949 F.2d 362 (10th Cir. 1991), 90-4091, Sierra Club v. Lujan

Docket Nº:90-4091.
Citation:949 F.2d 362
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, v. Manuel LUJAN, in his capacity as Secretary of the United States Department of the Interior, the De
Case Date:November 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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949 F.2d 362 (10th Cir. 1991)

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,

v.

Manuel LUJAN, 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, and Garfield County, a political subdivision of

the State of Utah, Defendants-Appellees.

No. 90-4091.

United States Court of Appeals, Tenth Circuit

November 18, 1991

Page 363

[Copyrighted Material Omitted]

Page 364

Wayne G. Petty of Moyle & Draper, P.C., Salt Lake City, Utah (Michael F. Heyrend, Salt Lake City, Utah, Lori Potter, Sierra Club Legal Defense Fund, Inc., Denver, Colo., and William J. Lockhart, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellants.

Robert L. Klarquist, Atty., Dept. of Justice, Land and Natural Resources Div., Washington, D.C. (Myles E. Flint, Deputy Asst. Atty. Gen., Washington, D.C., Dee V. Benson, U.S. Atty., Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, and Edward J. Shawaker, Atty., Dept. of Justice, Land and Natural Resources Div., Washington, D.C., with him on the brief), for defendants-appellees Manuel Lujan, Secretary of the Dept. of the Interior, Dept. of the Interior and Bureau of Land Management.

Ronald W. Thompson of Thompson, Hughes & Reber, St. George, Utah (Wallace A. Lee, Garfield Co. Atty., Panguitch, Utah, Barbara G. Hjelle of Thompson, Hughes & Reber, St. George, Utah, with him on the brief), for defendant-appellee Garfield County.

Before TACHA and SETH, Circuit Judges, and BRATTON, District Judge [*].

SETH, Circuit Judge.

In this appeal we revisit the Burr Trail in southern Utah for a second look at Garfield County's proposal to widen the western twenty-eight miles of the road. In Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), we determined that there was major federal action and ordered the district court to remand the case to the Bureau of Land Management (BLM) for an environmental assessment (EA) to be prepared followed either by a finding of no significant impact (FONSI) or an environmental impact statement (EIS). The action on this remand was to be taken within very narrow limits described in the mandate. On remand, BLM conducted an EA and issued a FONSI. BLM's action so far as it was relevant to this lawsuit was affirmed by the Interior Board of Land Appeals (IBLA). Based on the IBLA's decision, the district court lifted its injunction against construction on areas bordering the Wilderness Study Areas (WSAs) on the western twenty-eight miles of the road. 737 F.Supp. 629.

A brief review of the facts pertinent to our earlier decision is necessary. The Burr Trail connects the town of Boulder, Utah with the Bullfrog Basin Marina at Lake Powell. The trail travels sixty-six miles through rugged terrain, crossing or bordering unreserved federal lands, state lands, two WSAs, the Capitol Reef National Recreation Area and the Glen Canyon National Recreation Area. Garfield County has used and maintained the Burr Trail since the early 1940's. This use created a right-of-way under R.S. 2477. (43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), § 706(a), Pub.L. No. 94-579, 90 Stat. 2793).

In the earlier appeal, the Sierra Club and other environmental groups (collectively referred to as Sierra Club) had brought suit over Garfield County's contract with Harper Excavating Company (the Harper contract) to improve the western twenty-eight miles of the Burr Trail (segment 1) from an essentially one-lane dirt road to a two-lane gravel road. Segment 1 runs from the town of Boulder to the border of the Capitol Reef National Park. Sierra Club there claimed the proposed action exceeded the County's right-of-way and violated the National Environmental Policy Act (NEPA). 42 U.S.C. §§ 4321 et seq.

The district court initially held that the scope of Garfield County's R.S. 2477 right-of-way was sufficient to accommodate the proposed changes. Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987). The district

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court also found that BLM's involvement in the project constituted major federal action triggering NEPA, but that NEPA's requirements were sufficiently satisfied by facts developed during the trial before the district court.

We affirmed the district court's holding regarding the scope of the R.S. 2477 right-of-way. We held that the district court was correct in deferring to Utah state law to determine the existence and scope of the right-of-way and in applying Utah's "reasonable and necessary" use standard to the Harper contract. Sierra Club v. Hodel, 848 F.2d at 1083. However, we reversed as to the trial court's determination that NEPA's procedural requirements had been satisfied by the proceeding to that point.

As mentioned, the case was remanded under a narrow and closely defined mandate holding that BLM's duty under FLPMA § 603(c) was to prevent unnecessary degradation of the WSAs along the portion of the Burr Trail at issue. We held:

"We order the district court to remand to BLM for an environmental assessment, followed by either a finding of no significant impact or an environmental impact statement. Whatever the shortcomings of the previous studies, on remand BLM will be required to address environmental issues affecting only those areas in which, under the law of the case, it still has authority to act.... BLM's authority is limited to what is relevant to its duty to prevent unnecessary degradation of the WSAs."

848 F.2d at 1096.

The required action by the Department of Interior on remand was thus specifically limited to the consideration of the impact (unnecessary degradation) of the road changes on the WSAs. The geographical area was so limited, and the consideration was necessarily to be within the authority of the County under its right-of-way. The only actual work under consideration by the County was the Harper contract. As stated, the scope of BLM's considerations which would be necessary in this case were so described and required.

Whatever other considerations were made by the BLM were of no consequence to this litigation. It was thus through the mandate to the district court that BLM was required to proceed under NEPA, was required to prepare an EA, and was required to make its examination within the rulings as to the scope of the County's right-of-way. This was basically a fact question. The BLM...

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