Or. Natural Desert Ass'n v. Cain

• Decision Date: 13 February 2018
• Docket Number: No. 3:09–cv–369–PK,3:09–cv–369–PK
• Citation: 292 F.Supp.3d 1119
• Parties: OREGON NATURAL DESERT ASS'N, Plaintiff, v. Brendan CAIN, Bums District Manager, BLM, et al., Defendants, and Harney County, Defendant–Intervenor–Cross–Claimant.
• Court: U.S. District Court — District of Oregon

292 F.Supp.3d 1119

OREGON NATURAL DESERT ASS'N, Plaintiff,

v. Brendan CAIN, Bums District Manager, BLM, et al., Defendants,andHarney County, Defendant–Intervenor–Cross–Claimant.

No. 3:09–cv–369–PK

United States District Court, D. Oregon.

Signed February 13, 2018

Peter MacNamara Lacy, Oregon Natural Desert Association, Thomas Charles Buchele, Portland, OR, for Plaintiff.

Dominic M. Carollo, Ronald S. Yockim, Yockim Carollo LLP, Roseburg, OR, Christopher T. Griffith, Haglund Kelley LLP, Portland, OR, for Defendant–Intervenor–Cross–Claimant.

Bradley Grenham, U.S. Department of the Interior Office of the Solicitor, Sean E. Martin, U.S. Attorney's Office District of Oregon, Portland, OR, for Defendants.

OPINION AND ORDER

Honorable Paul Papak, United States Magistrate Judge

Plaintiff Oregon Natural Desert Association (ONDA) seeks judicial review of two final agency decisions concerning the designation of routes available for motorized travel in the Steens Mountain Cooperative Management and Protection Area (CMPA): the decision of the Interior Board of Land Appeals (IBLA), on remand from this court, to affirm the Bureau of Land Management (BLM)'s adoption of the Steens Mountain Travel Management Plan (TMP); and BLM's subsequent decision to issue the Steens Mountain Comprehensive Recreation Plan. ONDA claims that these two decisions violate the Steens Mountain Cooperative Management and Protection Act of 2000 (the Steens Act), 16 U.S.C. §§ 460nnn – 460nnn–122 ; the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 – 87 ; the Wilderness Act of 1964, 16 U.S.C. §§ 1131 – 36 ; and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 – 61. Third Am. & Suppl. Compl., ECF No. 244. Defendants are BLM; Brendan Cain, Burns District Manager, BLM; Rhonda Karges, Manager, Andrews Resource Area, BLM (I refer to these defendants collectively as BLM); and the IBLA. Harney County has intervened as a defendant, and asserts cross-claims against BLM under NEPA and the Steens Act.

In 2007, BLM issued the Travel Management Plan (TMP) decision at issue here. In 2008, ONDA appealed the TMP to the IBLA. In 2009, the IBLA affirmed the TMP decision almost in its entirety, reversing only the TMP's allowance of motorized traffic on Obscure Routes.

ONDA then filed this action seeking judicial review of the IBLA's decision. In 2011, on cross-motions for summary judgment, I remanded the case to the IBLA for further proceedings on seven of the nine issues raised by ONDA. Oregon Natural Desert Ass'n v. McDaniel , No. 09-cv-369-PK, 2011 WL 1654265, at *10 (D. Or. April 28, 2011), ECF No. 103 ( O & O ). I concluded that the IBLA's opinion was arbitrary and capricious because it had failed to address the seven issues "sufficiently to create a record for judicial review." Id. (footnote omitted). The most troubling issue for me was "the IBLA's complete failure to review the TMP's individual route determinations, the methodology BLM employed in conducting its route inventory, or the evidence presented by ONDA that BLM's route designations ignored the actual conditions on the ground." Id. I did not rule on the merits of ONDA's claims on the seven issues, leaving that for the IBLA to resolve on remand.¹

On remand, after receiving additional evidence and briefing, the IBLA affirmed the TMP in its entirety. Oregon Natural Desert Ass'n (On Judicial Remand) , IBLA No. 2008–59–1, 185 IBLA 59, 2014 WL 7150267, ECF No. 203 (IBLA Sept. 30, 2014) (IBLA Op.). In affirming the TMP, the IBLA sua sponte vacated its prior reversal of BLM's designation of Obscure Routes as open to motorized travel.

In 2015, BLM issued the Comprehensive Recreation Plan (CRP). In preparing the CRP, BLM reexamined the Obscure Routes and decided to close many of the Obscure Routes to motorized travel.

ONDA now seeks judicial review of the 2014 IBLA decision and the 2015 CRP. For the following reasons, I conclude that the 2014 IBLA decision and BLM's 2015 CRP decision are supported by substantial evidence in the record, are not contrary to law, and are not arbitrary or capricious. I therefore deny ONDA's Motion for Summary Judgment and grant BLM's Cross–Motion for Summary Judgment. I deny Harney County's Motion for Summary Judgment. I deny the parties' motions to strike.

LEGAL STANDARDS

I. Legal Standard for Judicial Review of Final Agency Decisions

When reviewing a final agency decision under the Administrative Procedure Act (APA), the court determines whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Before overturning an agency decision under the APA's deferential standard of review,

the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted), abrogated in part on other grounds by Califano v. Sanders , 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The court presumes that the agency acted properly and affirms when " ‘a reasonable basis exists for its decision.’ " Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv. , 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting Independent Acceptance Co. v. California , 204 F.3d 1247, 1251 (9th Cir. 2000) (citations omitted) ). The plaintiff bears the burden of showing that an agency decision or action was arbitrary and capricious.

Kleppe v. Sierra Club , 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).

The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. See City & Cty. of San Francisco v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (summary judgment is " ‘an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did’ ") (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 770 (9th Cir. 1985) ). But when a court reviews an agency decision, the APA's legal standards, not those of Rule 56, govern. In this context, "summary judgment" is "simply a convenient label to trigger" judicial review. Klamath Siskiyou Wildlands Ctr. v. Gerritsma , 962 F.Supp.2d 1230, 1233 (D. Or. 2013), aff'd , 638 Fed.Appx. 648 (9th Cir. 2016).

II. Standard of Review for IBLA Decisions

"Courts apply the same standard of review of IBLA decisions as for review of agency decisions generally." O & O at *9. This court may reverse the IBLA's decision only if the decision is arbitrary, capricious, not supported by substantial evidence, an abuse of discretion, or contrary to law. Akootchook v. United States , 271 F.3d 1160, 1164 (9th Cir. 2001). "This standard is narrow and a reviewing court may not substitute its judgment for that of the agency." Geo–Energy Partners–1983 Ltd. v. Salazar , 613 F.3d 946, 955 (9th Cir. 2010). The reviewing court carefully searches the full record " ‘to determine whether it contains such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and whether it demonstrates that the decision was based on a consideration of relevant factors.’ " Akootchook , 271 F.3d at 1164 (quoting Hjelvik v. Babbitt , 198 F.3d 1072, 1074 (9th Cir. 1999) ).

BACKGROUND

The Steens Mountain Cooperative Management and Protection Area (CMPA) "is a high desert area ranging from aspen and juniper woodlands to sagebrush shrublands and grasslands, punctuated by perennial and intermittent streams, springs, and riparian areas." IBLA Op. at 65 (footnote omitted). The CMPA, which BLM manages, comprises more than 420,000 acres of public land, as well as almost 67,000 acres of private land. Id. Steens Mountain, a 9,773–foot high mountain, is "the centerpiece of the CMPA." Id.

"The fundamental purpose of the Steens Act is ‘to conserve, protect, and manage the long-term ecological integrity of Steens Mountain for future and present generations.’ " Id. at 64 (quoting 16 U.S.C. §§ 460nnn(5) ). The Steens Act restricts motorized and mechanized travel on federal lands in the CMPA, "generally prohibiting off-road vehicle use and restricting vehicle use to designated existing roads and trails (with limited exceptions) and precluding the construction of new roads or trails (with limited exceptions)." Id. at 65 (citing 16 U.S.C. §§ 460nnn–22 ). The Steens Act requires that BLM create "a comprehensive plan for the long-range protection and management of the Federal lands included in the [CMPA]," 16 U.S.C. § 460nnn–21(b), including, "as an integral part, a comprehensive transportation plan for the Federal lands included in the [CMPA], which shall address the maintenance, improvement, and closure of roads and trails as well as travel access," 16 U.S.C. § 460nnn–22(a). The Steens Act also closed about 100 miles of routes,

In 2005, BLM adopted the Steens Mountain CMPA Resource Management Plan (RMP). In developing the RMP, BLM prepared an Environmental Impact Statement, taking public comments. See AR 11052–12237. The RMP included an abbreviated Transportation Plan (TP), "which provided guidance regarding the maintenance, improvement, use, and accessibility of roads and trails in the CMPA. The TP also provided for a site-specific on-the-ground route inventory, which would update and map all existing routes in the CMPA." IBLA Op. at 66. BLM began preparing a comprehensive Travel Management Plan, seeking to determine " ‘how best to manage travel in the CMPA while protecting resources including wilderness characteristics, providing for ‘reasonable’ access to private lands, providing for sustainable livestock grazing, providing recreation opportunities, and otherwise meeting RMP land management objectives.’ " Id. (quoting Environmental...