for issuing livestock grazing permits under FLPMA are two: (1) permits containing AMPs must involve careful and considered consultation, cooperation, and coordination with perniittees; and (2) the prescription of livestock practices in a permit containing an AMP must be tailored to the specific conditions of the range on the allotment, whereas the permit without an AMP may apparently reflect general or universal livestock management standards. In sum, Congress by enactment of FLPMA, did not weaken but rather strengthened the mandate it handed the Secretary in 1934 to rule the range. By FLPMA’s provisions requiring the Secretary to issue permits prescribing grazing practices and expressly retaining authority to cancel, suspend or modify, Congress gave specific meaning to its general instructions to the Secretary, to wit: “The Secretary shall manage the public lands ...” 43 U.S.C. § 1732(a) (emphasis supplied). D. The Public Rangeland Improvement Act The Public Rangelands Improvement Act of 1978, 43 U.S.C. § 1901, et seq. (hereinafter PRIA), clarified and refined the essential Congressional message to the Secretary, namely, that the public lands be managed with more attention paid to range improvement. Congress made several findings which shed light on the purposes of the various statutes pertaining to public management of grazing lands. “[V]ast segments of the public rangelands” were found to be “producing less than their potential” for the multiple uses for which those lands were being managed. 43 U.S.C. § 1901(a)(1). For this reason, Congress found that these vast areas were in “an unsatisfactory condition.” Id. Congress recognized the need for additional funding to resurrect the damaged lands, 43 U.S.C. § 1901(a)(2), and noted that these unsatisfactory conditions: present a high risk of soil loss, desertification, and a resultant underproductivity for large acreages of the public lands; contribute significantly to unacceptable levels of siltation and salinity in major western watersheds including the Colorado River; negatively impact the quality and availability of scarce western water supplies; threaten important and frequently critical fish and wildlife habitat; prevent expansion of the forage resource and resulting benefits to livestock and wildlife production; increase surface runoff and flood danger; reduce the value of such lands for recreational and esthetic purposes; and may ultimately lead to unpredictable and undesirable long-term local and regional climatic and economic changes. 43 U.S.C. § 1901(a)(3). Congress found that such devastating potential impact might be avoided through “intensive” maintenance, management, and improvement programs, 43 U.S.C. § 1901(a)(4), and established and reaffirmed the national policy and commitment to inventorying public lands, and to managing the public lands “so that they become as productive as feasible for all rangeland values.” 43 U.S.C. § 1901(b)(1), (2). PRIA expressly reenacted the Taylor Act and FLPMA. III. COOPERATIVE MANAGEMENT AGREEMENTS A. The Regulation and Program 1. Promulgation. The regulation establishing the Cooperative Management Agreement (CMA) program authorizes the BLM to enter into special permit arrangements with selected ranchers who have demonstrated “exemplary rangeland management practices.” 43 C.F.R. § 4120.1(a). “Exemplary practices” are not defined in the regulation, rather, the choice of ranchers is apparently within the discretion of BLM officials. The expressed purpose of the CMA program is to allow these ranchers the heretofore verboten opportunity to “manage livestock grazing on the allotment as they determine appropriate.” 48 Fed.Reg. at 21823-24 (proposed 43 C.F.R. § 4120.1). The BLM is bound by the terms of a CMA for ten years. 43 C.F.R. § 4120.1(b). All CMAs must be “consistent with, and incorporate by reference” existing land use plans and the “terms of the authorization[s]” issued to the cooperative permittee. 43 C.F.R. § 4120.1(a). The rule envisions periodic evaluations and provides for cancellation or modification only in the event of unauthorized transfers, violation of whatever terms and conditions the Secretary inserts in the CMA, or violation of regulations unrelated to overgrazing. See 43 C.F.R. §§ 4120.1(b), (c), and (d); 4170.1-4. 2. Implementation. The scope of the CMA regulation is illuminated by the manner in which the BLM has implemented the program. On June 20, 1984, the Bureau issued the “BLM Manual Handbook H-4120-1”, Document No. 182 (hereinafter “Handbook”) which included procedural direction and standards for CMAs. Also, twenty-seven individual CMAs were entered into by the BLM prior to the filing of this lawsuit. The Handbook defines a CMA as a “formal, written agreement between the BLM and a permittee ... that recognizes the cooperator as the steward of the allotment” and which must “be consistent with, and incorporate by reference” relevant provisions of existing land use plans. “Handbook,” § .l(.ll), pp. 1-2. The Handbook makes plain that CMAs are neither AMPs nor permits containing prescriptions for numbers of animals or seasons of use. In fact, defendants instruct BLM officers in the Handbook, that in the event an AMP is in existence when the CMA is executed: [t]he CMA may incorporate the objectives of the AMP, but must provide the permittee ... with special recognition and an opportunity to exercise additional management flexibility. “Handbook,” § .1(.11)(E), p. 2 (emphasis supplied). Thus, the CMA supersedes existing authorizations. The Handbook also clarifies how defendants have managed to reward favored permittees with “secure tenure.” The instructions indicate that CMA permittees shall not be subject to evaluation before “the end of the first 5 years” at which time a “joint evaluation” will take place. § .1(.11)(F), p. 2. The permittee is automatically entitled to a CMA renewal (transforming it into a fifteen-year contract) if the mutual examination reveals that the agreement’s objectives are being met. If the objectives have not been realized after five years, the permittee is nevertheless entitled to an additional five years within which to comply. The BLM, therefore, forfeits any remedy for the rancher’s failure to meet objectives except that of denying renewal of the CMA after ten years of non-compliance. This is secure tenure indeed. A review of the CMAs which have been drafted and executed by defendants, confirms that the Secretary’s expressed purposes for the CMA program (secure rancher tenure and self-management) have been implemented. Example agreements cited by both plaintiffs’ and defendants’ counsel indicate that CMAs need not contain specific performance standards such as numbers of animals or seasons of use. See Spring Cove CMA, (August, 1984, Shoshone, Idaho District, BLM); McMullin Bros. CMA, (August, 1983, Miles City, Montana District, BLM). These agreements list no terms or conditions whatsoever which prescribe the manner in or extent to which livestock grazing shall be managed on these allotments. The permits which accompany these agreements are brief documents containing no grazing specifications. The agreements do contain, however, the BLM’s promise of non-interference and secure tenure as outlined in the Handbook. In short, the CMA program was intended to and did create and authorize a new regulatory form not contained in the Taylor Grazing Act, FLPMA, or PRIA. B. The Administrative Procedures Act Plaintiffs have contended that the CMA program was adopted in violation of basic public participation requirements of the Administrative Procedures Act (APA), 5 U.S.C. § 553. Although plaintiffs made reference in their briefs to four procedural arguments, the Court will herein address only two: (1) that defendants’ notice of proposed rulemaking was insufficient to alert the public to the issues relevant to the CMA program; and (2) that the statement accompanying the final rulemaking did not adequately explain the basis and purpose of the program nor respond adequately to public comments. 1. Notice of Proposed Rulemaking. Under 5 U.S.C. § 553(b) and (c), defendants were required to publish a notice of the proposed rule and “give interested persons an opportunity to participate in the rule-making.” The agency’s publication in the Federal Register should have included “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). Furthermore, “[sjince the public is generally entitled to submit their views and relevant data on any proposals, the notice ‘must be sufficient to fairly apprise interested parties of the issues involved____’” Action for Children’s Television v. F.C.C., 564 F.2d 458, 470 (D.C.Cir.1977), citing, S.Doc. No. 248, 79th Cong., 2d Sess. 258 (1946). Plaintiffs contend that the notice of the proposed CMA regulation failed to reveal the agency’s reasoning sufficiently to permit a meaningful exchange of views with the public. In the notice, 48 Fed.Reg. 21820 (May 13, 1983), defendants explained that the aim of the proposed program was to encourage investments in rangeland productivity. Id. The proposed rule published that day, similar to the final rule, revealed that the new CMAs would “specify that the permittee, lessee, or association may manage livestock grazing on the allotment as they [sic] determine appropriate.” Id., at 21823. The Ninth Circuit has held that § 553(b)(3) means merely what it says, namely, that “a notice of rulemaking is sufficient if it provides a description of the subjects and issues involved.” California Citizens Band Assn. v. United States, 375 F.2d 43, 49 (9th Cir.1967), cert. denied, 389 U.S. 844, 88 S.Ct. 96,19 L.Ed.2d 112 (1967). The notice in this case was sufficient to meet this standard. A robust debate, albeit an unfruitful one for plaintiffs, occurred as a result of the proposed rulemaking. The essential elements of the new program were adequately outlined to fairly apprise the public of what BLM was about to do. 2. Statement of Basis and Purpose. The Court now turns to plaintiffs’ stronger procedural argument. Under the APA, defendants were required to consider the issues raised in the public comments and to incorporate into the final rulemaking “a concise general statement of [the rule’s] basis and purpose.” 5 U.S.C. § 553(c). Defendants’ duty was to “respond in a reasoned manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule.” Rodway v. United States Department of Agriculture, 514 F.2d 809, 817 (D.C.Cir.1975). Defendants, on February 21, 1984, published the final rule and a response to the comments received. Defendants acknowledged that many of the comments “expressed the view that as written [the CMA rule] provided insufficient authority and control” to the BLM, 49 Fed.Reg. 6444, and that some comments had criticized existing CMAs as having withstood “insufficient public review.” Id. Defendants further conceded that some of the comments challenged the Secretary’s statutory authority for promulgation of the CMA regulation. Id. Plaintiffs argue that although defendants acknowledged the negative comments, there was a total failure to respond to them and a failure to justify the final rule in light of the comments received. The record indicates, however, that defendants declined to rebut many of the public comments because, as stated in its response, the agency was convinced by the comments that “the proposed regulations should be modified to more clearly indicate the objectives and approach of the cooperative management agreement within the general framework of multiple use management.” Id. In fact, defendants modified the proposed rule in an effort to accommodate many of the commentators’ most urgent warnings. The Supreme Court has cautioned that an agency’s failure to respond to specific comments is fatal to agency action only insofar as it demonstrates that a decision to act was not “based on a consideration of the relevant factors.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). Although the agency’s duty to respond to public comments is not to be taken lightly, neither should administrative proceedings be allowed to become “a game or a forum to engage in unjustified obstructionism” wherein agency determinations are routinely vacated on the ground that the agency failed to consider every matter “forcefully presented.” Vermont Yankee Nuclear Power Corp. v. N.R.D. C, 435 U.S. 519, 553-554, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978). District courts, therefore, generally exercise a measure of judicial restraint before striking agency decisions on the basis of relatively insubstantial procedural imperfections. In fact, no case brought to this Court’s attention has interpreted the APA to “require the agency to respond to every comment, or to analyse every issue or alternative raised by the comments.” Thompson v. Clark, 741 F.2d 401, 408 (D.C.Cir.1984). Nevertheless, under the present facts, the question is a close one. On balance, however, defendants’ statement of basis and purpose, when taken in conjunction with the notice of proposed rulemaking and particularly when considered in light of the revisions in the final rule made by defendants in direct response to public comments, demonstrates that defendants considered the significant issues relevant to promulgation of the CMA rule. In so ruling, the Court also takes into account the fact that more than 150 comments were received on the dozens of regulations proposed in May of 1983. In responding to all of these comments, defendants filled over twenty-seven columns in the Federal Register. An agency must be granted allowance, under such circumstances, to decide for itself which comments warrant the greatest attention in the statement of basis and purpose. Consequently, on this record, the Court declines to find that defendants failed to consider and respond to the relevant comments submitted in opposition to the proposed CMA regulation. Thus, the Court will address plaintiffs’ substantive statutory arguments. C. Experimental Stewardship Defense counsel’s chief argument to uphold the CMA Program is premised on a clever interpretation of the Experimental Stewardship Program (ESP), contained in PRIA of 1978. 43 U.S.C. § 1908. Congress by enacting ESP directed the Secretary to select areas of the rangelands of representative conditions, trends, and forages and in concentrating on these areas to “explore innovative grazing management policies and systems which might provide incentives to improve range conditions.” Id. The incentive projects were to be experimental and ready for Congressional review by December of 1985 when the Secretary was directed to report the “results” of the program. Id. The government has maintained that even if the CMA program cannot be upheld under the Taylor Act and FLPMA, it is nevertheless fully justified by ESP. For the reasons stated herein, the Court finds this argument unsound. This Court would ordinarily defer to the Secretary’s judgment on matters such as the applicability of a particular program to a concededly generous delegation of experimental authority. However, it is blatantly obvious from the record that the Secretary did not in fact rely upon ESP when he promulgated the regulation authorizing the CMA program. Not only is there no record of the Secretary ever relying on ESP for such authority, evidence in the record establishes that BLM has already completed its experimental stewardship projects. In fact, a brochure describing the completed ESP was produced by the ranchers participating in the three official “Experimental Stewardship Groups” organized by the BLM. Given the manner in which BLM carefully identified the three regions subject to ESP experiments in the past, it would be strange indeed for it to establish a fourth experiment without so much as brief mention of section 1908 in any of the documents pertaining to the new program. The apparent truth is that the CMA program was never intended as a stewardship experiment. The Court must therefore view counsel’s ESP argument as a post hoc rationalization for the CMA program and, as such, deserving of none of the customary deference accorded agency interpretations. However, assuming for the moment that the CMA program is not a lawful method of permit issuance under the Taylor Act and FLPMA, this Court is of the view that ESP would not create any additional authority for it even if the Secretary had relied upon section 1908. ESP did not create an exception to the permit issuance requirements of FLPMA. To the contrary, Congress ordered the Secretary to continue managing the lands “in accordance with” both the Taylor Act and FLPMA when it enacted PRIA in 1978. 43 U.S.C. § 1903(b). Moreover, the legislative history, as cited to this Court by counsel on both sides, reveals that ESP vested no authority in the Secretary that was not already available to him under the Taylor Act and FLPMA. The legislative history also amply establishes that “experimentation” with FLPMA permit procedures was not what Congress had in mind when it enacted section 1908. It is also manifest from the language of section 1908 that the CMA program simply does not meet the description of the projects ESP was intended to encourage. The CMA program is not an experiment, but is a permanent system of permit issuance aimed at a group of favored permit-tees. Significantly, there is no indication whatsoever that the “results” of the CMA program can be the subject of a report to Congress by December of 1985. None of the CMAs will even be ripe for review until several years after the Congressional reporting deadline. Faced with such overwhelming evidence that ESP was never intended by Congress to open up exceptions to the permit issuance requirements in FLPMA, defense counsel argued at the hearing on this motion that the Secretary’s ability to experiment under ESP “is bounded only by imagination.” For this proposition, counsel relied exclusively upon scholarly comments of Professor Coggins, who described ESP in one of his articles in sweeping language: The Experimental Stewardship Program offers the BLM an opportunity to break out of an historical rut of range management counterproductivity. The agency is required to try new approaches, and the Act holds out carrots for cooperating ranchers. The ability of the BLM to experiment is bounded only by imagination and available funding. Coggins IV, supra note 18, at 128 (emphasis supplied). Putting aside for present the lack of precedential value in a law review article, Professor Coggins was surely not to be understood to be opining that the Secretary’s ability to experiment was not also bounded by existing law. At any rate, it is the ruling of this Court that any experimentation with new permit issuance procedures is bounded by existing law, as well as by the Secretary’s imagination, and the ESP does not create an exception to the FLPMA permit requirements. Therefore, in order to uphold the CMA regulation, this Court must be satisfied that the Secretary is authorized under the Taylor Act and FLPMA to enter into cooperative management agreements with selected ranchers. D. Violations of Federal Grazing Statutes Plaintiffs’ principal contention is that the CMA regulation, as finally promulgated and implemented by the Secretary and the BLM, is a naked violation of defendants’ affirmative duties under the Taylor Grazing Act, FLPMA, and PRIA. The Court agrees. The CMA program disregards defendants’ duty to prescribe the manner in and extent to which livestock practices will be conducted on public lands. The program also overlooks defendants’ duty of expressly reserving, in all permits, sufficient authority to revise or cancel livestock grazing authorizations when necessary. 1. Duty to Prescribe Practices. The CMA program authorizes a permanent system of preferential permit issuance. Since 1934, defendants have been authorized to issue such permits but have also been required “from time to time” to “specify” the “numbers of livestock” permittees may graze on the lands and the “seasons of use” for such livestock grazing purposes. 43 U.S.C. § 315b. By enacting FLPMA in 1976, Congress clarified this duty by obligating defendants to conform to one of two prescribed methods of permit issuance. 43 U.S.C. § 1752(d)-(e). Defendants may, after cooperation and consultation with ranchers, tailor a specific grazing prescription to each allotment by incorporating an AMP into each permit. Id., at § 1752(d). Defendants may, instead, choose to forego incorporation of an AMP, and, in such case, specify in the permit itself the prescription of numbers of livestock and seasons of use. Id., at § 1752(d). While these choices provide defendants with an extraordinary degree of flexibility and discretion, there is no question that defendants’ choices under FLPMA are limited to these two. Because a CMA agreement represents a third choice, and one which violates the spirit and letter of the grazing statutes, the program is unlawful. The original purpose of the CMA program was to allow selected permittees the opportunity to “manage livestock grazing on [their] allotment[s] as they determine appropriate.” 48 Fed.Reg. at 21823 (proposed 43 C.F.R. § 4120.1) (emphasis supplied). Thus, any defense of the program begins on the shakiest of legs since the dominant message and command of defendants’ Congressional mandate is that defendants shall prescribe the extent to which livestock grazing shall be conducted on the public lands. The apparent goal and inevitable result of the CMA program is to allow ranchers, for a term of at least ten years, to rule the range as they see fit with little or no governmental interference. Many of these ranchers may be fully qualified to prescribe their own management practices. Many are undoubtedly familiar, after years of ranching on the public lands, with the Congressional mandate that public lands be managed “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values.” 43 U.S.C. § 1701(a)(8). Some or all of these knowledgeable permit-tees may even be inclined to limit their livestock grazing to levels which will guarantee the vitality of such values, even at the expense of their own private ranching interests. Had Congress left a gap in its regulatory scheme which allowed defendants to decide whether individual ranchers should be entrusted with such decisions, this Court would be in no position to second guess the wisdom of the CMA program. However, Congress, in directing that the Secretary prescribe the extent of livestock practices on each allotment, precluded such entrustment, apparently because after years of rancher dominance of range decisions, it found substantial evidence of rangeland deterioration. According to defendants’ own Handbook Manual, CMAs may incorporate the objectives of an existing AMP, but must provide the permittee with special management flexibility. “Handbook,” § .1(.11)(E), p. 2. Thus, any AMP which might be in existence when the CMA is signed retains no independent significance. The CMA itself need not be specially tailored to the allotment, and need not prescribe the extent to which livestock practices are conducted on the allotment. Thus, a decision by defendants to enter into a CMA with a permittee is plainly a decision by the Secretary and the BLM that an AMP need not be incorporated into the permit. 43 U.S.C. § 1752(e). Defendants are entitled to make such a determination, but Congress has instructed them that “in all cases” where an AMP is not incorporated, they “shall” specify in the permit “the numbers of animals to be grazed and the seasons of use...” Id. Defendants’ assertion that the CMA regulation is valid because it requires specification of “performance standards” is without merit. The statute requires specification of numbers and seasons, not generalized standards or responsibilities. CMAs, by definition and in practice, fail to comply with this Congressional mandate. The CMA program would be without statutory support even if, as defendants argue, CMA permits were governed by § 1752(d) pertaining to AMPS rather than by § 1752(e). As plaintiffs point out, although the statute leaves the details of a particular AMP to the discretion of the Secretary, “[a]n AMP is more, not less, detailed than a permit or lease.” Reply Brief, p. 15. Congress, by defining AMPs as documents which “prescribe” the extent to which livestock grazing may be conducted on public allotments, intended to reaffirm defendants’ duty under the Taylor Grazing Act to specify numbers and seasons in each permit, whether issued pursuant to subsection (d) or subsection (e). Thus, even if CMAs were a species of AMP, or required wholesale incorporation of AMPs (which would obviously defeat the purpose of the program) defendants would nevertheless be required to specifically limit the extent to which livestock grazing may be conducted on each allotment. 2. Duty to Reserve Revision and Cancellation Authority. Defendants are also required to incorporate into each permit an express revocation or suspension clause, 43 U.S.C. § 1732(c), and must retain constant authority to “cancel, suspend, or modify” each permit “in whole or in part” for violations of permit or regulatory requirements. 43 U.S.C. § 1752(a). In permits without AMPs, such as those incorporating CMAs, defendants are required to specify in each permit that they “may reexamine the condition of the range at any time” and order whatever adjustments they deem appropriate. 43 U.S.C. § 1752(e) (emphasis supplied). Even permits incorporating AMPs must reserve authority for defendants to “revise or terminate such plans or develop new plans from time to time” after consultation with ranchers. 43 U.S.C. § 1752(d). The CMA regulation and program falls far short of the standard set by Congress in FLPMA. While the rule, as promulgated, contains vague references to the BLM’s authority to periodically evaluate the range, 43 C.F.R. § 4120.1(c), and to cancel or modify agreements under certain circumstances, § 4120.1(d), § 4170.1-4, the details of defendants’ authority are left to the BLM’s determination, and the BLM has determined to abdicate its authority in favor of secure rancher tenure. The Handbook, which defendants concede has implemented the true intent of the Secretary’s rule, sets up a range review schedule so lenient and favorable to ranchers, that permittees are virtually guaranteed a minimum ten years of uninterrupted self-management on each CMA allotment. Five years after a CMA is executed, and not sooner, defendants must conduct a “joint evaluation” of the range to determine whether or not the agreement’s “objectives” have been realized. “Handbook,” § .1(.11)(F), p. 2. If, after a joint inspection, the BLM determines that objectives are being met, the rancher is entitled to a new ten year permit. Id. Assuming the worst, however, (i.e., that the rancher has failed to cooperate with the cooperative approach) the BLM is not empowered under the agreements to impose strict grazing guidelines for the remainder of the term. Nor may the BLM, under a CMA, cancel or suspend the rancher’s permit. Rather, the BLM is expressly directed to allow “reasonable time” within which the rancher may comply “before the agreement terminates.” Id. The only sanction available to the BLM against a rancher who allows the rangeland to deteriorate under his self-management is the discretionary refusal to renew the rancher’s permit. Id. Cancellation is generally reserved for the separate offense of violating “terms and conditions” of CM As which may be carefully written (and are in some CMAs) to omit any reference whatever to performance standards. Id. Thus, for ten years, assuming only that the BLM complies with its CMA agreements and that certain rancher covenants which are unrelated to the condition of the public lands are fulfilled, CMA permittees are guaranteed secure tenure. This is not partial or substantial compliance with the permit issuance requirements of the grazing statutues — it is simple reowcompliance. The statutes cannot be reasonably interpreted to allow defendants to tie their own hands with respect to their authority to modify, adjust, suspend, or cancel permits. Nor is there any statutory provision creating exceptions for “exemplary” ranchers or those grazing livestock on public lands which, in defendants’ view, require no improvement. Permittees must be kept under a sufficiently real threat of cancellation or modification in order to adequately protect the public lands from overgrazing or other forms of mismanagement. Any other interpretation of Congressional intent is inconsistent with the dominant purposes expressed in the Taylor Grazing Act, FLPMA, and PRIA. See section II, supra. It is for Congress and not defendants to amend the grazing statutes. In the meantime, it is the public policy of the United States that the Secretary and the BLM, not the ranchers, shall retain final control and decisionmaking authority over livestock grazing practices on the public lands. • E. Violation of the National Environmental Protection Act Plaintiffs alternatively contend, and the Court agrees, that defendants have violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, by failing to prepare an Environmental Impact Statement (EIS) prior to implementing the CMA program. Defendants maintain that their decision to forego preparation of an EIS was reasonable and based upon their specific finding that the new program would not “significantly affect[] the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). Pursuant to regulations promulgated by the Council on Environmental Quality, 40 C.F.R. § 1501.4(b)(1984), defendants determined that the CMA program was not one which normally requires an EIS but neither was it categorically excluded from NEPA’s environmental review process. Therefore, as required by regulation, defendants drafted an Environmental Assessment (EA). Although several paragraphs were devoted to a discussion of the so-called “environmental consequences” of the proposed CMA program, the document was essentially a policy justification for the new program with little space devoted to consideration of the threatened environmental impacts which might result therefrom. In discussing the program’s potential for degrading environmental impacts, defendants repeated a central theme: because CMA livestock operators would initially consist of only those ranchers with demonstrated stewardship abilities, there would be little chance that CMA operators might abuse their flexibility under the new agreements. However, defendants measured the ranchers’ stewardship prowess no t by a demonstrated ability or propensity to improve the range, but instead, by the fact that they were currently managing so-called “M” allotments (lands in relatively good condition). Defendants stated no reason why they believed ranchers leasing lands which are currently in good condition will perform better under a new regime of self-management. Neither is it explained why there is a special need for defendants’ hoped for “improvements” on the very lands categorized as not requiring improvement. If these lands have been managed properly, either by the current or former management, it has been under the existing inflexible regime. Moreover, defendants acknowledged in the EA that operators of lands in poor condition will also become eligible for CMAs. Of course, the eligibility of operators on marginal lands substantially undercuts the purported logic of defendants’ main environmental justification for the CMA program. Defendants also discussed what they perceived to be the potential environmental benefits to ranchers and to the federal government from increased security of tenure for ranchers under CMAs. The EA is devoid, however, of any mention of or justification for defendants’ relinquishment of their authority to cancel, suspend, or modify permits when overgrazing occurs. Rather, the document contains the conclusory statement that the program’s lenient review process “will have no adverse impact” on the quality of the environment. The EA acknowledges that serious environmental consequences might result from program abuse, but expresses the view that such abuse is “highly unlikely.” The potential impacts, therefore, are nowhere described and there is no attempt whatever to quantify the degree of potential harm so that it may be weighed and balanced against the perceived risk of such harm coming to pass. In short, defendants simply did not take a hard look at the potential degrading environmental impacts which they conceded might result from program abuse. NEPA is an exceptionally broad statute which mandates the preparation of an EIS prior to implementing “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(c). The agency’s decision to prepare an EIS is not a discretionary one: “[a]n EIS must be prepared for actions that may significantly affect the quality of the human environment.” Foundation for North America Wild Sheep v. United States Dept. of Agriculture, 681 F.2d 1172, 1177, n. 24 (9th Cir.1982). Unless unreasonable, an agency’s determination not to require an EIS must be upheld, id. at 1177, but “[t]he spirit of the [NEPA] would die aborning if the facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review.” Id. at 1182-83, citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir.1973). Thus, the standard of review in this Circuit has been clearly outlined: The standard for determining whether the implementation of a proposal would significantly affect the quality of the human environment is whether “the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor” [cites omitted]. A dete