Friday, June 07, 2013

Western Watershed Projects v. Abbey (9th Cir. - June 7, 2013)

I was moved by the introductory paragraphs of this opinion by Judge Gould.  They're really poetic.  They paint an incredibly attractive picture of Lewis & Clark's expedition, what these explorers saw in (what's now) north-central Montana, and how the place -- to this day -- is really beautiful.

Indeed, I was sufficiently transfixed by Judge Gould's prose that -- and this is no exaggeration -- after reading these paragraphs, I was about to go downstairs to my wife and say: "You know what, honey?  We should really make an effort to get to Montana someday.  It sounds like a gorgeous place."  Big Sky.  An environment like no other.  As Judge Gould describes it:  "[U]nparalleled scenic beauty, great geological and biological import, and special historical significance."

Sign me up.

I still think I might -- and should -- visit the place.  But I must admit that when I read the remainder of Judge Gould's opinion, I didn't have the same reaction any more.  I no longer had a transcendent picture of "unparalleled scenic beauty" in my head.

Instead, all I could think about was cow poop.

Because ultimately, Judge Gould holds (for the most part) that the BLM permissibly permits private grazing in the Upper Missouri River Breaks National Monument.  And as I read his opinion, in which he describes the effects of livestock grazing on this environment, I gotta say, the place became less and less attractive to me.  Because I kept returning not to a picture of incredible bluffs and of undisturbed country of the sort seen two centuries by Lewis & Clark, but rather, to a picture of a scrubrush and cattle and cow manure.  Doesn't really want to make me drive 20 hours to see it.

None of which is to say that the Ninth Circuit gets the opinion wrong.  There's deference -- albeit not complete deference -- to what the BLM decides.  They decided it made sense to allow a fair amount of cow poop to the mix.  As a legal matter, I can't say that Judge Gould is wrong to say that's permissible.

But I did come away from the opinion with a keen sense that these things matter.  That a really beautiful, potentially transcendent place can indeed be spoiled by the addition of even small changes.  Perceptually as well as, perhaps, in reality.  I was keen to visit the Upper Missouri River Breaks National Monument when I started reading about it, and when I thought it looked substantially the same way it did in Lewis & Clark's time.  That excitement diminished -- substantially -- as a result of what the BLM has allowed.

So this may well be the case of an actual lost tourist.  For whatever that's worth.

I should still try to make it up to Montana.  Notwithstanding the hassle. 

But if I'd have stopped reading the Ninth Circuit's opinion, I could have told you with some degree of confidence that my family and I would get up there -- God willing -- sometime in the next three years.

Having read further, I'm not nearly as sure.