Tillett v. Bureau of Land Mgmt.
| Decision Date | 27 August 2015 |
| Docket Number | CV 14-73-BLG-SPW |
| Court | U.S. District Court — District of Montana |
| Parties | JERRI JOETTE TILLETT, Plaintiff, v. BUREAU OF LAND MANAGEMENT; INTERIOR BOARD OF LAND APPEALS; and DEPARTMENT OF INTERIOR, Defendants. |
Plaintiff Jerri Tillett brings this action for injunctive relief against the United States Department of Interior, Bureau of Land Management, and Interior Board of Land Appeals (collectively, "BLM"). Tillett challenges BLM's plan to use multi-year prescribed fires on approximately 6,200 acres in the northern part of the Pryor Mountain Wild Horse Range. (Doc. 1-1 at 4-5). These arguments are construed to allege that BLM's authorization of the plan violates the National Environmental Policy Act ("NEPA").1
BLM moves for summary judgment and asks the Court to uphold its Finding of No Significant Impact (FONSI) and dismiss Tillett's Complaint. (Doc. 28). The motion is fully briefed. (Docs. 29, 31, 34). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court finds that oral argument would not significantly aid the decisional process, the Motion shall be decided on the record before this Court without a hearing.
The Pryor Mountain Wild Horse Range ("Horse Range") spreads over 38,000 acres in Montana and Wyoming. In addition to wild horses, the Horse Range is home to a number of different wildlife species, including migratory birds, several bat species, Rocky Mountain bighorn sheep, mule deer, black bears, and mountain lions, as well as various fauna and sensitive plant species.
As part of its management obligations of the Horse Range, BLM evaluated the range and issued a herd management area plan ("HMAP") in 2009, establishing an appropriate management level of horses, and setting out goals and objectives for successful management of resources in the Horse Range to "preserve and maintain a thriving natural ecological balance and multiple use relationships." (Doc. 26 at 818). During its evaluation, BLM found that certain areas of range were overuseddue to grazing and drought. Using this information, BLM issued the 2009 Environmental Assessment for the Pryor Mountain Wild Horse Range Herd Management Plan ("the Plan"). (Id. at 818-0963). The Plan's purpose is to maintain a viable breeding wild horse population that perpetuates the characteristics of the Pryor Mountain horses, maintain the range in good condition, prevent further range deterioration, and improve range sites that are in bad condition. (Id. at 822). Overall, the Plan contemplates a larger wild horse population, development of wildlife waterers, noxious weed treatment, fence reconstruction, wildlife habitat enhancement, and range improvement through fuel reduction, riparian protection, and wildlife habitat enhancement. (Id. at 806).
Relevant to this case, the Plan also documents the need for prescribed fire to bring forest stands in the Horse Range within the natural range of viability for the existing forest types, and to maintain forest health, wildlife and wild horse habitat enhancement. (Id. at 846). Specifically, the Plan contemplates using prescribed fire over the years to (Id. at 900).
Consistent with the Plan, BLM issued the 2014 Pryor Mountain Wild Horse Range Prescribe Fire Environmental Assessment (2014 EA), to which Tillett objects, on March 7, 2014. (Id. at 15, 20). In the 2014 EA, BLM seeks toimplement the prescribed fire portion of the 2009 Plan over approximately 6,200 acres ("prescribed burn area") in the northern portion of the Horse Range. (Id.) BLM determined that buildup of hazardous fuels and poor forest health exposes the areas in and around the Horse Range to wildfire risk because (Id. at 28-29).
From February to July 2013, BLM issued the Notice of Proposed Action to members on the Wilderness interest mailing list, the United States Forest Service, the Crow Tribe, the Northern Cheyenne Tribe, Montana Department of Fish, Wildlife and Parks, and the Montana State Historic Preservation Office. (Id. at 181-247). BLM released a preliminary version of the 2014 EA, FONSI and Decision Record (DR) adopting the Proposed Action and initiated a 30-day public comment period on September 25, 2013. (Id. at 73).
On September 13, 2013, BLM Billings Field Manager James Sparks sent a letter to various interested individuals advising them that the draft EA was available for a 30-day public review and comment period beginning September 23, 2013, and ending October 24, 2013. (Id. at 73-74). Sparks advised the letter recipients that they could find the draft EA on BLM's website. (Id. at 73) Tillettwas listed on the mailing list. (Id. at 126). On October 9, 2013, Tillett acknowledged receipt of Sparks' letter in her letter to BLM acting director, Katherine Kitchell. (Id. at 128). Tillett thanked Kitchell for the notice and submitted her official comments on the 2014 EA. (Id.) She explained her difficulty in obtaining an EA and requested that BLM extend the comment period. (Id.) She also stated that she had been steadfastly opposed to prescribed fires on the Horse Range for over a decade. (Id. at 128-29).
On November 1, 2013, BLM staff and managers met with several individuals representing various groups and interests to answer questions regarding the preliminary EA. (Id. at 128-29) BLM extended the comment period to November 4, 2013. (Id. at 1) Sparks sent out another letter on March 7, 2014, enclosing the final EA/FONSI and DR. (Id. at 1, 68) Tillett was listed on that mailing list as well. (Id.)
On March 7, 2014, BLM issued the Fire EA, FONSI and DR to implement prescribed burning in the northern part of the Horse Range. (Id. at 1-67). Tillett filed her Complaint and Motion for Preliminary Injunction on June 9, 2014, to stay the prescribed fires on the Horse Range. (Doc. 1, 2). Tillett objects to the 2014 EA on several grounds. (Doc. 1-1 at 4-5).
NEPA is a procedural statute enacted to protect the environment by requiring government agencies to meet certain procedural safeguards before taking action affecting the environment. See Cal. Ex. rel. Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1012 (9th Cir. 2009). In other words, NEPA "force[s] agencies to publicly consider the environmental impacts of their actions before going forward." Idaho Sporting Cong, Inc. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir. 2002). NEPA requires an agency proposing a major federal action significantly impacting the environment to prepare an environmental impact statement ("EIS") to analyze potential impacts and alternatives. 42 U.S.C. § 4332(C). To determine whether an EIS is required, the agency typically first prepares an EA. 40 C.F.R. § 1501.4(b). An EA is a "concise public document" that "include[s] brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. §§ 1508.9(a), (b); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005).
Because NEPA does not contain a separate provision for judicial review, courts review an agency's compliance with NEPA under the AdministrativeProcedure Act ("APA"), 5 U.S.C. §§ 701-706. 5 U.S.C. § 706(2)(A). Judicial review of administrative agency decisions under the APA is based on the administrative record compiled by the agency - not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
In reviewing an agency action under the APA, the Court must determine whether the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, 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." Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983). Review under this standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. Id. Review is highly deferential to the agency's expertise, andpresumes the agency action to be valid. Arkansas v. Oklahoma, 503 U.S. 91, 112 (1992). The agency, however, must articulate a rational connection between the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Id.; see also Midwater Trawlers Co-op v. Dep't of Commerce, 282 F.3d 710, 716 (9th Cir. 2002). Thus, the court must look at whether the decision considered all of the relevant factors or...
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