S. Utah Wilderness All. v. U.S. Dept. of the Interior
| Decision Date | 31 March 2021 |
| Docket Number | Case No. 2:19-cv-00297-DBB |
| Parties | SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs, v. U.S. DEPT. OF THE INTERIOR et al., Defendants, and STATE OF UTAH; and GARFIELD COUNTY, UTAH, Defendant-Intervenors. |
| Court | U.S. District Court — District of Utah |
Before the court is Southern Utah Wilderness Alliance, The Wilderness Society, and National Parks Conservation Association's (collectively, SUWA) petition for review of agency action.1 At issue is a Garfield County proposal to improve a 7.5-mile segment of the Burr Trail. Requesting judicial review of Bureau of Land Management's (BLM) decisions regarding the proposed improvement, SUWA generally raises three arguments. First, SUWA argues that Bureau of Land Management's (BLM) decision recognizing a Garfield County right-of-way over a portion of the Burr Trail was arbitrary and capricious.2 Second, it contends that BLM's conclusion that Garfield County's proposed road improvement was within the scope of the right-of-way was arbitrary and capricious.3 Third, it argues that BLM failed to take a sufficiently hard look at the environmental impacts of the proposed improvement.4 For their part, Defendants generally argue that there is no final agency action to review and therefore that this court lacks jurisdiction.5 But if there is a final decision over which the court has jurisdiction, Defendants contend BLM's conclusion that the proposed improvement was within the scope of the right-of-way is reasonable and its consideration of environmental impacts was sufficient.6 Having considered the briefing, the record, and relevant law, the court determines as follows.
At approximately 66 miles in length, the Burr Trail connects the town of Boulder on the northwest to Bullfrog on the southeast.7 It generally consists of four distinct segments: (1) Boulder to the west boundary of Capital Reef National Park (30.7 miles); (2) through Capital Reef (8.4 miles); (3) eastern boundary of Capital Reef to the northern boundary of Glen Canyon National Recreation Area (19.2 miles); and (4) through Glen Canyon to Highway U-276 near Bullfrog Basin Marina.8 Roughly in the middle of the Burr Trail, a 7.5-mile portion on the western end of Segment 3 (the Stratton Segment) travels from the eastern boundary of Capital Reef to Stratton Road at Eggnog Junction.9 The Stratton Segment, together with the Capital Reef 8.4-mile segment, constituted the Burr Trail's only non-chip sealed road segments.10 Thisapproximately sixteen-mile portion was a graveled, two-lane road.11 The Stratton Segment of the Burr Trail is bordered on the north and east by the Mount Pennell Wilderness Study Area (Pennell WSA), except for portions that cross State of Utah lands.12
In 2009, Garfield County notified BLM that it would chip seal the Stratton Segment.13 The National Park Service and conservation groups asserted that the proposed action would impact wildlife, air quality, and wilderness values in and outside of Capital Reef by increasing visitation.14 BLM prepared a draft Environmental Assessment (EA) in 2011 but did not release it to the public or authorize the surface improvements.15
On June 6, 2018, Garfield County again notified BLM that it would be chip sealing the Stratton Segment, asserting that the segment was within the County's R.S. 2477 right-of-way.16 The County sought to bring the last sixteen miles of graveled surface Burr Trail up to the chip seal standard, citing traveler "comfort and safety issues," as well as increasingly scarce gravel and water resources.17 BLM requested any updated traffic and safety statistics the County wouldwant it to consider, but no specific response appears in the record.18 However, BLM indicated that it received additional information it requested in July 2018.19 BLM determined that the proposed chip seal was an improvement to the County's right-of-way under R.S. 2477 and was within the scope of the right-of-way.20 It determined that the project was reasonable and necessary and prepared an EA to determine whether the proposed project would adversely impact the surrounding public lands and resources.21 In particular, BLM evaluated the impact to the Mount Pennell Wilderness Study Area (WSA), adjacent to portions of the Stratton Segment.22
In its EA, BLM determined no direct impacts to the Mount Pennell WSA from the proposed chip seal project because it was within the existing disturbance of the gravel road: "The fact that the road already exists and is adjacent to the WSA will not change, whether the road remains graveled or is chip sealed."23 BLM also evaluated indirect impacts resulting from noise, dust, and visual disturbance.24 After receiving comments, BLM issued a Finding of No Significant Impact (FONSI) on April 26, 2019.25 Based upon its review of the EA, BLM determined that the proposed chip seal project "will not adversely affect the surrounding public lands or resources, including the wilderness values of the Mount Pennell WSA."26
With respect to noise, BLM observed that "it is difficult to quantify how changes in roadway surface type may impact noise propagation and opportunities for solitude in areas with wilderness characteristics."27 It found that construction would cause limited-duration noise and would be "relatively minor."28 Indirectly, it determined the surface improvement may impact opportunity for solitude by generating more noise than the gravel road, but the opposite could also be true.29 Specifically, chip seal surface may be quieter compared to gravel roads—vehicles travelling on the smoother surface would generate less noise.30 But the higher travel speeds facilitated by a smoother surface would generate more noise and reach deeper into the WSA disturbing solitude and primitive recreation.31 BLM estimated that the noise produced by vehicles on the chip seal surface would be "unlikely to impact the more remote and rugged portions of the WSA that receive higher levels of use."32
Considering dust generation and deposition from the road, BLM concluded that it would increase during the short-term construction, but decrease over the long run because the vehicles traveling on the sealed surface would generate less dust.33 Dust deposition matters because nearby plants likely might experience impacts to photosynthesis, respiration, and transpiration.34 Dust clouds also may be visible to visitors within the WSA.35 The extent of dust spread,however, would depend on road conditions and climate.36 BLM ultimately concluded that the proposed surface improvement would reduce dust dispersion, benefiting the adjacent WSA.37
Weighing visual impact from the improvement, BLM determined that the construction would temporarily detract from the scenic quality of the area.38 Once completed, the chip seal, composed of colors contrasting with the land, would be visible from some parts of the WSA.39 The BLM anticipated a relatively low impact, however, because much of the adjacent WSA land is flat, the WSA has no "key observation points," and the adjacent areas are less-visited compared to other parts of the WSA.40
On April 26, 2019, BLM advised Garfield County that it had determined the project was reasonable and necessary and, therefore, within the scope of the right-of-way.41 BLM also explained that "the proposed project would not adversely affect the surrounding public lands or resources, including the Mount Pennell WSA."42 Garfield County then commenced the chip seal project, which was finished within a few days.43
In its review of agency action, the court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."44 "The duty of a court reviewing agency action under the'arbitrary or capricious' standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made."45
An agency's decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.46
"When called upon to review factual determinations made by an agency as part of its NEPA process, short of a 'clear error of judgment' we ask only whether the agency took a 'hard look' at information relevant to the decision."47 "A presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action."48 In sum, the court's review is "highly deferential."49
Congress passed Revised Statute 2477 (R.S. 2477) as part of the Mining Act of 1866, generally granting "the right of way for the construction of highways over public lands, not reserved for public uses."50 This provision effectuated a century-long federal policy of providing entitlement over unreserved lands to "private productive hands" in an effort to promote land development.51 On October 21, 1976, Congress enacted the Federal Land Policy ManagementAct of 1976 (FLPMA), establishing a comprehensive framework for managing federal public lands and effectively preferring federal retention of lands.52 Congress also repealed R.S. 2477, though it preserved any "valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act."53 Although new rights of way may still be issued by the federal government, the issuances must comply with the more restrictive FLPMA.54
The holder of an R.S. 2477 right-of-way "may sometimes be entitled to change the...
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