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Wildlands v. Bureau of Land Management

United States District Court, D. Oregon

September 18, 2019

CASCADIA WILDLANDS, an Oregon nonprofit corporation; and OREGON WILD, an Oregon nonprofit corporation, Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, a federal agency, Defendant, and SENECA SAWMILL COMPANY, an Oregon corporation, Defendant-Intervenor.

          OPINION AND ORDER

          Michael McShane, United States District Judge

         Plaintiffs Cascadia Wildlands and Oregon Wild bring this action for declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., alleging that Defendant-the United States Bureau of Land Management (“BLM”)-violated (1) the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 302 et seq., by authorizing regeneration harvesting[1] in the Willamalane Non-Motorized Trails Extensive Recreation Management Area; and (2) the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and controlling regulations by stating an unreasonably narrow purpose and need, failing to consider reasonable and feasible alternatives, and failing to take the requisite hard look at the proposed action’s potential environment impacts. Pls.’ Am. Compl. ¶¶ 1–2, ECF No. 2.

         Specifically, Plaintiffs allege that the timber harvest will increase fire hazard levels to adjacent communities, degrade the area’s scenic quality, and reduce recreational opportunities. Pls.’ Mem. 3, 12–18, ECF No. 16. Plaintiffs ask the Court to vacate and set aside the Decision Record and remand the matter back to BLM. Pls.’ Compl. 18; Pls.’ Mot. 2, ECF No. 16. Plaintiffs, BLM, and Defendant-Intervenor Seneca Sawmill Company (“Seneca”) filed a Motion and Cross-Motions for Summary Judgment on the claims in this case. ECF Nos. 16, 22, and 23.

         Because BLM arbitrarily and capriciously failed to designate a Recreation Management Zone and did not fully analyze and publicly disclose the degree of fire hazard, Plaintiff’s Motion for Summary Judgment (ECF No. 16) is GRANTED in part and Defendant and Defendant-Intervenor’s Cross-Motions for Summary Judgment (ECF Nos. 22 and 23) are DENIED in part. Because BLM authorized the Pedal Power timber sale consistent with the applicable management directives, adequately evaluated its effects on targeted visitor activities, quality recreation, and anticipated benefits, took a hard look at its potential impact on recreational experiences, and adequately analyzed reasonable alternatives, Defendant and Defendant- Intervenor’s Cross-Motions for Summary Judgment (ECF Nos. 22 and 23) are GRANTED in part and Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED in part.

         BACKGROUND

         BLM conducted spatial analysis to identify and designate various recreation areas near Oregon’s population centers under its 2016 Northwestern and Coastal Oregon Record of Decision and Resource Management Plan (“2016 RMP”). Pls.’ Mem. 3–4. The 2016 RMP governs approximately 1.3 million acres of land in the Coos Bay, Eugene, Salem, and Roseburg Districts. Pls.’ Mem. 4. BLM designated various Recreation Management Areas and Extensive Recreation Management Areas to protect and enhance recreation and scenery. Id. The 2016 RMP directs BLM to manage these areas in accordance with “specific planning frameworks, ” including recreation values, types of visitors, objectives, actions, and allowable use restrictions. Id. It also established five land allocations, which overlap with Resource Management Areas. Id.

         The Willamalane Parks and Recreation District acquired the Thurston Hills Natural Area for preservation and development of a hiking and biking trail. Pls.’ Mem. 5. They formally collaborated with BLM, which manages land immediately adjacent to the area, to collaborate on a connected trail system. Id.; Def.’s Mem. 6, ECF No. 22. BLM officially designated this 1, 058-acre area, located in the Upper Willamette Resource Area of BLM’s Northwest Oregon District within Springfield city limits, as the Willamalane Non-Motorized Trails Extensive Recreation Management Area (“Willamalane ERMA”). Pls.’ Mem. 1, 5; Def.’s Mem. 1.

         The Willamalane ERMA was intended for recreational development consistent with the Willamalane Parks and Recreation District’s goals to preserve views, enhance wildlife habitat and sensitive areas, and provide recreation opportunities. Pls.’ Mem. 6. Plaintiffs acknowledge that the Willamalane ERMA was also designed to allow for resource management and uses but argue that its designation requires specific management consideration regarding “recreational use, demand, visitor experiences and related program investments.” Pls.’ Mem. 6. Fifty-five percent of the Willamalane ERMA overlaps with Harvest Land Base lands, which BLM manages for sustained-yield timber production under the 2016 RMP and the Oregon & California Revested Lands Act of 1937 (“O&C Act”), 42 U.S.C. § 2601.[2] Pls.’ Mem. 6; Def.’s Mem. 1–2. According to Seneca, because the Harvest Land Base land use allocation “implements a statutory mandate for ‘permanent forest production’ as a dominant use, ” the Harvest Land Base management direction always controls. Def.-Intervenor’s Mot. 4, ECF No. 23 (citing AR 11241 (explaining that Extensive Recreation Management Area direction applies to the extent that it is consistent with the underlying land use allocation’s management direction)).

         In early 2017, BLM began planning a proposal to develop a non-motorized trails network and timber sale in the Willamalane ERMA-the Thurston Hills Non-Motorized Trails and Forest Management Project. Pls.’ Mem. 7; Def.’s Mem. 2. BLM issued a public scoping notice for the Project in March 2017. Pls.’ Mem. 8. Plaintiffs submitted comments citing their concerns and recommendations. Pls.’ Mem. 8–9. In November 2017, BLM held an open house regarding the proposal and solicited further public feedback. Pls.’ Mem. 9; Def.’s Mem. 3. In April 2018, BLM issued a Draft Environmental Assessment. Pls.’ Mem. 9–10. In May 2018, BLM issued a revised Final Environmental Assessment, Finding of No. Significant Impact, and Decision Record. Pls.’ Mem. 11–12; Def.’s Mem. 3. BLM adopted Alternative 3, providing for 155 acres of regeneration timber harvest and 8.3 miles of recreational trails. Def.-Intervenor’s Mot. 6.

         After the public, the Willamalane Parks and Recreation District, the City of Springfield, and Congressman Peter DeFazio raised concerns regarding regeneration logging, BLM withdrew its initial Finding of No. Significant Impact and Decision Record and issued modified versions in August 2018. Pls.’ Mem. 11–12; see Def.’s Mem. 4. BLM ultimately adopted a modified Alternative 4, providing for 100 acres of timber harvest and 8.5 miles of recreational trails and increasing green tree retention from 10 to 15%. Def.-Intervenor’s Mot. 7. Plaintiffs jointly filed a protest letter and appeal with the Interior Board of Land Appeals, which BLM denied on October 5, 2018. Pls.’ Mem. 12. On February 1, 2019, BLM awarded the Pedal Power timber sale to Seneca. Pls.’ Mem. 12; Def.’s Mem. 6. Seneca intended to begin preparatory road work in June and July 2019 and logging in mid-August 2019. Pls.’ Mem. 12, ECF No. 16; Def.’s Mem. 6. The process is expected to last for two years, after which trail development (which is expected to take five years to fund and construct) may begin. Def.-Intervenor’s Mot. 7.

         STANDARD OF REVIEW

         Judicial review of agency action is governed by the Administrative Procedure Act (APA). 5 U.S.C. § 706. The reviewing 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, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (citations omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 (1977). Agency decisions are “entitled to a presumption of regularity.” Id. at 415. While such review is deferential to the agency action taken, the court must not “rubber-stamp” the agency action as correct. Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir. 2008); N. Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F.Supp. 479, 482 (W.D. Wash. 1988).

         A court may set aside an agency’s action if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A) and (D). “[I]f an agency ‘fails to consider an important aspect of a problem . . . [or] offers an explanation for the decision that is contrary to the evidence, ’ its action is arbitrary and capricious.” Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 888–89 (9th Cir. 2007) (quoting Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005)). “An agency action is also arbitrary and capricious if the agency fails to ‘articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.’” Friends of Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 12 F.Supp.2d 1121, 1131 (D. Or. 1997) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

         Because this Court’s review under the APA is generally limited to the administrative record, see infra, no facts are in dispute. However, the parties have filed a Motion and Cross-Motions for Summary Judgment, which may be used as vehicles for the Court to conduct its review of the record. Therefore, the Court’s role is “to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

         DISCUSSION

         I. FLPMA

         The Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701 et seq., requires BLM to prepare Resource Management Plans for its districts. 43 U.S.C. § 1712. BLM must ensure that site-specific actions conform to the governing Resource Management Plan. 43 U.S.C. § 1732(a); 43 C.F.R. § 1601.0-5(b) (defining “conformance” as “specifically provided for in the plan” or “clearly consistent with the terms, conditions, and decisions of the approved plan or plan amendment.”); 43 C.F.R. § 1610.5-3(a); Ore. Natural Resources Council v. Brong, 492 F.3d 1120, 1125 (9th Cir. 2007). The Resource Management Plan governing the Project at issue is the 2016 RMP. Pls.’ Mem. 9; AR 4572, 11380.[3]

         FLPMA generally requires BLM to manage lands “on the basis of multiple use and sustained yield unless otherwise specified by law” and to protect a wide range of natural resource values. See, e.g., 43 U.S.C. § 1701(a)(7); see generally Id . §§ 1701–1782. FLPMA provides an exception for O&C lands:

Notwithstanding any provision of this Act, in the event of conflict with or inconsistency between this Act and the Acts of August 28, 1937 (50 Stat. 874; 43 U.S.C. ยง 1181a-1181j), and May 24, 1939 (53 Stat. 753), insofar as they relate to management of timber resources, and ...

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