Sierra Club v. Hodel

• Decision Date: 16 May 1990
• Docket Number: No. 87-C-0120 A.,87-C-0120 A.
• Citation: 737 F. Supp. 629
• Parties: SIERRA CLUB, a non-profit corporation; National Parks and Conservation Association, a non-profit organization; Southern Utah Wilderness Alliance, a Utah non-profit corporation, and The Wilderness Society, a District of Columbia non-profit corporation, Plaintiffs, v. Donald P. HODEL, in his capacity as Secretary of the United States Department of the Interior; The Department of the Interior of the United States; the Bureau of Land Management; Garfield County, a political subdivision of the State of Utah; and Harper Excavating, Inc., a Utah corporation, Defendants.
• Court: U.S. District Court — District of Utah

737 F. Supp. 629

SIERRA CLUB, a non-profit corporation; National Parks and Conservation Association, a non-profit organization; Southern Utah Wilderness Alliance, a Utah non-profit corporation, and The Wilderness Society, a District of Columbia non-profit corporation, Plaintiffs, v. Donald P. HODEL, in his capacity as Secretary of the United States Department of the Interior; The Department of the Interior of the United States; the Bureau of Land Management; Garfield County, a political subdivision of the State of Utah; and Harper Excavating, Inc., a Utah corporation, Defendants.

No. 87-C-0120 A.

United States District Court, D. Utah, C.D.

May 16, 1990.

Wayne G. Petty of Moyle & Draper, William J. Lockhart, Univ. of Utah, College of Law, Salt Lake City, Utah, and Lori Potter, Sierra Club Legal Defense Fund, Inc., Denver, Colo., for plaintiffs.

Dee Benson, U.S. Atty., Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, Ronald W. Thompson and Barbara G. Hjelle of Thompson, Hughes & Reber, St. George, Utah, Wallace A. Lee, Garfield County Atty., Panguitch, Utah, for defendants.

MEMORANDUM OPINION & ORDER

ALDON J. ANDERSON, Senior District Judge.

I. BACKGROUND

The case now before the court is part of a continuing controversy which focuses on a county's plans to improve a dirt road in southern Utah, known as the Burr Trail. The Burr Trail covers a distance of approximately 66 miles through Garfield County, Utah. The road extends from the town of Boulder in a southeasterly direction through Long Canyon, the Blues, then through Capitol Reef National Park and ultimately to its terminus near the Bullfrog Marina on Lake Powell within the Glen Canyon National Recreation Area.

This case arises out of Garfield County's plan to make the western twenty-eight miles of the Burr Trail (segment one) into an improved two-lane gravel road to enable safer travel and more economical maintenance.¹ Along its course, the Burr Trail passes between and bounds two federally protected wilderness study areas (WSAs), the Steep Creek WSA and the North Escalante Canyons WSA. Asserting concern over the impact that construction and subsequent increased travel would have on the WSAs and on the plants, animals, and archaeological sites in the area, the Sierra Club and other environmental groups sued the Secretary of the United States Department of the Interior, the Bureau of Land Management (BLM) and Garfield County. The original complaint sought to enjoin construction until the County and the BLM complied with the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA).

After a lengthy trial, this court found that Garfield County had a right-of-way over the western 28 miles of the road (the Harper contract or Segment one of the Burr Trail). One part of the proposal—in the riparian area known as The Gulch— threatened the WSAs. To protect The Gulch, the court ordered Garfield County to seek from the BLM a FLPMA permit to relocate part of the road outside the existing right-of-way. The court further ordered the BLM to conduct studies of plant life along the trail, to monitor the construction in areas with archaeological sites, and to direct alterations in the plan where necessary to preserve plant life or archaeological sites. The court also held that earlier studies and the substantial evidence at trial were the equivalent of an environmental impact statement (EIS) covering this area of the Burr Trail. Because this finding appeared to satisfy NEPA requirements, the court dissolved the preliminary injunction. Both sides appealed the court's decision to the Court of Appeals for the Tenth Circuit, which stayed dissolution of the preliminary injunction pending appeal.

The Tenth Circuit affirmed this court's ruling as to the right-of-way but reversed the courts finding that the substantial equivalent of an EIS had already been accomplished. Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). The Circuit found that the scope of the right-of-way was properly determined under state law, and held that the road could be widened as necessary to meet the exigencies of increased travel, limited to what was reasonable and necessary with respect to a continuation of the preexisting uses. Furthermore, the circuit held that Garfield County was permitted to impair adjoining WSAs to the extent the impairments did not unreasonably degrade the study areas.

Additionally, the Tenth Circuit held that the proposed project constituted major federal action, and thus, fell under the purview of NEPA, and that NEPA requires either a Finding of No Significant Impact (FONSI) or an EIS before a project falling within its scope may proceed. The Circuit determined that the responsibility was with the BLM to perform an EA for the particular project, and that past environmental studies, while they may be useful, were inadequate to support either a proper finding of no significant impact, an environmental impact statement, or their substantial equivalent. Consequently, it reversed this court's decision and ordered this court to remand the case to the BLM for a new environmental assessment, followed by either a FONSI or an EIS. As to the area of the Burr Trail involved, the Circuit stated that the "BLM would be required to address environmental issues affecting only those areas in which, under the law of the case, it still has authority to act." Sierra Club v. Hodel, 848 F.2d 1068, 1096 (10th Cir.1988). It concluded that "BLM's authority was limited to what was relevant to its duty to prevent unnecessary degradation of the WSAs." Id. (emphasis in original).

Under the Tenth Circuit's ruling, that "to the extent it can be determined that the road improvement project would not adversely impact the WSAs, it should be permitted to go forward now," Id., Garfield County petitioned this court for partial dissolution of the injunction. On December 2, 1988, this court entered its order partially dissolving the injunction. Work was allowed to proceed on that portion of the road extending from the bottom of the Blues to the western boundary of Capitol Reef National Park. This ruling was based upon the proffered testimony of David Everett, a BLM environmental specialist, stating that work in the area released from the effect of the injunction would not unnecessarily or unduly degrade any WSA. The parties stipulated, in connection with the release from the injunction, that Garfield County could also commence construction with respect to the state section traversed by the Burr Trail.

The proposed work for the remainder of the road was reviewed by BLM through an environmental assessment process which commenced with the preparation of a Draft Environmental Assessment (DEA) by an independent consultant, JBR Consultants Group (JBR). The work of the independent consultant was directed at the discretion of the BLM pursuant to a Memorandum of Understanding between Garfield County and BLM.

The DEA was distributed to the public for comment and two public hearings were held, one in Escalante in Garfield County and the other in Salt Lake City. Thereafter, an environmental assessment, "The Boulder-to-Bullfrog Road Improvement Project (Burr Trail) Final Environmental Assessment (EA): A supplement to paving the Boulder-to-Bullfrog Road EA (1985)," EA No. Ut-040-89-6, (1989), was prepared by David Everett, of the BLM, Cedar City District Office, in cooperation with the Richfield District Office.

Following the 1989 EA, Gordon Staker, District Manager for the Cedar City District, executed a FONSI and Record of Decision (ROD) for the Harper contract, which stated that "impacts are not expected to be significant at this time." The FONSI and ROD further specified that "the decision to allow the proposed action would not result in any undue or unnecessary environmental degradation to the Steep Creek WSA and north Escalante Canyon/The Gulch WSA." The BLM decision approved road reconstruction, including "graveling or paving," on the segment of the Burr Trail previously at issue before the court, and on a second large BLM segment of the trail not previously considered (segment 3).

After issuance of the final 1989 EA and FONSI and ROD, Garfield county again petitioned this court for a complete dissolution of the injunction. However, plaintiffs appealed BLM's decision to the Interior Board of Land Appeals (IBLA or Board). Because of the pending appeal, this court denied Garfield County's original petition for complete dissolution of the injunction, stating that until "final agency decision is reached, the court is not in a position to determine whether the BLM has complied with the NEPA requirements in the Tenth Circuit Court's remand." Order at 4, (July 19, 1989).

On appeal to the IBLA, plaintiffs challenged the 1989 FONSI, pointing out that National Park Service comments to the 1988 draft EA indicated the planned realignment of the eastern segment of the road adjacent to Capitol Reef National Park would require realignment within the park affecting proposed wilderness units. Plaintiffs also challenged the effort of the BLM to justify the 1989 EA supplement to the 1985 EA on which the 1985 FONSI was based. Plaintiffs noted that the 1985 FONSI was predicated on a prior proposal which contained substantial protective measures which were abandoned in the 1989 proposal. Further, the nature of the work proposed for all BLM segments had been expanded to include paving of the road. Plaintiffs also asserted that the scope of the 1989 EA was improperly segmented by the BLM in violation of the requirements of NEPA.

In its written opinion on appeal, the IBLA considered the adequacy of the EA and FONSI with respect to the judicial remand of the Harper contract to improve and gravel (but not pave) segment one of the Burr Trail separately from the adequacy of the EA and FONSI to support the expanded project which was not considered theretofore by this court or the Tenth...