Western Watersheds v. Bureau of Land Management, No. 03:06-CV-00527-LRH-RAM.

• Decision Date: 18 April 2008
• Docket Number: No. 03:06-CV-00527-LRH-RAM.
• Citation: 552 F.Supp.2d 1113
• Parties: WESTERN WATERSHEDS PROJECT, Plaintiff, v. BUREAU OF LAND MANAGEMENT and U.S. Fish and Wildlife Service, Defendants.
• Court: U.S. District Court — District of Nevada

552 F.Supp.2d 1113

WESTERN WATERSHEDS PROJECT, Plaintiff, v. BUREAU OF LAND MANAGEMENT and U.S. Fish and Wildlife Service, Defendants.

No. 03:06-CV-00527-LRH-RAM.

United States District Court, D. Nevada.

April 18, 2008.

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Judith M Brawer, Boise, ID, Leah R Wigren, Reno, NV, for Plaintiff.

John S. Most, U.S. Department of Justice, ENRD, Washington, DC, for Defendants.

ORDER

LARRY R. HICKS, District Judge.

Presently before the court are crossmotions for summary judgment. First, a Motion for Partial Summary Judgment (# 44) was filed by plaintiff, Western Watersheds Project ("WWP"). Defendants, Bureau of Land Management and U.S. Fish and Wildlife Service ("Defendants") filed an opposition (# 56), and WWP replied (# 54).

Defendants have also filed a Cross-Motion for Summary Judgment (# 55). WWP has filed an opposition (# 53), and Defendants replied (# 61).

I. Factual Background

This action challenges the decision of the Bureau of Land Management ("BLM") to amend two resource management plans for public lands located in Elko County, Nevada on the grounds that the agency violated the National Environmental Policy Act and the Endangered Species Act. WWP is an Idaho non-profit membership organization dedicated to protecting and conserving the public lands and natural resources of the American West.

The Elko District consists of 7.5 million acres of land administered by BLM. (Admin. Record at 578.) BLM's management of public lands in the district is governed by two resource management plans ("RMPs"). (Admin. Record at 3096-3149, 3938-3965.) The Elko RMP covers the western portion of the district, and the Wells RMP covers the eastern portion of the district. Id. at 9.

In 1995, the Federal Wildland Fire Management Policy was developed as the first single comprehensive federal fire policy for the Departments of the Interior and Agriculture. Id. at 522, 1512. The Elko Field Office is one of the higher fire load Field Offices within BLM. Id. at 4708. A new Fire Management Plan ("FMP") was developed in 1998 to attempt to return fire to its natural role in the ecosystem. Id. at 4705.

In October, 2003, BLM determined that the RMPs and current 1998 Fire Management Policy did not provide adequate direction for fire management. Id. at 522. As a result, BLM amended the RMPs. Id. The amendment was intended to provide direction and continuity in establishing operational procedures to guide all fire management activities. Id. An environmental assessment ("EA") was completed in October, 2003. (Admin. Record at 516.)

The alternatives analyzed in the EA consisted of four components: general fire management, fire prevention, fire suppression, and fire rehabilitation. Id. at 528. The EA notes that the components were guided by existing documents. Id.

BLM initiated public involvement with the publication of a Notice and Intent in the Federal Register on April 24, 2001. Id. at 16. The Elko Field Office also mailed newsletters to 730 individuals, agencies and groups, issued a news release and ran radio announcements to notify the public of scoping meetings. Id. The scoping meetings were held September 25, 26, 26 and 28, 2001. Id. BLM also used newsletters and media releases to notify the public of a second round of meetings that occurred on May 20, 21, 22, 23, 2002. Id.

BLM circulated a draft FMA/EA for public review in September, 2002. Id. at 17. The comments received were used to prepare a Proposed FMA/EA, which was released in October, 2003. (Admin. Record at 17.) BLM issued a finding of no significant impact on October 14, 2003. Id. at 513-15. WWP and Goods from the Woods, a company that works with pine nuts harvested from BLM lands in Nevada, protested the Fire Amendment. Id. at 8410-27. BLM dismissed both protests in their entirety. Id. at 18. BLM subsequently issued the Fire Management Amendment and Decision Record on September 29, 2004. Id. at 1-74.

II. Legal Standard

A. Summary Judgment

Summary judgment is appropriate only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hasp., 236 F.3d 1148, 1154 (9th Cir.2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal.2001). For those issues where the moving party will not have the burden of proof at trial, the movant must point out to the court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 411 U.S. at 325,106 S.Ct. 2548.

In order to successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. UJ, 208 F.3d 736 (9th Cir.2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248,106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252, 106 S.Ct. 2505.

B. The APA

Plaintiffs filed this action, in part, pursuant to the judicial review provisions of the Administrative Procedures Act ("APA"). The APA provides that "[t]he reviewing 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." 5 U.S.C. § 706(2). "An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to governing law." The Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005) (citations omitted). The standard requires the court to give deference to an agency's findings. Akiak Native Cmty. v. U.S. Postal Service, 213 F.3d 1140, 1146 (9th Cir.2000) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The party challenging agency action bears the burden of proof. San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26, 37 (D.C.Cir.1986) (citing Nat'l Ass'n of Regulatory Utility Comm'rs v. F.C.C., 746 F.2d 1492, 1502 (D.C.Cir.1984)).

III. Discussion

WWP alleges several violations of the National Environmental Policy Act ("NEPA") and seeks summary judgment on each. Specifically, WWP alleges BLM's decision to prepare an EA and Finding of No Significant Impact ("FONSI") was predetermined. WWP further argues the EA does not analyze the affected environment, the direct, indirect and cumulative impacts of the fire management, and that it inappropriately tiers to plans and other documents that are old, have never been updated and/or never underwent NEPA analysis and review. Finally, WWP argues an Environmental Impact Statement ("EIS") should have been prepared. Defendants also seeks summary judgment on all the NEPA causes of action. In addition, Defendants seek summary judgment on claims for relief brought pursuant to the Endangered Species Act. The court will address the alleged violations and the parties' arguments below.

A. Standing

Defendants first argue WWP lacks standing to bring this action. Specifically, Defendants argue the Complaint fails to point to any injury to WWP's members and fails to identify an injury to a concrete interest of the organization. WWP contends that one of its members and employees, Kathleen Fite, has suffered an injury to a concrete interest. WWP further argues the interest it seeks to protect is germane to its purpose.

The Supreme Court has held that Article III requires a plaintiff to show the following in order to satisfy standing:

(1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife,...