Wilderness Soc'y v. United States Bureau of Land Mgmt.

• Citation: 822 F.Supp.2d 933
• Decision Date: 30 September 2011
• Docket Number: No. 09–CV–8010–PCT–PGR.,09–CV–8010–PCT–PGR.
• Parties: The WILDERNESS SOCIETY, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

822 F.Supp.2d 933

The WILDERNESS SOCIETY, et al., Plaintiffs,

v.UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants.

No. 09–CV–8010–PCT–PGR.

United States District Court, D. Arizona.

Sept. 30, 2011.

McCrystie J. Adams, James S. Angell, Michael A. Hiatt, Robin L. Cooley, Earthjustice Legal Defense Fund, Denver, CO, for Plaintiffs.

Luther Langdon Hajek, US Dept. of Justice ENRD, Denver, CO, Rachel Kathleen Bowen, US Dept. of Justice, Washington, DC, William C. Solomon, US Attorneys Office, Phoenix, AZ, for Defendants.

ORDER

PAUL G. ROSENBLATT, District Judge.

Before the Court are the parties' motions for summary judgment. (Docs. 51, 63.) Plaintiffs, The Wilderness Society and other environmental groups, challenge Resource Management Plans (“RMPs”) drafted by the Bureau of Land Management (“BLM”) for the Grand Canyon–Parashant and Vermillion Cliffs National Monuments, an area encompassing 1.3 million acres in the Arizona Strip District in northern Arizona.¹

Plaintiffs filed an amended complaint on May 1, 2009. (Doc. 14.) BLM filed its answer on May 15, 2009. (Doc. 18.) Plaintiffs filed their motion for summary judgment on September 15, 2010. (Doc. 51.) BLM filed a cross-motion for summary judgment on December 3, 2010. (Doc. 63.) Oral argument was held September 28, 2011. Based on a review of the record and pleadings, Plaintiffs' motion for summary judgment is denied and BLM's cross-motion for summary judgment is granted.

I. BACKGROUND

The Grand Canyon–Parashant and Vermilion Cliffs National Monuments were established by President Clinton in 2000 pursuant to the Antiquities Act. See Proclamation 7265, Grand Canyon–Parashant, 65 Fed. Reg. 2825 (January 11, 2000); Proclamation 7374, Vermilion Cliffs, 65 Fed. Reg. 69227 (November 9, 2000). In accordance with Federal Land Policy and Management Act (“FLPMA”), BLM engaged in a land use planning process for the purpose of making management decisions regarding the Monument lands under its jurisdiction. BLM issued a Draft Resource Management Plan/Draft Environmental Impact Statement (“DEIS”) for public comment in November 2005. (AR 58946.1.) ² Following the review of comments on the DEIS, BLM prepared a Proposed Resource Management Plan/Final EIS (“FEIS”), which was issued in January 2007. In February 2008, after additional public comment, BLM issued a Record of Decision (“ROD”) and RMPs for each of the Monuments. AR 62315, 62585. The RMPs contain overall direction for the management of the Monuments. AR 62325–27, 62596–97. They also implement BLM's decisions regarding the designation of routes for off-highway vehicle (“OHV”) travel within the Monuments. AR 62327–28, 62597–99.

Plaintiffs allege that BLM violated the Proclamations establishing the Monuments, the FLPMA and related regulations, the National Environmental Policy Act (“NEPA”), and the National Historic Preservation Act (“NHPA”). Specifically, Plaintiffs claim that the RMPs allow vehicle use and livestock grazing that will harm Monument objects and that the BLM's proposed mitigation efforts are inadequate to address those harms. Plaintiffs also contend that BLM's road designation process ignored applicable regulations and failed to apply each of the required minimization criteria, and as a result the RMPs impermissibly favor motorized use. Plaintiffs further assert that BLM failed to perform an adequate inventory of historic properties prior to making travel-management decisions for the Monuments. Finally, Plaintiffs argue that BLM, relying on the so-called “Utah Wilderness Settlement,” failed to consider the alternative of implementing Wilderness-level protections for the Monuments.

BLM counters that it complied with the Proclamations and NEPA by managing the Monuments in a manner that protects management resources, by analyzing mitigation to prevent harm to such resources, and by prohibiting mechanized vehicles from traveling off road. BLM argues that its satisfied FLPMA and NEPA with respect to management of lands with wilderness characteristics by considering a range of alternatives for the protection of such lands and selecting an alternative that maintains wilderness characteristics. Finally, it contends that it complied with NHPA by conducting a reasonable inventory of cultural and historic resources.

II. STATUTORY FRAMEWORKA. FLPMA

BLM's land management authority is governed by the FLPMA, which directs the agency to manage public lands for multiple uses and sustained yield. The FLPMA declares that “public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.” 43 U.S.C. § 1701(a)(8). “In the FLPMA, Congress created a broad statutory framework setting forth the goals and management requirements that it envisioned for public lands.” Gardner v. BLM, 638 F.3d 1217, 1222 (9th Cir.2011).

To meet the directives of the FLPMA, BLM creates an RMP, which “describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 59, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Because the FLPMA “does not prescribe discrete agency action that must be taken” in a particular case, Gardner, 638 F.3d at 1222, the RMP does not include a decision whether to undertake or approve any specific action.

B. NEPA

NEPA requires federal agencies to consider the consequences of their actions on the environment. NEPA's mandate is “essentially procedural.... It is to insure a fully informed and well considered decision.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Its goals are to ensure the agency will have detailed information on significant environmental impacts when it makes its decisions and guarantee that this information will be available to a larger audience. Id. at 349, 109 S.Ct. 1835.

Under NEPA, an environmental impact statement (“EIS”) is required for “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “A properly prepared EIS ensures that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences.” Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987).

When the adequacy of an EIS is challenged in court, the relevant inquiry is whether the EIS takes a “hard look” at all potentially significant environmental effects. “The only role for a court is to insure that the agency has taken a ‘hard look’ at environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.” Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).

A challenge to an EIS evaluation of environmental effects is subject to deferential review, with due consideration given to the agency's expertise. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.1994). A court should apply a “rule of reason” and determine only whether the EIS “contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci, 857 F.2d 505, 508 (9th Cir.1988); see Or. Envtl. Council, 817 F.2d at 492 (explaining that “reviewing court may not ‘fly speck’ and EIS and hold it insufficient on the basis of inconsequential, technical deficiencies.”). A court may not substitute its judgment for that of the agency. See Kleppe, 427 U.S. at 410, 96 S.Ct. 2718.

C. NHPA

The National Historic Preservation Act requires federal agencies to take into account the effect of an undertaking on sites or structures that are included in or eligible for inclusion in the National Register of Historic Places. 16 U.S.C. § 470f. Like NEPA, “NHPA is a ‘stop, look, and listen’ provision that requires each federal agency to consider the effects of its programs.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999). NHPA requires an agency to make a reasonable and good faith effort to identify historic properties, assess the effects of the undertaking, and avoid or mitigate any adverse effects. Id. The agency must confer with the State Historic Preservation Officer (“SHPO”) and seek the approval of the Advisory Council on Historic Preservation.

III. STANDARD OF REVIEW

A motion for summary judgment must be granted when there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Judicial review of final agency actions is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir.1990). The court shall set aside any agency decision that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

The court must determine whether the agency decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). An action is 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...