848 F.2d 1068 (10th Cir. 1988), 87-2832, Sierra Club v. Hodel

Docket Nº:87-2832, 88-1130 and 88-1161.
Citation:848 F.2d 1068
Party Name:SIERRA CLUB, a non-profit corporation; National Parks and Conservation Association, a non-profit organization; Southern Utah Wilderness Alliance, a non-profit corporation; and The Wilderness Society, a non-profit corporation, Plaintiffs-Appellants/Cross-Appellees, v. Donald P. HODEL, in his capacity as Secretary of the United States Department of t
Case Date:June 06, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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848 F.2d 1068 (10th Cir. 1988)

SIERRA CLUB, a non-profit corporation; National Parks and

Conservation Association, a non-profit organization;

Southern Utah Wilderness Alliance, a non-profit corporation;

and The Wilderness Society, a non-profit corporation,

Plaintiffs-Appellants/Cross-Appellees,

v.

Donald P. HODEL, in his capacity as Secretary of the United

States Department of the Interior; The Department of the

Interior of the United States: The Bureau of Land

Management; Garfield County, a political subdivision of the

State of Utah, Defendants-Appellees/Cross-Appellants.

Nos. 87-2832, 88-1130 and 88-1161.

United States Court of Appeals, Tenth Circuit

June 6, 1988

As Amended Aug. 31, 1988.

Opinion on Rehearing Aug. 31, 1988.

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Lori Potter, Sierra Club Legal Defense Fund, Inc., Denver, Colo. (Wayne G. Petty of Moyle & Draper, Salt Lake City, Utah, with her on the briefs), for plaintiffs-appellants/cross-appellees.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C. (Roger J. Marzulla, Acting Asst. Atty. Gen., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., and Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, with him on the briefs), for defendants-appellees/cross-appellants Donald P. Hodel and Dept. of the Interior: Bureau of Land Management.

Craig C. Halls, San Juan Co. Atty., Monticello, Utah, for amicus curiae San Juan County, Utah.

Ronald W. Thompson of Thompson, Hughes & Reber, St. George, Utah (Patrick Noland, Panguitch, Utah, with him on the briefs) for defendant-appellee/cross-appellant Garfield County, Utah.

Lee Ruck, General Counsel, Nat. Ass'n of Counties, Washington, D.C., and Patrick B. Nolan, Garfield Co. Atty., Panguitch, Utah, for amicus curiae Nat. Ass'n of Counties.

Eric Twelker and Constance E. Brooks of Mountain States Legal Foundation, Denver,

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Colo., for amicus curiae Mountain States Legal Foundation.

Bill Thomas Peters of Kinghorn, Peters, Probst & Sloan, Salt Lake City, Utah, for amicus curiae Utah Ass'n of Counties.

William J. Lockhart, Salt Lake City, Utah, filed briefs as amicus curiae.

Before LOGAN and SEYMOUR, Circuit Judges, and BARRETT, Senior Circuit Judge.

LOGAN, Circuit Judge.

I

The Burr Trail winds for sixty-six miles through federally owned land in the rugged, dramatic terrain of southern Utah's Garfield County. Connecting the town of Boulder with Lake Powell's Bullfrog Basin Marina, the road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park, and the Glen Canyon National Recreation Area. The trail has hosted a variety of uses: during the late 1800s and early 1900s to drive cattle, sheep and horses to market; around 1918 to facilitate oil exploration; and since the 1930s for various transportation, emergency, mineral, agricultural, economic development, and tourist needs. Garfield County (the County) has maintained the Burr Trail since the early 1940s. The combination of public uses and county maintenance has created a right-of-way in favor of Garfield County, pursuant to Congress' grant of public land in R.S. 2477. See Sec. 8 of the Act of July 26, 1866, 14 Stat. 253, formerly Sec. 2477 of the Revised Statutes of the United States, repealed by Federal Land Policy Management Act of 1976, Sec. 706(a), Pub.L. No. 94-579, 90 Stat. 2793. 1

The current controversy arises out of the County's immediate plan to improve the western twenty-eight miles of the Burr Trail from an essentially one-lane dirt road into an improved two-lane graveled road. 2 Part of this section of the trail runs between two federally protected wilderness study areas (WSAs), the Steep Creek and the North Escalante Canyons WSAs 3. Asserting concern over the impact that construction and subsequent increased travel will have on plants, animals, and archaeological sites in the area, Sierra Club and other environmental groups (collectively referred to as Sierra Club) sued the Secretary of the United States Department of the Interior and a division thereunder, the Bureau of Land Management (collectively referred to as federal defendants or as BLM) and Garfield County. The complaint's essential allegations are that:

(1) the County's proposed improvements will extend the actual roadway beyond the right-of-way and encroach upon federal land;

(2) the County has not received authorization for this encroachment from the Bureau of Land Management (BLM), as required by the Federal Land Policy Management Act of 1976 (FLPMA), supra, codified, as amended at 43 U.S.C. Sec. 1701 et seq.;

(3) the improvements will unnecessarily and unduly degrade adjacent wilderness study areas and will impair the WSAs' suitability for designation as wilderness; and

(4) BLM has failed to study the environmental impact of the construction in violation of the National Environmental Policy

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Act of 1969 (NEPA), Pub.L. No. 91-190, 83 Stat. 852, codified as amended at 42 U.S.C. Sec. 4321.

The complaint requests an injunction against construction until the County and BLM comply with FLPMA and NEPA.

The district court enjoined the County's project pending trial. After trial, the district court agreed almost entirely with the County and BLM and authorized the construction. See Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987). It found that the entire proposal fell within the County's right-of-way, but that one part of the proposal--in the riparian area known as The Gulch--threatened the wilderness study areas. To protect The Gulch, the district court ordered the County to seek from BLM a FLPMA permit to relocate part of the road outside the existing right-of-way. It further ordered BLM to conduct studies of plant life along the trail, to monitor the construction in areas with archaeological sites, and to direct alterations in the plan where necessary to preserve plant life or archaeological sites. The court denied Garfield County's request for damages resulting from construction delays. The court then dissolved the preliminary injunction. Both sides appealed portions of the district court's rulings. This court stayed the dissolution of the preliminary injunction pending appeal.

On appeal we must consider two jurisdictional questions: (1) whether BLM's self-described refusal to act under FLPMA is committed to agency discretion under the Administrative Procedure Act and thus exempt from judicial review; and (2) whether Sierra Club has rights of action against BLM and Garfield County. 4 On the merits, we must consider whether and to what extent (1) the County's plans fall within their R.S. 2477 right-of-way; (2) the plans affect adjacent WSAs; (3) major federal action as defined in NEPA is involved by BLM's activities or responsibilities under FLPMA; and (4) BLM must conduct further environmental studies under NEPA. We also must determine whether the district court erred in ordering the County to apply for a permit to relocate part of the road and to make an inventory of plant life along the Burr Trail. Finally, we must address the district court's denial of damages for the construction delays caused by the suit.

II

  1. Reviewability of BLM's Refusal to Act

    BLM raises a threshold jurisdictional question. Under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 et seq., administrative actions generally are subject to judicial review. Courts, however, cannot review actions or, as in this case, refusals to act which are "committed to agency discretion by law." 5 U.S.C. Sec. 701(a)(2). BLM alleges that its decision not to attempt to enjoin or regulate the County's plans fits within the Sec. 701(a)(2) exception to judicial review.

    Sierra Club has asserted that FLPMA imposes a duty on BLM to require Garfield County to prove its entitlement to a right-of-way before BLM can allow the County to begin "significant construction," and "to prevent the trespass of Garfield County and Harper Excavating, Inc. if Garfield County does not have a right-of-way." Complaint, I R. tab 1 at p 64. BLM characterizes Sierra Club's complaint as a request for investigative and enforcement action, which FLPMA requires only if "necessary to prevent unnecessary or undue degradation of the lands." FLPMA Sec. 302(b), codified at 43 U.S.C. Sec. 1732(b). According to BLM, the statutory language "unnecessary or undue degradation" " 'breath[es] discretion at every pore.' " Brief of Federal Defendants at 17 (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975)). BLM contends that FLPMA lacks a statutory standard capable of judicial application, and thus that its decisions whether to enjoin private activities which affect public lands fall beyond the purview of judicial review.

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    In general, in the absence of an express statutory prohibition of judicial review (which would invoke APA Sec. 701(a)(1)), an agency bears "the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of [the agency's] decision." Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court stated that Sec. 701(a)(2)'s judicial review exemption applies only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " Id. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)).

    When, however, an agency decides not to take a requested...

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