Or. NATURAL DESERT Ass'n v. BUREAU of LAND Mgmt.

• Decision Date: 31 August 2010
• Docket Number: No. 05-35931.,05-35931.
• Citation: 625 F.3d 1092
• Parties: OREGON NATURAL DESERT ASSOCIATION; Committee for the High Desert; Western Watersheds Project, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; Elaine M. Brong, State Director, Oregon/Washington BLM; Tom Dabbs, Field Manager, Malheur Resource Area, BLM; Jerry Taylor, Field Manager, Jordan Resource Area, BLM, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

625 F.3d 1092

OREGON NATURAL DESERT ASSOCIATION; Committee for the High Desert; Western Watersheds Project, Plaintiffs-Appellants,

v.BUREAU OF LAND MANAGEMENT; Elaine M. Brong, State Director, Oregon/Washington BLM; Tom Dabbs, Field Manager, Malheur Resource Area, BLM; Jerry Taylor, Field Manager, Jordan Resource Area, BLM, Defendants-Appellees.

No. 05-35931.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 8, 2007.

Filed July 14, 2008.

Amended Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

Peter M. “Mac” Lacy (argued), of the Oregon Natural Desert Association, Portland, OR, Laurence J. “Laird” Lucas, Boise, ID, and Stephanie M. Parent, of the Pacific Environmental Advocacy Center, Portland, OR, for the plaintiffs-appellants.

David Shilton (argued), Todd S. Aagard, Matthew J. Sanders, and Sue Ellen Wooldridge, of the U.S. Department of Justice, Washington, DC, Karen J. Immergut, and Stephen J. Odell, of the U.S. Attorney of Oregon, and Mariel J. Combs, of the U.S. Department of the Interior, Office of the Regional Solicitor, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. CV-03-01017-JJ.

Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges, and JUDITH M. BARZILAY, Judge. ^*

ORDER

The parties' Joint Motion Requesting Amendment of Opinion and Remand is GRANTED. Although motions to amend substantial portions of opinions by incorporating specific language proposed by parties as part of a settlement are disfavored and will rarely be granted, in this instance the panel has determined, after careful review, that the proposed amendment fully conforms to Ninth Circuit and United States Supreme Court law regarding the relief accorded in a NEPA case and would be appropriate relief if requested by the plaintiff independently. In light of this disposition, the appellees' Petition for Rehearing is denied as moot.

The opinion of the Court in this case, Oregon Natural Desert Association v. Bureau of Land Management, 531 F.3d 1114 (9th Cir.2008), is amended as follows:

In the second paragraph of the opinion, 531 F.3d at 1116, replace the last sentence of that paragraph with the following:

We reverse and remand to the district court for further proceedings.

In Section II.B.5 of the Court's opinion, 531 F.3d at 1143, replace the last paragraph of that section with the following:

BLM must address in some manner in its revised EIS whether, and to what extent, wilderness values are now present in the planning area outside of existing WSAs and, if so, how the Plan should treat land with such values. We prescribe no particular methodology for that consideration. The BLM must, however, do more than simply assert that it need not consider wilderness values because of the completion of the § 1782 process, as it did in the present EIS. We therefore remand to the district court.

In Section III of the Court's opinion, 531 F.3d at 1145, replace the existing two paragraphs with the following single paragraph:

The EIS violated NEPA in the ways we have stated. Having addressed the problems we have identified, the BLM may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions. As a result, although ONDA also raises concerns regarding alleged substantive and procedural flaws within the Plan, we do not reach those issues today. The problems it identifies may never arise once the BLM has had a chance to see the choices before it with fresh eyes.

REVERSED and REMANDED.

IT IS SO ORDERED.

BERZON, Circuit Judge:

OPINION

The Bureau of Land Management (the “BLM” or the “Bureau”) is charged with managing “the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people.” 43 U.S.C. § 1702(c); see also id. § 1712(a), (c). That task, which the Supreme Court has characterized as “enormously complicated,” Norton v. Southern Utah Wilderness Alliance (“ SUWA ”), 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), requires careful planning.

The issue in this case is whether the BLM complied with the requirements of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., when it developed a land use plan covering a large portion of Oregon. The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (collectively “ONDA”) contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing “wilderness characteristics”; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM. We reverse and remand to the district court for further proceedings.

I. Background

A. The Physical and Legal Landscape

1. Southeastern Oregon

The BLM-managed land at issue (which we will sometimes refer to as the “planning area”) spreads over roughly four and a half million acres of rugged, remote land in southeastern Oregon's Malheur, Grant, and Harney Counties. These lands lie in the rain shadow of the Cascade and Coastal ranges, and so are sunny and semi-arid. The sagebrush plains that characterize the region are varied by high mountains, rising to over 8,000 feet, and by the valleys of the Malheur and Owyhee rivers.

A similar landscape (not at issue in this appeal) extends into Idaho to the west. We have described that region, in terms equally applicable to the Oregon lands, as “[s]tartling in its ecological diversity, from arid sagebrush desert to lush juniper woodlands,” and as including “spectacular and wild canyonlands” along the Owyhee river. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 821 (9th Cir.2002).

It is not simply the landscape that marks the planning area. The area is also home to tens of thousands of people who live and work in this dry and demanding territory. European settlement of the region began as immigrants moved west over the Oregon Trail and intensified with the discovery of gold in the Owyhee Mountains in the 1860s, bringing miners and ranchers into the landscape. Today, about 30,000 people live in Malheur County, which makes up the bulk of the planning area. Although the service and outdoor recreation industries are growing significantly, farming and ranching still drive the economy. The old mines are largely tapped out and do not employ many people, and portions of the range were degraded in the early years of settlement. These days, Malheur County's economic indicators are significantly below statewide averages for Oregon, and a sizable portion of the population is below the poverty line.

Federally owned land makes up a large portion of the region, giving the BLM an important role. Its land use planning choices influence both the unique and irreplaceable natural resources of the planning area and the local economy, which is strongly tied to the outdoors. The choices available to the BLM are governed in large part by three statutes of central relevance to this appeal: the Federal Land Policy and Management Act, the Wilderness Act, and the National Environmental Policy Act. We discuss each statute in turn.

2. Federal Land Management

a. The Federal Land Policy and Management Act

The BLM's land management authority is defined by the Federal Land Policy and Management Act of 1976 (the “FLPMA”), 43 U.S.C. § 1701 et seq. Although the BLM existed before the passage of the FLPMA, see 43 U.S.C. § 1731(a), its role was extensively revised by that statute, which, among other changes, establishes systems for information gathering and land use planning.

The FLPMA directs that the Secretary of the Interior, who oversees the BLM, “shall, with public involvement ..., develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.” Id. § 1712(a); see also SUWA, 542 U.S. at 58-60, 124 S.Ct. 2373 (describing the land use planning process). ¹ Among other requirements, these plans are to “use and observe the principles of multiple use and sustained yield”; ² “use a systematic interdisciplinary approach”; “give priority to the designation and protection of areas of critical environmental concern”; and “weigh long-term benefits to the public against short-term benefits.” 43 U.S.C. § 1712(c). The BLM “shall manage the public lands” in accordance with these plans. Id. § 1732(a).

To ensure that the BLM has adequate information to perform this task, the FLPMA also directs that:

The Secretary shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values.

Id. § 1711(a). The BLM, in other words, is obligated to “arrange for resource, environmental, social, economic and institutional data and information to be collected, or assembled if already available.” 43 C.F.R. § 1610.4-3. The Bureau is, in particular, to collect “[n]ew information and inventory data [that] will emphasize significant issues and decisions with the greatest potential impact.” Id. Land use plans are to “rely, to the extent it is available, on the inventory of the public lands, their resources, and other values.” 43 U.S.C. § 1712(c)(4). An extensive public comment process also provides information for the formulation of BLM land use plans. See 43 C.F.R. § 1610.2 (discussing public participation).

The land use plans thus developed guide “[a]ll future resource management authorizations and actions ... and subsequent more detailed...