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Oregon Natural Desert Association v. Bureau of Land Management

 

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Oregon Natural Desert Association and two other environmental groups[1] (collectively ONDA) appealed a grant of summary judgment by the District Court for the District of Oregon in favor of the defendant, the Bureau of Land Management (BLM) regarding the BLM’s Southeast Oregon Resource Management Plan (Plan) and corresponding environmental impact statement (EIS) for a large portion of southeastern Oregon. The Ninth Circuit reversed and remanded, holding that BLM violated the National Environmental Policy Act (NEPA)[2] by failing to address concerns about wilderness characteristics and failing to consider alternatives that would have closed more acreage to off-road vehicles (ORVs). The Ninth Circuit set aside BLM’s record of decision (ROD) approving the EIS and the corresponding land use plan and remanded the case with instructions to BLM to remedy the NEPA deficiencies.

BLM began developing a comprehensive management plan for approximately 4.5 million acres of land in southeastern Oregon in 1995. The area is characterized by a semi-arid climate and rugged, scenic landscape that supports sagebrush plains and juniper woodlands. Economic indicators place the region’s economy, largely dependent on farming and ranching, far below statewide averages. Because federally owned land comprises a large portion of the area, BLM management of its share has a significant effect on the region’s natural resources and economy.

BLM land management authority is defined by the Federal Land Policy and Management Act (FLPMA).[3] FLPMA requires BLM to develop, maintain, and revise land-use plans using a systematic interdisciplinary management approach that gives priority to the designation and protection of areas of critical environmental concern and weighs short- and long-term benefits to the public.[4] An extensive public comment process is integral to the formulation of BLM plans.[5] Any party that has participated in the planning process and may be adversely affected may protest the approval of a BLM land-use plan.[6]

FLPMA interacts with the Wilderness Act[7] to provide BLM with broad authority to manage areas with wilderness characteristics on public lands. Specifically, FLPMA provides BLM with a process to protect areas with wilderness characteristics from impairment by designating them as Wilderness Study Areas (WSA) and recommending them for congressional protection.[8] FLPMA also authorizes BLM to account for wilderness characteristics as part of its inventory of public lands, their resources, and other values.[9]

The approval of a resource management plan by a ROD implicates NEPA[10] and requires the preparation of an EIS.[11] In contrast to the substantive rights and obligations created by land management statutes such as FLPMA, NEPA puts in place procedures to ensure that decision makers consider information about environmental impacts and disseminate such findings for public participation. An EIS guides decision making by requiring the agency to consider all significant aspects of environmental impacts[12] and list reasonable alternatives.[13]

In the case at bar, after three years of planning, BLM released a draft management plan (Plan) and corresponding draft EIS as one document created to guide management of southeastern Oregon for the next twenty years. ONDA’s comments on the draft EIS criticized BLM for failing to inventory lands that had developed wilderness characteristics since BLM’s prior survey of those values in 1980.[14] ONDA also contended that BLM did not consider a reasonable range of alternatives, arguing that the agency failed to account for the cumulative impacts of grazing and the excessive quantity of land left open to ORV use.

After reviewing comments on the draft EIS, BLM released its final version of the Plan and EIS in 2001. In response to ONDA’s comments, BLM noted that it had already taken a wilderness inventory pursuant to 43 U.S.C. § 1782(b)[15] and expressly disclaimed an obligation to analyze the effects of its Plan on wilderness values or consider management options for areas with those characteristics.[16] BLM considered conferring additional protections from development and disruptive uses to several hundred thousand acres of land in areas of critical environmental concern,[17] but such designations were limited and did not imply the presence of wilderness characteristics, much less protect them.

BLM selected the Plan from among seven draft alternatives. With regard to ORV use, the alternatives varied almost entirely by the amount of land allocated between open and limited-use categories. [18] Most notably, BLM never considered closing a significant amount of land to ORVs, nor did it consider an option geared toward protecting wilderness values from ORV use. The most protective limited-use category restricted ORVs to existing routes in WSAs and other sensitive areas and imposed seasonal closures to protect wildlife, but these limitations would still have allowed ORVs to travel up to 150 feet off an existing road in certain circumstances.[19] Every alternative exposed more land to some type of ORV use than was previously permitted. For example, the Plan’s selected alternative opened approximately 20,000 acres of previously closed land to some ORV use.[20] With regard to grazing, only one alternative deemed valid by BLM contemplated substantial restrictions, and BLM did not consider limiting grazing in areas with wilderness characteristics outside of WSAs.

ONDA filed a protest with BLM in December 2001, sounding the same concerns it raised in its comments to the draft EIS. ONDA alleged that BLM’s failure to provide information about and analyze wilderness values “violated NEPA’s requirement that the [BLM] engage in fully-informed decisionmaking.”[21] ONDA also challenged the limited alternatives for grazing management, emphasizing that BLM did not consider cumulative impacts. Finally, ONDA raised concerns that none of the Plan’s alternatives closed more than 0.8% of the planning area to ORV use. BLM denied the protest in September 2002, explaining that its wilderness review duty under the Wilderness Act was a “one-time responsibility” that was fulfilled by its 1991 report.[22] With regard to grazing, BLM responded that the alternatives were adequate because each had different effects over the short- and long-term. With regard to ORV use, BLM stated that its alternatives were adequate because the “limited” designation provided comparable protection to the “closed” designation. BLM adopted the Plan in an April 2003 ROD.

In response, ONDA filed suit against BLM in July 2003. In the meantime, ONDA undertook a survey of the Plan area to document changes that had occurred since 1980. ONDA submitted the results to BLM in February 2004 and introduced it as evidence in the pending suit. The district court expanded its review beyond the April 2003 ROD by admitting the survey because of precedent permitting new evidence “where the plaintiff alleges that an EIS has . . . swept stubborn problems or serious criticism under the rug.”[23] The survey demonstrated how the planning area, especially portions with unmaintained roads, had changed over time, with some reductions in human impacts. Despite the survey’s conclusion that the planning area had changed significantly and the existence of specific data showing more than 1.3 million acres of land outside of WSAs that display wilderness characteristics,[24] BLM did not modify the Plan or take new action.[25]

In its suit, ONDA alleged violations of NEPA, FLPMA, and the Taylor Grazing Act.[26] Both parties moved for summary judgment, and the district court, adopting the magistrate judge’s findings and recommendations, awarded summary judgment to BLM. ONDA timely appealed, and the Ninth Circuit reviewed the district court’s ruling de novo.[27] The Ninth Circuit reviewed BLM’s Plan and EIS under the Administrative Procedure Act (APA)[28] “arbitrary and capricious” standard. Although ONDA also appealed the district court’s rulings on its FLPMA and Taylor Grazing Act claims, the Ninth Circuit limited its opinion to ONDA’s NEPA claims.

The Ninth Circuit began its analysis of whether BLM violated NEPA by failing to inventory and discuss wilderness characteristics in the EIS. NEPA applies broadly to a variety of federal actions that impact the environment and does not contain requirements about substantive elements such as wilderness characteristics. These requirements are derived from the substantive statute compelling the proposed action. In this case, approval of the resource management plan constitutes a federal action and is compelled by FLPMA. ONDA argued that BLM, by declining to analyze wilderness characteristics on non-WSA lands, failed to adequately discuss the Plan’s impacts and alternatives despite ONDA’s comments. BLM responded that wilderness characteristics are only relevant to a one-time duty to survey wilderness areas under 43 U.S.C. § 1782. BLM’s argument was consistent with its position in Utah v. Norton,[29] where it agreed to, among other things, cease establishing, managing, or treating public lands as WSAs or as wilderness without congressional authorization.[30] Although the Utah settlement’s validity depended upon BLM’s compliance with FLPMA and NEPA, BLM and ONDA shared the position that the court need not directly consider the settlement’s legality.

After considering these arguments, the Ninth Circuit held that BLM’s response to ONDA’s concerns failed to satisfy NEPA requirements. The court cited 43 U.S.C. §§ 1712 and 1732 for BLM’s authority, independent of the one-time duty to survey lands with wilderness characteristics under 43 U.S.C. § 1782, to manage resources such as wilderness values. In essence, the court explained “wilderness characteristics retain vitality as a resource category covered by the BLM’s multiple-use land use planning mandate” even where section 1782 review has been completed.[31] The court explained this conclusion by examining 1) the statutory and regulatory structure binding BLM, 2) BLM’s guidance documents and public statements, and 3) case law.

The Ninth Circuit’s contextual interpretation of FLPMA, the Wilderness Act, and corresponding regulations supported the conclusion that BLM is required to address wilderness values in a detailed NEPA analysis. For example, FLPMA and corresponding regulations establish “wilderness characteristics” by referencing the Wilderness Act, and the definition of “wilderness” is the same in both statutes. The court cited BLM’s land-use planning handbook and the BLM’s administrative adjudicative body for recognizing that the characterizations of “wilderness” in FLPMA are identical to those in the Wilderness Act. Based on these cross-referencing definitions, the court concluded the wilderness characteristics concept originates from the statutory framework.

The Ninth Circuit explained that FLPMA’s Wilderness Study provision, which directs BLM to conduct an initial wilderness review to make recommendations for wilderness preservation, does not limit wilderness inventories to the recommendation process.[32] Instead, the Wilderness Study provision references 43 U.S.C. § 1711(a), which provides for a continuous inventory process to reflect new resources and other values.[33] Read together, section 1711(a) and section 1782(a) presume that BLM’s inventory procedure will identify areas with wilderness characteristics, including “new and emerging” areas or those arising from a “change in conditions.”[34] It also follows that wilderness characteristics are equivalent to “resource and other values” recognized under section 1711(a). Thus, the Ninth Circuit reasoned that BLM must manage wilderness characteristics as one aspect of its broad authority under its multiple-use management and planning mandate.

After recognizing BLM’s duty under FLPMA to consider wilderness characteristics, the court outlined several management methods that BLM could employ to fulfill its responsibilities of managing lands for wilderness values as part of multiple-use management. These suggestions included 1) enacting limitations on extractive uses, 2) reducing levels of potentially destructive grazing or ORV uses, 3) designating lands as areas of critical environmental concern or research natural areas, and 4) implementing a temporary nonimpairment policy. The court recognized that as long as BLM gave adequate consideration to wilderness characteristics during the planning process, it could implement a management plan that did not aspire to long-term wilderness preservation.

BLM’s public guidance documents supported the Ninth Circuit’s understanding that FLPMA instructs BLM to manage wilderness values of lands and corresponding duties to discuss such resources in NEPA documentation. The BLM’s 2005 Land Use Planning Handbook (2005 Handbook) acknowledged a continuing authority to manage lands with wilderness characteristics in land-use plans.[35] The 2005 Handbook also
recognized a duty to include analysis of wilderness characteristics, as appropriate, in EIS documentation.[36]

The Ninth Circuit also cited case law in support of its conclusion that BLM should have considered wilderness characteristics, particularly the roadless character of such lands, in its NEPA analysis. The court premised that roadlessness and wilderness were nearly inseparable considerations, because roadlessness is essential to fulfilling the “natural conditions” component of “wilderness” as defined in the Wilderness Act.[37] Then, the court compared circuit cases discussing roadlessness. In Smith v. United States Forest Service,[38] the Ninth Circuit rejected the Forest Service’s argument, analogous to that made by BLM, that it lacked a duty to discuss roadlessness in its NEPA documents, and held that roadlessness has an environmental significance that must be analyzed in NEPA documents.[39] In 2007, the Ninth Circuit applied Smith’s holding to noninventoried areas greater than 5000 acres and inventoried areas smaller than 5000 acres.[40] The court reasoned that if roadlessness, a significant feature of wilderness, merited NEPA consideration on Forest Service land, wilderness characteristics on BLM land similarly warranted NEPA documentation.

BLM advanced three counter-arguments that failed to persuade the Ninth Circuit. First, BLM argued that the United States Supreme Court’s holding in Norton v. Southern Utah Wilderness Alliance (SUWA)[41] limiting suits under the APA barred review of BLM’s failure to consider wilderness characteristics. Second, BLM argued that a ruling for ONDA about wilderness characteristics would violate the Supreme Court’s holding in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (Vermont Yankee).[42] Third, BLM argued that its analysis of other resources incidentally benefited wilderness values, and that the Ninth Circuit should defer to its NEPA methodology.

The Ninth Circuit disregarded BLM’s argument that SUWA applied to ONDA’s challenge because the case arose from a different provision of the APA. SUWA held that under section 706(1) of the APA a plaintiff must assert that an agency failed to take a discrete, required action.[43] BLM argued that a duty to inventory wilderness characteristics was not discrete. However, ONDA’s claim arose under section 706(2)(A), challenging BLM’s actions as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The court referenced more than a dozen cases for the proposition that the process of finalizing an EIS as a ROD constituted a final agency action, subject to review under section 706(2)(A). Thus, the court reviewed “the validity of the final action that was taken, not-as in SUWA-demanding that the agency take some action that it has not taken.”[44] The court explained that a contrary holding would make it difficult for a plaintiff to challenge an agency’s analytic errors under NEPA, because there is often no discrete duty required by statute to consider a specific issue. Under arbitrary and capricious review, an agency must consider nondiscrete issues of environmental significance before committing to a major federal action.

The Ninth Circuit rejected BLM’s argument that Vermont Yankee applied to ONDA’s challenge. In Vermont Yankee, the Supreme Court held that courts cannot use NEPA to substantially revise an agency’s procedural obligations under the APA or impose the court’s notion of which procedures are superior.[45] The Ninth Circuit reasoned that its holding required only direct compliance with NEPA’s EIS requirement and did not create any extra procedural requirements. In rejecting the relevance of Vermont Yankee, the Ninth Circuit emphasized that BLM, on remand, could decide how to fulfill its NEPA obligations regarding consideration of wilderness characteristics.

The Ninth Circuit also rejected BLM’s argument that its NEPA analysis of other resources incidentally contemplated the Plan’s effects on wilderness characteristics. The court viewed this argument as an unacceptable “post hoc rationalization”[46] because BLM did not articulate this position in the EIS. The Ninth Circuit also criticized the premise of BLM’s argument, which depicted wilderness characteristics as a “nebulous term.”[47] The court warned that developing a “proxy methodology” may fail to provide adequate disclosure of wilderness values present on BLM land.[48] Finally, because BLM lacked a method of analyzing or managing wilderness values, the court reasoned that it owed no deference to the BLM methodology, stating “[w]e cannot defer to a void.”[49]

Basing its conclusions on the statutes, regulations, guidance documents, and case law, the Ninth Circuit ruled against BLM on the wilderness values issue. The court held that 1) BLM had continuing authority to manage wilderness characteristics under FLPMA, wholly distinct from the agency’s duty to survey the land for wilderness preservation recommendations, 2) BLM violated NEPA by failing to properly respond to ONDA’s comments and provide a “full and fair discussion” about wilderness values in the EIS, and 3) BLM violated NEPA by failing to consider cumulative impacts on the planning area, because it did not consider impacts on lands with wilderness characteristics.

Next, the Ninth Circuit addressed ONDA’s other NEPA arguments pertaining to BLM’s alternatives analyses for grazing and ORV management. Citing Westlands Water District v. Department of Interior,[50] the court reasoned that “[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.”[51] With regard to both issues, the Ninth Circuit reasoned that BLM’s analysis of wilderness values on remand could lead to more adequate alternatives, but the court specifically held that BLM should consider an alternative that closed significant portions of land.

The Ninth Circuit did not decide whether BLM’s grazing alternatives were deficient. ONDA argued that BLM’s consideration of only one option that reduced grazing area and intensity amounted to a failure to adequately explore the balance between development and wilderness use.[52] The court reasoned that BLM, in its consideration of lands with wilderness values, would have the opportunity to “address the bias towards grazing” and produce more adequate alternatives.[53]

The Ninth Circuit ruled that BLM’s ORV use alternatives failed to provide the agency or public with a proper consideration of options. First, wilderness characteristics did not factor into BLM’s analysis of its ORV designations. Second, the court observed that no ORV alternative proposed closing more than a fraction of the planning area to ORVs and each alternative reduced the amount of areas that were previously closed to such use. The court disagreed with BLM’s argument that a wide range of open and limited ORV designations paired with emergency closure provisions was adequate, bluntly stating that limited use is “not identical” to no use.[54] The court specifically criticized the limitation to existing routes designation that permitted ORV use up to 150 feet off trails. Finally, the Ninth Circuit concluded that BLM must consider closing significant portions of land, especially those with wilderness characteristics.

In conclusion, the Ninth Circuit held that the EIS was invalid under NEPA because it did not address concerns about wilderness characteristics and also lacked alternatives that closed significant portions of the planning area to ORV use. The Ninth Circuit set aside BLM’s ROD approving the Plan and accompanying EIS and remanded the case to the district court with instructions for further remand to the BLM.


[1] Committee for the High Desert and Western Watersheds Project joined in the suit but did not join ONDA in commenting on BLM’s draft environmental impact statement.

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

[3] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2006).

[4] Id. § 1712(c).

[5] 43 C.F.R. § 1610.2 (2007).

[6] Id. § 1610.5-2(a).

[7] 16 U.S.C. §§ 1131-1136 (2006).

[8] 43 U.S.C. § 1782(b) (2006).

[9] Id. § 1711.

[10] 43 C.F.R. § 1601.0-6 (2007).

[11] 42 U.S.C. § 4332(C) (2006).

[12] Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 781 (9th Cir. 2006); see also 40 C.F.R. pt. 1502 (2007).

[13] 40 C.F.R. § 1502.14 (2007).

[14] After identifying 32 WSAs in the planning area and completing a final EIS, BLM submitted its recommendations to the President, advising permanent preservation for 21 WSAs, and in 1992, the President submitted these recommendations to Congress. Congress has not acted on these recommendations.

[15] 3 Bureau of Land Mgmt., U.S. Dep’t of the Interior, Proposed Southeastern Oregon Resource Management Plan and Final Environmental Statement 105 (2001), available at http://www.blm.gov/or/districts/vale/plans/files/seormp/SEORMP%20Final%20Volume%203%
20Text.pdf [hereinafter FEIS].

[16] The Plan did consider two management possibilities for approximately 3000 acres of land adjacent to WSAs created pursuant to its recommendations to Congress. 1 FEIS, supra note 443, at 373-75.

[17] Id. at 276-368; see also Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1712(c)(3) (2006).

[18] 1 FEIS, supra note 15, at xxii, 269-73.

[19] Id. at 273.

[20] Id. at xxii, 269-73.

[21] Or. Natural Desert Ass’n v. BLM (ONDA), 531 F.3d 1114, 1127 (9th Cir. 2008).

[22] Id. at 1127.

[23] Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir. 1997).

[24] Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Vale District (2004).

[25] BLM did not appeal the admission of ONDA’s survey. The Ninth Circuit described the survey “without expressly approving or disapproving of its particular findings” but rather “to demonstrate how the presence of wilderness values may change over time and how wilderness characteristics may have been reestablished in parts of the area covered by the Southeast Oregon Plan.” ONDA, 531 F.3d at 1128.

[26] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 315-315o-1 (2006).

[27] Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 992 (9th Cir. 2004).

[28] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006). The arbitrary and capricious standard is at section 706(2)(A).

[29] No. 2:96-CV-0870, 2006 WL 2711798 (D. Utah Sept. 20, 2006); see also Utah v. Norton, 396 F.3d 1281, 1284-85 (10th Cir. 2005).

[30] Norton, 2006 WL 2711798, at *4.

[31] ONDA, 531 F.3d 1114, 1136 (9th Cir. 2008).

[32] Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1782(a) (2006).Note that section 1782(a) references section 1711(a)’s required inventory, but does not direct that areas with wilderness characteristics be identified only as part of recommending such areas for “preservation as wilderness.”

[33] Id. § 1711(a).

[34] ONDA, 531 F.3d at 1134.

[35] Bureau of Land Mgmt., U.S. Dep’t of the Interior, Land Use Planning Handbook app. C, at 1, 12 (2005) [hereinafter 2005 Handbook]; see also id. app. F, at 7.

[36] See id. app. F, at 16. Noting a discrepancy between BLM’s appellate briefs and the agency’s guidance documents, the court relied on the latter, reasoning that the guidance documents were well-reasoned, persuasive, and consistent with the Ninth Circuit’s interpretation of the statutes in question.

[37] Wukderbess Act, 16 U.S.C. § 1131(c) (2006).

[38] 33 F.3d 1072 (9th Cir. 1994).

[39] Id. at 1078.

[40] Lands Council v. Martin, 479 F.3d 636, 640 (9th Cir. 2007).

[41] 542 U.S. 55 (2004).

[42] 435 U.S. 519 (1978).

[43] SUWA, 542 U.S. at 64.

[44] ONDA, 531 F.3d. 1

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