Ctr. for Biological Diversity v. Bureau of Land Mgmt.

• Decision Date: 15 August 2016
• Docket Number: No. 14–15836,14–15836
• Citation: 833 F.3d 1136
• Parties: Center for Biological Diversity; Sierra Club; Public Employees for Environmental Responsibility; Desert Survivors, Plaintiffs–Appellants, v. Bureau of Land Management; U.S. Fish & Wildlife Service, Defendants–Appellees, and Blueribbon Coalition ; California Association of 4 Wheel Drive Clubs ; San Diego Off Road Coalition ; Desert Vipers Motorcycle Club ; High Desert Multiple Use Coalition ; American Motorcycle Association, District 37; Off–Road Business Association; California Off–Road Vehicle Association; American Sand Association, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

833 F.3d 1136

Center for Biological Diversity; Sierra Club; Public Employees for Environmental Responsibility; Desert Survivors, Plaintiffs–Appellants,

v.Bureau of Land Management; U.S. Fish & Wildlife Service, Defendants–Appellees,andBlueribbon Coalition ; California Association of 4 Wheel Drive Clubs ; San Diego Off Road Coalition ; Desert Vipers Motorcycle Club ; High Desert Multiple Use Coalition ; American Motorcycle Association, District 37; Off–Road Business Association; California Off–Road Vehicle Association; American Sand Association, Intervenor–Defendants–Appellees.

No. 14–15836

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2016 San Francisco, California

Filed August 15, 2016

Brendan R. Cummings (argued), Center for Biological Diversity, Joshua Tree, California; Sarah Uhlemann, Center for Biological Diversity, Seattle, Washington; for Plaintiffs–Appellants.

Brian C. Toth (argued), Norman L. Rave, Jr., and Kevin W. McArdle, Attorneys; Sam Hirsch, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Cheryll Dobson and Erica Niebauer, United States Department of the Interior, Office of the Solicitor; for Defendants–Appellees.

David P. Hubbard (argued), Gatzke Dillon & Ballance LLP, Carlsbad, California; Paul A. Turcke (argued), Moore Smith Buxton & Turcke, Boise, Idaho; Dennis L. Porter, Sacramento, California; for Intervenors–Defendants–Appellees.

Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and N. Randy Smith, Circuit Judges.

OPINION

O'SCANNLAIN

, Circuit Judge:

We must decide whether the United States Fish and Wildlife Service, in reviewing the Bureau of Land Management's proposal to expand access for off-road vehicle recreation in the Imperial Sand Dunes Special Recreation Management Area, has complied with the requirements of the Endangered Species Act.

I

Just north of the Mexican border, in Imperial County, California, lies the Imperial Sand Dunes Planning Area, a 227,000–acre tract of desert, 214,930 acres of which is managed by the Bureau of Land Management (“BLM”). The expanse is home to the Algodones Dunes, the largest active sand dune system in the United States. A 138,111–acre portion of the Planning Area, designated as the Imperial Sand Dunes Special Recreation Management Area, is set aside for the protection of plants and wildlife, as well as for outdoor recreation. The Dunes consistently attract well over one million visitors annually, particularly off-road vehicle enthusiasts who flock to the area to take advantage of the unique terrain and beautiful landscape.¹

The current litigation, which has been ongoing for over a decade, originates from BLM's decision to reopen land within the Imperial Sand Dunes Special Recreation Management Area to off-road vehicle use. The Dunes contain a species of purple-flowered plant known as the Peirson's milkvetch (Astragalus magdalenae var. peirsonii ), categorized as a “threatened species” for purposes of the Endangered Species Act. Ctr. for Biological Diversity v. Bureau of Land Mgmt. , 422 F.Supp.2d 1115, 1124–25 (N.D. Cal. 2006)

. In 2000, the Center for Biological Diversity (“the Center”) sued BLM, claiming that it had violated the Endangered Species Act by failing to enter into formal consultation with the Fish and Wildlife Service before adopting a management plan for the Dunes. Id. at 1123. As a result, BLM agreed to close temporarily portions of the Dunes to off-road vehicles until it could implement a new Recreation Area Management Plan (“RAMP”). Id. at 1124. In 2005, the Center successfully challenged a BLM plan to reopen the closed areas. Id. at 1121. The District Court for the Northern District of California at that time held, inter alia, that the Fish and Wildlife Service's “Biological Opinion” for a 2003 BLM RAMP violated the Endangered Species Act in several respects relating to its evaluation of the potential impact on the Peirson's milkvetch and the desert tortoise, another threatened species. Id. at 1121–22.

In response to the court's order, the Fish and Wildlife Service issued a new critical habitat designation for the milkvetch in 2008, which the Center unsuccessfully challenged. In 2013, BLM adopted a new RAMP. Under the new plan, the 26,098–acre North Algodones Dunes Wilderness tract would remain closed to off-road vehicles, as would 9,261 acres of milkvetch critical habitat. The remainder of the Imperial Sand Dunes Special Recreation Management Area—over 127,000 acres—would be open to off-road vehicle use. BLM additionally prepared an Environmental Impact Statement analyzing the 2013 RAMP, and consulted with the Fish and Wildlife Service pursuant to section 7(a)(2) of the Endangered Species Act. As a result, the Fish and Wildlife Service issued a new Biological Opinion finding that the 2013 RAMP was not likely to jeopardize the continued existence of the milkvetch or desert tortoise.

The Center once again mounted a challenge, asserting various claims under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.,

the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 –1785, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 706 et seq. Specifically, the Center alleged that: 1) the 2012 Biological Opinion was deficient because it did not include an Incidental Take Statement for the Peirson's milkvetch; 2) the Fish and Wildlife Service had unreasonably delayed issuance of a recovery plan for the Peirson's milkvetch under section 4(f) of the Endangered Species Act; 3) the 2013 Environmental Impact Statement violated the National Environmental Policy Act by failing to take a “hard look” at impacts on wilderness areas; and 4) BLM violated the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act by failing to evaluate properly the impacts of the 2013 RAMP on air quality.

The District Court for the Northern District of California granted summary judgment in favor of BLM on all but the second issue.²

The Center timely appealed and argues that the plain language of the Endangered Species Act requires an Incidental Take Statement for plants rather than for just fish and wildlife. The Center additionally renews its claim that BLM failed to comply with the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act by failing to evaluate properly the impacts of the 2013 RAMP on air quality.

II

The Center first avers that the Endangered Species Act requires Fish and Wildlife Service Biological Opinions to contain Incidental Take Statements for threatened plants. In contrast, BLM maintains that Incidental Take Statements are required solely for fish and wildlife.

We review an agency's interpretation of a statute it is charged with administering under the two-step framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

. Ctr. for Biological Diversity v. Salazar , 695 F.3d 893, 902 (9th Cir. 2012). We must first determine whether “Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. “If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation.” Ctr. for Biological Diversity , 695 F.3d at 902 (quoting Nat'l Cable & Telecomm. Ass'n v.

Brand X Internet Servs. , 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ).

A

Enacted in 1973, the Endangered Species Act authorizes the Secretary of the Interior to designate certain species as “endangered” or “threatened.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. , 515 U.S. 687, 690, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995)

. Section 9(a)(1) of the Act provides, among others, the following protection for species so designated: “[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States.” 16 U.S.C. § 1538(a)(1)(B). The Act defines “take” as “to harass, harm, pursue, hunt, shoot, wound

, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Section 9(a)(2) lists separate protections for endangered or threatened plants, but notably does not use the term “take.” See 16 U.S.C. § 1538(a)(2).

In 1978, Congress added a provision to the Act requiring federal agencies wishing to engage in action that may adversely affect an endangered or threatened species to consult first with the Secretary of the Interior to “insure that any action authorized, funded, or carried out by such agency ... does not jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” Pub. L. 95–632, § 3, 92 Stat. 3751

, 3752 (codified as amended at 16 U.S.C. § 1536(a)(2) ). Consultation results in a “Biological Opinion, summarizing the relevant findings and determining whether the proposed action is likely to jeopardize the continued existence...