Gardner v. United States Bureau of Land Mgmt., No. 09–35647.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtOPINION
Citation638 F.3d 1217
PartiesFred GARDNER; and Concerned Citizens for Little Canyon Mountain, an Unincorporated Association, Plaintiffs–Appellants,v.UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant–Appellee.
Decision Date07 April 2011
Docket NumberNo. 09–35647.

638 F.3d 1217
11 Cal.
Daily Op. Serv. 4216
2011 Daily Journal D.A.R. 5082

Fred GARDNER; and Concerned Citizens for Little Canyon Mountain, an Unincorporated Association, Plaintiffs–Appellants,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant–Appellee.

No. 09–35647.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 2011.Filed April 7, 2011.


[638 F.3d 1218]

Marianne Dugan, Eugene, OR, for the plaintiffs-appellants.Nicholas DiMascio and Kathryn E. Kovacs, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendant-appellee.Appeal from the United States District Court for the District of Oregon, Garr M. King, Senior District Judge, Presiding. D.C. No. 2:07–cv–01722–SU.Before: SUSAN P. GRABER and MILAN D. SMITH, JR., Circuit Judges, and ROGER T. BENITEZ,* District Judge.

OPINION
M. SMITH, Circuit Judge:

Plaintiffs–Appellants Fred Gardner and Concerned Citizens for Little Canyon Mountain (sometimes collectively Gardner) brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure

[638 F.3d 1219]

Act (APA), 5 U.S.C. §§ 701–706, seeking to compel Defendant–Appellee United States Bureau of Land Management (BLM) to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. The district court granted summary judgment to the BLM. On appeal, Gardner asserts that the BLM's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701–1785, and off-road vehicle regulations, 43 C.F.R. pts. 8340–8342.

We have jurisdiction under 28 U.S.C. § 1291. We affirm. We hold that the BLM did not, and was not required to, make a finding that the off-road vehicle use of which Gardner complains had caused “considerable adverse effects” on the resources enumerated under 43 C.F.R. § 8341.2(a) and, accordingly, we cannot compel the BLM to act to close Little Canyon Mountain to off-road vehicle use. We also hold that the BLM's denial of Gardner's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious.

FACTUAL AND PROCEDURAL BACKGROUND

Little Canyon Mountain is located in Grant County, Oregon, in the BLM's Prineville District. The BLM manages approximately 2,500 acres of land in Little Canyon Mountain, which is bordered by private property and the Strawberry Mountain Wilderness.

Since 1985, when the John Day Resource Management Plan (John Day RMP) was issued, Little Canyon Mountain has been designated as “open use” year-round, thereby permitting off-road vehicles to use the area. There are at least five miles of documented trails that are accessible to smaller off-road vehicles (less than fifty inches wide), and at least twenty-six miles of road accessible to larger off-road vehicles, such as trucks, within Little Canyon Mountain. Land within Little Canyon Mountain has been described as steep terrain with high-clay soil that ruts easily. Among its features is a two-acre area, once used for mining, known as “the pit,” which is especially popular with off-road vehicle users.

In 2003, the BLM undertook an environmental assessment to ascertain the likely effects on Little Canyon Mountain of a proposed project designed to decrease fire risk and improve forest health by reducing fuels. The environmental assessment predicted that the proposed fuels-reduction project would likely increase off-road vehicle use in Little Canyon Mountain and could lead, in five to ten years, to “noticeable” impacts in the form of erosion, new trail routes, and a disturbance of wildlife. To mitigate the potential impact of increased off-road vehicle use, the proposal, as ultimately adopted, suggested limiting access to “the pit” by vehicles more than fifty inches wide. The proposal also created a forested buffer around the pit to “provide a sight and sound barrier between the pit and surrounding areas.” After the fuels-reduction project was implemented, the BLM received numerous complaints from adjacent land owners regarding off-road vehicle use in and around the pit.

Gardner has lived adjacent to Little Canyon Mountain for almost twenty years. After the fuels-reduction project was implemented, he complained to the BLM about a dramatic increase in year-round off-road vehicle use, including at night and on weekdays. Concerned Citizens is an unincorporated association whose members are local land owners, miners, and grazers who claim to have been adversely affected by off-road vehicle use in Little Canyon Mountain. Gardner and Concerned Citizens filed a petition with the

[638 F.3d 1220]

BLM in June 2006 asking the BLM “to immediately [ ] close BLM land on Little Canyon Mountain to all recreational [off-road vehicle] use.”

Christina Welch, the BLM's Field Manager in charge, responded by letter to Gardner's petition. The letter stated that Little Canyon Mountain could be closed pursuant to 43 C.F.R. § 8341.2(a) only if the offending off-road vehicle use was causing “considerable adverse effects.” Welch further indicated that she was not aware of any “significant, increased resource damage” except that caused by pickup trucks. Welch's letter also stated that the BLM “would welcome any specific, quantifiable information [Gardner] can provide” and requested that Gardner “show [the BLM] specific instances and locations of significant problems.” The BLM further encouraged Gardner and other residents to be involved in the John Day RMP revision process then underway.

On February 28, 2007, prompted by public health and safety concerns after an off-road vehicle rider was struck by a motor vehicle on the county road, the BLM limited off-road vehicle use to “marked designated roads” and reiterated that vehicles wider than fifty inches (pickup trucks) were not permitted in “the pit” for public safety reasons.

Little Canyon Mountain remained open to off-road vehicle use after the February 2007 accident, and Gardner and others complained of continuing problems. The BLM initiated an alternative dispute resolution process between the complaining parties and off-road vehicle users, but it proved unsuccessful in resolving the disputes between the parties. Gardner filed suit on November 19, 2007. The district court granted summary judgment to the BLM. Gardner timely appeals.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.1996). Section 706 of the APA governs judicial review of the challenged agency action or inaction here. 5 U.S.C. § 706; City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 (9th Cir.2004) ( “Because the statutes ... do not contain separate provisions for judicial review, our review is governed by the APA.”).

DISCUSSION
I. Statutory and Regulatory Framework

Congress enacted the FLPMA in 1976, thereby giving authority and direction to the BLM (through the Secretary of the Interior) concerning the use and management of certain federal lands. Federal Land Policy and Management Act of 1976, Pub.L. No. 94–579, 90 Stat. 2743 (1976). The FLPMA requires the BLM to “develop, maintain, and, when appropriate, revise land use plans,” 43 U.S.C. § 1712(a), also known as resource management plans (RMPs), 43 C.F.R. § 1610.2. The FLPMA also requires the BLM to manage public lands in accordance with “principles of multiple use and sustained yield,” 43 U.S.C. § 1732(a), while contemporaneously enforcing relevant environmental laws governing the use of public lands, id. §§ 1701(a)(8), 1732(b). In this case, the BLM manages Little Canyon Mountain in accordance with the requirements of the John Day RMP.

In 1972, President Nixon issued an Executive Order directing the BLM to “establish policies and provide for 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

[638 F.3d 1221]

users of those lands, and to minimize conflicts among the various uses of those lands.” Exec. Order No. 11,644, 37 Fed.Reg. 2877, § 1 (Feb. 8, 1972). Pursuant to the Nixon Order, the BLM is required to monitor the effects of off-road vehicle use on public lands and “from time to time amend or rescind designations of areas” in order to protect the environment. Id. § 8.

In 1977, President Carter issued an Executive Order amending and strengthening Order 11644. Exec. Order No. 11,989, 42 Fed.Reg. 26,959 (May 24, 1977). The Carter Order directs the BLM, notwithstanding existing designations under the relevant RMP, to immediately close areas or trails where “the use of off-road vehicles will cause or is causing considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands.” Id. § 2.

In response to the FLPMA, the Nixon and Carter Orders, and other federal statutes, the Department of the Interior adopted new regulations regarding off-road vehicle use. See 43 C.F.R. § 8340.0–1 et seq. These off-road vehicle regulations require the BLM to designate lands as “open, limited, or closed” to off-road vehicle use through the land-use process, in consultation with interested parties and public comments. 43 C.F.R. §§ 8342.1, 8342.2. The BLM also has regulatory authority to change off-road vehicle use designations outside the RMP process. Of particular relevance to this case, 43 C.F.R. § 8341.2(a) requires the immediate closure of areas used by off-road vehicles when an “authorized officer determines that off-road vehicles are causing or will cause considerable adverse effects upon soil, vegetation, wildlife, wildlife habitat, cultural resources, historical resources, threatened or endangered species, wilderness suitability, other authorized uses, or other resources.”

We have previously held that 43 C.F.R. § 8341.2(a) “creates a separate duty to close without regard to the...

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65 practice notes
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, Case No. 12cv1167–GPC(PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...meet them, other than permitting the BLM to manage public lands by regulation or otherwise.” Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217, 1222 (9th Cir.2011) (citation omitted) see also [927 F.Supp.2d 940]S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dept. of Interior, 58......
  • Singh v. Napolitano, No. 1:12–cv–915 AWI GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 13, 2012
    ...a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); Gardner v. United States BLM, 638 F.3d 1217, 1221 (9th Cir.2011). Section 706(1) “empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to......
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, CASE NO. 12cv1167-GPC(PCL)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...meet them, other than permitting the BLM to manage public lands by regulation or otherwise." Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217, 1222 (9th Cir. 2011) (citation omitted) see also S. Fork Bank Council of W. Shoshone of Nev. v. U.S. Dept. of Interior, 588 F.3d 718, 724-25......
  • A Community Voice v. U.S. Envtl. Prot. Agency (In re A Community Voice), No. 16-72816
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2017
    ...(of what happened here) lacks basis. Mandamus in this case is not appropriate, because the EPA did act. See Gardner v. BLM , 638 F.3d 1217, 1221–22 (9th Cir. 2011) (noting that "in the absence of a specific legislative or regulatory command," courts lack authority to require agency action).......
  • Request a trial to view additional results
66 cases
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, Case No. 12cv1167–GPC(PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...meet them, other than permitting the BLM to manage public lands by regulation or otherwise.” Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217, 1222 (9th Cir.2011) (citation omitted) see also [927 F.Supp.2d 940]S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dept. of Interior, 58......
  • Singh v. Napolitano, No. 1:12–cv–915 AWI GSA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 13, 2012
    ...a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); Gardner v. United States BLM, 638 F.3d 1217, 1221 (9th Cir.2011). Section 706(1) “empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to......
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, CASE NO. 12cv1167-GPC(PCL)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...meet them, other than permitting the BLM to manage public lands by regulation or otherwise." Gardner v. U.S. Bureau of Land Management, 638 F.3d 1217, 1222 (9th Cir. 2011) (citation omitted) see also S. Fork Bank Council of W. Shoshone of Nev. v. U.S. Dept. of Interior, 588 F.3d 718, 724-25......
  • A Community Voice v. U.S. Envtl. Prot. Agency (In re A Community Voice), No. 16-72816
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 2017
    ...(of what happened here) lacks basis. Mandamus in this case is not appropriate, because the EPA did act. See Gardner v. BLM , 638 F.3d 1217, 1221–22 (9th Cir. 2011) (noting that "in the absence of a specific legislative or regulatory command," courts lack authority to require agency action).......
  • Request a trial to view additional results
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