Center for Biological Diversity v. Bureau of Land Management, 081516 FED9, 14-15836

Docket Nº:14-15836
Opinion Judge:SCANNLAIN, Circuit Judge:
Party Name: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 ...
Attorney: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 Attor...
Judge Panel:Before: Diarmuid F. O’Scannlain, Richard R. Clifton, and N. Randy Smith, Circuit Judges
Case Date:August 15, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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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.

No. 14-15836

United States Court of Appeals, Ninth Circuit

August 15, 2016

Argued and Submitted April 14, 2016 San Francisco, California

Appeal from the United States District Court . No. 3:03-cv-02509-SI for the Northern District of California Susan Illston, Senior District Judge, Presiding

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

SUMMARY[*]

Environmental Law

The panel affirmed the district court's judgment in favor of the Bureau of Land Management ("BLM") in an action by plaintiff environmental groups challenging BLM's proposal to expand access for off-road vehicle recreation in the Imperial Sand Dunes Special Recreation Management Area in Imperial County, California.

The Dunes contain a species of plant known as the Peirson's milkvetch that is categorized as a "threatened species" under the Endangered Species Act. In 2013, BLM adopted a new Recreation Area Management Plan under which a tract would remain closed to off-road vehicle use, as would 9, 261 acres of milkvetch critical habitat, and the remainder of the Dunes would be open to off-road vehicle use. Pursuant to section 7(a)(2) of the Endangered Species Act, BLM consulted with the United States Fish and Wildlife Service, which issued a Biological Opinion finding that the 2013 Recreation Area Management Plan was not likely to jeopardize the continued existence of the milkvetch or the desert tortoise.

The panel held that the Endangered Species Act did not require the Biological Opinion to contain Incidental Take Statements for threatened plants, such as the milkvetch.

The panel rejected plaintiffs' claims that BLM's decision to open additional land to off-road vehicle use violated the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. The panel held that the BLM did not act arbitrarily or capriciously when it relied on air quality analysis demonstrating that emissions resulting from visitors to the Dunes would not be increased impermissibly by the land openings.

OPINION

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...

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