Sierra Club v. Clark

• Decision Date: 25 October 1985
• Docket Number: No. 84-6483,84-6483
• Citation: 774 F.2d 1406
• Parties: 16 Envtl. L. Rep. 20,409 SIERRA CLUB, the Wilderness Society, the Desert Protective Council, and California Native Plant Society, Plaintiffs/Appellants, v. William P. CLARK, Secretary of the Interior, Robert F. Burford, Edward Hastey, Gerald E. Hillier, William T. Civish, Everall G. Hayes, and Sports Committee District 37 AMA Inc., Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1406

774 F.2d 1406

16 Envtl. L. Rep. 20,409

SIERRA CLUB, the Wilderness Society, the Desert Protective Council, and California Native Plant Society Plaintiffs/Appellants, v. William P. CLARK, Secretary of the Interior, Robert F Burford, Edward Hastey, Gerald E. Hillier, William T. Civish, Everall G. Hayes, and Sports Committee District 37 AMA Inc., Defendants/Appellees.

No. 84-6483.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 11, 1985.

Decided Oct. 25, 1985.

Michael R. Sherwood, Deborah S. Reames, San Francisco, Cal., for plaintiffs/appellants.

Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., James R. Arnold, Ronald K. Silver, Los Angeles, Cal., for defendants/appellees.

David Elson, David A. Juhnke, Manatt, Phelps, Rothenberg & Tunney, Los Angeles, Cal., for Dist. 37, A.M.A., Inc.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON and TANG, Circuit Judges, and LEAVY, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge.

The Sierra Club and other environmental groups (Sierra Club) brought this action challenging the validity of two related but separate actions taken by the federal defendants on the grounds that they violated the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. Sec. 1701, et seq., (1982) and numerous other statutes, Executive Orders and regulations. The district court denied the requested declaratory and injunctive relief, and Sierra Club appeals. We affirm.

BACKGROUND

Each Thanksgiving weekend from 1967 through 1974, an off-road motorcycle race was run from Barstow, California to Las Vegas, Nevada across public lands managed by the federal Bureau of Land Management (BLM). Based on studies conducted following the 1974 race which documented adverse impacts to desert resources, the BLM refused to issue a permit for the event in 1975. Permit applications were subsequently denied for each year thereafter, until 1983. According to BLM By 1974, the Barstow to Vegas race had become relatively popular, drawing thousands of racers each year. When the permits were denied beginning in 1975, Thanksgiving weekend became the time each year for a "protest" ride over various routes of the old Barstow to Vegas course. These "protest" rides were not sanctioned by BLM, nor were they organized or supervised by any recognized clubs or organizations. The "protest" rides and attending activities resulted in considerable impacts on the biological, geological, cultural and other resources of the desert environment.

the latter permits were denied due to inadequate budgetary and personnel resources necessary to adequately study the environmental impacts and to develop appropriate mitigating measures to reduce those impacts.

For various reasons, and largely aided by additional funding provided by defendant District 37, BLM began to study the prospect of permitting a Barstow to Vegas race in 1983. Before this could be done, however, the California Desert Conservation Area (CDCA) Management Plan had to be amended so as to designate a race course and race specifications. The CDCA contains approximately 25 million acres, which Congress mandated BLM to manage for multiple uses. The CDCA Management Plan was prepared, pursuant to Sec. 601 of FLPMA, 43 U.S.C. Sec. 1781, by BLM to "provide for the immediate and future protection of and administration of the public lands in the California desert within the framework of a program of multiple use and sustained yield, and the maintenance of environmental quality." 43 U.S.C. Sec. 1781(b).

The amendment which designated the Barstow to Vegas course across the CDCA was entitled Amendment No. 6. The proposed course covered 110 miles and approximately 2000 acres, and was the subject of a Draft Environmental Impact Statement (DEIS) and a Final Environmental Impact Statement (FEIS). Included in Amendment No. 6 were specific mitigation measures to be implemented in order to reduce the impacts a race might have on the course. In addition, it was provided that further mitigation measures could be added pursuant to new information, gathered data and monitoring results. Amendment No. 6 received final approval in May, 1983, a permit was issued in August, 1983, and the Barstow to Vegas race was held later in the year.

Sierra Club sued to challenge the validity of Amendment No. 6 and to enjoin the issuance of a permit for the 1983 race. Following a trial, the district court concluded that Sierra Club had failed to meet its burden of demonstrating that Amendment No. 6 was arbitrary, capricious, an abuse of discretion, or that it violated any of the relevant statutory provisions. We agree.

DISCUSSION

A. Standard of Review

Traditionally, an agency's interpretation of its own regulations is entitled to a high degree of deference. Hawaiian Electric Co. v. United States EPA, 723 F.2d 1440, 1447 (9th Cir.1984). The scope of review of an agency's factual findings is very narrow and they are "overturned only if arbitrary and capricious." Sierra Club v. Clark, 756 F.2d 686, 691 (9th Cir.1985); 5 U.S.C. Sec. 706(2)(A) (1982).

B. Section 603(c) of FLPMA: Wilderness Lands Preservation

Section 603(a) of the FLPMA, 43 U.S.C. Sec. 1782(a), provides for the designation, within 15 years of October, 1976, of public lands suitable for preservation as wilderness. Section 603(c) further provides:

During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness....

43 U.S.C. Sec. 1782(c) (emphasis added).

The BLM's "Interim Management Policy and Guidelines for Lands under Wilderness As observed by the district court, "[i]t is unquestionable that the 1983 race had an adverse impact on the visual integrity of WSA 242. This adverse impact is a direct consequence of the adoption of Amendment No. 6. The determinative issue is whether this impact is sufficiently egregious to violate the BLM's IMP on non-impairment." The district court found that it was not.

                Review," (IMP) provides that, under 603(c)'s non-impairment criteria, impacts caused by any permitted activity "must, at a minimum, be capable of being reclaimed to a condition substantially unnoticeable in the wilderness area ... as a whole by the time the Secretary of the Interior is scheduled to send his recommendation to the President."    (emphasis added).  The IMP also permits organized off-road vehicle (ORV) events to pass through these wilderness study areas (WSA) "on existing ways and trails, so long as the BLM has determined that such use satisfied the non-impairment criteria."
                

In arriving at its decision, the district court judge reviewed the relevant depositions, reports and other testimony, as well as making his own visual inspection of the site. Over objection by the federal appellees and District 37, the judge included post-race reports and evaluations concerning the impact of the 1983 event in his review. The district court concluded that the BLM's construction of the statute was supported by substantial evidence and was not an abuse of discretion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (more than a mere scintilla).

Agency interpretation "is especially weighty where statutory construction involves 'reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation (depends) upon more than ordinary knowledge respecting the matters subjected to agency regulations.' " State of Washington, Dept. of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1469 (9th Cir.1985) (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). The BLM, interpreting "substantially unnoticeable in the area as a whole," determined the term to mean "substantial" in the context of the WSA as a whole--not on a parcel-by-parcel basis. We find that this interpretation is a reasonable one, consistent with our decision of Sierra Club v. Clark, 756 F.2d at 690, and the principles of multiple use. 43 U.S.C. Sec. 1781(a)(4) (ORV use to be permitted where appropriate).

C. Executive Order 11644 and 43 C.F.R. Sec. 8342.1

Designation of approved routes for ORV use under the Desert Plan must be made in accordance with the ORV route designation criteria set forth in Executive Order 11644 and 43 C.F.R. Sec. 8342.1. Executive Order 11644 was promulgated in 1972 and directs agency heads, including the Secretary, "to develop and issue regulations governing the designation of specific areas and trails on public lands for use by off-road vehicles." American Motorcyclist Ass'n v. Watt, 543 F.Supp. 789, 795 (C.D.Cal.1982). The regulations promulgated by the BLM, pursuant to the authority of FLPMA, which set forth the route designation criteria, seek to: (1) minimize conflict among the various users of the public lands; (2) minimize damage to soil, watershed, vegetation, air or other resources (to prevent impairment of wilderness suitability); (3) minimize harassment of wildlife or significant disruption of wildlife habitat; and (4) minimize conflicts between ORV use and other recreational uses. 43 C.F.R. Sec. 8342.1 (1984). FLPMA, 43 U.S.C. Sec. 1781(d), provides that the desert plan must take into account "the principles of multiple use and sustained yield in providing for resource use and development, including, but not limited to, maintenance of environmental quality, rights-of-way, and mineral development."

Amendment No. 6 is a proper exercise of the BLM's discretion in providing for combined use of the desert. It seeks to balance desired use and ecological concerns through the imposition of permit and mitigation

requirements. While there is little doubt that negative impacts resulted from the ...