Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. C 03–02509 SI

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtSUSAN ILLSTON, United States District Judge
Decision Date03 April 2014
PartiesCenter for Biological Diversity, et al., Plaintiffs, v. Bureau of Land Management, et al., Defendants, and American Sand Association, et al., Defendant–Intervenors.
Docket NumberNo. C 03–02509 SI

35 F.Supp.3d 1137

Center for Biological Diversity, et al., Plaintiffs
v.
Bureau of Land Management, et al., Defendants
and
American Sand Association, et al., Defendant–Intervenors.

No. C 03–02509 SI

United States District Court, N.D. California.

Signed April 3, 2014


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Brendan R. Cummings, Joshua Tree, CA, Deborah Ann Sivas, Environmental Law Clinic, Stanford, CA, Lisa T. Belenky, San Francisco, CA, for Plaintiffs.

Kevin William McArdle, United States Department of Justice, Lisa Lynne Russell, Wildlife & Marine Resources Section, Washington, DC, Michael Richard Eitel, U.S. Department of Justice, Denver, CO, for Defendants.

David P. Hubbard, Esq., Gatzke Dillon & Ballance LLP, Carlsbad, CA, Paul Andrew Turcke, Moore Smith Buxton & Turcke, Boise, ID, for Defendant–Intervenors.

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

SUSAN ILLSTON, United States District Judge

On February 28, 2014, the Court held a hearing on the parties' cross-motions for summary judgment. For the reasons set forth below, the parties' cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART.

BACKGROUND

This dispute marks the continuation of plaintiffs' challenge to the administration by the Bureau of Land Management (“BLM”) of the Imperial Sand Dunes Recreation Area (“ISDRA” or “Dunes”), and the biological opinions related to the Dunes prepared by the U.S. Fish and Wildlife Service (“FWS”) in accordance with the Endangered Species Act (“ESA”). The lengthy factual and procedural history of FWS and BLM's management actions

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related to the Dunes and plaintiffs' prior claims is set forth in this Court's March 14, 2006 Order granting in part and denying in part each side's motion for summary judgment. See Ctr. for Biological Diversity (“CBD”) v. BLM, 422 F.Supp.2d 1115 (N.D.Cal.2006).1

In that decision, the Court held that FWS's 2005 biological opinion (“BiOp”) for the 2003 ISDRA Recreation Area Management Plan (the “2003 RAMP”) violated the Endangered Species Act in various respects with regard to two listed species, the Peirson's milk-vetch (“PMV”) and the desert tortoise. Id. at 1121–22. The Court also held that FWS unlawfully excluded certain areas when it designated critical habitat for the PMV in 2004. Id. at 1122. Finally, the Court held that the BLM violated the National Environmental Policy Act by failing to consider interim off-highway vehicle (“OHV”) closures2 when it considered alternatives in the Environmental Impact Statement for the 2003 RAMP, and by failing to adequately examine the impact of the 2003 RAMP on endemic invertebrates. Id.

In response to the Court's 2006 opinion, in 2008 FWS issued a new critical habitat designation for the PMV. 73 Fed. Reg. 8748 (Feb. 14, 2008). Plaintiffs and other groups unsuccessfully challenged the new critical habitat designation. See Maddalena v. FWS, No. 3:08–cv–02292–H–AJB, 2010 WL 9915002 (S.D.Cal. Aug. 5, 2010). In June 2013, the BLM also issued a new Record of Decision adopting a new Recreation Area Management Plan (the “2013 RAMP”) for the Dunes. Under the 2013 RAMP, the 26,000 acre North Algodones Dunes Wilderness remains closed to OHVs, as will an additional 9,261 acres of PMV critical habitat. The remainder of the Dunes—over 127,000 acres—will be opened to OHV use. Prior to issuing the Record of Decision, the BLM prepared a new Environmental Impact Statement (the “2013 EIS”) analyzing the 2013 RAMP. Finally, after engaging in consultation pursuant to Section 7(a)(2) of the ESA, in November 2012, FWS issued a new BiOp concluding that implementing the 2013 RAMP is not likely to jeopardize the continued existence of the PMV or the desert tortoise.

On September 16, 2013, plaintiffs filed a third amended complaint challenging the 2013 RAMP, the 2013 EIS and 2012 BiOp under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Federal Land Policy and Management Act

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of 1976 (“FLPMA”), 43 U.S.C. §§ 1701 –1785, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et seq. Plaintiffs allege that: (1) the 2012 BiOp is deficient because it does not include an Incidental Take Statement for the PMV; (2) FWS has unreasonably delayed issuance of a recovery plan for the PMV under Section 4(f) of the Endangered Species Act.; (3) the 2013 EIS violates the National Environmental Policy Act (“NEPA”) by failing to take a hard look at impacts on wilderness areas; and (4) BLM violated NEPA, FLPMA and the Clean Air Act by failing to properly evaluate the alleged impacts of the 2013 RAMP on air quality.3

Plaintiffs generally allege that the PMV is particularly threatened by OHV recreational use in the Dunes, and that the 2013 management plan for the Dunes does not contain sufficient safeguards to ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land Management (“BLM”), which manages the ISDRA, and the U.S. Fish and Wildlife Service (“FWS” or “Service”), which consults with the BLM and is required to evaluate BLM actions that affect the Peirson's milk-vetch. Defendant-intervenors are a number of organizations representing OHV recreationists.

LEGAL STANDARD

“Neither the ESA nor NEPA supply a separate standard for our review, so we review claims under these Acts under the standards of the APA.” San Luis & Delta–Mendota Water Authority v. Jewell, 747 F.3d 581, 601, 2014 WL 975130, at *9 (9th Cir. Mar. 13, 2014). Pursuant to Section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the court “shall” set aside any agency decision that the Court finds is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA precludes a trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E) ; Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ; Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). “Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record.” Oregon Natural Desert Ass'n v. Bureau of Land Management, 625 F.3d 1092, 1108 (9th Cir.2010) ; Riddell v. Unum Life Ins. Co. of Am., 457 F.3d 861, 864 (8th Cir.2006) (explaining that judgment on the administrative record “is a form of summary judgment”).

The Court must determine whether the agency decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has explained that an agency action is arbitrary and capricious if “the agency has relied on factors

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which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “Although our inquiry must be thorough, the standard of review is highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and we may not substitute our judgment for that of the agency.” San Luis & Delta–Mendota Water Authority, 747 F.3d at 601, 2014 WL 975130, at *9 (internal citation omitted). “Where the agency has relied on ‘relevant evidence [such that] a reasonable mind might accept as adequate to support a conclusion,’ its decision is supported by ‘substantial evidence.’ ” Id. (internal citation omitted). “Even “[i]f the evidence is susceptible of more than one rational interpretation, [the court] must uphold [the agency's] findings.” Id. (internal citation omitted).

DISCUSSION

I. Endangered Species Act—Incidental Take Statement

For any federal action that may affect a threatened or endangered species (or its habitat), Congress has required by statute that the agency contemplating the action (here the BLM) must consult pursuant to Section 7(a) of the ESA with the consulting agency (here the FWS) to “insure” that the federal action “is not likely to [1] jeopardize the continued existence of any endangered species or threatened species or [2] result in the destruction or adverse modification” of the designated critical habitat of such species. 16 U.S.C. § 1536(2). After the agencies engage in the consultation process, the consulting agency issues a BiOp.

Under Section 7(b)(4) of the ESA, “[t]he FWS must issue an Incidental Take Statement if the BiOp concludes no jeopardy to listed species or adverse...

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