Mont. Wilderness Ass'n v. Connell

• Decision Date: 31 July 2013
• Docket Number: Nos. 11–35818,11–35821.,s. 11–35818
• Citation: 725 F.3d 988
• Parties: MONTANA WILDERNESS ASSOCIATION, a nonprofit organization, Plaintiff–Appellant, and The Wilderness Society; Friends of the Missouri Breaks Monument; National Trust for Historic Preservation; Oil and Gas Accountability Project, Plaintiffs, v. Jamie CONNELL, in her official capacity as Director of the Bureau of Land Management's Montana State Office; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management, an agency of the United States Department of Interior; United States Department of the Interior, a federal department; Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri River Breaks National Monument, Defendants–Appellees, Missouri River Stewards; Fergus County; Phillips County; Chouteau County; Blaine County; Recreational Aviation Foundation; Montana Pilots Association, Intervenor–Defendants–Appellees. Montana Wilderness Association, a nonprofit organization, Plaintiff, and The Wilderness Society; Friends of the Missouri Breaks Monument; National Trust for Historic Preservation; Oil and Gas Accountability Project, Plaintiffs–Appellants, v. Jamie Connell, in her official capacity as Director of the Bureau of Land Management's Montana State Office; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management, an agency of the United States Department of Interior; United States Department of the Interior, a federal department; Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri River Breaks National Monument, Defendants–Appellees,<SUP>*</SUP> Missouri River Stewards; Fergus County; Phillips County; Chouteau County; Blaine County; Recreational Aviation Foundation; Montana Pilots Association, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

725 F.3d 988

MONTANA WILDERNESS ASSOCIATION, a nonprofit organization, Plaintiff–Appellant,

and

The Wilderness Society; Friends of the Missouri Breaks Monument; National Trust for Historic Preservation; Oil and Gas Accountability Project, Plaintiffs,

v.Jamie CONNELL, in her official capacity as Director of the Bureau of Land Management's Montana State Office; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management, an agency of the United States Department of Interior; United States Department of the Interior, a federal department; Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri River Breaks National Monument, Defendants–Appellees,^*Missouri River Stewards; Fergus County; Phillips County; Chouteau County; Blaine County; Recreational Aviation Foundation; Montana Pilots Association, Intervenor–Defendants–Appellees.

Montana Wilderness Association, a nonprofit organization, Plaintiff,

and

The Wilderness Society; Friends of the Missouri Breaks Monument; National Trust for Historic Preservation; Oil and Gas Accountability Project, Plaintiffs–Appellants,

v.Jamie Connell, in her official capacity as Director of the Bureau of Land Management's Montana State Office; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management, an agency of the United States Department of Interior; United States Department of the Interior, a federal department; Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri River Breaks National Monument, Defendants–Appellees,^*

Missouri River Stewards; Fergus County; Phillips County; Chouteau County; Blaine County; Recreational Aviation Foundation; Montana Pilots Association, Intervenor–Defendants–Appellees.

Nos. 11–35818, 11–35821.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 5, 2013.

Filed July 31, 2013.

Matthew K. Bishop (argued), Western Environmental Law Center, Helena, MT, for Plaintiff–Appellant Montana Wilderness Association.

James S. Angell and Melanie R. Kay (argued), Earthjustice, Denver, CO, for Plaintiffs–Appellants The Wilderness Society, Friends of the Missouri Breaks Monument, National Trust for Historic Preservation and Oil and Gas Accountability Project.

Ignacia S. Moreno, Assistant Attorney General, Tyler Welti, Rachel K. Bowen, David C. Shilton, and Robert P. Stockman (argued), United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Karan Dunnigan and Sarah Shattuck, Office of the Solicitor, United States Department of the Interior, for Defendants–Appellees Jamie Connell, in her official capacity as Director of BLM's Montana State Office; Mike Pool, in his official capacity as Acting Director of the Bureau of Land Management; Bureau of Land Management, an agency of the United States Department of the Interior; United States Department of the Interior, a federal department; Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri River Breaks National Monument.

Paul A. Turcke (argued), Moore Smith Buxton & Turcke, Chtd., Boise, ID, for Intervenor–Defendants–Appellees Recreational Aviation Foundation and Montana Pilots Association.

Steven J. Lechner (argued) and Jeffrey Wilson McCoy, Mountain States Legal Foundation, Lakewood, CO; Hertha L. Lund, Lund Law, PLLC, Bozeman, MT, for Intervenor–Defendants–Appellees Missouri River Stewards, Fergus County, Phillips County, Chouteau County and Blaine County.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. Nos. 4:09–cv–00095–SEH, 4:09–cv–00096–SEH.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Plaintiff environmental groups challenge the Bureau of Land Management's (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims. We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA).

BACKGROUND

The Antiquities Act authorizes the President of the United States to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” 16 U.S.C. § 431. In accordance with this authority, President Clinton issued a Proclamationestablishing the Upper Missouri River Breaks National Monument in 2001. See Proclamation No. 7398, 66 Fed.Reg. 7359 (Jan. 17, 2001).

The Proclamation explains that:

The Upper Missouri River Breaks National Monument contains a spectacular array of biological, geological, and historical objects of interest. From Fort Benton upstream into the Charles M. Russell National Wildlife Refuge, the monument spans 149 miles of the Upper Missouri River, the adjacent Breaks country, and portions of Arrow Creek, Antelope Creek, and the Judith River. The area has remained largely unchanged in the nearly 200 years since Meriwether Lewis and William Clark traveled through it on their epic journey. In 1976, the Congress designated the Missouri River segment and corridor in this area a National Wild and Scenic River (Public Law 94–486, 90 Stat. 2327). The monument also encompasses segments of the Lewis and Clark National Historic Trail, the Nez Perce National Historic Trail, and the Cow Creek Island Area of Critical Environmental Concern.

Id. at 7359. The Proclamation declares that the Monument, which comprises approximately 375,000 acres of federal land, boasts the most viable elk herd in Montana; one of the premier big horn sheep herds in the continental United States; essential winter range for sage grouse; habitat for prairie dogs; one of the few remaining fully functioning cottonwood gallery forest ecosystems on the Northern Plains; large concentrations of antelope and mule deer; spawning habitat for the endangered pallid sturgeon; perching and nesting habitats for hawks, falcons and eagles; habitat for great blue heron, pelican and a wide variety of waterfowl; habitat for 48 fish species; archeological and historical sites, from teepee rings and remnants of historic trails to abandoned homesteads and lookout sites used by Meriwether Lewis; and remnants of a rich Native American and pioneer history scattered throughout the Monument. See id. at 7359–60.

The President established the Monument for the express purpose of protecting the aforementioned objects. See id. at 7361. To achieve that protection, the President directed the Secretary of Interior to develop a transportation plan limiting roads and prohibiting off-road travel:

The Secretary of the Interior shall prepare a transportation plan that addresses the actions, including road closures or travel restrictions, necessary to protect the objects identified in this proclamation.

For the purpose of protecting the objects identified above, the Secretary shall prohibit all motorized and mechanized vehicle use off road, except for emergency or authorized administrative purposes.

Id.

Consistent with those mandates, BLM began working on a resource management plan (RMP), including a transportation plan, for the Monument in 2002. As part of the process, and to comply with NEPA, BLM prepared draft and final environmental impact statements (FEIS). In 2008, BLM adopted the RMP. The RMP continues to authorize roads, airstrips and motorboats in the Monument, but at reduced levels. The RMP closes 201 miles of roads and ways year-round, closes another 111 miles seasonally and leaves 293 miles open year-round; prohibits off-road vehicle use; closes four airstrips year-round, closes one seasonally and leaves five open year-round; and restricts motorized watercraft use to particular days of the week in wild and scenic segments (and seasonally in the wild segment) of the Upper Missouri National Wild and Scenic River.

The plaintiffs filed two lawsuits challenging the RMP, one brought by the Montana Wilderness Association (MWA) and a second brought by The Wilderness Society, Friends of the Missouri Breaks Monument, the National Trust for Historic Preservation and the Oil and Gas Accountability Project (collectively, TWS). The plaintiffs asserted violations of FLPMA, NEPA and the NHPA. The district court granted summary judgment to the defendants and denied summary judgment to the plaintiffs. The plaintiffs timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant or denial of summary judgment. See Te–Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d 592, 598 (9th Cir.2010). The plaintiffs' claims under FLPMA, NEPA and the NHPA are reviewed under the Administrative Procedure Act (APA). See id. Under the APA, an agency decision will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We will sustain BLM's interpretation of the Proclamation so long as it is reasonable. Cf. Kester v. Campbell, 652 F.2d 13, 15–16 (9th Cir.1981) (“In light of an agency's presumed expertise in interpreting executive orders charged to its administration, we review such agency interpretations with great deference.... All that is required is that the interpretation adopted by the agency be reasonable.”).

DISCUSSION

I. FLPMA

A. Wilderness Study Areas¹

FLPMA provides that the Secretary of Interior “shall review those roadless areas of five thousand acres or more and roadless islands of the public lands, identified during the inventory required by section 1711(a) of...