Or. Natural Desert Ass'n v. Mcdaniel

Decision Date28 April 2011
Docket NumberCV 09-369-PK
PartiesOREGON NATURAL DESERT ASS'N, Plaintiff, v. KENNY MCDANIEL, Burn District Manager, BLM, et al., Defendants.
CourtU.S. District Court — District of Oregon

OREGON NATURAL DESERT ASS'N, Plaintiff,
v.
KENNY MCDANIEL, Burn District Manager, BLM, et al., Defendants.

CV 09-369-PK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Dated: April 28, 2011


OPINION AND ORDER

PAPAK, Judge:

Plaintiff Oregon Natural Desert Association (ONDA) brings this action arising from the travel management planning process for the Steens Mountain. ONDA names as defendants the United States Bureau of Land Management ("BLM"), Kenny McDaniel, District Manager for the Burns District of BLM, and Joan Suther, Field Manager for the Andrews Resource Area of the

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Burns District of BLM.1 Specifically, ONDA alleges that either BLM's decision adopting its Travel Management Plan (TMP) or the Interior Board of Land Appeals' ("IBLA") decision approving BLM's adoption of the TMP violates the Steens Mountain Cooperative Management and Protection Act of 2000 ("Steens Act"), 16 U.S.C. § 460nnn et seq., 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. Now before the court is ONDA's motion for summary judgment (#52), BLM's cross-motion for summary judgment (#67), and BLM's motion to strike extra-record materials (#59). ONDA's motion and BLM's cross-motion for summary judgment are both granted in part and denied in part as set forth below. BLM's motion to strike extra-record materials is denied as to the declaration of Dr. Craig Miller, and denied as moot regarding any other extra-record materials.

BACKGROUND

I. Steens Mountain and Steens Act

Steens Mountain is a 9,773-foot high mountain located in southeast Oregon's high desert. In 2000, Congress passed the Steens Act, which created the Cooperative Management and Protection Area (CMPA), a protected area of over 400,000 acres managed by BLM covering most of Steens Mountain. 16 U.S.C. § 460nnn-11(a). The stated purpose of the CMPA is to "conserve, protect, and manage the long-term ecological integrity of Steens Mountain for future

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and present generations." 16 U.S.C. § 460nnn-12(a).2

II. Land Use Planning Requirements

As part of the Steens Act, Congress directed the BLM to develop a "comprehensive plan for the long-range protection and management of the Federal lands included in the [CMPA]" by October 30, 2004. 16 U.S.C. § 460nnn-21(b). The Steens Act requires the plan to "include, 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." Id. § 460nnn-22(a). Beyond requiring a comprehensive transportation plan, the Steens Act prohibits the use of motorized and mechanized vehicles off-road and limits their use to designated, existing roads and trails, with limited exceptions. Id. § 460nnn-22. The Steens Act also prohibits construction of new roads or trails for motorized or mechanized vehicles unless necessary for public safety or protection of the environment. Id. § 460nnn-22(d).

III. BLM Oversight

The Bureau of Land Management (BLM) manages 3,275,694 acres of public land in the Burns District where Steens Mountain is located. AR 10374. The Burns District is divided into two Resource Areas (RAs): the Andrews RA and the Three Rivers RA. Id. The two RAs are further divided into land within the boundary of the Steens Mountain CMPA, and those within the Andrews RA but outside the CMPA boundary. Id. The latter is titled the Andrews Management Unit (AMU) and covers approximately 1,221,000 acres of public land. Id.

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IV. ONDA's Participation in the Land Use Planning Process

Starting in February, 2002, BLM began to prepare two counterpart Resource Management Plans (RMPs) for the Andrews Management Unit and the CMPA. AR 10781. Collectively, the plans are referred to as the Andrews Steens Resource Management Plan (RMP). During the planning process, ONDA met with BLM staff, submitted scientific data and literature, and provided detailed written comments underscoring Steens Mountain's significant wilderness and wildlife habitat values. See Or. Natural Desert Ass'n v. Shuford, No. 06-242-AA, 2007 U.S. Dist. LEXIS 42614, *5, 2007 WL 1695162 (D. Or. June 8, 2007). Using the BLM inventory protocol established in BLM's 2001 Wilderness Inventory Study and Procedures handbook, ONDA conducted an independent wilderness survey documenting changes in the landscape since the 1970s, when BLM completed its last field inventory. See Shuford, 2007 U.S. Dist. LEXIS 42614, *5. The 2,000-plus page wilderness report included maps identifying areas that ONDA believed meet wilderness characteristics, annotated road and photo logs with GPS locations, thousands of photographs, and narratives documenting ONDA's analysis of wilderness characteristics not included in BLM's original wilderness review. See id.; SAR 1737-3981, 3984-4073. ONDA also provided BLM with a route inventory accompanied by photographs, maps, and narrative descriptions which documented routes that were redundant, non-existent, or impassible and recommended closing those routes to motorized use. Id; SAR 4074-86.

Pursuant to NEPA requirements, BLM released a Draft RMP/Draft Environmental Impact Statement (EIS) in October 2003, and a Proposed RMP/Final EIS in August 2004. Shuford, 2007 U.S. Dist. LEXIS 42614, *5. On September 9, 2004, ONDA administratively protested the Andrews-Steens Proposed RMP and Final EIS, but on June 10, 2005, BLM denied ONDA's

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protest in a letter responding to ONDA's protest issues. Id. On July 15, 2005, BLM issued a Record of Decision (ROD) adopting the Andrews-Steens RMP. Id.

V. July 2005 Transportation Plan

In an effort to satisfy the Steens Act requirement for a comprehensive transportation plan, the RMP included an 8-page appendix labeled as a "Transportation Plan." AR 10707-14 (Appendix M). The Transportation Plan (TP) included a goal ("Provide travel routes to and through BLM-managed lands as appropriate to meet resource objectives while providing for private and public access needs"), an objective ("Manage roads and ways within the CMPA consistent with the Route Management Categories and Maintenance Levels"), a rationale (the need for management and protection of natural resources as well as a route system to accommodate public and private access needs). AR 10707-08; Shuford, 2007 U.S. Dist. LEXIS 42614, *52. The plan also included descriptions of route types, a list of management best practices, and a glossary of terms. AR 10708-14. Further, the plan identified specific routes by name, designated some as either open or closed, and provided management directions and maintenance levels for others. AR 10709. Finally, the plan called for "specific field inventories and needs determinations on all other routes within the CMPA." AR 10707. According to the document, a travel plan and environmental assessment based on those inventories and determinations would "complete the comprehensive requirements [of the Steens Act] and be completed by December 31, 2005." Id. The plan provided that, in the interim, "the open roads and ways shown on Map 13 in the RMP represent the routes known to be historically available for motorized use and shall remain available for such use unless changed through the development of the updated Travel Plan mentioned above." Id. In August 2005, BLM adopted

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the final RMP, including the transportation plan contained in Appendix M. See AR 1036411051.

VI. Initiation of Prior Litigation

In February 2006, shortly after BLM had failed to meet its 2005 year-end deadline for adopting a comprehensive transportation plan, ONDA sued BLM in this court alleging that the RMP as adopted in August 2005 violated a number of federal environmental statutes, including the requirement of the Steens Act that the BLM develop a comprehensive transportation plan as an integral part of the CMPA RMP. Shuford, 2007 U.S. Dist. LEXIS 42614, *2. While that suit was pending before Judge Aiken, BLM announced in December 2006 that it would prepare a new "Travel Management Plan" and accompanying environmental assessment to satisfy the requirements of the Steens Act. AR 10248, 9929.

VII. Travel Management Plan

A. Consultation with the Public and Advisory Council

In December 2006, a scoping document was distributed to gather comments and ideas from interested members of the public regarding road and travel issues to be addressed in the TMP Environmental Assessment (EA). AR 9953. The comments identified several key goals: (1) retain historical access; (2) protect ecological integrity by reducing motorized vehicle use; (3) close specific routes; and (4) address hiking trails and snowmobile use. AR 9954. BLM also consulted extensively with the Steens Mountain Advisory Council, which was established under the Steens Act to promote cooperative management of the CMPA and consists of representatives of a broad array of views and interests. 16 U.S.C. § 460nnn-51.

B. Release of TMP/EA

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In April, 2007, BLM released a Finding of No Significant Impact (FONSI) and combined Travel Management Plan (TMP)/Environmental Assessment (EA), and called for a public comment period until May 21, 2007. AR 9913. The TMP/EA...

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