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Gifford Pinchot Task Force v. Perez

United States District Court, D. Oregon

July 3, 2014

GIFFORD PINCHOT TASK FORCE, a non-profit corporation, Plaintiff,
v.
JEROME E. PEREZ, in his official capacity as Oregon/Washington State Director, BLM; UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States Government; JANINE CLAYTON, in her official capacity as Forest Supervisor of the Gifford Pinchot National Forest; and UNITED STATES FOREST SERVICE, an agency of the United States Government, Defendants. ASCOT USA, INC. and ASCOT RESOURCES LTD., Intervenor-Defendant.

Tom Buchele, EARTHRISE LAW CENTER, Portland, Oregon, Roger Flynn, WESTERN MINING ACTION PROJECT, Lyons, Colorado, Attorneys for Plaintiff.

Dean K. Dunsmore, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, C/O Office of U.S. Attorney, Anchorage, Alaska, Romney S. Philpott, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, D.C., Stephen Odell, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, Attorneys for Defendants.

Per A. Ramfjord, Crystal S. Chase, STOEL RIVES LLP, Portland, Oregon, Attorneys for Intervenor-Defendant.

OPINION ORDER

MARCO A. HERNANDEZ, District Judge.

In this environmental case, Plaintiff Gifford Pinchot Task Force challenges the issuance of a permit approving the Goat Mountain Hardrock Prospecting Project ("the Project"). Both Defendant the Bureau of Land Management (BLM) and Defendant the United States Forest Service (USFS) were involved in the decision approving the Project. Named Defendants also include Jerome Perez in his official capacity as Oregon/Washington State Director of the BLM, and Janine Clayton in her official capacity as Forest Supervisor of the Gifford Pinchot National Forest. In a June 13, 2013 Order, I granted the motion to intervene by Ascot USA and its parent company Ascot Resources (collectively "Ascot").

Plaintiff and Ascot move for summary judgment. For the reasons explained below, I grant the motions in part and deny them in part.

BACKGROUND

The agency actions challenged in this case authorize exploratory drilling on approximately 900 acres of land within the Gifford Pinchot National Forest, in an area located adjacent to the Mt. St. Helens National Volcanic Monument. The 900 acres is within U.S. Mineral Survey (MS) parcels 708, 774, 779, 1329, and 1330. Admin. Rec. 240.[1] The United States holds full title and interest to 100% of the mineral estate of all of these parcels, except for MS 708. 2012 EA, AR 1086-87. The United States owns an undivided 50% mineral interest in MS 708. Id . Thus, as to MS 708, the United States owns 100% of the surface estate and an undivided 50% interest in the underlying mineral estate. Ascot owns the other 50% of the underlying mineral estate of MS 708.

The BLM, working with the USFS, issued an Environmental Assessment (EA) related to the Project on June 29, 2012, which was modified November 30, 2012 (the 2012 EA). 2012 EA, AR 1068-1279. The Project includes the drilling of a total of 63 rock core holes from 23 drill pads to collect rock core samples for analysis to obtain geological and mineralogical information. 2012 EA, AR 1084. Generally, it entails "reactivation" of approximately 1.69 miles of existing decommissioned roads, installation of drilling-related equipment, elimination of trees and other vegetation within and along the roads and at each drill site, and pumping of 5, 000 gallons of ground water per day. 2012 EA, AR 1097-1111.

The diameter of the drill holes is relatively small at about 2.5 inches. 2012 EA, AR 1103. The total area disturbed by the drilling will be less than one-quarter acre. Id . The total area affected by the drilling, including reopened roads, is about 3.3 acres. Id . Portable rigs are used. 2012 EA, AR 1104. The rigs are operated 24 hours per day, 7 days for week, but less then 1 week in each specific location. 2012 EA, AR 1193.

After the 2012 EA was issued in November 2012, the USFS issued a Decision Notice (DN) and Finding of No Significant Impact (FONSI), on December 3, 2012. AR 821-40. The USFS's DN/FONSI documented the USFS's consent to the BLM for issuing two Federal Hardrock Mineral Prospecting Permits and specified certain required conditions for the use and protection of the National Forest System. USFS DN/FONSI, AR 821. The Project was then approved by the BLM in a Decision Record (DR) and separate FONSI on December 20, 2012. AR 240-263 (DR); AR 264-68 (FONSI). The USFS denied Plaintiff's administrative appeal on March 21, 2013. Supp. AR 2811-38. The USFS clarified that decision on April 2, 2013. Supp. AR 2839-42.

Plaintiff challenges the USFS's DN/FONSI, the BLM's DR and FONSI, and the USFS's Appeal Decision, as well as the 2012 EA, upon which all of these other decisions were based. Plaintiff brings the following claims:

(1) violations of the Land & Water Conservation Fund Act (LWCF Act), the Reorganization Plan No. 3 of 1946, and the Weeks Act of March 1, 1911 and March 4, 1917, based on Plaintiff's contention that Defendants' approval of the Project is inconsistent with and interferes with the purposes for which the land was acquired and authorizes activities that will directly interfere with recreation on lands purchased with funds obligated to provide outdoor recreation to the public;

(2) violation of the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1687, by authorizing the Project without ensuring that the Project's activities will comply with applicable standards and guidelines set out in the Gifford Pinchot Land and Resource Management Plan, as amended by the Northwest Forest Plan; and

(3) violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, by failing to prepare an Environmental Impact Statement (EIS), by failing to include a baseline groundwater analysis, by failing to address the synergistic and cumulative effects of the Project, by failing to provide any detailed analysis of mitigation measures and the effectiveness of each measure, and by failing to consider all reasonable alternatives.

Plaintiff seeks declaratory and injunctive relief as follows: (1) vacating and setting aside the USFS's DN/FONSI, the BLM's DR and FONSI, the USFS's Appeal Decision, and the 2012 EA; (2) declarations that Defendants violated NEPA in all the ways that Plaintiff alleges; (3) enjoining Defendants from making any further decision or implementing any decision regarding drill applications within the Gifford Pinchot National Forest unless and until Defendants comply with NEPA, the NFMA, the LWCF Act, the Reorganization Plan, and the Weeks Act; and (4) enjoining Defendants from allowing any further exploratory drilling within the Gifford Pinchot National Forest until Defendants comply with those statutes.

STANDARDS

I. Summary Judgment

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik , 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan , 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex , 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v. Connell , 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc. , 658 F.3d 1108, 1112 (9th Cir. 2011).

If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

II. The Administrative Procedure Act

The Ninth Circuit has endorsed summary judgment motions as "an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.'" City & Cnty. of S.F. v. United States , 130 F.3d 873, 877 (9th Cir. 1997) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 770 (9th Cir. 1985)).

All of the claims in this case are governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA). Under the APA, a federal court "shall... hold unlawful and set aside agency action, findings, and conclusions found to be[:] (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] without observance of procedures required by law[.]" 5 U.S.C. § 706(2).

Under this standard,

an "agency must examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency's decision is contrary to the governing law. Id.

Organized Village of Kake v. U.S. Dep't of Agric., 746 F.3d 870, 974 (9th Cir. 2014).

The court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal quotation marks omitted). The court's "inquiry must be thorough, " but "the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency. Id . (internal quotation marks omitted). "Where the agency has relied on relevant evidence such that a reasonable mind might accept as adequate to support a conclusion, its decision is supported by substantial evidence. Id . (internal quotation marks and brackets omitted). "Even if the evidence is susceptible of more than one rational interpretation, the court must uphold the agency's findings." Id . (internal quotation marks omitted).

Moreover, the court generally must be "at its most deferential" when reviewing scientific judgments and technical analyses within the agency's expertise. See Balt. Gas & Elec. Co., v. Natural Res. Def. Council, Inc. , 462 U.S. 87, 103 (1983). It should not "act as a panel of scientists that instructs the [agency]..., chooses among scientific studies..., and orders the agency to explain every possible scientific uncertainty." Lands Council v. McNair , 537 F.3d 981, 988 (9th Cir. 2008) (en banc), overruled in other part as recognized by Am. Trucking Ass'ns v. City of Los Angeles , 559 F.3d 1046, 1052 (9th Cir. 2009). The court should also "conduct a particularly deferential review of an agency's predictive judgments about areas that are within the agency's field of discretion and expertise... as long as they are reasonable." Id . at 993 (internal quotation marks omitted). And "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" Id . at 1000 (quoting Marsh v. Or. Natural Res. Council , 490 U.S. 360, 378 (1989)).

DISCUSSION

I. Standing, Exhaustion, & Final Agency Action

A. Article III Standing

Defendants and Ascot do not dispute that Plaintiff has Article III standing to sue because its members have suffered, and will immediately suffer, injuries in fact that are fairly traceable to, and would thus be redressed by invalidation of, the BLM and USFS actions in this case, including the authorization of the permitted mineral operations on public lands. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. , 528 U.S. 167, 180-81 (2000); see also Exs. 1, 2 to Pl.'s Mtn (Declarations of Jessica Schafer and Craig Lynch describing their use of the affected area and their concerns about the authorized activities).

B. Exhaustion

The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. 5 U.S.C. § 704. "This requirement applies to claims under NEPA." Great Basin Mine Watch v. Hankins , 456 F.3d 955, 965 (9th Cir. 2006). "Persons challenging an agency's compliance with NEPA must structure their participation so that it... alerts the agency to the parties' position and contentions, in order to allow the agency to give the issue meaningful consideration.'" Id . (quoting Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 764 (2004)). The requirement also applies to claims under the NFMA. See Bark v. Larsen, No. 03:06-cv-01119-AS, 2006 WL 4852688, at *9-10 (D. Or. June 26, 2006) (explaining exhaustion requirement in context of a NFMA claim). Neither party cites any law requiring administrative exhaustion of a claim that a federal agency is violating the Weeks Act, the LWCF Act, or Reorganization Plan No. 3.

Ascot asserts that Plaintiff is unable to challenge any actions taken by the BLM because Plaintiff failed to exhaust its administrative remedies with respect to those actions. While Department of Interior regulations, which apply to the BLM, appear to require exhaustion, subject to certain exceptions, a 1997 case of Judge Haggerty's disposes of Ascot's argument.

In that case, the defendant argued that the plaintiff had failed to exhaust its administrative remedies and thus, could not maintain its action in district court, because although the plaintiff had appealed the BLM's decision to the Interior Board of Land Appeals (IBLA), the appeal was still pending. Or. Natural Desert Ass'n v. Green , 953 F.Supp. 1133, 1141-42 (D. Or. 1997). The plaintiff argued that exhaustion was not required under the applicable regulation. Id . Judge Haggerty agreed with the plaintiff, explaining that

[u]nder the APA, judicial review of an agency's action is available when the challenged action is "final." 5 U.S.C. § 704. Under section 10(c), an action is final and subject to judicial review when the aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule. Id .; Darby v. Cisneros , 509 U.S. 137, 154, 113 S.Ct. 2539, 2548, 125 L.Ed.2d 113 (1992). The requirement that an aggrieved party exhaust administrative remedies, therefore, is limited to that which the statute or rule clearly mandates. Id . Further, in the event an agency rule requires appeal before review, the agency rule must also provide that the administrative action is made inoperative pending that review. Id.
Here, the Department of Interior regulations do require exhaustion, 43 C.F.R. § 4.21(c), but the regulation does not render the [administrative action] inoperative pending IBLA review. 43 C.F.R. § 4.21(b). Rather, the aggrieved party is required to request a stay and make a compelling threshold showing to justify the stay. This process vests discretion in the IBLA to grant or deny a stay pending review. The requirement under the APA is unequivocal. As such, ONDA was not required to proceed with its appeal to the IBLA prior to seeking judicial review of the River Plan.

Id. at 1141-42. The current regulation is the same now as when Judge Haggerty decided Green. While the regulation "requires" exhaustion, the regulation still simultaneously requires that the aggrieved party request a stay and make a compelling showing to justify the stay. Thus, the process vests discretion in the IBLA to grant or deny a stay pending review. According to Judge Haggerty, this is inconsistent with the APA's requirement that the agency rule must provide that the challenged administrative action become inoperative pending review. Id . at 1142. As Plaintiff in the instant case notes, to render the BLM's actions ineffective on appeal, Plaintiff was required to seek a discretionary stay. In contrast, states Plaintiff, the filing of an appeal under the USFS regulations renders the challenged decision immediately ineffective and thus, those regulations comply with the APA and exhaustion is required. Plaintiff exhausted its administrative remedies in regard to the USFS's decision and as explained in Green, Plaintiff was not required to exhaust in regard to the BLM's decision.

C. Final Agency Action

The APA allows judicial review of final agency action. 5 U.S.C. §§ 702, 704 (allowing "[a] person suffering legal wrong because of agency action" to seek judicial review of such action; "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."). In its DN/FONSI, the USFS gave its consent to the Project. Defendants contend that the USFS's consent is not "agency action" or "final agency action" and thus Plaintiff cannot challenge that consent here.

"Agency actions" are defined as "the whole or a part of an agency rule, order, license, sanction, relief, ...." 5 U.S.C. § 551(13). "Order" is the "whole or a part of a final disposition" and "license" is "the whole or a part of an agency permit." 5 U.S.C. § 551(6), (8). "Agency action" also includes "the equivalent or denial thereof [i.e., of an agency rule, order, license, sanction, or relief], or failure to act." Or. Natural Desert Ass'n v. U.S. Forest Serv. , 465 F.3d 977, 983 (9th Cir. 2006) ("ONDA") (quoting S. Utah Wilderness Alliance v. Norton , 542 U.S. 55, 62 (2004)).

Defendants argue that the USFS's consent does not fit the definition of "agency action" because it is not a rule, a sanction, or an order, it is not a license or the functional equivalent thereof, and it does not grant relief to any person. Defendants maintain that in contrast to the actual permit issued by the BLM, the USFS's consent did not independently authorize Ascot to undertake any activity.

Defendants' argument fails to recognize that the definition of agency action in section 551(13) includes the whole or a part of an agency rule, order, license, sanction, etc. The definitions for each type of action also include a "part" of an action: for example, "the whole or a part of a final disposition" (order); 5 U.S.C. § 551(8); and "the whole or a part of an agency permit" (license); 5 U.S.C. § 551(6). And, agency action includes the "equivalent" of an agency rule, order, license, etc., or a failure to act. ONDA, 465 F.3d at 983; 5 U.S.C. § 551(13).

It is undisputed that the USFS's consent was a prerequisite for the BLM's issuance of the permits. Without seeking and obtaining the USFS's consent, the permits could not issue. Additionally, the BLM relied on the USFS's consent decision in issuing the permit, effectively incorporating the consent and the conditions into its own DR and FONSI. E.g., BLM DR, AR 240 ("I relied on [the USFS's] determination of plan conformance and its determination that prospecting activities will not interfere with the primary purposes for which the lands were acquired"); AR 241 (noting that under 42 C.F.R. § 3503.20(c), the USFS must decide whether to consent to the BLM issuing the permits); AR 242 (noting that the USFS has provided specific stipulations as part of its consent and that the BLM's DR adopts those specified conditions "verbatim"); AR 243 (noting that one of four factors supporting its decision was the consent of the USFS); AR 259 (again noting that "I have relied on the written consent and determinations of the USFS" and additionally, "have incorporated all of the additional mitigation measures and stipulations provided by the USFS in its [DN/FONSI] dated December 4, 2012); AR 262 (in the section setting forth Administrative Remedies, the BLM explained the timing for when the BLM decision became effective under the pertinent regulations, then added: "However in this instance, the BLM decision includes reliance on the determinations and consent of the [Gifford Pinchot National Forest]"). In the face of its express reliance on the determinations and consent of the USFS, Defendants cannot deny that the USFS's consent was part of the permitting process and thus, is agency action within the meaning of the APA.

Defendants argue that even if the USFS's consent is "agency action, " it is not "final agency action." Two conditions are required for agency action to be considered "final" under the APA. First, the action must be the "consummation of the agency's decision-making process" and "not be of a merely tentative or interlocutory nature." Bennett v. Spear , 520 U.S. 154, 177-78 (1997); see also ONDA, 465 F.3d at 982 , 984 (the action must constitute a "definitive statement of the agency's position"; noting further that to satisfy the first prong of Bennett, the action must be the agency's last word on the matter) (internal quotation marks omitted).

Second, the action must be one which determines "rights or obligations" or from which "legal consequences will flow[.]" Bennett , 520 U.S. at 178 (internal quotation marks omitted); see also ONDA, 465 F.3d at 987 (final agency actions "impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process") (internal quotation marks omitted).

Defendants argue that the USFS's consent is not final agency action because while it arguably represents the consummation of the USFS's process, no legal consequences flow from it given that it was the BLM which had the authority to decide whether to issue the permits. See USFS DN/FONSI, AR 00823 (District Ranger stated that "[f]ollowing this FS consent decision, the BLM must decide whether to issue the prospecting permits and also whether to approve the exploration plan and associated activities within a smaller project area boundary."); see also Supp. AR 2813 (in addressing administrative appeal, USFS stated that "[t]he decision space of the Forest Service is very narrow in that the Forest Service granted consent to the BLM, who is ultimately responsible for issuance of the permits").

Defendants rely on Dalton v. Specter , 511 U.S. 462 (1994), where the Supreme Court addressed whether military base closure recommendations made by the Secretary of Defense and a special base closure commission were final agency actions within the meaning of the APA. The commission was to forward its recommendations, and the Secretary's, to the President who could then approve or disapprove the recommendations. If the President approved, then the President would tender a certification of approval to Congress. Id . at 470.

The Court held the recommendation reports were not final agency action:

The reports submitted by the Secretary and the Commission... carry no direct consequences for base closings. The action that will directly affect the military bases is taken by the President, when he submits his certification of approval to Congress. Accordingly, the Secretary's and Commission's reports serve more like a tentative recommendation than a final and binding determination. The reports are, like the ruling of a subordinate official, not final and therefore not subject to review.

Id. at 469-70 (citation, internal quotation marks, and brackets omitted).

The Court emphasized the "importance of [the President's] role in the base closure process. Id . at 470. "Without the President's approval, no bases are closed under the Act." "[T]he Act, in turn, does not by its terms circumscribe the President's discretion to approve or disapprove the Commission's report." Id . And, the Court stressed that the "core question" for "determining finality" was "whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Id . (internal quotation marks omitted). The Court noted that "[w]hat is crucial is the fact that the President, not the Commission, takes the final action that affects the military installations." Id . (internal quotation marks and brackets omitted)

Defendants argue that here, as in Dalton, the ultimate action permitting the Project is not the USFS's consent, but the decision of the BLM. They contend that it is a BLM decision, not a USFS decision. Thus, the USFS's consent decision carries "no direct consequences."

I agree with Plaintiff that Dalton is distinguishable. As noted above, the USFS's consent is a prerequisite to the BLM's legal authority to issue the permit. Thus, in contrast to Dalton, the USFS's consent does circumscribe the BLM's discretion to approve the permit. Unlike in Dalton, the BLM was statutorily required to obtain the USFS's consent and determination that the mining activities would not interfere with the primary purpose of the lands' acquisition. While the BLM ultimately had the power to make the decision whether to grant the permit request, it could not do so without incorporating the USFS's determinations. Thus, the USFS's consent was not like a recommendation from a subordinate; it was a condition required by an equal agency partner.

Additionally, legal consequences flow from the imposition of the seven specific, mandatory conditions by the USFS in its consent decision. USFS DN/FONSI, AR 837-38. The permit issuance, by the BLM, although subsequent in time to the USFS's DN/FONSI consent decision, had to include these requirements and any violation of the conditions is a violation of the permit. Thus, the USFS's consent altered the legal landscape because first, the BLM could not issue the permit without it and second, it contained conditions imposed on Ascot. As a result, the consent decision was final agency action within the meaning of the APA.[2]

II. Weeks Act, Reorganization Plan No. 3, and the LWCF Act Claims

A. Regulatory Scheme

The USFS acquired the Project lands under the authority of the "Weeks Act" which authorizes the Secretary of Agriculture to "examine, locate, and purchase such forested, cut-over, or denuded lands within the watersheds of navigable streams as in his judgment may be necessary to the regulation of the flow of navigable streams or for the production of timber." 16 U.S.C. § 515. When first enacted in 1911, the Weeks Act addressed the protection of watersheds of navigable streams and timber production. In 1917, it was amended to authorize the Secretary of Agriculture to permit mineral development of Weeks Act lands. 16 U.S.C. § 520. Reorganization Plan No. 3 of 1946 transferred the authority over mineral development to the Secretary of the Interior, provided, however, that the Secretary of Agriculture advises that mineral development activities do not interfere with the primary purposes for which the lands were acquired. That law states that

[t]he functions of the Secretary of Agriculture and the Department of Agriculture with respect to the uses of mineral deposits in certain lands pursuant to the provisions of the [Weeks Act and other statutes], are hereby transferred to the Secretary of the Interior and shall be performed by him or, subject to his direction and control, by such officers and agencies of the Department of the Interior as he may designate: Provided, That mineral development on such lands shall be authorized by the Secretary of the Interior only when he is advised by the Secretary of Agriculture that such development will not interfere with the primary purposes for which the land was acquired and only in accordance with such conditions as may be specified by the Secretary of Agriculture in order to protect such purposes.

5 U.S.C. App 1 (Reorganization Plan No. 3 of 1946, § 402) (hereinafter "Reorganization Plan").

Thus, under the Reorganization Plan, the BLM may approve mineral prospecting and development on Weeks Act land so long as the USFS advises that such activities will not interfere with the purposes for which the lands were acquired.

While the Project lands were acquired under the authority of the Weeks Act, they were purchased in 1986 with money appropriated under the LWCF Act.[3] See May 13, 1986 Memo. fr. Rodney Young, Acting Director of Lands, USDA, to Regional Forester R-6, AR 25653 (regarding purchase of the lands from Trust for Public Land and noting "Funds [for the purchase] are Land and Water Conservation Fund Act moneys.").

Lands purchased by the USFS with LWCF Act funds must be "primarily of value for outdoor recreation purposes." 16 U.S.C. § 460 l -9(a)(1)(b). Congress stated the purpose of the Act as follows:

The purposes of this part are to assist in preserving, developing, and assuring accessibility to all citizens of the United States of America of present and future generations and visitors who are lawfully present within the boundaries of the United States of America such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation in such recreation and to strengthen the health and vitality of the citizens of the United States by (1) providing funds for and authorizing Federal assistance to the States in planning, acquisition, and development of needed land and water areas and facilities and (2) providing funds for the Federal acquisition and development of certain lands and other areas.

16 U.S.C. § 460 l -4.

In regard to the Project lands, the USFS stated in letters sent to the relevant Washington congressional delegation and local county commissioners in February 1986 in connection with the purchase of the lands, that "[a]cquisition of this property by the United States will aid in the preservation of the integrity of the Green River prior to its entering the National Volcanic Monument, and will also aid the preservation of the scenic beauty of this area which is to become an important Monument portal." AR 25672; see also AR 23033 (prior 2007 EA which noted the letters and other evidence regarding the purpose of the purchase of the lands and stating that "[b]ased on the foregoing the explicit purpose of the USFS acquisition was to protect the Green River.").

B. Statutory Restrictions on Purchase and Later Manner of Use

Generally, Plaintiff contends that the 2012 EA and the USFS's DN/FONSI fail to articulate the primary purposes for which the Project lands were acquired. Additionally, to the extent the primary purposes are recognized, Plaintiff argues that the 2012 EA does not support the agencies' conclusion that the permitted mining activities are not inconsistent with those primary purposes. Defendants and Ascot argue that while the statutes at issue limited the authority to acquire the lands to certain primary purposes or specific conditions, there is no support for Plaintiff's contention that after acquisition, any authorized use of the land can be only for or consistent with the purposes for which ...


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