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Oregon Natural Resources Council Action v. United States Bureau of Reclamation

 

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Environmental plaintiffs Oregon Natural Resources Council Action and others (ONRC Action) brought suit against the Bureau of Land Management (BLM), seeking to enjoin the agency from carrying out management activities before it completed its Eastside Ecosystem Management Strategy (Eastside EIS). The Eastside EIS addresses public lands east of the Cascades and is designed to complement President Clinton’s Northwest Forest Plan, which pertains to federal lands west of the Cascades.

ONRC Action filed a petition with request for stay with BLM that requested that the agency refrain from implementing management activities on all land affected by the Eastside EIS. The agency responded with a letter to the environmentalists stating that any objections to management activities had to be made on a site-specific basis. In the interim, BLM would continue projects under existing resource management plans (RMPs). ONRC Action and other environmental groups filed a petition with the district court, which it dismissed for lack of jurisdiction. The lower court held that the plaintiffs’ claims were barred because there had been no “final agency action” as defined by the Administrative Procedure Act (APA).[1] On appeal, ONRC Action raised the following two issues: 1) whether the APA conferred jurisdiction on the court, and 2) whether the National Environmental Policy Act (NEPA)[2] and the Federal Land Policy Management Act (FLPMA)[3] imposed a duty on BLM to refrain from implementing management activities while the Eastside EIS was in preparation. The court answered both queries in the negative.

ONRC Action first argued that BLM’s refusal to halt management activities constituted a final agency action under the APA–even though the scale of the Eastside EIS was regional and not local. In rejecting these arguments, the court initially noted that the case law relied upon by ONRC Action pertained to situations where the lack of agency action occurred after reasoned consideration by the agency. In the present case, BLM had not considered the Eastside EIS and its effects on the ecosystems in question because the document was not final and therefore had no bearing on existing management projects. Furthermore, the letter to ONRC Action was not a final agency action because it merely stated that only site-specific and not general challenges to current projects would be considered. Therefore, the court held that there had not been a final agency action upon which to base an APA claim.

Additionally, the court noted in dicta that the fact that the Eastside EIS would affect ecosystems on a regional rather than local basis did not mean that there had been a final agency action for purposes of the APA. In so reasoning, the court relied on Ohio Forestry Ass’n v. Sierra Club,[4] which questions a plaintiff’s ability to bring a cause of action for regional projects without directly challenging site-specific actions. The Ninth Circuit did not examine that holding in the present case because BLM had not adopted the Eastside EIS, so no official regional plan yet existed to be challenged.

ONRC Action then argued that NEPA and FLPMA impose duties on BLM to refrain from implementing management activities while the Eastside EIS was in preparation. First, the court looked to whether NEPA imposes such a duty and held that it does not. ONRC Action argued that NEPA imposes a duty on agencies to cease activities “that would significantly impact the environment.”[5] BLM claimed that other NEPA sections in fact qualify that statement, and instead allow management activities to occur if an existing RMP covers the area at issue. ONRC action responded that the Eastside EIS was fundamentally different than other RMPs because it considered the impact of management activities on a regional rather than local basis, and therefore no similar LRP for the area existed.

The court rejected the appellants’ argument and accepted the agency’s explanation that although the Eastside EIS might change the focus of management activities if adopted, it would not eliminate the activities. Furthermore, NEPA imposes no statutory duty that would prevent the findings of the Eastside EIS from being incorporated into the existing RMPs. As such, the court held that the exceptions in NEPA apply to the present case and impose no duty on the agency.

Finally, the court turned to the question of whether FLPMA imposed a duty on the agency to refrain from implementing management activities while the Eastside EIS was in preparation. As with the NEPA obligation question, the court held that FLPMA imposes no duty on the agency. ONRC Action’s argument here was similar to its argument for a NEPA-derived duty, but the group also alleged that there was no existing LRP for the area in question because existing RMPs had not been updated as required by NEPA. Furthermore, ONRC Action argued that the Eastside EIS was a revision of existing RMPs and that FLPMA requires that activities cease while revisions are being made. BLM argued that according to its interpretation, FLPMA imposes no clear statutory duty to refrain from beginning management activities before adoption of the Eastside EIS, nor does it require regular updates of existing RMPs.

The court relied on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.[6] in its analysis of BLM’s contention and held that the agency’s interpretation of FLPMA was reasonable. The court explained that although the FLPMA regulations indicate under what circumstances revision of RMPs could take place, the regulations do not require a scheduled revision. The regulations also did not require BLM to cease management activities while revisions are under way.


[1] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). “Final agency action” is discussed at id. § 704 (1994).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[3] Federal Land Policy and Management Act of 1976, 43 U.S.C §§ 1701-1785 (1994 & Supp. III 1997).

[4] 523 U.S. 726 (1998).

[5] Oregon Natural Resources Council Action v. United States Bureau of Land Management, 150 F.3d at 1138.

[6] 467 U.S. 837 (1984).

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