Or. Natural Desert Ass'n v. Rose

• Decision Date: 25 April 2019
• Docket Number: 18-35282,Nos. 18-35258,s. 18-35258
• Citation: 921 F.3d 1185
• Parties: OREGON NATURAL DESERT ASSOCIATION, Plaintiff-Appellant/ Cross-Appellee, v. Jeff ROSE, Burns District Manager, BLM; U.S. Bureau of Land Management; Interior Board of Land Appeals; Rhonda Karges, Field Manager, Andrews Resource Area, BLM, Defendants-Appellees, and Harney County, Intervenor-Defendant-Appellee/ Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

921 F.3d 1185

OREGON NATURAL DESERT ASSOCIATION, Plaintiff-Appellant/ Cross-Appellee,

v. Jeff ROSE, Burns District Manager, BLM; U.S. Bureau of Land Management; Interior Board of Land Appeals; Rhonda Karges, Field Manager, Andrews Resource Area, BLM, Defendants-Appellees,andHarney County, Intervenor-Defendant-Appellee/ Cross-Appellant.

Nos. 18-35258

18-35282

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2019 Portland, Oregon

Filed April 25, 2019

Peter M. Lacy (argued), Oregon Natural Desert Association, Portland, Oregon; Thomas C. Buchele, Earthrise Law Center, Portland, Oregon; David H. Becker, Law Office of David H. Becker, Portland, Oregon; for Plaintiff-Appellant/Cross-Appellee.

Dominic M. Carollo (argued), Yockim Carollo LLP, Roseburg, Oregon, for Intervenor-Defendant-Appellee/Cross-Appellant.

Sean E. Martin (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney’s Office, Portland, Oregon; for Defendants-Appellees.

Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno,^* District Judge.

GRABER, Circuit Judge:

This litigation arose from the Bureau of Land Management’s decisions about the route network for motorized vehicles in the Steens Mountain Cooperative Management and Protection Area ("Steens Mountain Area"). The Bureau issued two plans: the Steens Mountain Travel Management Plan ("Travel Plan") and the Steens Mountain Comprehensive Recreation Plan ("Recreation Plan"). Plaintiff Oregon Natural Desert Association ("ONDA") challenged the Recreation Plan, and the Interior Board of Land Appeals' ("Board") approval of the Travel Plan, under the National Environmental Policy Act of 1969 ("NEPA"), the Federal Land Policy Management Act of 1976 ("FLPMA"), and the Steens Mountain Cooperative Management and Protection Act of 2000 ("Steens Act"). Harney County intervened to defend the Board’s approval of the Travel Plan, but also cross-claimed against the Bureau to challenge the Recreation Plan as arbitrary and capricious. The district court upheld both agency actions. Reviewing de novo, San Luis & Delta-Mendota Water Auth. v. Locke , 776 F.3d 971, 991 (9th Cir. 2014), we affirm in part, vacate in part, and remand.

A. Consultation with the Advisory Council

The Bureau satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, so its action was not arbitrary and capricious in that respect. 5 U.S.C. § 706(2)(A). Although the Bureau must make any decision "to permanently close an existing road" or "restrict the access of motorized or mechanized vehicles on certain roads" in the Steens Mountain Area "in consultation with the advisory council," 16 U.S.C. § 460nnn-22(c), the Steens Act does not specify how the Bureau must consult with the Advisory Council. The Advisory Council has no power to make management decisions for the Steens Mountain Area or to veto the Bureau’s management decisions. See id. § 460nnn-51(a) (establishing the Advisory Council solely "to advise" the Secretary of the Interior in managing the Steens Mountain Area).

Here, the Bureau opened the public comment period for the revised Recreation Plan Environmental Assessment ("EA") on January 12, 2015. The Bureau formally briefed the Advisory Council on the Recreation Plan about two weeks later, during meetings in which the Bureau gave Advisory Council members copies of each route analysis and discussed the project. At the end of the meetings, the Advisory Council suggested that the Bureau should "use the information" from the meetings and act as it saw fit. In short, the Bureau adequately consulted the Advisory Council.

Even if the degree or mode of consultation were insufficient, any error was harmless to the County. The County responded to the revised EA months before the Bureau issued the final Recreation Plan decision and Finding of No Significant Impact ("FONSI") in April 2015. The County cannot explain how the Bureau’s purported failure to consult the Advisory Council more extensively "caused the agency not to be fully aware of the environmental consequences of the proposed action, thereby precluding informed decisionmaking and public participation, or otherwise materially affected the substance of the agency’s decision." Idaho Wool Growers Ass'n v. Vilsack , 816 F.3d 1095, 1104 (9th Cir. 2016).

B. Definition of "Roads and Trails"

The Board acted arbitrarily and capriciously by changing its definition of "roads and trails" without providing a reasoned explanation for the change. Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 136 S.Ct. 2117, 2125–26, 195 L.Ed.2d 382 (2016). The Steens Act prohibits the use of motorized vehicles "off road," but also authorizes the use of motorized vehicles on "roads and trails," without defining those terms. 16 U.S.C. § 460nnn-22(b)(1). The Board reconciled this seeming contradiction "by concluding that since the statute clearly meant to allow [the Bureau] to designate roads and trails as open to motorized travel, the prohibition against motorized off-road travel logically can only mean that motorized travel that does not occur on either a road or a trail is prohibited."¹ Although the Steens Act does not use the term "route," the Board used that more generic term throughout its decisions to encompass "roads and trails."

In its 2009 decision on the Travel Plan, the Board decided that there exists "inherent incongruity in determining that routes are ‘obscure,’ or difficult or impossible to identify on the ground, and concluding that opening them to motorized use is consistent with the Steens Act." In other words, the Board determined that a route that is "difficult or impossible to identify on the ground" is neither a road nor a trail under the Steens Act. The Board thus reversed the Bureau’s decision to allow motorized travel on 36 miles of Obscure Routes.

But in its 2014 remand decision on the Travel Plan, the Board reversed course and sua sponte overturned its own decision to close the Obscure Routes. For the first time, the Board defined "route" to mean something that "existed as a matter of record" in October 2000—when Congress enacted the Steens Act² —"and that might again be used in the future, despite a present difficulty in physically tracing [it] on the ground." The "record" to which the Board referred included sources such as hand-drawn maps and testimony from local ranchers and grazing permittees, whether those maps or testimony existed in 2000 or only later.

Of course, agencies may change their policies over time. But an agency must "at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’ " Encino Motorcars , 136 S.Ct. at 2126 (quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ). The Board failed to do that. The Board did not explain, for example, what led it to alter its earlier decision or why the new approach was more consistent with the text of the Steens Act. It also did not explain why it could rely on a "record" that was created after the effective dates of both the Steens Act and the FLPMA and that consisted largely of representations made by interested local parties. See id. at 2127 (discussing how the agency might have justified its choice). Because the Board acted arbitrarily and capriciously, we vacate its approval of the Travel Plan and remand.

Because the Steens Act leaves room for agency discretion in this area, such that the Board or the Bureau could redefine "road" or "trail" on remand even if we endeavored to define those terms first, Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), we do not define the terms here.³ We leave it to the agency, in the first instance, to explain its change in position or to craft new definitions and explain them.

C. The Travel Plan

The Board also acted arbitrarily and capriciously by affirming the Bureau’s issuance of the Travel Plan. Even assuming that the Bureau properly inventoried all "roads and trails" in the Steens Mountain Area, the Bureau failed to establish the baseline environmental conditions necessary for a procedurally adequate assessment of the Travel Plan’s environmental impacts. "Without establishing the baseline conditions" before a project begins, "there is simply no way to determine what effect the project will have on the environment and, consequently, no way to comply with NEPA." Great Basin Res. Watch v. BLM , 844 F.3d 1095, 1101 (9th Cir. 2016) (brackets omitted) (quoting Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci , 857 F.2d 505, 510 (9th Cir. 1988) ).

Nothing in the Travel Plan EA establishes the physical condition of the routes, such as whether they are overgrown with vegetation or have become impassable in certain spots. Indeed, the Bureau acknowledged that it included some routes in the inventory even though its staff could not find those routes on the ground. Despite that lack of information, the Travel Plan EA authorized most routes for "Level 2" maintenance, which involves mechanically grading a route and "brushing" (removing) roadside vegetation. Such "routine" maintenance can dramatically change a lightly used route and its surroundings. Thus, without understanding the actual condition of the routes on the ground, the Bureau could not properly assess the environmental impact of allowing motorized travel on more than 500 miles of routes, or of carrying out mechanical maintenance on those routes. The Bureau "had a duty to assess, in some reasonable way, the actual baseline conditions" in the Steens Mountain Area, Or. Nat. Desert Ass'n v. Jewell , 840 F.3d 562, 569 (9th Cir. 2016), but it failed to perform that duty.

NEPA does not require the Bureau to accept ONDA’s assessment of the environmental consequences of the Travel Plan. It does, however,...