United States District Court, D. Oregon
OPINION AND ORDER
Honorable Paul Papak United States Magistrate Judge.
Oregon Natural Desert Association (ONDA) seeks judicial
review of two final agency decisions concerning the
designation of routes available for motorized travel in the
Steens Mountain Cooperative Management and Protection Area
(CMPA): the decision of the Interior Board of Land Appeals
(IBLA), on remand from this court, to affirm the Bureau of
Land Management (BLM)'s adoption of the Steens Mountain
Travel Management Plan (TMP); and BLM's subsequent
decision to issue the Steens Mountain Comprehensive
Recreation Plan, ONDA claims that these two decisions violate
the Steens Mountain Cooperative Management and Protection Act
of 2000 (the Steens Act), 16 U.S.C. §§ 46Onnn
-460nnn-122; the Federal Land Policy and Management Act of
1976 (FLPMA), 43 U.S.C. §§ 1701-87; the Wilderness
Act of 1964, 16 U.S.C. §§ 1131-36; and the National
Environmental Policy Act (NEPA), 42 U.S.C. §§
4321-61. Third Am. & Suppl. Compl., ECF No. 244.
Defendants are BLM; Brendan Cain, Burns District Manager,
BLM; Rhonda Karges, Manager, Andrews Resource Area, BLM (I
refer to these defendants collectively as BLM); and the IBLA.
Harney County has intervened as a defendant, and asserts
cross-claims against BLM under NEPA and the Steens Act.
2007, BLM issued the Travel Management Plan (TMP) decision at
issue here. In 2008, ONDA appealed the TMP to the IBLA. In
2009, the IBLA affirmed the TMP decision almost in its
entirety, reversing only the TMP's allowance of motorized
traffic on Obscure Routes.
then filed this action seeking judicial review of the
IBLA's decision. In 2011, on cross-motions for summary
judgment, I remanded the case to the IBLA for further
proceedings on seven of the nine issues raised by ONDA.
Oregon Natural Desert Ass 'n v. McDaniel, No.
09-cv-369-PK, 2011 WL 1654265, at *10 (D, Or. April 28,
2011), ECF No. 103 (O & O). I concluded that the
IBLA's opinion was arbitrary and capricious because it
had failed to address the seven issues "sufficiently to
create a record for judicial review." Id.
(footnote omitted). The most troubling issue for me was
"the IBLA's complete failure to review the TMP's
individual route determinations, the methodology BLM employed
in conducting its route inventory, or the evidence presented
by ONDA that BLM's route designations ignored the actual
conditions on the ground." Id. I did not rule
on the merits of ONDA's claims on the seven issues,
leaving that for the IBLA to resolve on remand.
remand, after receiving additional evidence and briefing, the
IBLA affirmed the TMP in its entirety, Oregon Natural
Desert Ass 'n (On Judicial Remand), IBLA No.
2008-59-1, 185 IBLA 59, 2014 WL 7150267, ECF No. 203 (IBLA
Sept. 30, 2014) (IBLA Op.). In affirming the TMP, the IBLA
sua sponte vacated its prior reversal of BLM's
designation of Obscure Routes as open to motorized travel.
2015, BLM issued the Comprehensive Recreation Plan (CRP). In
preparing the CRP, BLM reexamined the Obscure Routes and
decided to close many of the Obscure Routes to motorized
now seeks judicial review of the 2014 IBLA decision and the
2015 CRP. For the following reasons, I conclude that the 2014
IBLA decision and BLM's 2015 CRP decision are supported
by substantial evidence in the record, are not contrary to
law, and are not arbitrary or capricious. I therefore deny
ONDA's Motion for Summary Judgment and grant BLM's
Cross-Motion for Summary Judgment. I deny Harney County's
Motion for Summaiy Judgment. I deny the parties' motions
Legal Standard for Judicial Review of Final Agency
reviewing a final agency decision under the Administrative
Procedure Act (APA), the court determines whether the
agency's decision was "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 7O6(2)(A). Before overturning an
agency decision under the APA's deferential standard of
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. Although this inquiry into
the facts is to be searching and careful, the ultimate
standard of review is a narrow one. The court is not
empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971) (citations omitted), abrogated in part on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977). The court presumes that the agency acted properly and
affirms when '"a reasonable basis exists for its
decision."' Nw. Ecosystem Alliance v. U.S. Fish
& Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.
2007) (quoting Independent Acceptance Co. v.
California, 204 F.3d 1247, 1251 (9th Cir. 2000)
(citations omitted)). The plaintiff bears the burden of
showing that an agency decision or action was arbitrary and
capricious. Kleppe v. Sierra Club, 427 U.S. 390, 412
patties have filed cross-motions for summary judgment under
Federal Rule of Civil. Procedure 56. See City & Cty.
of San Francisco v. United States, 130 F.3d 873, 877
(9th Cir. 1997) (summary judgment is '"an
appropriate mechanism for deciding the legal question of
whether the agency could reasonably have found the facts as
it did'") (quoting Occidental Eng'g Co. v.
INS, 753 F.2d 766, 770 (9th Cir. 1985)). But when a
court reviews an agency decision, the APA's legal
standards, not those of Rule 56, govern. In this context,
"summary judgment" is "simply a convenient
label to trigger" judicial review. Klamath Siskiyou
Wildlands Ctr. v. Gerritsma, 962 F.Supp.2d 1230, 1233
(D. Or. 2013), aff'd, 638 Fed.Appx. 648 (9th
Standard of Review for IBLA Decisions
apply the same standard of review of IBLA decisions as for
review of agency decisions generally." O & O at *9.
This court may reverse the IBLA's decision only if the
decision is arbitrary, capricious, not supported by
substantial evidence, an abuse of discretion, or contrary to
law. Akootchook v. United States, 271 F.3d 1160,
1164 (9th Cir. 2001). "This standard is narrow and a
reviewing court may not substitute its judgment for that of
the agency." Geo-Energy Partners-1983 Ltd. v.
Salazar, 613 F.3d 946, 955 (9th Cir. 2010). The
reviewing court carefully searches the full record
'"to determine whether it contains such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion and whether it demonstrates that the
decision was based on a consideration of relevant
factors."' Akootchook 271 F.3d at 1164
(quoting Hjelvik v. Babbitt, 198 F.3d 1072, 1074
(9th Cir. 1999)).
Steens Mountain Cooperative Management and Protection Area
(CMPA) "is a high desert area ranging from aspen and
juniper woodlands to sagebrush shrublands and grasslands,
punctuated by perennial and intermittent streams, springs,
and riparian areas." IBLA Op. at 65 (footnote omitted),
The CMP A, which BLM manages, comprises more than 420, 000
acres of public land, as well as almost 67, 000 acres of
private land, Id. Steens Mountain, a 9, 773-foot
high mountain, is "the centerpiece of the CMPA."
fundamental purpose of the Steens Act is 'to conserve,
protect, and manage the long-term ecological integrity of
Steens Mountain for future and present
generations."' Id. at 64 (quoting 16 U.S.C.
§§ 460nnn(5)), The Steens Act restricts motorized
and mechanized travel on federal lands in the CMPA,
"generally prohibiting off-road vehicle use and
restricting vehicle use to designated existing roads and
trails (with limited exceptions) and precluding the
construction of new roads or trails (with limited
exceptions)." Id. at 65 (citing 16 U.S.C.
§§ 460nnn-22). The Steens Act requires that BLM
create "a comprehensive plan for the long-range
protection and management of the Federal lands included in
the [CMPA], " 16 U.S.C. § 46Onnn-21(b), including,
"as an integral part, a comprehensive transportation
plan for the Federal lands included in the [CMPA], which
shall address the maintenance, improvement, and closure of
roads and trails as well as travel access, " 16 U.S.C.
§ 46Onnn-22(a). The Steens Act also closed about 100
miles of routes.
2005, BLM adopted the Steens Mountain CMPA Resource
Management Plan (RMP). In developing the RMP, BLM prepared an
Environmental Impact Statement, taking public comments.
See AR 11052-12237. The RMP included an abbreviated
Transportation Plan (TP), "which provided guidance
regarding the maintenance, improvement, use, and
accessibility of roads and trails in the CMPA. The TP also
provided for a site-specific on-the-ground route inventory,
which would update and map all existing routes in the
CMPA." IBLA Op. at 66. BLM began preparing a
comprehensive Travel Management Plan, seeking to determine
"'how best to manage travel in the CMPA while
protecting resources including wilderness characteristics,
providing for 'reasonable' access to private lands,
providing for sustainable livestock grazing, providing
recreation opportunities, and otherwise meeting RMP land
management objectives.'" Id. (quoting
Environmental Assessment at 3, AR 9955) (footnote omitted).
2007, this court addressed ONDA's challenge to the Steens
Mountain RMP. Oregon Natural Desert Ass'n v.
Shuford, No. 06-cv-242-AA, 2007 WL 1695162 (D. Or. June
8, 2007) (Shuford), off'd sub nom. Oregon Natural
Desert Ass'n v. McDaniel, 405 Fed.Appx. 197 (9th
Cir. 2010). In Shuford, this court denied ONDA's
motion for summary judgment except as to ONDA's challenge
to the TP. This court held that the TP
violated the Steens Act for several reasons. First, the plan
did not include a "comprehensive management system for
travel over roads, ways, and trails." [Shuford,
at * 18.] Second, the plan explicitly provided for an
additional environmental assessment and travel management
plan, including further field inventories and need
determinations, in order to complete the comprehensive
transportation plan mandated by the Steens Act. Finally, the
plan as it existed did not "describe or include a plan
for managing different types of travel over specific areas,
roads, routes or trails." [Shuford, at * 19.]
Thus, the plan failed to address travel on hiking trails, an
unambiguous requirement of the statute.
O & O at *6 (citations omitted). After Shuford
remanded the TP to BLM, this court denied ONDA's request
to vacate the TP, finding "no harm to the public
interest." Oregon Natural Desert Ass'n v.
Shuford, No. 06-cv-242-AA, ECF No. 243, slip op. at 8
(D. Or. July 8, 2008) (noting that the Steens Act
"contains little guidance" on "the substance
that must be contained in a transportation plan").
Shortly after this court decided Shuford, BLM
rescinded the RMP so that it could issue a new RMP
incorporating this court's guidance.
in April 2007, BLM issued an Environmental Assessment (EA)
for the TMP. In the EA, BLM considered four alternatives,
"maximize use, " "minimal change, "
reduced use, " and "proposed action." BLM
based the "minimal change" alternative primarily on
ONDA's advice and comments.
November 2007, BLM issued the TMP decision, which designated
555 miles of routes as Base Routes, defined as routes
"currently open to motor vehicle travel." O & O
at *4. The 555 miles of Base Routes included 36 miles of
Obscure Routes, defined as routes "hard to locate
appealed the TMP decision to the IBLA. In 2009, the IBLA
affirmed the TMP except as to the TMP's allowance of
motorized travel on Obscure Routes. ONDA appealed the
IBLA's 2009 decision to this court, leading to the O
& O issued in 2011 and the subsequent remand. In
2014, the IBLA issued its decision affirming the TMP in its
entirety. In 2015, BLM issued its CRP decision.
contends that the 2014IBLA decision affirming the TMP and the
BLM's 2015 CRP decision violate the Steens Act, FLPMA,
the Wilderness Act, and NEPA. ONDA's claims focus
primarily on whether BLM properly designated routes in the
Steens Mountain Comprehensive Management and Protection Area
that should be open to motorized travel. As explained below,
I affirm the IBLA decision, which resolved the remanded
issues in a comprehensive opinion that reviewed the
voluminous evidence and thoroughly analyzed the complex legal
ONDA's Steens Act Claims
O & O, I remanded two issues concerning the BLM's
alleged violations of the Steens Act: whether BLM violated
the Steens Act's prohibition of off-road motorized
travel, 16 U.S.C. § 46Onnn-22(b), by designating routes
that did not exist as open to motorized travel; and whether
BLM violated the Steens Act's prohibition on constructing
new motorized roads or trails, 16 U.S.C. § 46Onnn-22(d),
by approving maintenance of routes that did not exist to
allow motorized travel. ONDA now contends that the IBLA acted
arbitrarily and capriciously in ruling for BLM on these
issues. ONDA also contends that BLM's CRP decision
violates the Steens Act.
argues that IBLA's interpretation of the Steens Act does
not deserve Chevrondeference but only the lower level
of deference described in United States v. Mead
Corp.,533 U.S. 218, 228 (2001). See Pl.'s
Reply-Resp. 26-27 & n.6. ONDA distinguishes my prior
ruling that Chevron deference applies to the
IBLA's statutory interpretation of the Steens Act, O
& O at *12, arguing that the IBLA's sua
sponte decision to reinstate the Obscure Routes does not
deserve such deference. Adhering to my prior ruling, I agree
with BLM that Chevron deference applies ...