463 F.3d 1125 (10th Cir. 2006), 05-4009, Utah Shared Access Alliance v. Carpenter

Docket Nº:05-4009.
Citation:463 F.3d 1125
Party Name:UTAH SHARED ACCESS ALLIANCE, a Utah non-profit corporation, Plaintiff-Appellant, v. Glenn CARPENTER, in his capacity as manager of the Salt Lake Field Office of the Bureau of Land Management; Maggie Wyatt, in her capacity as manager of the Moab Field Office of the Bureau of Land Management; Sherwin Sandberg, in his capacity as manager of the Montic
Case Date:September 19, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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463 F.3d 1125 (10th Cir. 2006)

UTAH SHARED ACCESS ALLIANCE, a Utah non-profit corporation, Plaintiff-Appellant,


Glenn CARPENTER, in his capacity as manager of the Salt Lake Field Office of the Bureau of Land Management; Maggie Wyatt, in her capacity as manager of the Moab Field Office of the Bureau of Land Management; Sherwin Sandberg, in his capacity as manager of the Monticello Field Office of the Bureau of Land Management; Jerry Meredith, in his capacity as manager of the Richfield Field Office of the Bureau of Land Management; Sally Wisely, in her capacity as Utah State Director of the Bureau of Land Management; Gale A. Norton, in her capacity as Secretary of the Department of Interior; Bureau of Land Management; Kathleen Clarke, in her capacity as director of the Bureau of Land Management, Defendants-Appellees,

Southern Utah Wilderness Alliance, a Utah non-profit corporation; The Wilderness Society; Wildlands CPR, a non-profit corporation; Great Old Broads for Wilderness, a non-profit corporation; Redrock Forests, a Utah non-profit corporation, Defendants-Intervenors-Appellees.

No. 05-4009.

United States Court of Appeals, Tenth Circuit.

Sept. 19, 2006

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Paul W. Mortensen, Hanks & Mortensen, P.C., Salt Lake City, UT, appearing for the Plaintiff-Appellant.

Jeffrey E. Nelson, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Utah, Salt Lake City, UT, appearing for Defendants-Appellees.

Eric G. Biber, Earthjustice, Denver, CO, (James S. Angell, Earthjustice, Denver, CO; Stephen H.M. Bloch, and Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, with him on the brief), appearing for the Defendants-Intervenors-Appellees.

Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O'BRIEN, Circuit Judge.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Utah Shared Access Alliance ("USA-ALL") is Utah's largest motorized access advocacy organization. Its members use motorized vehicles, including off-highway or off-road vehicles ("ORVs"), to access lands throughout Utah that are managed by the Bureau of Land Management ("BLM"). After the BLM imposed several restrictions on ORV use in certain parts of the state, USA-ALL filed this lawsuit in the District of Utah under the Administrative Procedure Act ("APA"), alleging violations of the Federal Land Policy and Management Act ("FLPMA"), the National Environmental Policy Act ("NEPA"), the Federal Advisory Committee Act ("FACA"), and the National Defense Authorization Act ("NDAA"), as well as regulations promulgated pursuant to those statutes. The District Court concluded that the BLM had not violated FLPMA, NEPA, or FACA, and that USA-ALL did not have standing to bring its claim under the NDAA. The court therefore entered judgment in favor of the BLM and dismissed the action under the NDAA. USA-ALL now timely appeals the District Court's ruling with respect to FLPMA, NEPA, the NDAA, and certain regulations. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.


A. Federal Land Policy and Management Act

Nearly one-half of Utah is federal land managed by the BLM, which is an agency within the Department of Interior. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (" SUWA "). FLPMA, codified at 43 U.S.C. § 1701 et seq., creates a "versatile framework" for governing the BLM's management of these lands. Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 737-38 (10th Cir.1982). The statute directs the BLM to manage public lands "under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a); see also 43 U.S.C. § 1701(a)(8) (listing purposes and values that should be considered in the management of public lands). " 'Multiple use management' is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put...." SUWA, 542 U.S. at 58, 124 S.Ct. 2373 (citing 43 U.S.C. § 1702(c)). These uses include, but are not limited to, "recreation range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.' " Id. The phrase "sustained yield" refers to the BLM's duty "to

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control depleting uses over time, so as to ensure a high level of valuable uses in the future." Id. (citing 43 U.S.C. § 1702(h)).

To assist in the management of public lands, FLPMA requires that the BLM "develop, maintain, and, when appropriate, revise land use plans." 43 U.S.C. § 1712(a). These land use plans, which the BLM regulations denote "resource management plans" ("RMPs"), see 43 C.F.R. § 1601.0-5(n) (2005), project both the present and future use of the land. 43 U.S.C. § 1701(a)(2). Proposed RMPs are subject to a mandatory period of public notice and comment, see 43 C.F.R. § 1610.2, and, once adopted, will "guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 C.F.R. § 1601.0-2.

FLPMA prohibits the BLM from taking actions inconsistent with the provisions of RMPs. See SUWA, 542 U.S. at 69, 124 S.Ct. 2373; 43 U.S.C.§ 1732(a) ("The Secretary shall manage the public lands ... in accordance with the land use plans developed by him...."); 43 C.F.R. § 1610.5-3 ("All future resource management authorizations and actions ... shall conform to the approved plan."). When needed, however, these plans may be amended. 43 C.F.R. § 1610.5-5. To do so, the BLM must prepare an environmental assessment or an environmental impact statement, see id., and submit the proposed amendment to public notice and comment in the same way as when the plan was originally being prepared. 43 C.F.R. § 1610.2.

In any event, RMPs must further the purpose of FLPMA, which is to ensure that:

the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological 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 and use.

43 U.S.C. § 1701(a)(8). Further underscoring the BLM's duty to protect the environment is the statutory requirement that "[i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b).

B. Executive Orders and Federal Regulations Pertaining to ORV Use

ORV use represents one of the multiple uses that the BLM provides for and must balance in managing the public lands. In response to increased ORV use on these lands, in 1972 President Nixon issued an executive order for the purpose of "establish[ing] policies and provid[ing] procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands." Exec. Order No. 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972). The stated reason for the order was to further the purpose and policy of NEPA; it established criteria by which federal agencies were to develop regulations and administrative instructions for the designation of areas and trails on which ORVs would be permitted. Id. § 3. It also required agencies to "monitor the effects" of ORV use on the public lands and "[o]n the basis of the information gathered, they shall from time to time amend or rescind designations of areas or other actions taken pursuant to this order as necessary to further the [NEPA]." Id. § 8.

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President Carter, in 1977, issued Executive Order No. 11989, which amended Executive Order 11644 and strengthened it considerably. See Exec. Order 11989, 42 Fed.Reg. 26959 (May 24, 1977). The amended order provides that notwithstanding the BLM's designations of public land use under the applicable RMP, the BLM "shall ... immediately close" any area or route to ORVs whenever it determines that ORV use "will cause or is causing considerable adverse effects" to wildlife, wildlife habitat, and other natural resources. See id. § 2 (amending Exec. Order 11644, § 9(a)). Under the order, the closure must remain in place until the adverse effects have been eliminated. Id.

The Department of Interior has adopted regulations to implement the Nixon and Carter Executive Orders, FLPMA, and other federal statutes. See 43 C.F.R. § 8340.0-1 et seq. Under 43 C.F.R. § 8342.1, all public lands must be designated as open, limited, or closed to off-road vehicles. See 43 C.F.R. § 8342.1. The designations must be made to minimize conflicts among the different users of the lands (i.e., hikers, ORV users, and birdwatchers). Id. In addition, care must be taken to avoid damage to natural resources and to prevent impairment of wilderness suitability. Id. The initial designation of areas as open, limited, or closed to ORVs is accomplished through the resource management planning process, and it must involve public participation and consideration of all viewpoints. 43 C.F.R. § 8342.2(a).

Short of promulgating or amending an RMP, the resource management planning process does not speak to the manner in which an ORV designation may be changed. As such, and in order to address Executive Order 11989, the BLM promulgated a regulation that requires the agency to...

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