Home » Case Summaries » 2016 » Center for Biological Diversity v. Bureau of Land Management, 833 F.3d 1136 (9th Cir. 2016)

 
 

Center for Biological Diversity v. Bureau of Land Management, 833 F.3d 1136 (9th Cir. 2016)

 

 

The Center for Biological Diversity (the Center) and other environmental organizations[1] sued the Bureau of Land Management (BLM) and the United States Fish and Wildlife Service (FWS)[2] in the United States District Court for the Northern District of California for alleged violations of the Endangered Species Act[3] (ESA), the Clean Air Act[4] (CAA), the Federal Land Policy and Management Act[5] (FLPMA), the National Environmental Policy Act[6] (NEPA), and the Administrative Procedure Act[7] (APA). The district court granted summary judgment in favor of BLM on all but one issue.[8] On appeal to the Ninth Circuit, the Center challenged the grant of summary judgment against two of its original allegations. Specifically, the Center alleged that 1) the 2012 Biological Opinion (BiOp) issued by FWS was deficient because it did not include an Incidental Take Statement (ITS) for threatened plants; and 2) BLM failed to properly evaluate the impacts of its 2013 Recreation Area Management Plan (RAMP) on air quality. The Ninth Circuit affirmed summary judgment in favor of BLM.

The Imperial Sand Dunes Planning Area is a 227,000-acre tract of desert in Imperial County, California, largely managed by BLM. A 138,000-acre portion of that land is designated as the Imperial Sand Dunes Special Recreation Management Area (the Dunes) and is set aside for the protection of plants and wildlife, as well as for outdoor recreation.

In 2013, BLM adopted a new RAMP under which much of the Dunes would be open to off-road vehicle use, while less than a third of the Dunes would remain closed to off-road vehicles. BLM prepared an Environmental Impact Statement (EIS) to assess the impacts of the 2013 RAMP and, pursuant to section 7 of the ESA, consulted with FWS.[9] Consultation is necessary to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.”[10] Such consultation results in a Biological Opinion (BiOp), “summarizing the relevant findings and determining whether the proposed action is likely to jeopardize the continued existence of the species.”[11] FWS’s 2012 BiOp found that the 2013 RAMP “could result in direct death or injury of Peirson’s milk-vetch,” a threatened species of flowering plant listed under the ESA, but FWS ultimately concluded that the RAMP was not likely to jeopardize the plant’s continued existence. Based on this determination, FWS did not prepare an Incidental Take Statement (ITS) for the milkvetch, interpreting the statute to only require an ITS for threatened animal species and not threatened plants.

BLM’s RAMP decision to open much of the Dunes to off-road vehicles also relied on an air quality analysis. The analysis concluded that emissions resulting from visitors to the Dunes would not be increased impermissibly by opening it to off-road vehicle use.

The Center mounted a challenge, arguing that 1) the plain language of the ESA required the FWS BiOps to contain ITSs for threatened plants like the milkvetch, rather than for just fish and wildlife; and 2) BLM failed to comply with the CAA, FLPMA, NEPA, and the APA because its emissions analysis evaluating the impacts of the 2013 RAMP on air quality was inadequate and thus arbitrary and capricious. The Ninth Circuit reviewed the first claim under the two-step framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.[12] The court reviewed the Center’s second set of claims under the APA’s highly deferential “arbitrary and capricious” standard.[13]

The Ninth Circuit first held that the text of the ESA clearly does not require BiOps to contain ITSs for threatened plants. Since the statute is unambiguous in that respect, the court ended its Chevron analysis at the first step and did not address whether FWS reasonably interpreted the statutory language. Pursuant to congressional amendments to the ESA in 1982, FWS “must issue an [ITS] if the [BiOp] concludes no jeopardy to listed species or adverse modification of critical habitat will result from the proposed action, but the action is likely to result in incidental takings.”[14] Section 9 of the ESA prohibits the taking of “fish or wildlife” only.[15] And while section 9 contains protections for plants, it does not use the term “take.”[16] The Center argued that 1) under section 9, the requisite consultation is necessary for endangered or threatened “species,” thus necessitating an ITS for all species, both plant and animal; and 2) the ESA defines “take” in a manner that does not exclude plants. The Ninth Circuit rejected both arguments, dismissing the first argument by determining that section 9 of the ESA must be read in the context of the overall statutory scheme rather than in isolation. The court dismissed the second argument after finding that prior to the 1982 amendments, which added the incidental take provisions, section 9 was the only provision using the term “take,” and at the time, it was unquestionably limited to animals.

As to the Center’s challenge of the air quality analysis, the Ninth Circuit held that BLM’s decision to open additional land to off-road vehicles was not arbitrary and capricious under the APA,[17] and did not violate the CAA, FLPMA, or NEPA. Under the CAA, the United States Environmental Protection Agency (EPA) is authorized to establish “national ambient air quality standards” (NAAQS) for certain listed pollutants.[18] States are divided into “air quality control regions.”[19] The governor of the state must designate a region as in “nonattainment” if it fails to meet the NAAQS.[20] EPA must also conduct a full “conformity determination” if the total emissions of any listed pollutant in a nonattainment area “caused by a federal action would equal or exceed” listed de minimis quantities.[21] Additionally, in developing and revising land use plans, FLPMA requires the Secretary of the Interior to ensure compliance with applicable state and federal pollution control laws.[22] Finally, before undertaking a proposed action, NEPA requires of a federal agency a “full and fair discussion of significant environmental impacts.”[23]

The Dunes are part of the Imperial County Air Pollution Control District, which is classified as a “moderate” nonattainment area for ozone and a “serious” nonattainment area for “fugitive particulate” (PM-10). BLM’s Final EIS made underlying assumptions regarding emissions of ozone and PM-10 that drastically differed from the assumptions relied upon in its Draft EIS. Because BLM’s changes brought the projected emissions below listed de minimis quantities, EPA was not required to, and thus did not, conduct a full conformity determination.

The Center first argued that the assumptions supporting BLM’s ultimate conclusion—that implementation of the 2013 RAMP would not increase ozone emissions—was arbitrary and capricious. Specifically, the Center argued that opening additional areas of the Dunes to off-road vehicle use will necessarily attract more visitors, while BLM’s Final EIS assumed no change in the number of visitors. BLM argued that the data did not support the conclusion that the number of visitors to the Dunes will change.

The Center also challenged BLM’s assumptions regarding how visitors spend their time at the Dunes. The Ninth Circuit sided with BLM and held that the assumptions used in the Final EIS, though significantly different from those used in its Draft EIS, were supported by substantial evidence, and thus that BLM deserved deference. The court also found that BLM’s revised assumptions regarding how visitors spend their time were irrelevant because overall pollution will not change absent an increase in visitation. The Ninth Circuit concluded that the Center failed to demonstrate that BLM’s assumptions, relied upon in its emissions analysis, were arbitrary and capricious.

The Center next argued that BLM’s procedure for evaluating the characteristics of the soil when calculating PM-10 emissions was impermissible because it did not conform to the Imperial County’s Implementation Plan for achieving compliance with the relevant NAAQS. BLM countered that the county’s method for soil sampling was designed for a specific purpose that differed from BLM’s purpose for soil sampling and did not implicate PM-10 emissions. Based on that difference, the court sided with BLM and held that BLM was not required to comply with the county rule prescribing a specific method for analyzing soil characteristics. The Ninth Circuit found BLM’s soil analysis permissible because the method chosen did not conflict with the county’s implementation plan.

The Center finally argued that BLM impermissibly disregarded concerns raised by EPA and the Imperial County Air Pollution Control District regarding potential impacts to the environment. The court rejected this argument for three reasons. First, the ultimate responsibility for ensuring compliance fell to the agency undertaking the proposed action, in this case BLM.[24] Second, the fact that another agency preferred an alternative approach from the one used was insufficient to deem BLM’s approach unreasonable. Finally, the record indicated that BLM adequately considered and responded to concerns raised by the other agencies as well as by the public. The Ninth Circuit thus held that BLM’s treatment of input from other agencies was not arbitrary or capricious.

Ultimately, the court found that the record showed BLM “considered the relevant factors and articulated a rational connection between the facts found and the choices made.”[25] Therefore, the Center failed to demonstrate that BLM’s emissions analysis was arbitrary and capricious. Because the FWS BiOp was not required to contain an ITS, and because BLM emission analysis was not arbitrary or capricious, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the defendants as to the issues raised on appeal.

 

 

Footnotes    (↵ returns to text)

  1. Plaintiffs included the Sierra Club, Public Employees for Environmental Responsibility, and Desert Survivors.
  2. Defendant-intervenors included Blueribbon Coalition, California Association of 4 Wheel Drive Clubs, San Diego Off Road Coalition, Desert Vipers Motorcycle Club, High Desert Multiple Use Coalition, American Motorcycle Association, Off-Road Business Association, California Off-Road Vehicle Association, and American Sand Association.
  3. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544.
  4. 42 U.S.C. §§ 7401–7671q (2012).
  5. Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701–1787 (2012).
  6. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h.
  7. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
  8. Ctr. for Biological Diversity v. Bureau of Land Mgmt., 35 F. Supp. 3d 1137, 1149, 1155, 1159, 1163 (N.D. Cal. 2014).
  9. ESA, 16 U.S.C. § 1536(a)(2) (2012).
  10. Id.
  11. Ariz. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir. 2001) (citing 16 U.S.C. § 1536(b)).
  12. 467 U.S. 837, 838 (1984).
  13. APA, 5 U.S.C. § 706(2)(A) (2012).
  14. Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) (citing 16 U.S.C. § 1536(b)(4)).
  15. 16 U.S.C. § 1538(a)(1).
  16. Id. § 1538(a)(2).
  17. 5 U.S.C. § 706(2)(A).
  18. CAA, 42 U.S.C. § 7401(b)(1) (2012).
  19. Id. § 7407.
  20. Id.
  21. 40 C.F.R. § 93.153(b) (2016).
  22. FLPMA, 43 U.S.C. § 1712(c)(8) (2012).
  23. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013) (quoting 40 C.F.R. § 1502.1).
  24. See 42 U.S.C. § 7506(c) (stating that a federal agency may not engage in activity that does not conform to the implementation plan).
  25. Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005)).
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