In re Montana Wilderness Ass'n

• Citation: 807 F.Supp.2d 990
• Decision Date: 09 August 2011
• Docket Number: No. CV–09–95–GF–SEH.,CV–09–95–GF–SEH.
• Parties: In re MONTANA WILDERNESS ASSOCIATION.This Document Relates to All Actions.
• Court: U.S. District Court — District of Montana

807 F.Supp.2d 990

In re MONTANA WILDERNESS ASSOCIATION.This Document Relates to All Actions.

No. CV–09–95–GF–SEH.

United States District Court, D. Montana,Great Falls Division.

Aug. 9, 2011.

Matthew Kellogg Bishop, Helena, MT, Sarah K. McMillan, Missoula, MT, Melanie R. Kay, James S. Angell, Melanie R. Kay, Earthjustice Legal Defense Fund, Denver, CO, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, for Plaintiffs.

Tyler Guy Welti, Rachel Kathleen Bowen, U.S. Department of Justice, Washington, DC, Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, for Defendants.

Ronald W. Opsahl, Opsahl Law Office, Steven J. Lechner, Mountain States Legal Foundation, Lakewood, CO, Hertha L. Lund, Lund Law, Bozeman, MT, for Intervenor Defendants.Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, Robert Thomas Cameron, Gough Shanahan Johnson & Waterman, Helena, MT, for Intervenors.

MEMORANDUM AND ORDER

SAM E. HADDON, District Judge.

PLEADING BACKGROUND

This case arises from the Bureau of Land Management's approval of the Resource Management Plan (“Plan”) for the Upper Missouri River Breaks National Monument (“Monument”) and from renewal of the Woodhawk Allotment Grazing Permit. The Wilderness Society, Friends of the Missouri River Breaks Monument, National Trust for Historic Preservation, Oil and Gas Accountability Project, Montana Wilderness Association, Western Watersheds Project, Inc., Glenn Monahan, and Nancy Schultz (collectively “Plaintiffs”) filed complaints in separate cases challenging the decisions.¹ Defendants are the U.S. Department of Interior, Bureau of Land Management, and various employees in their official capacities (collectively “BLM”). Plaintiffs allege violations of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701– 06, National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321– 61, Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271– 81, Federal Land and Policy Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701– 82, National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470– 470x–6, and the Proclamation designating the Monument, 66 Fed.Reg. 7,359 (Jan. 17, 2001). The cases were consolidated. Recreational Aviation Foundation and Montana Pilots Association (collectively “Aviation Group”) and Missouri River Stewards, Fergus County, Phillips County, Chouteau County, and Blaine County (collectively “Missouri River Stewards”) appeared as intervenors.

The Court granted BLM's motion to dismiss Count VII in Cause No. CV 10–04–GF–SEH, which alleged that BLM failed to complete supplemental analysis of the Plan and Woodhawk Allotment Grazing Permit Environmental Assessment The Court also struck, upon motion of BLM, extra-record evidence contained in summary judgment filings of Montana Wilderness Association and Western Watersheds Project. Refiling of the briefs in support of summary judgment without the stricken material was ordered and was carried out. All parties ultimately filed motions for summary judgment. The issues have been fully briefed and a hearing conducted. All motions are ripe for ruling. The Court has jurisdiction under 28 U.S.C. § 1331.

FACTUAL BACKGROUND ²

On January 17, 2001, President Clinton issued a Proclamation under the Antiquities Act of 1906, establishing the Monument and designating BLM as managing agency. The Monument consists of some 377,346 acres of BLM land in north central Montana. It spans four counties—Blaine, Chouteau, Fergus, and Phillips. A checkerboarding of other land ownerships, including approximately 80,000 acres of private land and 39,000 acres of state land, is intermingled with the federal lands within the Monument BLM has no authority over the private or state lands and minerals.

On April 24, 2002, BLM announced that it would develop a Plan for the Monument. A Draft Environmental Impact Statement (“Draft”) was issued in September 2005, roughly three and one-half years later. It then issued a proposed Plan and Final Environmental Impact Statement in January 2008. The proposed Plan and Final Environmental Impact Statement contained six alternatives. Alternative F was designated as the preferred alternative and was described as one that balanced objectives of the Monument, best met the diverse interests of all involved stakeholders, and provided the most workable framework for future management.³ BLM issued its Record of Decision and approved Plan in December 2008. The approved Plan is virtually identical to Alternative F.

Numberous management decisions were made as a result of adoption of the Plan. Some 146 miles of the Upper Missouri National Wild and Scenic River was closed to jet ski and float plane use. Four of ten backcountry airstrips were closed. Previously allowed landings on roadways were prohibited. New, specific conditions to protect Monument objects were placed on drilling natural gas wells on existing leases. Range conditions for livestock grazing permits or leases were required to exceed the Standards for Rangeland Health and Guidelines for Livestock Grazing Management. Of the 605 miles of roads located within the Monument, the Plan closed 201 miles (approximately 33%) year-round. Another 120 miles (approximately 20%) were seasonally closed. Each and all the decisions were challenged by Plaintiffs.

ISSUES

The issues before the Court may be summarized as follows:

1. Did BLM violate the Proclamation or FLPMA by failing to:

A. Apply the appropriate standard?

B. Protect Monument objects?

C. Determine the validity of oil and gas leases?

D. Prohibit off-road vehicle use?

E. Prohibit impairment to wilderness study areas?

2. Did BLM violate the WSRA by failing to:

A. Provide for outstandingly remarkable values?

B. Address user capacities in the Plan?

3. Did BLM violate NEPA by failing to:

A. Consider a reasonable range of alternatives?

B. Take a “hard look” at the impacts of its decisions?

C. Prepare an EIS for renewal of the Woodhawk Allotment Grazing Permit?

4. Did BLM violate NHPA by failing to:

A. Consult with the State Historic Preservation Officer?

B. Comply with inventory requirements?

STANDARD OF REVIEW

APA Standard

The standards for administrative agency action review are well-settled. A court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Review of agency decisions is narrow. Earth Is. Inst. v. USFS, 442 F.3d 1147, 1156 (9th Cir.2006), overruled on other grounds, Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 21–22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Courts are ill-equipped to substitute their judgment for that of agencies. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). A decision is arbitrary and capricious if the agency has made a clear error of judgment, that is if it relied on factors not intended for consideration, failed to consider important aspects of the problem, offered explanations counter to the evidence, or offered explanations so implausible that they could not derive from expertise. Motor Veh. Mfrs. Assn., Inc. v. St. Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Summary Judgment Standard

Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Final agency actions are particularly susceptible to summary judgment because the issues for resolution are those of law. See Occidental Engr. Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985).

DISCUSSION

Proclamation and FLPMA

The Monument Proclamation directed BLM to reserve all lands owned or controlled by the United States for protection of Monument objects. 66 Fed.Reg. 7359, 7361 (Jan. 17, 2001). BLM operations are also governed by FLPMA. Columbia Basin Land Protec. Assn. v. Schlesinger, 643 F.2d 585, 607 (9th Cir.1981) (stating FLPMA is BLM's organic act). Plaintiffs argue that BLM subordinated directives of protection to multiple use principles.⁴ The claim lacks merit.

The Proclamation required BLM to refer to “applicable legal authorities” to implement intent behind designation of the Monument. 66 Fed.Reg. at 7361; see also id. (“Laws, regulations, and policies followed by the [BLM] in issuing and administering grazing permits or leases on lands under its jurisdiction shall continue to apply with regard to the lands in the [M]onument”). One such applicable authority was the concept of multiple use, which declared that its principles govern except when designated otherwise, 43 U.S.C. § 1732(a).

BLM interpreted how to best integrate multiple use with the Proclamation as follows:

The BLM's vision is to manage the Monument in a manner that maintains and protects its biological, geological, visual and historic objects and preserves its remote and character. The RMP will incorporate the Proclamation, multiple use and existing laws, while recognizing valid existing rights and authorizations, and providing diverse recreational opportunities.

AR 44 (emphasis added); see also AR 64 (“Guidelines for Livestock Grazing Management practices will be followed to protect the objects of the Monument and rangeland resources and, where necessary, to mitigate conflicts with other Monument uses and values.”); AR 1011 (stating new management is needed because management prior to designation may not sufficiently protect Monument objects).

BLM did not denigrate the Proclamation by choosing to also abide by multiple use principles. Rather, it instead sought to reconcile the two authorities. Compare 43 U.S.C. § 1732(a) with 66 Fed.Reg. at 7361.⁵ The interpretation that providing for multiple use was required...