Natural Res. Def. Council v. McCarthy, No. 20-4064

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BRISCOE, Circuit Judge.
• Citation: 993 F.3d 1243
• Parties: NATURAL RESOURCES DEFENSE COUNCIL; Southern Utah Wilderness Alliance; The Wilderness Society, Plaintiffs - Appellants, v. Joelle MCCARTHY, in her official capacity as the Richfield field office manager; United States Bureau of Land Management; United States Department of the Interior, Defendants - Appellees. State of Utah, Intervenor - Appellee.
• Docket Number: No. 20-4064
• Decision Date: 08 April 2021

993 F.3d 1243

NATURAL RESOURCES DEFENSE COUNCIL; Southern Utah Wilderness Alliance; The Wilderness Society, Plaintiffs - Appellants,
v.
Joelle MCCARTHY, in her official capacity as the Richfield field office manager; United States Bureau of Land Management; United States Department of the Interior, Defendants - Appellees.

State of Utah, Intervenor - Appellee.

No. 20-4064

United States Court of Appeals, Tenth Circuit.

FILED April 8, 2021

Joseph J. Bushyhead, Southern Utah Wilderness Alliance, Salt Lake City, Utah (Stephen H.M. Block and Laura E. Peterson, Southern Utah Wilderness Alliance, Salt Lake City, Utah; Sharon Buccino, Natural Resources Defense Council, Washington, DC, with him on the briefs), appearing for Appellants.

Andrew M. Bernie, United States Department of Justice, Environment and Natural Resources Division, Washington, DC (Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Kevin W. McArdle, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, with him on the briefs), appearing for Appellees.

Before HARTZ, BRISCOE, and CARSON, Circuit Judges.

BRISCOE, Circuit Judge.

At issue in this case is whether the Bureau of Land Management (BLM) is required to conduct an environmental analysis under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. , when it re-opens an area that it had temporarily closed to off-highway vehicles (OHVs) pursuant to its authority under 43 C.F.R. § 8341.2(a). In 2006, the BLM closed a portion of the Factory Butte area in Utah to OHVs due to their adverse effects on the endangered Wright fishhook

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cactus. The BLM lifted that closure order in 2019 and re-opened the area to OHV use, but did not perform any kind of environmental analysis under NEPA before doing so. The Plaintiffs filed suit pursuant to 28 U.S.C. § 1331, alleging violations of NEPA and the Administrative Procedure Act (APA), 5 U.S.C. § 500, et seq. The Plaintiffs challenged the BLM's decision to re-open, arguing that a NEPA analysis was required. The district court disagreed and dismissed their complaint for failure to state a claim upon which relief can be granted. The Plaintiffs now appeal, and exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

A. Statutory and Regulatory Background

The BLM manages public lands under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701, et seq . FLPMA directs the BLM to manage public lands "under principles of multiple use and sustained yield." Id. § 1732(a). " ‘Multiple use management’ is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put ...." Utah Shared Access All. v. Carpenter , 463 F.3d 1125, 1128 (10th Cir. 2006) (quoting Norton v. S. Utah Wilderness All. , 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ). To assist in the management of public lands, the BLM prepares comprehensive resource management plans (RMPs). 43 U.S.C. § 1712(a). As is relevant to this case, RMPs designate public lands as "either open, limited, or closed to off-road vehicles." 43 C.F.R. § 8342.1.

When developing an RMP, an important step for the BLM is the completion of an environmental analysis under NEPA. "NEPA requires all agencies that propose a ‘major federal action’ that significantly affects the quality of the environment to prepare an environmental impact statement (‘EIS’) that describes the environmental impact of the action[,] unavoidable adverse environmental effects[,] [and] alternatives to the action," among other things. Carpenter , 463 F.3d at 1131 (quotations omitted); 42 U.S.C. § 4332(2)(C). A "major [f]ederal action" is one "with effects that may be major and which are potentially subject to [f]ederal control and responsibility." 40 C.F.R. § 1508.18 (2019).¹ The development of an RMP is a "major federal action," and as such, the BLM is required to prepare an environmental analysis on the matter. 43 C.F.R. § 1601.0–6 ; State of Utah v. Babbitt , 137 F.3d 1193, 1214 (10th Cir. 1998). Amendments to an RMP likewise require environmental analysis under NEPA. 43 C.F.R. § 1610.5–5 ; Carpenter , 463 F.3d at 1131. "If the impact of the major federal action on the environment is uncertain, the agency must prepare an environmental assessment (‘EA’) to determine whether the impact will be significant such that an EIS is required." Carpenter , 463 F.3d at 1131. Once an RMP is finalized and approved, FLPMA directs the BLM to "manage the public lands ... in accordance with the [RMP]." 43 U.S.C. § 1732(a).

But this directive is not FLPMA's only mandate. FLPMA also requires the BLM to "take any action necessary to prevent

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unnecessary or undue degradation of the lands." Id. § 1732(b). Accordingly, in 1979 the BLM, following executive orders issued by Presidents Nixon and Carter regarding damage to public lands caused by OHVs, promulgated a regulation governing temporary closure of public lands to OHV use separate from the RMP process. That regulation reads in pertinent part:

[W]here the 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, the authorized officer shall immediately close the areas affected to the type(s) of vehicle causing the adverse effect until the adverse effects are eliminated and measures implemented to prevent recurrence.

43 C.F.R. § 8341.2(a).

Section 8341.2(a) "creates a separate duty to close [public lands] without regard to the [land use] designation process." Carpenter , 463 F.3d at 1130. Therefore, even if an RMP designates an area as open to OHV use, the BLM "shall immediately close" that area if it determines that OHV use is "causing or will cause considerable adverse effects." 43 C.F.R. § 8341.2(a). We have held that such temporary closure orders under § 8341.2(a) are not amendments to an RMP's land use designations that require environmental analysis under NEPA. Carpenter , 463 F.3d at 1135–37.² However, we have not previously addressed the question presented here: whether the BLM's decision to lift a temporary closure order and return an area to its open designation requires an environmental analysis under NEPA.

B. Factual Background

The Factory Butte area, located on federal public lands in Wayne County, Utah, is home to the Wright fishhook cactus. The Wright fishhook cactus has been listed as an endangered plant species under the Endangered Species Act since 1979. The Factory Butte area is not only where the Wright fishhook cactus is located, but the area is also host to many visitors using cross-country OHVs like motorcycles, all-terrain vehicles, and four-wheel drive trucks.

In 1982, the BLM approved the Henry Mountains Management Framework Plan³ for roughly 1.9 million acres of land, including the Factory Butte area. Despite OHV use in the area causing "unsightly scars" such that "undue and unnecessary degradation" may have been occurring, the 1982 Management Framework Plan designated the Factory Butte area as open for cross-country OHV use. Aplt. App. at 22–23.

In 2006, a BLM survey of cacti species in the area indicated that OHV use was negatively impacting threatened and endangered species of cacti, specifically the Wright fishhook cactus. Based on this information, the BLM's authorized officer

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"determined that OHV use in the area is causing or will cause adverse effects to threatened and endangered plant species." Notice of Off-Highway Vehicle (OHV) Travel Restriction for Factory Butte Area, UT, 71 Fed. Reg. 55009 (Sept. 20, 2006). The BLM accordingly invoked its authority under 43 C.F.R. § 8341.2(a) and closed 142,023 acres of the Factory Butte area to cross-country OHV use. Id. ; Aplt. App. at 25. The closure order was to remain in effect until the conditions threatening the cacti species were sufficiently addressed or until the BLM's Richfield Field Office completed its new RMP. The closure did not affect 2,600 acres within the Factory Butte area known as Swing Arm City.

In 2008, the BLM's Richfield Field Office released a Proposed RMP and a Final Environmental Impact Statement (Final EIS). The Proposed RMP designated three cross-country OHV "play areas," where cross-country OHV travel would be allowed: 5,800 acres around Factory Butte,⁴ 2,600 acres in Swing Arm City, and 100 acres in Caineville Cove Inn. Notwithstanding this designation, the Proposed RMP explained that the 2006 temporary closure order of the Factory Butte and Caineville Cove Inn areas would remain in effect until the BLM signed a Record of Decision approving the RMP because OHVs around Factory Butte were still "causing ... adverse effects on [threatened and endangered] plant species in the area." Aplt. App. at 27. The Final and Approved 2008 RMP continued to designate the Factory Butte area as open to OHV use, but it did not lift the...