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Oregon Natural Desert Ass'n v. Cain

United States District Court, D. Oregon

April 29, 2014

OREGON NATURAL DESERT ASSOCIATION, Plaintiff,
v.
BRENDAN CAIN, RICHARD ROY, RHONDA KARGES, and BUREAU OF LAND MANAGEMENT, Defendants

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For Oregon Natural Desert Association, Plaintiff: Peter Macnamara Lacy, LEAD ATTORNEY, Oregon Natural Desert Association, Portland, OR; Lauren M. Rule, Advocates for the West, Portland, Or.

For Brendan Cain, Burns District Manager, BLM, Richard Roy, Field Manager, Three Rivers Resource Area, BLM, Rhonda Karges, Field Manager, Andrews Resource Area, BLM, Bureau of Land Management, Defendants: Sean E. Martin, LEAD ATTORNEY, U.S. Attorney's Office, District of Oregon, Portland, OR.

OPINION

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OPINION AND ORDER

Honorable Paul Papak, United States Magistrate Judge.

Plaintiff Oregon Natural Desert Association (" ONDA" ) brings this action arising from the Bureau of Land Management's (" BLM" ) issuance of six decisions authorizing road maintenance on various routes throughout the Burns District in Oregon. ONDA complains that BLM violated the National Environmental Policy Act (" NEPA" ) by failing to prepare an environmental impact statement (" EIS" ) for the projects. ONDA further complains that BLM violated the Federal Land Policy and Management Act (" FLPMA" ) by authorizing actions not in accordance with the applicable land-use plans. Now before the court are ONDA's motion for summary judgment (#32), BLM's motion to strike extra-record evidence (#40), BLM's cross motion for summary judgment (#44), and ONDA's motion for leave to file a surreply (#58). For the reasons discussed below, ONDA's motion for summary judgment is denied, BLM's motion to strike extra-record evidence is denied as moot, BLM's cross motion for summary judgment is granted, and ONDA's motion for leave to file a surreply is granted.

BACKGROUND

I. Statutory and Regulatory Framework

A. FLPMA

" The FLPMA directs that the Secretary of the Interior, who oversees the BLM, 'shall, with public involvement . .., develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.'" Or. Natural Desert Ass'n v. BLM, 625 F.3d 1092, 1096 (9th Cir. 2010) (quoting 43 U.S.C. § 1712(a)). A land-use plan, or resource-management plan, " 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) (citing 43 C.F.R. § 1601.0-5(k)). The Ninth Circuit has explained:

Among other requirements, these plans are to " use and observe the principles of multiple use and sustained yield" ; " use a systematic interdisciplinary approach" ; " give priority to the designation and protection of areas of critical environmental concern" ; and " weigh long-term benefits to the public against short-term benefits." 43 U.S.C. § 1712(c). The BLM " shall manage the public lands" in accordance with these plans. Id. § 1732(a).

Or. Natural Desert Ass'n, 625 F.3d at 1096 (footnote omitted).

B. NEPA

The NEPA " is a procedural statute that does not 'mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.'" High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (citation omitted); accord Alcoa, Inc. v. Bonneville Power Admin.,

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698 F.3d 774, 794-95 (9th Cir. 2012) (discussing NEPA). Pursuant to NEPA, " a federal agency must prepare an EIS, specifically, a 'detailed statement' on 'the environmental impact' of 'major Federal actions significantly affecting the quality of the human environment.'" Alcoa, 698 F.3d at 795 (quoting 42 U.S.C. § 4332(C)(i), and 40 C.F.R. § 1502.1).

An agency may dispense with the EIS requirement, however, if the proposed action falls within a " categorical exclusion" and there are no " extraordinary circumstances." 40 C.F.R. § 1508.4. A categorical exclusion (" CX" ) is " a category of actions which do not individually or cumulatively have a significant effect on the human environment." Id.; see also Alaska Ctr. for Env't v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999). In accordance with NEPA, the Office of the Secretary of the Interior has promulgated a list of actions that are categorically excluded, including " [r]outine and continuing government business, including such things as supervision, administration, operations, maintenance, renovations, and replacement activities having limited context and intensity (e.g., limited size and magnitude or short-term effects)." 43 C.F.R. § 46.210(f). " [A]n agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation." Alaska Ctr. for Env't, 189 F.3d at 857.

Even if a proposed action falls within a categorical exclusion, NEPA requires an EIS if an extraordinary circumstance applies. 40 C.F.R. § 1508.4. In accordance with NEPA, the Office of the Secretary of the Interior has promulgated a list of extraordinary circumstances. See 43 C.F.R. § 46.215. For instance, if the proposed action will " [h]ave highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks," Id. § 46.215(d), the agency must satisfy NEPA's procedural requirements with regard to an EIS. " Applicability of extraordinary circumstances to categorical exclusions is determined by the Responsible Official." Id. § 46.215.

II. Burns District

The BLM Burns District Office " manages 3,275,694 acres of public land located primarily in Harney County, Southeastern Oregon." AR 6186, The Burns District is comprised of two Resource Areas--the Andrews Resource Area and the Three Rivers Resource Area. Id. The Andrews Resource Area is " further divided into land contained within the boundary of the Steens Mountain Cooperative Management and Protection Area (CMPA) and those in the Andrews [Resource Area] outside the CMPA boundary; the latter is titled the Andrews Management Unit." Id.

III. Challenged Decisions

On November 30, 2009, BLM issued CX Number BO60-2010-0010, which authorizes road maintenance throughout the Andrews Resource Area (" 2009 Andrews CX" ). See AR 4690. In relevant part, the 2009 Andrews CX provides:

Roads would be maintained consistent with assigned maintenance levels and within existing disturbance (like-for-like). Roads may be graded, graveled, rocks removed, ditches cleaned, and culverts or rock crossings installed to prevent accelerated erosions and to provide easier access for firefighting personnel, administration and the public. . . . This CX does not cover construction or road upgrading activities. . . .
All equipment will be cleaned prior to beginning work on new road locations to

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minimize opportunities for spread of weeds by seeds or other plant parts.

Id. In invoking the CX, BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to the land-use plan in place for the Andrews Resource Area. See id. at 4690-93.

Nearly a year and a half later, on May 10, 2011, BLM issued CX Number BO70-2011-0031, which authorizes road maintenance throughout the Chimney Allotment in the Andrews Resource Area (" Chimney CX" ). See AR 1977. The Chimney CX provides for grading, ditch cleaning, and brushing on 27.7 miles of open BLM roads, 8.8 of which are in the CMPA. See id. The CX further provides that " [ma]intenance would occur within the original footprint of the road" and that the CX " does not cover road construction or road upgrading activities." Id. Like the 2009 Andrews CX, the Chimney CX requires that " [a]ll equipment be cleaned prior to beginning work on roads to minimize opportunities for spread of weeds." Id. In invoking the CX, BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to the land-use plan in place for the Andrews Resource Area. See id. at 1977-80.

On May 17, 2011, BLM issued CX Number BO50-2011-0021, which authorizes maintenance of " 1.2 miles of road in the Main Pasture of East Cow Creek Allotment" in the Three Rivers Resource Area (" East Cow Creek CX" ). AR 1982. The East Cow Creek CX provides that " [t]he road would be graded, ditches cleaned, and a rock crossing constructed as needed." Id. As with the prior CXs, the East Cow Creek CX " does not cover construction or road upgrading activities" and requires the cleaning of equipment to " minimize opportunities for spread of weeds." Id. In invoking the CX, BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to the land-use plan in place for the Three Rivers Resource Area. See id. at 1982-85.

On June 1, 2011, BLM issued CX Number BO50-2011-0034, which authorizes maintenance of roads " within [the] Burnt Flat, Riddle Mountain, Happy Valley and Smyth-Kiger Allotments" in the Three Rivers Resource Area (" Three Rivers Southeast CX" ). AR 1830. The Three Rivers Southeast CX provides that " [r]oads may be graded, slides removed, drainage structures maintained, culverts or rock crossings installed to prevent accelerated erosion, and roadside brushing." Id. As with the prior CXs, the Three Rivers Southeast CX " does not permit new construction/realignment or road upgrading activities to a different intensity/maintenance level" and requires that all equipment be cleaned " to minimize opportunity for spread of weeds." Id. In invoking the CX, BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to the land-use plan in place for the Three Rivers Resource Area. See id. at 1830-33.

On June 14, 2011, BLM issued CX Number BO60-2011-0042, which authorizes maintenance of roads " within [the] Pueblo-Lone Mountain, Trout Creek Mountain and Tule Springs Allotments" in the Andrews Resource Area (" 2011 Andrews CX" ). AR 175. The 2011 Andrews CX provides that " [r]oads may be graded, slides removed, drainage structures maintained, culverts or rock crossings installed to prevent accelerated erosion, and roadside bushing." Id. As with the prior CXs, the 2011 Andrews CX " does not permit new construction/realignment or road upgrading activities to a different maintenance level" and requires all equipment to be cleaned " to minimize opportunity for spread of weeds." Id. In invoking the CX,

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BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to the land-use plan in place for the Andrews Resource Area. Id. at 175-78.

Finally, on January 23, 2012, BLM issued CX Number BO60-2012-0012, which authorizes maintenance on " those road sections known as Fields Basin Rincon Road, Rincon Flat Road and Rincon Spring Road" in the Andrews Resource Area (" Rincon Flat CX" ). AR 1. The Rincon Flat CX provides for " continuous surface blading, spot blading, ditch cleaning, and fixing and/or replacing culverts when such work is deemed necessary, using whatever equipment may be needed such as a road grader, backhoe or caterpillar in order to maintain the road." Id. Although BLM notes that " [t]he roads exist on the landscape," it does not specifically prohibit new construction or upgrading. Id. at 2. Unlike the prior CXs, the Rincon Flat CX specifically notes the possibility of disturbance to sage-grouse:

Due to the number of sage-grouse leks close to the road in the Fields Basin Allotment, no maintenance activities would be conducted during March 15 to May 15 unless conducted after 10:00 am to avoid disturbance to strutting sage-grouse. This would not apply to the section of road that is planned to have material removed from it. All other sections would be restricted to these dates and times.

Id. at 1. The Rincon Flat CX further provides that all equipment would be cleaned prior to arrival at the project site to minimize the spread of weeds. See id. In invoking the CX, BLM found that no extraordinary circumstances applied and that the proposed road maintenance conformed to ...


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