Western Land Exchange Proj. v. U.S. Bureau of Land, CVN02-0343-DWH(RAM).

• Citation: 315 F.Supp.2d 1068
• Decision Date: 19 March 2004
• Docket Number: No. CVN02-0343-DWH(RAM).,CVN02-0343-DWH(RAM).
• Parties: WESTERN LAND EXCHANGE PROJECT, Committee for Idaho's High Desert, and Center for Biological Diversity, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Nevada

Page 1068

315 F.Supp.2d 1068

WESTERN LAND EXCHANGE PROJECT, Committee for Idaho's High Desert, and Center for Biological Diversity, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.

No. CVN02-0343-DWH(RAM).

United States District Court, D. Nevada.

March 19, 2004.

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Heinrich Egghart, Heinrich Egghart, Attorney At Law, Reno, NV, Christopher Krupp, Western Land Exchange Project, Seattle, WA, for Plaintiffs.

Gregory Addington, U.S. Attorney's Office, Reno, NV, for Defendant.

ORDER

HAGEN, District Judge.

Before the court are cross-motions for summary judgment. Plaintiffs filed a motion for summary judgment (# 20). Defendant opposed and filed a cross-motion for summary judgment (# 22/23). Plaintiffs replied and opposed defendant's cross-motion (# 28/29), and defendant replied (# 31).

I. Factual Background

This case involves a proposal by the Bureau of Land Management ("BLM") to privatize 6,478 acres of desert land located in the extreme southeastern corner of Lincoln County, Nevada, just north of the city of Mesquite. The process leading up to disposal of this land has been lengthy and complex; the court will summarize only the basic facts in this section, and will consider particular factual details as needed throughout this order.

The land at issue here is "undeveloped, open space land" described by BLM as "quiet and relatively undisturbed." (Administrative Record¹ ("AR") 1242.) BLM has managed the lands according to its "multiple-use" policy, under which historic uses have included "wildlife habitat, livestock grazing and casual, dispersed recreation." (AR 1253.) These lands provide "low density" habitat for the desert tortoise, a species protected under the federal Endangered Species Act ("ESA"). (AR 1249.) Four other species listed as either endangered or threatened under the ESA inhabit the waters and the floodplain of the Virgin River, which flows roughly from east to west about three miles south of the land area. (See AR 1250-1251.) Three "north to south trending washes," Town Wash, Abbott Wash, and Pulsipher Wash, drain southward across the project area into the Virgin River. (AR 1246.) On the other side of the Virgin River, about two miles south of the Lincoln County line, lies the rapidly expanding municipality of Mesquite. Over the past 20 years the population of Mesquite has grown from less than 1,000 to more than 15,000, a trend expected to continue. (See AR 1258.)

In June 1999, BLM released a Final Environmental Impact Statement (EIS) for an amendment to its Caliente Management Framework Plan addressing management of desert tortoise habitat. (AR 1401-1917.) BLM approved the amendment in September, 2000. In its record of decision, BLM identified certain areas of Lincoln County as Areas of Critical Environmental Concern ("ACECs") for desert tortoise conservation, and other areas as suitable for privatization (or "disposal"). (See generally AR 1918-2010.) The lands at issue here were among those identified for disposal.

On October 13, 2000, Congress adopted the Lincoln County Land Act of 2000 ("LCLA"). Pub.L. 106-298, 114 Stat. 1046 (Oct. 13, 2000). Congress made various findings in LCLA concerning the high amount of Lincoln County land in federal ownership, the need for land onto which the growing city of Mesquite may expand, and the desire of local governments for an enhanced tax base and improved infrastructure resulting from residential and commercial development. See LCLA § 2(a). To this end, LCLA directed BLM to dispose of 4,817 acres of land within one year of the act's passage and an additional 8,683 acres of land within five years of enactment. LCLA § 4(b)(1). BLM was to do so in accordance with the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and "other applicable law," by way of a "competitive bidding process, at a minimum, for fair market value." LCLA § 4(a)(1). LCLA also required BLM to ensure that qualified bidders would comply with local zoning ordinances and master plans. LCLA § 4(d). A portion of the proceeds from the land sale were to be directed to the State of Nevada and Lincoln County for education funding and "support of schools," but the majority of the money was to be deposited in a "special account" administered by BLM. LCLA § 5(a). The act gave the Secretary of Interior discretion to use a portion of those funds for "development of a multispecies habitat conservation plan in the County" and for "reimbursement of costs incurred [by BLM], including the costs of ... compliance with the National Environmental Policy Act." LCLA § 5(b)(1)(B), (C).

BLM began a series of "consultation and coordination meetings" with Lincoln County and City of Mesquite officials in November, 2000. BLM also initiated consultation with the United States Fish & Wildlife Service ("FWS") regarding the potential effects of the land disposal on endangered species. After several exchanges of information (see, e.g., AR 329-330), FWS issued a biological opinion finding that the project would not jeopardize the existence of any listed species provided that certain "reasonable and prudent measures" were taken in mitigation. (See generally AR 425-482.) Among those measures was a recommendation that BLM require bidders to sign a Development Agreement ("DA") specifying that the lands would be covered under a Lincoln County Multiple Species Habitat Conservation Plan² ("LCMSHCP") designed to ensure that any impacts on the desert tortoise would be mitigated. (AR 463-464.) BLM also would be required to participate in developing the LCMSHCP. (AR 464.) Another measure required BLM to assist in formulating a "Hydrologic Monitoring and Mitigation Plan" ("HMMP") intended to detect whether additional development of groundwater resources to support residential and commercial expansion on the LCLA lands was having any adverse effect on surface flows in the Virgin River. (AR 464-466.) Neither of these plans existed at the time the FWS issued its biological opinion, although BLM had entered into a memorandum of agreement with other parties expressing an intent to develop the LCMSHCP and setting forth various goals and timelines. (See AR 310-328.)

BLM circulated a preliminary Environmental Assessment ("EA") for Phase I of disposal of the LCLA lands in August, 2001. (AR 1086-1219.) After eliciting public comment, BLM released its final EA (AR 1221-1362) and its Decision Record/Finding of No Significant Impact ("DR/FONSI") (AR 664-666) in September, 2001. For Phase I of the LCLA disposal, BLM proposed to sell three parcels at auction: Parcel A, consisting of 4,357 acres; Parcel B, at 2,009 acres; and Parcel C, at only 112 acres.³ (AR 1234.) These parcels were scheduled to be offered at auction on October 12, 2001. (AR 682-683.)

On October 9, 2001, several organizations and individuals, including the plaintiffs in this action, filed appeals with the Interior Board of Land Appeals ("IBLA") challenging the adequacy of the EA and BLM's finding of no significant impact. (See, e.g., AR 747-783.) The auction went ahead as planned on October 12, although bidders were informed (and required to sign a notice acknowledging) that the appeals "could affect the outcome of the sale." (AR 806.) According to a newspaper article included in the administrative record,⁴ BLM received no bids on Parcels A or B, but did receive a bid on Parcel C. (See AR 813-813-814.) On January 18, 2002, the IBLA denied plaintiffs' request for a stay of BLM's action pending resolution of their appeals. W. Land Exch. Project et al., No.2002-7 at *6 (I.B.L.A. Jan. 18, 2002). Less than a month later, the IBLA dismissed the appeals of the Western Land Exchange Project ("WLXP") and Center for Biological Diversity ("CBD") for lack of standing, but allowed the Committee for Idaho's High Desert ("CIHD") to go forward with the merits of its appeal. W. Land Exch. Project et al., No.2002-7 at *2 (I.B.L.A. Feb. 14, 2002). That appeal is still pending.

Plaintiffs filed this action on June 26, 2002, alleging four counts: 1) failure to prepare an environmental impact statement (EIS); 2) failure to disclose and analyze environmental impacts adequately; 3) failure to analyze reasonable alternatives; and 4) failure to address mitigation measures adequately; all in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321-4335 and 40 C.F.R. Part 1500, and the Administrative Procedure Act (APA), 5 U.S.C. § 706. (Compl.(# 2) at ¶¶ 37-58.) They seek a declaratory judgment that BLM has violated NEPA and the APA, an injunction barring BLM from proceeding with the action until it has complied with the requirements of NEPA, and reasonable costs including attorneys' fees. (Id. at Part VI A.-D.)

II. Analvsis

A. Summary Judgment Standard

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir.1998). If the parties file cross-motions for summary judgment, the court must consider each party's motion separately and determine whether that party is entitled to a judgment under Rule 56. In making these determinations, the court must evaluate the evidence offered in support of each cross-motion. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir.2001). NEPA cases, which...