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Oregon Natural Desert Association v. Rose

United States Court of Appeals, Ninth Circuit

April 25, 2019

Oregon Natural Desert Association, Plaintiff-Appellant/ Cross-Appellee,
v.
Jeff Rose, Burns District Manager, BLM; U.S. Bureau of Land Management; Interior Board of Land Appeals; Rhonda Karges, Field Manager, Andrews Resource Area, BLM, Defendants-Appellees, and Harney County, Intervenor-Defendant-Appellee/ Cross-Appellant.

          Argued and Submitted March 8, 2019 Portland, Oregon

          Appeals from the United States District Court for the District of Oregon No. 3:09-cv-00369-PK Paul J. Papak II, Magistrate Judge, Presiding

          Peter M. Lacy (argued), Oregon Natural Desert Association, Portland, Oregon; Thomas C. Buchele, Earthrise Law Center, Portland, Oregon; David H. Becker, Law Office of David H. Becker, Portland, Oregon; for Plaintiff-Appellant/Cross-Appellee.

          Dominic M. Carollo (argued), Yockim Carollo LLP, Roseburg, Oregon, for Intervenor-Defendant-Appellee/Cross-Appellant.

          Sean E. Martin (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney's Office, Portland, Oregon; for Defendants-Appellees.

          Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno, [*] District Judge.

         SUMMARY[**]

         Environmental Law

         The panel affirmed in part, and vacated in part, the district court's judgment upholding the Bureau of Land Management's decisions about the route network for motorized vehicles in the Steens Mountain Cooperative Management and Protection Area.

         The Bureau issued two plans: the Steens Mountain Travel Management Plan ("Travel Plan") and the Steens Mountain Comprehensive Recreation Plan ("Recreation Plan"). The Oregon Natural Desert Association challenged the Recreation Plan, and the Interior Board of Land Appeals ("Board") approval of the Travel Plan, under the National Environmental Policy Act of 1969 ("NEPA"), the Federal Land Policy Management Act of 1976, and the Steens Mountain Cooperative Management and Protection Act of 2000. Haney County, Oregon intervened.

         The panel held that the Bureau satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, and therefore, its action was not arbitrary and capricious in that respect. The panel also held that even if the degree or mode of consultation was insufficient, any error was harmless to Harney County.

         The panel held that the Board acted arbitrarily and capriciously by changing its definition of "roads and trials" without providing a reasoned explanation for the change. The panel vacated the Board's approval of the Travel Plan, and remanded. The panel left it to the agency, in the first instance, to explain its change in position or to craft new definitions and explain them.

         The panel held that the Board acted arbitrarily and capriciously by affirming the Bureau's issuance of the Travel Plan because the Bureau failed to establish the baseline environmental conditions necessary for a procedurally adequate assessment of the Travel Plan's environmental impacts. The panel vacated the Board's approval of the Travel Plan and remanded with instructions for the Board to remand the Travel Plan to the Bureau for reconsideration. Because the panel concluded that the Travel Plan was procedurally deficient under NEPA, it did not reach the substantive challenges to the Travel Plan under the other Acts and did not decide whether the Bureau must prepare an environmental impact statement for the Travel Plan.

         The panel held that the Bureau acted arbitrarily and capriciously in issuing the Recreation Plan because the Bureau failed to establish the baseline conditions necessary for it to consider the significant environmental impacts to the Steens Mountain Area. The panel vacated the Recreation Plan and remanded.

         The panel vacated the cost ...


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