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Oregon Natural Desert Ass'n. v. Cain

United States District Court, D. Oregon

February 13, 2018

BRENDAN CAIN, Bums District Manager, BLM, et al. Defendants, and HARNEY COUNTY, Defendant-Intervenor-Cross-Claimant.


          Honorable Paul Papak United States Magistrate Judge.

         Plaintiff 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.

         In 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.

         ONDA 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.[1]

         On 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.

         In 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 travel.

         ONDA 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 to strike.


         I. Legal Standard for Judicial Review of Final Agency Decisions

         When 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 review,

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 (1976).

         The 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 Cir. 2016).

         II. Standard of Review for IBLA Decisions

         "Courts 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)).


         The 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." Id.

         "The 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.

         In 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).

         In 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.

         Meanwhile, 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.

         In 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 on-the-ground." Id.

         ONDA 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.


         ONDA 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 issues.

         I. ONDA's Steens Act Claims

         In the 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.

         ONDA argues that IBLA's interpretation of the Steens Act does not deserve Chevron[2]deference 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 ...

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