Or. Nat. Desert Ass'n v. Bushue

Decision Date07 December 2022
Docket Number3:19-cv-1550-SI
CourtU.S. District Court — District of Oregon
PartiesOREGON NATURAL DESERT ASS'N, AUDUBON SOCIETY OF PORTLAND, and DEFENDERS OF WILDLIFE, Plaintiffs, v. BARRY BUSHUE, State Director of BLM Oregon/Washington, and BUREAU OF LAND MANAGEMENT, an agency of the United States Department of Interior, Defendants, and CAHILL RANCHES INC., an Oregon Corporation, Defendant-Intervenor, and MACKENZIE RANCH, LLC, LAIRD LAND COMPANY LLC, COW CREEK RANCH, INC., DOUG BURGESS, DBA BURGESS ANGUS RANCH, ROCKING CLUB CATTLE, LLC, v. BOX LAND & LIVESTOCK, INC., and MARK MACKENZIE LLC, Oregon Corporations, Defendant-Intervenors, and TREE TOP RANCHES, L.P., an Oregon Limited Partnership, Defendant-Intervenor.

Peter Macnamara Lacy, OREGON NATURAL DESERT ASSOCIATION, 2009 NE Alberta Street, Suite 207, Portland, OR 97211; and David H Becker, LAW OFFICE OF DAVID H. BECKER, LLC, 24242 S Engstrom Road, Colton, OR 97017. Of Attorneys for Plaintiffs.

Barclay T. Samford, Arwyn Carroll, and Luther Langdon Hajek U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, 1961 Stout Street, 8th Floor, Denver, CO 80294. Of Attorneys for Defendants Barry Bushue and Bureau of Land Management.

Caroline Lobdell and Tate F. Justesen, WESTERN RESOURCES LEGAL CENTER, 9220 SW Barbur Blvd., Suite 327, Portland, OR 97219. Of Attorneys for Defendant-Intervenor Cahill Ranches Inc.

Elizabeth E. Howard and Jeremy Wood, SCHWABE WILLIAMSON & WYATT, P.C., 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204. Of Attorneys for Defendant-Intervenors Mackenzie Ranch, LLC; Laird Land Company LLC; Cow Creek Ranch, Inc.; Doug Burgess, DBA Burgess Angus Ranch; Rocking Club Cattle, LLC; V Box Land & Livestock, Inc.; and Mark Mackenzie LLC.

Laura A. Schroeder, SCHROEDER LAW OFFICES, 1915 NE Cesar E. Chavez Boulevard, Portland, OR 97212; and W. Alan Schroeder, SCHROEDER LAW, Tulip S Building, Suite 110, 1149 South David Lane, Boise, ID 83705. Of Attorneys for Defendant-Intervenor Tree Top Ranches, Limited Partnership.


Michael H. Simon United States District Judge

Pending before the Court are five cross-motions for summary judgment concerning the implementation of the conservation plan for the greater sage-grouse. Oregon Natural Desert Association, Audubon Society of Portland, and Defenders of Wildlife (collectively, Plaintiffs) bring this case. Plaintiffs ask the Court to declare that the Bureau of Land Management (BLM) violated the Federal Land Policy and Management Act (FLPMA) and the Administrative Procedure Act (APA) by unlawfully withholding the closure of 13 research natural areas (RNAs) to livestock grazing. Plaintiffs contend that these closures were required to be completed within five years by the agency's 2015 land use plan, the Oregon Greater Sage-Grouse Approved Resource Management Plan Amendment (2015 ARMPA), and are thus years overdue. Plaintiffs also ask that the Court compel BLM to complete the closures as specified in the 2015 ARMPA, and order and enjoin BLM from authorizing livestock grazing in any of the 13 key RNAs or the smallest fenced pasture necessary to comply with the 2015 ARMPA.

State Director Bushue and BLM (collectively, the Federal Defendants or BLM) and each of the Defendant-Intervenors, Cahill Ranches, Inc. (Cahill), Mackenzie, et al. (Mackenzie), and Tree Top Ranches, L.P., (TTR), oppose Plaintiffs' motion for partial summary judgment and cross-move for partial summary judgment. Defendants collectively contend that there is no five-year deadline to implement the key RNA closures in the 2015 ARMPA, no requirement to use fencing as the method for closure, and no unreasonable delay. TTR adds that the 2019 ARMPA, which is currently enjoined by another court, is the proper controlling document, not the 2015 ARMPA, and therefore Plaintiffs are not entitled to relief under FLPMA or the APA. For the reasons stated below, the Court grants Plaintiffs' motion and denies Federal Defendants' and Defendant-Intervenors' motions for partial summary judgment.

A. Federal Land Policy and Management Act

FLPMA requires BLM, through the Secretary of the Interior, to “manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed . . . when they are available.” 43 U.S.C. § 1732(a); see also id. § 1712(a) (“The Secretary shall, with public involvement . . . develop, maintain, and, when appropriate, revise land use plans . . . for the use of the public lands.”). “Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps.” Norton v. S. Utah Wilderness All. (SUWA), 542 U.S. 55, 59 (2004). Land use plans are adopted and revised through extensive public notice, comment, and review procedures. 43 U.S.C. § 1712. A land use plan “is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.” 43 C.F.R. § 1601.0-5.

In managing public lands in accordance with land use plans, BLM must also “contemporaneously enforc[e] relevant environmental laws governing the use of public lands.” Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1220 (9th Cir. 2011) (citing 43 U.S.C. §§ 1701(a)(8), 1732(b)). Approval of a land use plan requires preparation of an Environmental Impact Statement (EIS) under National Environmental Policy Act (NEPA). 43 C.F.R. § 1601.06. “The land use plan is the ‘proposed action' contemplated by the regulation.” SUWA, 542 U.S. at 73. Changing a land use plan also requires extensive procedure, because [a]mending a resource management plan ordinarily constitutes ‘major federal action' requiring NEPA analysis.” Ctr. for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633, 647 (9th Cir. 2010). “Whether new information [after the EIS is finalized] requires supplemental analysis is a ‘classic example of a factual dispute the resolution of which implicates substantial agency expertise.' Tri-Valley CAREs v. U.S. Dep't of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376 (1989)).

B. Administrative Procedure Act

Claims under FLPMA are reviewed under the standards of the APA. See Mont. Wilderness Ass'n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013); W. Watersheds Project v. Abbey, 719 F.3d 1035, 1041 (9th Cir. 2013); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir. 2006). The APA allows for limited judicial review of final agency actions. 5 U.S.C. §§ 701-706. Under the relevant section of the APA, reviewing courts “shall compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). In the context of compelling agency action, [t]he term ‘shall' is usually regarded as making a provision mandatory, and the rules of statutory construction presume that the term is used in its ordinary sense unless there is clear evidence to the contrary.” Firebaugh Canal Co. v. United States, 203 F.3d 568, 573-74 (9th Cir. 2000). [A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).

The main purpose of the limited scope of judicial review under the APA is “to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” SUWA, 542 U.S. at 66. Although a reviewing court's inquiry “must be thorough, the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (quotation marks omitted).

Section 706(1) of the APA does not give courts license to compel agency action whenever an agency is withholding or delaying some action. Instead, the court's ability to ‘compel agency action' is carefully circumscribed to situations where an agency has ignored a specific legislative command.” Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). The plaintiff must “assert[ ] that an agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64 (emphasis in original). Although the reviewing court has the power to compel agency action under § 706(1), “the manner of its action is left to the agency's discretion.” Id. at 65. In other words, “a court can compel the agency to act, but has no power to specify what the action must be.” Id.

C. National Environmental Policy Act

NEPA directs relevant government agencies to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). “NEPA requires that ‘to the fullest extent possible . . . all agencies of the Federal Government shall' complete an [EIS] in connection with ‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.' San Luis, 747 F.3d at 640-41 (alteration in original) (quoting 42 U.S.C. § 4332(2)(C)). In addition to the proposed agency action, every EIS must explore and objectively evaluate all reasonable alternatives to that action. See 40 C.F.R. § 1502.14.

The purpose of NEPA is twofold: (1) to ensure that agencies carefully consider information about significant environmental impacts and (2) to guarantee relevant information is available to the public.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir....

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