Ctr. For Biological Diversity v. U.S. Bureau of Land Mgmt.

Decision Date28 September 2009
Docket NumberNo. C 06–4884 SI.,C 06–4884 SI.
Citation746 F.Supp.2d 1055
PartiesCENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,v.U.S. BUREAU OF LAND MANAGEMENT, et al., Defendants.
CourtU.S. District Court — Northern District of California

OPINION TEXT STARTS HERE

Matthew Ellis Bostick, Farella Braun Martel, Lisa T. Belenky, San Francisco, CA, Deborah Ann Sivas, Environmental Law Clinic, Stanford, CA, for Plaintiffs.Charles Ray Shockey, U.S. Department of Justice, Sacramento, CA, Michael Richard Eitel, U.S. Department of Justice, Denver, CO, Defendants.

ORDER RE: SUMMARY JUDGMENT MOTIONS

SUSAN ILLSTON, District Judge.

INTRODUCTION

Plaintiffs are eleven environmental organizations 1 who have sued the Bureau of Land Management (BLM) and the U.S. Fish and Wildlife Service (“FWS”). The BLM manages a vast area of public land known as the California Desert Conservation Area (“CDCA”), home to a number of protected species, including the threatened desert tortoise and an endangered plant, the Lane Mountain milk-vetch. FWS consults with the BLM and is required to evaluate BLM actions that affect these protected species.

Plaintiffs' claims arise out of the BLM's approval of three land management plans that amend the California Desert Conservation Area Plan of 1980, the land use plan governing the CDCA: the West Mojave (“WEMO”) Plan; the Northern and Eastern Mojave (“NEMO”) Desert Management Plan, and the Northern and Eastern Colorado (“NECO”) Desert Coordinated Management Plan. With respect to the WEMO Plan, plaintiffs claim that the BLM's designation of an extensive “Off–Highway Vehicle” (“OHV”) route network throughout the WEMO planning area violates the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701–85. Plaintiffs also claim that the Final Environmental Impact Statement and Report for the West Mojave Plan (“FEIS”) prepared for the WEMO Plan violates the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq. Finally, plaintiffs claim that Biological Opinions (“BiOps”) issued by the U.S. Fish and Wildlife Service for the WEMO, NEMO and NECO Plans do not comply with the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–44, and that all three management plans imperil the desert tortoise and the Lane Mountain milk-vetch.2

The Court recognizes the complexity of the issues presented in this case, and that defendants have been given the difficult task of addressing the interests and needs of OHV recreationists while at the same time protecting listed species as required by law. In deciding the pending summary judgment motions, the Court has been mindful that its review is “narrow” but “searching and careful,” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and that the Court will “reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal citations omitted).

In summary, after careful consideration of the parties' papers and the arguments of counsel, as well as of the voluminous administrative record, the Court concludes the BLM violated the FLPMA and the NEPA in numerous respects, but that defendants complied with their obligations under the ESA. With regard to FLPMA, the BLM's route designation process—insofar as that process is documented in the administrative record—did not comply with regulations mandating that the BLM consider various “minimization criteria” when designating OHV routes. In addition, because the WEMO Plan authorizes numerous OHV routes that were not in existence in 1980, the WEMO Plan is inconsistent with the governing CDCA land use plan, which limits OHV routes to those existing in 1980. With regard to NEPA, the Court concludes that the FEIS is flawed because it does not contain a reasonable range of alternatives to the proposed action, and its discussion of the “no action” alternative is incomplete. However, the Court finds that other aspects of the FEIS comply with NEPA, such as the FEIS's discussion of mitigation measures, and its analysis of some of the impacts of the WEMO Plan.

Turning to the ESA claims and the two BiOps at issue, the Court finds that FWS considered all relevant factors, and that its analyses and conclusions are reasoned and supported by the record. The BiOps explain in detail why FWS concluded that the WEMO and NECO Plans would not jeopardize the continued existence of the desert tortoise and the Lane Mountain milk-vetch, as well as why those plans would not destroy or adversely modify designated critical habitat of the desert tortoise. The Court also finds that the amended Incidental Take Statements (“ITSs”) for both BiOps comply with the law.

BACKGROUND

I. Statutory backgroundA. Federal Land Policy and Management Act

The FLPMA, 43 U.S.C. §§ 1701–1785, declares that public lands must be managed for multiple uses in a manner that will protect the quality of the scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values, but also provides for outdoor recreation and human occupancy and use. See 43 U.S.C. § 1701(a)(7) & (8).

As part of FLPMA, Congress designated 25 million acres of southern California as the CDCA. 43 U.S.C. § 1781(c). Congress declared in FLPMA that the CDCA is a rich and unique environment teeming with “historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources.” Id. Congress found that this desert and its resources are “extremely fragile, easily scarred, and slowly healed.” Id. For the CDCA and other public lands, Congress mandated that the BLM “shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” Id. § 1732(b).

Of particular relevance to this case are regulations addressing OHV 3 use on public lands. In 1978, the BLM promulgated 43 C.F.R. § 8342.1, which governs the opening of OHV routes within public lands under the agency's control. See Recodification of Recreation Regulations, 43 Fed.Reg. 40,734 (Sept. 12, 1978). 43 C.F.R. § 8342.1 provides:

The authorized officer shall designate all public lands as either open, limited, or closed to off-road vehicles. All designations shall be based on the protection of the resources of the public lands, the promotion of the safety of all the users of the public lands, and the minimization of conflicts among various uses of the public lands; and in accordance with the following criteria:

(a) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, air, or other resources of the public lands, and to prevent impairment of wilderness suitability.

(b) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Special attention will be given to protect endangered or threatened species and their habitats.

(c) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.

(d) Areas and trails shall not be located in officially designated wilderness areas or primitive areas. Areas and trails shall be located in natural areas only if the authorized officer determines that off-road vehicle use in such locations will not adversely affect their natural, esthetic, scenic, or other values for which such areas are established.

43 C.F.R. § 8342.1(a)-(d). These route designation criteria are referred to by the parties and throughout this order as the “minimization criteria.”

B. The National Environmental Policy Act

The NEPA requires federal agencies to analyze the environmental impacts of a proposed action before proceeding with that action. See 42 U.S.C. § 4332(2)(C). Under NEPA and the regulations promulgated thereunder by the Council on Environmental Quality (“CEQ”), federal agencies must prepare and circulate to the public a comprehensive environmental impact statement (“EIS”) so that the environmental impacts can be considered and disclosed to the public during the decision-making process. See 40 C.F.R. §§ 1501.2, 1502.5. In the EIS, the agency must identify direct, indirect, and cumulative impacts of the proposed action, consider alternative actions (including the alternative of taking no action) and their impacts, and identify all irreversible and irretrievable commitments of resources associated with the action. See 42 U.S.C. § 4332(2); 40 C.F.R. § 1502.14(d).

C. The Endangered Species Act

Congress enacted the ESA to protect and conserve endangered and threatened species. 16 U.S.C. § 1531(b). “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat.” Id. § 1536(a)(2); see 50 C.F.R. Pt. 402. After the agencies engage in the consultation process, the consulting agency issues a biological opinion (“BiOp”), which includes a “detailed discussion of the effects of the action on listed species or critical habitat.” 50 C.F.R. § 402.14(h)(2). The BiOp assesses the likelihood of the proposed action resulting in jeopardy to a listed species or destruction or adverse modification to designated critical habitat. See 50 C.F.R. § 402.14(g)(4). If an action is not likely to...

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