Gardner v. U.S. Bureau of Land Management

• Decision Date: 15 June 2009
• Docket Number: Civil No. 07-1722-SU.
• Citation: 633 F.Supp.2d 1212
• Parties: Fred GARDNER and Concerned Citizens for Little Canyon Mountain, an unincorporated association, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Oregon

633 F.Supp.2d 1212

Fred GARDNER and Concerned Citizens for Little Canyon Mountain, an unincorporated association, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.

Civil No. 07-1722-SU.

United States District Court, D. Oregon.

June 15, 2009.

Marianne Dugan, Eugene, OR, for Plaintiffs.

Karin J. Immergut, United States Attorney, District of Oregon, Stephen J. Odell, Assistant United States Attorney, Portland, OR, for Defendant.

ORDER

KING, District Judge:

The Honorable Patricia Sullivan, United States Magistrate Judge, filed Findings and Recommendation on March 11, 2009. Plaintiffs filed timely objections to the Findings and Recommendation.

When either party objects to any portion of a magistrate's Findings and Recommendation concerning a dispositive motion or prisoner petition, the district court must make a de novo determination of that portion of the magistrate's report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). This court has, therefore, given de novo review of the rulings of Magistrate Judge Sullivan.

This court ADOPTS the Findings and Recommendation of Magistrate Judge Sullivan (# 45) dated March 11, 2009 in its entirety.

IT IS HEREBY ORDERED that Gardner's Motion for Summary Judgment (# 5) is DENIED and BLM's Cross Motion for Summary Judgment (# 18) is GRANTED.

FINDINGS AND RECOMMENDATION

SULLIVAN, United States Magistrate Judge:

Fred Gardner and the Concerned Citizens for Little Canyon Mountain (collectively "Gardner") bring this action against the United States Bureau of Land Management ("BLM") seeking declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Gardner asserts violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f; the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1785; and BLM's own regulations, 43 C.F.R. §§ 8340-42, when BLM declined to close Little Mountain Canyon to off-road vehicle use. Gardner challenges the manner in which the BLM is managing an area of public land near private homes in an area known as the Little Canyon Mountain ("LCM"),¹ particularly with respect to the use of off-road vehicles ("ORVs").² Gardner seeks judicial review of BLM's failure to: (1) prepare an adequate environmental analysis of impacts, pursuant to the NEPA, 42 U.S.C. § 4332(c)(1) and 40 C.F.R. Parts 1500-08, prior to implementing the Fuel Reduction Project; (2) comply with the requirements of FLPMA, 43 U.S.C. § 1732(b), and 43 C.F.R. § 8341.2(a), in managing LCM; and (3) comply with its own regulations, 40 C.F.R. §§ 8340-42, and Executive Order 11644, amended by Executive Order 11989, mandating closure of public lands to ORV use.

Before the court are the parties' cross-motions for summary judgment. Oral argument was heard on these motions and, for the reasons that follow, the BLM's Cross-Motion for Summary Judgment pursuant to the APA should be granted; and Gardner's Motion for Summary Judgment should be denied.

Background

I. Statutory and Regulatory Framework

A. Federal Land Policy Management Act

In 1976, Congress enacted FLPMA, 43 U.S.C. §§ 1701-1784, to provide "the first comprehensive, statutory statement of purposes, goals and authority for the use and management of about 448 million acres of federally-owned lands administered by the Secretary of Interior through the Bureau of Land Management." S.Rep. No. 583, 94th Cong., 1st sess. 24 (1975). BLM is an agency within the Department of the Interior. FLPMA created a framework for governing BLM's management of these lands and reflected a significant change in federal policy. Prior to the enactment of FLPMA, lands held by BLM (and its predecessor the General Land Office) were viewed as only temporarily within the custody of the United States and it was expected that their ultimate destiny was private ownership. See Leshy, Wilderness and Its Discontents-Wilderness Review Comes to the Public Lands, Ariz.St.L.J. 361, 362-63 (1981). Under FLPMA, however, BLM lands were to be held in permanent federal ownership unless, as a result of land use planning, the disposal of a particular parcel would serve the national interest. See 43 U.S.C. § 1701(a)(1).

To assist in the management of public lands, FLPMA requires that the BLM "develop, maintain, and, when appropriate, revise land use plans." 43 U.S.C. § 1712(a). Congress required that regulations and plans for the protection of public land areas of critical concern be promptly developed. 43 U.S.C. § 1701(a)(11). These land use plans, which the BLM regulations denote "resource management plans" ("RMPs"), see 43 C.F.R. § 1601.0-5(n) (2005), project both the present and future use of the land. 43 U.S.C. § 1701(a)(2). Proposed RMPs are subject to a mandatory period of public notice and comment, see 43 C.F.R. § 1610.2, and, once adopted, will "guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 C.F.R. § 1601.0-2. Among other things, FLPMA prohibits the BLM from taking actions inconsistent with the provisions of RMPs. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 69, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("SUWA"); 43 U.S.C. § 1732(a) ("The Secretary shall manage the public lands . . . in accordance with the land use plans developed. . . ."); 43 C.F.R. § 1610.5-3 ("All future resource management authorizations and actions . . . shall conform to the approved plan."). These plans may be amended. 43 C.F.R. § 1610.5-5. To do so, BLM must prepare an environmental assessment or an environmental impact statement, see id., and submit the proposed amendment to public notice and comment in the same way that the plan was originally prepared. 43 C.F.R. § 1610.2.

In FLPMA, Congress declared as a national policy that public lands held by the BLM were to be managed on the basis of multiple use and sustained yield unless otherwise specified by law. 43 U.S.C. § 1701(a)(7); see also 43 U.S.C. § 1732(a) (FLPMA directs BLM to manage public lands "under principles of multiple use and sustained yield."). Congress also declared as national policy, however, that:

[T]he public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use. . . .

43 U.S.C. § 1701(a)(8). Further underscoring the BLM's duty to protect the environment is the statutory requirement that "[i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b).

B. Off-road Vehicle Executive Orders and Federal Regulations

ORV use is one of the multiple uses BLM provides for and is required to balance in managing the public lands. In response to increased ORV use on public land, President Nixon issued an Executive Order to "establish policies and provide procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands." Exec. Order No. 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972). The stated reason for that order was to further the purpose and policy of NEPA; it established criteria by which federal agencies were to develop regulations and administrative instructions for the designation of areas and trails on which ORVs would be permitted. Id. § 3. It also required agencies to "monitor the effects" of ORV use on the public lands and "[o]n the basis of the information gathered, they shall from time to time amend or rescind designations of areas or other actions taken pursuant to this order as necessary to further the [NEPA]." Id. § 8.

In 1977, President Carter issued Executive Order No. 11989, amending Executive Order 11644, which strengthened BLM's obligation to protect public lands from the harm caused by ORV use. See Exec. Order 11989, 42 Fed.Reg. 26959 (May 24, 1977). The amended Executive Order provided that notwithstanding BLM's designations of public land use under the applicable RMP, BLM "shall . . . immediately close" any area or route to ORVs whenever it determines that ORV use "will cause or is causing considerable adverse effects" to wildlife, wildlife habitat, and other natural resources. See Id. § 2 (amending Exec. Order 11644, § 9(a)). Under the order, the closure must remain in place until the adverse effects have been eliminated. Id. The Department of Interior adopted regulations to implement the Nixon and Carter Executive Orders, FLPMA, and other federal statutes. See 43 C.F.R. § 8340.0-1 et seq.

Land use plans (RMPs) contain direction by which "present and future use is projected." 43 U.S.C. § 1701(a)(2); SUWA, 542 U.S. at 69, 124 S.Ct. 2373. Because ORV use is one of the multiple uses that BLM provides for and is required to balance against other potential uses to determine the most effective management of the nation's public lands, BLM must designate all public lands within the planning area as either open, limited, or closed to ORVs. 43 C.F.R. §§ 8342.1(a), 8342.2(a), (b). The initial designation of areas as open, limited, or closed to ORVs is accomplished through the resource management planning process, and it must involve public participation and consideration of all viewpoints. 43 C.F.R. § 8342.2(a). The designations must be made to minimize conflicts among the...