Sierra Club v. Lujan, 90-4091
| Citation | 949 F.2d 362 |
| Decision Date | 18 November 1991 |
| Docket Number | No. 90-4091,90-4091 |
| Parties | 22 Envtl. L. Rep. 20,432 SIERRA CLUB, a non-profit Corporation, National Parks and Conservation Association, a non-profit Organization, Southern Utah Wilderness Alliance, a non-profit Corporation, and the Wilderness Society, a non-profit Corporation, Plaintiffs-Appellants, v. Manuel LUJAN, 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, and Garfield County, a political subdivision of the State of Utah, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Wayne G. Petty of Moyle & Draper, P.C., Salt Lake City, Utah (Michael F. Heyrend, Salt Lake City, Utah, Lori Potter, Sierra Club Legal Defense Fund, Inc., Denver, Colo., and William J. Lockhart, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellants.
Robert L. Klarquist, Atty., Dept. of Justice, Land and Natural Resources Div., Washington, D.C. (Myles E. Flint, Deputy Asst. Atty. Gen., Washington, D.C., Dee V. Benson, U.S. Atty., Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, and Edward J. Shawaker, Atty., Dept. of Justice, Land and Natural Resources Div., Washington, D.C., with him on the brief), for defendants-appellees Manuel Lujan, Secretary of the Dept. of the Interior, Dept. of the Interior and Bureau of Land Management.
Ronald W. Thompson of Thompson, Hughes & Reber, St. George, Utah (Wallace A. Lee, Garfield Co. Atty., Panguitch, Utah, Barbara G. Hjelle of Thompson, Hughes & Reber, St. George, Utah, with him on the brief), for defendant-appellee Garfield County.
Before TACHA and SETH, Circuit Judges, and BRATTON, District Judge *.
In this appeal we revisit the Burr Trail in southern Utah for a second look at Garfield County's proposal to widen the western twenty-eight miles of the road. In Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), we determined that there was major federal action and ordered the district court to remand the case to the Bureau of Land Management (BLM) for an environmental assessment (EA) to be prepared followed either by a finding of no significant impact (FONSI) or an environmental impact statement (EIS). The action on this remand was to be taken within very narrow limits described in the mandate. On remand, BLM conducted an EA and issued a FONSI. BLM's action so far as it was relevant to this lawsuit was affirmed by the Interior Board of Land Appeals (IBLA). Based on the IBLA's decision, the district court lifted its injunction against construction on areas bordering the Wilderness Study Areas (WSAs) on the western twenty-eight miles of the road. 737 F.Supp. 629.
A brief review of the facts pertinent to our earlier decision is necessary. The Burr Trail connects the town of Boulder, Utah with the Bullfrog Basin Marina at Lake Powell. The trail travels sixty-six miles through rugged terrain, crossing or bordering unreserved federal lands, state lands, two WSAs, the Capitol Reef National Recreation Area and the Glen Canyon National Recreation Area. Garfield County has used and maintained the Burr Trail since the early 1940's. This use created a right-of-way under R.S. 2477. (43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), § 706(a), Pub.L. No. 94-579, 90 Stat. 2793).
In the earlier appeal, the Sierra Club and other environmental groups (collectively referred to as Sierra Club) had brought suit over Garfield County's contract with Harper Excavating Company (the Harper contract) to improve the western twenty-eight miles of the Burr Trail (segment 1) from an essentially one-lane dirt road to a two-lane gravel road. Segment 1 runs from the town of Boulder to the border of the Capitol Reef National Park. Sierra Club there claimed the proposed action exceeded the County's right-of-way and violated the National Environmental Policy Act (NEPA). 42 U.S.C. §§ 4321 et seq.
The district court initially held that the scope of Garfield County's R.S. 2477 right-of-way was sufficient to accommodate the proposed changes. Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987). The district court also found that BLM's involvement in the project constituted major federal action triggering NEPA, but that NEPA's requirements were sufficiently satisfied by facts developed during the trial before the district court.
We affirmed the district court's holding regarding the scope of the R.S. 2477 right-of-way. We held that the district court was correct in deferring to Utah state law to determine the existence and scope of the right-of-way and in applying Utah's "reasonable and necessary" use standard to the Harper contract. Sierra Club v. Hodel, 848 F.2d at 1083. However, we reversed as to the trial court's determination that NEPA's procedural requirements had been satisfied by the proceeding to that point.
As mentioned, the case was remanded under a narrow and closely defined mandate holding that BLM's duty under FLPMA § 603(c) was to prevent unnecessary degradation of the WSAs along the portion of the Burr Trail at issue. We held:
The required action by the Department of Interior on remand was thus specifically limited to the consideration of the impact (unnecessary degradation) of the road changes on the WSAs. The geographical area was so limited, and the consideration was necessarily to be within the authority of the County under its right-of-way. The only actual work under consideration by the County was the Harper contract. As stated, the scope of BLM's considerations which would be necessary in this case were so described and required.
Whatever other considerations were made by the BLM were of no consequence to this litigation. It was thus through the mandate to the district court that BLM was required to proceed under NEPA, was required to prepare an EA, and was required to make its examination within the rulings as to the scope of the County's right-of-way. This was basically a fact question. The BLM decided that the matter could be decided in the EA and did so.
We also directed on remand that the district court review the impact of the proposed road improvements on areas not bordering the WSAs and lift the injunction on these areas if it was determined that the road improvement project would not affect the WSAs. On December 2, 1988 the district court dissolved the injunction on areas of the road not affecting the WSAs. With the lifting of the injunction the parties also stipulated that work could begin on the state section traversed by the road.
BLM commenced its review under the mandate with a Draft Environmental Assessment. This was followed by a comment and public hearing period. BLM's Cedar City District Office issued 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 # UT-040-89-6."
Both the Draft EA and the Final EA considered environmental impacts beyond those which might arise through implementation of the Harper contract and the remand. BLM reasoned that given the County's long-range plans "it would be in the best interests of BLM to evaluate all anticipated road improvements." Affidavit of David Everett at 3. This policy decision to go beyond the remand resulted in BLM asking Garfield County to submit an additional "proposal" covering other segments of the road.
BLM's conclusions reflect its expanded scope of review. The agency found that paving the Harper segment and another segment in areas bordering the WSAs would be better than gravel and also suggested using colored pavement on the sections of road adjacent to the WSAs as a mitigating measure. "It is our finding that a proposed road construction project to pave segments 1 & 3 adjacent to all WSAs/ISAs and gravel or pave the remaining public lands administered by BLM would not create any significant undue or unnecessary impacts to the wilderness study units except as noted above." EA at 7.
BLM's decision to expand the scope of the EA resulted in two FONSIs--one for segment 1 (the Harper contract) and one for segment 3. The Harper contract FONSI found that "[t]he 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 ISA." The FONSI further stated that the Final EA reconfirmed the finding in the 1985 EA that there were no significant impacts for the total 66-mile road improvement project.
Sierra Club appealed to the IBLA. BLM and Garfield County sought to bifurcate the appeal before the Board arguing that the initial Harper contract proposal should be reviewed separately from BLM's action related to the remainder of the road. The Board rejected this argument. However, the IBLA stated that "[a]lthough we have not bifurcated these appeals for purposes of review, it is clear that the parties and this Board are bound by the ruling of the court with respect to those aspects of the BLM decisions which implement the judicial remand." 111 IBLA 122, 130. The Board then conducted a two-part review of BLM's action, basically accepting BLM's conclusion as to the Harper contract and setting aside and remanding the remainder of the decision which was outside the remand.
The Sierra Club in its appeal to the IBLA also asserted for the first time that sources outside the Department of...
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