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Abstract

Recently the Ninth Circuit reached a decision that eliminated nearly 70,000 acres of suitable domestic sheep grazing land, when it held that disease transmission between bighorn sheep and domestic sheep was an extremely relevant factor in assessing the high mortality rates of bighorn sheep. This decision pertained to bighorn and domestic sheep in the Payette National Forest, and could be a pivotal point for agencies to adopt a comprehensive method called tiering. Tiering was created pursuant to the National Environmental Policy Act, and encourages agencies (such as the Bureau of Land Management or the United States Forest Service) to take smaller site specific projects or programs, that require immediate action, and reference a broad Environmental Impact Statement (EIS) created as a programmatic document or regional assessment created earlier in time. There are a handful of requirements that an agency needs to consider before it tiers to a preexisting document; mainly due to extensive case law and the ambiguous statutory language surrounding the National Environmental Policy Act. The 2010 Supplemental EIS (SEIS) was an endeavor to amend the 2003 Southwest Idaho Ecogroup Land and Resource Management Plan Final EIS (FEIS) for the Payette National Forest. The Land and Resource Management Plan was a regional planning effort to revise the 1988 Payette National Forest Land and Resource Management Plan (Forest Plan), which was required by the National Forest Management Act. The 2010 SEIS is a product of agency analysis coupled with some of the most recent and pertinent scientific literature addressing disease transmission from domestic sheep to bighorn sheep because it withstood numerous appeals and made it through the litigation process. That document, coupled with the national guidelines and objectives fashioned by the Wild Sheep Working Group, could be used by other agencies in similarly situated circumstances to decrease the extreme workload that those agencies experience when creating an EIS or Environmental Assessment (EA) for their own projects that address bighorn sheep viability.

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